U. S. DEPARTMENT OF LABOR                      }
OFFICE OF STANDARDS, REGULATIONS AND VARIANCES }
MINE SAFETY AND HEALTH ADMINISTRATION          }

								AB14-HEAR-TRANSCRIPT-1SS
Pages:	1 through 271				AB14-HEAR-TRANSCRIPT-1PV

Place:	Washington, PA

Date:	May 6, 2003    

BEFORE THE DEPARTMENT OF LABOR

U. S. DEPARTMENT OF LABOR                      }
OFFICE OF STANDARDS, REGULATIONS AND VARIANCES }
MINE SAFETY AND HEALTH ADMINISTRATION          }

	MINE SAFETY AND HEALTH ADMINISTRATION (MSHA)

	SINGLE SAMPLE/PLAN VERIFICATION PUBLIC HEARING

	PUBLIC HEARING

					Holiday Inn at the Meadows
					340 Racetrack Road
					Fireside Room 
					Washington, PA 

					Tuesday,
					May 6, 2003

U.S. DEPARTMENT OF LABOR					MAY 2003

	MINE SAFETY AND HEALTH ADMINISTRATION (MSHA)

	SINGLE SAMPLE/PLAN VERIFICATION PUBLIC HEARING

	HEARING PANEL MEMBERS

1.	MODERATOR 		MARVIN NICHOLS, Director, 
                    	MSHA Office of Standards,
					Regulations and Variances

2.	BOB THAXTON 	 	Committee Chair and Technical 		
				Advisor, MSHA Division of Coal			
			Mine Safety and Health

3.	LARRY REYNOLDS		Attorney, MSHA Office of the 		
				Solicitor

4.	GEORGE NIEWIADOMSKI	Mine Safety and Health Specialist
					MSHA Division of Coal Mine Safety
					and Health

5.	JON KOGUT			Mathematical Statistician, MSHA
					Division of Program Evaluation,
					Information Resources

6.	RON FORD			Economist, MSHA Office of			
				Standards, Regulations and              
                 Variances

7.	PAMELA KING		Regulatory Specialist, MSHA        
                      Office of
					Standards, Regulations and         
                      Variances

8.	DR. LEW WADE		Associate Director of Mining 		
			     Research, National Institute for        
                 Occupational Safety and Health              
             (NIOSH)

9.	FRANK HEARL		Senior Advisor, Office of the 		
			     Director (NIOSH)

	P R O C E E D I N G S
	(8:30 a.m.)
		MR. NICHOLS:  Okay.  Can you hear me in the back? 
 You can't hear?  Can you hear me now?  Okay, good.  Are we 
on the record?  Okay.  I want to thank you folks for being 
patient.  I think we misled our court reporter on the 
starting time.  We normally start the public hearings at 9 
o'clock, but we anticipated a full day today, so we wanted 
to start all of our dust hearings at 8:00 a.m., so we're at 
8:30, so we're earlier than normal, but we will try to start 
the remaining five hearings at 8 o'clock sharp. 
		My name is Marvin Nichols, and I'm the director of 
the office of standards for MSHA, and I'll be the moderator 
for today's public hearing.  On behalf of assistant 
secretary Dave Lauriski, for MSHA and Dr. John Howard, 
director of NIOSH, we want to welcome all of you here today. 
 Today's public hearing is being held to receive your 
comments on two related MSHA regulatory actions.  First, we 
have reopened the record for comment on the joint MSHA/NIOSH 
single sample proposed rule that was originally published on 
July 7, 2000.  Second, we have reproprosed the plan 
verification rule.  It was published in the Federal Register 
on March 6, 2003. 
		Your comments today will be included in the record 
for both proposed rules.  The two proposed rules are based 
upon the 1996 recommendations of the Secretary of Labor's 
advisory committee on the elimination of pneumoconiosis, and 
the comments received in response to the previous proposed 
rule published in 2000.  These rules are intended to 
eliminate black lung and silicosis by eliminating minor 
overexposures. 
		They completely change the federal program for 
controlling, detecting, and sampling respirable dust in coal 
mines.  The emphasis of the new program will be on verified 
engineering controls, so that miners are protected on every 
shift.  Let me now introduce the panel. 
		To my right, from NIOSH, and representing the 
Centers for Disease Control and Prevention are Dr. Lew Wade, 
associate director of mining research; Frank Hearl, senior 
advisor in the office of the director.  Frank and Lew join 
us because a single sample rule is a joint effort between 
MSHA and NIOSH.  And at the end of the table is John Kogut, 
mathematical statistician, office of program policy and 
evaluation with MSHA; to my left is Bob Thaxton, the 
technical advisor in Coal Mine Safety and Health; next to 
Bob is Larry Reynolds, office of the solicitor; and at the 
end of the table is George Niewiadomski, mine safety and 
health specialist, Coal Mine Safety and Health. 
		We also have Pam King from my office at our sign-
in desk, and if you've not yet signed in, we would like for 
you to do that, to get an accurate representation of the 
number of people attending.  And also, if you wish to speak, 
I have a sign-up sheet up here, but there's another one in 
the back, so just start a new one.  If you haven't already 
signed in and you wish to speak, please do that. 
		Let me first mention how today's hearings will be 
conducted.  As with all of our hearings, the formal rules of 
evidence do not apply at these hearings, and the hearings 
will be conducted in an informal manner.  Those of you who 
have notified MSHA in advance will be allowed to make your 
presentations first.  Following these presentations, others 
who request an opportunity to speak will be allowed to do 
so.  I would ask that all the questions regarding these 
rules be made on the public records, and that you refrain 
from asking panel members when we're not in session.  The 
reason we do this is that we want to get all the discussion 
of these rules on the record. 
		Following the completion of my opening statement, 
Bob Thaxton will give an overview of the new proposed plan 
verification rule.  Following Bob's presentation, we'll take 
a short break, and then we'll start receiving your comments. 
 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 comments 
that MSHA has received to date on the proposed rule, will be 
available for review.  We intend to post a copy of the 
transcript on the MSHA web page at WWW.MSHA.Gov.  If you 
wish to obtain a copy of the hearing transcript before then, 
you should make your own arrangements with the court 
reporter. 
		We are also accepting written comments and data 
from any interested party, including those who do not speak 
here today.  You can give written comments to me during the 
hearing, or send them to the address listed in the hearing 
notice.  If you wish to present any written statements or 
information for the record today, please clearly identify 
them.  All written comments and data submitted to MSHA will 
be included in the official record, and an attendance sheet, 
I've already mentioned, is in the back. 
		Due to the requests from the mining community, the 
Agency will extend the posthearing comment period for the 
plan verification proposal from June the 4th to July 3, 
2003.  The notice announcing the extension will be published 
in the Federal Register this week.  We also anticipate 
extending the comment period for single sample, but that 
decision will only be made after a consultation with NIOSH, 
since it's a joint rule between MSHA and NIOSH.
		As you know, we have scheduled five additional 
public hearings on the two proposed rules.  The additional 
hearings will be in Charleston, West Virginia, on May the 
8th; in Evansville, Indiana, on May the 13th; in Lexington, 
Kentucky, on May the 15th; in Birmingham, Alabama, on May 
the 20th; and in Grand Junction, Colorado, on May the 22nd. 
 As I mentioned earlier, we plan to start all the hearings 
at 8:00 a.m., and we'll end the hearings when the last 
scheduled speaker speaks. 
		Before we begin, let me give you some background 
on the two proposed rules.  First, the single sample 
proposed rule, which was originally published on July 7, 
2000, would allow MSHA to make compliance determinations on 
single-sample results.  The Agency would no longer use the 
averaging method to determine if miners are overexposed to 
respirable dust.  Averaging these samples can mask 
individual overexposures by diluting a high sample with a 
lower concentration taken on another shift. 
		Using single-sample measurements, rather than 
averaging multiple samples, for compliance purposes, will 
better protect miners' health.  Since samples can identify 
and remedy excessive dust concentrations more quickly.  
Single-sample measurements have been used for many years by 
OSHA, and at metal and nonmetal mines in this country.  MSHA 
AND NIOSH are jointly reopening the rulemaking record for 
this proposed rule, to provide an opportunity for you to 
comment on the new information in the record concerning 
MSHA's current enforcement policy, the health effects, 
quantitative risk assessment, technological and economic 
feasibility, and compliance costs, which has been added 
since July 2000. 
		For example, we updated the preamble to include 
the most recent information on the prevalence on coal mine 
workers pneumoconiosis or CWP, or black lung examined under 
the miners choice program during the period 2000 through 
2002.  These findings show that miners continue to be at 
risk of develop CWP under the current dust control program. 
 The quantitative risk assessment is based on additional and 
more recent data.  None of the new information changes the 
actual findings published in the Federal Register on July 7, 
2000.  The single-sample issue has been through a long 
public process, which is outlined in the preamble to the 
proposed rule. 
		The second regulatory action is the reproposed 
plan verification rule.  This proposed rule supersedes the 
one published on July 7, 2000.  MSHA held three public 
hearings on the prevented proposed rule here in August of 
2000.  Many commenters urged the Agency to withdraw the 
earlier proposed rule and go back to the drawing board.  
Some commenters believe that MSHA had failed to adequately 
address their concerns, the reforms in the Federal Dust 
Program recommended by the Dust Advisory Committee, by NIOSH 
in its criteria document, and reforms urged by coalminers 
submitted in the 1970s.
		After carefully considering all the facts, issues 
and concerns expressed by commenters, MSHA is proposing a 
new rule in response to the comments made to the July 7, 
2000, proposed rule.  And as I mentioned earlier, Bob 
Thaxton will now give us an overview of the new plan 
verification rule.  And also, as I mentioned earlier, we'll 
give Bob's presentation on the screen, and then we'll take a 
short break, and then we'll start receiving comments. 
		MR. THAXTON:  Okay.  Can everybody hear me okay?  
What we'd like to do is, walk through real quick a briefing 
on both the single-sample and plan verification rules.  It's 
combined, because it's a package.  So what we'll do is walk 
through.  This package consists of two rules.  The 
significance of the two rules is that, one, it develops 
effective plans, and it has two components, that is, that 
were involved in the control of dust, as well as monitoring 
that effectiveness of those controls.
		Under single-sample, the single-sample rule comes 
out with a new finding that says that the average 
concentration can be accurately measured over a single 
shift.  That's different from what we've had in the past.  
This rescinds the 1972 finding on the accuracy of a single 
shift.  That '72 finding said that we should be using the 
average of multiple samples.
		Lastly, the single sample does have a standard 
that says that the secretary may use single, full-shift 
measurements to make the determination of the average 
concentration that a person's exposed to over the shift that 
we measure.  Under plan verification, each underground mine 
operator must have a verified ventilation plan for dust 
controls.  He must also have a plan that would be verified 
under actual mining conditions by operator samples.
		MSHA will assume the responsibility for compliance 
and abatement sampling in underground coalmines, and only 
underground coalmines.  This rule does not affect surface 
mines.  MSHA samples will be used to set reduced standards, 
due to the quartz.  There will be no more operator optional 
samples or bimonthly samples used to set the standards.
		Under the verification of the plan, to get a 
better understanding of what's changed, we're doing a 
comparison of what we currently do under the current regs 
versus what this proposal incorporates.  Under current 
conditions, MSHA sampling is used to approve a plan.  The 
plan is approved based on the average of multiple samples.  
At the very least, MSHA took five samples on five different 
occupations over a shift, four multiple samples over 
multiple shifts.
		The samples were full shift, eight hours or less, 
portal to portal, and they were collected at 60 percent of 
average production.  The 2003 proposed rule shifts that the 
operator will sample to verify the effectiveness of the 
plans at underground mines.  It does not affect the plans 
that are approved at surface mines.  The sampling that will 
be conducted will be full-shift samples, production time.  
That is, the samples will be turned on when you enter onto 
an MMU.  They will be turned off when the miners leave the 
MMU.  MMU being a mechanized mining unit. 
		They will be sampled at higher-than-average 
production, and we'll go into how high the production level 
will be a little later.  There are separate quartz and coal 
mine dust verification limits.  We look at each one 
separately on each operator sample submitted.  It also 
permits the use of PAPRs or administrative controls on any 
mining unit, only as a supplemental measure after exhausting 
feasible engineering controls. 
		What's in the plan?  Under the current rule, MSHA 
sampling is conducted at 60 percent of the average 
production, and there are no records of production required 
to be maintained.  So that 60 percent is usually determined 
by just talking with people, the inspector trying to figure 
out what's been the average.  Then he calculates what 60 
percent of that is, and that's what the samples are taken 
at.  If it meets that, they're considered valid. 
		Under the 2003 proposed rule, we will require the 
10th highest production level to verify a plan 
effectiveness.  It also requires the recording of the 
production, and maintaining those records for six months.  
Those records will be recorded for each shift, and it's raw 
tonnage.  That is, no matter what type of material is made, 
it is mined, whether it's rock or coal or something else, it 
has to be recorded as total tonnage. 
		What is the 10th highest production?  This chart 
is a sample of what we're talking about.  This is production 
represented for 30 different shifts on an actual long wall 
out of district three.  That's our Morgantown office.  If we 
did what we're doing right now, MSHA collects samples at 60 
percent of average.  Well, the average production was 6,295 
tons.  60 percent of average brings us down here to just 
over 3,500 tons.  So MSHA would collect samples at this 
level, and say that they are valid under current policies 
and procedures.  Operator samples that are collected 
bimonthly are only at 50 percent.
		We were asked in the past to move this up to 90 
percent of average.  Well, you can see that 90 percent of 
average is still less than the average, naturally, of what 
the MMU is producing.  What we're pushing in this particular 
proposal is the 10th highest, which pushes us up to the 67th 
percentile.  What that means is that two-thirds of the 
shifts are going to be less than the 10th highest, one-third 
of the shifts will be higher.  So you're taking samples at a 
production level that represents a relatively high 
production for that MMU, and represents more closely to what 
the maximum that people would be exposed to.
		Use of PAPRs, or powered air purifying 
respirators.  Under the current rule, PAPRs or respiratory 
protection can be used.  Under 72-700, if people follow the 
-- if operator follow the protection program that's listed 
there, and they provide people with respiratory protection. 
 It can result in a citation that's being issued for 
overexposure being designated as non-S&S.  That is, that the 
protection provided by the respirators under a respiratory 
protection program will lend themselves to say that being 
are being protected enough that you would not class this 
citation as significant as substantial, in that you have 
some reason to believe that the people were protected to 
some degree, at a lower level than what's represented by the 
samples. 
		Under the 2003 proposed rule, it permits the use 
when all feasible engineering controls have been exhausted. 
 That is a determination that's made by the Agency as to 
when feasible engineering controls have been exhausted.  So 
we will be making that determination, based on the 
information that's available for each individual MMU. 
		Only loose-fitting powered respirators  with MSHA 
and NIOSH approval may be used.  At this time there is only 
one unit that meets that criteria, and that is the Racal 3M 
Airstream helmet.
		You must provide a respiratory protection program 
as part of the approved ventilation plan.  The approved plan 
will incorporate all the provisions of a respiratory 
protection program into that approved plan.  It becomes the 
regulation or law for that particular mine and that 
particular MMU.  Failure to follow any portion of it can 
result in violations. 
		It must maintain dust levels as low as possible 
with feasible engineering controls.  When we come in and an 
operator determines that, I've done all I could, I can't do 
anything else, if the Agency comes in and says, we agree, 
you've put in all feasible engineering controls that are 
possible.  All feasible engineering controls are capable of 
getting the MMU down to, say, 2.5 or 2.8 milligrams.  They 
would be expected to maintain the 2.5 or 2.8.  Whatever 
level that they could get to, it has to be maintained, and 
then the respiratory protection program would be 
supplemental to that.  So we are not allowing operators to 
remove engineering controls, just because they put a 
respiratory protection program in.  They must maintain all 
controls that are considered feasible for that particular 
MMU, and maintain the dust levels as low as possible with 
all the controls that are available. 
		There will be a protection factor assigned between 
2 to 4, depending on the ventilating air velocity, assigned 
to the mining section.  We're not assigning protection 
factors to the particular respirator.  We're taking the 
stance that we're assigning the protection factor based on 
where the units are used.  The protection factors that we're 
assigning to these particular units are depending on the 
face velocity -- the amount of air that's blowing past the 
respirator.  So we take that into account.  And so that 
protection factor is actually assigned to the MMU, and is 
specified in the approved plan. 
		If a protection factor of four is used, the 
protection factor of 4 is used, the protection factor of 4 
indicates that the air being breathed by the miner is one-
fourth the concentration of the air outside the PAPR.  
That's all that means.
		The sampling requirements.  Under the current 
requirements, operators collect bimonthly sampling at 
underground mines.  And like I said, this only applies to 
the underground portion of the mining industry.  Citations 
are issued for failure to submit required samples.  
Citations are also issued for exceeding the applicable 
standard.  Operators collect abatement samples to determine 
compliance after citations are issued.  So it depends on the 
operator for determining whether an abatement has been 
accomplished or not.
		MSHA quarterly sampling is conducted on MMUs, 
section DAs, and Part 90 miners under current procedures.  
We issue citations for exceeding the applicable standard 
based on the average of multiple samples taken by MSHA.  And 
currently that requires five consecutive days or five 
consecutive shifts on our part to get five samples, in order 
to average to determine noncompliance at this time. 
		Under the 2003 proposal, the operator will be 
collecting plan verification samples for the initial 
approval, and then designated MMUs will collect one sample 
each quarter, for continued confirmation of the control's 
effectiveness.  And what that means is that the operators 
will be collecting anywhere from one to five samples to 
verify their plan, and they have to verify at two different 
levels -- respirable dust and quartz -- separately.  If they 
meet certain criteria, they may also be required to submit a 
sample once each quarter, to show that their plan continues 
to be effective.
		There are no citations issued for exceeding the 
applicable standard, based on those samples.  We're in the 
process of trying to verify the plan's effectiveness, and 
how effective those controls are.  We're not using those 
samples to determine compliance with the 2-milligram 
standard.  Even though we're not issuing citations for 
exceeding the applicable standard, the operator must take 
action to reduce the concentration where samples exceed the 
standard.  Failure to take corrective action can be a 
citation under our regulation -- under the proposed 
regulation. 
		MSHA collects all samples to determine compliance 
and abatement of citations.  All MSHA determinations will be 
made an a single full-shift measurement, and citations 
issued for exceeding the applicable standard.  The citation 
level we'll get into on another slide. 
		Compliance/noncompliance determinations.  Under 
the current rule, the average of multiple samples are used 
to make compliance/noncompliance determinations at all coal 
mines.  Under the operators program, five samples collected 
on an MMU -- DA, DWP if there's a high sample -- those five 
samples' average are required to determine whether there's a 
citation or not. 
		The average of the five samples in five different 
shifts.  If the average concentration exceeds the applicable 
standard by one-10th or more, a citation is issued because 
noncompliance is indicated.
		Under the 2000 (sic) proposal, we will use single-
sample determinations at all coal mines, surface and 
underground.  The single-sample portion of the package 
applies to both surface and underground mines, and so MSHA 
will be applying the single-sample determinations on both 
surface and underground mine operations.
		As an example, the noncompliance level for 
somebody on a 2-milligram standard is 2.33.  The 2.33 or 
greater would result in a citation for exceeding the 2 
milligram standard.  The 2.33 gets the Agency to a 95-
percent confidence level that the 2 milligram standard has 
been exceeded on a single sample. 
		Citation levels that correspond to the 2 milligram 
and all standards below that are specified in the rule 
itself.  So there is a chart in the rule, whereas the 2000 
proposal did not list those.  They were only issued as 
sampling procedures.  This time, they are specified in the 
rules.
		The odd shift examination of controls.  Under the 
current rule, there is a requirement that at the beginning 
of each shift, under part 75, the operator has to go through 
and check all the respirable dust controls that are 
specified the plan, to see that they are actually working as 
specified in that plan.  If they do not stop production, 
they hot seat, then it has to be done within the first hour. 
 
