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























AB14-HEAR-TRANSCRIPT-2SS

Pages:	1 through 253				AB14-HEAR-TRANSCRIPT-2PV

Place:	Charleston, West Virginia		

Date:		May 8, 2003

BEFORE THE DEPARTMENT OF LABOR, 
MINE SAFETY & HEALTH ADMINISTRATION


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



			Country Inn & Suites
			by Carlson        
			105 Alex Lane
			Charleston, West Virginia

			Friday,
			May 8, 2003

		The hearing convened, pursuant to the notice, at 
8:01 a.m.

		BEFORE:  MARVIN W. NICHOLS, JR.
		         Moderator                   


		MEMBERS OF THE COMMITTEE:

		GERRY FINFINGER
		JON KUGUT             
		BOB THAXTON  
		LARRY REYNOLDS
		GEORGE NIEWANDOMSKI
		

		SPEAKERS:
		
		CECIL ROBERTS
		JOE MAIN 
		BOLTS WILLIS
		DONNIE LOWE           

	P R O C E E D I N G S
	(8:01 a.m.)
		MR. NICHOLS:  Good morning everybody.  My name is Marvin Nichols.  I'm the director of the Standards Office for MSHA and I want to welcome you all here today at this public meeting and also, on behalf of Dave Lauriski, Assistant Secretary for MSHA, and Dr. John Howard, Director of NIOSH.
		Today's public meeting is being held to receive your comments on two MSHA regulatory actions.  First, we have reopened the record for the comment period on MSHA and NIOSH single-sample proposed rule that was originally published on July 7, 2000.  Secondly, we have reproposed 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 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 pneumoconiosis by eliminating miners overexposure.  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 my colleagues up here.  To my left is Bob Thaxton.  Bob is the technical advisor with Coal Mine Safety and Health.  Next to Bob is Larry Reynolds.  Larry is with the Office of the Solicitor and at the end is George Niewandomski.  George is the health specialist in Arlington.  To my right is Gerry Finfinger.  Gerry is the senior physical scientist at the Office of the Associate Director for Mining at NIOSH.  He is with us today because, as many of you know, the single-sample rule is a joint effort between MSHA and NIOSH.  Now seated next to Gerry is Jon Kogut.  John is the statistician with the Office of Program Policy and Evaluation for MSHA.
		Since the single-sample proposed rule was jointly promulgated by NIOSH and MSHA, we have several NIOSH people here with us today.  Let me first let you know how the hearings will be conducted.  As with all MSHA hearings, the formal rules of evidence do not apply at these hearings and the hearing will be conducted in an informal manner.
		Those of you have notified MSHA in advanced will be allowed to make your presentations first.  Following these presentations, others who request an opportunity to speak will be allowed to do so.  I would ask that all questions regarding these two rules be made on the public record and that you refrain from asking the panel members questions when we're not in session.  The reason we do this is we would like for all of the discussion of these rules on the public record.
		Following the completion of my opening statement, Bob Thaxton will give an overview of the new proposed plan verification rule.  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 also be made part of the record.
		The hearing transcript, along with all the comments that MSHA had received to date on the proposed rule will be available for review.  We intend to post a copy of the transcript on the MSHA website 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're 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 it for us.  All written comments and data submitted to MSHA will be included in the written record and we also have an attendance sheet outside that we would like for you to sign if you're willing to do that.
		Due to the request from the mining community, the agency will extend the post-hearing comment period for the plan verification proposal from June 4th to July 3rd.  The notice announcing the extension will be published in the Federal Register soon.  We also anticipate extending the comment period for the single-sample rule for the same length of time, but we'll only be able to do that after consultation with NIOSH and we'll also publish that in the Federal Register.
		As you know, we have four additional hearings scheduled to address these rules.  The next hearing will be in Evansville, Indiana on May 13th, in Lexington, Kentucky on May 15th, in Birmingham, Alabama on May 20th and in Grand Junction, Colorado on May 22nd.  The hearings will begin at 8:00 a.m. each day and end after the last scheduled speaker.
		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 being overexposed to respirable dust.
		Averaging can mask individual overexposure by diluting a high sample with a lower sample taken on another shift.  Using single-sample measurements rather than averaging multiple samples for compliance purposes will better protect miners health.  Single samples can identify and remedy excessive dust conditions more quickly.  Single samples measurements have been used for many years by NIOSH and at metal and non-metal mines in this country.  In other words, it's been used in all other mines except coal for probably 30 years.
		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, health affects, quantitative risk assessment, technological and economic feasibility and compliance cost, which has been added since July of 2000.
		For example, we updated the preamble to include the most recent information on the prevalence of Coal Workers Pneumoconiosis, CWP, or Black Lung among coal miners examined under the Miners Choice Program during the period 2000 to 2002.  These findings show that miners continue to be at risk of developing 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 finding 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 of 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 previous proposed rule during August 2000.  Many commenters urged the agency to withdraw the earlier proposed rule and go back to the drawing board.
		Some commenters believes 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 documents and reforms urged by coal miners since the mid-1970s.  After carefully reviewing 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.
		Box Thaxton will give us a short overview of the new plan verification rule.  And I would ask that you hold your questions for Bob until you come up to offer your comments.  We'll let Bob go through this presentation and then we'll take questions as you come up.
		MR. THAXTON:  Okay, what I'm going to try to do is walk through a presentation that walks through both the single sample and plan verification rules.  I'll walk through this, and like I said, it is something that we've put together that we've used before.
		The purpose of our rules and what we're trying to accomplish is what we see here.  We've shown Black Lung incidents from 1970 through current 2002.  We're showing that there's been a decrease in Black Lung over the years, but that decrease is slow.  And you can see from 1995 through 2000, basically, we've stayed about the same, 2.9 and currently, 2.8 percent.  That amount or prevalence of disease is unacceptable.  That's not what the Act was designed to develop.  We wanted to get Black Lung down to where there is essentially no cases.
		It also shows that the percent of samples that we see that are exceeding the applicable standard of 2 milligrams, has basically bottomed out.  We're seeking 12 to 8 percent, really not much change in that.  So what we're doing is we want to take a look at that and that was part of the impetus for trying to get these rules out.  The rule package itself consist of two particular rules, two separate rules.  Those two rules are designed to develop effective plans and control dust and provide for monitoring the effectiveness of those controls.
		Under single sample, single sample provides for a new finding.  That new finding states that the average concentration accurately is measured over a single shift as opposed to measuring the concentration over the average of five shifts as you see currently.  It rescinds the 1972 finding that the accuracy of the single sample could not be used.  We've added also a new standard in this particular publication that says that the Secretary may use a single full shift measurement to determine the average concentration over that shift.
		The current verification rule provides that each underground coal miner operator must have a verified ventilation plan.  They have to verify the dust control portion of that plan.  The plan will be verified under actual mining conditions by mine operator samples.  We're going to collect samples at the time that the operator is doing what we consider normal and that is at a higher production level that represent normal conditions.
		MSHA is going to resume the responsibility for compliance and abatement samples in underground coal mines.  Surface mines does not change.  And finally, MSHA samples will be used to set all reduced standards due to courts.  As it stands right now, you see a combination of MSHA and NIOSH were samples are being used for that purpose.  Under this proposal, only MSHA samples will be used.
		Under the verification of the plan, what we've done is put together a little bit of a comparison of what's currently required under what rules are in place right now versus what this 2003 proposal will do.  Under the current rule, MSHA sampling is used to approve a plan.  It is based on the average of multiple samples.  It's taken with full shift, 8 hour or less portal-to-portal samples and at 60 percent of average production.
		The 2003 proposed rule -- we will use operator samples to verify the effectiveness of plans in underground mines.  And it's only underground mines.  Plans at surface mines will still be done the way they are now.  Those samples will be collected with full shift production time.  That is, the samples will be turned on when a miner reaches the MMU on the section and they will not be turned off until you exit the section.  They're taken at higher than average production.  And we'll get into actually what that production level is in a minute.  They will have to meet separate court and coal mine dust verification limits.  These dust control limits and court's limits are set in the rule to get us 95 percent confidence that people are meeting the 2 milligram standard when they're doing the verification sampling.
		The proposed rule also allows the use of PAPRs or administrative controls on any mining unit only as a supplemental measure after exhausting feasible engineering controls.
		In relation to the plant, currently, as I said, MSHA's sampling is conducted at 60 percent of average production.  There are no records of production required, so basically that is determined either by just talking with miners, talking with mine management or just making a general assessment of what the inspector sees and then they determine 60 percent of that and that determines a valid sample for us.
		Under the 2003 proposal, plans will be verified using the 10th highest production level in the last 30 shifts.  It requires the recording of production and maintaining those records for a period of six months by the mine operator.  That is that they have to record actual production on each MMU, that's raw tonnage, coal, rock, whatever produced has to be recorded.
		What is that 10th highest production?  How does it related and why do we think that's going get us better evaluation of the plan?  What you've seen in the past is that we've said 60 percent is where MSHA collects samples.  What we've got here is an example of longer MMU that's located in Northern West Virginia.  Each circle represents a shift of production.  These are actual numbers that were collected for 30 shifts.  And you can see, based on the 30-shift results, 60 percent of the average brings us down here a little over 3500 tons.  The average production for that section was 6295 tons.
		We were proposing at one time, back early on, that we use 90 percent of average to collect our samples to verify plans.  If we use 90 percent of average, we'd only be at about 6600 tons.  What we've put in this proposal is that we want the 10th highest production.  The 10th highest production puts us at the 67 percentile.
		What that means is that we've got one third of the shifts in that 30 or above this level and two thirds are below it.  So what we're getting as a production is more representative of what we think normal production for that section is.  So we're getting samples that are going to be collected at around 7500 tons.  So you can see a big difference between what is being proposed as far as the 10th highest versus what we're doing currently, which is the 60 percent level.
		Use of PAPRs or powered air purifying 
respirators -- under the current rule, when they're used in conformance with a full respiratory protection program, they can qualify an operator to get a non-S&S designation on any respirable dust over exposure citation.  But that's the only thing that they're used at this time.  How they can impact the rule.
		Under the 2003 proposal, they will be permitted when all feasible engineering controls have been exhausted. The key word here is when "all feasible engineering controls have been exhausted."  That's a determination that's going to be made by the agency.  It's a determination that means that we're going to look -- if there's any feasible controls that available still, the mine operator will be expected to put those in.  Only loose-fitting powered respirators with MSHA and NIOSH approval may be used.  Currently, there is only one such unit that meets that and that's the 3M airstream helmet.
		Must provide respiratory protection program as part of the approved ventilation plan -- contrary to what's done right now, everything that controls how those respirators are to be used must be spelled out in the plan in writing and they're a part of the approved plan.  That means that they have to be complied with at that mine at all times.  Failure to do so can result in citations.
		Must maintain dust levels as low as possible with feasible engineering controls -- this is in conjunction with the top bullet.  Mine operators are not going to be allowed to take engineering controls or environmental controls out of the mine or take them out of circulation or use once they get approval to use a PAPR program.  The regulation specifically requires that all controls that are found to be feasible for that MMU have to be maintained and the operator will be expected to maintain the concentrations as low as possible even though they're using the respirators.
		Protection factor of two to four, depending on the ventilation air velocity assigned to the mining section -- the protection factor of two to four are impacted because the ventilating air current or the velocity that the air moves along the longwall face or around the continuous miner that velocity affects the efficiency of the PAPR to do its job.  So we've factored that into the determination or the protection factors that were generated.  That protection factor of a maximum of four is an indication that you can say whatever the dust concentration is outside the PAPR it would be 1/4 of that concentration inside the PAPR.
		Sampling requirements -- under the current requirements, operator bi-monthly compliance sampling at underground mines, citations are issued for failure to sample.  Citations are issued for exceeding the dust level.  Operators collect abatement samples to determine compliance after the issuance of a citation and MSHA's quarterly sampling on MMUs, Section DAs and Part-90 miners are conducted at this time with citations issued for exceeding the applicable standard.
		Under the 2003 proposed rule, the operator will collect plan verification samples for the initial approval and then designated MMUs collect one sample each quarter for confirmation of controls continued effectiveness.  There will be no citations issued for exceeding applicable standards on those samples, but the operator must take action to reduce concentrations when a sample exceeds the standard.  Failure to take action to reduce the concentrations, if they have a sample that exceeds the standard, can result in a citation for failure to take that corrective action.
		MSHA collects all samples to determine compliance and abatement of citations.  MSHA determinations will be made on a single full shift measurement and citations will be issued for exceeding the applicable standard.  Those are all based on single-shift samples, though, not averages of multiple samples collected during one shift or multiple samples collected over five shifts.
		Compliance and non-compliance determinations --under the current rule, reviews the average of multiple samples to make compliance, non-compliance at all coal mines.  We average five samples on five different shifts, the average concentration exceeds the applicable standard by 1/10 or more non-compliance is indicated.
		Under the 2003 proposed rule, we will use single-sample determinations at all coal mines, both surface and underground.  This is one area were we applied this both to the surface and underground mines.  A non-compliance level, as an example, for a 2 milligram standard would be 2.33.  The 2.33 gets us to 95 percent confidence that the 2 milligram standard has been exceeded based on that one sample.  We currently get to that level of confidence by averaging multiple samples, which is five samples on one occupation.  The citation levels for all standards, 2 milligrams and below, are specified in the rule itself.
		What's the effect of this?  What we see here is an example of an actual survey that was submitted by a mine operator.  And this is five samples collected on the continuous mine operator.  And we see that the first sample was 3.2, the second sample 1.6, third 1.5, fourth sample 0.8, fifth sample 3.1.  We have an average concentration for those five of 2.0.  Under the current regulations, that is considered in compliance -- no enforcement action, no corrective action is necessary.
		What we're doing under the proposed rule, from what I just described to you, we would be looking at those sections where we 3.2 and 3.1, those are times we consider would be over exposures.  The reason that we can impact on reducing Black Lung is that we feel that we need to control exposures on each and every shift, not the average of multiple shifts.
		The on-shift examination of controls -- the current rule is we do have a requirement right now that all operators have to do a on-shift examination of the dust controls that are in place.  That has to be done prior to the shift starting production.  If it's a hot-seat type operation where they do not shut down, it has to be done within the first hour.  That means they have to go through and check the parameters that were in the plans to see that those are actually in place and working at the beginning of each production shift.
		Under the 2003 proposal, we maintain that requirement, but it's going to become more important because the verified plans are going to be more detailed, have more true controls that are necessary to maintain compliance.  That, in conjunction with the on-shift examination, should give people better assurance that you've got an environment that's probably going to result in compliance for that shift.
		Miner participation in relation to what we're doing -- the current rule, miners have the right to accompany, with pay, MSHA personnel during MSHA sampling.  Under the for-plan submittal, operators notify miner's rep of plan submissions and revisions and post on the bulletin board.  Miner's rep may submit comments during the MSHA review.