		We have not changed that under the current 
proposed rule.  There is no change in this particular 
requirement.  It maintains that.  However, we will be 
getting plans that we think are more detailed and more 
involved, so there is going to be a greater impact from 
doing this beginning-of-the-shift check to make sure those 
controls are in place and working properly.  There is going 
to be more to that. 
		Miner participation.  Under the current rules, 
miners have a right to accompany, with pay, MSHA personnel 
during MSHA sampling.  Also, operators notify miners 
representative of plan submission/revisions.  They post them 
on the bulletin board, and the miners rep can submit 
comments then to the Agency to consider, while that plan is 
going through approval. 
		Under the 2003 proposed rule on miner 
participation during operator sampling, the operator is 
required to notify miners of the date and time prior to 
verification/quarterly sampling, so that the miners know 
when this is coming.  And it has to be done in advance.  The 
miners must be provided an opportunity to observe that 
sampling, but there is no guarantee of pay, so it can be 
done at the miners rep's own desire, as to whether he wants 
to watch it or not.  If the miner that's being sampled is 
watching it, then he's already sitting there.  The sample's 
in his area, so he can watch it. 
		Miner participation during MSHA sampling.  It's 
the same as current.  Miners have the right to accompany 
MSHA, with pay, during any MSHA sampling, whether it's 
compliance sampling or abatement sampling, or any other 
type.  The operator notifies the miners reps, again, of plan 
submissions, posts them on the bulletin board, and the 
miners rep, again, has the right, as he does now, to submit 
comments while the Agency is reviewing a plan to determine 
whether there's any comments that need to be addressed as 
far as the miners. 
		The use of personal continuous dust monitors, or 
PCDMs, as most people call them.  The current rule.  There's 
no consideration for those types of units.  Under the 2003 
proposed rule, any unit that the Secretary of Labor 
approves, with a conversion factor that gets it back to the 
current gravimetric sample technique can be approved to use 
under this particular rule.  Designated miners must wear, 
for the full shift, portal to portal.  If somebody opts to 
use PCDMs, then those miners that are designated to wear a 
PCDM must wear it portal to portal, each and every shift. 
		Permits the operator to use administrative 
controls without first exhausting engineering controls.  
Because the PCDMs are monitoring each individual's exposure, 
it's up to the operator to take those exposure measurements 
and make adjustments accordingly, to keep people from being 
overexposed.  They can utilize anything that's available to 
them at that point that can be administratively. 
		No citations for overexposure.  Again, this is 
another reading similar to what the verification samples 
are, but the operator still may be cited for failure to take 
action to reduce overexposures.  So anytime a PCDM indicates 
an overexposure, it's the same as any other sample result 
that the operator would receive that shows overexposure.  
They have to take corrective action.  Failure to take 
corrective action to lower that can result in a citation. 
		What type of benefits are coming from these 
particular programs.  This rule package, we think, provides 
plan parameters that reflect actual mining conditions that 
have been verified at a high production level.  No operator-
collected samples used to determine compliance.  Protection 
for miners when feasible engineering controls have been 
exhausted.  And it makes provisions for the use of personal 
continuous dust monitors when they become commercially 
available. 
		One of the reasons that we're going through this 
and trying to put out these two new rules is that there will 
be a reduction in CWP because of it.  The projected benefits 
for the combination of both single-sample and plan 
verification being put into place is that we will have a net 
reduction of 42 CWP cases, and they're broken down by DO, 
which the continuous miner operator; sheer operator or 
somebody like that; the NDOs, which are the shuttle car 
operators, bratticemen, miner helpers, those types of 
people; and then RBs, roof bolters, because of their high 
exposures to silica.  So a total of 42 reduced cases, on our 
conservative estimate of the date that we have available. 
		As an example of how some of this will work, 
because in addition to these two rules, the Agency has put 
on its web page a copy of what we consider our inspection 
procedures that have been drafted, and if the rules don't 
change, this is how the Agency would proceed with doing our 
inspections.  So a combination of the information that's in 
there, how we would do our inspections, along with what's 
required in the rule, we've come through and prepared a few 
sampling scenarios that we'd like to walk through. 
		On the first scenario, the operator collects his 
first verification sample, gets a concentration of 1.6 
milligrams of dust, 72 micrograms of quartz on the miner 
operator; 1.70 milligrams on the roof bolter, with 92 
micrograms of quartz.  Under the criteria that's in the 
regs, we cannot verify the plan based on that first shift of 
samples.  The verification critical values for one sample is 
1.71 milligrams of respirable dust, and 87 micrograms of 
quartz.  
		What that does is, it gives us the 95-percent 
confidence.  The same 95-percent confidence we use for 
writing the violation of 2.33, we apply to the 2 milligram 
and 100 micrograms of respirable dust in quartz, because on 
one sample we want to have 95-percent confidence that they 
are meeting that level to verify the plan. 
		Because you have the one sample that's at 92 
micrograms of quartz from the roof bolter, that means that 
that shift cannot verify the plan.  So the operator would be 
required to collect another sample.  The second sample comes 
in at 1.63 on the miner operator, 71 micrograms of quartz, 
1.69 on the roof bolter, and 91 micrograms.  Now the Agency 
says, you have verified your plan based on two samples.  The 
critical values when you have two samples collected moves 
the respirable dust to 1.85, and moves the quartz up to 93. 
		And what we look at is all samples collected.  So 
all four samples have to be looked at, and none of them can 
exceed those two limits.  If that occurs, then we say we 
have verified the plan with 95-percent confidence that we 
have met the 2 milligrams and 100-micrograms standard, so 
that we can say that the plan will work.
		Now, we say 100-microgram standard.  We don't 
actually have spelled out in our regulations a 100-microgram 
standard for quartz.  What the regulations call for is a 
reduction of standards for respirable dust when you exceed 5 
percent.  5 percent of 2 milligrams is the equivalent of 100 
micrograms.  And that's what we apply to each individual 
quartz reading.
		So we've got an operator now that has verified the 
plan based on these concentrations.  MSHA comes in and 
collects its first bimonthly sampling according to our 
inspection procedures.  We sample five different 
occupations, and we get concentrations that are probably 
hard for you to see, because it's rather small, of 1.62 on 
the miner operator, with 78 micrograms of quartz; 1.71 on 
the miner helper; 1.41 on the shuttle car; 2.38 with 138 
micrograms on roof bolter operator number 1; 2.42 and 141 
micrograms on roof bolter number 2. 
		Based on that MSHA survey, the operator will 
receive one citation for the roof bolter occupations, 
because they exceeded the 2-milligram standard CTV, which is 
a citation threshold value, and that's where we come up with 
the 2.33 on 2-milligram standard.  They exceeded that 2.33 
on the two roof bolter occupations, because both roof bolter 
occupations are associated with one dust -- source; one roof 
bolter, two operators, double-head machine.  We write one 
violation, because actions that are taken in that area to 
reduce the dust will affect both occupations.
		The operator must take the corrective action, and 
must notify MSHA within 24 hours of that action being 
implemented.  The reason for that is because the Agency will 
be the ones that have to come back in and collect the 
abatement samples.  We will either collect abatement 
samples, or, if we see that there has been a sufficient 
change in the controls that have been necessary on that 
section, we may put the operator back into verification of a 
plan, which would have to be sampled by the operator. 
		MSHA will collect two additional shifts, though, 
of samples in the next -- it says 30 days here, but this is 
actually 15 days -- to establish the quartz level and set 
the appropriate standard.  We have a situation of a section 
where there is no current reduced standard.  They're on a 2-
milligram standard.  We now come in, MSHA collects a sample 
and says, this entity is exposed to greater than 5-percent 
quartz, and should be on reduced standard.  
		We don't wait until we get two additional samples, 
because all quartz analysis is based on the latest three 
MSHA samples.  Rather than wait, because we have an 
indication of potential overexposure, we schedule to come 
back and collect two additional shifts of samples within 15 
days, so that those samples can be sent in quickly, so that 
we can get the average of three MSHA samples.  And we will 
set a reduced standard that's appropriate for that 
particular entity. 
		At the same time, the operator must sample the MMU 
quarterly, to establish the continued effectiveness of the 
dust controls in the approved plan.  Anytime an operator 
gets a sample that exceeds the standard, MSHA will designate 
it then as requiring quarterly sampling, and that the 
operator then will have to collect a sample once each 
quarter, and it has to be sampled at the same conditions as 
what was done for verification.  And that sample is 
submitted to the Agency.  We look to see that it still 
confirms that the plan is effective or not. 
		Sampling scenario two.  We're using the same 
samples up here.  The operator collects the first and second 
verification samples.  These are the exact same numbers we 
used on the previous example.  The plan, again, is verified 
based on those two samples.  
		What we've changed here on this one, I've changed 
the MSHA survey.  Now on the MSHA survey, all samples are 
less than the standard.  We have a 1.62 on the miner 
operator; 1.61 on the miner helper; 1.21 on the shuttle car; 
1.41 on the roof bolter one; 1.48 on roof bolter two.  The 
quartz levels are 78 on the miner operator; 55 on roof 
bolter one; 47 on roof bolter two.  What this indicates is 
the compliance based on a single shift on all occupations.  
There are no citations.  There's nobody overexposed based on 
the one shift of samples.  
		However, there's another level to this.  Under our 
inspection procedures, MSHA needs to determine whether this 
is an entity that gets sampled the next bimonthly period, or 
is it one that we would skip, because they are meeting the 
standard.  Your production, though, during MSHA sampling is 
750 tons.  The VPL -- or the production that's required for 
the verification -- is 800.  Ventilation during MSHA 
sampling was 10,000 CFM.  Plan quantity that's required is 
9,800.  
		What we do is, we do an evaluation of that highest 
dust concentration, and highest quartz concentration, based 
on those numbers.  So we apply a factor to the concentration 
of dust and quartz.  The 1.62-milligram dust concentration 
was the highest, so we apply a factor of the tonnage that's 
specified in the plan, divide it by the tonnage that we 
found while we were sampling.
		If anything, we're going to get lower production 
during the time that we're sampling, because the VPL is only 
available one-third of the shifts, and two-thirds of the 
shifts it's going to be less.  That factor results in a 
factor that's higher than one, so it's going to increase the 
concentration.
		We do the same thing with the ventilation.  The 
plan calls for 9,800.  We found 10,000.  We come up with a 
factor for that.  It's also greater than 1, so it's going to 
raise the concentration.  Those two factors result in 1.62 
milligram respirable dust being raised to 1.75.  It results 
in the 78 micrograms of quartz being raised to 84.  Based on 
those numbers, MSHA bimonthly sampling will be required on a 
bimonthly basis, because the 1.75 exceeds the critical value 
of 1.71.
		Anytime MSHA collects a sample, we will make those 
determinations to determine whether people are qualified to 
be sampled the next bimonthly period or not.  When we say 
that we're going to allow people not -- to skip a bimonthly 
cycle under the MSHA sampling program, it is only for those 
operations that truly demonstrate that they've got good 
controls in place that are going to result on compliance on, 
essentially, each and every shift. 
		The third and final scenario is the PAPR use 
scenario.  Here, we have mine A.  For discussion purposes, 
it's a long wall.  They've installed a shearer clearer, 
shield sprays, pan sprays.  They have 500 feet per minute 
velocity along the face.  And they have a production level 
of 16,000 tons per shift.  This isn't saying that this is 
all the controls that are available for a long wall.  We're 
just using this as an example that they have these things in 
place, and that we considered that to be all that is 
feasible at this particular operation. 
		MSHA makes that determination that all feasible 
engineering controls are in use.  Based on that, the 
operator submits to use of PAPR appropriately.  That means 
that a full program -- respiratory protection program has to 
be included with the ventilation plan.  So it's going to 
spell out who has to wear, when they have to be worn, who's 
going to clean them, who's going to maintain them, who's the 
person that's in charge of the program at the mine that you 
can go talk to, what PAPRs are being made available.  
Anything and everything about the program has to be spelled 
out in that particular program in writing, and made part of 
the approved plan. 
		All miners working in by the shearer must wear 
PAPRs, in accordance with the approved plan.  That's what 
this plan is going to call for, because it's in by the 
shearer where they're going to have the high dust 
concentrations.  The average velocity along the long wall is 
490 feet when we go in and do our evaluation.  To determine 
the protection factor that we will assign to this MMU for 
that, it will be 3.2.  It's the quantity 2 times the 800 
feet per minute, divided by 490 feet per minute.  The 800 
feet per minute is the factor that we have built into the 
rule.  The 490 feet is the actual velocity going across the 
long wall face. 
		When you take the 2 times the 800 divided by 490, 
it equals 3.2.  3.2 is the factor assigned to that 
particular MMU, as long as they have 490 feet per minute 
velocity on that face.  The plan will specify that they have 
to maintain all the engineering controls that were 
determined to be feasible by MSHA.
		See, we make that feasibility determination.  
Everything that's on the plan or in place at that time has 
to be spelled out in the plan, so those controls become the 
minimum that they have to maintain.  The equivalent 
concentration, if the person wearing the PAPR under these 
conditions was exposed to 2 milligrams of dust in the mine 
atmosphere.  The equivalent concentration inside the PAPR 
would be .62 milligrams per cubic meter.
		Where are we going with this?  Just for your 
information and background, we're going from 1970 to 2002.  
The purple bars indicate the prevalence of CWP, or black 
lung.  This is data that's taken from the NIOSH world 
report.  It's a compilation of the x-rays that are offered 
through the x-ray department that NIOSH administers.  And 
then for 2002, it represents those x-rays that are initiated 
through the NIOSH program, as well as the Miners Choice 
x-ray program that was run for three years. 
		You can see that the prevalence of CWP has been 
dropping, but it is starting to level out, 2.9 to 2.8 from 
'95 to 2002.  It's not dropping.  And one of the parts of 
the requirements under our Act is that we want to try to get 
CWP down as low as possible.  And we're not achieving the 
levels that we should be getting.  Based on that, plus the 
fact that we have -- in the percents here, you'll see, is 
the percent of samples exceeding 2 milligrams for each year, 
as well as the bracketed amount is the average concentration 
of operator DO samples.  
		All these numbers are based on the percent 
exceeding 2 milligrams, and the average concentrations are 
based on the operator samples.  You can see that we've 
started seeing a leveling off of data.  We're not getting 
anywhere.  So we're looking at the health side on respirable 
dust, the same as the administration is looking at safety, 
and that we've leveled off.  We need to do something else. 
		The last thing is that we'd like to demonstrate 
the effect of averaging.  Why we think averaging is not 
getting us where we want to be.  This is an example of 
actual concentrations submitted by an operator for a 
particular mine.  And this is five samples collected on five 
different shifts on a continuous miner.  We have one shift 
at 3.2 milligrams; the second shift at 1.6; the third shift 
at 1.5; the fourth shift at .8; the fifth shift is 3.1.  The 
average of all five of those samples is 2.0.
		The operator's in compliance.  We can't do 
anything.  But yet, we had two out of the five shifts where 
people were exposed to greater than 2 milligrams.  With 
single-sample and plan verifications, this is what we want 
to get a handle on and stop.  With single-sample and plan 
verification, we think that what we are proposing will get 
us to where we don't have those shifts that are exceeding 2 
milligrams.  That concludes the overview.
		MR. NICHOLS:  Okay, Bob.  Thanks.  Could I have 
your attention?  Before we break, I'd like to ask Dr. Wade 
to give us an update on the status of the personal 
continuous dust monitors that have been in development for a 
while. 
		DR. WADE:  Good morning.  I'm Lew Wade, and I work 
for the Mining and Research program of NIOSH, the National 
Institute for Occupational Safety and Health.  The reason 
I'm sitting up here on this panel is because NIOSH joins 
MSHA in moving forward the single-sample rule, but that's 
not in the context that I'm going to give you this update.  
The reason I'm giving you this update is that NIOSH in its 
research program has as one of its goals the development of 
a personal continuous dust monitor. 
		Let me give you a little bit of background about 
what that is.  Those of us in and around the industry have 
long sought a technology that would empower mine workers and 
mine operators to know, in real time, what their dust 
exposure was.  We have undertaken this development over a 
number of years.  We've now realized a technology that we 
think offers hope in this area.  The technology really is a 
beam the vibrates, and the frequency of the natural 
vibration of that beam changes, depending upon the sample, 
the mass of dust collected at the end of that beam.  So this 
now gives us the ability to look at real-time dust readings.
		We've put together a device - we call it the PDM 1 
-- that affords us this possibility.  What the device would 
do, for any shift up to 12 hours, was that at any point 
during that shift, it would give you an indication of what 
the dust level had been up to that point.  It could let you 
look at the last 30 minutes.  It would also allow you to 
project forward what the dust reading would be on that whole 
shift if the remainder of the shift was to see exposure that 
had been realized up to that point.  So this is, again, a 
device that we see offering tremendous potential to empower 
mineworkers and mine operators.
		Now to the status of where we are in this device. 
 We have developed prototypes, and we've put those 
prototypes through  a rigorous protocol in the laboratory.  
What we've learned through those laboratory tests is that 
we're very comfortable with the accuracy of the device, and 
this is the accuracy of the device, comparing it to the 
standard sampler that is used now.  We've also looked at the 
effects of temperature variation and water sprays, and 
durability of the device in the laboratory, and in all cases 
we're very pleased with what we've seen.
		We're now poised to begin the part of the protocol 
that looks at the underground evaluation.  We'll take six of 
these devices, and we'll put them through their paces in the 
more rigorous underground environment.  We expect those 
evaluations to begin this month, May of this year, and 
proceed for one or two months.  That would put us through 
June into July in terms of the underground evaluations.  At 
the end of that point, we would evaluate the performance 
that we have seen during those underground tests. 
		Now, I need to point out to you that we at 
research are very optimistic about our ability to realize 
these schedules.  Oftentimes things take turns and twists 
that extend these periods, but I'm giving you our best 
estimates.  We would like the underground evaluations to 
start in May and be finished in July.  An analysis of the 
data making the data available in an August, September time 
frame.  I will tell you, for the record, that based upon the 
laboratory work, we are optimistic about the devices and 
what these devices will do in the underground evaluation.  
But until we go through the underground evaluation, we can't 
be sure, so those tests remain in front of us. 
		At the completion of an underground evaluation 
that was to be successful, we still have the hurdle of 
making these devices available from the private sector 
commercially.  Again, NIOSH is not in the business of making 
such devices available.  The private sector will have to 
step to the plate and determine if there is sufficient 
market and interest for them to move forward with 
commercialization of those devices.  So that's as succinct 
and, hopefully, an accurate an assessment of where we've 
been and where we are, relative to this elusive goal that 
we've had for a number of years of a personal continuous 
dust monitor 
		MR. NICHOLS:  Thank you, Lew.  I have 9:25.  Let's 
take a 15-minute break and try to back in our seats ready to 
go at 9:45.  And our first presenter after the break will be 
Carlo Tarley with the UMWA.
		(Whereupon, a brief recess was taken.)
		MR. NICHOLS:  Okay.  Let's try to get started.  
Our first presenter will be Carlo Tarley with the MWA.
		MR. TARLEY:  Good morning.
		MR. NICHOLS:  I failed to mention in my opening 
statement.  Would you mind spelling your name for the court 
reporter, so we'll be sure to get the record correct?
		MR. TARLEY:  First name is Carlo, C-A-R-L-O.  The 
last name is Tarley, T-A-R-L-E-Y.  And I have a prepared 
testimony, but just one brief comment on the opening.  If I 
understood right, MSHA says they crafted this new rule in 
order to heed the wishes of the coalminers, and also in an 
effort to eliminate black lung.  It is our opinion that this 
rule clearly does neither.  That this rule, in fact, makes 
things both worse for the miner, and worse for with black 
lung victims.
		And one other point I wanted to make.  When Mr. 
Thaxton was making his presentation, at one point he 
referred to this as "this little package and what it does." 
 But he didn't make it clear no everybody, although you have 
handouts, this is the little package.  It's very 
complicated.  It's double-sided.  As a matter of fact, our 
technicians within the Mine Workers had to meet with MSHA on 
a series of meetings that consisted of about six or eight 
hours, just for them to have an overview of what the rule 
meant.  So I don't want anybody to be misled that this is a 
simple rule contained in the summary documents that were 
handed out. 
		On March 6, 2003, MSHA issued proposed rules that 
are so highly complicated and confusing that miners and 
safety professionals could not understand them.  They are 
laced with formulas, exceptions, and language that is 
nothing short of gimmicks, and is a regulatory nightmare.  
They have critical provisions hidden in the rules, only to 
be known by interpreting formulas and definitions.  One such 
change in the rule would outrageously allow mine operators 
to increase the respirable dust levels in the mine 
environment where miners work.  Four times the level of the 
current dust level set by Congress in the passage of the 
1969 Coal Mine Health and Safety Act. 
		AMTSA wants to let dust levels raise to the levels 
Congress refused to consider over 30 years ago.  A number of 
the proposals in MSHA's rules will have the effect of 
allowing miners to be exposed to the levels of dust beyond 
that proscribed by Congress in the passage of the Mine Act. 
 Those proposals include not sampling miners' exposures for 
the full shift; allowing the margin of error to favor the 
mine operator, and not the health of the operator before 
MSHA cites overexposure.
		While miners argued to decrease dust levels in the 
nation's mines, MSHA did the reverse and increased them.  
When MSHA proposed to overhaul the respirable dust program 
in 2000, many miners went to public hearings to tell MSHA 
what they needed to improve the dust sampling program, to 
end overexposure to the unhealthy coal dust.  It is clear 
from the rules proposed by MSHA on March 6, 2003, that MSHA 
did not listen to the miners.  In fact, several of their new 
proposals, including the one listed above, were contrary to 
what miners called for and needed.
		While miners called for increased dust sampling, 
in particular, continuous dust monitoring, the new MSHA 
proposals substantially reduce the amount of compliance 
sampling by 80 to 90 percent in out-by areas and on working 
sections from that currently conducted.  Some mining 
sections would have as little as three shifts of mining 
sections sampled a year, and out-by areas would have only 
one shift sampled a year for compliance.
		The MSHA proposals eliminated the mandatory 
standards, with plans to conduct a few samples through an 
ever-changing Agency policy.  The rules took away any 
guarantee that compliance samplings of those areas of mines 
would take place.  Instead of substantially increasing the 
monitoring of dust levels in the nation's mines, MSHA 
proposed rules that substantially decreased the monitoring 
of the unhealthy dust.
		Overwhelming evidence shows that improvements are 
needed to protect miners from pneumoconiosis, a disease 
often called black lung.  Tens of thousands of miners have 
died from the disease, which destroys the lung and the 
respiratory system.  NIOSH studies have shown that over 
1,000 die each year from the disease.  That's an average of 
almost eight per hour.
		That disease has cost tens of billions of dollars 
compensating victims who are disabled from a disease.  It 
has left a trail of destruction in communities throughout 
the coal fields.  The latest figure from the Department of 
Labor shows that 106,519 federal black lung claims will be 
paid out this month, and another 7,000 by coal companies.  
Those figures do not include numerous cases of miners with 
partial disability paid through state programs, where there 
is not a federal award for compensations.
		Studies released in April of this year of working 
miners' recent x-rays show miners are still getting the 
disease, with several hundred of those miners diagnosed with 
the disease.  Evidence shows that respirable dust levels 
need to be reduced in the mine environment.  The respirable 
dust sampling program has been wrought with problems for 
years.  With limited sampling of the harmful coal dust, many 
mine operators have learned how to manipulate sampling and 
cheat the system.  While many have cheated and got away with 
abusing miners' health, many have been caught.  During the 
1990s, over 160 companies and/or individuals were criminally 
prosecuted for fraudulent dust sampling.
		The Louisville Courier Journal of Kentucky 
conducted an in-depth investigation of the dust sampling 
program in 1998, citing widespread fraud.  Evidence shows 
that frequent sampling of unhealthy mine dust is needed to 
protect miners from the disease.  The Mine Act, the Miners 
Federal Advisory Committee, and NIOSH have all called for 
improvements when it comes to coalmine dust.
		Numerous provisions contained in the March 6, 
2003, proposal are in direct contradiction to those.  
Several provisions violate both the spirit and the letter of 
the law.  One proposal would have respirators replace 
engineering and environmental controls.  This is not only in 
direct violation of the Act, but the specific type of 
respirator MSHA would mandate miners to wear has been 
faulty.  And we find this particularly outrageous that, for 
over 30 years, we've been able to live with the 2-milligram 
standard, and to our knowledge, MSHA has not shut down one 
single coalmine as a result of them not being able to comply 
with the 2-milligram standard.
		And then for today's miner, the level of dust can 
go as high as 8 milligrams, and this miner is going to be 
required to wear a helmet in order to protect himself.  Keep 
in mind that this miner is going to be subject to this 
apparatus.  Its failure to success is going to have a direct 
impact on that miner's health and that miner's life.  If 
that thing's not properly maintained, or if it's faulty, and 
he doesn't know it, as we know, black lung doesn't reach out 
and kill you in one day, it goes over long periods of time. 
		The fact that we would tell anyone that, in order 
for you to work here, you have to wear this helmet.  
Otherwise, we know that this environment is so deadly that 
you can't work it without this helmet.  Therefore, here's 
this helmet, go in there and do the work.  We did that in 
the 1920s.  We're not interested in doing that again.  And 
in rushing the March 6, 2003, proposal at a time when 
several mine accidents and several other major regulatory 
actions were ongoing, MSHA did not give those who needed to 
review the complex and confusing rules enough time to 
adequately review the newly proposed rule.
		MSHA also did not wait for final testing of the 
device that would solve so many of the ills with the 
respirable dust program.  That device, a worker-friendly 
continuous dust monitor that miners could wear every shift, 
every day to record dust levels and keep them out of the 
dust.  That device, supported by labor and government, was 
going through the final testing following years of work 
supported by the UMWA, industry, and NIOSH.  With final 
testing due this summer, the device long sought by monitors 
and promised by the government should have been the 
centerpiece for reforming the troubled respirable dust 
program.
		Instead, MSHA proposals would let operators use it 
as an option, and written in a way that the option would not 
be exercised.  Such a device needs to be required in each 
coal mine, for miners to have to protect themselves from 
unhealthy coalmine dust.  When MSHA proposed the rules on 
March 6, 2003, they sided with the mine operators, because 
the dust levels in the proposed MSHA rules substantially 
reduce the amount of respirable dust sampling in the 
nation's coalmines.  They sided against the miners in a 
well-documented history that calls for lowering the dust 
level in the mine environment, increasing the frequency of 
sampling to protect miners from the dreaded black lung 
disease.
		Who is the leadership of MSHA making these 
wrongheaded decisions?  Where did they come from?  And why 
are they siding with the mine operators, at the expense of 
the miners' health?  The short answer is, top leaders who 
control the agency come from industry.  Those include the 
assistant secretary of MSHA; the two top agencies' deputies; 
the special assistant to the head of MSHA; and the chief of 
the -- coal, who directly oversee the respirable dust 
program.  The increase in coalmine dust will have other 
adverse effects.  Allowing larger amounts of coalmine dust 
to be uncontrolled, blown throughout the mine increases the 
danger of coalmine fire and explosion. 
		And I understand.  I think sometimes the people in 
Arlington don't believe that the miners understand how a 
coalmine works, and that this dust thing is too complicated. 
 Well, nothing could be further from the truth.  These 
coalminers here, most of them are like me, 20 or more years 
service.  We understand dust.  We understand how to 
ventilate.  We understand where to put the sprays.  We 
understand the bit patterns.  And we're the ones who do the 
maintenance.  We understand dust.	
	We also understand that, yes, the dust we're talking 
about is fine dust, but in order to have fine dust, you have 
to have coal dust.  And if you have more coal dust, now you 
have two problems.  You've got a guy with a helmet on, who 
may contract this dreaded disease simply because of a faulty 
helmet and being in a bad environment.  But you also may 
increase the float coal dust in the mines.  And certainly, 
we all know what that leads to.
		As a matter of fact, on September 21, 2001, a 
coalmine explosion ripped through the Jim Walters mine, 
killed at least a dozen miners.  Investigators found that 
coalmine dust was a primary fuel for the explosion.  This is 
a reminder of the explosion that often occurred before 
Congress created standards to protect miners from those 
violent and deadly disasters.  And I was on the mine rescue 
team operation at Farmington Number Nine following the 1968 
explosion, and I can tell you firsthand what coal dust will 
do if it's allowed to build up in the coalmines. 
		The MSHA proposal must be withdrawn and new 
proposals redrafted that are in tune with the need of the 
miners.  I mean, after all, isn't this about us?  Isn't this 
about us?  And if this is about us, let us have some input 
on this.  Because the new rule needs to comply with the 
miners' needs, the Mine Act, and historical findings.
		Those rules need to require continuous dust 
monitoring at all coalmines, to increase sampling of the 
unhealthy coalmine dust, and lower the dust levels in the 
nation's mines.  It is high time that MSHA sided with the 
miners and not with the mine operators, to fix these 
troubled dust programs.
		(Standing ovation.)
		MR. NICHOLS:  Thanks.  You find it outrageous that 
MSHA is proposing to eliminate this scheme of averaging 
samples?
		MR. TARLEY:  So that you understand, we have, as 
an organization, been fighting for continuous sampling.  We 
agree with you that there's been a lot of cheating going on, 
on the company side, and that needs to be fixed.  But it 
doesn't need to be fixed in a manner where we just forget 
about sampling altogether, and we pretend that -- if we 
don't sample, then we don't know what we have.  So all 
right, let's not have the company do any more compliance 
sampling, but let's have MSHA do those 30 samples.  But 
MSHA's not going to do them.  The operators are not going to 
do them.  And with as little as three samples in a 
particular year, how do we know what we're in?
		Particularly when we have this device, which was 
spoken eloquently on shortly before I began.  And also I've 
had an opportunity to talk to the manufacturer.  This thing 
is ready to put in our hands.  Where's the rush here?  If 
we've got that thing, can anybody up there honestly say that 
anything -- if that thing works the way it's supposed to, if 
there could be any better piece of the puzzle for this dust 
program than that continuous monitoring?  I think not.
		MR. NICHOLS:  How do you like the idea of 
requiring operators to develop real dust plans, and have 
them verify the plan that it really works, as compared to 
what we accept now, that we get a plan that they think will 
work --
		MR. TARLEY:  Well, the plan verification part -- 
and we have somebody that's going to speak on that.  I'm not 
prepared to speak on that at length.  It has some good 
parts, but it's also got some gaping holes in it.  And I 
don't want to speak to something that I can't talk to in its 
fullest, but I think the next speaker, who is our top gun, 
can address that in a fuller manner than what I could.  And 
that's why I didn't speak on it in my remarks. 
		MR. NICHOLS:  Well, you mentioned that you don't 
know of MSHA citing anybody for not being able to comply 
with --
		MR. TARLEY:  No, I did not say that. 
		MR. NICHOLS:  I believe you did. 
		MR. TARLEY:  No.  I said MSHA, to my knowledge, 
has never shut down the mines that couldn't get to the 
2-milligram standard, meaning that there is no mines, to my 
knowledge, that doesn't exist today because MSHA come in and 
sealed it up because they couldn't met it.  Now, am I wrong? 
 I would like to --
		MR. NICHOLS:  No, but I think you can readily see 
how some people get to the 2-milligram standard.
		MR. TARLEY:  What's that?
		MR. NICHOLS:  I think you can readily see from our 
presentation how people get to the 2-milligram standard.  
You'll have two people overexposed, three under, and average 
it out.  I think if we had the single-sample, you would have 
seen some stronger enforcement action.  People can adjust 
and average these samples. 
		MR. TARLEY:  We're not opposed to single-sampling. 
 When I'm saying this, this plan is clearly, in our opinion, 
an operator's plan.  And think about it.  What is our motive 
on this side?  Is it profits?  No.  Pensions?  No.  We just 
want to have a reasonable chance to go to work and come home 
safe.  We want to have a reasonable opportunity to finish 
our career at the coalmines, and not be afflicted by some 
disease that will give us a painful death.  That's all we've 
got in this.  And I don't care if comes from MSHA or the 
operators, or falls from heaven.  If there's a way to fix 
this thing, we'll be the first there to tell you that we 
like it. 
		This is not something that's just started.  We've 
been doing this since 1969.  To my knowledge, MSHA wouldn't 
be there if it wasn't for us.  To my knowledge, I know the 
Coal Act wouldn't be there if it wasn't for us.  And what's 
more, it wouldn't be there if tens of thousands of us didn't 
die.  And what's more, what I know is a fact is that there 
has never been a rule promulgated in Washington that saved 
us.  Every rule that we've got, one of us got killed or 
injured, or we danced in the streets, and then Washington 
sat up and said, you know, that's a pretty good idea.  I've 
never seen -- I never woke up, not one single morning, and 
Washington says, I've got the fix for the coalminers.
		And this is the same thing.  This rule here didn't 
flow from the coalmines to Washington, it flowed from 
Washington here.  And everything that flows in that that 
direction is always bad for us.  And if I'm wrong, somebody 
can point a law that came from Washington to the coalmines, 
as opposed to -- and we've got some more we'd like you to 
enact, quite honestly, but we'll have to hurt a few more, 
and we'll have to kill a few more.  That's how it's done. 
		MR. NICHOLS:  Okay.  Thank you. 
		MR. TARLEY:  Thank you.
		(Applause.)
		MR. NICHOLS:  Okay.  Joe's already --
		MR. MAIN:  Yeah.  We have a lot of folks here 
today very concerned about this rule.  And forgive me if I 
take a little extra time, Marvin, but under the 
circumstances, I think that it's important that that be 
done.  I came here with a prepared text this morning.  I've 
just scrapped it.  I'm doing that --
		MR. NICHOLS:  For the court reporter, he needed to 
know who you are. 
		MR. MAIN:  My name is Joe Main, M-A-I-N, and I 
represent coalminers, and I work for the United Mine Workers 
of America as the administrator of health and safety.  And 
that's my job in life, to represent coalminers, work on 
their behalf.  And as a starting point, there's so many 
things that's ran through my head this morning.  I just 
really didn't know where to start, and still don't know 
where to start, so I'm just going to pick a spot. 
		I'm probably one of the longest standing people 
that's in this room that's been working on reforms of the 
coalmine dust program that I know of.  I've looked around 
the room, and I know I go back to 1976 and the convention in 
Cincinnati, Ohio, when a bunch of miners, fed up with a dust 
sampling program, crafted a plan to fix this problem.  And 
that plan was simply, get samplers on these guys 24/7, 365, 
and we'll get control of this dust.  And let's do that on 
this, and we'll get a system in place where miners can end 
the exposure to unhealthy dust levels.  That was in 1976, 
the Cincinnati convention, and a bunch of coalminers who 
knew more about this program than anyone in Washington I 
have met since. 
		I got to be a part of that, and listened to miners 
as they crafted this, and it was the most sound idea that I 
ever heard then, and since.  You know, I've sat back 
through, over time.  I've reviewed the NIOSH criteria 
document that was issued in 1995 that called for increased 
dust sampling, that called for lowering of the dust levels 
in the nation's mines, and many other improvements.  I was a 
participant on the federal advisory committee, and I can 
speak firsthand as to what that committee recommended as far 
as actions to fix the problem.
		And we were charged by the Secretary of Labor to 
develop regulations to eradicate the black lung disease, 
pneumoconiosis in the nation's coalmines.  That was our 
charge.  We spent months putting together a plan.  It 
involved industry participation on that committee, labor 
participation on that committee, NIOSH, MSHA provided all 
the evidence and guidance to the committee.  We had five 
neutrals that had no interest in mining, sitting there as 
part of the decisionmaking body.
		And at the end of the day, that committee laid out 
a framework for reforming the black lung program, the 
respirable dust program in the mining industry.  The sad 
reality is that when MSHA went to rulemaking, they ignored 
the 1995 criteria document issued by NIOSH, Lew Wade's 
crowd, they issued -- or they ignored the federal advisory 
committee recommendations outright. 
		But you know, worst of all -- I mean, there's 
historical findings there that tells this Agency what you 
need to do.  Increase sampling, decrease dust levels, 
increase sampling, decrease sampling, increase sampling, 
decrease dust levels.  Laced through all of those 
recommendations.  But when the miners showed up, when the 
miners showed up in 2000 to lay out their case, I was at 
every hearing.  I heard what miners had to say.  They said 
the rule was wrong, it took the wrong approach.  What miners 
asked for was increase the dust sampling in the nation's 
coalmines, decrease the dust levels, and give us continuous 
dust monitoring. 
		Now, that 1976 idea of the miners has taken a lot 
of form over the years.  In 1980, when we were finishing up 
the reform of the dust program, and revising the sampling 
schemes, MSHA admitted, look, we haven't got this right yet, 
and what we want to do here is, build this continuous dust 
monitor and use that as a tool.  They made a promise to 
coalminers in 1980 that they would work to build that 
device.  What's happened since, a lot of pretty things, a 
lot of things not so pretty, with respect to the development 
of that device. 
		I take my hat off to NIOSH, who has helped 
spearhead the development of the device that we now have at 
hand, that gets what miners said in 1976, and gets what the 
government promised in 1980, and has us at the very edge of 
having that as the tool to fix this dust sampling problem.  
What can we do with that device if we get it?  Real simple. 
 We can put it on every miner in a high-dust occupation, on 
Part 90 miners, on miners throughout the mine, and every day 
and every shift get data on what they're exposed to, for the 
government's use to help determine the compliance with the 
dust levels. 
		We can give miners a tool of empowerment like 
they've never seen before.  Miners can put on the device, 
look down at it, and find out how much dust they were in up 
to that part of the shift, whether it's in two hours, three 
hours, or four hours.  Miners can  project, if they stay in 
that dust level, what it's going to be, and if they're going 
to be overexposed before the end of the shift.  We can do 
this for the full shift.  
		We can have, for the first time, full-shift 
sampling in the nation's coalmines, constant sampling, 
immediate information, not waiting for a sample to be taken 
out, and question whether or not an operator has tampered 
with that sample before it ever goes to the feds to get 
analyzed, and the data gets back. 
		You know, there's a ton of things we can do.  Plan 
verification, Marvin, I'll tell you straight up, you put a 
dust sampler on those guys 24/7, 365, you won't Mickey Mouse 
around with a system that just don't work.  You know, as 
Carlo said, we met several hours with MSHA to get to the 
root of these rules, what they are.  We couldn't figure them 
out.  You know, I've been dealing with this for years.  I 
could not figure them out.  I think three meetings, 
somewhere around six to eight hours total, just to walk 
through the complications.  I challenge anybody to tell me 
within five or ten minutes what they saw on the screen 
today.  It's complicated.  It's over people's heads.  It's 
over miners' heads.
		But the worst part of it is, these rules are so 
confusing, and they're deceiving, as well.  I did not know, 
until Bob Thaxton told me, that the dust levels in the mine 
environment in a coalmine, under this rule, could go up to 8 
milligram.  Didn't know that.  Not until Bob told us.  Had 
no clue that that was the case.  I said, Well, Bob, where in 
this rule can I find that standard?  It is not in the rule. 
 You've got to understand the formulas and factors to get 
you there.  And that's outrageous.  I mean, there's a lot of 
miners that have no clue that there's a rule about ready to 
come down, that is going to allow mine operators to elevate 
dust levels to that height. 
		We asked, okay, this quarterly sampling program, 
which is a plan verification, how does it work?  What's 
going to happen?  We were told that, in terms of the 
followup plan verification, that about 85 percent of the 
mining units in this country would not be doing it.  We 
asked, okay, that mine operator on that 8-percent standard, 
what would trigger a quarterly inspection by that mine 
operator under those circumstances?  Well, as we told, Bob, 
I think it was 6.67 to trigger that.  Am I close?
		MR. THAXTON:  Close. 
		MR. MAIN:  Okay.  You know, does anybody that read 
this rule see 6.67 that trigger a plan verification at a 
quarterly sampling?  If you see it in the rule, tell me.  It 
ain't there.  The 8 milligram.  You know, I've been taking a 
beating.  Joe, you don't know what you're talking about.  
There is no way that they can jack up the dust levels to 8 
milligram in the mine atmosphere in a working area, active 
areas of the coalmine.  Oh yes, there is, because Bob 
Thaxton told me they could.  But it's not in the rule.  
These miners don't know that. 
		MR. NICHOLS:  Did you tell Joe that?
		MR. MAIN:  I'm telling you the facts of what the 
case is, Marvin?  This is things that should have been in 
that rule.  We challenged MSHA when we had those meetings.  
You can't go out there and explain this rule, and hide these 