		The 2003 proposal -- miner participation during operator sampling.  The operator has to notify miners prior to collection verification sampling and have to allow then that previous notice so that people are aware that sampling is going to be conducted at a specific time.  The miners must be provided an opportunity to observe that sample, but there is no entitlement to special pay.
		Miner participation during MSHA sampling the miners have the right to accompany, with pay, MSHA personnel during all compliance and abatement sampling.  So any time MSHA comes in to do the compliance sampling or abatement sampling, the miners' rep has the right to travel with us with pay.
		We still maintain the same participation in relation to the plan that the operator still has to post the plan, has to notify the miners' rep and the miners' rep has the opportunity then to submit comments while MSHA is making a review of that plan.
		Use of personal continuous dust monitors or what's been referred to as PCDMs -- under the current rule, there is no consideration for PCDM use.  The 2003 proposal stipulates that any unit that the Secretary of Labor approves with a conversion factor is acceptable.  That conversion factor is to get whatever unit is used and approved later on to where it produces the same type of results as what we get currently with the gravametic sampling units.
		Designated miners must wear the full shift portal-to-portal PCDM or personal continuous dust monitors.  They start to make them usable and where you have meaningful data, the miner would be required to wear that unit from the time they go in the mine until the time they come out, no exceptions.  It permits the operator to use the administrative controls without first exhausting engineering controls.  Hence, the words "personal continuous dust monitors."  These are personal monitors.  When you have personal monitoring, you're monitoring somebody for the full shift, that means that the mine operators then would be able to move people around in order to maintain their exposure to less than whatever the applicable standard is.
		There will be no citations for over exposures based on those readings.  They would be recorded at the end of each shift, but there is no citations based on that.  They would be cited, though, if a notation is made of an over exposure and no corrective action was taken.  The operator is required to take corrective action any time they get notification of an over exposure.  Failure to take that corrective action would result in a citation from the agency.
		What kind of benefits are derived from these two rules?  One, we think planned parameters would be gained that reflect actual mining conditions that have been verified at higher production levels; two, no operator-collected samples used to determine compliance; three, production for miners when feasible engineering controls have been exhausted; and four, provisions for the use of personal continuous dust monitors.
		What are the benefits in implementing these two particular rules?  Our intent is to reduce Black Lung and we have used a conservative estimate of what the results would be based on the implementation of both the single-sample and plan verification rules.  And what we've projected is conservatively a 42 reduction in the number of people that would develop Black Lung.  We've broken that down to designated occupations, DO; NDOs, non-designated occupations; RB or roof bolters and then, the total.
		That's a lot of information.  And to help explain that a little better, we've developed a couple of scenarios that we'd like to go through that would maybe bring home a little bit better how this program fits together along with what's been put on our website as our draft inspection procedures that would go along with these two particular rules.
		The agency has published on the website only a draft of how we plan to go out and conduct our inspections, how we make compliance, non-compliance decisions so that people could see how this would all work.  Under the particular program, if both rules are in place, an operator goes out and collects his first verification sample.  He's submitted a plan to the agency.  It looks like it has passed the initial in house environment or engineering review so that we feel like the controls are in place or reasonable for that particular type of mining.  That they're likely to result in compliance.
		We tell the operator then to collect the first sample and they go out and collect a sample on a continuous miner operator and a roof bolter.  This on a continuous miner section.  The first sample results in a 1.6 milligram respirable dust on the miner operator, 1.7 on the roof bolter.  We also get 72 micrograms of quartz on the miner operator and 92 micrograms on the roof bolter.
		Remember, I said at the very beginning for a verification of a plan the operator has to meet two critical values for respirable dust and quartz.  We look at them separately.  The critical value on one sample for respirable dust is 1.71 milligram.  The critical value for quartz on one sample is 87 micrograms.  So you can see they met the respirable dust level, but the 92 micrograms on the roof bolters exceeds the 87 critical value for one sample.  Therefore, the operator cannot verify their plan based on that one shift of samples.  They're required to go back and look at their stuff and take another sample.
		So the operator does take the second verification sample.  We get 1.63 milligrams on a miner operator, 1.69 on the roof bolter; 71 micrograms on the miner operator for quartz and 91 micrograms on the roof bolter.  When we come to two shifts of samples being collected for the critical values.  We now move up on the respirable dust and quartz because now we have two samples to look at.  The critical value for two samples is 1.85 milligrams for dust and 93 micrograms for quartz.
		Now we see that all levels -- all four dust concentrations, all four quartz concentrations that have been determined each one is below that critical value for that particular, either dust or quartz.  That indicates to us then that the plan can be verified with 95 percent confidence that we're meeting both the 2 milligram standard and the 100 microgram standard for quartz.  So the operator now has a verified plan.
		MSHA comes in and collects our first set of samples.  Under our inspection procedures, we will collect bi-monthly sampling.  Under that, we come in and we collect a sample on a continuous mine operator.  We get 1.62 milligrams on dust, 78 micrograms on quartz, miner helper 1.71 milligrams, the shuttlecar operator is 1.41 milligrams.  Roof bolter No. 1 is 2.38 with a 138 micrograms of quartz.  Roof bolter No. 2 is at 2.42 milligrams of dust with 141 micrograms of quartz.
		When MSHA looks at those results, one citation for the roof bolter occupations would be issued for exceeding the 2 milligram standard CTV, which is a citation threshold valve and that's the levels that we write citations at, which is the 2.33 on 2 milligram standard that I pointed to in the slide earlier.  So any sample exceeding 2.33 on respirable dust would be considered in non-compliance.
		The roof bolters, Nos. 1 and 2, and we call that -- it's a twinhead roof bolter, you see the concentrations on both exceed the 2.33.  We do not write two individual citations.  There's one citation issued for the roof bolter occupations because it's one dust-generating source.  What the operator does to address that citation to reduce the dust will affect both.
		The operator, because of that citation, has to take corrective action.  And once the corrective action has been implemented, they have to notify the agency within 24 hours so that they agency then can schedule whether it's coming back to collect abatement samples.  In this case, we come in, collect the abatement samples.
		At the same time, this is an entity that's on 2 milligram standards, not on a reduced standard.  But we have indications, through these quartz results, that we have some people that are being over exposed to quartz.  Because we only have the one set of samples, though, to determine quartz content to set a reduced standard, it has to be based on the last three MSHA samples.  We only have one.  So it looks like need to wait for two more samples.
		Normally, you would think that we would wait until the next bi-monthly, get another set of samples and the third bi-monthly we'd get another one before we would be able to set a reduced standard.  But because this entity is exposed to greater quartz than what's allowed and it's already on a 2 milligram standard, which does not look like it's protective, the agency specifies in our inspection procedures that we will go and collect two additional shifts of samples within the next 15 days so that we can go ahead and establish the appropriate standard based on quartz.  We think the exposure to quartz is important and it needs to be addressed in a short time frame.
		Based on these results, the operator would be required to sample the MMU quarterly to established the continued effectiveness of the dust controls in the approved ventilation plan.  For an operator to qualify to be required to do quarterly sampling, all they'd need is a sample by us that exceeds the standard by any amount.  So if we find a sample that exceeds the 2 milligram standard at 2.1, that operator would be required to sample that MMU quarterly to show that their plan continues to be effective and maintaining compliance.
		Multiple samples collected by either NIOSH or MSHA showing greater than 2 milligram on a 2 milligram standard, but not exceeding the 2.33, so there's no violation, those situations result in the operator being told their plan is inadequate and they would have to go through verification again.
		A second scenario -- I'm going to use the same sampling results that we'd used on the previous one.  So I'm not going to back through the numbers again, but it's the exact same operator verification samples, the operator verifies their plan.  What has changed is the samples collected by MSHA.  MSHA's first bi-monthly sampling comes in.  We show all samples below 2 milligrams on the respirable dust.  We show quartz at 78 micrograms and 55 micrograms and 47 micrograms.  All of them are less than 5 percent, so they're all below the 100 microgram limit.
		We state that the compliance is based on single sample for each occupation, so nobody is in non-compliance.  No citations would be issued.  Now we still need to determine, though, whether MSHA is going to come back and sample each bi-monthly period based on this information.
		So what we do is we don't look at just the sample concentrations as we get them.  We apply correction factors.  When MSHA comes in to sample, we understand that the operator probably is not going to be at their maximum production, that 10th highest that we said that they have to sample at to verify a plan.  Remember, two-thirds of the shifts we expect to be less than that.  So it's likely that we will get production that's going to be less.
		Typically, the plan parameters are things that the operator puts in the plan.  They're going to put more air in their section than what the plan calls for just because that way they get the buffer so they're not right on the limit.  So we're likely to find higher ventilation quantities.  Will those things affect the dust concentrations?  And what we want to determine is what truly, engineering-wise, would we expect those dust concentrations to be to make a determination whether we come back to sample the next bi-monthly period.
		So what we do is we take our setup for this one that they had a plan that was verified at 800 tons.  We've have 750 tons this shift that we sampled.  So we had less tonnage.  The ventilation during the MSHA sample was 10,000 CFM.  The plan calls for 9800.  We had more air than what was called for.  How do we make a determination as to what that actual concentration is to determine whether we're going to come back to resample on the next bi-monthly is that we take those ratios of the tonnage and ventilation quantity and come up with factors that we apply to the dust concentration.
		We take the 800 tons that are in the plan, divide it by the actual production that we gathered while we were there, 800 divided by 750 gives us a factor of 1.06.  The 10,000 CFM that we found while we were there versus what the plan quantity is of 9800 gives us a factor of 1.02.  We multiply those factors by the dust concentrations.  You can see that what we're doing is as they change the parameters that will reduce dust, we use those factors then to multiply the concentration to raise the dust higher so that we make a determination as to whether they truly are meeting the standards necessary to maintain compliance with their plan.
		Based on those results, the dust concentration that we would use to make our determination of going back to the next bi-monthly comes to 1.71.  We take the 1.62, which is the highest dust concentration and apply the factors to it.  And we take the quartz that's highest and apply the factors to it.  We come out with 1.75 milligrams of dust and 84 micrograms per cubic meter for quartz.  The 1.75 exceeds the criteria of 1.71 for one shift sample for plan verification.  That also kicks in that it triggers us to go back and sample each bi-monthly period.  The only time an operator can skip a bi-monthly period of having MSHA come in to collect bi-monthly samples is if they meet the 1.71 critical value for respirable dust and the 87 microgram critical value for quartz.
		The third and last scenario is one that address the use of a PAPR program.  For demonstration purposes, we're saying this is a longwall.  It's a Mine A and we're saying that they're only capable of installing such things as the shearer clearer, which is a dust control system, shield sprays, pan sprays.  They have a maximum air velocity of 500 feet per minute along the longwall face and they produce, under their 10th highest production level, is 16,000 tons per shift.
		Based on verification samples, the operator comes in with a 1.9 milligram concentration on the shear operator.  The 060 is a 2.0.  They have 130 micrograms of quartz on the shearer operator, 145 microgram on the 060.  The dust concentrations are below 1 milligrams, but the quartz concentrations are higher than 100 micrograms.  So we have a problem with quartz on this particular longwall, not necessarily respirable dust in general.  The operator submits that he has said that I've got all feasible controls in place.  I don't know of anything else I can do.  The agency makes the determination, reviews the data and agrees there is nothing feasible for that operator to do that will change that.
		Based on that, the operator will submit to use a PAPR program.  Now that PAPR program has to be included in the ventilation plan.  That program spells out who has to wear them, where they have to be worn, how they have to be maintained, who is in charged of maintaining, who cleans them, who is the one person that the mine that's assigned the responsibility to assure that those PAPRs are used in approved condition and meet all the requirements of the plan.
		All miners working in by the shearer in this particular situation because of the levels that were found at the shearer operator below, all miners working in by that point must were a PAPR in accordance with the approved plan.  The plan will specify the locations that PAPRs have to be worn.  It doesn't mean they have to be worn by everybody on the whole section.  There are going to be areas that are going to be identified that will address that.
		The average velocity across the longwall is 490 feet per minute.  The protection factor assigned to that MMU is going to be 3.2.  That 3.2 is generated by the formula of applying 2 times the velocity of 800 divided by the actual velocity of air on that particular longwall face so we have a velocity of 800 divided by 490.  That factor times 2 results in 3.2 as the protection factor on that MMU for the use of PAPRs.
		The plan must maintain all engineering controls that were determined to be feasible by MSHA.  All the controls that were listed up here and the quantities that were found at the time that were found to be feasible for that particular MMU cannot be changed.  They have to be maintained at all times.  Just because they're using a PAPR that results in a protection factor of 3.2, they come up here and do away with pan sprays.  They can't do away with shield sprays.  They can't reduce their air quantity -- that type of thing.  What we've found as feasible has to be maintained at all times.
		The equivalent concentration, though, if you had a sample that was 2.0 milligrams from wearing the PAPR, the concentration inside the PAPR would be 1/4th that, which is -- I'm sorry, not 1/4th, but the factor of 3.2 divided into the 2.0 standard, which gives you an effective concentration inside of 0.62 milligrams per cubic meter.
		One other thing on the PAPR programs, any operator that gets an approval to have an PAPR program included in their plan, that plan is reviewed every six months.  The review includes determining again whether all feasible engineering controls are in place.  If additional controls become available or the mining situation changes so that they can do other things, then the agency would insist that those controls be put in place to drive the concentrations down as far as possible.  Nothing will be done to allow the operator to remove the any of those controls.  That completes the overview.
		MR. NICHOLS:  Okay, Bob, thanks.  Since NIOSH has joined with us on single-sample, I want to give Gerry a chance to make any comments he would like.
		MR. NIEWANDOMSKI:  Good morning, well, on behalf of NIOSH and our director, John Howard and our associate director for mining, Lew Wade, we wanted to welcome you to the meeting and thank you for attending.   We're here today to collect your comments and your thoughts on what's being proposed and we're looking forward to having a productive day.
		You've already heard the mention of a PDA or a personal dust monitor.  To give you an idea of where we're at on developing the technology, and also, to let you know what it looks like, we actually brought one with us today.  I have Ed Timmons from our research lab is going to give you a brief update on the PDM now, assuming Ed is here and can hear me.  Ed?
		We're also going to have it on the table in the back for display for the remainder of the day, during a break or a lunch period if you want to take a look at it.  We've been working on the PDM now for a couple of years.  It's kind of been a joint effort between industry, Labor, NIOSH, MSHA, everybody we could get involved in it.  Ed's been personally involved in it for a long time.
		MR. TIMMONS:  Can everybody hear me?  Okay, this is the PDM.  I'm Ed Timmons from NIOSH.  I'm a branch chief of the Health Branch.  It's my people that's been working on this in conjunction with contractor, RUP.  I'm going to sit this down so I can demonstrate to you.  I'll try to talk as loud as I can, though, so you can hear me.
		This is a dust sampler built into a cap lamp.  Okay, inside here are two batteries.  One battery operates the cap lamp.  One battery operates the sampler.  The sampling unit is built completely inside of this.  There is a tube that runs right along the cap lamp battery cable to a opening at the top up here, which sucks the sample in right at your cap lamp, a pump inside this drives the sample through that tube right into the unit here where it's sampled.  The way it's sampled is really a little technically complex, but it's not all that bad.
		Inside the unit is a small filter.  You see that white filter right there.  That filter is mounted on top of a sort of small metal column.  That column is set to oscillate.  It has a frequency, okay.  It oscillates that frequency and as dust loads on that filter as the shift goes on, that frequency changes.  And it's that change in frequency that tells you how much dust is loaded on that filter, okay.
		What the unit does for you is that when you come to work in the morning, you put your cap lamp on, the unit is started up.  Somebody starts -- surface.  It starts sampling.  You can't tamper with it.  It runs all day, okay.  During the course of the day, you can hit a button down here.  You can see what your dust exposure has been so far during the shift.  It will also, if you hit another button, project your dust exposure if you continue at that level through the end of the shift.  So it will tell you what your dust exposure is at the end of shift or will be at the end of the shift.  At the end of the shift, you can look at it and you'll know exactly what your dust exposure is. 
		When you come out of the mine, as quickly and plugged into a computer your dust exposure for that shift is recorded.  So you know right at the end of the shift what your dust exposure is.  We at NIOSH see three potential advantages of this.  One is it's ergonomically simple for the miners because every day when come put your cap lamp on, you're putting your dust sampling unit on.  You don't have to wear any other additional dust sampling equipment.
		Right now, this thing weighs about a pound more than the conventional cap lamp does.  So it's not adding much weight to you, but you'll be sampling your dust every day.  What we at NIOSH are aiming for is to empower you guys and to empower the mining company to know what's happening to you during the shift so you can see what's happening.  You can do things to control your exposure.
		We think you guys are pretty smart.  You know how to protect yourself.  If we can let you know what your exposure is, you're going to do something about it.  You might move a few feet over and in a couple of shifts you're going to learn a little bit about where to best position yourself to reduce your exposure.  You're going to know when you exposure suddenly jumps up one shift, maybe some of the control parameters aren't working, so you've got to check your sprays.  You've got to check your ventilation.  You know, it's going to empower you.  It's going to empower the company to do something about your exposure.  It's going to allow you to get samples every shift.  So it isn't going to be once a month.  Every shift you go underground you see what's happening to you.  That's the whole idea of it, okay.  And it's going to allow you during that shift to see what's happening to you.
		Now what's the status?  The status is that going back about three months ago, we had four of these delivered to us.  We put them through a very intensive laboratory test program where our finding was they met all the criteria we'd established in terms of do they accurately measure dust?  They accurately measure your dust.  We're comfortable with that.  We did want to make a couple minor changes.  They've gone back to the contractor who is making those changes right now.  We hope to have six of these in our hands within about a week.
		At that point, we're going to go into a very intensive four mine underground study and look at different mining conditions -- longwalls, continuous miners, high seams, low seams, different coal seams and do a couple of these.  Number one, see how well do they work underground in measuring your dust?  How well do they hold up?  Do they survive the mine environment and what will they do in terms of your day-to-day use?  How direct are the day-to-day use?  What will miners do with them?  How do miners like them?  Are miners comfortable with them?  Do miners change their behavior using them?  Can we do something about your dust exposure using them?
		So I would say probably in about three months we're going to have results on these.  At that point, we'll put together a report on our findings, have that report technically reviewed and then provide it to all our customers -- the mine workers, the industry, MSHA and let people decide how best to use them in terms of protecting miners.
		At this point, I will tell you NIOSH is quite optimistic about them, but we do have to go through the underground test program just to make sure we confirm how well they hold up underground.  I'll be happy to answer any questions.
		MR. NICHOLS:  Thank you, Ed, I appreciate it.  We'll leave the unit on the back table back there if you want to take a look at it during the day or at least as long as Ed's here.
		(QUESTION ASKED OFF MIKE.)
		MR. TIMMONS:  Yes, there is a power takeoff on the prompt here.  One of the problems we are working on is that different units have different plug-in units, so we may have to come up with some adapters, depending on the mining company.
		MR. NICHOLS:  Okay, thanks, Ed.
		(Applause.)
		MR. NICHOLS:  We'll start with our first presenter, and our first presenter is Cecil Roberts, President of the United Mine Workers of America.
		(Applause.)
		MR. ROBERTS:  Can you hear me all right?
		MR. NICHOLS:  Yes, we hear you.  Can the court reporter hear?
		MR. ROBERTS:  I want to thank MSHA and NIOSH both for the opportunity to be here this morning and participate in the comment period on the proposed dust rules.  I want to welcome all of you to my home area of Charleston, West Virginia.  Actually, Cabin Creek, West Virginia, which is about 20 miles southeast from here.
		It's appropriate that we're here today because in 1968 in the northern part of the state a terrible disaster occurred that set the stage for the Mine Act.  The Farmington Disaster took the lives of 78 coal miners, 19 of whom are still entombed underground.
		I remember the history of this well having just gotten home from service in Viet Nam, watching this on television.  And immediately after the Farmington Disaster, coal miners in West Virginia became heavily involved in the political process and marched across the river here to their capitol and demanded from the state legislature that they pass, actually, the first meaningful state Black Lung law.
		That year was a landmark year also because the Federal Government and Congress passed the Mine Act.  So 34 years ago Congress a great deal of history was made right here in this area.  We know this law as the Mine Act, all of us that worked in the coal mines or worked daily with protecting miners' lives we just call it the Act.
		Thirty four years ago, Congress stated in Section 201(b) "it is the purpose of this title to provide, to the greatest extent possible, that the working conditions in each underground coal mine are sufficiently free of respirable dust concentrations of in the mine atmosphere to permit each miner the opportunity to work underground during the period of his adult working life without incurring any disability from pneumoconiosis or any other occupational-related disease during or at the end of such period."
		I just want to mention briefly, too, that while most my testimony is directed towards pneumoconiosis and Black Lung concentrations of dust, the Farmington Disaster in 1968 was made obviously much worse by coal dust in the atmosphere for how the explosive all the way up to the Jim Walter's No. 5 explosion in 2001 that claimed the lives of 13 miners there.  Float coal dust in the atmosphere contributed heavily to that explosion.
		Section 202(h) of the Mine Act states in pertinent part that "The use of respirators shall not be substituted," and I want to emphasize that, "shall not be substituted for environmental control measures in the active workings."  It seems to us that these proposed rules do substitute for environmental controls in the active working areas.
		Section 303(b) of the Mine Act states in pertinent part that "The Secretary shall prescribe the minimum velocity and quantity of air reaching each working face of each coal mine in order to render harmless and carry away methane and other explosive gases and to reduce the level of respirable dust to the lowest attainable level."  It seems that Section 303(b), to us, of the Mine Act requires engineering controls to control the dust in the atmosphere.  And what these rules seem to do, to us, is say, well, you can't do that.  There are instances where environmental controls or engineering controls don't work.
		So here we are 34 years after the passage of the Act saying, well, what we've been lead to believe that there's less dust in the atmosphere, that miners are not breathing coal dust, we're now kind of indicating or implying that, yes, they have been because the environmental controls, engineering controls have not been sufficient.
		Given these mandates enacted by Congress 34 years ago, I stand here today in awe as to how insightful and quite frankly, perceptive they were such a long time ago.  Let us not forget that everything Congress mandated in 1969 was based on sampling miners based on their working 8-hour shifts.  One of the unfortunate things about today's mining conditions is that miners don't work 8 hours.  Coal miners are now working 10-hour shifts and in some mines in this country, they're working 12-hour shifts.
		The fact is I'm not sure anyone really knows how many miners have died from Black Lung prior to the passage of 1969 Mine Act.  I recall the miners used to say when I was kid, he has miner's asthma.  Well, miner's asthma turned out to be pneumoconiosis and it turned out to be something that killed many, many miners.  We estimate that the number is probably in the neighborhood of 100,000 miners have died in the last 100 years due to pneumoconiosis.
		It's important to note that based on what Congress thought would be adequate in 1969 resulted in, and this is according to the Department of Labor, 106,519 recipients of Black Lung.  These are people receiving checks from our Federal Government.  It does not count 6000 claims being paid by operators.  So we're talking about since the passage of the Act, 112,000 people out there receiving a check, either from the Federal Government or from a coal operator.
		Now what's amazing about that is the approval rating.  Now these 112,000 people getting a check that sounds like a large number and it is.  But they approval rating is only 7 percent.  So for every 100 miners that go to their Federal Government to say I've got pneumoconiosis, you'll have 7 of them that eventually, through a long and tedious legal, medical nightmare of many, many years eventually receive benefits from the Federal Government.
		For many years we've said and suggested that not probably, no question about it in our minds, there are many, many more miners walking around with Black Lung than those who are actually getting benefits.  A recent report by NIOSH prepared from data collected by MSHA of miners still working reveals that miners continue to be sickened by coal mine dust.
		We've come here today, I believe, with an agreement that the law that was passed in '69  has had great benefits, but miners are still getting sick from Black Lung.  We might disagree on a lot of things today, but I think it would be hard to debate that aspect of conditions that exist today.  Miners are still getting Black Lung.  There's no question about it.  This evidence dictates that dust levels in the nation's coal mines must be decreased to protect miners from Black Lung disease.
		What this tells us is that what we're doing now is not adequately protecting miners.  The protections in place since 1969 have had marvelous results, but they are not meeting the requirements of the miners to keep them from getting sick.  They are still contracting Black Lung disease.  You have 20-year old coal miners who have just started their career and 20 years from today they're going to have Black Lung.  I don't know what the end result will be with respect to entitlement of benefits.  There may not be a Black Lung Program 20 or 30 years from now.  It's a continuous fight to see that those benefits continue to flow to miners who are crippled by this disease.
		So the thing we must concentrate on today is to keep all coal miners, those that are coming to the end of their careers and those 20-year old coal miners who are beginning their careers, we must take action to prevent them from contracting this disease.  They should not expect to be sick because they work in the coal mines.  I think we all, I would hope, agree with that.
		Now that brings up to today.  The government is in the process of reforming the coal mine respirable dust problem to deal with the unhealthy coal dust that can and has destroyed miners' lungs.  An overhaul of this program is needed to protect miners from the disabling and deadly diseases caused by breathing respirable coal mine dust.  We all agree that we need to do better.
		As president of the UMWA, I and the miners I represent have called for these reforms for many, many years, but these reforms must be done properly.  the proposals released on March 6th, in our opinion, are misguided and would be adverse to miners' health.  There are fundamental problems with the newly-proposed respirable dust rules, putting miner operators on one side of the debated and miners on the other.  And you say, well, why would I say that?  It's clear to me by some of the public comments that have already come out that the industry believe these rules are okay, at least, okay, maybe they like them.
		Comments by coal miners have said we don't like these rules.  Why do operators like them and the miners dislike them?  Well, maybe we can figure that out as we go forward, but I think one thing that was very telling by one of the leaders in the industry yesterday or day before, we want out of the sampling business.  We want out of the sampling business.  If we sample and the miners are in compliance, we are accused of fraud.  If we sample and the miners are out of compliance, we're fined.  Well, there's an easy answer is don't commit fraudulent acts.  That cures that problem and keep the miners in compliance, and that curs the second problem.  So the industry's argument of, well, we want out of the sampling business because of those two reasons I think are very weak to say the least.
		Now that brings us here today to talk about what we need to do.  The debate about the proposed rules really boils down a few very simple, but critical, issues.  On one side you have mine operators wanting more flexibility by permitting higher levels of unhealthy coal mine dust in the mine environment, while also reducing the frequency in sampling of mine atmosphere.
		On the other side are the miners who demand a reduction in the levels of respirable dust permitted in the mine atmosphere.  I just want to comment we're not alone in that.  There was an advisory committee of MSHA, an advisory committee of NIOSH, both recommended that.  So the miners don't come here today suggesting something that advisory committees established by MSHA and advisory committees established by NIOSH also supported that.  So I assume that the operators are the ones who are on the other side of this issue.
		Now miners seek more frequent and more reliable sampling of the mine environment to make sure respirable dust remains at a safe level.  I'm assuming that, that's something that NIOSH and MSHA as well as the miners support.  I assume that's a correct assumption.  Now the real debate is what constitutes adequate sampling of respirable dust?  It's been a controversy for years.  Miners want more sampling.   Mine operators want less.  And for years, mine operators have controlled this program.  Over the years, there's been evidence of widespread manipulation in sampling by many operators.
		Some mine operators do not want to spend the time nor the money needed to consistently control dust.  For too many years miners have complained about all the increased measures that are taken by coal operators on sampling days versus what they are expected to work in a daily basis.  There's not a coal miner in this country, union or non-union, young or old, if they honestly tell you that on the days they're sampled, there are different conditions in the mine than when they're not sampled.  I don't think there's anyone in this room that doesn't understand that.
		I believe everybody in this room, whether you're up front or behind me or anywhere, knows that's the case.  The manipulation of ventilation -- water sprays, rock dust and the speed and production of coal all play a part.  No matter what we do here, unfortunately, none of us control the speed of production.  No matter how we deal with this.  The validity of miners' complaints have been confirmed.  For example, during the '90s, 160 companies and/or individuals were criminally prosecuted for fraudulent coal mine dust sampling practices -- 160 companies or individuals.
		The union believes this represents only a portion of the dust coal fraud that has been perpetrated over the last 30 years.  An honest system with regular coal mine dust monitoring and sampling is needed to curb these kinds of abuses.  I don't think anybody disagrees with that.
		One should be be to expect that the government agency charged with responsibility of protecting these coal miners would learn from past history and create reforms to ensure compliance with respirable dust standards.  However, in this case, the UMWA believes MSHA has fallen short of its responsibility.  The proposed rules fail to respond to the miners' needs, and I might add fails to respond to both the advisory committee established by MSHA and advisory committee by NIOSH.  I believe one was in '95 and the other in '96, while allowing higher levels of respirable dust and less sampling.  And I assume, based on the prior hearing there was a lot of debate about that, but I think that's a fact.
		MSHA also ignored findings and recommendations by NIOSH and MSHA's own advisory committee, which was created to recommend our best to overhaul the respirable dust programs to eliminate Black Lung disease.  MSHA disregarded recommendations from miners and other compelling evidence.  Most of all, it disregarded what Congress mandated in the Act.  The proposed rules are complex.  And if anyone doesn't believe that, try to read it.  The proposed rules are complex and mine safety professionals are having a hard time even figuring them out.  They are filled with exceptions, complicated and confusing formulas and language that's misleading.
		Moreover, this rulemaking effort was released on the heels of several serious mine accidents and while other comprehensive rulemaking is taking place, making it difficult for us to properly analyze and adequately prepare comments.
		One of the primary examples of the changes we believe are misleading within the new rules concerns maximum permissible respirable dust levels.  I want to go back to the beginning of what Congress said about this about ventilation controls and engineering controls of being the way you control respirable dust.
		Under the proposed rules, MSHA would allow mine operators to maintain increased levels of respirable dust in the active workings of the mine far beyond the permissible limits set in the Mine Act.  Congress said 2 milligrams per cubic meter.  There's no debate about that.  That's what the law says as the maximum amount of dust that now maybe maintained in active workings.  Yet, under the proposed rules, MSHA would allow operators to maintain four times that amount, up to 8 milligrams per cubic meter with miners having to use respirators, protective equipment to reduce their exposure -- these airstream helmets.