things from the miners.  It ain't fair.  It ain't right.  
And it ain't the truth.  That 2-milligram standard that you 
see laced through there?  That's not 2 milligram.  That 
could be anywhere from, as I understand it, less than 1 
milligram up to 8 milligrams, by the information that was 
provided to us as we questioned this rule.
		We ask for this rule to be withdrawn for two 
reasons, and we still have that standing request, although 
I've been informally told the answer is no, I'm telling you 
the right thing to do in this case is to withdraw that rule. 
 One is, it was dropped in the middle of a large number of 
mining accidents.  The most that I think I've ever had on my 
hands to deal with at one time.  
		Everybody thinks the mining industry is safe.  We 
had a -- indentation that almost killed three miners from 
Kentucky on January the 3rd.  On January the 6th we had the 
mine fire destruct the 84 mine, closed it down, and rescue 
workers had to go back in and save the mine.  We had the 
explosion at the McElroy mine in January, around January 
22nd.  We had the closure of the Loveridge mine because of a 
major mine firestill closed.  Other than the fact that we're 
in trying to recover the fire area.  And we've had to take 
all of our resources to respond to those.  Plus we have 
investigations of all of those ongoing, in addition to the 
wrap-up of the investigations of the Jim Walters mine. 
		Now, how in your right mind can people who have to 
preoccupy themselves with those kinds of important issues 
delve into, and understand, and prepare to respond to such a 
complicated, confusing, and basically outrageous rule?  You 
can't.  And we're struggling to do that, and we're going 
through this learning process, learning from you guys as we 
go.  I challenge you to give this document to any miner on 
their own.  And the document's, as Carlo pointed out, that 
thick.  Give them two days, and let me test them on what's 
really on that rule.  And I'll give them a 20 percent pass 
rate, too.  It is that complicated of a rule.  
		I don't know how people expect miners to 
understand the complexities of that, but based on all of 
those -- and MSHA launched another rulemaking, which was the 
belt air rule, that would eliminate protections for miners 
as far as the best being forced to coal faces that's been in 
effect since 1969.  We're struggling to try to respond to 
that.  We have, I think, a June 30th deadline. 
		And we had a number of mine fires that just 
recently happened, and belt injuries.  We're going back to 
see how that even fits with this rule.  You know, I think 
it's safe to say that those on this side of the table are 
underwater, and we pleaded with this Agency to understand 
that.  You know, I'm sorry they didn't.  We've been out 
rushing, trying to get our hands around this and get 
information out to the miners, and we have not been too 
successful about that.  There's a lot of miners that just 
understands bits and pieces. 
		But I think when you explain this rule, you have 
to explain it in a way that really gets to the meat of it.  
And when you get to the meat of it, the bottom line is that 
it violates the Mine Act in a number of ways, it is totally 
contrary to the federal advisory committee findings, 
contrary to the NIOSH findings, and contrary to the needs 
and wishes expressed by miners clearly to this Agency that 
won't listen.  And that's something we're struggling -- how 
do we get people to listen here?
		If you look at the construction of that rule, 
there's only one thing that can be done.  Withdraw it, go 
back to the table, build it around something that does work. 
 And I think it's time, because this whole issue comes down 
to which side are you on, the side of miners protected from 
the dust, or the side of operator interest and needs.  
Miners want the dust levels lowered.  Miners want sampling 
full-time in these coalmines.  Some mine operators want to 
get you guys out of the mines and no sampling.  And mine 
operators want to raise the levels of dust in the coalmines. 
 That is wrongheaded and it's wrong.
		But that's how this whole thing's shaking down.  
Which side are you on?  Fixing this on behalf of the miners, 
or fixing it to the interests of the mine operators?  Given 
what we saw so far in the document, it's very obvious to us 
that the miners lost in that argument, despite pleas to this 
government time and time again.  The rule in its entirety is 
so flawed that it doesn't meet the job, and it violates so 
many recommendations of the Mine Act to do that the rule 
must be withdrawn and recrafted.
		There's some other clarifications I'd like to 
make, too, and just for the record, I understand that, Lew, 
you said that MSHA participated in the rulemaking.  Did you 
guys participate in the rulemaking part that deals with the 
plan verification and the sampling under part 70, 75, and 
part 90?  As far as having authorship of this rule that's 
before us?  That would be other than the single-sample. 
		DR. WADE:  Joe, NIOSH was completely involved in 
all aspects of the single-sample rule.  That includes an 
economic analysis, a quantitative risk assessment.  Some of 
those documents, such as the economic analysis and the 
quantitative risk assessment are part, also, of the dust 
plan verification package, so in that sense, we were 
involved in the economic analysis and the qualitative risk 
assessment.  We were not involved in the framing of the dust 
plan verification rule itself. 
		MR. MAIN:  The reason I ask that is --
		MR. REYNOLDS:  There's a legal reason for that, as 
well.  I mean, NIOSH does not have rulemaking authority, and 
that's why the rules were structured the way they were.  
That's why you have two rules. 
		MR. MAIN:  The subject of my question, though, is 
that being a person that has read the NIOSH criteria 
document that I've never seen NIOSH back off of, the rule 
proposed is totally contrary, in many ways, to the findings 
of NIOSH as to what needed to be done to protect the miners. 
 And I just wanted to determine whether or not they were any 
part authors of the specific regulations that exist in part 
70, part 90 -- or 75 and part 90.  And I understand the 
answer to that is no, as far as the authorship.  Okay.
		With regard to plan verification, as it was 
explained to us -- and we have probably a step beyond what a 
lot of the folks do in this room, because we had a chance to 
sit down and ask a lot of questions that they haven't had -- 
but as I understand it, the plan verification process goes 
something along this line.  The company submits a provincial 
(sic) plan, of which MSHA would basically accept if it 
looked good enough to pass the acceptance test, that would 
be in effect for a certain period of time.  I think it's 
within 45 days they would have to begin sampling of that 
plant.  One sample could get approval of that plan for the 
operator to use.  By taking one sample.  That's correct?  
One to four.
		MR. THAXTON:  It's one shift of samples. 
		MR. MAIN:  Okay.  But I'm saying, one sampling 
day, one sampling shift, whatever you want.  But one 
sampling event could gain approval of the plan; is that 
correct? 
		MR. THAXTON:  That would be the minimum. 
		MR. MAIN:  Yeah, but is that correct?  They could 
do that -- 
		MR. THAXTON:  As the minimum, yes.  It could be up 
to five. 
		MR. MAIN:  And once they do that plan 
verification, the only requirements that they would have to 
go back and do quarterly plan verifications is if MSHA 
required it?  Required the operator to do that?
		MR. THAXTON:  That's correct 
		MR. MAIN:  Okay.  And in this mine that I talked 
about, let's say that you have this factor of four, you're 
at a mine environment measured the same way we do now, 
reading 8 milligrams --
		MR. NICHOLS:  Let's deal with that 8 milligrams.  
Did you tell Joe that mine operators could go to 8 
milligrams?
		MR. THAXTON:  What we talked about, Joe, is that 
there is no 8 milligrams actually specified in the rule. 
		MR. MAIN:  That's right. 
		MR. THAXTON:  We said it's a protection factor 
that would be assigned could, theoretically, allow somebody 
to go up to a maximum of 8 milligrams. 
		MR. MAIN:  When I asked you the specific question, 
Bob, okay, how much dust, when you do that formula, that 
factor of four, how much dust would you be actually 
measuring?
		MR. THAXTON:  That's why I said --
		MR. MAIN:  It could go up to what?
		MR. THAXTON:  It could go up to a maximum of 8 
milligrams. 
		MR. MAIN:  8 milligram.  Okay.  Now, I mean, 
that's -- and the thing of it is, Marvin --
		MR. NICHOLS:  Joe, we've been through this before. 
		MR. MAIN:  Marvin, let me speak, and then I'll 
take any questions, if you don't mind. 
		MR. NICHOLS:  All right. 
		MR. MAIN:  The point of it is, the law explicitly 
says, In the mine environment, in the active workings, 2 
milligram is max.  Congress set that in 1969.  And they 
said, fellows, that's it.  You've got to meet that standard. 
 And you're not going to meet it by using respirators.  Very 
clear.  Now, as I understand the rule, and those discussions 
from Bob, as I'm understanding today, with that PAPR on and 
that sampler on the side, they could legally go up to 8 
milligrams of dust on that factor four standard, measured on 
that dust sampling.  Am I wrong?
		MR. THAXTON:  Can I respond?
		MR. MAIN:  Am I wrong?
		MR. THAXTON:  Can I respond to the whole thing?
		MR. MAIN:  No, no, no.  Just -- see, we're trying 
to establish, can the dust levels actually measured in the 
mine go from 2 milligram up to 8 milligram, as measured off 
that sampler in the same place we're measuring it now?  Can 
that reach 8, and they still be legal?  Yes or no?
		MR. THAXTON:  With the way you're phrasing it, no. 
 if they were at 2 milligrams, they cannot be allowed to go 
to 8 just because they wear a PAPR.  If the operator is able 
to maintain two, they will stay at two.  If they are able to 
maintain 2.5, they will have to stay at 2.5.
		MR. MAIN:  Well, this gets me to another issue of 
trust.  We'll get to that one, Bob, okay?  I'm just saying, 
under the law, is it legal now for an operator to have a 
dust level up to 8 milligram?  Yes or no?  Measured in the 
mine environment on that sampler, yes or no?
		MR. THAXTON:  Theoretically, yes.  It can go as 
high as 8 milligrams. 
		MR. MAIN:  Okay.  Now --
		MR. THAXTON:  There is no --
		MR. MAIN:  You know, let's be honest here with 
these fellows and what it is.  I mean, here is what the 
truth of this proposal does.  As we understand it from those 
discussions, a mine operator can request to get PAPR use in 
their mines.  They can claim, we've exhausted our 
engineering controls, we just can't do it, and we need to 
increase the dust levels.  They have made those requests to 
MSHA before.  Trail Mountain.  Dave Lauriski's own former 
mine being one of them, which you and I worked on, Bob.  Jim 
Walters, a person that worked on that back in the nineties. 
 We can't do it, you got to give us these PAPRs.  We went in 
and we showed them how to engineer their coalmines, didn't 
we?
		MR. THAXTON:  Yes. 
		MR. MAIN:  And they had the standard in place that 
says, you have no escape here.  You're not getting a 
respirator to replace your controls.  What this rule does is 
to give them that escape.  And we have to rely on the trust 
of the government to do the right thing, as opposed to a 
regulation that says, no, you're not.  That's the 
difference.  Now, there's a lot of things we can walk 
through here as a trust issue, and you have to make 
determinations for miners who express their opinion on this 
rule whether or not we trust this Agency.
		In the last two years, on respirable dust issues 
alone, there has been a number of things happen.  December 
2001, MSHA made a decision to withdraw the rule that would 
have led to lowering the dust standards in the nation's 
coalmines.  December 2001, MSHA made a decision to withdraw 
action on a rule that would have dealt with requiring 
continuous dust monitors in coalmines.  Last year MSHA 
revised the dust sampling program.  
		We know we had the Excel decision, and you had to 
do some things on how you did the followup inspections, 
which, we understand that side of the equation, but beyond 
that, what MSHA did that they didn't have to do, with the 
Excel decision, was, they changed the whole enforcement 
scheme by reducing from six dust sampling inspections per 
year to four.  And by the way, those four compliance 
enforcement samples was no longer enforcement samples.  They 
were called -- what was the word?  Targets?
		MR. NICHOLS:  No, trigger. 
		MR. MAIN:  Trigger.  Target.  The operator could 
violate the law and not even get cited on those four.  
Outrageous.  Outrageous conduct, I think, on the part of 
this government, when we have so many people getting the 
black lung disease.  Then, last year what the Agency did 
was, eliminated the program that Carlo talked about here 
that just found that over 800 coalminers have the disease 
that's working in the coalmines today.  After examining 
about 31,000 coalminers, the program ended, over our 
objections.  It was producing the evidence and information 
we needed, to fix this problem.
		Areas like Eastern Kentucky, we believe, were 
basically missed with that study.  And if anybody doesn't 
believe that problem is as bad in East Kentucky as anywhere 
in the country, I think that you have to read the history 
books of the mining industry.  But these are actions that 
this government took with, regard to dust reform issues 
alone, since December.  
		Now, what is it?  We should trust MSHA to do the 
right thing whenever that operator who has no miners rep 
comes to the district manager's door and says, I've 
exhausted my engineering controls, and if you don't give it 
to me, I've got to shut down your coal mine?  Do we honestly 
believe that we're going to have stiff-backed Agency folks 
saying, no, and we're going to go show you how to do it, at 
a time whenever the prohibition that would stop them would 
be eliminated, which you choose to do under this law?  I am 
telling you straight out, on behalf of the miners, it is 
illegal, it will reduces protections afforded miners, and 
it's the wrong thing to do. 
		If you go back to the proposal of the miners, and 
we just sit back and listen a minute about how we need to 
fix this program, you put a dust sampler on a coal miner 
24/7, the truth's coming out, fellows.  And they're going to 
have to do something to keep those dust levels down.  That 
will do more to do plan verification than any single thing 
that I can think of.  Why do it one time?   And under your 
proposal, Bob, as I understand it, with 85 percent of the 
mining units not being subject to further plan 
verifications, those quarterly ones are going out the 
window, and leaving a possibility of a mining unit, under 
your rules, to be sampled for plan verification by that 
operator one time.  That is a possibility laid out by you 
guys. 
		Now, it makes all the sense in the world.  Let's 
don't do it one shift in a year, let's do it every day of 
the year and have constant plan verification.  Real simple 
math there.  We'll have all the data and information.  You 
know, miners have argued, which is part of a lawsuit for 
full-shift sampling, one of the beauties of this device is 
that it will let you do full-shift sampling up to 12 hours, 
like that.  That's the way it's designed, what it'll do.  We 
can have full exposures of miners, as opposed to those 
fellows working 12 hours in the middle of the dust, oh, the 
dust pump's come off, okay, fellows, we can go a little -- 
you know, we don't have to put the line curtain up now.  
Whatever the case may be at some of these mines, that has 
happened. 
		You know, there's a history of dust fraud that is 
just about as deep as any kind of immoral act that you could 
think of in this mining industry.  In the 1990s alone, over 
160 companies and/or individuals was criminally prosecuted 
for fraudulent dust practices.  We think that that case 
should never have happened.  We think what those miners said 
in '76 should have been listened to.  Put them dust pumps on 
there.  Let's have 24/7, 365 collection of data, and let's 
do it the best way we can to prevent the tampering.  That 
solves that problem. 
		So we have in this scheme, at the end of the day, 
under the plan verification, the opportunity for an operator 
to get a plan verified and continued verification with one 
shift sampled.  And as far as the MSHA sampling, you know, 
we have a rule that guarantees if we don't like it.  And we 
think that the operator control of the dust compliance 
program should have been eliminated years ago.  We said.  We 
said it.  We said it.
		But what we haven't said is, oh, eliminate the 
mine operator dust sampling requirements, and take what 
little bit you guys do, and tinker with it in a way that, so 
maybe it'll be just a hair more than what you're currently 
doing, and some may get less.  Because at the end of the 
day, under your sampling, as you've told us Bob -- and 
that's the reason that these folks need to understand this -
- that there are mines in this country that could see only 
three compliance shifts sampled in a year's time.
		And out-by areas in coal mines?  That's far worse. 
 One shift is your proposal.  One shift out-by coal mines.  
And we're going to measure the whole exposure of all the 
coalminers in that coalmine on one shift of sample.  That is 
ludicrous.  You know, we are frustrated.  We're frustrated, 
because we came here and said the same darn thing in 2000, 
Bob, Marvin.  We said the same thing five years ago, ten 
years ago, twenty years ago, and nobody's listening.  
		It is not for the bureaucrats in Washington that 
this issue be resolved.  It is for the coalminers.  There's 
a way to fix it for them.  There's a way to empower those 
miners so they have control over the dust levels, and in a 
way that there's going to be some real accountability here.
		Now, if there's a fear of accountability of these 
operators when that dust sample comes out at the end of 
every shift that says 2.5, if you're worried about that, you 
better not be.  That's not your job.  Your job is to make 
sure that that's less than what the standard is.
		MR. NICHOLS:  We weren't too worried about that, 
Joe.  We prosecuted those 160 dust fraud cases that you 
mentioned, and this Agency supports the use of personal 
continuous dust monitors.  This rule allows for that.  What 
we're not going to do is sit and wait a few more years for 
the development of them, like we have the last two years, 
and let these miners continue to breathe dust. 
		MR. MAIN:  Marvin, two problems with what you just 
said.  One is, do you know how we got in the mess that we 
did with the fraud?  MSHA backed off inspecting coal mines. 
 They went down to -- after this promise was made to miners 
in 1980 -- and the record will bear this out -- after that 
promise was made, MSHA cut back to two inspections in 
coalmines, and set back and let the operators really control 
the program, and then it all caught up with you guys.  And 
the second thing is, Marvin -- and I'll finish, and then you 
can make your point.  The second thing is -- you're here to 
hear from us, okay?
		The second point that I'll make is that you backed 
off of dust inspections again.  And I'm sitting here 
thinking, we just went to Congress, we just went to the 
world saying we need to improve dust sampling in this 
country.  And I was totally appalled last summer when I saw 
that goofy policy come out of MSHA that says, we're going 
back to four, and we're going to call them -- what is the 
word there, Bob?  It's not "target," it's "trigger"?  I 
mean, where the heck are we at?  
		I'm telling you, it is wrong.  It's wrong for the 
nation's miners.  And what we need to do is put this thing -
- they can't trust you guys.  They can't trust the 
operators.  I mean, there's 25 years of history.  You've 
done some changes.  You've done some improvements.  But 
you've failed to really get the case closed, to protect 
these guys, and that's what we're down to. 
		Do we reduce the dust levels in the nation's 
mines, and increase sampling?  Or do we increase the dust 
levels and reduce sampling?  If you look at your proposal, 
it cuts along those lines.  The miner says you're dead 
wrong.  The operators probably support you.  I know there is 
operators that have supported some of that stuff. 
		MR. NICHOLS:  How many do you think support 
single-sample?
		MR. MAIN:  Single-sample on one shift in an out-by 
area coal mine, to measure the full measure of that miner's 
exposure is totally ridiculous and outrageous.  Full shift 
sampling every day?  We buy that argument, but you guys 
won't do it. 
		MALE VOICE:  Plus it's controllable. 
		MR. NICHOLS:  How many operators do you think 
support single-shift sample and eliminating the chance 
average samples here?
		MR. MAIN:  Marvin, I'll tell you one thing.  I've 
been in this business for a long time.  That is the 
goofiest, most complicated proposal.  I still don't 
understand it all, and I've been through three courses.  
What you got here is a totally confused, complicated rule 
that I challenge you to figure out.  Go out and find out who 
understands this thing first.  Then ask what it means.  But 
if you do that on a sporadic basis, it means nothing.  If 
you do it on a constant basis, it means something.  And 
that's the difference.
		You can't take a sample -- does anybody in here 
really believe that you can measure the full exposure of a 
miner working on that belt line, by taking one sample once a 
year?  Does anybody honestly believe that?
		MR. NICHOLS:  Do you believe that the number of 
samples that are being collected now can do enough?
		MR. MAIN:  No.  That's what we said at -- we have 
answered that question time and time again.  We have said 
that the sampling that you guys were doing in 2000 was not 
enough.  That was the total compliance samples on the 
section was what, then, 36?  We're down now to 34, and 4 of 
them's only this trigger deal, okay?  We said then it wasn't 
enough, and we said we need to get these continuous dust 
monitors.  Now Marvin, I want to respond to the continuous 
monitors thing, because you raised it, you know, holding up, 
holding up. 
		You know, I've been working on this project with 
industry and with NIOSH, I mean, night and day, trying to 
get this thing done.  We've all been beating on the doors.  
Not as much MSHA, I will say, and that has been a little 
frustrating.  They've been in and out of the picture.  But 
there's a lot of folks put a lot of pressure on getting this 
instrument built, leaning on the manufacturer to get it 
done, so we could get a rule that would do this.  
		And it just struck me just very suspiciously why, 
on the verge of getting the final test done, which we expect 
in August or September, and getting the full measure of what 
this thing would do, do we rush a rule out in a time with 
all these mining accidents, with all these other rules, the 
belt air rule, the rule on emergency evacuation that totally 
had the industry preoccupied?  It's very suspicious, Marvin.
		And I'll tell you one thing, it does not give 
fairness to these miners, who have a right to know what's 
really going on, and what can be done.  Why did MSHA rush 
this rule out, knowing that this PDM was coming down the 
pike?
		MR. NICHOLS:  This rule has been worked on at 
least for four years, and maybe ever longer than that.  
There is no rush to get this rule out.  There's been a 
timetable for ever since this administration got here. 
		MR. MAIN:  There is a train that was coming down a 
track, that was going to deliver the kind of things I just 
said that was at hand, for anybody that paid attention.  And 
there's only two conclusions I can draw.  With this ready to 
go late summer, rushing the rule out to beat it to the path 
is very suspicious.  But when you look at it as a broad 
sense, why would the Agency not wait four months?  I mean, 
delay -- I mean, really, reforms of this thing since the 
mid-seventies.  Four months to get the full details on this 
and build something around it. 
		In terms of your proposal, you want to give it to 
A.T. Massey to decide if he wants to let his miners have 
that, under an optional program, but the option will never 
be exercised, because what, instead of the quarterly 
program, Bob?  Instead of quarterly sampling?
		MR. NICHOLS:  I don't understand what you're 
asking. 
		MR. THAXTON:  I don't either. 
		MR. MAIN:  Using PDM 1's --
		MR. NICHOLS:  This rule allows for personal 
dust --
		MR. MAIN:  This rule allows A.T. Massey to decide 
if they want to put those on their miners.  Does anybody in 
this room believe that A.T. Massey on their own is going to 
put those on?  Raise your hands?
		MALE VOICE:  Hell no. 
		MR. MAIN:  Okay.  Does anybody believe that an 
operator will take a course of putting a sampler on once, to 
get a plan verification if they're successful, or say no, 
I'm not going to do that?  What I'm going to do, fellows, 
is, I'm going to put this voluntarily on them.  I'm going to 
go out and buy them, and put them on every coalminer on 
every shift, 365, 24/7.  Now, who believes that?  Stand up 
in this room.  It is a fraud, Marvin.  
		There is no personal dust sampler for coalminers 
to have in any meaningful way in this rule, and everybody 
knows it.  And that's the frustrating part about this.  
Don't sell us something.  Tell us the truth.  Tell miners 
the truth.  There is an 8-milligram standard in this rule.  
There is a standard in here that allows that dust to be 
jacked up, and you guys, I know  you're in a box now, 
because it doesn't look good here to let the Congress know 
and everybody else know that what you're going to do is wipe 
out that 2-milligram standard and replace it with an 8-
milligram standard through fuzzy formulas that people can't 
understand.  That's exactly where we're at. 
		MR. NICHOLS:  We're not going to do that, Joe.  
And every time you speak on this, you keep mischaracterizing 
what we're trying to do with PAPRs. 
		MR. MAIN:  I heard what you're going to do with 
PAPRs, and let us figure out if what you're telling me now 
is the same as what Bob told us the other day.
		MR. NICHOLS:  I don't expect to change your mind, 
but here's the way the enforcement process works.  The 
primacy of controlling dust is the engineering controls.  If 
that can be done, PAPRs never come into play.  If PAPRs come 
into play, the protection factor for PAPRs has nothing to do 
with the 2-milligram standard.  Just wait a minute.  If 
operators cannot meet the 2-milligram standard, as Bob says, 
if they can meet the 2.5, that's what's going to happen.  
They're not going to be allowed to go to 8.  I don't know 
anyplace in this country, based on our 30 years of 
experience, where people can't engineer the problem down way 
below any 8-milligram standard.  I mean, --
		MR. MAIN:  But that's beside the point, Marvin. 
		MR. NICHOLS:  But you keep mischaracterizing it. 
		MR. MAIN:  No, I'm not.  I'm telling you the 
truth.  Let me tell you a case in history.  I was there.  
Jim Walters Resources, 1990.  Came to MSHA, says, give us 
PAPRs, we can't meet the law.  Came to me, said the same 
thing.  MSHA was weak-kneed getting ready to do it until we 
said, you do it or we're suing you, okay?  You know what we 
did?  We went in that coal mine, made them put shield sprays 
that other operators had.  We made them redesign the way 
that the shearers cut.  The water sprays on the shearers.  
The way they controlled the water at the stage loader.  The 
dust out in the best entry that was being dumped on the face 
was jacking up the dust.  
		We did all those things that wasn't there before. 
 And that operator -- and I've seen the weak-kneedness of 
this Agency so many times, it scares the hell out of me.  We 
do not trust this Agency to hold the line, giving away the 
one control they have under the law, that says, no operator, 
you can't do it.  Because what you just told me that you 
plan to do, you can't do that under the current law.
		MR. THAXTON:  Didn't the Jim Walters situation, 
Joe, also allow that miners were only permitted specific 
amounts of time to work on the shearer?  That they actually 
couldn't work the whole time?
		MR. NICHOLS:  I remember the situation.  What you 
done was come up with a Rube Goldberg way of sampling 
downwind, where you passed this pump off.  You didn't know 
what you had downwind. 
		MR. MAIN:  We had a mess on our hands, because the 
government sat on their butt and let dust control get out of 
that coalmine until the truth came out, and we had to go in 
and fix it.  And we fixed it with engineering controls 
straight out.  And if it wasn't for the strength of the 
mineworkers, I can tell you, honest to God, Marvin, that 
this Agency would have backed off and figured out a way to 
let them do what they wanted, to keep that mine running 
without engineering controls.  And it would have been the 
wrong thing to do, because those miners had been sitting in 
8 milligrams of dust.
		Now, a question I have for you.  I mean, this is a 
rule, and let's don't kid ourself.  You can sugarcoat it and 
say it doesn't mean -- it means, straight up, that you can 
put a PAPR on a guy, you can jack that level up, approved by 
MSHA, up to 8 milligram in the coalmine that you can't do 
now. 
		MR. THAXTON:  You cannot do that.  You cannot jack 
up dust concentrations, Joe.  The rule will not allow them 
to jack up the 2-milligram standard to 8 milligrams. 
		MR. MAIN:  And what stops them?
		MR. NICHOLS:  If you've got control of A, B, C and 
D, you're not going to be able to take C and D off and use 
the PAPR.  You see?  If you're getting 2.5 with A, B, C and 
D, you're going to maintain 2.5. 
		MR. MAIN:  Is there a law that says they can't do 
that?  Or is that based on a judgment of MSHA based on 
observing what they think the operators are telling them?
		MR. NICHOLS:  That's based on longstanding 
enforcement policy that this Agency has always used for 
primacy of engineering controls. 
		MR. MAIN:  Now, is this the same enforcement 
policy that the government had in place that said, we're 
increasing dust levels because we're concerned -- or dust 
inspections because we're concerned about the infrequent 
dust sampling in coalmines, but then, within a short change, 
says, oh, we changed our mind.  Well, we really don't need 
to do six.  We're going to do four now.  And by the way, 
we're not going to even consider those as enforcement 
samples?  Is this the same Agency, Marvin?
		MR. NICHOLS:  This is the same Agency that 
scrapped up $1.7 million to give miners free chest x-rays, 
not an action, I think, of an Agency trying to cover up the 
dust problem.  This is the same agency --
		MR. MAIN:  Is that still going on, Marvin? 
		MR. NICHOLS:  This is the same Agency that, up 
until early to mid nineties, coalminers had no protection 
over collering and drilling holes on the surface with.
		MR. MAIN:  There is some modest improvements, but 
when you give me two bucks and take a hundred dollars, I'm 
the loser.  Let's go back to the centerpiece here.  This is 
what this debate's all about.  Do we decrease dust levels?  
And do we increase sampling in this mine?  Or do we increase 
the dust levels in the mine and decrease sampling?  The 
center of the whole debate.  
		And what you guys propose to do is, allow dust 
levels to be increased in the coalmines, in the mine 
environment and active workings, and substantially reduce 
sampling in coal mines to where you have one out-by 
compliance sample a year, and three section samples at -- 
all mines, one sample out-by, and at some mines, only three 
compliance sampling sections a year, as a policy. 
		MR. NICHOLS:  But Joe, those three -- those 
sections that you say will only get three MSHA inspections, 
you need to be clear your people that the only way they get 
to that point is because they have demonstrated that they 
have controlled dust to such a low level that we have good 
confidence that those areas are protected.  And that way it 
frees up our resources to go to the areas where we think 
that there is overexposure --
		MR. MAIN:  In your theory, if you had an honest 
industry and we all trusted what the operators was doing 
during those very infrequent days, it may mean something.  I 
can tell you --
		MR. NICHOLS:  Those are unannounced inspections by 
the Agency --
		MR. MAIN:  I can tell you that you guys have been 
in these coalmines, you have been sampling, under your noses 
they have cheated.  When you're gone, they've really 
cheated.  And that must end.  And we're saying, take the 
goofiness out of this, Bob.  Give these guys a personal dust 
sampler that they can wear 24/7, and let's take the mystery 
out of it, and let's try to clear up this cheating and the 
unknowns.  Now, do you agree that miners would be better off 
if they had 24/7, 365 sampling or not?
		MR. NICHOLS:  If every miner was provided with a 
constant readout, and you allowed them to adjust their 
schedules -- because you're going to use administrative 
controls then to control the --
		MR. MAIN:  Well, see, that's -- the thing of it 
is --
		MR. NICHOLS:  Then you would have that, because 
you're looking at each individual exposure at that point.
		MR. MAIN:  A miner would be in a position to stay 
out of the unhealthy dust, because he would have a device 
that would tell him there every day?
		MR. NICHOLS:  It would tell him what his 
concentration is up to that point, and he could say that I'm 
about to exceed it, and I need to get away from it. 
		MR. MAIN:  And if the operator didn't do something 
to keep him out of that dust, what happens to the operator, 
provided you guys enforce the law?
		MR. NICHOLS:  Well, if what's proposed right now, 
we would say that you have to remove the person from the 
exposure, take corrective action. 
		MR. MAIN:  Over maybe three shifts on the section 
in some of the mines, one shift out-by, versus 365, 24/7. 
		MR. NICHOLS:  The vast majority of MMUs will be 
sampled bimonthly, with what we have proposed right now.  
What's in the draft MSHA inspections procedures.  Like we 
told you, the vast majority of MMUs cannot --
		MR. MAIN:  Maybe this is the best way for me to do 
this.  We understand there's pieces of the law, and we 
understand the total confusion of this law that people 
cannot understand, really, until you get down and ask a lot 
of questions.  Over these miners' heads, over our heads, it 
took you guys to come in three meetings and explain this 
stuff to us, is how complicated.  And you expect the miners 
and the mining community to understand this goofy rule?  And 
that's what it is.  Complicated, confusing.  It's a 
bureaucratic nightmare that's going to sink under its own 
weight, and you won't listen to what miners have to say.
		Hold the fort, why can't we get a rule here that 
says we're tired of this cheating out here, we're tired of 
this sampling system that doesn't give us accuracy, we're 
tired of this infrequent sampling system that we have to 
come up with all these gimmicks and crazy schemes that 
people don't understand, to try to get you in compliance?  
We're just going to do something here that's just grandiose. 
 We're going to just sample you every day, and make you live 
by the standard every day.
		It seems like the simple solution to me.  Why 
can't we get there?  Why can't you listen to the miners, and 
do what they've asked to do for twenty some years?  The 
number of people dying from this disease, I've got personal 
friends that died.  You know, I seen Mike South struggle 
through the last years of his life with his lungs chewed up. 
 That's what this is about.  We're trying to get these guys 
out of the dust.  Not through bureaucratic, confused rules 
and gimmickry, but really.
		And as Carlo said, that's our motive here.  We 
want to end this disease in the mining industry, get these 
guys out of the dust, and end this problem.  Not for you 
guys to figure out from the bureaucracy how you want to 
handle it, but for these miners.  Give them the power.  Give 
them the understanding, and give them the ability to get out 
of the dust.  And your proposal don't do that. 
		MR. NICHOLS:  Well, it allows for it.  If the 
personal dust monitor is developed, this rule allows for 
that.  What we're not going to do is, wait and still accept 
compliance of these dust plans at 60 percent production.  
And we're not going to average these samples any more to 
disguise compliance. 
		MR. MAIN:  Baby step.  It doesn't fix the problem. 
 And if you'd have waited six months, or -- I mean, get some 
courage about you.  Just say, industry, you're going to do 
this.  We've got all the evidence the darn thing works.  Get 
a little bit of courage there.  Technology-driven is the way 
the rules are supposed to go.  Do you have no courage to 
step up to the plate and say, look, operators, you've had 
your way for 20 some years, we're going to change the 
dynamics here, you're going to sample 24-7, 365, and you're 
going to keep it at the standard, and when you overexpose -- 
and not these 2.33s, but you go over the standard, you're in 
trouble, you're going to get these miners out of the dust?  
A real simple approach. 
		The other question I have, too, Bob.  We haven't 
figured this out.  If you have a sampler on, you've got the 
PAPR on, and it shows up 8 milligrams.  When does MSHA 
actually cite?
		MR. THAXTON:  We do not cite on the continuous 
dust monitor, if that's what you're --
		MR. MAIN:  No, no.  On the PAPR.  Oh, you don't 
cite on that?
		MR. THAXTON:  Not on continuous dust monitors, no. 
		MR. MAIN:  Oh.  Okay. 
		MR. THAXTON:  It's right there in the thing. 
		MR. MAIN:  Okay.  I missed that one. 
		MR. THAXTON:  And I believe we said that one in 
our discussions with --
		MR. MAIN:  But I'm interested in the PAPR issue, 
because it's confusing.  Because when I look through the 
formula, what it says is, multiply by a factor of four, 
which if you're -- you know, two becomes eight, okay, with a 
factor of four. 
		MR. THAXTON:  We actually say divide by four.  
Take the --
		MR. MAIN:  Or the --
		MR. THAXTON:  Take the concentration determined by 
the respirable dust sample, divide it by four, and that's an 
equivalent concentration that you've determined.
		MR. MAIN:  If that dust --
		MR. THAXTON:  That tells you what the 
concentration would have been inside the PAPR.  That's the 
environment in the mine. 
		MR. MAIN:  You just answered my question.  I'm 
trying to figure out -- okay, I've got the PAPR on, I'm on 
this factor four standard, okay, whatever.  My dust pump 
says 7.5 milligram.  Would I be cited?
		MR. THAXTON:  I can't tell you, because I don't 
know what the conditions were that were approved when the 
operator asked for the --
		MR. MAIN:  Let's say that the conditions were 
approved in the plan that operator said.  You got 7.5.  
Would I be cited?
		MR. THAXTON:  I'm asking, though.  We don't know 
what the conditions were.  When MSHA comes in, we're going 
to look at all controls that are in place, whatever level 
they can attain with all these engineering controls has to 
be maintained.
		MR. MAIN:  So every standard requires a 
determination by the Agency, even to get to the point of 
issuing the standard?  Let's assume, like I say, that they 
say that the controls were in place that were satisfactory, 
and it says 7.5.  Would they be cited under the law?
		MR. THAXTON:  Well, let me ask you, do we have a 
section right now that you think that if they applied all 
the controls, that  we have a place right now that's at 7.5?
		MR. MAIN:  That's not the -
		MR. THAXTON:  If you don't --
		MR. NICHOLS:  That is the issue.
		MR. MAIN:  No, it isn't the issue.
		MR. NICHOLS:  It is the issue. 
		MR. MAIN:  It's what the operators are going to 
do, Marvin.  It is -- no.  I have seen this Agency be 
reluctant to move ahead to force technology-driven controls, 
and my fear is that -- what happens when we get into this, 
what's feasible, all these kinds of things -- the question I 
posed to you is -- under this rule, I can tell you right 
now, if they're in excess of 2 milligram -- actually, what, 
2.33 now that you guys are using them.  I'm confused on what 
that may be, but let's say 2.33.  You would cite the 
operator?
		MR. THAXTON:  No. 
		MR. MAIN:  Okay. 
		MR. THAXTON: On our samples, yes, they would be 
cited. 
		MR. MAIN:  Okay.  Now, what I'm asking you, on 
this proposal, let's say you've got one that gets to the 8 
milligram, and it says 7.5 on that factor of four, would he 
be cited?
		MR. THAXTON:  That's what I'm telling you.  I 
can't tell you, because --
		MR. MAIN:  Is it possible for them to not be 
cited?
		MR. NICHOLS:  He's asking you for a theoretical --
		MR. MAIN:  Is it possible for them not to be 
cited?
		MR. THAXTON:  You have not provided a complete 
picture of the section, Joe.  I can't tell you, because the 
section -- if you say right now that there's no place that 
has 7.5 --
		MR. MAIN:  Okay.  I'm going to try this from a 
different end, so we clearly understand this, Marvin.  Just 
bear with me a minute.  What the law says right now, you 
can't exceed 2 milligrams on that section sample.  Is that 
law still in effect that says that operator can't exceed 
that 2 milligrams on that dust sample that he just measured?
		MR. NICHOLS:  Yes. 
		MR. MAIN:  So it's illegal.  So what you're 
telling me, if that dust sampler on that miner who's got 
that PAPR on shows up at 2.5, he's a violation and you issue 
a citation?
		MR. THAXTON:  If he has a PAPR on and he's at 2.5, 
and he has exhausted all feasible controls, and that 2.5 has 
been determined by the Agency to be the level that they can 
maintain with a protection factor, we will not cite him, 
because they are providing a supplemental protection to the 
--
		MR. MAIN:  Okay.  So they wouldn't be cited under 
the law at 2.5.  All right.  Let's just go up.  Let's go to 
3.5.
		MR. THAXTON:  Well --
		MR. NICHOLS:  Well, before you do that.  George, 
what's the highest dust levels you're seeing on people 
working farthest downwind on long walls?
		MR. NIEWIADOMSKI:  Well, if you measure -- if 
you're looking at --
		MR. NICHOLS:  Don't give me a bunch -- I mean, 
just tell me a number. 
		MR. NIEWIADOMSKI:  Well, we have isolated cases 
where you're going to have 10 milligrams or higher.  You 
could have, okay.  But those are isolated cases, all right? 
 The fact is this, okay, I mean, what's being -- the way 
it's being characterized that the Agency would allow an 
environment to be 8 milligrams in 2003.
		MR. MAIN:  Well, you've done that. 
		MR. NIEWIADOMSKI:  We never allow that. 
		MR. MAIN:  You have so, George. 
		MR. NIEWIADOMSKI:  On a consistent basis, we would 
never allow that. 
		MR. MAIN:  You have allowed it.
		MR. NIEWIADOMSKI:  We have -- I --
		MR. MAIN:  Until we get in and clean things up -- 
were you involved in the dust study at Trail Mountain?
		MR. NIEWIADOMSKI:  I was not. 
		MR. THAXTON:  No.  I was. 
		MR. MAIN:  Okay.  What was the dust levels that we 
found in there when we went in and put the microscopes on 
the place, Bob?  Do you remember what some of the upper 
reaches was? 
		MR. THAXTON:  No, I don't remember the upper 
reaches. 
		MR. MAIN:  Do you remember 11?  Do you remember 
12?  Do you remember the operators saying, gee, I cannot 
comply with this standard, I need PAPRs?  Do you remember 
that?  That was their initial approach?
		MR. THAXTON:  Well --
		MR. MAIN:  And do you remember us going in that 
coalmine, and showing this mine operator who couldn't figure 
it out for themselves how to change the air flows, how to 
change sprays on belts, how to change the sprays on shearers 
to get that mine level down?  Do you remember that?
		MR. THAXTON:  Trail Mountain's request was not to 
use PAPRs.  Trail Mountain's request to the Agency was that 
they had exhausted all feasible engineering controls, and 
they asked us to come in and take a look, to determine 
whether they had or not. 
		MR. MAIN:  Because they wanted to use PAPRs.  I 
have the documents. 
		MR. THAXTON:  That would probably be the next 
step, that they would come in and ask for that. 
		MR. MAIN:  They made it clear. 
		MR. THAXTON:  They did not get to that point, 
because we did go in, Joe, and we did walk down the long 
wall, and we checked everything out.  We said, no, you have 
not put in all feasible controls.  And that's exactly what 
will happen in this.  We will go through, and we will check 
each person that gets to that point.  Each section.  And if 
they have not --
		MR. MAIN:  But you had the law that said they 
couldn't, because I recall the discussions.  I know there 
was some weak-kneedness in that Agency whenever that 
proposal came down again, Bob.  And that's why -- I mean, I 
have these experiences.  Some folks was like, gee, what are 
we going to do here?  What are we going to do?  How come 
that existed?  Why wasn't MSHA catching it?  If we would 
have had continuous dust monitors on those miners 24/7, 
those miners would never have been exposed the way they are, 
and got away with it. 
		MR. THAXTON:  You have to realize, at Trail 
Mountain they were demonstrating compliance for the most 
part, because of the sampling system that was in place, that 
you could average samples, and they were collecting the 
samples on the shearer operator. 
		MR. MAIN:  It didn't work, did it?  And these 
changed. 
		MR. THAXTON:  Well, you had people working 
downwind.  Just as we showed on that example, Joe, we had 
three shifts sampled that are below the standard, two shifts 
above it.  Those two shifts that are above, that mine 
operator may have all feasible controls in place. 
		MR. MAIN:  You guys are --
		MR. THAXTON:  And the average shows compliance. 
		MR. MAIN:  I understand.  You guys get caught up 
in all these theories --
		MR. THAXTON:  Those two samples, though, still 
showed that people were being exposed to high 
concentrations.
		MALE VOICE:  Is this I debate or a public hearing?
		MR. NICHOLS:  Yes.
		MALE VOICE:  I'd like to hear from the miners rep. 
		MR. THAXTON:  So the two samples that are there, 
we're saying that if you've got those conditions going on, 
and that people are being exposed, why not do something to 
protect the people, if that is as far or as good as the 
controls can get.  Not that we're going to give up and walk 
away from it --
		MR. MAIN:  I think we've rolled into a debate, 
sucking us into the same flawed program, and I think we need 
to get out of it, and understand two simple things again.  
What this proposal does is, it increases dust levels, and it 
decreases the frequency of sampling in coalmines.  The wrong 
thing to do.  What miners have said, that you won't listen 
to them, says, increase dust sampling, get us continuous 
monitors, and lower the dust levels of exposures.
		It is our firm belief that we put on these dust 
samplers that are at hand, that we should go back to the 
drawing table.  We got enough information now to build the 
rule from, and by the time this test is done, we can be out. 
		MR. REYNOLDS:  Joe.  In that regard, I wanted to 
interrupt here.  One of the things that we've done in the 
proposed rule is, we've asked a long series of questions 
about how you want personal continuous dust monitors used, 
and we really need to elicit some information from the UMWA 
and the miners and the operators about what that would look 
like, how we would use that.  And I just wanted to call your 
attention to the sections there. 
		I don't know if it would be Tim, or whoever would 
be looking at this, but there are a bunch of questions that 
we ask on page 10827 about how would you want that program 
to work, what actions should MSHA take based on what 
readings we get from the continuous dust monitors. 
		MR. MAIN:  I can give you some simple --
		MR. REYNOLDS:  Okay.  But I'm just saying that --
		MR. MAIN:  Let me apologize, Larry, for not 
getting to those questions.  We are so far behind --
		MR. REYNOLDS:  Okay.  I was just saying that I 
just want to bring it to your attention and everybody here 
that we are asking for that.  And I think that's part of the 
reason -
		MR. MAIN:  24/7, you sample, full shift, you 
sample.  The standard is the standard.  We work at lowering 
that standard instead of increasing that standard.  The 
miner would not be permitted to be in -- as the Mine Act 
said.  Follow the principles of the Mine Act. 
		MR. REYNOLDS:  I understand --
		MR. MAIN:  That data would be recorded at the end 
of the shift, it would be electronically downloaded to MSHA, 
so MSHA  would have that as a database for all samples. 
		MR. REYNOLDS:  Okay.  But they're even more 
detailed questions that we're asking. 
		MR. MAIN:  We'll get into the more detailed 
questions, but I think the first -
		MR. REYNOLDS:  but I'm just trying to elicit that 
from you.
		MR. MAIN:  We haven't got to the point -- we've 
got to the framework that you're giving these miners, and we 
haven't got to the framework that you're even contemplating 
sampling 365 days at 24/7. 
		MR. REYNOLDS:  Right.  I just want to make sure, 
though, that we went -- you know, in the last proposal, we 
also asked the same questions, and I just wanted to make 
sure.  This is where we really need that kind of detailed 
information in the rulemaking record.
		MR. MAIN:  I'm going to end end this, because 
there's a lot of miners here that needs to be heard.  But 
I'll tell you, I think it's totally unfair the way you guys 
put this rule out, and I think it's unfair the way you hid 
this whole gimmickry of the quarterly sampling program.  
Really, it ain't there.  You know, one operator -- an 
operator, one shift a year on plan verification.  If he 
figures out a way to slide the program.  You set him up to 
say, gee, I ain't got engineering controls, make me do it, 
MSHA.  I mean, there's a whole lot of just difficult things. 
		It undercuts the Mine Act in so many areas.  
Adverse to miners in so many areas.  Fails to listen to the 
historical record and the miners.  The wrong thing to do.  
We need increase in sampling, decrease in the dust levels to 
protect these miners, so we don't find, like we did 800 and 
some miners in this last round, and just, what, the last 
three-year study, 800 and some miners with evidence of 
pneumoconiosis.  You know, we need to end that.  We need to 
quit monkeying around with the program.  
		Thank you very much.  And I'll be at the other 
hearings to talk more about these rules.  As I learn more 
about them, and as we try to educate our miners, I'm scared 
to death they haven't got a clue about what's ready to hit 
them as far as this freight train.  And we do ask for the 
rule to be withdrawn. 
		MR. NICHOLS:  Thanks, Joe. 
		(Applause.)
		MR. NICHOLS:  I'm going to have to step up and 
take a break, but we need to keep going, I think.  Our next 
presenter is Joe Marcinik.  Did I pronounce that name right? 
 M-A-R-C-I-N-I-K -- with the UMWA?  Okay.  Okay, Randy 
Becilion?
		MR. BEDILION:  Hi, my name's Randy Bedilion.  I'm 
a UMWA rep, local 2300 Cumberland Mine.  I'm on the safety 
committee.  My last name, B-E-D-I-L-I-O-N.  I've been 
involved in these hearings before now, many of them.  I've 
been able to read rules before, but as Joe and Carl, they 
touched on this, this is the most confusing rule I think 
I've ever read, or tried to read in the amount of time we 
had.  Like I said, I've been in the mine for 28 years, and I 
always hoped that every day things would get better, but 
some of the things I read in this rule, it looks like we're 
going backwards.
		The only thing I can see is that it jeopardizes 
the safety of us, the working miners, and more or less just 
benefits the company.  In raising the standards, as to the 
milligrams, they don't have to stay under compliance, which 
saves them money, which costs our safety and health.  That's 
one of the things that bothered me in reading this rule, the 
parts I did understand.  And in the end, the monitors, we'd 
more or less get screwed again.  Our safety has been 
dramatically reduced by the wording in this rule, and the 
number of samples of dust in the air that we have to 
breathe.  By lowering the samples, the only thing that's 
going to do is you're going to raise what we're breathing. 
		If you don't -- we need sampling.  Joe, I can't -- 
those two acts I'm following, they're kind of hard to 
follow, Joe and Carlo.  But I guess what I want to leave you 
with, in the past there was a statement made by the UMWA 
that we'll not go back.  And if this rule passes, we've 
taken not only a huge step backward, but again, jeopardizing 
the health and safety of the miners.  And that's all I 
really got to say, but other than being confused, and still 
confused, and seeing that this rule stinks. 
		(Applause.)
		MR. THAXTON:  Thanks.  The next presenter.  Paul, 
is it Cutter?
		MR. CLUTTER:  My name is Paul Clutter.  It's C-L-
U-T-T-E-R.  I'm with the local  1197.  I work there in the 
84 mine.  I find this new reg that you're working up here 
very hard to understand.  I've gone over it three or four 
times myself.  Can't make any sense out of it.  What I do 
see is, I'm a 30-year coalminer.  I've watched loved ones, 
friends suffer and die from black lung.  I held my uncle's 
hand while he breathed his last breath.  Now you're telling 
me you're going to permit the standard for dust to be 
raised?
		I'm a candidate for black lung myself.  And you're 
going to permit the standard to be raised?  You call 
yourself MSHA, Mine Safety and Health.  I would like to see 
you enforce that safety and health, and not let the 
operators kill us.  I don't know if any of you have ever 
witnessed someone dying of black lung.  It's not pretty.  My 
uncle sat up to sleep, and feared sleep because he thought 
he might stop breathing while he was sleeping.
		I have seen firsthand what this dust can do to the 
lungs.  On the side I've worked in emergency medicine and 
stuff.  I've observed autopsies and everything.  I've seen 
firsthand what this black lung can do to the lungs.  It 
deteriorates them.  They're just like dust.  They fall apart 
in your hands as you hold them.  And now you want to 
increase the dust that was in the mines.  Why?  Why are you 
permitting the abuse of human life?  I ask you, as you are 
called MSHA, to enforce your own title, and enforce safety 
and health.
		MR. NICHOLS:  Okay, Paul.  Thanks. 
		(Applause.)
		MR. NICHOLS:  Is John Masonik back yet?  Okay.  
John Palmer, UMWA.  Other room?  Harry Powell, UMWA.  Barry 
Cox, UMWA.
		MR. COX:  Hello, my name is Barry Cox, C-O-X.  I'm 
safety committeeman at local 2258.  I'm a 30-year coalminer, 
too.  I've lived through my grandfather living and working 
in the coalmine, my father working in the coalmine.  Both of 
them both died from black lung.  My dad had 37 years in the 
coalmine, always at the face.  He was either running a 
machine or roof bolting.  He had to quit work at 57.  He 
couldn't breathe.  I lost him at the age of 61.  I'm real 
close to that.  He had 37 years in the mine.  I got 30.  
What do I got?  Do I got 7 more years to live?  We don't 
know.
		We can send men to the moon.  Why can't they come 
up with some kind of a detection, a dust detection to put on 
the machines, just like your methane detector.  When it 
reached 2 milligrams, shut the machine off.  Fix the 
controls.  That seems pretty simple to me.  I don't know.  
That's about all I have to say.
		MR. NICHOLS:  You would think it would be simple, 
but it's been a long time in the process.  At the last one, 
the last comments we had during the 2000 hearings, well, 
it's just around the corner.  And the corner is back -- the 
Agency -- as I said earlier, these rules allow for the 
personal dust monitors, but we're not going to be sitting 
and waiting another two years to allow people to keep 
averaging these samples, where you've got two miners 
overexposed, three under, and people call that compliance.  
That's --
		MR. COX:  But I think until we get to that point 
where we do get some kind of electronic machine to put on 
the machines, to take care of that situation, once you get 
to 2 milligrams, shut the power off the machine.  You fix 
your ventilation controls.  Then we need to take as many 
samples as we need to do to keep the guys safe. 
		MR. NICHOLS:  Did you say you work at Cumberland 
Mine?
		MR. COX:  I work at Emerald. 
		MR. NICHOLS:  Emerald.  Okay.  How would you rate 
the dust conditions at Emerald?
		MR. COX:  We have a good mine, but I've worked in 
some mines.  I've worked in a nonunion mine.  I worked 15 
years in a union mine.  I couldn't get a job when they 
closed it down.  I got a job at a nonunion mine.  That's 
when things opened my eyes, and I've been a committeeman 
ever since then.  And that's been for the last 13 years.
		MR. NICHOLS:  Okay.  Thank you, Barry. 
		MR. COX:  Okay. 
		MR. NICHOLS:  Ralph Serian?  UWMA?  Is Ralph here? 
 Floyd Campbell?
		MR. CAMPBELL:  My name is Floyd Campbell, C-A-M-P-
B-E-L-L.  I work at Emerald Mine.  I have 27 years in the 
mine.  I'm in the safety committee there.  And I just can't 
believe you want to raise the dust standards in the mine.  
It's inconceivable to me.  I have 27 years, and in three 
more years I'm eligible for retirement.  I didn't want to be 
subjected to a more dangerous environment.  I'm a fire boss. 
 I've seen times on our mine built when we had to pull the 
cord and shut it down, because the dust would be so heavy in 
the air.
		So you asked about the conditions of the dust 
there.  At times it's terrible.  I really didn't have a lot 
more to say.  I just don't understand why you want to ram 
this through. 
		MR. NICHOLS:  Well, we're not going to raise the 
dust levels.  Now, it's apparent that we haven't probably 
done a good job of explaining that, and we're going to have 
to keep working on it, but the dust levels are not going up. 
		MR. CAMPBELL:  I work the long wall for six years. 
 I wore a PAPR.  I can't imagine anyone roof bolting in 
them, because you can't tilt your head back, because they 
dig into the back of your neck when you wear them.  They get 
smeared.  You have to wipe them off.  And I would say the 
whole preference to this plan is that they keep that closed 
the whole shift, and there's no way you can keep it closed 
the whole shift.  They're going to open them up.  And then 
when you do, you're into the environment outside it, and 
that's not going to be a 2.  Is that correct?  I mean, if 
you're wearing a PAPR, the environment is going to exceed 2. 
		MR. BEDILION:  Well, if they're in an area where 
it's required that they wear the PAPRs, you have wear them 
as approved, with your face shield down.  The only way that 
you can raise the face shield is if they remove you from 
that area. 
		MR. CAMPBELL:  You can't work all shift long.  I 
mean, you're going to get -- we use wet-head bolts, ten feet 
back from the monitor.  You're going to have dust coming 
over, and water and mud coming down.  And you can't see --
		MR. NICHOLS:  Do we have any wet-head bolters out 
of compliance of the 2-milligram standard?
		MR. CAMPBELL:  I don't know.  I'm a fire wall, so 
I'm --
		MR. NICHOLS:  I don't think we do.  And a wet-head 
bolter ain't gonna see no PAPR.
		MALE VOICE:  How's he supposed to know?  He don't 
wear no monitor.  The company's get their dust monitors. 
		MR. NICHOLS:  We sample.  MSHA samples.
		MR. CAMPBELL:  I can see it coming with this plan. 
 I'm afraid they will, and if they do, I'm telling you, a 
bolter can't bolt with that helmet on.  Because I wore it on 
one wall, and when the long wall got loaded, you couldn't 
wear it all the time. 
		MR. NICHOLS:  It ain't gonna happen.  If people 
can engineer out the problem, it ain't gonna happen. 
		MR. CAMPBELL:  But there's no incentive for the 
companies to engineer the problems out if they're allowed to 
use the PAPRs. 
		MR. NICHOLS:  No.  The rule actually states -- and 
it's actually written in the regs that the operator has to 
maintain all feasible engineering controls. 
		MR. CAMPBELL:  Meaning that he has to use all the 
known controls out there now?
		MR. NICHOLS:  He has to use all controls that are 
available right now.  Anything that's feasible for that 
particular mine, it has to be used, before we will even 
consider a PAPR, and they have to demonstrate that, even 
after they use all that, that exceeds the standard.
		MR. CAMPBELL:  I'm afraid I'm with the rest of the 
members.  I don't have the faith in the companies that you 
do.
		MR. NICHOLS:  Well, I mean, we have a pretty good 
presence at these mines, and you know, we're there 
inspecting four times a year, and some of these big mines 
almost have resident inspector programs.  But to get back to 
your example, a person's not going to be able to take a wet-
head bolter and take the water off of it if they want it --
		MR. CAMPBELL:  Or the water in it is going to get 
on his face shield.  That's what I'm saying.  Or the dust or 
the mud --
		MR. NICHOLS:  But he ain't gonna be wearing a 
PAPR.  He don't need it. 
		MR. CAMPBELL:  Well, I'll believe it when I see 
it. 
		MR. NICHOLS:  Okay.  All right, Floyd, thanks.  
Chuck Hayes?: 
		MR. HAYES:  My name is Chuck Hayes.  I work at 
Federal Number Two, H-A-Y-E-S.  I've been employed 29 years. 
 I don't have a whole lot to say either, but I just can't 
believe this is 2003, and we're still fighting for a dust-
free environment.  I'm like the brothers that came before 
me.  I just can't understand why you want to increase the 
dust on our sections.  We want a dust-free atmosphere.
		And reduce the sampling.  That's another thing.  
Why reduce it?  We need more sampling.  And the mine 
operator, I don't know how you can let them verify the dust 
control plan, because like the brothers in the past have 
said that they have cheated, they've caught a lot of them 
cheating on their dust samples.  And like the brother said, 
MSHA stands for Mine Safety and Health.  I can't see where 
we're at with the health and safety here.  We're clear out 
in the lost ballpark here.  I just don't understand where 
you're coming from.
		I see my brothers come out of the mines every day, 
their faces as black as a man's jacket.  I mean, there's 
dust in the mines.  I mean, it ain't going nowhere.  It's 
still there.  It's not going nowhere at all.  I'm just at a 
loss for words.  I just can't understand why you would want 
to increase the dust in the coalmines, the sampling.  It's 
sad.  It's a sad day in the coal fields.  That's all I have 
to say. 
		MR. NICHOLS:  Okay.  Dennis O'Dell. 
		MR. O'DELL:  Good afternoon, my name is Dennis 
O'Dell, D-E-N-N-I-S O-D-E-L-L.  I'm an international health 
and safety representative with the United Mine Workers of 
America, and I have 26 years of experience in the coal 
industry.  Before I begin today, I would like to thank this 
panel for the opportunity to speak here today on such an 
important issue.  One that will affect the miners' health 
and safety for years to come.  I pray that, once again, my 
comments do not fall on deaf ears as it did in August of 
2000, and you will go back to the well and do what is right 
for the miners, who, as the Act has always defined, are our 
most precious resource. 
		I took a couple parts of this rule and looked at 
it.  And I'd like to first begin by speaking on 70.218, 
"Violation of Respirable Dust Standard, Issuance of 
Citation, Action Required by the Operator in Determination 
of Citation."  This section sets forth requirements for 
actions following compliance dust sampling by MSHA.  As a 
result of the complex formulas and exceptions in the rule, 
it almost reads like the U.S. tax code.  
		For example, if you look at 72.18(a), it begins 
with "If a valid equivalent concentration measurement for 
any occupation sampled by MSHA meets or exceeds the citation 
threshold value listed in table 72 that corresponds to the 
applicable dust standard in the threshold value listed in 
table 72 that corresponds to the applicable dust standard in 
effect, the operator will be cited for that violation of 
70.100 or 70.101."
		The complexities and hidden ramifications of the 
proposed dust rule are evident in this single one provision 
that's listed in this rule.  One almost needs a Philadelphia 
lawyer or someone who can interpret or figure out when a 
citation for overexposure of unhealthy coalmine dust would 
be issued.  Also, if you look in this new proposed rule, 
there is no longer a straightforward 2-milligram standard as 
required by the Mine Act.
		Under this proposal, if the standard is exceeded, 
what the operator is cited for, it could be much greater 
than the 2-milligram.  To determine what is to be cited, you 
have to understand first what "valid" means, and how 
equivalent concentration measurements are determined.  After 
this is figured out, then you have to determine what a 
citation threshold is.  Then you must calculate what the 
applicable standard is, which involves a number of formulas, 
including quartz levels, along with verification factors and 
air flow rates where PAPRs and other administrative control 
factors are used. 
		That calculation has now raised the 2-point 
milligram standard, as required by the Act, if I figured it 
out right -- and I'm just a regular guy with a degree in 
elementary education, and things are quite simple, but when 
you sit down and you figure that out, it comes out to a 
whopping 8.1 milligram of respirable dust in the mine area. 
 And guess what happens then.  The mine operator may not 
even be cited at that point, according to what I've read.  
Dust levels could even be higher than this, since the 
sampling for the plans are only on an eight-hour basis, and 
our average miners are now working twelve-hour shifts. 
		We have now elevated the dust exposure four times 
to what the Mine Act allows, and if that doesn't scare you, 
I don't know what will.  I hope that we are all prepared not 
only for more miners to die of black lung, but now we have 
just loaded our coalmines up with enough float coal dust to 
blow every mountain side off from here to kingdom come.
		I want to examine section 70.212(b), which 
specifies what occurs if and when a citation is issued.  It 
requires the mine operators to make respiratory protection 
available to the miners.  This is something that is 
currently already required by the Mine Act.  The operator is 
then required to determine the cause, and take corrective 
action to reduce the equivalent concentric of respirable 
dust to within the applicable standard.  
		They are then to revise the dust control plan 
parameters if the corrective action indicates they are 
inadequate for the current operator conditions.  At this 
point they must notify the Agency within 24 hours after 
implementing corrective action.  At that point, the mine 
operators can apply for PAPRs or administrative controls of 
the means for vacating this violation.  This is what I 
understand.
		Under 70.218(c) it states that the "citation on 
overexposure will be terminated when MSHA abatement samples 
now show compliance with the applicable standard.  All 
changes to achieve that must be placed in the dust control 
plan where the revised plan has been verified for the 
current operating conditions."  
		That means, MSHA will not sample to verify 
compliance.  The operator will actually do the sampling, and 
they're going to report their findings to the Agency.  This 
proposed rule now allows MSHA to accept the word of the 
operator without even checking the conditions, plan changes, 
or even conduct an abatement sample when a citation is 
issued for noncompliance with dust standard.  That is the 
way I read it. 
		Let's look at table 70-2, "Citation Threshold 
Values (CVT) for Citing Respirable Dust violations Based on 
Single-Shift Measurements."  It is my understanding that 
this table is used to help determine at what level the 
violation will be cited.  An example.  And I think Mr. 
Thaxton had spoke about this, and if I'm repeating what you 
have already said, or if I say something wrong, please 
correct me.  Applicable dust standard would be 2 milligram. 
 The CVT would have to be 2.33 milligrams before MSHA could 
issue a citation from a single-shift sample.
		This rule permits the mine operator to exceed the 
standard by a set margin before MSHA would cite the 
operator.  In this case, miners would now be exposed to 15 
percent more dust than legally required, before the operator 
would be cited.  Instead of lowering the dust standard to 
reduce miners' exposure, as intended by the Mine Act and 
recommended by the federal advisory committee, NIOSH, miners 
and others, MSHA's proposal increases the amount of dust 
allowed in the mine environment.  This is, however, only the 
beginning of increased dust allowance. 
		Through the complicated formulas and exceptions 
contained in the rule, that is deceiving.  The 2 milligram 
contained in the table under "applicable dust standard," is 
not that level, and dust levels would not be the 2 point 
milligram before MSHA cites the operator, because the 
formulas and exceptions MSHA uses in the rule to convert 
dust levels of samples showing concentrations from 2.3 
milligrams to over 9 milligrams in the active working of the 
mine environment could exist before MSHA issues a citation. 
 And I believe this is something that George had spoke to, 
and even said it could possibly go up to 10 milligrams. 
		As pointed out in section 70.218(a), the rule 
would allow respirable dust levels to increase dramatically 
in the mine atmosphere and active workings.  This is noted 
contrary to the protections contained in the Mine Act, 
numerous findings and recommendations, as well as the common 
sense that we've all forgotten to use. 
		70.218, "Personal Continuous Dust Monitors."  I've 
heard much argument and debate about this already, and we've 
just started these hearings.  This section allows the use 
for personal continuous dust monitors which falls far short 
of that recommended and needed.  These devices long sought 
by miners are in the final research, development and testing 
stages, If I understand Mr. Wade correctly.  Testing is to 
be completed by late summer, and expectations are that the 
devices will be commercially available by next spring. 
		The UMWA, industry, and NIOSH has supported the 
research and development of these devices.  They have been 
developed to fit into cap-light battery housing, using 
advanced battery technology, leaving the cap-light battery 
housing, the dust sampling unit about the same size and 
weight as the current cap-light battery that monitors use 
today.  So it's not something that would be extra bulky for 
the monitors or uncomfortable for them to use.  This device 
will provide, as I understand it, instantaneous and 
continuous respirable dust measurements throughout a full 
shift of sampling. 
		The MSHA proposed rule, however, has decided to 
show the average dust concentrations as the shift proceeds, 
and allows the monitor to protect the dust concentrations 
for the remainder of the shift.  The device, which has been 
designed to be worker friendly and comfortable, also allows 
the data to be quickly downloaded.  This data could be 
electronically transmitted to MSHA at the end of the 
sampling shift, and the devices were developed to allow 
monitors to know what dust levels they're in.  It just makes 
good sense to do this. 
		The MSHA proposed rule does not require their use. 
 I heard Mr. Nichols say that we didn't want to wait two 
years before this was properly developed.  Instead, now it's 
up to the mine operator if they choose to use them, in lieu 
of the operator quarterly plan verification sampling.  As 
noted, MSHA expects about 15 percent of the mining units in 
the country to be required to conduct a quarterly sampling, 
and with so many loopholes and exceptions, there are many 
more ways for operators to legally avoid the sampling.
		Despite the government promise to have these 
devices built in 1980, and despite the overwhelming 
recommendations for their use, the intent of Congress to 
have dust concentrations continuously maintained at or below 
legal levels, MSHA has ignored all that, and left the 
decision to the use in the hands of the mine operator.  
		A revision of the dust rules must require 
continuous dust monitoring at each underground mine, each 
shift, each day of all designated occupations, part 90 
miners, specific out-by areas and other locations in the 
mine where unhealthy dust levels can occur, and where miners 
request for those to determine what their dust levels are.  
The regulations must also require the capabilities 
previously outlined, regarding information including on dust 
levels during the shift and the end of shift, to download 
the data to the miners and to MSHA. 
		70.220(b) stipulates that "If a mine operator 
chooses to use the PCDM devices, they must include 
administrative controls in their dust control plans," and 
those do not have to be approved by MSHA.  It also 
stipulates that the operators' proposed rule or plan "must 
include engineering and administrative controls to be used, 
and the method for the operator in which they will employ to 
ensure such controls are complied with each shift."  The 
miners are occupations that will be wearing the PCDMs each 
shift, and procedures to ensure no miner will be exposed 
above the applicable dust standard."  And I still don't know 
what the applicable dust standard is. 
		It was pointed out that if the dust cannot be 
reduced by the engineering controls, as I heard you speak 
earlier, that Airstreams -- I'm sorry, if the dust could be 
controlled be engineering controls, the Airstreams would not 
be allowed.  The problem is that the operators have already 
been laying down the groundwork to overcome this for some 
time.  For some time now, under ventilation and dust plans 
submitted by the operators, the operators have argued 
against increased air and increased water as a part of their 
plan.  
		And we all know that these are the two main means 
to control dust.  Now, what they've argued is that too much 
water and too much dust will actually -- I'm sorry, too much 
water and too much air will actually increase the dust.  And 
if you talk to the district managers, they'll tell you that 
they've heard that argument time and time again from the 
operators.
		So what happens?  A company goes out of 
compliance, the district manager tries to get them to 
implement more air, more water, the company comes back -- 
even if they have the capability to do so, they come back 
and they say, sorry, but we've reached a point to where we 
think it is no longer productive to add air or water, it now 
becomes counterproductive.  So we're saying we're not going 
to do it.  This is all we can do.  Even if we have the 
capabilities to go beyond that, we're not going to do it.
		So the next step is that they're going to be given 
Airstream helmets.  When listening to previous testimonies 
by Carlo Tarley, Joe Main and others, and no disrespect, but 
when questions were being asked or points were being made, 
you defended the proposal as it is written.  The district 
president from Ohio was sitting beside me, Mr. Larry Ward, 
and he asked me, why are we even having public hearings if 
you're not willing to be open to what our comments are?  If 
you're not willing to listen to what our needs are?  If you 
want to argue the rule, then it sounds to us like you're 
dead set and already for what you've proposed in this rule. 
		Mr. Nichols, you said you didn't want to wait two 
years for the development of the PDM, but I have to wonder 
which is worse.  Is us waiting two years for the development 
of the PDM or us working under a dust standard, a flexible 
dust standard that can reach 9 milligrams worse?  
		On August 7, 2000, in Morgantown, West Virginia, I 
was given the opportunity to do the very same thing I am 
doing today, and that's speak on the rule.  At that time, I 
had asked the committee to please address the very same 
things I've addressed here today, as well as other issues.  
Some of these issues that I and others had asked you to look 
at were, to make the rule less complicated, and it appears 
as if the rule is more complicated. 
		We have asked fixing the flexibility of the 
operator to be allowed to be in excess of 115 percent of the 
quantities specified in the plan, and exceeding the 
production levels by 33 percent before it triggers the 
operator to submit a new plan verification.  This wasn't 
fixed, but was made worse, which is what I need to also 
mention at this point is, to the discretion of the district 
manager.  I, as well as others, had asked if you would 
please look at fixing the provisional plan approval, and 
that process allows the operators to send this in, via fax 
or e-mail.  And it's our fear that these plans will go on 
for months before the inspector actually gets to the mine to 
check it out, to see if it's adequate or not. 
		Prior notification to the sample on the plan 
approvals still exist in this rule, If I understand it.  
Minor participation during operator sampling is still not 
mandated.  The training and certification issue for minors 
failed to be addressed properly.  The Airstream helmet issue 
actually got worse, as now it looks like miners will be 
forced to wear Airstream helmets in lieu of fixing the dust 
problems.  And after testing at several mines, these 
Airstream helmets still failed to work properly. 
		Not only do they not work properly, but now with 
this rule, you will have monitors wearing inadequate helmets 
in excessively explosive, dusty atmospheres.  We have far 
too many mine fires already today  without raising the dust 
levels allowed under this rule.  I personally have been on a 
dead run since 1999, chasing mine fires and fatalities one 
right after the other.  And it sickens me to think that this 
will elevate to even more mine fires and fatalities if this 
rule is allowed to pass.
		I would like to resubmit my comments from the 
August of 2000 with my comments today.  Miners deserve 
better than what we have got thrown back at us.  The 
individuals that wrote this rule should sit back, relook at 
it, and maybe even go into a coalmine for a month or two and 
work, and see what it's actually like to have to breath, eat 
with this dust, and work.  
		The rule is still too complicated and has too many 
loopholes.  The rule actually encourages operators to use 
Airstreams in lieu of controlling the dust levels.  More 
dust will not only be sucked through our lungs, but will 
gather on the mine floor and ribs, as well as being 
suspended in the air to cause more ignitions, and even 
worse, more mine fire explosions. 
		I watch this crowd today, as you guys have given 
some of your explanations, and as Mr. Thaxton gave the 
initial explanation before the meeting started.  This crowd 
behind me is a representative of the mining industry, and 
what I saw was confusion, not only on the miners' faces, but 
the operators and other MSHA personnel, as well, are as 
confused about this rule as we are.  I did not see one 
single person stand up in applause after the presentation 
was made by Mr. Thaxton.  This tells me that the crowd here 
today believes that this rule is a poor performance, a bad 
show, and therefore, it got bad reviews from the real 
experts, which is the people that actually have to work 
under this rule, and whose health will be affected.  You 
need to listen to the real experts, take our comments back, 
and fix the mess.
		I would like to see you come back with a realistic 
rule, as all good shows, and as all good reviews, and it 
will get the applause that it deserves when it's right.  
This rule needs to do the same with the miners.  I'm asking 
everybody in this room to stand up.  Coalminers please stand 
up.  Anybody in the coal industry please stand up.  Anybody 
that works in a coalmine please stand up.  Anybody that has 
to go underground please stand up.  I need you to take a 
good look at this crowd.  
		You control the future of their lives, to exist 
and function as normal, healthy human beings.  Take a good 
look at their faces.  Look into their eyes.  Do the right 
thing.  Make this standard work for the miner.  Keep the 
environment clean.  Thank you. 
		(Applause.)
		MR. NICHOLS:  Thank you, Dennis.  Any questions of 
Dennis?  Thanks a lot.  Mark Sergetti?  Chuck Junoski.
		MALE VOICE:  I have a gentleman that would like to 
testify, but he's got to leave.  Can I put him on now?
		MR. NICHOLS:  Yeah, bring him on up.  Who is it?  
Come on up. 
		MR. EALY:  How you doing?
		MR. NICHOLS:  Good.  How are you doing?
		MR. EALY:  My name is John Ealy, E-A-L-Y. 
		MR. NICHOLS:  Yeah, I've seen you before. 
		MR. EALY:  You remember me, huh?
		MR. NICHOLS:  Yeah.  I've seen you last year.
		MR. EALY:  Here we are again.  Health and safety 
committee representative, local 2300, Cumberland mine.  I've 
got about 26 years experience underground, and been working 
with the mineworkers now for the past several years, and 
I'll be brief here, because a lot of this stuff we're 
hearing is basically redundant, but it needs to be said 
probably over and over again, because evidently, it's not 
maybe being heard.
		You know, when you take two of anything, let alone 
something you didn't want to start with, and you make it 
into eight, it's not good.  And as I see it, the mineworkers 
in particular, we want to keep what we have, if not make it 
better.  We want more samples.  We want less milligrams of 
dust.  And it seems as if we're going to more milligrams of 
dust, with less samples.  And it's kind of like the 
company/union thing.  And what's sad at this point in time, 
it seems like the government's buying into the side of the 
company.
		And it's not a personal attack on anyone 
whatsoever, but it's just the way I feel.  And it's pretty 
obvious that that's what's going on.  And I know a lot of 
it's linked to politics.  There's a lot of various reasons 
why it is like it is, but what I'm saying is, let's look at 
the best interest of everybody in general here, and come up 
with a way that we can all live, and live to see our 
grandchildren and what not, you know.  
		Because like I said, we're still killing people at 
the 2-milligram level, and I'm really not sure, but I've 
been trying to understand.  I really don't know why anybody 
would even propose something to go to more than that.  
Because I know at our particular facility, we've set records 
on mining coal for 26 years at 2 milligrams.  And it's just 
a matter of putting the right engineering controls.  
		And one of the things, too, we work for a good 
company.  You know, I like working for RAG.  We do have our 
differences, but for the most part, they're willing to work 
with us and uphold the safety standards.  In fact, we've got 
one of the best safety records in the industry right now, 
which I'm proud of to be part of that.  And we want to be 
kept on a level playing field with the small renegade 
operators.
		And something like this actually opens the door 
for them, because we're going to hold our companies 
accountable for the standards that we want for our people, 
but these small operations, you don't see any of your 
nonunion people here today fighting for this rule, nor did 
you see them fight when the Act went, nor do you see them 
fighting any other time, because they're not allowed and 
they're scared.  We have representation, and we're proud of 
who we are and where we come from and where we're going.  
And we're proud of what we're going to keep.
		And I feel that this is the opportunity for your 
renegade operators to go out there and do what they want to 
do, and kill who they want to kill.  And like I said, 
they're willing to change coal for blood.  And at one point 
in time back in the fifties, that's exactly what happened in 
the industry.  Then the mineworkers came along, and we're 
not going to tolerate that anymore.  So we have to stand up 
for what we believe.  Any questions?
		MR. NIEWIADOMSKI:  You know, we all are trying to 
achieve the same goal, kind of.  The problem is -- and 
apparently, as Marv indicated, we're not being able to 
convince you, or you really don't fully understand that the 
approach that we're trying to use to get to that objective. 
 And one of the things that I want to mention is, just to 
let you know something, why we feel that what our approach 
is trying to get to what you guys want to do is, eliminate 
overexposure.  So let me just throw you a number, okay?
		MR. EALY:  Sure. 
		MR. NIEWIADOMSKI:  For example, in 2002 -- and we 
think this is -- we can't tolerate this -- in 2002, looking 
at operator samples, we had 2,681 sampled shifts.  That's 11 
percent of the shifts that the operators sampled -- that's 
in the DO -- were above the standard.  Exceeded the 
standard.  And that's during sampling, okay?
		MR. EALY:  No doubt.
		MR. NIEWIADOMSKI:  So you can imagine, if that's 
during sampling, you probably have similar overexposures 
during nonsampling periods. 
		MR. EALY:  Absolutely.  In fact, you probably have 
more. 
		MR. NIEWIADOMSKI:  Right.  Now, MSHA, we go out 
there, and 14 percent of our samples exceeded the standard. 
 And so we've had that over the last three years, okay?  And 
the problem is -- and let me just tell you that what we're 
looking at is, what is the best way to try to attack that?  
Because right now, we don't have the tools, okay?  Now I'll 
just tell you that in last year, 2002, we sampled over 1,100 
mechanized mining units.  We issued only 33 citations.  And 
so we've got these overexposures that aren't citable, okay, 
because what happens, we're taking averages and so forth.
		And the thing is, what we want to attack is, we 
want to make sure that -- what we're looking for is raising 
the bar, okay, on the plans.  And I don't know.  I wanted to 
ask your opinion about it.  What's your opinion of plans?  
Whether or not you feel that plans are good.  That the 
current plans, the way we approve them right now, they're 
probably pretty weak, okay?  And we recognize that, because 
we have these overexposures on individual shifts.  And in 
order to eliminate the disease, we've got to eliminate these 
on each and every shift.  And that's the objective.  That's 
what we basically are trying to do.
		And our approach is to make sure that we have a 
plan that's really designed to eliminate that.  And let me 
just say this.  And you know, right now when we go out 
there, we approve plans, and our criteria is the minimum 
production level at which we're going to say we got a valid 
sample is 60 percent of the average.  Now, true, that's not 
to say that every sample we collect is at 60 percent.  Some 
of them are higher.  But we're basically saying, hey, that's 
too low.  Let's make sure we upgrade those plans.  We want 
to make sure we get better plans.
		And that's why we've raised that production bar to 
where it's the 10th highest production in the last 30 
shifts.  Now, if you think about that, that's very high 
production, which means, when an operator's going to test 
that plan, and we're going to target -- you know, the thing 
is this, while the operator's going to be doing the 
sampling, we're going to be targeting operations to make 
sure that they're doing it right.  But the fact is this, 
what we expect, we expect a significant upgrade of all the 
plans that are out there.
		Because what happens right now, we feel, is, when 
we go out there, the operator is exceeding the parameters by 
100, 200 percent.  We want to make sure.  We test those 
plans at what is specified at those high production levels. 
 And that's the way we feel.  And those plans, as you all 
know, they have to be checked on each and every shift.  I 
don't know how much confidence you have on that, or whether 
or not that's really being done, because what we're 
basically saying is, it's pointless to do the on-shift.
		I mean, you're doing it, but if you got a bad 
plan, what are you checking?  So the question is, if you 
designed that plan that really works, and you check it every 
shift to make sure it, in fact, is in place, that's going to 
protect people.  Now, do you feel that that's the wrong 
approach?  That's not going to do it?
		MR. EALY:  You asked me a lot of questions there, 
but --
		MR. NIEWIADOMSKI:  Initially, what I pointed out 
is, I just threw out these overexposures.  What we want to 
do is, we want to eliminate those.  That's what we're 
proposing.  We're not raising any standards.  We feel that 
this is too high.  That's what's causing the disease to 
continue.
		MR. EALY:  What's too high?
		MR. NIEWIADOMSKI:  The number of overexposures 
that we're getting right now. 
		MR. EALY:  Okay.  But when you're talking about a 
plan, you're talking about your parameters for your pressure 
sprays and everything --
		MR. NIEWIADOMSKI:  Yes sir.  And you think you 
have good plans now. 
		MR. EALY:  Right.  And like I said, we hold our 
company accountable, and they want to be accountable.  But 
once again, it's going to go back to these people that don't 
even know what a spray bar is, probably, on a miner.  But 
nevertheless, back to what you were saying, I mean, Mr. Joe 
Main asked a question, I believe it was, do you really 
believe that one sample out-by in a year on a person on a 
belt line is enough to get a representative of what that 
person's breathing in a year's time?  I don't understand how 
you consider that's raising the bar.  I don't understand 
that. 
		MR. NIEWIADOMSKI:  No, I --
		MR. EALY:  Isn't that, in fact, the way it's going 
to work?  I don't understand this plan either, but I've just 
been hearing about it, so --
		MR. NIEWIADOMSKI:  Let me comment on that, okay?  
You know, we look at this data, and we basically -- if, in 
fact, we think there's a problem, we're going to go out 
there more frequently.  We're setting minimums, okay?
		MR. EALY:  I know, but I've been around long -- 
not to interrupt, but I've been around long enough to know. 
 I know what minimums mean.  Minimums mean that's what 
you're going to get. 
		MR. NIEWIADOMSKI:  But let me --
		MR. EALY:  And I'm not being smart with you, but 
unless it's black and white -- this thing is so complicated, 
there's so many loopholes in this thing.  I just can't buy 
into it.  I'm sorry to interrupt you.
		MR. NIEWIADOMSKI:  No, no, that's okay.  What I'm 
trying to explain to you is, the data that we've got here on 
our samples, on the operator samples that shows people are 
being overexposed.  And we want to stop that, okay?
		MR. EALY:  And I appreciate the fact that that's 
what you want to do, because that's what we should do. 
		MR. NIEWIADOMSKI:  Not only on the shift that's 
being sampled, because you assume that's the best conditions 
when sampling is taking place.  We want to make sure that 
happens on the majority of the shifts, which are not 
sampled.  And so just like plans, roof control plans, other 
plans are intended to protect people, we're looking at 
trying to upgrade every single underground mine ventilation 
plan, to make sure it's going to work at the highest 
production levels. 
		MR. EALY:  I don't know if that's really a yes or 
no answer, but I'll make two more points, and I'll get out 
of here.  When you think about -- we talk about making 
things optional.  If you make the use of the Airstream 
helmet optional, it's like when we went through it with the 
hearing.  You use your engineering devices.  
		Well, we all know it's hard to put Teflon onto a 
continuous miner chain than it is to maybe do some 
engineering problems with the fan just for noise or 
whatever, that type of thing.  But this is a whole different 
scenario.  I know that didn't go a lot of places.  We do 
wear ear plugs.  It's a weird scenario, but when you have to 
wear a helmet, and we give the company the option of saying, 
okay, you can wear that helmet, but you are allowed to work 
in the overexposed amount of dust if, in fact, you've used 
all the engineering devices that we feel that you've done. 
		Now, right there, we're leaving too much of a gray 
area.  I don't like that.  I think that's a loophole that's 
very gaping.  And I'm afraid that would lead to a lot of -- 
there's no teeth in it.  That's my opinion. 
		MR. NIEWIADOMSKI:  But in the proposal, that 
decision is not made by an inspector, that decision is going 
to made up by a team of experts that are going to even 
include NIOSH to decide, really, including the mine visits, 
to assess the condition and determine whether or not you, as 
an operator, has really implemented all feasible engineering 
controls.
		MR. EALY:  Well, I know our particular mine.  
We've mined coal for 26 years and set production records and 
everything else in 2 milligrams.  And we're still killing 
people at that.  I don't see why we have to go the other 
way.  I'm going to wrap up.  There's a lot of people 
talking.  Unless you got a specific question.  I'm being 
redundant here. 
		MR. NICHOLS:  No, we'll keep trying to explain 
ourselves better.  I think Dennis makes -- somebody 
mentioned we were argumentative.
		MR. EALY:  Well, I don't want to get into that --
		MR. NICHOLS:  We don't mean to be.  I know Joe 
gets frustrated when he talks about personal dust monitors. 
 But when we try to explain, we're not going talking about 
raising the 2-milligram standard, sometimes we may come 
across as argumentative, but we don't intend to be. 
		MR. EALY:  Well, that's one more thing I would 
like to get on the record.  I do support those tremendously. 
 I believe that those are a very valuable asset, but at this 
point in time we're out of time.  We've got to quit meeting 
like this, Mr. Nichols. 
		MR. NICHOLS:  All right, John.  Thanks. 
		MR. EALY:  Thanks.
		MR. NICHOLS:  Mark Sergetti?  Chuck Denowski.  I 
hope I got that last name right. 
		MR. CIENAWSKI:  Senofski.  That's spelled C-I-E-N-
A-W-S-K-I.  I'm a member of 1501 local, mine health and 
safety rep at our mine, Consol Energy.  I represent the 
union.  I've been with Consol and the union for 27 years.  
This proposal, I feel, is probably the worst in the history 
of the time I've spent with the company, worked with Consol 
with this dust ruling that I'm seeing proposed.  I'm asking 
you to drop this proposal and start all over again.  
		We need lower dust levels, and higher sampling 
time, not the reverse, which is what I'm seeing.  Coalminers 
need MSHA to protect the coalminers from respirable dust, 
and not to help the coal operators to increase their 
production, because that's what it's boiling down to.  We 
need to lessen the liability, and it'll also lessen the 
liability of the coal operators by doing this, is the way I 
feel. 
		This proposal will cause an increase in the coal 
dust-related deaths, by increasing explosions, and 
increasing black lung.  Our lives as a coalminer will be 
sacrificed by this proposal.  Rules can be only changed by 
you, fellows, and I hope you can consider that.  And if you 
don't, the coal operators will be the ones that benefit, and 
the miners will be sacrificed by giving their lives, and 