		It seems to me that we have made an exception to what the law says.  The law doesn't say that in most instances the atmosphere will be 2 milligrams.  It says in all instances.  And then, there is a strict prohibition forbidding the use of air steam helmets.  So what we are at least are saying is there are instances when the dust is higher than what the law suggests and we're saying they can't be controlled by what the law says and we're saying we're also going to use respirators to correct that problem, which the law, in our opinion, forbids.
		Figuring this out is hard because nowhere in the rules is it directly spelled out that levels of dust could be as high as 8 milligrams per cubic meters without MSHA citing the operator.  It's my understanding that this issue was thoroughly discussed at the May 6th hearing in Washington, Pennsylvania and the panel confirmed that under the proposed rules, respirable dust levels could reach 8 milligrams per cubic meter in active workings.
		Now we could probably get into a big debate about this and spend the rest of the day about that, but according to quotes that I've read and widely disseminated across the country now that, that was confirmed, but that's not going to happen.  If it's not going to happen, why would we say it can happen in certain instances.  If it's not going to happen, we don't need to have an exception.  We don't need respirators if it's not going to happen.
		There are other proposed changes that further reduce miners' protection.  For example, MSHA proposes giving the benefit of the doubt regarding the accuracy of samples to the mine operator when it comes to citing the violation for exceeding acceptable, respirable dust levels.  Well, I believe you should give the benefit for the doubt to the coal miner because he's the one that's going to contract Black Lung, not the operator.  In other words, whenever dust levels would be in excess of the legal limit, levels would have to exceed the limit by an additional margin of some type before MSHA will cite the mine operator for non-compliance.
		Congress intended that the mine environment where miners work would never exceed 2 milligrams per cubic meter of respirable dust.  The proposed rules do not heed to this mandate.  And as I said before, miners that work on shifts longer than 8 hours would only be sampled for part of their shift, which means that they will be exposed to much more dust than they are sampled for and operators might never be cited.
		Well, MSHA claims the new rules would include a plan for the government to take over the troubled operator-controlled dust sampling program.  We've been supporting this for years and advocating this for years.  This simply does not appear to be the truth.  Indeed, the agency has completely eliminated the number of samples previously taken by the operator and MSHA will not conduct such sampling as part of its responsibility.
		Currently, if I do my Cabin Creek math correctly, the operators are required to do about 30 of these a years, samples.  MSHA does about four samplings a year.  That's about 34 if you add those numbers together.  The mandate for the operators is gone, not that they won't do some sampling, but the mandate to do sampling is eliminated in these proposed rules.  It's gone.  So those 30 required samplings by the operators are no longer there.  So the position of the industry "we want out of the sampling business" is gone.
		Now we're down to how many times will MSHA be sampling.  It appears that there's a requirement for six opportunities per year.  We're trying to do the math on this as we look at it.  So we're down from 34.  It looks like MSHA is going to do six.  However, there's an exception there.  It appears that it would give you the right to go to three per year.  That's what it appears to be and many people poured over these rules and you can tell them, well, we're not going to do that.  Well, if we're not going to do that, let's not.  Let's just not do it.  Let us know what the miners have and what the miners don't have here.
		So it appears there's a drastic reduction in the amount of samplings that's going to be done over the course of any given year.  The current sampling of 34 working shifts we believe is insufficient and most people agree with that, and reducing it would dramatically reduce miners' protection.  We think there needs to be more sampling, not less sampling.
		Please understand that the proposed MSHA sampling provides that significant discretion is left to the agency.  So even to something that is referred to in the proposed rule is not absolutely, in our opinion, required.
		There's a number of serious flaws with the proposed rules as well.  They would allow mine operators to replace engineering and environmental controls of respirators, which I think is a violation -- we believe it's a violation of the Act.  Moreover, MSHA has been advised that the specific respirators it wants the miners to use in dusty conditions are not proven reliable and maybe faulty.  That's come out in previous testimony when the 2000 rule was being discussed, debated and ultimately withdrawn.  Mine operators even testified to that.
		Also, the plan verification system proposed by MSHA has too many loopholes.  First, it let's the fox guard the hen house.  With the mine operator instead of MSHA controlling the initial verification.  Second, the process will take too long and it will be too easy for operators to operate the system, which would defeat the intended protection.
		The answer to this is continuous monitoring.  Continuing monitoring should be the standard for ensuring plan verification.  But MSHA's new rule would not utilize this technology.  In 1980, that's 23 years ago, MSHA promised miners that it would work to develop a continuous dust sampling device that could be used to constantly monitor respirable dust levels to help end widespread abuse.  With the support of the United Mine Works, some coal operators and the hard NIOSH, a continuous sampling device now exist and is going through final testing.  We just heard about that 20 minutes ago.
		It can be built into the miner's cap lamp battery container to be comfortably worn by miners on each and every shift.  It would provide instantaneous readout of dust levels throughout the shift.  We'd never have to wonder what kind of atmosphere a coal miner was working in, and even provide projections of how much dust miners would be exposed to if exposure limits continued at the same level over the course of that shift.  This would be the most adequate reading the miner would ever had or has ever had in the history of coal mining in this nation.
		At the end of a shift, the sampling device would provide immediate information showing the dust levels for that shift.  The same data could electronically downloaded to MSHA.  A benefit would be that by providing instantaneous information, dust controls could be immediately adjusted when necessary to lower dust levels.  It could provide information every shift, every day for the miner, operator and MSHA to use to track miners' exposure and operators' compliance.  It would allow dust sampling for the full work shift, whether that shift is 8 hours, 10 hours or 12 hours.
		The proposed MSHA rules acknowledges the continuous sampling device, but only offers it as an option for the mine operator to use.  This remarkable continuous sampling device is now going through final testing and NIOSH expects this to be completed by late summer.  It is our position that MSHA should require the use of continuous dust monitors once the testing is complete, not optional.
		Here is our view on this.  If you make this an optional situation for coal companies, they're not going to spend the money, number one.  And I believe there are many in this nation who do not want continuous monitoring of the coal miners working in their coal mines.  And I believe that there is evidence to that fact.  The debate over reforming the respirable dust program must be resolved in favor of the miners' health.
		So if we're going to have a debate about what to do about dust, how should that be resolved?  And I think everyone in this room agrees that it should be resolved in favor of the coal miners, not in the interest of the coal industry.  It should be resolved in favor of the coal miner.
		Sadly, too many instances the protection of coal has been paramount, supersedes the protection of worker's health and safety.  As you know, on many occasions this practice has met with disastrous results.  We cannot allow this to occur again.  Any new rule must be consistent with the intent of Congress.  What Congress declared in the Mine Act was true in 1969 and it's true today.  The first priority and concern of all the coal mining industry must be the health and safety of its most precious resource, the miner.
		Respirable dust levels permitted in the nation's mines must be decreased to protect miners from Black Lung disease.  Dust sampling must be increased to assure miners are not over exposed to unhealthy coal mine dust.  The misguided and seriously flawed rules issued by MSHA must be withdrawn and recrafted to reduce levels of respirable dust in the mine atmosphere.  By mandating continuous monitoring, requiring more frequent compliance samples, having MSHA take over the samples and sampling regularly and also ensuring miners participation in all levels of the respirable dust program.  Thank you very much for this opportunity.
		(Applause.)
		MR. NICHOLS:  Thank you, Cecil.
		MR. ROBERTS:  You're welcome.
		MR. NICHOLS:  Let's take a break until 9:45.
		(Whereupon, a short recess was taken.)
		MR. NICHOLS:  The next presenter will be Joe Main.  Is Joe here?  Okay, while Joe's showing up, I did not want to ask Cecil to spell his name for the court reporter, but you guys that come up after Joe, Joe won't need to do that, but the rest of you guys, would you please spell your name for the court reporter when you come up?
		MR. MAIN:  My name is Joe Main.  I represent coal  miners and I'm the administrator of Health and Safety for the United Mine Workers of America.  I apologize for my voice today, but I think MSHA has just about wore me out.  There isn't much steam left in this body, Marvin, but I'm going to keep on trucking here.
		I want to start off today with a point that I raised yesterday, and it has to do with a very complex set of rules that was issued on March 6th in a very short period of time that people have not really had the opportunity to read, review and comprehend.  I know I met with a group of miners last night.  Some heard this for the first time and are trying to plow through this very complex, confusing proposal that, as President Roberts pointed out, many of us safety professionals couldn't even figure out.  And if it wasn't for the opportunity to have a number of meetings with the MSHA folks who worked on this rule to explain it, I would be sitting here still clueless about this rule today.
		The one thing that bothers me, and I raised this in the briefing meetings that MSHA gave us, is that there is a need for a full explanation of what this rule does.  And as I pointed out in Washington, Pennsylvania on Tuesday at the hearing, we don't believe that's happened and I'm going to explain why.  I think it's unfair to miners not to have the full measure of understanding of what this rule does.
		The half hour Powerpoint, and this was raised in the discussions we had during the staff that we felt that, that would be inadequate to really go through what miners need to go, given the fact that we went through probably six plus hours of meetings just to get to the level that we are.  And we've worked hard to try to transfer that information out to the mine community and to our miners, but we're way behind schedule.  So there's a lot of miners in this room that wasn't even there last night to get that briefing.  And I've tried to absorb all of the details of this rule on their own.
		Now the problem of it is they haven't done all they need.  You've got this thick rule, which is both the single-sample rule and the plan verification sampling rule in a very fine print, two-sided document accompanied with a preamble.  You've got what's called a PREA, which is a preliminary regulatory economic analysis.  Here it is, two-sided, a lot of stuff to read in a very short period of time.
		You've got the agency policy document, which is about that thick which has pieces of this rule, or I should say policy, pertaining to pieces of this rule tucked in it.  And you've got a couple of other documents that, quite frankly, I just seen the other day.  One is about that thick.  I haven't had a chance to even read it yet, and didn't know what it's about but it's suppose to be an accompanying document to the rule.
		Just to understand what this rule does and how it's going to be implemented.  It is over the heads of the miners.  It's over the heads of safety professionals and it's so confusing and complex that I think it's going to be a bureaucratic nightmare and a regulatory nightmare if this thing every hit the light of day.  It's laced with formulas, exceptions to the point that what you think you've read is not what you've read.
		And one of the troubling things I have with the charts up there, it doesn't really explain what this rule is going to do at a lot of different mines.  The reality is that a mine in this country, miners represented here today I don't think have any clue what the new standard is going to be when it comes what President Roberts was talking about and that is the amount of respirable coal dust that's going to be allowed to be in the mine environment in a coal mine in this country under this rule.
		We were told in meetings we had with MSHA that this formula for using airstream helmets would, in fact, allow the dust levels to be up to 8 milligrams with the factors that's used.  It would allow that to happen.  Whether MSHA approves it or not, we understand that's the difference there.  We also understand that under the current scheme you can't do that.  It's not legal to do what you're proposing to do here to allow the dust levels to increase to this 8 milligrams.
		We also found out during those meetings that on this plan verification sampling process for a mine that is on this 8 milligram standard, MSHA would have to find, I think, 6.67 milligrams of dust, calculating in the other factors of air flows and all that kind of stuff, before the operator would be required to do a quarterly dust sampling on their own of the quarterly sampling.
		Now we were getting on to it yesterday at the end of the day, and it was sort of like pulling a little bit of teeth for us to get this out, but that under this scheme the mine operators that would be approved should MSHA approve that, they would not be cited for a violation until the dust levels reached 9.33 milligrams in the mine environment.  It's totally illegal, totally outrageous and it's far from where we need to be to really clean up these coal mines and protect the miners.
		Those kind of things are not getting out there unless we put them out there, but that's a reality that could happen under this rule.  There's a difference of opinion here.  We recognized that yesterday.  You say we're not going to let that happen, Joe.  We're going to make them do this, this and this.  And we say we've seen enough experience that we don't trust that.  And when you look at some of the formulas in this standard, it deals with things of capping off air flows, which we think again is illegal.
		I'm going to walk through -- I sat down after the discussions yesterday to take a fresh look at this and I have found that several provisions of both Title 30 and the Mine Act that you're proposal is directly in  violation of.  With regard to the PAPRs that's being talked about here, the plan is the operator can submit a proposal to MSHA claiming that they have exhausted all feasible engineering controls.  MSHA then has to make a determination, a policy determination about whether or not that operator has exhausted their controls.
		We've been in this situation before.  Thank God we had this law protecting us or we would have had airstream helmets replacing coal dust environmental controls in the past.  And I've been personally in situations where that experience has occurred.  It comes to the question of currently miners have a bar under the law to prevent you guys from even considering that or doing that.
		Under this proposal, that bar is gone.  You will have that right to approve those dust levels up to 8 milligrams.  And what we've got to do is say, okay, under this new proposal, we've got to be willing to trust the agency to do the right thing here to make those guys put in those mines what they need.  I can tell you this that had this standard been in effect in the late 1980s before we got shield sprays on longwalls, we would never had shield sprays on longwalls in these coal mines.  And I would dare to see MSHA try to force them to be there.
		As a matter of fact, with the law the way it was, we had a difficult time forcing some mine operators to install those kind of controls with the 2 milligram standard and the legal responsibility that the operator had to meet that standard.  It has been a dog fight out there.  I mean, we've all experienced that.
		With regard to air flows, I look at this proposal and I see one simple thing.  Your coal mine operators have to put enough air in the coal mine to reduce a bit of harmless methane for a good reason.  Congress made that clear.  You're going to put it in there.  Whatever it takes to keep that methane down not to exceed 1 percent at the face and they've got to do it.
		Now the way this rule is geared, it sort of says we're going to continue to do that methane control, but when it comes to dust control we're not to apply that standard that way.  We're going to let mine operators have less air in these coal mines and have higher dust levels.  And when you look at the formula setup, it's like why should some mine operators be given the opportunity to have their air flows at what, 400 foot per minute?  And have the opportunity to jack the dust up to 8 milligrams while other mine operators to satisfy -- if you look at the truth of the matter, have to have higher velocities to control the methane dust.
		There's an encouragement here for operators to reduce the number of mine openings for air that they put in mines.  There is a drive here for operators to not develop, spend the money and time to develop the entries needed carry air out if the agency is not going to make them have the air at those working places.  And when we get into the duct sheer and say, gee, we haven't got the air fellows.  Now what are you going to do?  It puts us all in a real box here.  It's a box that we've been put in before where we've run into situations where mine operators cut short their air capacities going into the coal mines.  This encourages that to happen when you get to the dust dealer.
		The law is very clear in many places.  It requires ventilation of mines to not only deal with keeping the methane levels down, but keeping the dust levels down through the lowest achievable levels.
		Before I wrap up here, I've got about six or seven standards I want to cite into the record we found that just finds this proposal totally illegal.  With regard to the PAPR problem, I sat through testimony in 2000 and heard a number of miners and company individuals lay out a case that those things are faulty.  They are not being used in the state that they are approved under the NIOSH rule and there are number of reasons for that -- the filter problem, the conditions of work that miners are in if their head fogs up, the inability to breathe well with those helmets on.  They take the neck skirt off that breaks the seal.  The griminess of some of these mining conditions that the miner wipes that shield off with his dirty glove and dirty sleeve that winds up flipping the shield up more than it needs to be, which also breaks the approval.
		I mean, this is not us laying out some fictitious happening.  This is stuff that's on the record that has been known for some time.  Clearly, since the record was developed in 2000 during the rulemaking.  And the sad reality is that what is about to happen here, MSHA wants to take that same faulty system that's in place and put that in the mines for miners to use, to wear to protect them against these increased dust levels.
		Now had the agency sat back in 2000 and said we're stopping this.  We're going to make them have legal respirators in coal mines.  There may have been credibility, I think, to the agency's argument here.  But given the fact that the agency has known this to be the case for three years, continues to be the case, top officials from industry testified to that at the PAPR hearings we had April 10th in Washington, D.C., saying that these things are not being used as they should.  And what he said in substance was they're not being used as approved.
		There's a standard under the regulation, I think it's 70.300.  I just want to read that because there's a couple of problems here that I think, after reading some press articles yesterday, I think is misleading people as well.  Section 70.300 of the current regulation says "Respiratory equipment approved by NIOSH in Part 45, 42 C.F.R., Part 84 shall be made available to all persons whenever exposed to concentrations of respirable dust in excess of the levels required to be maintained under this part.  Use of respirators shall not be substituted for environmental control measures in the active workings.  Each operator shall maintain a supply of respiratory equipment adequate to deal with occurrences of concentration of respirable dust in a mine atmosphere in excess of the levels required to maintained under this part."
		Very simply, operator you have to employ the engineering controls to keep your mine in compliance with the standard.  You have to provide respiratory protection that meets the approval of NIOSH as a protection when you go through those excursions to protect the miners.  And that protection has to be readily available to miners and it has to be there to be used in an approved state.
		What we have is a situation that, that's just not being enforced in this country.  For whatever reason, we haven't been able to get the agency's attention to sit down and look at this because the sad reality is that there are miners out there that's using these respirators that believe that they're protecting them when, in fact, they're not being used as approved and they will not provide the protections that was intended.
		The second problem is that we've got evidence coming out that the flow rates of these PAPRs are not enough, even if use them in the approved state, to provide the protection that miners need.  With the exertions, the work conditions that miners are in, the overbreathing problems and you breath around those shields.  So we have a problem here that what is about ready to used to satisfy a provision of this law that is a tool that has been found flawed.  I call them the leaky respirators now because that's what they are.  With regard to the testimony on the record by industry alone and supplement that with miners, you can only call them nothing short of a leaky respirator that does not meet the approval.
		With regard to the current standards, I'd like to clear the air here.  There's some impression, gee, we're going to require these respirators for the first time for miners.  That's just not true.  The law has been in effect since 1969 obligating mine operators to provide approved respirators to miners and they darn well ought to be doing that.  And we darn well ought to be looking at what is going with the respirator program that's in effect that don't meet the current regulations as oppose to legalize a flawed system.
		With regard to a couple of issues that was raised yesterday, and I'll start with the PDM-1.  We looked at this rule, and what's not being said here is, will anybody really use this?  Will anybody really use these PDM-1s under this rule?  Our evaluation is no.  And we heard from John Gallick, a representative of coal operators, yesterday that told you the same thing.  I think his words were "I doubt if there's a hundred of units sold regarding this rule."  We questioned whether there had even been 10 sold for the purposes of using it under the rule or even one.
		And our reason for that is really simple.  When you look at the way this law is going to be applied, and you look at what would drive an operator to actually change one system to voluntarily use these devices, it becomes clear to even a kindergarten what's going on here.
		Under the rules, a mine operator, at best, would decide I going to do maybe -- the maximum side of this as far as the quarterly inspections and the MSHA dust sampling inspections, what does it come out to, 10 a year?  Okay, that's at the top end of this whole range is that we were told by agency folks when we had the meetings.  I'm going to throw that away and what I'm going to do here is I'm going to buy these units and I'm going to self-impose a shift-by-shift verification of the dust levels in my coal mine.  I'm going to do that.  I'm going to buy these units expected to be somewhere, I heard, around seven grand apiece.  I'm going to out on my own buy all these expensive units and I'm going to impose a new standard on myself as oppose to that.  That's their top end.
		The expectations, according to the agency is, is that we're not going to have no 10 shift samples a year under this rule.  Based on the estimations that was provided to us during those briefings was that they expect -- you guys expect about 85 percent of the mining units in this country for operators not to be doing the quarterly sampling.  That's not my numbers.  That is your numbers and you claim it's in this PREA document here, which we haven't had a chance to analyze yet and to replace, in these cases, a sampling program that the operator would use where they would only have down to one sample, which is for plan verification, to sample 365, 24/7 is absolutely ludicrous to think that operators are going to do that on their own.
		Does anybody in this room believe that some of the mines who have had these criminal prosecutions, who have intentionally done things like take the dust sampling to the mine office, take a coal bucket and shake it up to make a sample to cheat the system is going to go buy those to put those in those mines to protect those miners?  I think not.
		And if you look at history, and just go back to the findings that was in the Louisville Courier Journal investigation, which I want to introduce as a document into the record today, which found widespread cheating in the dust sampling program.  And it talked about how they intentionally bypassed systems that's easily verified.  You know, mining section -- continuous mining sections where we would all agree, I think, it's a lot easier to verify one of those sections than it is a longwall.
		But what they do is, when the feds aren't there with the dust samplers on, according to the information here, you know, verify every plan you won't, it ain't going to be in place and those miners in some of those mines are too scared to death because of fear of losing their jobs to speak up about it.  That's the reality of this industry.  Not that we think that an operator at those mines is going to use those PDM-1s to check those miners that are probably the most vulnerable in this country to protect them?  You know, bring them to me.  I want to meet this invisible person because they don't exist.  They're not going to be there.  As John Gallick said, operators are not going to exercise this option and buy those units.
		The other sad reality is, when we get into the dust inspections, in looking at the Louisville Courier Journal findings where the widespread cheating was going on because of lack of sampling going on in those coal mines that when the cat's away the mice will play.  They fix things up to get you guys in and out of that mine.  And when you leave, they put those miners in that dust.  They don't stop to bring their line curtains up, don't fix their water sprays and things that it takes to keep the dust under control in those mines.  They run free-wheeling and it exposes a lot of miners to unhealthy dust.
		There's two answer to that problem we've found, and we've searched through this for years.  One, either park a federal inspector on that shift every day, 24/7, 365 or park a unit on there that will document what the heck is going on.  The beauty about this thing is that some the fraudulent practices that we've heard over the years where they the dust sampler out and hang it in the intake airways.  It's hard to hang that monitor off that roof bolt, okay.  It's tough to do.  And if the miner takes it off and hangs it out there, it's darn hard to see in a coal mine without a cap light on.
		And if you hang it out there, some of the things that wasn't talked about here yet this morning -- we spent a lot of time looking at the tamper-proofing of that system.  If that thing is sitting still, it'll show that there's no motion.  If somebody puts something over the inlet to plug up like we've heard has happened before, that system is designed with the computer technology that's in it to detect that and record that.  All these things are being recorded as part of the process.  You know, designing a way to take the tampering out as much as we can.  Some of these operators will figure out some way to get around the system, but you know, to the extent where we're at today and what's going on that is the only thing, if you really want to clean up the dust in the coal mines where we know the fraud and cheating is going on when the cat's away, it's the only solution that's there.
		Now the proposal by MSHA to do a spot check of those mines, one shift spot check six times a year at max is not the answer to that problem.  It will not fix it.  And we've got to stop fooling ourselves about these, you know, band aid approaches to life here.  You will not cure that problem with the plan verification scheme.  You will not cure that problem with regard to the infrequent samplings.  And those that figure out a way to beat you while you're there to get that dust down, and then to go to three a year?  I mean, six is outrageous.  Three is absolutely nothing.  It doesn't do what we need to do to fix the dust problem in those mines.  That is a reality.
		We've got to come up with a system that provides continuous monitoring of the mines if we're going to fix this problems.  Coal miners that work at union mines that are represented here, you ain't going to see a whole of miners, I guess, unless the company decides to drag them in here and pay them or not pay them and tell them to get in here that they can't speak for themselves.  That's one of the limits of this whole process.  All this external documentation is sometimes the best evidence we've got to what's really going on.
		But I can tell you in the union mines we seen manipulation of the dust sampling.  If you ask any miner, he'll tell you that the conditions are its best in the mines the day that sampler goes on because we're in there and they ticker around to make sure everything is up to speed.  The waters are dusted for calcium in the water.  All kinds of different things are going on beyond the plan parameters we're talking about here that takes place.
		I've heard that the monitor that goes on with the monitor, so to speak.  When that dust pump goes up on that section that -- goes in there the boss in up there making darn sure everything is working okay.  You think that boss is there everyday?  No, he's not, not for that purpose.
		These continuous dust monitors are critical to fix the problems in the union mines and the non-union mines alike if you're going to clean up the dust and get these guys out of the dust.  I noticed the reluctance to get this unit up here today.  It's frustrating because I want to talk a bit about the continuous dust monitor and the problem we ran into.
		And yesterday there was some frustration about, gee, we're not going to wait another two years.  Well, the truth of the matter is, when we finished up the last rulemaking in 2000, there was a number of us in Labor and industry and NIOSH that got together and said we're going to fix this problem.  We sought financial help and assistance every place we could.  We sought support every place we could to build this device that's in the back room.
		There was a number of reasons for the delay that we don't have that today.  And I can tell you, and I along with some of the industry, was highly upset when we found out as we agreed in the meeting with all the principals to put all that money that we had available on developing the PDM-1 to get it built, there was a decision made to pull the money off the PDM-1 and let's build this PDM-2 device that's totally separated from this unit that miners can't wear as a secondary unit.  I was furious when I heard that.
		Now there's this, well, we had to build the PDM-1 to get the PDM-2.  No, we didn't.  People thought that and wanted to do that.  That delayed this whole process.  It's very frustrating.  The technical glitches that slowed things down -- this thing was suppose to be ready in January in terms of getting them into the mines.  The reason it's not there today had nothing to do with the sampling technology.  It had everything to do with when the manufacturer put together the device, he didn't put enough battery capacity in the darn thing to do what we'd asked and instructed them to do.  So they had to take the thing back and put more battery capability in it.  We've redesigned using battery technology to get us where we're at, but that was an error on the part of the manufacturer.  We're frustrated over that.  It should have been there, but we're stuck.
		There's been glitches along the road that have been the mistakes of man, not the failure of the system to do what it was designed to do.  And it's just totally frustrating to find ourselves here today not having that device finished, which we should have.  And I think people need to recognize that and I think we need to examine what went wrong here and why this thing was delayed.  The frustrating part as well was we were having all these meetings, briefing -- the industry knew what was going on.  NIOSH knew what was going on and the mine workers knew what was going on about the closeness and the accuracy of this unit and it's a little bit troubling the kind of vibes that I see coming back from MSHA with regard to the reluctance to embrace this as a tool to fix this and jump on board with us to get it done.  Whether it's real or not, that's the impression you guys are leaving and I need to let you know that.
		And the simple thing like leaving the thing in the back room today, no, we needed to get it up here where miners could see it.  There's a lot of miners that never saw that.  Don't understand what the capability of it is.  Not only what NIOSH said, but at the end of the day we can electronically download that data straight off that continuous monitoring to you Marvin, to MSHA.
		I mean, think of that, instant information that miners never had before, the capability of providing MSHA with all this information, but most important, it empowers miners and I think that's what scares everybody.  We can't let those miners get that in their hands and know what dust they're in.  I'm appalled by anybody who thinks like that.  I'm hopeful that, that's not the thinking there.  I'm not saying it is, but I know they're some in the industry that think that way.  Those mines that were charged with criminal conduct that cheated the system intentionally don't want to see those on those coal miners.  We've got to put them there.  We've got to fix system.
		With regard to yesterday, I noticed that there was some dismay from the reaction of the miners that was at the hearing over our response to the proposal.  And I want to clear the air on that in terms of why miners are angry about what you're doing.  I want you to understand it clearly.
		You know, there's a historical record that was built over years.  And as I pointed out, in 1976 miners came up with this idea of continuously monitoring their shift days, weeks, all the way through with continuous dust monitors because they knew back then that's the way we fix this thing.  We're going to document what's really going on in here.
		In 1980, the government promised miners in the closing days of the dust reforms that they would build that system, work to get it built.  We're going to do the research to get these continuous dust monitors in the mines.  Miners believed that.  I believe it.  I was back in those days.  What's happened since is, in a way, a history of frustration.  But during the years, miners have made that one of their front claims undeniably what they've wanted to fix this problem is a primary way to fix the plan verification system, to fix this system of over exposure between sampling days.  And in this case, we built this thing to last 12 hours, so we can do full shift sampling up to 12 hours and fix problems like that.
		We had the NIOSH criteria document that was issued in 1995.  It made a number of recommendations.  Those recommendations were consistent with what miners were saying, lowering the dust levels in coal mines and NIOSH's recommendations was down to 1 milligram for cubic meter over taking into consideration the extended shifts and the extended work weeks.  There's a number of other recommendations, too, to beef up the sampling program.
		In 1996 the Secretary of Labor appointed an advisory committee charged with the specific job of set down, come up with a regulatory game plan to fix this problem.  I was fortunate to serve on that committee.  You had industry on it.  You had Labor on it and all these independents.  In 1996 they gave a report to your agency, saying here's the road map for reform.  That road map for reform said MSHA you take over the program.  That you increase both the numbers and frequency of that sampling.
		They said MSHA you come up with standards to lower the dust levels in the coal mines.  They said MSHA get this research done on these continuous monitors and let's get it in there so we can look at a few plan verifications and even compliance sampling.  They said increase the miners' participation.  They're they ones that's getting harmed from what's going on out here.  Give them a big role in this whole process to make sure this is done honest because we have a history of dishonesty in the sampling program in this country.
		So we have this and a lot of other information and the miners testified at those public hearings on the dust advisory committee.  We had this proposal launched in 2000.  And this proposal was as wrongheaded as what this proposal is for a number of reasons.  It reduced sampling.  It failed to take into consideration a meaningful compliance sampling.  It allowed the increase of dust levels in coal mines.  It failed to address the full shift sampling.  And like NIOSH and MSHA have both said in their findings, don't increase the dust levels.  Don't adjust them upwards in favor of the mine operator.  When it comes to making that determination of compliance, don't make it in their favor.  Put it in the favor of the miners at least.  It should be adjusted downward, I think, was the findings of NIOSH, which is something we support.