then it'll go back to the 1930s.
		We need to change the dust regs to where we have 
less milligrams of dust intake, not more.  And only the Mine 
Safety and Health Administration can do that, and you guys 
have that responsibility.  Thank you.
		MR. NICHOLS:  Thank you, Chuck.  Any questions of 
Chuck?  Thanks.  Glen Coleman?  Jeff Muhallick. 
		MR. COLEMAN:  Yes sir.  I'm Glenn Coleman. I'm a 
member of local union 2058 at Emerald Mines, and I'm just 
going to reiterate what everyone else is saying about the 
confusion of the proposed dust rules.  The common, as you 
will, rank and file coalminer is not going to understand it. 
 I don't fully understand it.  I do understand what 
everyone's been saying and telling you guys, that more dust 
and less inspections is not the answer.
		I think we need to take a long look at that again 
and change it.  I agree with you on the average, that the 
dust averaging is not the way, because just like George 
said, it doesn't -- you have a lot of shifts that you work 
the whole shift at overexposure level.  And that's pretty 
much what I've understood about it, other than it's just too 
complicated for us people at the local level to sit down, 
and go back and try to explain to our people what this is 
going to encompass.  We just can't do it.  You know, we rely 
on other people to tell us what it means, and to MSHA to 
come in and enforce the stuff, but with the loopholes that 
we feel is in this proposal, we feel that the operators are 
going to take full advantage of it.
		And right now I work every day on a CM section, 
and I know, just as well as you people know, that there's 
still dust in the coalmines.  I don't care where you go.  
There is dust there.  And in a perfect environment there 
underground, if you could ever get that, whereas, I mean, 
everything's watered, all the sprays are working, all the 
ventilation controls are in place, you're still going to 
have a certain amount of this.  But I think it can be at a 
level that we can live with, without having to use these 
Airstream helmets and things that are just nonfunctional.  I 
mean, they may work at times, but at times, they don't work. 
 That's all I have to say.
		MR. NICHOLS:  You know, we've heard a lot of 
testimony about cutting operators some slack.  If we were 
intending to cut slack, would you agree, we wouldn't be 
doing away with that averaging business?  I mean, --
		MR. COLEMAN:  I'm in agreement with you on that, 
Mr. Nichols, about the averaging thing, but I still don't 
think that one sample will give you the information you 
want, because when -- and I've been involved in some dust 
sampling in past years.  I was 28 years in the mines.  A lot 
of down in Southern West Virginia.  And when I came up here, 
I have had to work some nonunion operations and I know how 
they operate.  And it's not a healthy environment, I can sit 
here and tell you that.  And I think all you guys would 
probably know that.
		But they know when and where they're going to dust 
sample, and a lot of things, preparatory work goes on as far 
as before the sample is taken, and it's going to happen 
again under this plan.  I mean, the roadways are going to be 
watered.  I everything's going to be in place.  The 
ventilation's going to be there right on top of the fan.  
The whole nine yards to get that sample to where they want 
it.  
		And I feel that the continuous sampling way, that 
the personal dust sampler, that is the way.  It would be 
pretty much -- if you could ever get to a foolproof plan, I 
think that that would be the closest thing you could get to, 
to where you could get a true reading of what the atmosphere 
is constantly. 
		MR. NICHOLS:  I don't think we disagree with that, 
but as we say in Tennessee, we ain't got it yet.  I mean, it 
ain't here yet. 
		MR. COLEMAN:  Yes sir, I understand that, but it 
is there, and I think that with just a little bit of 
testing, from what Mr. Wade testified, that they're fairly 
optimistic that that is going to work.  And that will be in 
the near future. 
		MR. NICHOLS:  Okay.  Well, Lew knows more about it 
than I do, but I can just tell you, the last comments we had 
at the last public hearings we had in 2000 from some 
industry folks, it's just around the corner, and we ain't 
turned the corner yet.
		MR. COLEMAN:  I don't have any information on 
that. 
		MR. NICHOLS:  All right.  Thanks. 
		MR. COLEMAN:  All right.  Thank you. 
		MR. NICHOLS:  Jeff Mihallik?
		MR. MIHALLIK.  Jeff.  The last name's Mihallik, M-
I-H-A-L-L-I-K.  I work for RAG Cumberland.  I'm a health and 
safety rep for the union.  I've been there underground for 
15 years, 13 of that as face equipment.  Probably most of 
that has been roof bolting.  And I don't want to sit here 
beat this to death, but I can just picture people trying to 
work with these Airstream helmets, trying to put a roof bolt 
in, or trying to run this monitor with the tubing you have. 
 Sometimes we have to have it on both sides, because the 
methane's so bad.  And that's some things I thought about. 
		But going from the 2 milligrams to the 8 
milligrams standard, that's just boggles the mind with this. 
 You know, I'll tell you, I'm just going to bring up one 
point.  I go with the inspectors that come around, and one 
instance on the midnight shift, this was back in April 11, 
2000.  We had an MSHA inspector show up, and a guy from the 
health department.  And I have their names here.  And they 
did like a -- they'd see a spot.  They were checking long 
walls on dust.  Now, the company didn't know they were 
coming.  Nobody knew they were coming.  And they came on the 
midnight shift.  And I'll tell you, that was probably the 
worst example of dust sampling.
		We gave everybody dust samples and it was so bad, 
we came out of there, I think that's the dirtiest I've ever 
been.  And to take away dust sampling to eliminate it, I 
think we need to increase it, and to lower the milligrams.  
I believe this proposal is company driven.  I just can't see 
it any other way.  Coal mine dust led to tens of thousands 
of deaths of miners, and billions of dollars in cost of this 
disease.  And I wish you'd go back and start over again. 
		MR. NICHOLS:  Thanks.  Jerry Kosco, UMWA?
		MR. KOSCO:  My name's Jerry Kosco, K-O-S-C-O.  I 
have 27 years underground.  I'm with local 1248, Maple Creek 
Mine.  I roof bolt there.  And I've seen people, I know 
people who have black lung.  They walk around with oxygen 
bottles, take a couple steps, and they don't -- they breathe 
pretty hard.  I don't understand this rule very much, and 
the only thing I can see is that we're dropping the sampling 
from what we have now.  I think we got to have 24/7, 365.  
If you didn't hear us in 2000, don't ignore us now.  That's 
all I got to say.  I just hope that we get this rule taken 
care of. 
		MR. NICHOLS:  Thanks, Jerry. 
		MR. KOSCO:  Thank you. 
		MR. NICHOLS:  Mike Smith, UMWA?
		MR. SMITH:  My name is Mike Smith.  A member of 
local 2258.  S-M-I-T-H.  I'm from Southern West Virginia.  I 
came to Pennsylvania two or three years ago to go to work at 
Emerald Mine, probably one of the better mines I've ever 
worked in out of the 24 I've been in.  I almost have 30 
years at the face.  I've never worked out-by, but I've 
always been at the face.  I'm a miner operator by trade.  I 
guess I've been through hundreds of these dust sampling 
procedures, and about all I've seen, it's they try to get 
everything near perfect as they can, just to get by the 
pumps.  You know what I'm saying?  And which that's 
understandable, that's the way the system works.  That's the 
way it works. 
		The reason I came to Pennsylvania is to get away 
from A.T. Massey, which you touched on renegade operators.  
When I ran a miner for them, you wouldn't see the shift 
foreman or mine foreman in the mine ever, unless you were 
running pumps.  They would hang curtain up on both sides, or 
whatever they had to do.  Tell you, slow down buddy, don't 
try to break no record today, you know?  And get everything 
perfect.  Get rid of that pump, but as soon as the pump's 
gone, get it, get it, get it, you know?
		And like I said, as bad as the sampling is now, 
and the dust I have to eat now, with this proposal you're 
proposing, all I can see is increased dust levels, less 
sampling, and me breathing more dust at the face.  And 
that's about all I'd like to comment on.  It's just I don't 
see why we have to go from less sampling, you know, even as 
bad as the dust is now, to take it down another level or 
two.  And it's not going to help my health at all.  That's 
all I have to say. 
		MR. NICHOLS:  Go ahead.
		MR. KOGUT:  I think that one way of summarizing 
what we were trying to propose in this rule, is that we want 
to ensure that those controls that you were talking about, 
the curtains and everything else that they did on sampling 
days, that those would become part of the plan, and they 
would have to be, in effect, every day, not just on days 
that you're sampling.  So I've heard quite a few of you talk 
about continuous monitoring, and this is a type of 
continuous monitoring, too.  
		It's true that we're not focusing here on 
continuously monitoring the dust directly, but by monitoring 
the controls that you have in place, that's something that 
the miners that are working at the face, they can see if 
that curtain's there, they can see whether those controls 
are in place.  And that's another way of continuously 
monitoring what's going on.  So do you see any loopholes in 
that approach?
		MR. SMITH:  Yeah.  I see a lot of loopholes in 
that approach, because who's going to be there to monitor 
that?  I work at Emerald now.  I've got pretty good 
protection under UMWA and them people try to do a good job 
as can be done in a hostile environment.  But at A.T. 
Massey, who's going to be down there.  I'm not just singling 
those people out.  At any nonunion operation, small 
operation, who's going to be there to make sure those 
controls are in place?  You know what they tell you when you 
want to -- they have told me, when I went down and tried to 
pick up me some air so I could see to load the car, I have 
to shine my light on the boom with the miner so the car man 
can see to pour the chain.
		You go down there and try to pick your air up, you 
don't have no help from a miner down there.  You don't have 
hardly just enough men to run the coal.  And you go down 
there to try to get you some air, and the boss say, what's 
the matter?  I was telling him what, I can't hardly see up 
there, I need a little bit of air.  If you like your job, 
you better get back up on there and kick some of that coal 
out.  I'll get you some air.  He might hang one curtain.  He 
might not.  You know what I'm saying?  You have no 
protection, and you have no monitoring.
		I don't see who's going to be monitoring that 
situation now.  Are you going to be there to hang my 
curtain?  Or have MSHA there every day to make sure that 
curtain's in place?  I don't think so.  When the man's not 
there, it ain't gonna happen. 
		MR. THAXTON:  Wouldn't you say the same thing's 
going to be true, though, of a continuous dust monitor?  I 
mean, if somebody doesn't want to use a continuous dust 
monitor properly, then you're not going to get readings off 
of that either.
		MR. SMITH:  How do you mean, not use it properly?
		MR. THAXTON:  What's to tell an operator that he 
has to use a continuous dust monitor appropriately, the same 
as not putting up the curtains when you are not there?
		MR. SMITH:  Well, I think that if you had that 
monitoring device, that personal monitoring device, the way 
it's been explained to me, that nobody would have to monitor 
it.  It would give you an actual reading of the dust in that 
area at that time, and it would be on your side just like a 
cap light. 
		MR. THAXTON:  But what's to make the mine operator 
say, yes, I'm going to put that on everybody on every shift, 
if we're not there to see it?
		MR. SMITH:  What's going to make them?
		MALE VOICE:  Make it a law. 
		MR. SMITH:  By making a law.  Somebody passing a 
law to --
		MR. THAXTON:  And we're passing a law now, trying 
to say on this proposal that you have to have those controls 
in place, which is what he says you can look at. 
		MALE VOICE:  Get a lawyer. 
		MR. SMITH:  I'm for the personal monitoring 
device, but like I say, the system we got now is bad, but 
the one you're proposing is much worse, from my viewpoint at 
the face.  That's all I have to say. 
		MR. NICHOLS:  Okay, Mike.  Thanks.  Jim Lamont?
		MR. LAMONT:  Good afternoon, I guess.  My name is 
Jim Lamont, L-A-M-O-N-T.  I'm an international 
representative of the United Mine Workers of America.  After 
listening to a lot of testimony a lot of the folks had to 
say here, and just after Mr. Smith, a lot's being talked 
about the personal dust monitor, and it's my understanding 
that NIOSH has brought that today.  And I would like to at 
this time ask if they could show this group the PDM 1, and 
maybe explain a little bit about it. 
		MR. THAXTON:  Are you saying, show it to the 
panel?
		MR. LAMONT:  To the folks in this room, the panel, 
everybody here.
		MR. THAXTON:  He's talking about the miners.
		MR. LAMONT:  I know a lot of our folks have not 
seen this thing.  A lot of people have heard about it.  But 
I think it would be good, if it is here, if we could get a 
little understanding of what it looks like and what it will 
do. 
		MR. NICHOLS:  Who's got it?
		MR. VOLKKWEIN:  My name is John Volkwein.  I'm a 
research scientist with NIOSH.  V as in Victor, O-L-K-W-E-I-
N.  As you've heard Dr. Wade mention, we've been working on 
this development for several years.  The idea was to get 
something that would fit into a cap light battery case, that 
would also give you an accurate, continuous measurement of 
your dust exposure from the time you put it on till the time 
you take it off. 
		It's designed to tell you, on a continuous basis, 
through a readout, what your dust concentration is from the 
time you start your shift to any point in time.  It will 
also tell you what the dust concentration you have been in 
for the last 30 minutes has been.  And it will also tell you 
-- it's programmed from a computer on the surface, so you 
have no control of turning it on or turning it off.  Once 
it's programmed, it's going to start at a set time and it's 
going to finish at a set time.  Your program shift.
		If you program it for your shift duration, it will 
also project what your end-of-shift exposure is going to be, 
based on the amount of mass that it's seen to that point in 
time.  So you can sort of see ahead as to whether or not 
you're going to meet a certain standard or not.  The device 
is worn just like a cap lamp.  This goes on your belt.  The 
inlet for the dust is in your breathing zone.  It's right 
here in the side of your cap lamp.  The sample travels 
parallel to the cap lamp cord, into the instrument.
		The device that determines whether it's respirable 
or nonrespirable dust is located right here.  It's a 
cyclone.  It separates the dust.  The dust is then 
transported to a small filter that's located inside of the 
device.  It's a small filter in here.  And the beam, the 
vibrating beam that Dr. Wade mentioned is a part of that 
filter device there.  It measures the amount of mass that's 
been deposited on that filter.  Its battery capacity is such 
that it will operate for 12 hours.  The cap lamp battery is 
separate from the dust monitor batteries.  They're two 
independent power sources in here, so you don't have to 
worry about one interfering with the other.
		It also has a port for the remote control for your 
miner.  The remote control functions.  Since all remote 
controls are not universal, you don't have all the different 
attachments to connect one to the other, but this is the 
PDM.  As I said, it weighs about as much as a cap lamp 
battery, and it weighs less than your regular cap lamp 
battery and a dust pump, if you had to wear them both 
together.
		MALE VOICE:  Does it work now?
		MR. VOLKWEIN:  This model does not.  We are 
expecting delivery of six units that will work next week.
		MALE VOICE:  So it's not two years down the line? 
		MR. VOLKWEIN:  I will put a caveat in that, in 
that we've done the laboratory testing on it and it looks 
very promising.  But you guys know, more than any of us, 
that when you take something from the laboratory and try to 
put it underground, lots can go wrong.  We've tried to 
design this with a lot of years of underground experience in 
mind.  We've had Joe Main and Joe Lamonica from BCOA.  
They've all gone over this with a fine tooth comb, and we've 
really worked hard at developing a mine-worthy package for 
this.  And so we're optimistic, but I don't want go out and 
say it's ready tomorrow to go into a mine.  We're close.  
We're very close. 
		MR. NICHOLS:  All right.  Thanks.
		MR. LAMONT:  I would like to address a few 
sections of the proposed rule, starting off with 7201, 
"Sampling; General and Technical Requirements."  The 
operator sampling requirements are outlined in this section. 
 The Agency has specified that a certified person must 
perform such sampling, and the individual must pass an MSHA 
examination on sampling of respirable coal mine dust. 
		There are also requirements for various sampling 
parameters, including where the device is to be worn; how it 
is to be operated; the existence and utilization of a 
control filter; meeting or exceeding the verified production 
level; maintaining the approved dust control parameters at 
levels that do not exceed 115 percent of the specified 
quantities; the application of sampling procedures when 
PAPRs are required; and when the Agency will void samples. 
		The operator must also notify miners and the 
representatives when such sampling will occur, in the event 
that they would like to observe the process.  Finally, the 
operator must, at the district manager's request, submit the 
date and time such sampling is to begin to the Agency."
		A review of the text in this section reveals so 
many exemptions exist that it is almost impossible to 
follow.  There are at least six separate occasions where the 
subsection is excluded from application, based on the impact 
other areas of the proposed rule would have.  This serves no 
other purpose but to confuse the issue.  There is no attempt 
by the Agency to adhere to a plan language format, as 
required by law.  Example.  7201(h) says, "Paragraph D of 
this subsection does not apply if sampling to conform with 
the requirement of 7215 or 7220(d)."
		Go through 7215(a) through (c) where 7215(c) sends 
you to the CTV citation threshold value listed in table 70-
2, that corresponds to the applicable dust standard that 
takes more of a degree than most of us possess.  7201(h) 
then sends you to 7220.  7220 sends you to 7206(a) (b) (d) 
and (e).  And then all around the proposal.  
		Why didn't the Agency just simplify the whole 
issue by mandating the personal dust monitor for its 
intended use?  The dust advisory committee recommended 
miners be given a greater role in dust sampling programs.  
They reported, "The miners should have the right to 
participate in sampling activities that will be carried out 
by the employer for verification of dust controls, at no 
loss of pay."
		The committee also recommended that "miners 
representatives should receive training to conduct 
respirable dust sampling, paid by the employer.  Including 
this in the rule would have addressed two issues miners have 
raised for years; more sampling and greater participation by 
miners."  The Agency did not incorporate either into this 
proposed rule.
		NIOSH also urged a greater role in the sampling 
program for miners.  In the criteria document they stated, 
"Miners must be actively involved in ensuring their health 
is protected through proper work practices and compliance 
with applicable law.  Their active involvement should 
increase their confidence in the effectiveness of the dust 
control program."  The Agency has done just the opposite.  
They have managed to reduce sampling and undermine the 
confidence of miners in this single proposal.
		Moreover, the language, while setting sampling 
parameters, does not require the operator to actually take 
any respirable dust readings.  In fact, the rule itself does 
not require the operator to take any dust sample, with the 
exception of a verification sample, unless the Agency finds 
the operator to be out of compliance with the approved dust 
control plan.  The resulting action in that event would be 
for the operator to take quarterly samples to demonstrate 
compliance.
		The Agency's preliminary regulatory economic 
analysis establishes that 85 percent of mine operators will 
not be required to perform such sampling requirements.  
Therefore, from a health and safety perspective, the 
proposed rule is ineffective.  The Agency need not hide 
behind an elaborate set of mandates that carry no weight in 
enforcement.  The presumption by miners should be that this 
section of the proposed rule will never apply in their 
operation.
		Likewise, requiring an operator to notify the 
miner or the representative of their plan to conduct 
sampling is of little significance, unless they suffer no 
loss of pay, as described in section 103(f) of the Mine Act. 
 Neither miners nor their representatives are compensated 
for observing such procedures, and a proposed rule does not 
offer to initiate such a  requirement.  The financial loss 
alone represents a hurdle too large for miners to become 
involved in any meaningful way.  The full participation that 
miners have demanded in the dust sampling process at 
countless hearings is not achieved by this Agency gimmick.
		7202.  "Approved Sampling Devices, Maintaining and 
Calibration."  Again, the Agency is giving the option of 
using the personal dust monitor.  I see no incentive for any 
operator to use a personal dust monitor.  With all the work 
and expense of taxpayers' dollars, why didn't the Agency 
just simplify the whole issue by mandating the dust monitor 
for its intended use?
		7202(b) says, "Sampling devices not approved."  
Sampling devices.  That's just a little change.  204, 
"Demonstrating the adequacy of dust control parameters 
specified in a mine ventilation plan.  Verification 
Sampling."  This section establishes the requirements for 
verification of the ventilation and dust control plan.  It 
requires that the dust control parameters for each MMU be 
included in the plans, and be verified to control respirable 
dust through sampling.  The parameters for dust control are 
currently contained in a number of plans.  
		The sampling verification has to demonstrate that 
the plan parameters are adequate, through a complicated set 
of formulas, tables, and dedications which are with a high 
level of confidence that the equivalent concentration of 
respirable dust and respirable quartz can be maintained at 
or below the verification limits, as determined by meeting 
the critical values of table 71 of the rules. 
		This overly complicated and deceiving process 
means that an operator's plans can have dust levels at 
ranges from less than 1 milligram up to 8 milligrams in the 
approved dust plan.  Under the rule, the plans could be 
approved using environmental, engineering controls, or PAPR 
respirators and/or administrative controls if MSHA approves 
those in lieu of the environmental engineering controls.  
		The proposal states that the operator will do the 
sampling for the verification plan.  This represents a 
complete change from MSHA's 2000 proposal, which required 
MSHA to conduct a sampling to verify the dust control 
parameters, with paid miners' representatives traveling 
during the verification. 
		Proposed 7204 states that "the operator must show, 
with a high level of conference, that the equivalent 
concentration of respirable coal mine dust and respirable 
quartz dust can be mined at or below the verification 
limits."  70.2 offers no definition for what a "high level 
of confidence" is.  That is contained in a preamble. 
		The plan verification sampling process is far 
different than recommended by the advisory committee and 
miners, and the results can be contrary to the regulations 
of the Mine Act and other findings, including NIOSH.  The 
recommendations of miners and the advisory committee was 
that MSHA, not the operator, conduct the initial plan 
verification.  Miners, the advisory committee, NIOSH, and 
the Mine Act called for lowering the dust levels in the mine 
atmosphere, with 2 milligrams being the maximum in any case, 
not increasing the dust concentrations, as this proposal 
does. 
		The complicated formulas, which were opposed in 
the rulemaking in 2000, need to be replaced with 
straightforward process.  Meaning, if a standard is 2 
milligrams for a mining unit, the plan should be approved at 
a safety margin below that level, such as 1.67 milligrams, 
and 2 milligrams should not be allowed to really be 8 
milligrams in any deceiving way, as the proposed rule does. 
		This is clearly an area where continuous dust 
sampling should be required to help resolve a plaguing 
problem.  Continuous dust monitoring devices could be 
employed to track dust conditions on each shift, and quickly 
enable the plan verification process to have needed 
information to determine if the parameters are working, or 
need change before the plan is approved.
		7205.  "Verification Sampling when Required.  Time 
For Completing."  Proposed 7205 establishes requirements for 
when the operator sampling would have to be verified.  
Following implementation of the rules, operators would have 
at least 12 months from the date of the rule to complete 
verification sampling in all previously approved ventilation 
plans.  
		New MMUs would be required to be verified through 
a two-step process.  First, the operator would receive a 
provisional approval from MSHA, by a phone call or an e-
mail.  Second, the operator would have 45 days after 
provisional approval to verify the adequacy of the plan 
through the operator, not MSHA sampling. 
		MSHA can also grant 30 additional days to complete 
the sampling.  If a district manager determines that the 
approval plan parameters are no longer inadequate, MSHA may 
require additional controls or another verification plan.  
Under this proposal, operators would have 12 months to gain 
approval of the dust plan on that MMUs, and over two and a 
half months for new MMUs.  It allows MSHA's absence from the 
mine.
		This verification process is far too long.  If 
continuous dust monitors were used, this process could be 
expediated.  The considerable data available from these 
devices would allow for faster and better determinations 
about dust control efficiency.  Most importantly, miners 
could be protected from unhealthy dust each shift, while 
adequate controls are being put in place. 
		I wanted to thank you for showing the PDM 1 to the 
group here and with the explanation, and I know all the 
folks behind me, and all the folks you people will be seeing 
during the next several hearing.  All work in coalmines, all 
have a substantial amount of years in the underground 
coalmines.  They know what it's all about.  They know what 
it's like breathing dust.  They know what it's like working 
in low coal versus high coal.  And some of these proposals 
are just ludicrous.
		I would like to ask this panel here how many of 
you, and how many people that were instrumental in writing 
this proposal, how much mining experience you actually have. 
		MR. NICHOLS:  Well, Jim, if you ask how much 
mining experience we can draw on, that's different from 
asking the panel how much mining experience they have.  I've 
got about 40 years worth of mining experience, counting my 
MSHA time. 
		MR. VOLKWEIN:  Or working underground in a 
coalmine. 
		MR. NICHOLS:  In a metal and nonmetal mine.  And I 
was the administrator for coal for 10 years, and traveled a 
lot underground.  The leadership of the organization 
probably has a combined total of 100 years of mining 
experience. 
		MR. VOLKWEIN:  What I'm talking, Marvin, is actual 
time, down and dirty, getting black, breathing this dust, 
putting a lifetime in the mine, looking forward to 
retirement, and get to that point in time and not have any 
health.  That's the whole issue here.  I mean, this whole 
group is out to protect the most precious valuable resource. 
 That's the miner himself.  That's what you people are 
charged to do.  And I find it a little disturbing and 
difficult to see how someone, if you haven't spent a 
considerable amount of time underground, knowing what the 
people behind me go through on a day-to-day basis, and I can 
say I know, because I've put 23 years in underground.  It's 
a living.  It's a good living.  It's a tough living.
		I watched my dad die from lung disease.  I stood 
over his bed while he died.  I don't want to see anybody 
ever in my lifetime have to go through that again.  And to 
see something like this, in this day and time, with the 
technology we have, and have this rule shoved down our 
throat in such an expedient time frame, it baffles me.  The 
taxpayers out there, they put a lot of money into this 
effort to get this PDM 1 put out there.  I know NIOSH with 
Lew.  I know the BCOA.  I sat in on these meetings.  The 
coal operators.  Everybody wanted this thing, and its 
intended use, 24/7, 365 days a year.
		But now what's in this rule, it's not mandating 
it.  It's an option.  And if I was a coal operator right now 
with these renegade operators, I sure as hell wouldn't want 
it with the option that's out there.  This thing is almost 
ready to be put in use.  Why can't we just take a few steps 
back, and wait, go back and revisit this rule and do it over 
again, and satisfy the demands that the miners have been 
asking for the last 20 plus years?  And that's all I have to 
say. 
		MR. NICHOLS:  Okay.  Thanks for your comment.  
Larry has an issue on the demonstration of a dust monitor 
that we need to get something in the record on. 
		MR. REYNOLDS:  Yeah.  I just wanted to say, we 
need to find out exactly what monitor that was, and get a 
picture of it or something, so when somebody who was not in 
the room is going back over the transcript, we'll know 
exactly what equipment we were talking about, and where it 
was in the research process.
		MR. NICHOLS:  It's 12:30.  We started with 33 
folks signed up to give comments, and we have 12 people 
left.  We could take a break, or just keep going.  Take a 
lunch break.  Anybody?  I'd be inclined to keep going, but I 
know some of the folks have asked for lunches to be 
prepared, so you can go.  Feel free to go get the food you 
ordered, if you want to, but we'll keep taking comments 
here.  I think I have more than 12.  Okay.  Gary Bellitz.  
Does the court reporter need to take a break?  Okay, let's 
take a 10-minute break, but let's be started back here at 20 
to 1:00.
		(Whereupon, a brief recess was taken.)
		MR. NICHOLS:  Okay.  Let's get started back.
		MR. BILLETZ:  Hi.  My name's Gary Billetz, that's 
B-I-L-L-E-T-Z.  I'm a member of local union 2258.  I work at 
RAG Emerald Mine, and I'm a mechanic on the long wall.  And 
I'd just like to start off.  Well, I say that the dust 
sampling today -- and the one you propose is even worse than 
the one we have today because it does not give an accurate 
measurement of the dust that I eat every day.  The day 
you're there, maybe conditions are better.  Maybe the belt 
line ain't as dusty that day.  Maybe the shields ain't 
putting out as much dust that day.  So we get a good sample. 
 -- comes by, we get a bad sample.  What happens?  Well, we 
got to keep retesting these guys until we get a good sample. 
		The variations on the long wall change so 
dramatically from pass to pass, the only way you're going to 
get an accurate sample of how much dust I eat every day is 
to sample me every single day, because if the belt goes 
down, just to take an example.  The belt goes down 30 
minutes.  When it starts off, now since we have high 
velocity belter come up to the face, it's so dusty you can't 
see till the belt gets wet again.  And more on the face 
breathing now.  And maybe you're not sampling that day, so 
you don't see that.  And then the shields set for 30 
minutes.  Well, they get dry on top.  You start pulling 
shields, it's so dusty you can't see either. 
		But you miss this when you only take a sample just 
now and then.  You're never going to pick it up.  Maybe if 
you're lucky enough the day it happens, you get it.  Well, 
nothing happens.  Well, let's resample again till we get a 
good one.  Well, then they make sure all conditions are 
right.  They make sure the belt's flooded with water.  They 
make sure out-by people does not trend (phonetic) the scoops 
into the track heading (phonetic) to create more dust to 
bring down on us so we can pass our sample and everything is 
correct.  They want to make sure everything's perfect.  
Well, once we pass it, it's back to square one again.  Well, 
it's so-so, we'll see if we can -- tell y'ins come back 
again, and maybe we get a bad sample again and something's 
done.  But nothing ever changes. 
		The only way we're ever going to get a true 
accurate sample of how much dust I can eat, every one you 
y'ins I'm looking at here, is to test me every single day, 
and then you can get an average.  The one or two samples, 
one time the inspector gives me a pump, that's no average.  
That's just a little short window in a whole year of what I 
took in for one little day.  The variables could have been 
great that day.  Another day they could have been miserable. 
 So the only true way you're ever going to test me 
accurately is every single day. 
		So that's why I don't like your dust parameters 
now, and I don't like your proposal ones at all, because 
it's fewer testing, and that's not going to prove how much 
dust I really eat.  You put a pump on me every day, I'll 
show you how much dust I eat every day.  Y'ins don't 
understand.  There's too many variables in the mine that 
happens every single day that cause the dust to be 
different.  Maybe the air's dryer that day.  Maybe when the 
shearer's cutting, the coal's actually dryer, because it 
actually dries out sometimes, and it gets wetter in other 
places going through the mine.  You might be cutting on a 
shear one day, and that dust is just terrible, you can't see 
nothing.  The next day, it might not be too bad, depending 
on the wetness of the coal seam. 
		So there's a lot of variable factors that go into 
how much dust I actually take in every single day.  And 
unless you test me every day, you're not going to find out 
what that is.  And especially when the MSHA only comes like 
once every couple of months and says, here's a pump one day. 
 Well, maybe I had a good day, maybe I have a bad day.  
Well, if I have a bad day, we just keep retesting till I get 
a good day.  So that don't prove to me that it's working.
		MR. NICHOLS:  You don't think you can design a 
mine plan that would ensure compliance each day?
		MR. BELLITZ:  No.  The reason being as there's too 
many variables.  The company tries to do the best they can, 
but you don't know how dry the coal is that day, you don't 
know if the belts going to go down, and then that belt 
starts up since you forced the belt error on us now, and 
when that belt first fires up, okay, sir, belt's 10,000 feet 
long.  You got 10,000 foot heading of dust coming down on 
the miners on the long wall face, because you wanted it that 
way.  And until the belt gets wet, we got to breathe that 
dust until that belt gets wet again.  Then it's okay again.
		Then, like I told you about the shields, then you 
got the shields.  They dry out all the time.  You start 
pulling shields to dust the spores off of them.  Maybe we 
got slight toxic dust ain't too bad that day, because the 
slate's up there, and the rock does not grind up as easily 
as the coal dust from the shields pulling in.  So there's a 
lot of factors.  Maybe the operator runs faster that day.  
Maybe its bits are dull that day.  There's a lot of factors 
go into it. 
		If you ever wanted a true sample, I don't know why 
y'ins ain't tried to test somebody every day for a month or 
two months, just to see what the results would be, instead 
of just coming out and saying, well, we'll just take one 
dust sample now, and that'll do it.  The operator can verify 
he's in compliance that one time, and everything's okay.  
Well, that ain't the way it works in the coalmine.  It would 
be if we was in this room where the variables rarely change, 
but in a coalmine it's an ever-changing atmosphere.
		I don't know if y'ins ever been on a long wall and 
actually seen it operate, but if you go down on pass on a 
shearer and you don't hose the face, there's that much float 
dust  laying on every tow, so tell me how much dust is 
actually on that face.  One sample ain't gonna give it to 
you. 
		MR. NICHOLS:  Okay.  Under your scenario, if we 
sample every day we're going to know where you're at.  Then 
what's the answer?
		MR. BELLITZ:  That's where you're the enforcement 
agency that's supposed to enforce what we can do to get us 
in compliance. 
		MR. NICHOLS:  That's what we're trying to do, is 
develop plans that would give us some reasonable assurance 
that all these variables you're talking about are covered. 
		MR. BELLITZ:  Well, you can't do it then by sample 
once every quarter, like you got proposed there.  Ain't that 
what you got proposed?  If your district manager mandates 
it.  So how's that going to prove to how much dust I 
actually took in, if I get sampled once in a quarter?  
There's just no way.  The variables in a mine are too great 
to do it that way.  It is.
		MR. NICHOLS:  You guys got any questions or 
comments?  Okay.  Thanks. 
		MR. BELLITZ:  Okay.  Thank you. 
		MR. NICHOLS:  I have a name that looks like Leon 
Musconi.  I know I mispronounced that. 
		MR. MOSCALINK:  Good afternoon.  Director Nichols, 
panel, my name is Leon J. Moscalink, Junior, M-O-S-C-A-L-I-
N-K.  I'm the chairman of the mine health and safety 
committee of the UMWA local 1248, which represents 
classified employees at Maple Creek Mining, Inc.  I'm here 
to talk today about the newly proposed dust rule.  Coal dust 
has been killing coal miners for over a century.  The latest 
killing was in Alabama on September 23, 2001, at the Jim 
Walters Number Five mine, in which 13 miners died in two 
methane explosions fueled by coal dust.
		Coal dust was what eventually brought about the 
Federal Mine Safety and Health Mine Act of 1969.  In that 
decade, this area of the country witnessed two horrific 
methane explosions at coalmines, in which 115 coalminers 
died because of coal dust fueling methane explosions.  I'm 
referring to the Robena 1962 explosion, and the Farmington 
Number Nine 1968 explosion.
		The Mine Safety and Health Administration, MSHA, 
was formed and became part of the Department of Labor after 
the Farmington mine disaster shook this nation so hard that 
Congress enacted the Act, and began that Act stating that 
"this nation must protect our most precious resource, the 
miner."  As I stated in the year 2000 hearing before this 
panel, our most precious resources, the miners, are the ones 
that go down.  We bring that precious fuel up out of the 
ground.  We're the ones that operate the machines.  We're 
the ones that breathe the dust.  The black dust that, once 
it's in, it stays in. 
		One of us dies every six hours.  One of us pays 
the ultimate price every six hours.  Think about it.  Every 
six hours in these here United States, a coalminer dies from 
black lung.  In Beckley, West Virginia, this country built 
the MSHA Academy to train miners who had become and have 
become state and federal inspectors.  And that academy has 
trained myself, a representative of the miners at one of our 
nation's underground coalmines.  I have been very fortunate 
to have received training at the MSHA Academy.
		At the academy displayed on its walls are pictures 
of mining disasters.  The Farmington disaster of 1968 is by 
itself, as you go to the cafeteria.  This new proposed dust 
rule, with its hidden and complicated formulas for 
determining respirable dust levels is not what Congress 
enacted in 1969 to protect our most precious resource, the 
miner. 
		This new proposed dust rule will allow coalmine 
operators to raise the respirable dust limits to more than 
double the maximum of 2 milligrams of respirable dust that 
Congress set when it enacted the Act in 1969.  This will be 
done when the coal operators tell MSHA that they've 
exhausted all their engineering controls.  And it doesn't 
take a rocket scientist that allowing respirable dust to 
increase, you're going to allow float coal dust to increase.
		What do you want?  Another Jim Walters?  Another 
Robena?  Another Farmington?  What do you want?  At the 
hearing on the dust rules in August of 2000, Mr. Ron Schell 
spoke of PAPRs being rated by NIOSH as having a protection 
factor of 25.  Mr. Schell said that he would accept that, 
and said he'd give it a factor of 2, thus allowing 4 
milligrams of respirable dust downwind of the shearer 
operator on the long wall.  More float coal dust to go along 
with the increased respirable coal dust.  Now MSHA's going 
by a factor of four, and let 8 milligrams of respirable coal 
dust be suspended in the mine atmosphere where the miners 
are going to be working. 
		That was the level of coal dust in 1969, when the 
Act was enacted by Congress.  I guess we're going to fall 
backwards in safety instead of leaping forwards.  This is 
not protecting the most precious resource, the miner.  The 
administrative controls in this proposed dust plan will not 
only affect the miners working on the long wall sections, 
but will also be shifted to the continuous miner sections, 
beltline, and outby areas of the coalmine. 
		When the UMW testified on August 7, 2000, at the 
hearing of the dust rule, you, Mr. Nichols, said that you 
believe in other areas of the coalmine, engineering controls 
could be applied to eliminate overexposure of respirable 
dust.  Plus you said that you were talking about only 
persons downwind from the shearer on the long wall.  Can you 
imagine a shuttle car operator having to operate a shuttle 
car with an Airstream helmet on?  Imagine a roof bolter 
bolting a cut with an Airstream helmet on, when he has to be 
looking at the top, the ribs.  It's absurd if one would even 
think about using administrative controls on a continuous 
miner section. 
		The only way to keep us, the miners, out of 
harmful respirable dust is the PCDM or the PDM.  That is 
just about ready for use, and we've discussed that and we've 
seen a prototype of it today.  The PCDM will let a miner 
know exactly how many milligrams of respirable dust he's 
breathing.  This will protect our most precious resource, 
the miner.  But MSHA, as I understand, in this new rule is 
going to let the coal operators choose if they want to like 
the miners use them?  What is this?  You're going to let the 
miner operators decide if they're going to let us use the 
PDM?
		The last time we testified, I commented on the 
full-shift testing.  As every other coalminer today working 
on the ground, nine and a half to ten hours of mandatory 
being underground is the norm.  Not eight hours.  Nine and a 
half to ten hours.  Not only for face workers either.  Out-
by people.  To sample four, six, or eight hours is not a 
true sample of what we're breathing in on the ground at our 
workplace. 
		So that is what I testified at the last hearing.  
I have yet to see loading crews getting sampled while 
cutting overcast, guys up on the bench cutting wall.  I have 
yet to see that.  This is where the PCDM will come in 
crucial in letting the miners know how many milligrams of 
respirable dust we're in while cutting overcast.  Before I 
close, I'd like to reflect on some testimony that three of 
my brothers testified to the 2000 dust hearings. 
		My brother Larry Kuharcik asked you to do the 
right thing back then.  He asked you if you would go back to 
the table, sit down at the table and rewrite the proposal.  
Obviously, you went to the table, but forgot to do the right 
thing.  You forgot about protecting our most precious 
resource, the miner.
		My brother Tim Rhobluck asked you back in 2000, if 
you were to leave, and leave this industry, would you leave 
it in a better condition than you found it?  Brother 
Rhobluck stated that that's what he's trying to do, leave 
this industry in a better condition than he found it.  This 
new dust rule is not going to leave this industry in a 
better condition.
		And brother Mike Caputo, a member of the West 
Virginia legislature, reverberated in 2000, stating that 
"the dust rule is a tool that's supposed to protect miners' 
health and safety.  It's not a tool to protect the 
operator's bottom line."  And I'm going to repeat that.  
"The dust rule," brother Caputo said, "is a tool to protect 
the miners' health and safety."  Any rule that comes down by 
MSHA should be a tool that protects the most precious 
resource, the miner, not protecting the coal operators' 
bottom line.  That's what Congress enacted in 1969.  Thank 
you.
		MR. NICHOLS:  Thank you.
		MR. KOGUT:  I just wanted to address one of your 
comments about the extended shifts, but also bring in 
something else you said about the complicated formulas that 
are in the rule.  Now, sometimes the reason that there are 
some formulas in the rule that might appear complicated are 
to address things like extended shifts.  
		For example, in the verification sampling, we 
tried in the proposal to take account of extended shifts by 
adjusting the concentration to get at the equivalent dose 
that would be obtained over eight hours, but recognizing 
that when a person is working ten hours, he or she is 
accumulating more dust in his lungs than he would if he was 
working at the same concentration for just eight hours.  So 
what we're doing in the verification part of the sampling is 
adjusting the concentration that you get over that ten-hour 
shift.  And for verification sampling, it is a full-shift 
sample, so we'd be sampling for the full ten hours.
		But that concentration, say that concentration 
comes out to be exactly 2.0.  Okay.  The problem is that 
even though the concentration is 2.0, that miner, if he's 
working for 10 hours, is accumulating more dust in his lungs 
at that 2.0 concentration than he or she would be if they 
worked only 8 hours at that concentration.  And so the 
reason for that somewhat complicated formula in converting 
to an 8-hour shift equivalent is that what we're effectively 
doing is adjusting the measured concentration that we get 
upwards by 25 percent.  Because what we want to be 
regulating is the total dose that the miner receives over 
that extended shift. 
		So the effect of it is like if you measure over a 
10-hour period the average concentration as being 2.0, we 
would actually be adjusting that measurement upwards by a 
factor of 25 percent, which is 10 divided by 8, and 
multiplying that by the concentration that we get for that 
full shift, so that the concentration that we'd be looking 
at then is 25 percent greater than 2.0.  And so that would 
not meet the verification limits, and so we would make sure 
that the plan was effective at a lower concentration than 
that.
		So in other words, what we're doing by that 
formula is being more protective, and the reason for it is 
exactly what you said, the person is working a longer period 