		There's a number of things that was in the record that was laid out by coal miners in 2000.  They came from all over the country, give us continuous monitors, lower the dust levels, increase the sampling, sample the full shift, have the standard, don't let them exceed this 2 milligram by goofy formulas and stuff and let's get this program fixed.
		When we read the March 6th proposal, I can tell you this, if you guys didn't think there would be total disappointment in our eyes, I don't know what your expectations were because it decreased sampling, in our opinion, even more clearly from what the law was.  It increased the dust levels in coal mines substantially more.  And I just want to stop there and just lay out what was in the 2003 rule.  There was a goofy proposal to allow mine operators of longwalls to put these faulty airstream helmets on these miners, inject the dust levels up -- I think it was 4 milligrams on longwalls.  Miners railed against that.  You know, that's illegal.  We don't want it.
		The proposal we came back out says, well, here's what we're going to do for you miners in response to what all our concerns were.  We're not going to just put this on longwalls.  We're going to let operators use this all over the mines.  And oh, by the way, yeah, that 4 milligram that was wrong.  We're going to jack it up to double to eight.  You don't think miners was upset about that?  Four shift sampling -- we don't have four shift sampling in this rule.
		No upward adjustment of the dust levels during compliance in favor of the operator.  Don't do that.  The rule does that.  Miner participation -- if miners want to take money out of their own pocket and lose work and go sit on a plan verification sample, it's done.  That's outrageous.  I mean, does anybody here -- do you take off work if there's a conference some where, tell the government keep my money.  I'm going to go do this on my own.  You shouldn't expect miners to do that.  And we have a provision under the law that this agency was stiff enough to get that standard in place to make these operators pay for these miners participation.  They deserve it.
		You know, we're looking at an industry that has killed tens of thousands of miners from choking on Black Lung or from coal dust that gives them Black Lung and other diseases.  That's outrageous.  And what we say to those miners is, here's what we're going to do for you fellows, and you did make some modest improvements in that rule, which we agree.  We agree with single sample.  We don't agree with adjusting that upwards.  That's wrong for the miners.
		We agree with getting rid of this averaging.  It should have been done a long time ago, but you don't place these little tiny, tiny, meek proposals that doesn't give you the full measure to protect the miners that they need.  Infrequent sampling, some mines down to three compliance samples on a section a year.  And under this rule, I should point out, you've got at the outline sampling, because under the current rules, miners have a guarantee of -- what is it, six times a year they're going to get sampling.  Under this rule, those outline miners got one sample for the whole year.  We're going to base the exposure of miners on one sample a year in these coal mines.  I just didn't like that.  They said do more, you did less.
		You look across the board, and there's a lot of other proposals in there that miners have demanded for years that is just not, as President Roberts, their findings has been the findings of NIOSH.  It's been the findings of the advisory committee I sat on that this agency, for whatever reason, refuses to accept and stays wedded in this failed system we just can't get out of.
		But this continuous dust monitor, how did we wind up here getting into a quick rule, rushed in the middle of all these actions, all the other rulemaking, how did we get here and say we don't care about this final date -- finalization on this PDM-1 that NIOSH, a good government agency, has worked hard to get, supported by the operators, supported by the union labor.  It's sad.
		So if you can't understand why we're frustrated.  Why we're upset and we're angry about what's come out here, I think you fail to understand the reality of life.  I don't we could have laid out a clearer record in 2000 and I don't think there could have been a clearer decision made with the rules we say that we have not listened to you coal miners and we're not going to listen to you.
		Now getting back to the PDM-1, with this optional plan.  I mean, does anybody in their right mind really thought that they operators were going to jump on this and put this in the coal mines?  I mean, if you do, I worry.  They said it.  I had a meeting with the BCUA shortly after the rules came out, and I got into a discussion with their top safety guy from Peabody Coal Company.  And he says to me something to the effect, Joe, who in their right mind would ever put one of these things in a coal mine under these rules, nobody.  That was our estimation, too.
		Compared with what the operator had to say yesterday, John Gallick.  That's the problem we have.  I mean, it's sort of like a little bit of a fraud here that gives the public the impression that we're going to have these continuous dust monitors in these coal mines by this rule and we're not.  I mean, that's the difficulty we're having here.
		I could go on for the rest of the day.  I've got to get off of here, but I'm just frustrated that what's happening here is that miners are not getting the truth about this rule.  They're not getting the full measure of what could happen to them.  There are miners sitting in this room that may well see one of these days a plan approved at their mine that has the dust levels at 8 milligrams with some kind of a PAPR on, and if the government treats it the same way they have over the last three years of letting it be not approved, not in an approved stage, they're in big trouble.  It violates the law and it violates the rights that these miners have.
		We're going to be putting in the record a large number of documents over the course of this hearing.  We're learning as we hear what you guys are saying about this rule, and we're finding a lot of these complex that give us great problems and we plan to fully make sure, at least the record, because I see this thing at the courthouse.
		It is without question, if the thinking doesn't change here and this rule is not withdrawn and recrafted to do what a lot of people have said, beyond coal miners, the practice around continuous monitoring, full shift sampling, getting those dust levels in the mine environment down, not legalizing what some operators want to do to jack them up, we're in trouble.  The coal miners are in trouble.  It's heading straight to the courthouse.
		But these kind of things you have to understand.  I mean, this lack of trust in this agency.  When those same fellows who were at those hearing in 2000, knew what was on there and what the expectations were of you guys coming back, saw what they saw, I can tell you your credibility went down big time.  There's no other way to explain it and for those reasons.  They laid a clear case of what needed to be done.  You either didn't do it or you did the opposite.  That's wrong.  That's wrong for the nation's coal miners.
		And I'm again urging that you go back to the leadership of this agency and pass a message on from the mine workers, pass the message on that Cecil Roberts gave today, this rule needs to be withdrawn and recrafted to really help the nation's coal miners and it should not be done to make all these favor changes to take care of operator interest because that's exactly what it does.  You chose a side.  You need to rethink that really quick and decide which side you're on here.  Increasing the dust levels for mine operators to legitimize them and reduce sampling to take care of all of the cain they've raised about getting you guys out of the mines or do what's right for the miners, get that dust in those mines lowered, get constant monitoring in these coal mines and help these coal miners out because they're the ones that are getting sick.  It's not the corporate guy sitting in the 18 Massey office down here that's getting sick with Black Lung.  It's not the folks up there working on that rule that's getting sick with Black Lung.  It's these guys behind me that's getting sick with Black Lung and it's high time this government understands that and does something on their behalf.  Thank you very much.
		(Applause.)
		MR. NICHOLS:  Thank you, Joe.  You want to pass me that Courier Journal article?
		MR. MAIN:  Yes, we're going to have a number of other documents.  Oh, one other document introduced on Tuesday, the April 17th letter that went to Dave Lauriski.  I sent that officially.  I understand it was on the website.  It was posted on the website with comments.  I've had a number of calls asking where it went.  I understand that you guys pulled that off the website.
		MR. NICHOLS:  We did.  It went up prematurely.  We put it in the record, but it accidently got on the website.
		MR. MAIN:  Accidently?  I thought comments that goes in on the record went on the website.  Is it selective?  I know the agency was not happy with what was said in that letter.
		MR. NICHOLS:  No, that's not right, Joe.  No, I mean, there was some consideration in response to your letter.  And we thought we put it up too quick before that decision was made.
		MR. MAIN:  Well, the points raised in the letter was comments, whether you agreed or disagreed with them and you want to send the letter back.  But I'm asking you officially today.
		MR. NICHOLS:  It's in the record.
		MR. MAIN:  I ask you to put that back as a separate posting as it was.
		MR. NICHOLS:  Okay.
		MR. MAIN:  And we'll be checking the website to see if it was because I think people have a right to know.  The problem we have, Marvin, is, as I've said, these miners back here, many of them, ain't got a clue about what train about ready to hit them here.  We're trying to educate them and you can say whatever you want, too, about what you think it is or don't think it is about what our positions are.  But the clear fact is I've used a lot stuff that I've got from your own people.  And you know, I want to throw one other thing out here, too, because we've got this discussion.  I asked during this meeting what operators is going to get these PAPRs to let this dust go up to 8 milligrams.  And I believe the answer was, well, gee, it's going to be the mines in the West probably most likely to be there.
		And I asked specifically about one mine, which is the Deer Creek mine, which I think the answer was, yeah, that's close to about 400 cfm of air and that's one of the mines that maybe on that list.  You know, this is stuff that's troubling.  We had this advantage and I'm really bothered about the defensiveness of this rule and the lack of explanation that this is something that's really going to happen out there and can happen.
		You've eliminated the bars.  It's going to be your decisionmaking now.  It's whether we trust you guys to make the right decisions under this rule.  That's what it boils down to.  You're saying you're not going to do it.  And you know, Marvin, you're not going to be there to make those decisions.  Nobody on this panel is going to be there to make those decisions and they way that this happens in this government policy shifts like a leaf in wind storm and we know that.  And there is no comfort at all that we can expect that there would be a 2 milligram standard in effect in coal mines in a mine environment after this rule is passed.  You guys know it and we know it, just be a little bit more forthcoming about it.
		MR. NICHOLS:  Okay, thank you, Joe.  Here's what the rest of the day looks like.  We have still, by my best count 42 people signed up to give comments.  And we want to hear from everybody we can, so the lunch plans are, you know, if you want to grab something for lunch, you can do it.  But the panel will work straight through lunch and we'll keep going on the commenters.
		Our next presenter is Bolts Willis with the MWA.
		MR. WILLIS:  Thank you, Mr. Chairman.  My name is William Bolts Willis, W-I-L-L-I-I-A-M  B-O-L-T-S  
W-I-L-L-I-S, Box 126, Pratt, West Virginia  25162.  I'm president and chairman of the Mine Health and Safety Committee for Local Union 8843 located in Carrolton, West Virginia, the largest local union of the United Mine Workers.
		We have a couple of distinctions that our Carrolton operations.  We have been there for over 100 years in continuous operations.  We had the first longwall mine section in the United States of America.  We had the first mountaintop removal mine in the State of West Virginia.  And we're still operating today and producing more coal with less people than every, I think, or anyone else could have imagined 10 to 15 years ago.
		Some of you on the panel know me and have known me for many years, either as I was working for the UMW International Safety Division and also for the State of West Virginia as an assistant commissioner of the Department of Energy.  At our local union, we have two underground mines.  One four section mine, one tunnel mine, one strip mine and a large preparation plant complex.
		As I've stated earlier, some of you know me personally.  So I will address you as my contemporaries as so you are.  In 1969 I started working underground at the No. 8 mine in Carrolton and worked at several of her other mines at the same general location since we have the common seniority system where I work.  I worked in low coal, 28 inches, medium coal 40 inches and high coal up to 12 feet as well as working on the surface.  I've worked on conventional sections, Wilcox sections, Dennis Myer (phonetic) miners sections and longwall sections.
		In all these areas a common factor is present, coal dust and rock dust.  We're hear today to respond to these proposed rules to protect miners from excessive coal mine dust.  I must say from reading this proposed rule, it has been difficult to understand what is really being proposed.  All 100 pages written, not to what I learned at the mine academy over 20 years ago from many of who you know as an instructor at the mine academy named Wayne Meiswell, who taught creative writing.  He taught me to keep it clear and concise.  This rule is not clear to me, and I'm sure it's not clear to the rank and file miners.  It's muddy to say the least in many instances.
		I also must say as an adjunct instructor at West Virginia University of Technology, my students would probably have problems understanding what these rules say and how they are written and at what level they're written for comprehension.  Many in this room doesn't have a college education and that's not down any coal miners because coal miners are the smartest people in the world.  It's complicated to understand and I think probably most everyone here would agree with that.
		I will just give a few examples.  If I were to enhance dust control measures the first place I would look at would be sampling intensely since the sampling devices to monitor coal dust are available and have been for the last 20 years.  I'm one of the original people that commented on this on the mini-ram and the ram 20 years ago at the mine academy.  I commented on this two years ago at another hearing.  This type of sampling could shut off the machinery immediately when high concentrations of dust are detected.  Stop, period right then until corrective actions have been taken.
		We wouldn't have to worry about hiring hundreds of inspectors.  We wouldn't have to worry coal companies going through the frustrations of trying to figure out where and when to control the dust.  It would be apparent where it was happening at real time, and I'm sure Bob Thaxton would appreciate that.  And probably you could really see it as I have seen in testing some of these devices for several years ago.
		Also, I would take over the program fully.  That's not to take away the responsibility, of course, of the operators.  As some has stated already in this proposal, it seems to be saying they will be only sampling a few times a year.  We need to be sampled more times a year.  A couple of fellows just left this room that are younger than me, they're both Part-90 miners.  One graduated from high school with me.  They went over to the rally that we're having at the Capitol a little later in the day.
		If I were the operator, I could come up with a system six times a year to where I wouldn't have any coal dust.  I don't know of any time at our operation when an MSHA inspector has been on the section taking a sample that we've ever been out of compliance, not one time.  There's things done differently when MSHA inspectors are on the section and we appreciate MSHA for being our protector.  But when rules come out like this, it's hard to understand, and from my personal opinion, we're going to be exposed to more coal dust.
		I'm just going to say a few words about some of the problems that I've seen in the reading of the regulations.  I think you should hold up the regulations immediately until the PDM-1 is -- my understanding from NIOSH earlier in the meeting, it will be ready in September.  I think it should it be held up.  I think that's what we need and I think it's the route we need to go.  We don't need to go to where it's putting a burden on the operators, putting a burden on the miners of how everything that's done.  It's a system that's workable.  And I've closely looked at full shift sampling is the answer.
		As President Roberts and Joe stated earlier, at our mines we're working 9-hour shifts, not 8-hour shifts.  And it needs to be sampled for the full shift.  Sometimes we also have people come in early now and are working 10-hour shifts on production.  I asked several MSHA inspectors in the past two weeks when I heard about this hearing coming up, had they read these rules.  Not one of those MSHA inspectors had seen the rules.  They had read something about it in the papers.  If it's held up and is waiting for the Dennis mining place to look at it, I'll pass it down to the field and let some of your experts, and I know everyone on this on this panel is an expert in your field.  Let them look at it and see what they think about it.
		Most of the inspectors in the field are former coal miners, like most people in this room.  The problem with dust, from the way I read this rule, there is going to be a lot most dust in the mine, float coal dust.  And I'm fearful that there are going to be mine explosions.  I think this rule also is in conflict with the Mine Act that protects me or protects coal miners.  And don't think Congress meant it to be that way.  I'm sure that wasn't the intention from MSHA, but my understanding that there were some surveys done by Dave Lauriski and I've known Dave for over 20 years and the surveys were done out west when he was working for Utah Power and Light, or one of the other companies he was for, and that was some of the basis of where these rule comes from.  I'm suspect of that when it comes from the operators instead of from the agencies.
		Of course, I understand that Dave is the head of the agency now, but to use surveys that just the operators did to come up with these conclusions in this rule I think it's wrong and suspect.  Technology will stop the very moment that the PAPRs are used or the helmets.  Technology will stop at that time.  Joe alluded to that just a minute ago.  When you put someone in a helmet that's cumbersome, the filtering system is suspect --  everybody says, well, that's secure.  They're not being exposed to dust then.  I think most of us know here that they will be.
		I'm not concerned about citations that MSHA writes on dust.  My concern is to stop the dust.  And we're know on a real time basis where it is, we can do something immediately about it.  That's where it needs to be.  I've thought over it for over 20 years, and I gave testimony 20 years ago about that.  Some of you are familiar with the ram and the mini-ram.  I know Bob is.  I've sat in Bob's office.  We've had the mini-ram there talking and I took it in to coal miners.  We can see it right then, but it didn't have all the protective devices that the new one does and it's even more protection to the miners.
		So with that, that's basically all I have to say.  I'm still kind of baffled by this long rule and I believe it's in conflict with the Act.
		MR. NICHOLS:  Thanks, Bolt.
		MR. WILLIS:  Thank you.
		(Applause.)
		MR. NICHOLS:  The next presenter will be Donnie Lowe of the UMWA.
		MR. LOWE:  Thank you, Marvin.  My name is Donnie Lowe.  It's D-O-N-N-I-E  L-O-W-E.  I'm a coal miner from Virginia.  I started out representing coal miners in 1975 up to 1987 as president of the local and safety committee.  From 1987 to 1999, I served as a field rep and district president in Virginia, part of Kentucky and Tennessee representing miners.  Since 1999, I'm back at the mines representing miners as local unit safety committee and I walk around with MSHA inspectors when they come to the mines to do their inspections and also, do their dust sampling.
		Basically, I feel like that MSHA new respirable dust sample rules are against the Act, the same as Cecil Roberts, Joe Main and other that spoke before me.  I feel like the advisory committee and NIOSH dust sample reform that they come up with is for continuous monitoring.  MSHA's control on sampling, take them away from the coal companies where we have seen fraud.  When I was, like I said, at the time district president, you know, the fraud wasn't limited to non-union companies.  This fraud was going on at union companies and companies that represented in Virginia and Kentucky.
		We feel like, you know, the advisory committee I feel like a lot of their recommendations was to maintain or lower the dust level below 2 milligrams of respirable dust.  You know, as we've heard other people talk about the extended shifts in the coal industry right now.  That's true.  We've heard of 10-, 12-hour shifts, but I'm here to tell you that the shifts is even longer at the Island Creek mines that I work at.
		It's nothing unusual for a coal miner to work two shifts, and I'm talking 8-hour shifts.  They only employ enough coal miners under the perfect circumstances to perform the jobs that needs to be performed in the coal mines.  But sometimes people get sick.  Sometimes people get injured and sometimes people are off for personal reasons.  When this happens, then either the job is not done or people work overtime to get the jobs done in the coal mines.  That's the reality in the coal mines today.
		Let's look at this.  Coal miners have been samples and samples have come in less than 2 milligram of dust.  At times the coal float dust is so heavy that it has basically impaired the vision in certain areas.  In other words, we have been taught by NIOSH, MSHA that we basically can't go and look at an area and tell you whether it's in compliance or not.  That, that area has to be sampled to see if it will go out.  If we're going to raise the level above 2.0, to possible and thought maybe four times up to 8.0, but after listening to Joe Main testify here today, that level could be even as high as -- I believe the figure was 9.33?
		If we look at that, in my opinion as a coal miner, I think that we probably have developed maybe an atomic bomb that could remove basically mountain tops in Buchanan County, the county that I work in, in Virginia.  I work in one of the gaseous mines in the United States, the VP No. 8 mines, two Island Creek mines that's cut together that has an extended area that has to be maintained.
		You know, we the situation that's going on in Iraq today, you know, whether we went over there and we basically said that we're going to go against any country or anybody that develops bombs for mass destruction.  But yet, we want to go into our coal mines and develop an area that will increase the float dust, and we know what float dust that is suspended to the mine air when you have an explosion or a mine form what it can cost.
		You know, at the VP No. 8 mines, we seen a mine fire here recently.  A mine fire that happened on a belt line.  It started at a takeout.  It started after the belts was empty of coal.  It started when the people that were in that location had left to go to the surface and the CO monitoring had picked up high CO readings.  From one side of the mine, people could not even get to that location.  From the other side of the mine, people could get to it but had no communication back to the surface.  We seen a situation that we had fire resistant belt that we had, I believe, something like about 18 breaks a belt that was burnt out.  Every timber that was there was burnt to a crisp.  I mean, actually ashes on the floor.  Every crib was burned up, high voltage installation was burnt off the high voltage cable, nothing but copper left there and not a piece of belt from the takeup all the way to the tail piece, caught another belt drive and turn and burn out.
		You know, what would we have done in that situation, and you know, the mine rescue teams and the foreman at the VP 8 mine was able to extinguish the fire and basically, save the miners.  But what -- could we even imagine what may have happened if we were allowed at that point in time to have had 9.33 milligrams of respirable dust in this area?  How much more dust could have been in the atmosphere and what extent this fire could have been in this mine?  I'm only using that as an example.
		You know, if we ignore the Act, ignore Congress, ignore safety and lives of coal miners, we're probably no better than Hussien who ignored or thought nothing of lives of the people in Iraq.  You know, using the mechanical main and airstream helmets, basically, could cause other health problems.  We might overlook them a little bit, too.
		The coal companies want miners to share these helmets with co-workers.  And this went on. You don't see any mines that each individual has brought a separate helmet.  And what experience that I've had with these helmets, maintaining these helmets is almost non-existent.  But even looking at the health problems, even somebody just like Joe Main a while ago with a cold, how many people do you think may have had to wear a helmet after Joe Main got up here with his cold.  It could cause some health problems.  You know, there's health problems with AIDS, SARS and who know what else.  We could be causing some more health problems with this in wearing helmets.
		Basically, at times the helmets, it is hard to breathe.  At times, your visibility is impaired.  You know, working on a longwall there is a lot of dust, a lot of water, a lot of sprays, a lot of things like that, that the miner basically encounters each and every trip across the longwall.  And any type of mechanical device will malfunction and to allow the standards to go above 2 milligrams, knowing that something may malfunction -- and you know, there are certain people, and let's be honest, no matter what controls you may put in place, they may not comply with those controls, the helmets.
		How many people is going to comply with that helmet to a certain extent?  If it blocks their vision, if it cracks, if it malfunctions, the filter stops or whatever, are they going to shut that longwall down in time enough for that shear operator to go and get another helmet or whatever or are they going to keep running it?   My experience in the coal mines is they will keep running it.  You know, it's just like we hear people talk about Black Lung and we've seen your little chart on how Black Lung is basically decreased over the years.
		You know, I don't where the figures or what the figures that you're using to determine that level.  I don't know if you're getting the people that's actually receiving the monetary benefits or the people that's receiving the health benefits from Black Lung.  If that's what you're using, then I think that you're, again, misrepresenting the people that actually have problems with respirable dust in the coal mines.  It's my understanding that to receive benefits now, you've to be what, totally disabled from Black Lung?
		You know, if you've got a heart problem or a bad back, even though you've got bad lungs, you might not get those benefits.  But you still got that problem with breathing.  You know, we can try a little experiment right here and probably some of us may not have Black Lung, but we can probably put our hands around our neck and we could squeeze hard enough to cut off any air from men in their lungs to the point we could turn blue in the face, could even pass out.  But you know, once we pass out, you know those hands are going to stop putting enough pressure on and we're going to breath.  That's not the fact with the people that's got Black Lung.  When they've got problems with breathing, they can't release their hands and start breathing again.
		You know, these people, they've got a disease.  My understanding there's no cure for, no cure for Black Lung.  I've heard about lung transplants and they have been coal miners with Black Lung that have qualified for a lung transplant, but you k now Black Lung causes other problems not (inaudible) coal miners can qualify for a lung transplant because either they've got a bad heart and other things, you know, that will not qualify them.  So basically, the only way that we can help protect the coal miners is to stop respirable dust.  And with that, and that alone, would stop Black Lung.
		The Act set a goal in '69 and I believe that the advice from the advisory committee and NIOSH, we should lower the 2.0 level, and we should have continuous monitoring, 24 hours a day, 7 days a week.  Coal miners that work today, even in union mines, it's mandatory that they work six days a week.  And almost forced to work the seventh day.  They're basically told that if you don't or if don't get the work done, they're going to shut the mines down.  Come on out and work Sunday or you're going to be without a job.  And you know how hard it is to find a job nowadays, so we've got miners working seven days a week.  We've got miners working 12 hours a day.  We've got miners that is exposed to above the 2.0 level now with the number of samples that's done.
		And again, I think it was a good point made by the speaker, the person that testified just before me, that continuous monitoring, let's wait on it.  I think this would be the answer to the situation, and I'm going to shut up.  I know I'll ramble on a long time, but it's just a couple more points that I want to make.  You know, the simple sample rule is good.  I think that if you're out of compliance, you should do something.  I think that MSHA should be more in control of establishing and writing the dust control plan for the operator instead of saying you're out of compliance, you come up with a plan.
		I think that with the experience that MSHA has inspecting all the coal mines with the ability to seek advice from the studies that NIOSH has done that we should have mandated plans for dust control to take care of these problems to keep the dust level below 2.0 and even below it.
		You know, feasible engineering controls, you know, we been hearing that for years.  Just like I'm wearing a hearing ear right now and things roar and stuff like that, but the mines that I worked out, Island Creek Coal Company or Consul or whatever you want to call it, you know, we come up with hearing protection, you know, and the mandated provisions of what the hearing protection, which is good, don't get me wrong.  But they were suppose to exhaust any feasible control that they could do with coal mines to eliminate the noise.
		Before the program ever went into effect, the coal companies said we've already exhausted all feasible engineering controls.  If they did that on hearing, don't you that they won't do the same thing on dust?  Don't you think that when we put a plan out there that gives a loophole or a way out and we put a plan out that contains as many pages that they've got that there is not a lot of few lawyers out there that can go through that and manipulate a plan to where they're going to go to the furthest extent that is possible for them to go to -- the furthest extent.
		Then you take a poor old coal miner like myself.  I'm not going to understand that much of the rule.  We need something simple.  I represent coal miners at the mine level and when they come and ask me a question, I don't have two weeks to stand there and try to explain something to them.				MR. GLOVER:  Marvin, there's approximately 20 pages of testimony there.  A lot of it is the history of myself and some of the experiences I've had as a child, that children today are experiencing the same thing that I experienced 40 years ago.  And I was 10 years old.  And there was a lady run off the hill to my dad that her husband had passed away.  And naturally, as a child I thought of my dad up that hill.  I seen the man laying in the bed with a blanket pulled up to about his waste.
		The first person, I guess you'd say the first dead person I'd ever seen in my life, so it stuck with me.  I seen my dad pull the cover up over his head.  Forty years ago the word "black lung" didn't exist.  My dad told me he died from silicosis.  But it stuck in mind.  And naturally, it somewhat scarred me.  So I started worrying about my dad, because my dad was becoming very ill.
		After that my dad filed for black lung in later years.  He was denied by the Labor Department.  He couldn't understand it, because he followed all the procedures and all the rules.  It was denied.  Took all the x-rays and all the blood gases.  You don't have black lung.  The thing my dad asked me right before he died, because he was pretty frustrated, knowing he was dying from black lung, but also a combination of some other illnesses, that he was passing away, my mother had passed away, there was no dependents, he wasn't greedy looking for the money but he wanted, for some reason, a biopsy of his lungs to see whether he had black lung.
		I can set here and tell you today that I did what my did requested.  And that was to get a biopsy of his lungs.  Yes, and it came back that he had severe black lung.  So when we talk about the charts, and we talk about how we've dropped black lung, and how the exposure of miners has came down, those charts are not telling you the truth.  That's the point I want to make about your charts.
		Now, if you don't care -- I said also that day -- and you'll find it on the first page -- that that was one of the most complex rules that I had ever tried to figure out.  Well, I take that back, because this right here is more complex, and today I want to go on record saying that.  I didn't think it could get much more complex.  I couldn't believe that we would have MSHA -- and I thank God for the 1969 Act -- and overlooking someone, encourage him to set a standard of 2 point milligrams, to try to protect the miners of Southern West Virginia.
		And I set here 33 years later, and I see an agency wanting to increase not just to 4 milligrams, but to 8 milligrams under circumstances.  I look at an agency that I honestly believe has lost track of reality.  I don't know when the last time anyone was in the coalmines.  Things has improved.  I hear people in the field -- and I'm talking about within your agency, Marvin -- that can't believe what's going on within your agency.  And I don't know who's steering that ship, other than Dave Lauriski.  He would get the credit for anything, so he sure will get from me the things that's not very popular.  And I'll put it right back on Dave Lauriski.  And there's no doubt we'll probably end up in court, and I hope that we do, because this is a terrible reg.  It does not address the issues of the miners.  It doesn't address the issues that the miners has talked about. 
		But I want to get on, because as you said, Marvin, we got a long day, and I want to say that I was involved with -- and I'm turning to page 103 -- I was involved whenever -- and I'm talking about the Commission that traveled through the coal fields, and I was in underground mines, I was on the tipples, I was on the surface jobs.  They was very surprised at what the miners has been exposed to.
		When the report came out, I was very encouraged that we was gonna get something out of that.  And then whenever we arrived in Prestonsburg, I wouldn't even think that anyone thought too much of the Federal Commission report, or didn't look like it.  So that was a little frustrating when I was in Prestonsburg.  I also talked about, when I was in Prestonsburg -- and this may help you about the helmets, of why people wears them, some people feels secure with them, that for creating a false sense of security we're doing those individuals wrong, and if the record is accurate, that in human conditions, and with some of these filters, and they're not providing protection that they're supposed to, then we shouldn't be using them. 
		Now, also we got companies that aren't as fortunate to miners as some of the UMWA mines, but the company says, wear them, this'll protect you, you gotta wear em or go find you another job.  Now, we have union mines that's wearing them, because they feel at least that's better than nothing.  That's not what these miners want.  They want to know exactly what they're breathing.
		And I think that's fair.  I think everybody in this room -- I mean, we're sitting here, like I was sitting in Prestonsburg, breathing good air.  We've got a nice working condition.  But just because you're a coalminer don't mean you're a second-class citizen in this country.  They deserve the same air that we're breathing, and not by just putting a Airstream helmet on.  And it's amazing to me.
		Here we talk about the continuous miner sections, and I know in my heart that we can meet a 1-milligram standard.  And to have any type of exceptions to that, and it not be in black and white, we are not doing justice to the miners.  I honestly believe that.  Because it's proven.  I've traveled through Southern West Virginia, and I see what's on the continuous miners.  I'll tell you about the scrubbers.
		And one guy mentioned about the noise.  This might surprise you, but it shouldn't.  When we leave engineering controls, what you have is the only thing you'll ever get.  I worked in the mines in nineteen and seventy eight, if I'm not mistaken.  They disconnected the scrubber.  I didn't know why, but later on I found out because it was out of noise compliance, and it was taking a lot of the dust away from us.  But management chose to disconnect that scrubber, to come into compliance with the noise. 
		Now, the way we got scrubbers is because we went to extended cuts.  It wasn't because somebody came up and said, scrubbers will protect miners' lungs, it was because of the extended cuts.  And I think the record, if you go back, will prove that.  Now, I don't know whether it would surprise anybody on that panel.  I'll say 80 percent of our mines are out of compliance over noise with these scrubbers in Southern West Virginia.  Nothing is being done, other than hearing protection.