of time at a given concentration. 
		Mr.  MOSCALINK:  Yeah, but now the inspector is 
putting dust pumps on the miners, we're coming in, by the 
time the inspector gets here they're still not loading coal. 
		MR. KOGUT:  No.  I'm talking about in the 
proposal, though. 
		MR. MOSCALINK:  In the proposal, right. 
		MR. KOGUT:  On the sampling days where the plan 
has to be verified, those would be full-shift samples.  And 
moreover, they would be adjusted to reflect the fact that a 
miner working for 10 hours is accumulating more dust in his 
lungs than a miner working at the same concentration for 8 
hours.
		MR. MOSCALINK:  Yeah.  Like I said, right now we 
should be testing 10-, 12-hour shifts.  We're not.  Now 
you're saying in this new proposed rule, that's what you're 
going to do, because of the verification plan. 
		MR. KOGUT:  Yeah.  The verification samples will 
be taken over a full shift, and all of the concentrations 
will be adjusted to reflect the higher dose that you get 
over an extended shift. 
		MR. MOSCALINK:  I can't comment on anything else. 
		MR. NICHOLS:  We're going to have do some more 
work. 
		MR. MOSCALINK:  A lot of work, Marvin.  A lot of 
work.  A lot of work. 
		MR. NICHOLS:  We set the level up here for plan 
verification, but because we're not sampling full shift 
here, you need a lower standard.  Is that what you're 
saying?
		MR. KOGUT:  No.  I was just saying that when 
you're doing the verification sampling -- the basic point I 
was making is that under the proposal, we are trying to 
address the concern that you raised about extended shifts, 
which we feel is not being adequately addressed under the 
current regulation.  Under the proposal, we are trying to 
address that concern about the extended shifts and the 
higher dose that you get when you're working an extended 
shift.
		But in order to do that, that's what gives rise to 
some of the complications that you also expressed a concern 
about.  So in other words, in trying to address one of your 
concerns, in order to do that, we're adding some 
complication, and that's another one of your concerns, 
but --
		MR. MOSCALINK:  It's just the brother before me 
said, when he comes down that pan line, he sees the dust on 
the shield.  You know, we're coalminers.  And not to go 
ahead and hack on you about your formula, what we see is 
what we see.  We see coal dust.  We see coal dust on 
shields, we see coal dust on the belt line, we see coal dust 
on the equipment.  When the pumps go out, we're still eating 
and sucking that dust.  That's the main thing, you know.
		And now you're going to go ahead and you're going 
to allow me to suck more dust, to make sure that we have it 
right.  I mean, you know I'm sucking 2 milligrams of dust.  
Now you want me to suck four more hours of dust.  Once you 
know that I'm sucking 2 milligrams, you shut it down, and 
you go ahead and you cite, and you fix it.  That's what 
coalminers understand.  When I'm overexposed, don't keep 
overexposing me.  You know I'm overexposed.  Stop it.  And 
this rule isn't going to do that.  It's not going to do 
that.  Because you're going to overexpose me up to 8 
milligrams.  If you can't get it with engineering controls, 
you're going to go with administrative controls.  And you're 
going to bring in more float coal dust.  Do you understand 
that?
		MR. KOGUT:  I understand your point, yeah. 
		MR. MOSCALINK:  Okay. 
		MR. KOGUT:  I don't think that that's -- that's 
certainly not the intent of the proposal, though, to 
increase your exposure.  The intent of the proposal is 
really to decrease your exposure.  If you have reasons to 
think that it's not going to do that, that's what we want to 
hear, but the intent is certainly to bring the exposures 
down, not to increase them. 
		MR. NICHOLS:  Okay.  Thanks.  Bob Santella?
		MR. SANTELLA:  My name is Bob Santella.  That's S-
A-N-T-E-L-L-A.  I'm on the safety committee of local 2258 at 
RAG Emerald Mine.  I've been in the coalmines for 28 years. 
 I would just like to start off saying that I'm extremely 
concerned that MSHA's proposal to allow mine operators to 
increase the respirable dust levels in coal mines to four 
times their level by Congress in 1969.  
		For example, the long wall today.  The long walls 
in coalmines today are becoming larger every year.  Long 
wall faces and sections are over 12,000 feet long and over 
1,200 feet wide, exposing miners to greater amounts of dust, 
and being relieved at the face with the terminology "hot 
seat changeout."  Long wall belts are becoming longer and 
wider to accommodate the amount of coal the long wall 
produces, causing more dust and more methane because of the 
ventilation regulation sections with belt air. 
		The Airstream helmets provided by management are 
not the answer.  Those helmets do not stop the small amount 
of particulates and dust.  And in some instances, the helmet 
does not -- in some instances, some helmets do not even have 
filters, because management failed to order them when the 
supplies ran out. 
		On the full shift, the full shift sampling and 
continuous dust monitoring that miners are wanting, MSHA 
samples shut off after eight hours and let the mine 
operators decide if they want to continue dust monitoring.  
Mining sections and full face mining machines cut sixteen 
foot wide and eight foot high.  These machines cut coal 
almost continuously every day, subjecting miners to greater 
amounts of dust, because miners are supporting the roof.  By 
supporting the roof on these machines, within feet of the 
miner is it's cutting coal, these miners also are relieved 
at the face due to the oncoming shift exceeding the eight 
hours sampling. 
		In closing, I'm extremely disappointed in MSHA's 
reform of the dust control plans, and I hope that you think 
of miners' lives instead of companies' inability to comply 
with the existing laws.  I thank you very much. 
		MR. NICHOLS:  Thank you, Bob.  Gene Davis?  Larry 
Kuharik?
		MR. KUHARCIK:  Hello, my name is Larry Kuharcik, 
K-U-H-A-R-C-I-K.  I work out of the local 1702 of the United 
Mine Workers of America.  I worked underground for the past 
32 years.  I didn't prepare a speech today, but I appreciate 
the opportunity to speak to gentlemen.  I spoke to this 
panel in the year 2000.  I know some of you was on it.  I 
don't believe all of you were.  Marvin, if you recall, I 
presented this panel with 48 U.S. Department of Labor 
documents from local 1702 to cover the nine-month period 
where 48 of my brothers and sisters went to Charleston, West 
Virginia, and was diagnosed with black lung.  From 5 to 20 
percent.  Do you remember that, Marvin?  I gave you those 
documents. 
		The average age of those coalminers was 45 to 50 
years old.  That was 48 miners from local 1702 in a nine-
month period was diagnosed.  And gentlemen, we were talking 
about 2 milligrams at that point in time.  Now, just think, 
48 -- approximately 48 in nine months, at 2 milligrams, and 
now we want to raised the dust levels in the coalmine.  What 
will that do for the black lung?
		I thought for sure when I gave that testimony, and 
the panel realized that was just one local of the United 
Mine Workers, and the thousands of men and women in the mine 
throughout the country, how many would there be across the 
country, and that would really make a difference and make 
you think of what we're breathing, but apparently it didn't. 
I'm sorry to say, apparently it didn't, or we wouldn't be 
here with, I believe, worse proposals today. 
		Another issue I'd like to talk to you about is 
space helmets.  We call them space helmets.  You call the 
air helmets.  In the coalmine we call them space helmets.  I 
personally have worn one.  I worked on a long wall pulling 
dally shields for one year, six days a week, and we had the 
helmets.  The helmets aren't the answer, gentlemen.  There's 
many problems.  In an atmosphere sitting in this room, you 
might be able to put that helmet on and breathe.
		When you're down in the coalmine, you're sweating. 
 I wear corrective lenses.  Sweat's running down your 
glasses.  Your face shield get greasy on the long wall.  You 
can't see out of it.  You're wiping it with your arm and 
hand, and your dirty shirt, your wet shirt.  It just smears. 
Next thing you know, your shield's up because you can't see, 
so your protection's gone.  The filters plugged up on them. 
Another problem on them.  And keeping the battery charged 
was a problem on them.  You had the battery in the back of 
the helmet with the little motor that ran the fan that blew 
the air up over if you remember that and down across the 
face shield.  We had problems.  We couldn't wear them.
		My buddy Roy Acres and I was the last two in our 
coalmine to wear them.  Everybody else gave up on them long 
before we did.  It got to the point we just went back to the 
regular respirator so we could see, and at least we could 
breathe, because the filters are plugged up, the motors 
would run down.  Airstream helmets are not the answer.
		The PDM 1, which is near perfection, I believe, is 
the way we need to go, where you don't have to wear an 
Airstream helmet to breathe in coalmine.  You can breathe 
because the air is clean enough that it's not going to harm 
you.  So that's where our goal should be.  That's what we 
ought to be aiming for.  Not air helmets and levels of four 
and eight in a coalmine with air helmets.  We're going the 
wrong direction, in my opinion. 
		Another thing, we're putting more dust particles 
in the atmosphere of the mine.  Do we stop and realize how 
many mine fires we have had in the past several years?  I 
work for Consolidation Coal Company.  As we speak, the 
Loveridge mine is burning right now as we set in this room. 
 The second time in a couple-year period.  Right down the 
road here about five miles from where we sit, the 84 mine 
was on fire several months ago.  In the fall of last year, 
my mine, Blacksville Number Two, we got called out at 
nighttime, our mine was on fire.  Just three weeks ago, I 
testified on another issue in front of Marvin, as we spoke 
we had a mine in Virginia on fire. 
		Do you guys realize the mine fires we've been 
having and putting more coal dust particles in the air 
during a fire, and an explosion with coal dust particles, 
more of them in the air or the atmosphere of a coalmine?  
Gentlemen, we're going the wrong direction.  We need to turn 
around.  In the year 2000, Marvin may remember, I challenged 
this board to do the right thing.  We did the right thing by 
backing MSHA, and we got some good MSHA inspectors, but I 
challenged this board to do the right thing and go back and 
take the advisory committee's recommendations and make it 
better.
		Gentlemen, we didn't make it better.  We're not 
making it better.  We can make it better.  We have the 
knowledge, testimony from the union and the people that work 
in the coalmines.  So we're down in that coalmine six, seven 
days a week, eight, ten hours a day.  When we testify what 
we need, we know, we know what we need.  We live it.  It 
would be nice if we could all wear suits and three-piece 
suits and go to an office and work, but we can't.  We're 
down there crawling in that coalmine in the mud, water, in 
the conditions we crawl in, and we need fresh air.  We don't 
need more coal particulates in the air to breathe. 
		Now I'm asking this board again to go back and 
take care of the coalminers.  The men and the women in this 
country that's working in these coalmines.  Protect them.  
That's our responsibility and our job.  That's what MSHA was 
formed for.  I personally think, and this is my own opinion, 
and I'm getting disgusted.  I think that we're looking at 
more of the cost and the expense for the coal operators more 
than the health and safety of the men and women in the 
coalmine.  And we shouldn't be doing that.
		And I ask you to think and consider the health and 
safety of the men.  My career's about over, but I have a lot 
of younger brothers and sisters that's going to remain that 
I want them to live healthy.  And in today's days and age, 
there's no reason we can't.  But it's your panel, your 
decisions that got to make those decisions for us.  You have 
the control and the power when the laws are passed, to make 
the decisions to protect us.  And I believe that's what the 
purpose of MSHA is.
		Gentlemen, I thank you for hearing me, because I'm 
not a speaker, I'm a coalminer, but I wanted to talk to you 
today.  And I thank you for the opportunity.
		(Applause.)
		MR. NICHOLS:  The next presenter is John Gallick, 
RAG Emerald Resources. 
		MR. GALLICK:  My name is John Gallick, G-A-L-L-I-
C-K.  I'm the safety manager for RAG Emerald Resources, LLP, 
and affiliate of RAG American Coal Holding, Inc.  Emerald 
Mine Number One is a Pittsburgh seam long wall mine 
employing approximately 540 people, operating five MMUs, up 
to seven days per week.  The operation produces 
approximately six and a half million clean tons per year.  
RAG American Coal Holding will be submitting written 
comments on this proposed regulation.  We intend to address 
the specifics of this rule at that time.  My presentation 
today will address those rules in a more general manner. 
		First let me say that this rule appears to closely 
parallel the previous proposed rules that were soundly 
rejected by all the stakeholders.  I cannot understand why 
MSHA has not listened to the stakeholders, and actually 
attempted to develop a rule that the stakeholders could 
support.  Both industry and labor, albeit for different 
specific concerns, said to MSHA at the last round of public 
hearings that MSHA needed to start this rule all over, 
rather than attempt to modify it.
		These new proposed regulations appear to be a 
tweaking-of-the-edges approach.  I regret that we will need 
to go through this again before we can, hopefully, arrive at 
a reasonable, supportable final rule.  I'd like to address 
single samples first.  I give the Agency credit for one 
thing on this subject, obstinance.  You just won't let a bad 
idea go away. 
		(Applause.)
		Over the years, single-sample concepts have been 
rejected by the courts.  Science and engineering studies 
have also questioned it.  I'll only talk to the practical 
considerations that make single samples a bad idea.  Let me 
begin with, first, a basic assumption.  That assumption is 
that on respirable dust sampling, there's one thing that 
MSHA, labor and industry all agree.  That agreement is that 
no one trusts the others when respirable dust is involved.  
MSHA continues to paint the entire industry with a brush of 
distrust, when the reality is that most operators continue 
to operate legitimate respirable dust sampling programs. 
		Industry distrusts MSHA's lab protocols.  For 
example, one area of mistrust is oversized particles, which 
are only tested on samples with weight gains above six 
milligrams, and where inspector samples are not inspected 
for oversized particles with any stricter protocol than the 
operator samples.  Also, operators do not believe that MSHA 
applies appropriate void codes in all circumstances.
		Finally, most of labor questions the respirable 
dust program altogether.  You heard enough of that this 
morning.  Credibility in this program is a problem, and any 
new program will need to be deemed credible if it's to 
succeed.  Using single samples will not help the credibility 
of this program.  I say that because, with all the variables 
involved in sampling in a coalmine environment, using 
samples that are easily capable of having oversized 
particles counted as respirable dust, for example, one 
sample does not make sense.  Frankly, to me, I prefer a 
system where at least seven samples are taken, and the high 
and the low samples are thrown out.  The other five samples 
would then be used to average the results to achieve a more 
valid number. 
		One of the reasons for distrust in the system is 
the samples that appears to be unusually high or unusually 
low.  Credibility requires a reality check when an oddball 
result is obtained.  By not using the high and the low from 
each sampling cycle, some of this concern would be at least 
minimized.  Clearly, from an operator's perspective, the 
major impact of respirable dust citation is not only the 
monetary fine, but the respirable dust control plan changes 
that will be required.  Single-sample enforcement is a bad 
idea that should just not go forward. 
		My next comments concern plan verification.  As 
proposed, practical application of these rules will be 
difficult, frustrating, and costly to comply with.  
Requiring the operator to sample at no more than 15 percent 
above sample minimums would be extremely difficult to do in 
a perfect world.  In the real world, it just won't happen.  
I say this because as I read the proposed rules, the 
combination of tonnages needed for a valid sample, and the 
actual respirable dust levels necessary for a valid sample 
can result in several weeks of off and on again sampling.  
During this time, the operator is faced with a Hobson's 
choice of staying at the minimum, or changing the parameters 
for each shift, preparing for additional verification 
sampling. 
		For example, our continuous miner sections are 
ventilated for methane, as well as respirable dust.  Based 
upon our history of sampling results, I believe we could 
clearly reduce to the present parameters in our plan and 
achieve compliance.  With methane as a factor, I doubt if we 
would choose to consistently do this.  I say, "consistently" 
because each quarter we'd be required to reduce parameters 
or face increases in our plan of minimums.  I would expect 
that even in our continuous miner sections that are well 
below the 1.71 milligram per cubic meter threshold critical 
value, our plan minimums will be much higher than they are 
now in place. 
		I note an example, in fact, where one of our mines 
had a 50-percent increase in its minimum plan for an MMU, 
because they couldn't cut back the air quantity due to 
methane concerns.  The proposed 115-percent plan 
verification system will be even a greater problem on long 
walls.  Air quantities, water pressures, et cetera, are more 
difficult to plan for and execute on a long wall than a 
continuous minor.  The amount of air on a long wall required 
to be dumped in order to achieve minimum plan parameters may 
even constitute an air change. 
		As proposed, the plan verification system will 
inevitably lead to a practical quandary, whereby the 
operator will be faced with an ever-rising minimum plan 
standard, due to not necessarily the respirable dust control 
needs, but because the operator was unable or unwilling to 
cut back to plan minimums each quarter, when samples are to 
be taken.  MSHA may believe that it is not a burden to make 
plan adjustments to reach the minimum plan parameters each 
quarter, but these practical considerations are, in fact, 
real.
		In addition, I haven't read anywhere what shift 
length is required for the plan verification process, when 
multiple shift lengths are employed.  For example, we 
operate with three different shift lengths each week.  We 
operate a standard eight-hour shift length, a hot seat 
extended shift, and a weekend crew that works a twelve-hour 
shift on a Saturday and a Sunday.  Clearly, the majority of 
our shifts are the extended shifts involving hot seat 
changes, which are nominal nine-hour shifts, whereas the 
twelve-hour shift is only on one section for two shifts per 
week.
		Under the proposed rule, will I be required to 
develop a respirable dust control plan to meet a 2-milligram 
per cubic meter standard for the twelve-hour shift?  Or do I 
propose three different plan minimums for the various shift 
lengths?  I haven't seen this discussed, but it affects both 
plan minimums and reaching the 10th shift tonnage levels for 
a compliance sample. 
		I'd like to also add some additional comments on 
MSHA's proposal to add the length of production shifts and 
the verification production levels into the ventilation 
plan.  In my opinion, this is a waste of time and resources, 
with nothing to be gained.  The operator is required to make 
available the tonnage reports for the previous six months, 
and will be required to sample initially, and in each 
subsequent quarter, at a level matching the 10th highest 
production shift out of the last 30 shifts.  It appears to 
me that if MSHA wishes to crosscheck tonnage levels per MMU, 
and shift lengths for each MMU, this can easily be checked 
by MSHA at the mine site, rather than having the operators 
submit plan updates when each quarter samples for each MMU 
is taken. 
		My final comment on plan verification is that the 
plan verification process is, in my opinion, a stalking 
horse to force operators into having plan standards that are 
much more stringent than necessary for complying with the 2-
milligram standard.  I expect that this ratcheting-up effect 
will be ongoing and an operator will have a major battle to 
submit for a lower plan parameter when a recalibration of 
the respirable dust plan becomes necessary. 
		My next comment involves the use of the 060 code. 
 Isn't it time that we do away with this code?  Particularly 
when MSHA is rewriting the entire respirable dust 
regulations?  060 has been an artificial code from the 
beginning of its use.  No one is actually exposed to 
respirable dust levels since it's a combination of multiple 
jobs and people.  If MSHA intends to rewrite a rule and to 
have the operator conduct sampling anyway, why not require 
sampling on the entire crew, and gain a true picture of 
exposure?
		As noted in the preamble, most long wall crews 
practice a quasi-administrative controls system of switching 
and changing work locations.  060 code sampling ignores 
these realities.  It's time for MSHA to get rid of 060 
codes, and quite possibly the 036 code, and have sampling 
done on the actual occupations.  I believe that MSHA should 
eliminate all methods of sampling that involve trading off 
the pump.
		Another reason to eliminate DOs, an replace the DO 
samples with actual person sampling is a need to 
realistically address administrative controls and powered 
air-purifying respirators or PAPRs.  As presently written, 
the use administrative controls or PAPRs cannot be 
incorporated into a respirable dust control plan until all 
feasible engineering controls are used.  Since MSHA hasn't 
attempted to define "feasible," and has not attempted to 
provide much in the way of guidance or examples of the 
levels of feasible engineering controls or their limits, 
maximum velocity, for instance, I am not sure when, or if, 
an operation can use administrative controls or PAPRs. 
		The cynic in me sees this as another set of 
logical options for the legitimate responsible dust control 
that will never be enacted.  The PAPRs are already 
extensively being used on long walls, and have been for 20 
years.  Administrative controls and a form of employee 
switchouts on long wall occupations, place change miner 
operator and helper switches, and other examples are already 
in use.  
		Apparently, the workers are ahead of MSHA when it 
comes to understanding personal respirable dust control.  
Maybe the Agency needs to look at the realities of 
administrative controls and PAPRs, and provide for a better 
method to incorporate these systems into any proposed 
regulation.  These systems do, in fact, protect employees, 
and are long-established good industrial hygiene practices. 
 Let's use them. 
		Finally, I'd like to address personal dust 
monitors, or PDMs.  I didn't know a lot about them before I 
came here, and I learned a little bit today, and that's 
really my point of this part of my talk.  Why not hold this 
proposed regulation until we have experienced some actual 
time with these units?  As presently written in the proposed 
rules, I don't anticipate many operators implementing them. 
 As I read the rule, an operator would have to have enough 
PDMs to sample each crew, each shift of each day, every day 
of the year.  That doesn't make sense to me, and I doubt 
very much if anyone can comply with that.
		I appreciate in the preamble the Agency is 
soliciting comments on PDM usage.  I hope that there is 
enough field experiences with PDMs prior to the record 
closing, to allow for real-life comments, rather than just 
commenting on the supposition that PDMs will work.  I 
personally believe that PDMs, if they work in a manner as 
I've been told they do, will change the entire respirable 
dust sampling system.  This section of the proposed rule 
clearly needs to be rewritten to become the linchpin and not 
an add-on to respirable dust sampling.
		In my opinion, personal dust sampling puts the 
burden of respirable dust on a daily basis, or some factor 
basis that will allow people to look at their sample, know 
where they stand, and make the adjustments on the site by 
themselves or with their supervisor.  That, in principle, 
sounds like an answer to a lot of the problems that we've 
talked about and heard.  I just don't know enough about the 
unit, and that is my concern. 
		I can't help but add one last comment.  The Agency 
and labor both complained about the industry doing 
respirable dust sampling for years.  Those of us that have 
been involved in respirable dust sampling over the years 
have been accused of lying and cheating whenever this 
rhetoric suits people.  Why do these rules still have the 
operator, me, continuing to submit legally binding samples? 
		MSHA was to take over the program, lock, stock and 
barrel.  Please do so, and let the operator in a position 
where we can sample for our own in-house purposes only.  
You've wanted it.  Take it.  But remember one other thing 
when you take it.  It'll be your program, it'll be your 
responsibility to produce a dust sampling program that is 
legitimate sampling results, that is considered credible by 
between the operators and labor.  Take the burden over, 
gentlemen.  Thank you.  That's all I have. 
		MR. NICHOLS:  You were gigging us in our 
persistence to chase single samples.  Did you catch our 
presentation earlier?
		MR. GALLICK:  I've heard everything today. 
		MR. NICHOLS:  Okay.  But did you see the graphic 
there?  Or the overhead that showed averaging we sampled?
		MR. GALLICK:  I understand that concern, Marvin.  
That's why I said it should actually be a larger number, and 
throwing out -- I said seven.  I'm not a statistician, and 
I'm not going to debate that subject, but my belief from day 
one when I first was involved in sampling, back in '76 or 
whatever, was that you should be throwing out some 
percentage of the highs and lows, and those that remain 
should have some kind of a statistical value.  To me, a 
single sample loses that credibility. 
		MR. NICHOLS:  I mean, it's fairly well proven in 
other industries. 
		MR. GALLICK:  So are personal protective equipment 
and administrative controls, but you guys aren't doing that. 
 Other industries use both.  You know, I have a problem with 
this individual single sample, when I know that the units 
that we presently have, have their own problems, one of 
which is oversized particles.  I know you don't weigh 
oversized particles until they're well over the violation 
limit.  I heard several gentlemen here talk about the 
variabilities in coal mining on a day to day basis.  I mean, 
all the stuff is real.  And that's why I think a single 
sample is a mistake.  I'm sorry, go ahead.
		MR. THAXTON:  Actually, the Agency does look at 
any sample that exceeds 2 milligrams for oversized 
particles.  It is a visual observation of the filter.  The 
only thing that we don't do until we get to 6 milligrams is 
to actually do a physical, microscopic examination where we 
count particles.  You have to realize the definition for the 
respirable dust samples that we have says that any dust that 
that sampler collects is considered a valid sample.
		Part of the respirable dust sampling system that 
we use, there will be some oversized particles in that 
sample.  And that is legal to have those in there.  It's the 
number when you exceed it that may become a concern and that 
makes the sampling valid.  That's why we do screen all 
samples that exceed the 2-milligram standard at 2 milligrams 
or greater, because we are looking visually to see if it 
looks like there's an overabundance of oversized particles, 
which then indicates that there is a potential problem with 
that filter.  And then it would go under microscope 
examination.
		It's mandatory that all samples that exceed 6 
milligrams have microscope examination, because then it is 
conceivable that there could be something wrong with that 
sample that we would want to look at.  But we do screen all 
samples that exceed the standard of 2 milligrams.
		MR. GALLICK:  Well, I --
		MR. THAXTON:  That's been in place for several 
years, since '92 at least.  Four or five years. 
		MR. GALLICK:  I guess -- go ahead, I'm sorry. 
		MR. NIEWIADOMSKI:  The other thing that you 
mentioned when you talked about clarifying about the single 
samples, which you're opposed to the proposal that MSHA make 
a noncompliance determination on a single sample, correct?
		MR. GALLICK:  I don't believe -- I believe that 
MSHA, when they do a single sample -- I think we're both 
saying the same thing.  That you then can trigger additional 
samples done by MSHA for compliance.  If you have a problem 
with what you see on a single sample, come in and sample to 
your heart's content. 
		MR. NIEWIADOMSKI:  Yeah, but what you're 
indicating, your testimony was that you are opposed to MSHA 
making a noncompliance determination based on a single 
sample. 
		MR. GALLICK:  Oh, yes.  That's correct. 
		DR. WADE:  While I understand your testimony, and 
we need to look at it, the reason that NIOSH advocates 
single sample is that we are concerned, given the fact that 
we see a continuation of the disease in the workforce, if we 
take a number of samples and average them to make a judgment 
as to compliance, we stand the risk of certain dose exposure 
or oversampled existing.  And that's really what brings us 
to this point. 
		MR. GALLICK:  I recognize that, and I appreciate 
some of the concern.  I do.  I also heard a discussion, this 
last discussion over shift sample.  I do believe, though, 
that the whole basis of the respirable dust program was 
lifetime exposure, and I don't believe that we're really 
discussing -- part of the average sampling was the 
variabilities of mining, the variabilities of the samplers. 
 As Bob says, they don't collect only five microns.  I guess 
that was a 1970 some decision or '80 decision over the fact 
that they -- and the rule was, well, then whatever they 
collect, we'll consider respirable.  That's how we get 
around that, the failure of the sampler to actually do what 
it's supposed to do.
		But I think, as a group we're also missing the 
lifetime exposure dose issue.  It's more than just 
individual shifts, it's other variables.  And I frankly 
think that's a mistake on all of our parts.  And that's why, 
if the PDM rule was written in a manner that is doable, and 
if the units work as we've heard, I think that changes the 
whole approach to respirable dust sampling, and all the 
other issues that we're talking about.  I would expect the 
most credible sample we could have would be one that anyone 
could look at during the shift, and recognize where we're 
at.  And the most simplest administrative control can be 
done right on the spot.
		And I believe that both the labor,  management and 
MSHA understand that the PDM can be a paradigm shift of 
sampling, but I don't believe that, as you've written the 
regs, that can possibly happen.  Now, Larry, I do appreciate 
-- I saw you waiting.  I do appreciate --
		MR. REYNOLDS:  Tell us --
		MR. GALLICK:  That there's almost columns worth of 
questions in the preamble, and we propose to address those 
in writing, on how we would --
		MR. REYNOLDS:  Where you want us -- how you want 
to do it.	
		MR. GALLICK:  How we would support a PDM program. 
		MR. REYNOLDS:  And the specifics of how you would 
like to do that, or what you think would work?
		MR. GALLICK:  Right.  And we've chosen, or I've 
chosen, and my company has, not to discuss it, for me to try 
to guestimate how we would do it.  This is the first time 
I've actually seen the unit, which was an hour ago.  So I've 
been learning a lot about it from Mr. Lamonic and others, 
but I don't feel comfortable that I know enough about how -- 
not so much how -- let's assume the unit works properly.
		MR. NIEWIADOMSKI:  Can I ask a hypothetical 
question?  Just a situation.  If the PDM was proven to be 
mine-worthy, and an operator, for example, could adopt or 
use that in lieu of having any plan verification or 
whatever, would, for example, your operation, would be 
willing to purchase such a device for each and every miner?
		MR. GALLICK:  I have no idea what they cost.  And 
I have no idea how long they last.
		MR. NIEWIADOMSKI:  So that would be --
		MR. GALLICK:  And I also question -- as a 
practical matter, you would have -- of the 500 and some 
employees at the mine, there's a realistic number that would 
need to be sampled on a very routine basis.  There are 
others that would need sampled on a statistically valid 
less-than basis, hierarchally down until some people that 
may need no sampling at all or whatever, that are working in 
jobs that are not -- there's no dust exposure.  To me, that 
is the type of program that has to be looked at.  Because I 
assume you guys aren't going to buy these units for us. 
		MR. NICHOLS:  You got that right. 
		MR. GALLICK:  Okay.  And I assume that the 
technology that's in them says that they're going to be 
fairly expensive.  I have no idea what they are.  Also, 
practically, if I'm understanding right, not only would we 
probably have to take it in the mine and it would have to be 
programmed for each shift, and it would have to be 
downloaded with some computer system at the end of each 
shift in some manner, by somebody.  I mean, this is a fairly 
extensive -- that's why we're saying we're not ready for -- 
we don't understand enough about the PDM practicalities to 
implement it. 
		MR. NIEWIADOMSKI:  Well, let me tell you what 
we're faced with.
		MR. GALLICK:  Okay.
		MR. NIEWIADOMSKI:  Your discussion on the PDM is 
just about where we left it in 2000.  In fact, I almost 
remember the exact term.  This is the bridge to the 21st 
century.
		MR. GALLICK:  I remember that also. 
		MR. NIEWIADOMSKI:  Right.  Now this is 2003, and 
we've seen a prototype circulating around here.  We've seen 
prototypes before that may or may not work, so I don't think 
the Agency's going to wait another several years to deal 
with some of these other dust control issues.
		MR. GALLICK:  Well, if the Agency isn't, then in 
my opinion, two things have to happen.  There has to be some 
modifications to the proposed rules, unrelated to PDMs, and 
the PDM rule has to be written in such a manner that when 
they do become feasible on site able to be used, the rule 
itself doesn't shut down its use before it can get off the 
ground.  As I read it today, I don't think you could sell a 
hundred of them.  You know, today.
		But if you write the rule in a manner that's open 
enough, has enough latitude and flexibility to be 
implemented, then technology can catch up.  But I read the 
rule today, and I say it's an add-on, not the linchpin, and 
that bothers me.  I think it should be the linchpin. 
		MR. NIEWIADOMSKI:  Are you, in fact, proposing 
that we mandate such a device?
		MR. GALLICK:  No. 
		MR. NIEWIADOMSKI:  Okay.  So you're not proposing 
a --
		MR. GALLICK:  No.  I can't propose something 
that's never been off -- I'll use Marvin's comment, has 
never left the lab. 
		MR. NIEWIADOMSKI:  But assuming that in four 
months it's proven to be mine-worthy, are you recommending 
that the Agency mandate the use of such a device, or do you 
have to build in certain options, alternative approaches?
		MR. GALLICK:  The reality is that you probably 
have to have options and alternatives, but I'll tell you 
this, we'll write your proposal on how to implement them.  
If you want to take that one and use it, it'll probably make 
some headway.
		MR. NIEWIADOMSKI:  Yes sir. 
		MR. HEARL:  I was wondering, is your objection to 
the single-shift enforcement proposal, that the single shift 
doesn't represent the long-term mean average exposure?  Is 
that -
		MR. GALLICK:  As a practical matter, I object to 
it because I know that the variables that happen in a coal 
mine are such that -- again, a single shift enforcement.  
The citation itself is one thing.  But every time we've 
dealt with single shift, we've also dealt with plan changes 
based on that sample.  And that is my biggest concern.  
Whenever you're dealing with -- that I have a 2.34 on some 
unit, okay?  I have been faced in the past with having to 
change plans based on the sample, when the reality check 
says, why did that happen?  Why is it different than all the 
other samples that we've done over time?  And it's 
frustrating.
		And frankly, you know, we talk about credibility 
in this program.  You've heard a lot of people testify, and 
you'll hear more testify about their lack of faith in the 
operator sampling.  And those are the kinds of things that 
operators look at and say, where did this sample come from? 
 How did it happen?  It seems to me that the average -- now, 
I understand the concern of the average.  That's why I said, 
throw some out.  But it seems to me the average, by throwing 
a couple out on each end, takes away some of the ones that 
you scratch your head and say, how did this happen?  Both 
high and low.  I've seen samples come in low, frankly, also, 
where you ask yourself how did it happen.  And you don't 
know. 
		MR. NIEWIADOMSKI:  Can I ask one final question?  
I don't mean to put you on the spot, but given -- assuming 
you accept the proposal as written, what it's trying to 
accomplish is to design and implement plans that will be 
effective at higher production levels that they are right 
now.  If, in fact, they are verified and meet those critical 
values at the 10th highest production level, would you then 
expect, when MSHA went out and sampled, that we would have 
situations where we'd by citing the operator based on single 
samples?  Or do you think those conditions wouldn't exist 
then?
		MR. GALLICK:  That's a good question.  That's a 
good hypothetical, because the reality -- I can only speak 
for myself, but I believe the reality is that you would not 
see that many 2.33 single samples.  And  my concern is, when 
I do see one, is there a reality check made prior -- the 
rule, I'm sure, would be that I would be cited for that, 
regardless of the reality check, okay.  My plan change has 
me as concerned, if not more so, because again, I believe, 
as I said earlier in my testimony, that I will not be able 
to go to the 115 percent numbers every quarter for every 
sample that I take.
		I really think, frankly, that the rule ought to be 
that you guys do the sampling on verification sampling, if 
that is an issue.  I think I'd change the whole approach to 
that, but if you're going to do them, come and sample as is, 
and look at it in a manner of -- with a practical reality 
check.  Is this sample, as it's sampled at the tonnages I've 
gotten, at the velocities I'm using, at the water sprays I'm 
using, what are the results, and can I make a rational 
judgment that the plan as written protects employees.
		I've done this with cutbacks before, you know, 
where you have to cut back your system, and it's not as easy 
as all that.
		MR. NIEWIADOMSKI:  So what you're proposing really 
is -- what you're saying is, you don't want to be forced to 
cut back, you want to be able to have somebody make some 
sort of an engineering judgment based on guidelines of 
whether or not -- that the minimum parameters that are 
specified would indeed be protective?
		MR. GALLICK:  I would like to have in writing -- I 
would like to see in the rules, when they finally come out, 
a statement to that effect, that I have the right to either 
cut back or operate at parameters, and then with an 
engineering judgment as to whether they comply.  Whether 
we'd meet compliance based on those numbers.  I just do not 
believe that I should -- I don't believe that I could 
practically cut back every time, and I believe I would just 
see this ratcheting effect, until the point where I'd have 
to come back to you and say, I got to start over again. 
		MR. NIEWIADOMSKI:  Marv, just one final question. 
 I don't mean to put you on the spot, it's just another 
hypothetical.  The proposal as written, do you feel if you 
were involved, and you were verifying your plan, that you 
would have to significantly upgrade your parameters to be 
able to meet the criteria to have that plan approved by 
MSHA, based on the criteria that's in the proposal right 
now?
		MR. GALLICK:  I guess the short answer would be 
no.  The long answer would be that I don't know what plans 
you guys are talking about, because district two plans are 
pretty detailed.  I've --
		MR. NIEWIADOMSKI:  I'm talking about --
		MR. GALLICK:  No, I mean, what I'm saying, George, 
is, you guys are saying the plans are weak, they aren't 
detailed.  The district two respirable dust plans are -- at 
least the ones that I've worked on are pretty detailed on 
velocities, on angles of sprays, number of sprays.  Now, we 
always operate above it.  I'll be very candid.  We operate 
well above it, if possible.  But I believe, if you factored 
it back, you'd see that we'd still be in compliance anyway. 
		MR. NIEWIADOMSKI:  Yeah.  What I was asking was, 
if you were to test your plan at the 10th highest 
production, would you need to upgrade your parameters?  Or 
could you meet those critical values at the 10th highest 
production, using the parameters that are currently in 
effect right now?
		MR. GALLICK:  I feel very comfortable saying yes 
on the CMs.  And I would say on the long wall, it would be, 
I'll use the term, "marginal."  As I said earlier, I believe 
that you concentrate on the areas of concern, and in our 
case, it would be the long wall. 
		MR. NIEWIADOMSKI:  I appreciate your response to 
that. 
		MR. NICHOLS:  Okay, John.  Thanks. 
		MR. GALLICK:  Thank you. 
		MR. NICHOLS:  Okay.  Our next presenter is Nick 
Molnar with the Pennsylvania black lung association. 
		MR. MOLNAR:  My name is Nick Molnar, M-O-L-N-A-R. 
 I'm president of the Pennsylvania Black Lung Associating.  
In my prior life, I was president of district two, 
international auditor, internal organizer, so I've been 
around for a few years.  I want to thank the committee for 
holding these hearings today.  I wasn't here in 2002, and 
I'm getting quite an education back there in the back on all 
the things that are being said. 
		I've testified before hearings before, and I get 
really cautious when I watch your committee function here, 
because you all are really defensive of the proposal.  And 
it's fair-cut that you've already entrenched yourself in and 
wrapped around so this is the best thing we can do.  But 
also as a member of the Black Lung Association, we have the 
dubious distinction of being the folks that people come to 
that are suffering from black lung and silicosis, and we get 
to try to help them through, to gain not the benefits but 
the compensation that they're entitled to once they are to 
the point where they can't function.  And for anybody that's 
ever watched a person die from silicosis or black lung, you 
know what kind of a horrific disease it is, and how 
demeaning and how it takes a strong, strong person and turns 
him into a helpless individual.
		I want to say right up front that the Pennsylvania 
Black Lung Association stands in opposition to the 
proposals.  Anytime where you increase the exposure to coal 
dust in the mines in the proposal -- and I heard Joe Main 
here earlier this morning try to pin you folks down, can you 
be cited for the eight-tenths of a milligram or whatever, 
and all the response back was, well, it depends.  And I 
don't think that the life of a coal miner should be based on 
a "depends."  I think that we have to take a realistic 
issue.
		I've never seen the personal monitor that NIOSH is 
working on,  on the experimental side.  It's supposed to be 
here in a couple months.  And I also question why, all of a 
sudden, this change here is coming about.  After all the 
years I've spent in and around the mineworkers, and going 
through gold mines in South Africa and coal mines in Germany 
and in working with nonunion coalminers in Ohio, 
Pennsylvania and West Virginia, I'm very cautious as to when 
things start moving real fast.  It makes me nervous to think 
that there's something in the woodpile that I can't see. 
		The Pennsylvania Black Lung Association hasn't put 
together a formal proposal or response to this proposal, 
because we didn't get it until yesterday or the day before, 
but it was in the mail Saturday.  But we will.  I would like 
to see the current proposal maintained the way it is.  Mr. 
Nichols said a couple times today, well, what about the 
averaging?  The averaging is where the problem's at.  Well, 
if that's what the problem is, deal with the averaging 
problem, and not throw out the whole program.  I mean, if 
you have a flat tire on your car, you don't run out and 
flatten the rest of your tires just to make the average.  
You know, it just doesn't make any sense. 
		But with that, I'd just say that the Pennsylvania 
Black Lung Association is in opposition to your proposal. 
		MR. NICHOLS:  Okay.  As I said earlier, we don't 
mean to come across argumentative. 
		MR. MOLNAR:  Well, you have. 
		MR. NICHOLS:  Well, we do when people accuse us of 
not having the health and safety of the miner at heart here. 
 I mean, some of us -- wait a minute -- some of us have 
spent our whole career trying to improve the life of the 
miners.  And reasonable people can disagree --
		MR. MOLNAR:  And it has.  And it has improved.  
And it has improved on the backs of the working people here. 
 I mean, these guys are the ones that were sitting out there 
in the front, getting exposed to the dust and the silica.  
Now, these are the guys that are getting blown up in the 
mines, and torn up by equipment.  This committee here didn't 
happen because Mr. Nichols felt like it was a good deal to 
get involved the mining thing.  It was because of the outcry 
of the people in the communities saying, there has to be 
something done, we can't be having 30, 40, 50, 100 people 
blown up in a coalmine at a time. 
		MR. NICHOLS:  Also, when it's presented that we're 
going to allow operators to take off well-established dust 
controls, and just go to personal protective equipment --
		MR. MOLNAR:  You'll have to speak up.  I'm hard of 
hearing.  I was a coalminer. 
		MR. NICHOLS:  Maybe we need to get real close.  I 
was a metal miner.  When you talk about allowing operators 
to take off well-established dust controls, and go into 
personal protective equipment, that's not what this rule 
does.  And that's been repeated over and --
		MR. MOLNAR:  Is it in the rule?
		MR. NICHOLS:  No.
		MR. MOLNAR:  I rest my case. 
		MR. NICHOLS:  Well --
		MR. REYNOLDS:  Actually, it is, Marv.  We 
repeatedly say that all the engineering controls have to me 
maintained.  That's clearly --
		MR. THAXTON:  It's actually written in the regs 
that you have to maintain all feasible engineering controls 
in the plan, as they're stipulated before we even make our 
determination of all feasible controls exhausted. 
		MR. MOLNAR:  That's interesting, because I got one 
guy saying, no, two guys saying yes. 
		MR. NICHOLS:  No, that's your problem.  I can't 
hear either.  But you know, when that's portrayed that we're 
going to allow controls to come off and PAPRs to come on, 
that's not what this rule does.  It still has the primacy of 
engineering controls. 
		MR. MOLNAR:  Are you trying to sell me this 
program now?  Is that what you're trying to do?  Or are you 
taking testimony?  That's the question. 
		MR. REYNOLDS:  I don't think that's really what's 
going on.  I think what's happening is, we don't -- it's not 
clear to us that we understand each other, and I think we 
may appear to be defensive, but I think what Mark is trying 
to do is, explain the details.  We understand this is 
complicated.  And it's very difficult.  I think Marv 
frequently sounds argumentative when we're trying to explain 
the provisions.  And you just told us you haven't had a 
chance to read it.  And Marv is trying to explain it without 
you having read it, so at times it gets awkward. 
		But with regard to what the rule says, and every 
step of the rule it does say that all feasible engineers -- 
the controls have to me maintained.  The engineering 
controls have to me maintained.  And if you read the 
preamble, we go into great depth explaining why we believe 
that.  And it's good industrial hygiene that you always 
maintain all the engineering controls before you consider 
anything else.  And that's throughout the skeleton of the 
rule, if you read it.  And I just didn't want you to be 
confused about that.  That's very important for everybody to 
hear. 
		MR. THAXTON:  And actually, the regulatory 
language itself under 70.210 does spell out exactly what the 
operator has to do before they can use PAPRs, and part of 
that is that they have to "include all feasible engineering 
controls capable of reducing the concentrations of 
respirable dust on every occupation where a PAPR is 
required, as low as achievable, and maintain other 
occupation environments at or below the verification 
limits."
		MR. MOLNAR:  Well, I'll reiterate what one of the 
gentlemen was saying back it the back.  I worked on one of 
the first long walls that was in the United States, at North 
American at the Blacklick portal, and we wore the helmets 
there, and they didn't function well.  I mean, for anybody 
that's had any experience.  That was going back 20 years 
ago.  Things have changed, and I haven't seen the newer 
helmets, if there is such a thing, but the helmets that they 
had at that point in time weren't worth the plastic that 
they were made out of. 
		MR. REYNOLDS:  One thing I wanted to ask you is, 
your organization believes we should just maintain the 
status quo.  In relationship, there's the whole -- there's 
the information about what we found in the Miners Choice 
data in terms of the rate at which miners are still getting 
black lung.  Does that affect your opinion on that at all?  
I think we all agree that something needs to be done, it's 
just --
		MR. MOLNAR:  I don't think that anybody's going to 
be satisfied with the status quo, when you have one miner a 
day die from black lung.  I mean, there's just no way that 
that's -- that's unconscionable, it shouldn't be happening. 
 I remember in the seventies when the ventilation plans -- 
when we went through the first major revision with the coal 
operator, and this is at North American, not a small 
company.  
		They came in and they were screaming up and down, 
you damn miners want the air better inside the mine than it 
is outside today.  And I'm standing there thinking, well, 
why not?  You know, why can't we work 20 years in this 
coalmine and not come out of there with black lung?  I mean, 
it's not perfect.  And one person dying from black lung is 
one too many.  One person dying from silicosis is one too 
many.
		MR. THAXTON:  We agree with you completely on 
that.  That is our intent, is to eradicated or get rid of 
the disease.
		MR. NICHOLS:  Okay.  Thanks.  I had called some 
guys earlier that were out of the room, so I'll start back 
through the list.  Joe Marsonik?  Is he gone?  John Palmer? 
 Perry Powell?  Who's the other guy, Joe?
		MR. KOGUT:  Joe Reynolds.  I thought I saw him. 
		MR. NICHOLS:  Yeah, we've got another list.  I was 
going back and trying to pick up the guys that we missed 
earlier.
		MR. POWELL:  Good afternoon.  My name is Harry 
Powell, P-O-W-E-L-L.  I'm a health and safety representative 
at district two, local 2300, RAG Cumberland Mine.  I'm 
basically going to say the same thing that everyone else has 
said earlier, but it's going to be a little bit different 
wording.  MSHA is an organization that is viewed by miners 
such as myself as a protector, the one to go to, highly 
respected, full of knowledge, and last but not least, 
trusted.  Being a representative for the miners, I have 
spent a lot of time with federal inspectors, and close 
friendships have developed.  That is the old MSHA.
		This new, sleek, low profile, quick, elusive MSHA, 
the one who introduced this dust rule proposal, is a stench 
in the nostrils of the nation's miners.  This is 2003, and 
miners are still dying of black lung, and yet MSHA would 
prefer to set the coal industry back at least 50 years.  
Raising respirable dust levels also raises float dust 
levels, as if we have not already had enough fires and 
explosions and deaths already.
		I have worn an Airstream helmet for 11 years, and 
that is not the solution to controlling respirable dust.  It 
appears MSHA has given up.  It is as if health and safety is 
not its forte anymore.  It is time they seek help from the 
nation's miners.  MSHA dust rule proposal would do one 
thing, kill more miners.  Thank you.
		MR. NICHOLS:  Thank you, Harry.  Ralph Serian?  
Mark Sagetti?  Gene Davis?  Joe Reynolds? 
		MR. REYNOLDS:  My name is Joe Reynolds, R-E-Y-N-O-
L-D-S, and the burning question on everybody's mind, I don't 
believe that myself and Larry Reynolds are related.  Just to 
make that clear.
		MR. REYNOLDS:  We're not sure. 
		MR. REYNOLDS:  Can't be sure about everything.  I 
work at the Eastern Federal Two mine.  I've been there about 
26 years.  I chair the mine committee, and I'm also the 
recording secretary for local 1570.  I've just got in on the 
back end of this rule.  I'm not as fully informed as I 
should be, but I will continue to educate myself on it. 
		A few remarks I'd like to make to you that I sent 
out over the internet the other night to some of the local 
papers.  My granddad was a coalminer.  My dad was a 
coalminer.  I had several uncles that was coalminers.  In 
that time, I've seen a lot of tragedy in the coal fields.  
At the age of 12 I witnessed the grief of my fellow 
classmates who lost their fathers in the Farmington Number 
Nine mining disaster in 1968.  When I was 17, the task fell 
to me to take my girlfriend, her three sisters and their 
mother to find out the fate of their father, who was covered 
up in a roof fall.  I would like for each member of the 
panel to try to imagine what it felt like when I had to go 
back to that car and tell them their father was dead. 
		Through my early adult life I watched my father, a 
veteran of 38 years in the coalmine, slowly die, day by day, 
from black lung disease, a process that caused him 
immeasurable suffering for over a period of 30 years.  The 
day my dad died, I watched him struggle for air like a fish 
that had been pulled from water on a hot day, and there was 
nothing I could do to help him.  However, during this period 
there was great strides made in the coalmine safety.
		The '69 Health and Safety Act was passed as a 
direct effect of the Farmington Number Nine mine explosion. 
 And shortly after I entered the coal fields, this Act was 
amended again in 1977 to add an extra measure for our 
nation's miners.  But now, to me it seems that everything 
has come full circle.  At a time when coal production has 
reached record levels, the Mine Health and Safety 
Administration has proposed horrifying, insane, and 
ridiculous new rules that increase the levels of respirable 
dust  four times higher than what they are now.
		One coalminer dies every six hours from black 
lung.  That's four miner a day.  120 every month.  1,440 
every year.  In easier terms to grasp, the Titanic sinks 
every year in America's coal fields.  MSHA's solutions to 
the higher dust levels is to give everyone an air helmet.  
This is a questionable solution in the least, as current air 
helmets struggle to maintain clear air at the current dust 
levels for an eight-hour shift.  At the proposed increased 
dust levels, they would be quickly rendered useless, and 
give the wearer a false sense of protection.
		Even if adequate helmets were to be provided for 
the miners, there is still the question of the extreme 
amounts of dust that will be released into the mine 
atmosphere.  This dust is, and would be, very similar to 
gunpowder and, at four times the current level, would be 
impossible to render harmless.  At current levels, my 
operators are cited daily for excessive dust levels that 
adds to the explosiveness of methane gas.  When coal dust is 
suspended in the air, it can be even more explosive than 
methane gas.  Increasing dust levels four times from what 
they are now will coat the entire area the mine with this 
explosive mixture.  This is simply a formula for tragedy in 
the coalfields that would be unprecedented.
		Currently MSHA is in charge of monitoring dust 
levels in order to avoid setting the stage for such 
catastrophes.  Until now, that is.  Another part of the new 
proposed dust rules is that the mine operators themselves 
would be in charge of dust sampling.  The operators tried to 
regulate theirselves in the 1990s.  As a result, over 160 
different coal companies were convicted in court of criminal 
fraud for submitting falsified dust samples.
		Although I've barely scratched the surface, it's 
very easy to see that these new proposed rules, to me, at 
least, are a thinly veiled attempt by MSHA to deregulate the 
coal industry in order to increase profits for the company, 
without regard to the miners' health and safety.  In the 
20th century, over 100,000 miners died on the job.  Another 
200,000 are dying from black lung disease today, just like 
my dad.  It wasn't until the coal states and the federal 
government passed regulatory controls in the 1970s that this 
horrific trend began to reverse itself.  The numbers don't 
lie, and MSHA has the records to prove my statement.
		As we stand at the dawn of the 21st century, I 
thought great new strides were being made in America, but I 
have questions.  Are we digressing to a point in our past 
where profits were put ahead of the health and safety of the 
miners?  Is this the same type of rhetoric that former WBU 
football coach Don Needham spoke about when he said that we 
had to be competitive with China, we have to get rid of some 
of these doggone regulations so the men can mine some coal? 
		Could this be an example of compassionate 
conservatism, a term coined by the Republican party.  After 
all, the current assistant secretary of MSHA is David 
Lauriski, who was appointed by President Bush.  On MSHA web 
page, there is a statement that Lauriski had a vision 
designed to enhance the miners health and safety.  If this 
is his vision of enhanced health and safety, it's a miner's 
nightmare.  
		Some may claim this is a union versus nonunion 
issue.  This is nothing more than a sad, poor joke.  Yes, I 
am a union miner, but I go to work with the same goal that 
every miner goes to work with every day, and that's to do my 
job as safely as possible, look out for myself and my 
buddies, and come back home to my family every day, just 
like you do. 
		Every year my union brothers give me the 
opportunity and responsibility as chairman of the committee 
for the Farmington Number Nine memorial service.  This 
service each November honors the sacrifice of the 78 heroes 
who died in the Farmington Number Nine mine.  We must never 
forget them, for if we do, I fear there will be more gray 
black monuments in the coalfields with more names on them.  
That's something I never want to see.
		Every coalmine safety law that's ever been written 
was because somebody was maimed, crippled or killed.  We 
can't stand idly by and allow profits to come before the 
safety of our miners.  As far as the complication of your 
rule, in my time as chairman of the mining committee, I've 
learned that the more pages, the more complicated a rule is, 
the harder it is to enforce, the more loopholes there are.
		And you spoke earlier about engineering controls. 
 Some of those, like anemometers, PETO tubes, water gauges, 
the average water working miner doesn't have control of.  
It's pretty evident to today that the PDM is the way to go. 
 We can't let the mine operators submit dust levels, because 
that's lunacy.  
		We've seen from today's testimony that they can't 
submit, they can't be trusted to police theirselves.  I'd 
urge you to go back and rethink this rule, bring it down 
into a term where the miners can live under it.  Let's go 
forward in mine safety, and not back to the 18th century.  
Thank you.
		MR. NICHOLS:  Thanks for your comments.  Victor 
Alvarez?
		MR. ALVAREZ:  Victor Alvarez, A-L-V-A-R-E-Z.  I'm 
a member of local union 1570, and I've been employed at the 
Federal Number Two mine for Eastern a little over 28 years. 
 For 28 years I've been going underground five to six days a 
week, and every second of every hour of them days, there is 
a certain amount of dust in the air.  You can see it from 
the time you go in till the time you come out.  Anybody that 
says there is no dust in certain areas of the mine is wrong. 
 It exist everywhere, and we breathe it every day, all day. 
		I don't like the term "acceptable limits," which 
the 2 milligrams is, because I don't think there's an 
acceptable limit of something that's bad for you.  I think 
we need to work to, at some point down the road in the near 
future, eliminate respirable dust in the mines altogether.  
A lot of things the things I have I've just got to today, 
because I've not really been involved in it, but as far as 
the rules being complicated, I've listened.  People closer 
to it than me can't understand it.
		I'm sure, as a representative at the local level, 
I cannot take the information back and give it to our people 
and say, hey, this is what we got, this is what we're going 
to do.  If they can't get it, I sure can't.  And tomorrow 
when I go back to the mine, I'm the guy they're going to 
ask, hey, what's that thing say?  And I can't tell them.  
The only thing I can tell them when I go back is that, my 
understanding of what we got is that under certain 
conditions, we are going to be asked maybe to work in 
respirable dust limits four times the amount we have now.  
And they don't like what we have now. 
		We've always looked to the agencies to protect us 
and help us with what we need, and for the most part, we got 
that.  Right now, I don't feel, as everybody here, that 
we're getting that support or that help, or that we will get 
it on this issue.  But like everybody else, I think that 
what we have now does work, to an extent, better than what 
you all are proposing.  And I think we'd be much better off 
to stay with that. 
		I have been involved with the union for quite a 
lot of years.  I've seen members and our retirees that, when 
they go to mall or the grocery store, they're dragging an 
oxygen bottle.  They can't breathe.  Can't do nothing.  We 
had a member here in the last year or so that was a rotary 
dump operator.  He went underground with an oxygen bottle 
until he couldn't take it anymore, and he had to retire.  
This is what we're looking at.  So we know the problems.
		And like some of the other brothers have said, 
that when dust pumps go in the mine, there's extra 
precautions taken on the section, like the ventilation 
controls, water in the roads, things like that, you've heard 
it all today.  I'm here to reiterate that that does happen. 
 It's not right, but it goes on.  If I had the device that 
they're talking about, the personal monitoring device every 
day, then I would know where I was at.  And if they took the 
precautions to keep me out of that so they didn't get a bad 
sample, then we've accomplished what we've tried to do, and 
I don't have to worry about being in that atmosphere.  That, 
to me, is where we need to go.
		I have listened to both sides here today, and I've 
listened to your side, and you sit and you tell me that -- 
some of you have said it, I don't remember which ones right 
off -- that in your opinion, the dust levels can't go up in 
the mine, or won't go up, for whatever reason.  From what 
I've heard, I disagree.  If that happens to be the case, 
then I'm not sure why we're having these hearings.  If they 
can't go up or won't go up, then we should possibly just 
say, hey, they need to be where they're at.  We can live 
with it until we can improve those levels. 
		MR. NICHOLS:  We want them to go down. 
		MR. ALVAREZ:  I agree 100 percent. 
		MR. NICHOLS:  We still have a 2.8, 3 percent 
prevalence rate of black lung, and we want them to go down. 
		MR. ALVAREZ:  I'm like a lot of the other people 
here.  I agree that one-shift samples may be a good thing, 
because like the gentleman talked about the conditions on 
the long wall, yeah, every day they change.  Three days a 
week you may have horrible conditions.  One or two day a 
week you may not.  It just so happens maybe that day that 
somebody shows up with a dust sample, they take the extra 
precautions, and most of the time the samples come back in 
compliance.  There's a lot more of that that goes on than 
anybody imagines.  I've been there, and I've seen it. 
		Other than that, like I said, I just want to 
reiterate to you people what everybody has said today, to 
know how important it is to us, how much over the years I 
depend on the agencies and everybody else does, to do the 
right thing to help us, because the operators do not do 
anything to help us.  We look to you, what you people know 
and what you can do, and what our people can help us do, as 
far as maintaining a safe level in the mine. 
		MR. NICHOLS:  Thanks, Victor.
		MR. ALVAREZ:  Thank you.
		MR. NICHOLS:  Tim Baker?
		MR. BAKER:  My name is Tim Baker.  It's B-A-K-E-R. 
 and I've listened for a long time, and I've heard a lot of 
people say a lot of the same things.  I disagree with a lot 
of characterizations that have been made, and I guess 
because it was stated that assertions are being made that 
are just aren't true on our side, I want to clarify at least 
a couple of things.  There are a lot of assertions being 
made.
		And to start off, when you create a system that 
builds in the potential for dust to increase in the mine, 
you know, you don't -- and it's as simple as this.  You 
don't go out and buy a car with electric windows and not 
anticipate using them.  If you are going to create a system 
that allows, or possibly allows, increased dust levels to 8 
milligrams, trust me, it's going to happen.  Just like I 
have got to sit here, and have gone to the meetings with 
Bob, and Bob has been extremely helpful, I will give him 
that, and had him tell me, trust me, the inspections are in 
a policy manual, and we're going to follow that policy 
manual.  Although I'll give Bob a lot of credit, he hid 
happen to say, now, those policy manuals are subject to 
change anytime the administration decides they want to 
change them.
		So there's a lot of "trust me" stuff going on, but 
the assertions are clear.  The assertions that are being 
made on that side, the dust levels won't go to 8.  Then you 
should never put any condition in the rule that would 
possibly even conceive that idea.  Because if you build it, 
they're going to use it.  We've been in the mining industry 
long enough to understand that.  
		And you know, there are operators who sat in this 
room, who I truly believe -- and I have dealt with some of 
them -- would do whatever they could to protect their 
workers.  There are a whole lot out there, given the 
opportunity, they're going to go to 8.  And we've used the 
example, well, you know, sometimes we'll just -- the 
operator standard will be 2.5.  I'm here to tell you, you do 
not have that right.  You, on this panel, and your agency do 
not have the right to increase dust levels beyond 2 
milligrams, for any reason at all.  
		You've overstretched your authority.  Congress 
clearly mandated, and I'm going to read it because it's just 
a few sentences.  "Effective three years after the date of 
the enactment of this Act, each operator shall continuously 
maintain the average concentration of respirable dust in the 
mine atmosphere," not what's behind the helmet -- "in the 
mine atmosphere during each shift to which each miner in the 
active workings of such mine is exposed at or below 2 
milligrams of respirable dust per cubic meter."
		You do not have a right to increase that by any 
stretch.  Not by -- you can't go to 2.1, guys.  Because 
Congress said you can't.  Now, you have the right to 
promulgate rules, and we can argue that, and we'll make our 
case based on what we believe to be in the Act in current 
regulations.  But you don't have a right to circumvent 
Congress, and that's what this rule does.  So I just want to 
kind of make that point clear.
		And the other thing is, I do take offense that 
we're being told that it'll never get to 8.  Then by God, 
don't put any mechanism in there that allows it to, even in 
the wild blue yonder, ever approach that.  Don't put it in 
there.
		I'm going to start with some specific written 
comments, and then I am going to continue to comment on some 
of the things that I've heard to this point.  And I'll to be 
brief, but sometimes that's not easy.  And I really do want 
to start with some of the definitions, because the 
definitions are going to set, generally speaking, the basis 
for what we understand to be the rule.  And some of them are 
straightforward, and I understand some of them have not 
changed since either the current regulation or they have not 
changed from the 2000 proposal.
		But we do begin to depart on some of these issues 
that we need to look at, and "approved sampling device" is 
one of those issues that -- and it may be nothing, and maybe 
you can tell me if it's nothing.  But this term was not 
contained in the 2000 proposed rule.  Part of the language 
under number 1 of the definition was included under 
"respirable dust" of the current rule.  
		However, references to devices approved by the 
Secretary of the Interior or Secretary of Health Education 
and Welfare have been eliminated.  And I don't know if 
that's significant or if it's not, but it's no longer in 
there.  I got to be honest with you, when things either 
appear or disappear from what we're used to, it raises 
concerns in our minds.  And some of those concerns can be --
		MR. REYNOLDS:  Do you want an answer?
		MR. BAKER:     I'm not --
		MR. REYNOLDS:  It's because they don't exist 
anymore, and Interior -- MSHA moved over from Interior to 
Labor. 
		MR. BAKER:  But some of those are still in use?  
Or are you saying they're not?
		MR. REYNOLDS:  At --
		MR. BAKER:  Then see, you need to explain these 
things.  Okay?
		MR. REYNOLDS:  Okay. 
		MR. BAKER:  Then I need to know that.  I was told 
the purpose for the elimination of some of these nuances 
within the definition was that the Agency has crafted a 
section that will allow equivalent concentrations to be 
used, and that was for approved sampling devices, and that 
personal dust monitors were now part of the picture.  And 
we'll got into that argument a little bit later.  But if 
that's the case and they're no longer in use, then see, I 
don't have a concern with that particular issue.  So we can 
move on to -- the definition of "district manager" hasn't 
changed.  Unfortunately, the power placed by this Agency in 
this role in the district manager is, in our opinion, 
extreme.
		We have district managers out there who will 
require certain specific parameters be followed.  We have 
others that I don't believe will make the first effort to 
ensure that they are followed.  And clearly, the rule falls 
to the district manager.  The district manager will say, 
hey, Marv, you know what, you're a good guy and you used all 
your engineering controls.  Got to got to PAPR.  That's 
clearly the way I understand the rule, and that's clearly a 
problem.  And I did hear somebody say that a panel of 
experts --
		MR. REYNOLDS:  It's not the district --
		MR. BAKER:  Okay.  Will a panel of experts do 
this?  Because if it's the same panel of experts that wrote 
the rule, I'm not interested in that panel.  I'd like a new 
one. 
		MR. REYNOLDS:  No, it would be --
		MR. BAKER:  Okay?
		MR. NIEWIADOMSKI:  Mind you, the district 
manager's not going to make a decision on whether or not 
you've exhausted all feasible engineering controls.  On that 
panel you're going to have -- I mean, the administrator 
makes the determination to file a determination.  Okay.  So 
he's going to be provided with information from a panel 
that's going to consist of an individual from that district 
where the affected mine's located.  He's going to involve 
technical support.  It's going to involve somebody from 
headquarters.  It should involve somebody from another 
district.
		And at times we're also going to involve NIOSH, 
because of their technical expertise in controls.  They, in 
fact -- probably it's going to depend on that particular 
group.  They will, in fact, make a mine visit to make their 
own visual assessment of whether or not an operator has 
indeed implemented all feasible engineering controls.  Once 
that panel, that group gets together and makes the 
determination, they will recommend to the administrator 
whether or not an operator has indeed implemented all 
feasible engineering controls.  That's how it's supposed to 
work. 
		MR. BAKER:  But let me ask you this.  Where's that 
in here?  This is the rule.  The simple hard copy of the 
rule.  Because if it's not in there, where am I assured that 
that's going to occur?
		MR. NIEWIADOMSKI:  It's in it section by section.
		MR. BAKER:  I'll be honest with you, maybe I 
missed it, but I don't see all those people listed in this. 
 I don't see them listed.  I have read something about it in 
the preamble. 
		MR. REYNOLDS:  It's on page 10818, in the center 
column about halfway down. 
		MR. BAKER:  108?
		MR. REYNOLDS:  Yeah.
		MR. BAKER:  108?
		MR. REYNOLDS:  It says, "When the administrator 
receives such a request, guidance will immediately be 
solicited from a panel of experts specifically established 
to address such matters.
		MR. BAKER:  108?  I'm sorry, Larry, I didn't get 
the page. 
		MR. REYNOLDS:  10818. 
		MR. BAKER:  That's in the preamble, is that 
correct?
		MR. REYNOLDS:  Right.
		MR. BAKER:  That doesn't do me any good.  It's not 
in the rule.  We've had this discussion previously.  If it's 
in the rule, I understand that it's enforceable.  I 
understand that.  If it's in a policy or if it's in a 
preamble, I'm not so --
		MR. REYNOLDS:  This is contemporaneous guidance 
issued with the rule, which is legally -- has legal effect. 
		MR. BAKER:  We've been there. 
		MR. REYNOLDS:  We've been down there before. 
		MR. BAKER:  We've had this discussion before.  
We've been there on other rules.  Those things change with 
time.  My concern is, if it's not in these pages, it's not 
real.  And we've experienced it.  These guys have 
experienced it.  It's not real if it's not in the rule.  And 
I understand what you're saying.  It's in the preamble.  The 
preamble reads real well, but I gotta tell you, and Joe 
talked about this earlier, it's a lot of "trust me."  And if 
it's not written in black and white in the rule, where an 
inspector can get to it --
		MR. REYNOLDS:  Okay.  Then you would like to see 
it in the preamble to state who it was that would make the 
determination?
		MR. BAKER:  Well, who's going to make those 
determinations.  And if, in fact, you're going to have a 
panel of experts that's going to do this, we should be able, 
without shuffling through 90 double-sided pages to figure 
that out.  I mean, it's massive.  So that is a problem.  
That is a concern.  We've, in essence, vested a whole lot of 
power in some people that we're not even sure who they're 
going to be at this point. 
		MR. NIEWIADOMSKI:  Actually, the rule says that 
it's the administrator --
		MR. REYNOLDS:  Actually, it says, "The 
administrator of the coal mine."  It would be the 
administrator --
		MR. BAKER:  That gives me one.
		MR. NIEWIADOMSKI:  And it's the administrator's 
call. 
		MR. BAKER:  So that would fluctuate.  It could be 
this group this time, and that group the next time?  Is that 
what you're telling me?
		MR. NICHOLS:  It may change from time to time who 
he wants advice from --
		MR. BAKER:  That's the problem that I have.
		MR. NICHOLS:  I mean, the administrator --
		MR. BAKER:  And we understand.  We've been told 
that a real catalyst for this rule is the new 
administration.  We've been told that straight up in the 
meetings that we had.  So you know, I guess it could get 
worse, or it could get better, based on whoever's sitting in 
the seat. 
		MR. NICHOLS:  Currently that's Ray McKenney. 
		MR. BAKER:  No.  No.  We were told the leadership 
of MSHA was the catalyst for making this rule.  And I'm 
assuming the leadership got to be Dave.
		MR. NICHOLS:  The person that makes the cut on 
engineering controls is Ray McKenney. 
		MR. THAXTON:  That's the administrator for Coal 
Mine Safety and Health. 
		MR. BAKER:  You sat in the meeting, and I'm not 
going to get into a whole argument on this, because I got a 
whole lot more, but you sat in the meeting where it was the 
leadership of MSHA, the administrative leadership changed, 
and that's why the rule is what the rule was.  That's 
exactly what was said in the meeting.
		MR. NIEWIADOMSKI:  Well, we're talking about two 
different things.  What Marv is talking about as to who 
makes the determination of whether or not an operator has 
used all feasible engineering controls, and you're talking 
about who's the driving force behind this rule.
		MR. BAKER:  Well, I thought that's where we got 
to.  Okay then, that's my fault if I'm talking two subjects 
at the same time.  But you got to remember that what I'm 
looking at, if I don't have people named in this rule, I 
don't know who it's going to be.  And it should be a 
consistent forum.
		MR. REYNOLDS:  But Tim, you also realize, you 
know, we've heard a lot of comments that this rule, the way 
it's written right now, it's complicated. 
		MR. BAKER:  It sure is. 
		MR. REYNOLDS:  By adding more and more, it's going 
to be much more complicated, okay?
		MR. BAKER:  I can simplify it for you.  I can 
simplify it for you.  Let's do personal continuous dust 
monitors.  Let's mandate those dust monitors.  Let's not say 
to operators, gee whiz, if you feel like using them, you 
can.  Let's say, listen, you got miners going underground?  
Give them the personal dust monitor.  We'll know exactly 
what you got every day.  We'll be able to verify it every 
day.  We'll know where the problems are every day.  And you 
know what?  Let's stay with 2 milligrams or less, and we can 
go from there.  But that solves the problem. 
		MR. REYNOLDS:  So you're, in fact, proposing -- to 
clarify, you're proposing to shift from occupational 
sampling, which the Act dictates, to personal sampling?
		MR. BAKER:  No, what I'm saying is, you would have 
the ability, if you wanted to solve the problem entirely, 
you could -- well, you could mandate those for the DOs for 
what the Act requires.  Or you could have operators sampling 
everybody.  What would be more ideal than that?
		MR. REYNOLDS:  We really would like your -- we're 
soliciting comment on that.  We'd like to know what you 
think.  Tell us.  Do you want us to do --
		MR. BAKER:  Hey, listen, I think --
		MR. REYNOLDS:  Occupations?  Do you want us to do 
--
		MR. BAKER:  The device that was here --
		MR. REYNOLDS:  Everybody?
		MR. BAKER:  The device that everybody saw, which 
is close and it's around the corner.  And if a rule is 
supposed to be -- as legislative history says, if a rule is 
supposed to be technology driving -- not driven, driving, 
then the best solution would be to have everybody wear one. 
 I mean, then I'm monitored, Dennis is monitored, and Gary's 
monitored.  We all know what we're exposed to today.  That 
would be --
		MR. THAXTON:  That's what we're asking for --
		MR. REYNOLDS:  We're asking --
		MR. THAXTON:  If you have those comments --
		MR. REYNOLDS:  Yeah, we would like to -- 
		MR. THAXTON:  We would like to hear that from you. 
		MR. BAKER:  Well, you got it. 
		MR. THAXTON:  As to how you want it done, who 
should wear it, how many people should wear it, how often 
should they wear it --
		MR. REYNOLDS:  Who has the authority to deal with 
the --
		MR. BAKER:  You have the authority to promulgate a 
rule that says you got to do this stuff. 
		MR. REYNOLDS:  No, no, no.  I'm talking about the 
actual details of how you would use the monitors.  That's 
what we need --
		MR. BAKER:  No.  You know what, let's stick with 
this, and I'll tell you why.  Because we've gotten into this 
-- we're going to get into a whole new area, and the fact of 
the matter is, the last time everybody sat in the same room 
and gave comments, it appears that we weren't paid attention 
to then.  So we can deal with that.  Let's dispense with 
this.  And then we can deal with that.  Because if we don't 
dispense with this, we're never going to get to that. 
		MR. NIEWIADOMSKI:  Our intent is not to be 
argumentative, okay?  But the last proposal, and I mean, we 
went through this before, and we asked for specific detailed 
comments on the use of continuous monitoring technology.  
How would that -- what would that program look like.  And 
officially, really, other than, you guys need to use it, 
there were no comments that were presented to actually 
outline exactly how this strategy would work, okay?  
		I mean, we've asked for them, and that's why we 
made the best cut at exactly how this should work.  But what 
we're also asking is, yes, we may not have hit it right, 
okay?  And that's what we're asking.  Should it be in lieu 
of plan verification?  Should everybody be sampled?  How 
would you actually use something like that?
		MR. BAKER:  But that's not necessarily true, 
George.  The fact of the matter is that almost to a person, 
the individuals that testified from our organization, at one 
time or another, talked about personal dust monitors.  
Whether that was just a cursory, we need to use these 
things, or whether it was an in-depth, here's what we're 
looking at.  If you're saying that you took a cut at it 
based on that information, that information is not in this 
rule.  
		This is a voluntary plan that, in fact, the plan 
itself cripples the use of those -- a voluntary program.  I 
mean, we heard one operator sit here and say he can't 
foresee anybody using those if they're not required.  And I 
give him credit.  I mean, he was being truthful.  The plan, 
as written, actually cripples the use of those personal dust 
monitors.  It does.  It does. 
		MR. NIEWIADOMSKI:  But you also heard him say is 
when I posed the question, do you want MSHA to mandate their 
use, and what was his response?
		MR. BAKER:  Do they want MSHA to mandate roof 
bolting?  Does anybody want any government agency to mandate 
anything?  If you're in the business world, I guess the 
easiest way is to have nobody mandate anything, and you can 
do your own thing.  That's not our option.  That should 
never be an option, from either side of this table.  
Sometimes people are going to get hit with mandates that 
protect individuals who work for them, whether they like it 
or they don't.  And that's just life.  That is just life.  
But we will get into a longer outline of how the PDM 1 will 
work, our vision of that.  And I should probably let 
individuals who have worked on it longer.  But you will get 
that information from us.
		But if we can move on, and I'll try to be a little 
bit quicker.  I'm a little confused, too.  We have an 
"equivalent concentration."  This is not contained in the 
current regulation, and it was not contained in the 2000 
rule.  Under the proposed rule, it establishes an eight hour 
or less sampling time, regardless of the duration of the 
miner's shift at the operation they are working.  Again, 
what we have is, the Agency has created a formula to 
determine what the concentration would be, based on what the 
sample says, and then you do a formula that gets you to an 
eight-hour shift. 
		The concern there is obvious.  If we had the 
ability to monitor individuals over the entire shift, under 
the current scheme with the current sampling devices, why we 
would resort to formulas to get an answer.  Our concern is, 
why wouldn't we just sample them for as long as they're 
going to be there?  And that's a concern that we have.  And 
we believe that the language in subsection --
		MR. KOGUT:  Can I address that?  Say you had a 
personal continuous monitor, and you monitored somebody and 
he worked 12 hours, and the concentration -- the average 
concentration, or the concentration that came out on this 
personal monitor over that 12-hour shift was 1.9 milligrams 
per cubic meter.  That person would be receiving a dose of 
dust in his lungs that's substantially greater than a person 
who worked an 8-hour shift at 2 milligrams per cubic meter, 
or an 8-hour shift at 1.9.  Do you understand what I'm 
saying?
		MR. BAKER:  I understand where you're going. 
		MR. KOGUT:  Yeah.  So the point of this is to make 
an adjustment in that concentration, to reflect the fact 
that that person is working at that 1.9 milligrams per cubic 
meter for longer than 8 hours.  He's received a higher dose 
of dust than he would be if he was working for just 8 hours. 
 That's the point of the formula.  And you'd have to make 
that -- you'd want to make that sort of adjustment, I think, 
regardless of whether you're using the current sampler or a 
personal continuous sampler. 
		MR. BAKER:  Well, I would suggest that that's not 
what we're talking here.  I mean, what I'm saying is, you go 
ahead and sample him for that 12 hours, and make those 
adjustments, and we can get into that later.  But you sample 
him for the entire shift, if that's 8 or that's 10 or that's 
12, and you make those basic assumptions, but to make 
adjustments up or down -- for instance, if I go into an MMU 
and I'm only there for five hours, you're going to adjust 
that up?  Or if --
		MR. KOGUT:  No, no.  If you're looking at this 
definition, we're talking about cases where you're working 
longer than an eight-hour shift.
		MR. BAKER:  I understand that.
		MR. KOGUT:  And then what this definition is 
saying is that to get to the equivalent eight-hour 
concentration, you adjust that concentration upwards. 
		MR. BAKER:  Well, I'll tell you what --
		MR. KOGUT:  You're multiplying by --
		MR. BAKER:  Then at least let's do this.  Let's 
make a little more clear, because that's not the way that 
thing reads. 
		MR. KOGUT:  Well, it says --
		MR. BAKER:  And I'm not -- you know what, and if 
I'm going to get an explanation on every one of these, then 
we're going to be here a long time, and I don't mind that, 
but that's not the way it reads.  To the layman out there 
reading it, that is not the way it reads.  I'm telling you 
right now.  The language in subsection 3 is a departure from 
the sampling procedures that we currently do understand, and 
it includes the use of PAPRs.  Now, that's what subsection 3 
and equivalent concentration deals with.
		The required use of PAPRs by miners would allow 
dust levels to be raised based on a protection factor.  For 
example, a unit with a protection factor of two would be 
permitted to -- would permit the operator to force miners to 
work in a mine environment containing 4 milligrams of dust 
per cubic meter.  Respirable dust per cubic meter.  
Likewise, a factor of 4 would permit 8 milligrams of 
respirable dust.  
		And we get into a broader explanation of it later, 
but the concern that we have here is that part of this 
section, and part of the reason for a definition like this 
is to allow those things to occur.  And it does.  In fact, 
in the definition it talks about those things.  So that is a 
concern that we have.  That's what that definition, in our 
estimation, does.
		"Powered air-purifying respirator."  This is not 
contained in the current regulation.  The agency has altered 
the definition of "PAPR" in the proposed rule, moving away 
from the previous determination in 2000 that this device 
would be a "loose-fitting helmet that delivers filtered air 
to the miner."  The Agency has now decided that the PAPR 
must form a partial seal with the miner's face.  And there 
is a difference.  There is a difference.  And we've talked 
about problems with those PAPRs.
		This is contrary to the testimony in the 2000 dust 
hearings.  At those hearings, miners and industry 
representatives" -- and I must say that clearly, Miners and 
industry representatives explained to the Agency that 
respirators currently in mining operations could not be worn 
as approved while performing the duties of the job.  MSHA 
ignored those observations, and is now requiring a more 
cumbersome unit be worn.  The BCOA has admitted the current 
respirators do not function properly, they do not supply 
adequate air, users frequently over-breathe the units, and 
miners cannot wear them with the neck skirts attached.
		The BCOA has asked for a lessening of the 
requirement for approved respirators, so that they can be 
used as they currently are, not in compliance with the 
standard.  And they have asked for that in a meeting we had 
with NIOSH that I am sure that you have the information on. 
		And if we move on to the next one.  If we move to 
"protection factor" -- and I think we're beating a pretty 
dead horse here, but I'm going to going  through it anyhow. 
 It's a new term under the rule.  This is the level of 
protection miners could presumably receive from a particular 
respirator based on the velocity of the air being used to 
ventilate the work area.  The formula used by the Agency 
would assign a protection factor of 4, to areas ventilated 
with 400 feet per minute or less.  This equates to an 8.0 
milligram of respirable dust in the mine atmosphere, and 
could potentially lead to that. 
		Where there is a velocity of 800 feet per minute, 
the respirator would be assigned a protection factor of two. 
 This allows miners to work in an atmosphere containing four 
milligrams per cubic meter of respirable dust.  PAPRs used 
in different work areas of the mine would be assigned 
protection factors based on the air velocities.  The 
respirable dust levels would be based on those factors.  
Now, that's my understanding of the definition. 
		What we're doing is, we're reversing the 
respirable dust standard mandated in the 1969 Mine Act, and 
raising dust levels in coal mines is not the approach, and 
that is not the approach that should be taken.  This is 
contrary to the law.  It diminishes workers protections, and 
we will not permit those things to occur.  The dust levels 
MSHA would approve are far greater than those permitted by 
Congress, and we've already had a brief discussion on that. 
		The union is concerned that this will encourage 
operators to set air velocities at low levers, and offer 
administrative controls and PAPRs.  The proposal indicates 
that MSHA will not require operators to boost air to levels 
necessary to lower dust under the current standard.  That 
would be in conflict with the section 303(b) of the Mine 
Act, and this signifies a significant departure from 
engineering controls.
		"Verification limits."  The proposed rule 
determines dust concentrations as an equivalent factor based 
on an eight-hour exposure.  There are no longer references 
to any full-shift sampling by the Agency.  The Agency claims 
to base compliance sampling on 2.0 milligrams of respirable 
dust, and 100 micrograms of quartz.  However, because of the 
mathematical formulas, confidence in the levels that you 
have laid out there are not that high among miners.  There's 
a real concern there.  There's a level of uncertainty on the 
part of the miners that they can confidently believe that 
you're going to do that."
		If I can go quickly into section 7100, "Respirable 
Dust Sampling when Quartz is not Present."  This section 
mandates that the average concentration of respirable dust 
must be maintained by the operator at or below 2 milligrams 
per cubic meter in active workings.  The operator is further 
required to maintain the average dust concentration of 
respirable dust within 200 feet outby the working face of 
each section's intake airway at or below 1 milligram.  The 
application of these sections of the proposed rule do not 
support the position outlined in 7100. 
		These sections appear to require operator 
compliance with the proscribed respirable dust limits.  
However, once the operator conducts verification sampling, 
there will be virtually no additional sampling by the 
operator to assure compliance.  The Agency has described 
levels of 2.0 and 1 milligram for active workings and intake 
airways, respectively, under the pretense that these are 
hard and fast enforceable standards.
		The reality is, these numbers will mean nothing 
with regard to the levels of dust the miners will be exposed 
to in the course of their routine duties.  The miners will 
never be measured over an entire shift.  Instead, the Agency 
has created a calculation based on mathematic formulas and 
determining exposures of eight hours.  These are not real 
measurements of exposures, or actual exposure times.
		They represent an estimated exposure based on the 
limited information that a sampling device may or may not 
collect under the proposed rule.  The equivalent 
concentration is, therefore, not a true reading of the 
atmosphere the miner is working in during the entire shift. 
 The Agency's use of citation threshold values, CTV, will 
allow operates to force miners to work in concentrations 
above 2 milligrams, without the threat of a citation.  A 
citation requires a confidence level of 95 percent before 
action is taken. 
		For miners this means respirable dust levels based 
on a 2.0 standard will be permitted to be as high as 2.32 
milligrams without any enforcement action, without any 
citation issued.  This is contrary to the recommendations of 
the dust advisory committee, which clearly stated, there 
should be no upward calculation based on measuring sampled 
incorrectness.  They clearly made that argument.  And MSHA's 
criteria document reiterated that.
		The approval of PAPRs places the miners at even 
greater risk for dust exposure.  Based on MSHA's writing of 
the rule, PAPRs with a protection factor of 4 would allow 
respirable dust levels at the mine -- could allow dust 
levels in the mine atmosphere to reach 8 milligrams.  
Considering the required confidence level of 95 percent, 
would this not allow miners to work in concentrations 
possibly at 9.31 milligrams per cubic meter of respirable 
dust without any citation being issued, based on the 95 
percent confidence level?
		The Agency's action regulation this rule is 
contrary to the recommendations of the dust advisory 
committee.  In November of 1996, that commitment recommended 
that MSHA should consider lowering the exposure of coal mine 
dust.  MSHA  has proposed the opposite.  The advisory 
committee recommended, in unambiguous terms, that MSHA 
should make no upward adjustment to the PEL to account for 
measurement uncertainties.  MSHA has proposed the opposite.
		The dust advisory committee recommended that MSHA 
should adjust the PEL to account for extended work shifts 
and work weeks.  MSHA does not propose this.  In September 
of 1995, the National Institute of Occupational Safety and 
Health, NIOSH, issued its report on occupational exposure to 
respirable coalmine dust, the criteria document.  That 
report makes critical recommendations for protecting miners' 
health.  NIOSH recommended respirable coalmine dust be 
limited to 1 milligram per cubic meter as a time-weighted 
average.
		Concentrations up to 10 hours per day in a 40-hour 
week.  MSHA has determined to increase respirable dust in 
the mine atmosphere, and have disregarded any suggestions of 
sampling beyond 8 hours.  Increasing respirable dust levels 
in the mine atmosphere, utilizing any means contained in the 
proposed rule is a violation of the Mine Act.  
		The Act clearly requires dust levels be maintained 
at their lowest possible level, and at no time are they to 
exceed 2 milligrams per cubic meter.  There is no 
consideration given to any increases, even with PAPRs, 
equivalent concentrations, citation threshold limits, or 
confidence level, or any other Agency terminology that may 
be out there.
		MSHA has, however, overreached its authority, and 
is infringing on the powers of Congress by proposing this 
rule.  The union would submit that sampling of enforcement 
schemes permitted by this proposal would turn the clock back 
to the days when miners did not have to fear the possibility 
of contracting black lung, but they only had to wonder at 
what age they would be stricken by the horrible disease. 
		Miners have railed for years that dust levels in 
mines must be brought under control.  During the previous 
dust rule hearings in 2000, they advocated a reduction in 
the current 2.0 milligrams per cubic meter standard.  MSHA 
has proposed the opposite.  The use of personal continuous 
dust monitors can address many of the dust problems the 
proposed rule fails to do.  These devices would allow for 
the continuous monitoring of all designated areas of the 
mines, at least, and at all miners, at best.  they would 
provide data on the dust conditions miners are exposed to -- 
and you've heard it many times already today -- 24 hours a 
day, 365 days a year.  The technology is in the final 
testing phases, and should be permitted to be completed, so 
that an adequate rule can be built around that device.
		"When quartz is present."  Section 7101.  This 
section establishes or would establish criteria MSHA will 
utilize to determine a reduced respirable dust standard for 
an MMU.  It also specifies a sampling scheme the Agency will 
use to base that determination.  The Agency will predicate a 
reduced dust standard for an MMU on the average data 
received from the three most recent samples obtained under 
this section. 
		These are all MSHA samples and all supposedly 
gathered within 30 -- I thought it was 30, but Bob, you said 
today, 15 days -- of any sample that reveals a concentration 
of 5 percent or more quartz.  The requirement for taking 
these samples is not contained in the proposed rule, and 
will not become part of the standard.  The Agency will 
exercise their option to take the samples in the prescribed 
time frame, based on the current coalmine health inspection 
procedures handbook.
		The handbook is not part of the rule, and will be 
subject to change at the direction of Agency policymakers.  
This could allow samples for respirable dust, including 
respirable quartz dust, to be reduced to as few as three 
times per year.  The union has determined the proposed rule, 
if enforced as written, would not require the Agency to 
implement a reduced dust standard for months, due to 
infrequent sampling. 
		The practice of averaging dust samples to 
determine the magnitude of the hazard, especially a known 
hazard such as quartz, has no place in a rule presumably 
designed to protect the health of the miners.  The union has 
consistently demanded single samples, and continuous 
monitoring for determining dust concentrations.  Yet on such 
an important issue, the Agency has chosen a less protective 
means to determine health standards. 
		Criteria for determining the amount of quartz 
present in the mine atmosphere is also extremely 
complicated.  And it is complicated when you look at it on a 
surface level.  The agency's formula is based on 
percentages.  And I think Bob and I have had this 
conversation before.  The Agency's formula is based on 
percentages.  The percentage of quartz found during 
sampling.  However, enforcement is based on micrograms.  The 
decision to use both of these measurements can be for no 
other reason but to confuse the process.  And I realize it's 
gone on for years. 
		The miners and their representatives will, given 
relevant data, either in percent of quartz or micrograms, be 
able to determine the relative hazard that is presented.  
However, a conversion from one measurement to the other is 
not practicable for their purposes.  Nor is it helpful in 
the enforcement.  The Agency needs to determine which way 
they want to present the information, and be consistent.  
The dust advisory committee recommended MSHA cause the 
lowering of silica exposure of miners.  
		The committee made a determination, based on those 
findings, that 25 percent of mechanized mining units, 75 
percent of roof bolters sampled bimonthly by coal operators 
are required to comply with the more stringent dust 
standard, due to the presence of quartz.  The Agency ignored 
those facts, and is proposing to increase quartz level -- 
because when you increase respirable dust, you're going to 
increase quartz.  It's going to happen -- and require the 
use of PAPRs.  The Agency has also -- recommendations by the 
committee to adjust PELs for extended work shifts and work 
weeks.
		I would like to move on to the use of 
supplementary controls, types and conditions for use.  
That's 7209.  The proposed rule in this section contains 
provisions that allow mine operators to replace 
environmental and engineering controls with respirators, 
known as PAPRs.  Section 7209 states that "if the 
verification limit is exceeded and the operator believes 
that the MMU is using all feasible engineering and 
environmental controls during the operator sampling, under 
7206 they can request supplemental controls in the form of 
PAPRs.  These will be used in lieu of engineering and 
environmental controls." 
		Depending on the circumstances, that would allow 
the operator to increase respirable dust levels in active 
working up to 8 milligrams.  This could apply to all mining 
sections.  At mines where miners have a representative, they 
would be notified of the operator plan, send comments to 
MSHA, but have no legal right to stop the plan approval. 
		Operators could gain approval to place everyone in 
a PAPR on a mining section for the full 8, 10, or 12 hours. 
 Once approved by MSHA, miners could be mandated by the 
operator to wear PAPR respirators.  The operator is 
permitted to use the PAPR and/or administrative controls 
until feasible engineering controls become available, or 
MSHA revokes the plan for failure to comply. 
		This proposed rule is much worse than the proposed 
rule of 2000, which was soundly rejected by miners.  The 
2000 proposal would have only allowed PAPRs and 
administrative control plans for long walls and maximum dust 
levels of 4 milligrams per cubic meter.  This one goes twice 
that high. 
		The Mine Act of 1969 prohibited the replacement of 
engineering and environmental dust controls with respirators 
and administrative controls.  It is very specific regarding 
that restriction.  Section 202(b)(2) of the Act says 
unequivocally "within three years from the effective date of 
the 1969 Act, each operator shall continuously maintain the 
average concentration of respirable dust in the mine 
atmosphere during each shift to which each miner in the 
active workings of such mine is exposed at or below 2 
milligrams of respirable dust per cubic meter."
		Section 202(h) said that "approved respirators 
shall be made available to all persons whenever exposed to 
concentrations of respirable dust in excess of the levels 
required to be maintained under the Act."
		The Mine Act went on to state, "the use of 
respirators shall not be substituted for environmental 
control measures in the active workings."  The legislative 
history of the 1969 Mine Act further states, "the committee 
bill expressly prohibits as a general policy the use of 
personal protective devices, including respirators, as a 
substitute for environmental controls."
		The type of PAPR that MSHA is seeking to have 
mandated on miners for their use has been found to be 
faulty.  MSHA is aware, but it has chosen to ignore it.  
There is considerable evidence that the only PAPR approved 
for use in underground mines cannot be reasonably be 
expected to be worn in its approved state, given the 
conditions of the underground mine.
		A number of miners and their representatives made 
this clear to MSHA during the public hearings of 2000.  
Miners complained about the bulky PAPR respirators, they are 
difficult to use in various areas of the mines, such as 
weaving around Jackson hoses on long walls.  Miners 
complained that when they were used as approved, which would 
result in the enclosure of the head, they fogged up easily. 
 Miners must remove the neck skirts or seals in order to 
adequately breathe.  This voids the approval and leaves the 
miner breathing outside contaminated and unhealthy coal 
dust. 
		They complained about the face shields becoming 
grimy from dirt and humidity, and a loss of vision.  With a 
dirty environment, they try to wipe the face shields with 
their dirty sleeves or glove, making things worse.  The face 
shields scratch much too easily to try to consistently clean 
it throughout the day.  Lifting these shields would then 
again void the approval for the device. 
		The filters in the PAPR respirators are so 
restrictive that miners have difficulty breathing through 
them, and some have -- and in the last round of hearings, I 
was present when they testified to replacing the filters 
with socks and rags.  These void the approval of the units 
and results in miners breathing unhealthy dust.  These were 
the problems the framers of the Mine Act sought to avoid.
		The acknowledgment of the problem with PAPRs 
normally comes from miners.  They came from the industry, as 
well.  Even in the mine once operated by Assistant Secretary 
of Labor for MSHA, who proposed this rule, the following 
were excerpts of two questions posed by Randy Tatten, the 
top safety official of Energy U.S. Mining, by NIOSH official 
Mr. Hewitt, and Mr. Grayson at the MSHA public hearing in 
2000.
		Mr. Hewitt asked, "what would your opinion -- or 
your professional opinion regarding height limit situations 
and the use of PAPR and other type of similar respirators?" 
 Mr. Tatten replied, "Certainly, as heights decrease and 
space becomes more confined, it becomes more difficult to 
wear that apparatus."  
		Mr. Grayson asked, "With respect to the use of 
PAPRs, in your mind, in what condition are they being used? 
 In what position are they being used?  And in an approved 
condition or a modified condition?  Even if it's the miners 
who may modify it at times?"
		Mr. Tatten replied that he would "have to answer 
honestly and say that they were being used in a modified 
condition.  Miners, some, you know, have typically removed 
the shroud, or I don't know the term of it, of course, when 
you say that they are properly used, I think NIOSH -- to 
that I would mean, do they keep the face pieces down at all 
times?  No, they don't.  They raise the face piece so that 
they can communicate."  
		"Have you had problems with them fogging up?"  Mr. 
Tatten responded, "We have had that problem recently, Larry. 
 Since we've been required to use the new version of the 
filter" -- and I believe this is the new HEPA filter -- 
"there has been what seems to be reduced flow in the units, 
and there has also been resulting fogging.  And we are 
really working hard to try to correct that."
		During the same hearing, the administrator for 
Coal Mine Health and Safety, Mr. Nichols, questioned a top 
safety official from the National Mining Association about 
PAPRs, and the numerous complaints.  Here's what Mr. Watzman 
had to say.  "Mr. Nichols.  Well, generally we've had a lot 
of testimony that they're too heavy, they don't work, they 
fog up.  Miners use rags and whatever for filters.  And are 
you aware of any major problems with the Airstream helmets 
currently in use?"
		Mr. Watzman responded by saying, "I know that 
there was a problem, as we have discussed with NIOSH 
regarding the new filters that are used in the helmets.  The 
HEPA filter, as opposed to that filter that we used 
previously.  I know that there have been some problems that 
have resulted, but I also know that there are efforts 
underway to come up with a solution."
		So back in 2000, it wasn't just miners who were 
talking about the problems with these Airstream helmets, it 
was the operators.  I'll be brief on this one also, as brief 
as I can.  The following is what a top industry safety 
official said at a national public hearing held just this 
year on April 10th conducted by NIOSH, to discuss the 
standards for PAPR respiratory devices.  
		He cited that several years ago NIOSH changed the 
regulations on the filters for PAPRs to a high-efficiency 
filter.  The safety official said, that as a result, the 
device could no longer serve the purpose of getting the job 
done.  He noted that the changes also resulted in more 
weight for the miner to carry.  He cited that, on one PAPR 
device, the miner was not comfortable and removed the 
shroud.  This, of course, voids its approval. 
		What this means is that the same problems cited in 
2000 continue to exist today.  MSHA rules of supporters and 
PAPRs want to mandate miners to use these leaky helmets 
while they ignore the engineering and administrative 
controls.  While doing this in the air miners currently are 
exposed to, they could raise levels to four times the 1969 
level set under the Act.
		With that, what I would like to do -- and I heard 
a lot of comments, and I know you're as anxious to get out 
of here as I am.  The only good part about that is, I am the 
last speaker.  I heard several comments being made, and I 
also would like to, before I forget, enter into the record 
the April 17, 2003, letter from Joe Main of the 
International Union requesting that this rule be withdrawn.
I think we've covered some of these things, but I just want 
to reiterate some of the notes I've taken while other people 
were talking, so that I can have this clear in my mind, and 
it's clear for the record.  
		There is a possibility that many mines or MMUs 
will only be sampled three times a year.  This is an extreme 
concern.  And I shouldn't say it's a possibility.  Under 
this rule, that is going to happen at certain locations.  I 
think that's a given.  I think the preea (phonetic) that we 
discussed that was part of this rulemaking, which is part of 
this mess here, clearly defines that there is going to be a 
certain amount of mine operators that only see a compliance 
inspection three times a year. 
		You've heard it before.  That is not enough.  We 
should be doing more sampling.  The rule retards the 
development and the use of a PDM.  Historically, rules -- or 
I should say, when the Act was being debated, those 
individuals in Congress made their point clear that any rule 
that comes into existence should force technology.  This 
clearly retards that technology.  With technology so close, 
and right around the corner, we should be encouraging it.  
This rule does not do that. 
		I heard George mention earlier that there are some 
limited areas where they have found 10 milligrams per cubic 
meter, and I'm assuming that's outby on the long wall.  I'm 
here to tell you that if we're finding it once in a while, 
it's there on a more frequent basis, and continuous 
monitoring is something that really needs to be applied 
here. 
		We've talked about, but I want to reiterate one 
more time, that when a rule comes out, no matter who's doing 
the sampling, the miner's representative should be there.  
It's as simple as -- and especially, what I think boggles 
the mind, with the reduction in the number of samples that's 
being proposed, why at the same time you wouldn't say, well, 
gee, since we're only going to do it the maximum, 10, that's 
less than what would have been done before.  Every one of 
them should have a miner's rep present, and they should be 
paid for that time.  But they should be present at all 
times. 
		There is a definite lack of confidence, and I 
think that was expressed probably most articulately by John 
Gallick, who said, we don't trust you, labor doesn't trust 
us, and we don't trust anybody, and nobody trusts anybody 
here.  And I think that I'll just kind of put this on with 
his comments as part of his, to add on to that.  This rule 
does nothing to adjust that.  This rule does nothing to 
build confidence in any individual or any group.  As a 
matter of fact, it erodes that that much further. 
		I think, in closing, what I'm going to say is 
that, at some point in time, we've got to assess this 
situation probably more carefully.  And the people from the 
Agency have got to realize that sometimes, whether we like 
it or not, and sometimes, whether you like individuals or 
not, the people sitting on this side of this table in this 
room are your best friend.  We truthfully are.  We go with 
the inspectors when they're at the mine.  We make sure that 
if there's a question on what was seen or what was not seen, 
that our individuals are there to support that inspector.
		So in many respects, these guys are your best 
friends.  And we may come here today and disagree with the 
rule.  We may come here and tell you that, frankly, it's got 
to be redone.  And just, I guess, as a closing, do us one 
favor.  When you come back with the next one, make sure you 
take care of your friends, because we've been there for you, 
and we'll continue to be, but when you make the rule, next 
time think about us.  Think about us first.  I'll take any 
questions if you have any questions. 
		MR. REYNOLDS:  Tim, I have one question with 
regard to single sample.  You do support that?
		MR. BAKER:  Yes.
		MR. REYNOLDS:  The use of single samples?
		MR. BAKER:  Yes.  I think that's been made clear. 
 And I think it's the right direction to go, absolutely. 
		MR. NICHOLS:  Okay.  Tim was the last person we 
had signed up.  So is there anyone else?  Anyone else we 
missed?
		MR. MAIN:  I'm going to be really short, because 
we're still going through this rule, understanding that it 
is very complex.  Short period of time for us to have 
evaluated it.  And we learn a lot from the sessions we had. 
 Had we not had those, we wouldn't understand as much about 
the rule as we do today.  Having said that, there is a lot 
of miners and other folks in this country that's affected by 
this rule that has not had that.
		And on their own, I think the rule collapses under 
its own weight of misunderstanding and confusion.  And we're 
very honest about that.  It is a complex rule that is not 
crafted for the normal miner to understand and read.  And 
that's one of the downfalls of the rule from the outset.  
You know, some things, well, if we put that in there, it's 
going to more stuff.  Well, if it's the right stuff, plain 
English that describes things in a very straightforward way. 
 I mean, we appreciate that, and support that.  
		One of the big difficulties we have in this rule 
overall, and we're going to be getting into this more as 
these hearings go on, but this "trust me" approach that you 
expect miners to take a rule favorably that removes 
protections that's currently either in the Mine Act or in 
the regulations, and rely on the trust of this government to 
do the right thing.  And that's a lot to ask of a bunch of 
miners.  Many of them -- I mean, we're talking about tens of 
thousands that's died from a disease here, and we're talking 
about more miners being exposed every day.  
		And I think the government has to understand that 
this is not said to offend any individual here, it's just a 
matter fact that we don't take this "trust me" thing 
lightly.  And given the past actions of the Agency over 
time, we've learned not to trust the Agency fully.  As I 
said, I remember the hearings back in 2000 and the events 
leading up to that, where there was a commitment made to 
increase dust sampling in the nation's mines.  And we 
supported that.  
		We went to the Hill and helped support monies to 
get that done, only to wind up last year to see this God 
awful proposal come out of the sky that ratcheted that down 
to the point that we had actually, if you look at it, true 
value, not one compliance sample being done straight out.  
We only had four samples being conducted in the mines.  
Those were -- and I keep getting the words confused, and I 
apologize for that -- targeted or whatever they're called.  
You know, it wasn't even a real sample that the Agency would 
enforce the law over them. 
		And I keep questioning, how did we get here?  How 
did that policy decision get made?  Who made that decision 
to do that?  And was that in the best interest of the 
miners?  I'm going to tell you straight out, it absolutely 
was not.  When an operator sees you coming to the door, the 
very few samples you do come there to make sure they're in 
compliance, and walk away and say, oh, by the way, we're not 
going to cite you, boys.  That is a wrong approach in this 
industry to take, particularly with tens of thousands of 
people that have died from a disease because of the very 
thing that you're trying to protect them against.  So this 
"trust me" stuff doesn't go very far here.
		As I sat back and listened to the discussion today 
over a critical issue in this rule, and that is whether or 
not there's a bar lifted here that allows operators to go 
over 2 milligrams.  I am totally convinced, sitting here, 
that what I was told in those meetings is correct, that that 
bar is lifted under this rule.  I think I've got that from 
you guys today, although, the last part, there's some 
qualifiers to that, but right now under the law, under the 
regulations it is a 2-milligram standard that we have.  
		And as I understand the way you guys have to 
enforce the law, if you go in and you find, through the 
averaging thing, which we all agree is a bad apple to begin 
with, and needs to be fixed, not made worse but fixed, with 
that average, 2 milligram is the standard.  As I understand 
this rule, as explained to me by Agency folks over the 
meetings, and as I sat here today and still listened, I find 
that this rule has made some substantive changes that scraps 
protections and barriers that's in the current law and the 
rule, that allows that to change to where operators can now 
-- whether you think they will or not, they can now go up to 
8 milligrams.  
		We were told that.  That's the way we read the 
rule.  And as the last speaker said, you put it on the 
table, you bet your butt there's going to be an operator 
grab a hold of that and challenge you to get up to 8 
milligrams.  It's going to happen.  And it's a question, as 
I see it now, of bypassing standards and protections that 
exist in the law that says, operator, you can't do that 
right now, but we're going to make some changes here to let 
you do that with these proposals coming down the pike. 
		So you know, you got to sit back here and 
understand one thing.  As we see this this anomally 
completely different than what you're expressing the issue 
for that table.  And I the real centerpiece of this whole 
argument is, well, we got these feasibility requirements in 
the rule, and that's what you're going to have to meet.  
Subject now to a determination of an administrator in 
whatever panel that they would create under the rule.  But 
that bar just left.  This would be the new standard.  
		And yes, operators can make application under this 
rule to go up to 8 milligram of dust, and claim that they've 
exhausted their engineering controls, and a dogfight is on 
here as to whether or not this Agency has the stiff back to 
say, no, you're not, you're going to put the engineering 
controls in.  We don't have to worry about that now.  The 
standard is there.  That standard will be removed.  
		I mean, let's just put in the characterization of 
the truth here.  And what we gotta do is "trust me" to the 
Agency, trust you guys, that you'll have that stiff back and 
tell that operator, no, you're going to jack up the air.  
Oh, wait a minute.  Well, there's a standard in here that 
says if you only have, what is it, 400 feet a minute, you 
can base your standard on that.  You don't have to go to 800 
feet a minute.  
		And I think there's a provision under the Act -- 
we're going to get into more of these details -- that 
basically directs them to put enough air in there to dilute 
and carry away the dust and the gasses in the mine.  You 
know, and we say, what does that mean?  And we're going to 
get another expiration of that, because that air standard, 
tied with that factor of four means something, and it means 
a cap, if you look at it from that end, on what the Agency 
would demand that operator to have in that coalmine.  
		Now, other coalmines can put 800, 900 in, but this 
one, they're going to be able to adjust their protection 
factor to a ventilation level that's less than other 
operators have.  Well, you're just not going to make them 
put down air shafts to get the air in, or air openings.  I 
mean, that's the simple end of this.  At the end of the day, 
you have a provision in place that does not exist now, that 
allows operators to go up to 8 milligrams, as you guys have 
said.  
		And when we get into this quarterly sampling thing 
-- there's another discussion -- once they get to this 
level, whatever it is, if it's six milligram of four 
milligram or seven milligram or 2.5 or 3, then comes back on 
the back side of that two other important factors that are 
triggered by this rule.  One is, when does an operator have 
to do the quarterly sampling?  And the question we posed to 
you folks about two weeks ago -- and I thought it was six on 
an 8-milligram standard, and I understood the answer to be, 
Bob, it was 6.67. 
		MR. THAXTON:  I don't remember the calculation 
right --
		MR. MAIN:  Was that close?
		MR. THAXTON:  That's close. 
		MR. MAIN:  Okay.  And that means something in this 
rule.  And when you get the one figure that we haven't heard 
yet, that we would surely like to hear from you guys.  I'm 
this operator.  I convinced Marvin Nichols, who may be the 
administrator, or some operator hired to fill one of those 
jobs in Washington as administrator, has made this decision 
to let this operator go to 8 milligram.  
		And now comes the time MSHA's got to cite him.  We 
haven't figured that one out, but Tim laid out what we think 
it is.  And we want to get a clarification on that one.  If 
you're at 8, that's the operational standard, what is the 
standard of which MSHA would issue a citation based on the 
95-percent confidence factor?  Would it be 9.1?  I'd like an 
answer to that.  If it's 8, would it be --
		MR. KOGUT:  Take the concentration measurement.  
If there's a protection factor of four, you take the 
concentration measurement, whatever it is, outside 
of PAPR --
		MR. MAIN:  Yes. 
		MR. KOGUT:  If there's a protection factor of 
four, you would divide that by four, and then use that same 
table that's in there, so that you would compare it against 
the 2.33. 
		MR. MAIN:  Okay.  So that would really be -- I 
mean, I'm just trying to figure this out, guys, because we 
haven't figured it out yet.  Would this be 9.1?
		MR. THAXTON:  No, 9.32. 
		MR. MAIN:  9.32?  Is that what you said, Bob?
		MR. THAXTON:  Yes. 
		MR. MAIN:  Okay.  Now, Marvin, you know, I'm going 
to tell you, you're going to be down to the nuts and bolts. 
 I've asked you guys to honestly explain this rule, and I'm 
telling you, folks need to know out there that this could 
happen.  I hear what you're saying, we're not going to let 
it, we're going to hold a stiff back here, and we're going 
to make them use those feasible engineering controls, as 
defined on a case-by-case basis.  So I just want to clear 
the record.  Nine point what?
		MR. THAXTON:  9.32 if you're -
		MR. MAIN:  9.32 would be -- now, that's the max 
they can do?
		MR. THAXTON:  That's the conditions that you 
stipulated. 
		MR. MAIN:  Okay.  With the PAPR on, the mine 
environment measurement like we take today, factored in, 
9.32.  Okay. 
		MR. REYNOLDS:  One thing I wanted to ask, Joe. 
		MR. MAIN:  Okay.  Let me just -- and I'll let you 
ask.  Because we're trying to understand this, what this 
rule does, and you guys know it, and we're going to take the 
luxury while we have you here today to pull your --
		MR. REYNOLDS:  Okay.  I was just going to say it's 
a protection factor we're talking about, and I think what 
you're saying is, it's much too high.  You're talking about 
8 milligrams, and we have asked in here for your comments, 
if you think four is too high, if you want to go back to 
two, if you want to play with the velocity of the air.  
There are other factors involved here.  And rather than 
focusing on what the maximum would be under what we 
proposed, this is the proposal.
		MR. MAIN:  Well, how did you get the 8?
		MR. REYNOLDS:  Well, NIOSH said 25.  I mean, --
		MR. MAIN:  No, how did you guys -- this was not in 
the last proposal. 
		MR. REYNOLDS:  Yeah.  And it was a different 
proposal.  At that time it was two.  But we specifically 
asked them here for comments on this.
		MR. MAIN:  Well, I think --
		MR. REYNOLDS:  I think what I'm hearing from you 
is that you believe it's too high, but I was trying to --
		MR. MAIN:  Oh, absolutely.
		MR. REYNOLDS:  Just hear it.  Okay.  It would be 
really helpful for going forward and working on the rule, if 
we could get comments in terms of the protection factor for 
the use of PAPRs, rather than --
		MR. MAIN:  The law set two standards.  That's what 
we're trying to tell you.  That's what we told you guys 
straightforwardly in 2000.  The law said that within three 
years, all mines had to be down to -- let me finish -- a 
two-milligram standard.  And that's it.  And you had to get 
it with engineering controls, environmental controls.  And 
what the law said is, you're not using respirators to 
achieve that, okay?  And those are the two eggs that's 
getting broke here with what you're doing, okay?
		Now, one step further.  I think this whole debate 
about these PAPRs that was in one environment here over the 
last few years has now shifted to another debate that none 
of is prepared to even think about yet, because it's so 
outrageous.  The debate that we've been in is, how do we 
build a worker-friendly air-purifying system that works to 
protect miners in the current standards in terms of the 
exposure levels, okay?  And we've been working to try to 
achieve that.  
		What I can tell you is, we have a serious problem 
here, and nobody will listen to us.  Marvin Nichols, you 
knew directly from the testimony that came out of Salt Lake 
City that these things was problematic.  Anybody that stayed 
close to the issue over the last three or four years knows 
that the same problem that existed then exists today.  The 
neck skirts come off, it voids the approval.  The shields go 
up when they get greasy and grimy from all the dusty 
conditions on the long wall.  What does that do?  It breaks 
the approval, right, Bob?  Correct?
		MR. THAXTON:  They would be in violation of the 
rule. 
		MR. MAIN:  When you change that filter out and put 
some other device in, like a sock or a rag or something else 
to breath through, what does that do?  It breaks the 
approval, correct?  Now, this is not me making this case.  
This is evidence that has been collected.  And when we have 
the top people in the industry telling you guys this, this 
means something.  I mean, miners know it's happening.  
They've laid this case out.  But now we have this dilemma, 
because we're taking this flawed and failed system that 
we've been trying to fix to work in a two-milligram standard 
that wants to be taken to this next level and use it in up 
to 8 milligrams.  
		Dead wrong.  We will not support it.  And it's an 
outrageous to do rulemaking.  And talking about not 
listening, I mean, I think that's a classic case.  I have 
challenged this Agency to go out and take a look at what's 
happening out there, because this is a real problem.  And 
miners should not be provided with a device that is being 
used to satisfy part of this law, when they do go through 
those excursions, to have that as their protective system 
that is faulty and flawed, and fails to meet the approval. 
		And I'm telling you, you know it, and I know it.  
That's going on today.  And it just baffles me, the Agency 
three years later, not even dealing with that, and now it 
wants to put it in a rule.  I mean, I can't figure that out.
		MR. NICHOLS:  I just heard you mention excursions. 
 Would you agree that there are times where you can't 
engineer out the problem?
		MR. MAIN:  Marvin, here's my answer to you.  I 
will agree that there is times in coalmines that operators 
are putting miners into dust that exceed the dust level.  
The excursions is a problem that needs to be dealt with by 
not saying, we're going to legitimize it.  The problem needs 
to be dealt with by putting a personal dust samplers on 
miners, setting a standard, and saying to the Agency, pal, 
you got to get them out.  I don't buy into your argument.  
It is a band-aid that don't fix the problem. 
		MR. NICHOLS:  And it's your position that every 
situation in a coalmine can be engineered out, all the time?
		MR. MAIN:  It is my opinion that the law was 
correct when the crafters of those documents that said to 
the industry, you either engineer it out or go get another 
line of business.  I totally agree with that.  Congress was 
right.  It's been a law that's been in effect for quite some 
time.  I can tell you some operators do a better job than 
other companies do.
		And I can give you case and case where companies 
have not employed it because they didn't want to, didn't 
want to spend the money, or maybe they were ignorant about 
what could be done.  I have been involved specifically in 
cases where that's happened.  Dave Lauriski's own coalmine. 
 We went out there in the one that he previously operated.  
We had to go out and show them how to ventilate their mine, 
to get the dust controls down.  They said they couldn't do 
it.  They could do it.  And what me made them do is, do 
whatever other operators do.  
		And that's the problem here, and that's why we 
say, if you'll listen to the miners, look, you sample that 
24/7, you keep a track of those dust levels, Energy West 
would have been doing something a long time ago, and they 
wouldn't have had to push us up.  And they came to us 
wanting Airstreams.  That was the whole issue there, pushing 
for the Airstream helmet.  And they wanted to show us that 
they really couldn't do it, to get the Airstreams.  
		Thank God we had the law that says you can't get 
it, or under this proposal, I'd be scared stiff about what 
would happen out there.  But those excursions, Marvin?  You 
don't legitimize them.  You make them fix them.  And you put 
this industry on a standard that, when you go by that long 
wall -- and I've been in cases, too, where they've sent 
miners to the long wall factory to help design the controls 
in it, including water sprays and dust controls, which was 
at the North River mine in Alabama.  
		They sent their guys over.  They dropped the dust 
levels down.  Why?  Because they made it -- we're going to 
fix this problem.  It's what's getting us in trouble by 
saying, gee, there's a problem here, and we need to fudge 
this system a little bit to let the dust levels be there.  
We're saying, no.  Get them under control.  And the 
operators, you know, there's testimony you're probably going 
to hear, you may have heard some of it today.  
		I've heard from miners, you know, under today's 
schemes, give them an Airstream helmet without filters in 
them.  I mean, let's get real here.  If they're saying that 
these things need to be fixed, why isn't there more 
responsiveness out there to fix these kind of problems?  I 
think that the people come here with a bad case.  Using a 
fair (phonetic) of their own, not fixing the problem, and 
say, now, gee, give us a break.  And I think that's what we 
all have to understand here.
		But on these critical issues I would caution this 
panel, as you talk to people, to explain the full details 
here.  And the "Trust me" stuff?  There is a change here 
that is very, very serious when it comes to controlling dust 
in coalmines, that today they can't do the two milligram 
because of the bars that's there.  What you're proposing, 
they can exceed that. And you do have different standards 
out there.  I mean, the cute thing about those tables is 
that everybody believes that, well, they can't get over two. 
 They can't get over -- yes, they can get over two.  
		But if you read your documentation, you have wiped 
all that out.  It's hidden.  If Bob Thaxton hadn't told me 
that.  Bob, swear to God -- or Marvin, swear to God, I 
wouldn't even have known that this thing could go up to 8 
milligrams.  That was a total shock.  Why isn't that in that 
rule?  You have to have a lot of other testimony, a lot of 
other things as we plow through this.  We're trying to get 
miners up to speed.  
		I can tell you this is the God awfulest rush to 
judgment on a rule so complicated as I ever seen in my life, 
and we're doing the best we can to keep up, but I think this 
is not good for miners, and it's not good for the Agency, 
and it's not going to fix this problem.  And as Tim said on 
these PDM 1's, I don't think you're going to see a whole lot 
of operators saying, impose one of those on me.  
		But after about tens of tens of thousands of dead 
people out there, I think the government ought to be 
stepping up to the plate and saying, don't care what you got 
to say, we're going to get some stiffness in the back, and 
you're going to use them, 24/7 365.  We will have some more 
time to look through the proposal and answer the questions 
you guys have raised on some of the specifics of the 
personal dust monitors as we go through, but we fully intend 
to explain this case.  
		I just pray that the government acts on behalf of 
the miners that's out there, and gets the full details, and 
makes it clear what this proposal can do.  Not what you 
intend to do, but what the proposal can do.  Thank you very 
much.  If you've got any questions. 
		MR. NICHOLS:  Thanks, Joe.  Lew wanted to make a 
comment.
		DR. WADE:  No.  Joe can finish that.  Questions 
for Joe?
		MR. THAXTON:  One thing, Joe, I need to clarify.  
When you talk about our current sampling scheme that reduced 
us to four quarterly samples, as opposed to bimonthly, and 
you say we go to the one shift and we go out and collect 
four or five samples, and we don't --
		MR. MAIN:  Well, it's the one sampling event. 
		DR. WADE:  Right.  And we don't write a violation, 
even though we find high dust on that one day?
		MR. MAIN:  Yep.  That's what you call the target 
or the --
		DR. WADE:  That's the initial sampling period.  
And we target -- we trigger samples based on that.  The 
reason we can't write violations on that is because the 
courts told us it's illegal. 
		MR. MAIN:  To write on that first inspection?
		DR. WADE:  That first inspection.  That is the 
Excel decision.  We had written a violation for an operator 
exceeding the standard, based on the average of multiple 
samples collected on one shift.  The court ruled that we 
couldn't do that.  So that's why we take that survey to find 
out if there's a problem.  And if there is, then it locks us 
into five consecutive shifts or five consecutive days.  
That's what the court ruled for us.  And so it wasn't our 
choosing to put that in place.  That is the court ruling in 
relation to --
		MR. MAIN:  There's a difference of opinion on that 
one.  We understand the followup inspections, that you had 
the additional inspections, and you chose five, I guess 
because that's what the operators was doing, but you 
actually went to six, with that one being --
		DR. WADE:  Because the information given to us 
that we had to mimic five consecutive days, five consecutive 
shifts, same requirement as --
		MR. MAIN:  Our lawyers don't read that trigger 
like you do. 
		DR. WADE:  I mean, there's usually a 10- to 15-day 
time period between the one-day sample that we collect on 
all occupations until we find out whether we're locked in to 
do the additional samples.  So that time lag was giving our 
attorneys a problem, in that we would start then with five 
consecutive days or shifts once we started our surveys. 
		MR. MAIN:  I guess two differences here.  One is 
that we don't view that targeting to be that concrete that 
you cannot use that as one of the compliance samples.  The 
second thing is, nothing in that Excel decision said we had 
to go from six to four that I've ever seen. 
		DR. WADE:  There was nothing in there that said to 
go from bimonthly sampling to quarterly sampling.  The 
Agency used the same FTE and resources.  It's divided out.  
If you look at the number shifts that we collect the five 
samples, and add that to the number of shifts that we 
collect quarterly samples, it totals up to the same number 
of shifts that we would have used under bimonthly sampling. 
		MR. MAIN:  The point I was making, Bob, on that 
one is, the Agency made a conscious decision to change that 
policy, going from six to four. 
		DR. WADE:  True. 
		MR. MAIN:  That was not mandated by any lawsuit.  
There was no attempt to even go to congress to get more 
money, which Congress has been helpful in the past.  A 
straight up decision.  The "Trust me" decision.  We went 
from six to four.  And now we're down to targets or 
whatever. 
		DR. WADE:  It was strictly made to stay within the 
confines of the current resources that were available at 
that time. 
		MR. MAIN:  That's another dispute, because there's 
a question of whether or not you guys is spending the money 
that you had allocated to Congress in 2000.  The 2002 
continuing resolution, which we're looking at now, and 
that's another story. 
		MR. NIEWIADOMSKI:  Joe, let me mention something, 
too, about that.  I mean, it's frustrating to us, and in 
fact, we had to change our procedures because what's 
happened as a result of that, we're doing as much -- as I 
said earlier, we're talking about sampling over 1,100 MMUs, 
and as a result of all those resources we put forward, as I 
said earlier, last year in 2002, we end up, as a result of 
that, citing an operator based on our samples only 33 times. 
 33 times, okay?
		MR. MAIN:  Yeah.  But let me tell you the problem 
I have.  And I'll end it on this.  It's the PDM 1.  I sat up 
here, and you know, I've been working with this PDM 1 and 
the whole continuous dust monitors directly, because it was 
in the interest of our institution, kept up to speed, knew 
we was about ready to finish mine, and it just seems to me 
like on one side of this table, there's a disconnect on 
what's been going on with that one, Marvin, that there was 
not an up to speedness about where we were at on the 
development of this thing.  
		And your frustrations that you laid about, here we 
go again.  I'll tell you one thing, I was totally frustrated 
as we was moving to the benchmark on the continuous machine 
mounted.  Still think it's needed.  The government is the 
one that stopped the progress on that, claiming it was all 
they could do.  There's been no action to force that 
technology out.  
		We asked that the Agency consider in terms of, 
hopefully, a recrafted rule here, the use of machine-mounted 
continuous dust monitors, but the development of the PDM 1, 
I remember when there was arguments about refusal of MSHA to 
even bring money to the table to cover the PDM 1.  I was 
involved in those.  And I've seen some reluctance.  And it's 
bothersome that there has been this disconnect, when all the 
rest of sitting over here knew we was moving right down to 
this finish line, getting ready to have a device out, final 
tested out at the mines by late summer, and whoosh, okay. 
		This is not some Johnny come lately.  This is 
something that took a lot of hard work, spun off of the 
continuous dust monitoring.  A lot of efforts.  And we got 
something that I just hope does what everybody says it will 
do, too, but we're as close to that finish line as we've 
ever been in our life, and before we got there, somebody cut 
the rope.  I don't understand that.  There seems to be a 
disconnect here. 
		DR. WADE:  This is Lew Wade with NIOSH.  Just a 
couple of closing comments.  First of all, for myself and 
for John Howard, the director of NIOSH, I'd like to thank 
you for your time, I'd like to thank you for your passion, 
for the energy that you bring to the topic of miner health 
and safety.  I think what happened in this room is a 
terribly important thing, and we certainly will listen to 
the comments that you've made.  I work for NIOSH.  That's 
the agency that has taken on this task of developing the 
continuous personal dust monitor.  It is a task we take very 
seriously.  I'm very proud to work for an agency that's 
taken that on.  
		I do apologize for the fact that it has taken a 
lot longer than we might have liked.  The only thing I can 
tell you is, we will do it as quickly as we can, but we will 
do it right.  And I think that, in the long term, serves the 
miner health and safety community.  We'll continue to put 
our shoulder to that, and we'll continue to let you know 
where we stand on that activity.  
		I would remind you again that there are two rules 
that we're discussing.  The single sample and dust plan 
verification.  While they often come together, I think at 
times it's worth thinking about them separately, as well.  
And again, I'd just thank you for your willingness to share 
your passion with us.  Thank you. 
		MR. NICHOLS:  Thanks, Lew.  Okay.  Thanks for 
showing up.  I'm pretty sure I'll see some of you down the 
road here.  Thanks again.
		(Whereupon, at 3:34 p.m., the hearing in the 
above-entitled matter was concluded.) 
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	REPORTER'S CERTIFICATE

DOCKET NO.:	N/A
CASE TITLE:	Office of Standards, Regulations & Variances
HEARING DATE:	May 6, 2003
LOCATION:	Washington, PA

	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
Mine Safety and Health Administration.

				Date: May 6, 2003

			                              
			Joel Rosenthal
			Official Reporter
			Heritage Reporting Corporation
			Suite 600
			1220 L Street, N.W.
			Washington, D.C.  20005-4018

 

 
 
	TRANSCRIPT OF PROCEEDINGS

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