		And the point is, once you make that final decision that we're going to do with what we did with the hearing protection -- I'm not saying that's entirely wrong, because you will go deaf anyway, but the point I'm making is, once you accept that, that's all you're ever going to have.  There is no incentive, not any whatsoever, for anyone to reduce those noise levels.  And that's wrong.
		And that's the trouble with Airstream helmets.  Along with the inconvenience and the bulkiness, some of the conditions the miners has to work in, the lower seams, the middle seams, and someone talked about the high seams.  If you wear in perfect locations, are great.  If you're the type of guy, like I do, that sweats a lot, safety glasses is a very handicap to try to wear.  And you try to use good judgment when to wear those.
		But the point is, once we accept this, it's over.  And I think it's wrong.  Especially when we're on the horizon of having something that will monitor the dust, the atmosphere of what the miners are breathing, and it's right on the verge of being here.  I think we've jumped the gun.  I'm not so sure that gun wasn't jumped intentionally, and the reason I say that is because it's kind of strange is we're on the verge, and we're setting here, and we're ramming all these regulations that Joe talked about.  We're trying to move them. 
		You know, we talked about dust, and currently, right today that there's miners dying, there's children seeing what I seen 40 years ago, and I think that we can prevent that.  And I hope when you go back and create the regulation again, that we have the belt-wearable personal protection that we deserve on the continuous dust monitors.
		Now, if you'll look on page 110 -- and I just want to read -- that I didn't think was too much to ask, and this was in, as I say, Prestonsburg.  I was looking at your overview here this morning, and as you go back, I hope you come back with a better proposed rule.  And I will really appreciate when you do that, it's not 700 pages, it's pretty well simplified.  But go through the coal fields and do some briefing and educate us, and let us make some comments.
		I want you to keep that in mind.  Because we're doing the same thing we're doing today as we did in Prestonsburg.  As I mentioned, if we start accepting Airstream helmets, and we increase it, that's all we're ever going to have.  And it's wrong.  I said in Prestonsburg -- and I'm on page 119 -- "if we start here with this and open the door, it'll come to the miners section.  It will come to the outby areas.  And it will come everywhere else in the coalmines.  You might as well put them in a spacesuit and let them walk around."  That's why I said in Prestonburg. 
		Marvin, this is kind of where you come in.  Your response was, "It won't happen.  I mean it."  I said, "It will, Marvin."  You said, "No.  It's already been tried."  When I go to Alabama, out West, I see a lot of miners wearing Aisrtream helmets that they chose to wear on their own.  We have been asked over and over by mine operators to consider those as engineering controls, which we have never done.  We will never accept for one of these small areas we're talking about, working downwind of a shearer operator, because we think that most of the people's say that they continue it.
		And the point is, it was the people downwind of the shearer that would be wearing Airstream helmets.  As we sit here today, after we had that discussion, we're talking about some outby areas, we're talking about if you have tried everything, then we'll go put Airstream helmets on.  The sad part is, we've even doubled the 4-milligram standard that was in Prestonsburg. 
		Marvin, you said that you had been with the Agency almost 30 years.  And that's been the position from day one, and when you was referring to MSHA.  Now something's happened over a two-year period.  And that's not for the good in the miners.  I'll say it again.  It's long past due to eradicate black lung in the coal mines.  We have continuous monitoring that's available, or on the verge of being one of the best things that's ever happened.
		I encourage you to go back once again, review the advisory report, and look into why they felt -- they went out and they touched the miner.  They traveled to about every condition that you can expect to see in the coal industry.  They seen the faces.  They talked to the miners.  They seen the field.  They understood it.  You guys may be in the mines pretty regular.  I don't know whether you've been in mines like in Southern West Virginia or not.  And I speak primarily to that.
		I've been throughout this country, on different occasions representing miners, primarily the miners of Southern West Virginia.  I remember Davitt Mcateer saying that the only way we'd ever eradicate black lung is to get it down to 1 milligram.  I honestly believe that you can do that.  We can talk about the 100 CFMs.
		There's one thing about it we do know.  If you put enough water, you put enough air, and you put ventilation controls in and the scrubbers, and with the other technology that's came about on the long walls, we can do a whole lot better job.  But whenever we do what MSHA's requesting today, then those controls are over.
		Marvin, I'd just like to quote you, on the last page, because you thanked me for my comments, doing something up front briefing on those future rules is a good one.  That we go out and try to do some education.  Maybe me and you didn't understand what I was talking about, and it wasn't what we seen here this morning.  I don't know where that fell through the cracks, but it did.  And I know some of this is out of your control.  You're the chairperson.
		But I know on the record here of what you shared with me, and I know when I set here today, it's no different than what it was in Prestonsburg, with the exception of using these Airstream helmets, possibly on the continuous miner section, the outby areas, on special things as overcast and so forth.  And with that, I hope I haven't offended you, because I believe in saying what I believe, and I've got big shoulders, and I can handle any remarks that you all want to share with me.
		And with that, I do hope that you take it back and share it with Dave Lauriski that our miners are unhappy with this.  And there's a lot we don't know about this, but there's a lot that Rick Glover don't know about this.  And I'm here to tell you, from what little bit I've seen, it's not going to take care of black lung and respirable dust in Southern West Virginia.  And with that, I thank you.
		MR. NICHOLS:  Thank you, Rick.
		(Applause.)
		MR. NICHOLS:  Wayne Conway.  Is Wayne here? Jack Goff?
		MR. GOFF:  Good morning.  My name is Jack D. Goff.  That's J-A-C-K D as in Darryl, Goff, G-O-F-F as in Frank.  I have been a coalminer for 34 years.  I started work in 1969.  I have watched this agency turn the health and safety of the mining industry around.  When I first entered the mines, there was very little dust control.  I bolted top on a 1-CM miner that was so dusty that my visibility was only several feet, at best.  When the Act came into being, the same year that I started, everything improved by leaps and bounds.  It is at this point that when everything -- check curtains, line curtains, and stoppings, et cetera -- are in place, the air quality in the mine is livable, and I wish to thank MSHA for this. 
		But at the same time, I am appalled by the thought that this same agency who has saved countless lives would propose this backward step in dust regulations.  This, in my opinion, is a violation of the Act.  An increase of this magnitude from 2 milligram to 8 milligrams is not acceptable to any miner, and should not even be considered.  You should be reducing the amount of dust, not increasing.  We should be increasing the amount of dust samples, not reducing them.  If a man works 12 hours, the sample should be taken for 12 hours.  I hope and pray that the powers that be do not pass this regulation, for the sake of the miners' health and safety. 
		As a safety committeeman, it is tough enough to get companies to comply with the dust control plan.  I can only imagine what it will be like when MSHA will only be checking the dust three times a year.  I thank you for giving me this time to voice my opinion on this matter, and I hope the leadership of MSHA will reconsider this action.
		There are three things that I see that we need in this in depth.  We want lower dust levels, we want more sampling, we want the entire shift sampled.  And I thank you.
		(Applause.)
		MR. THAXTON:  Thanks, Jack.  Okay.  Next is J.R. Patsey. 
		MR. PATSEY:  I'm J.R. Patsey, P-A-T-S-E-Y.  I'm with the Mine Workers and I work for U.S. Steel Mining Company.  I've worked there for approximately 27 years. I like myself. I don't think we was heard when we was in Prestonsburg.  And recolate to it a little bit, and I'm going to relate to it a little bit more.  We was down there in Prestonsburg, for two days we met down there.  And from the rule then that was handed down was complicated, and new proposal that's handed down is a whole lot more complicated than that one there. 
		And Lew was down there.  You had -- in 2000 you was wanting to go to a .3 variance.  It was going to be a 2.3.  That was the way you was going to come into compliance.  And looking back through some of my testimony, when I testified down through there, I recommended going back to a 1.7.  And then Lew would have with variance.  That .3 variance would come in at 2.0.  We was ignored then.
		I related a little bit about the one-time sampling this stuff down there.  We got several people on the surface.  I laid it to that fact there that there are people outside that's more or less bee ignored.  Some of these huge stockpiles that we have on the surface today, 250 to 350,000 tons, just depends.  And at times when the wind comes up the holler, it's unbearable.  It carries the dust for miles.  And I went and listened to -- you know, evidently you didn't take nothing into what was related to back to the head man in Arlington then.
		Looking at this new proposal, Joe went over it a little bit with us, I'm confused as can be about it.  It'd take I don't know how long.  I mean, it was that thick.  We've had a very short time to look at this.  Not have time to study it.  Just what Joe has briefed us on.  But talking to some of you all's people through MSHA.  And then we get to this, now we're wanting to raise the dust levels in the mines. 
		And though we've had a lot of explosions here recently, we've had explosions, you're wanting to jeopardize the safety and the well-being of our fellow workers in the mines but raising the dust levels.  You're just putting more respirable dust and explosive dust, mixing with some methane.  In that atmosphere it's going to kill our miners, without a doubt.
		When Joe talked last night about the PD monitor we have there, you know, we've been working on that and some other BCO coal companies, with NIOSH, and Joe Mains, and we've just about got that thing ready.  And now you want to bring this proposal down.  I mean, it's thick.  I think we asked for that when we was down there in Prestonsburg.  We want to know at all times what amount of dust we're working in.  And I don't think that's too much to ask.  The technology's there, and we want it.
		I mean, we're no better than anybody else, but you're sitting up there, you're breathing good air, you know what kind of air you're sitting up there in across this table, and I'm breathing it good today.  When I go underground tomorrow, I want to breathe good air.  And I want to know what I'm in.  If I'm out of compliance, I want to know.
		But you come in doing these dust samples, and cutting them outside sampling's what we're doing every year on the coalminers underground, there's no way for us to know.  And sampling is different.  I mean, they do things different when you all come run dust pumps.  It's not going to be the same as it is every day that we're in there working.
		And I don't think you know, the Mine Act has mandated the 2.0 regulations.  And I think you're strictly -- you know, you're violating the law when you try to change that without Congress approval.  That's my personal belief on it.  That was something that was set in there to protect us years ago.  And here we are in the year of 2003, and we're going backwards.
		I mean, if anything, we ought to be lowering the dust rates.  And we ought to go to 1.0.  No more than 2.0.  I think we deserve it, and I'm just like Rick, I don't know who's behind this, whether it's Lauriski or who's behind it, but somebody's behind this by shoving this thing down our throat awful quick.  You know, briefly, all I know is what Joe's -- he's tried to brief us, talking to you all about this new regs, and it's very complicated.  I tried to look at it a little bit, and it's -- you go back to the formulas that you come up with how you gonna get you a 8.0 and your 4.0 and all that.  It's confusing to me.  And Joe said it's confusing to him. 
		I think we deserve better than this.  And I appreciate your time for letting me get up here and speak, but I think you forgot the coalminer, and I think that is your job to protect the coalminer, and not the mine operators.  And by putting this new rule into effect, if it would go in effect, that's what you're doing.  You're looking out for the coal operators, you're not looking out for the coalminer. 
		We didn't want it in 2000 when we was in Prestonsburg, and we don't want it today.  We want the dust levels lowered.  We want to be monitored permanently so we know what we're working in.  Like Joe related to, that can be plugged into a cap, when you plug your cap like that.  It could be downloaded.  You'll know what we're working in.  And that's all we want.  I thank you. 
		MR. THAXTON:  Thank you.  Tim Miller?
		MR. MILLER:  I'm Tim Miller.  I'm with the MWA.  I've got 28 years coming next month experience.  And everything but strip, as far as mining related.  And I have one year experience in nonmetal mining.  Yesterday, before I left to come over here, I had to help a miner that was robbed by dust.  I had to put extra oxygen in a car incase my father had to leave.  I had to make sure that there was a bottle of oxygen setting in his bedroom, because he's limited now as to what he can do.  This was my last -- my son's last year in school.  He was robbed by dust this year because his grandfather was unable to attend any ballgames, any school functions, anything, due to dust, which has come down since I've been in mining.  But we're throwing progress aside.  We're going to step backwards.
		And we can't keep saying that, well, we've got it down, there's no -- hardly any black lung out there.  No, it's still there, it's just not getting recognition.  The operators, whether they want this or not, they're going to -- it's going to cost them in health care for me and my coworkers, because if dust levels increase, we're going to be absent from work, we're going to be using contract days, we're going to using their insurance cards more and more.
		I've lived in the coal fields all my life.  As a child, you could set your clock at 5 o'clock by seeing slurry hit the creek and going down the holler.  There was dust from the prep plants that landed on the houses in the coal camps.  We come so far since '75 when I started in the mines.  It's not a real good time now to step backward, and forget about the penalties that's been paid, and the health that's been given up by our retired miners, and by our deceased miners, and by men that's still working now. don't need to step back in time.  We need to continue to progress.  If we continue with cutting back on dust, eventually we can stamp out black lung.  Maybe not in my son's generation, but his children's generation may not never even -- you know, black lung may be something that was back in the olden times to them. 
		But if we do that, these young miners, these miners that are working nonunion and scab jobs, that can't voice for themselves, but the ones that I've talked to in nonunion mines hope that this is resolved before it ever gets into effect, because they can't come here and speak.  But I really don't understand why we're throwing progress out the window and stepping back, especially in this day and time.
		Look how far that you've come with compacting down a dust collector in a cap light.  In 10 years time, if you put that into effect, that unit probably won't be no bigger than that cup, because we continue to get better in technology, and we can take that right along with that.  As far as the helmets go, the next time you all have a meeting, wear your Airstream helmets, get under that table, and conduct your whole meeting, but let somebody wet that down and let gentlemen run across the top of the table frequently, so that you're trying to listen, and see, and pay attention.  But you can't do that with all this apparatus.  And that's about all I've got.
		MR. NICHOLS:  Okay, Tim.  Thanks. 
		(Applause.)
		MR. NICHOLS:  Has Wayne Conway shown up yet?  Court reporter, if you need to take a break, just let me know. 
		MR. YOUNG:  Gentlemen, my name is Gary Young.  I'm the senior district 17 executive board member here.  I've been in that occupation for about the past 15 years.  In that time I've had to review numerous complicating documents in my time, dealing with negotiations, or whatever it may be.  I have to tell you gentlemen, this is the most complicated thing that I've ever tried to figure out in my life.  Certain things bother me. As I see us try to rush through this, the back of my neck gets worn.  I worry about my hair standing up, because when you're trying to rush through something, in my opinion, there's something there.  There's a hidden agenda, gentlemen, where it's not in the best interest of the workers.
		I've experienced that with the coal companies, and I feel I'm experiencing it with you gentlemen today.  I don't mean to disrespect you, and I don't, but I'm like one of the other brothers said, I have to say what's on my mind.  Now, I've never seen one written like this.  I've been a safety committeeman at the mines also.  This one was so complicated with your formulas and all that, I don't believe Albert Einstein can figure it out, to be honest with you.
		I don't know how your inspectors are going to figure it out totally.  And I think everybody's confused on it.  You know, gentlemen, quite honestly, it needs to go away.  You need to withdraw, to be honest with you.  I know I've read the advisory reports.  In your lead-off statement here, gentlemen, you're asking us to trust you here, I guess, today.  Well, here in your packet, the first paragraph says that you used the recommendations of the advisory committee.  Well, I cannot find, gentlemen, anywheres in these regulations or proposals that you have where you've done that.  None of them have been complied with. 
		You've increased the level of dust, which, it boggles my mind how we can sit here today in this hearing, and not consider -- have we not considered our brothers in Alabama here recently?  What you're talking about in your proposal here, gentlemen, is to increase the level of dust from 2 percent to 8 percent, and rely on an Airstream helmet that's already been proven not to work. 
		Now, you've heard NIOSH here today with their device.  To me, that's probably the greatest thing since sliced bread that we've had for years for our coalminers.  That is ultimate protection.  Gentlemen, that should not be a secondary device.  That should be the prominent and the main device.  That should be put on a man every day, so that we can control the dust.
		I'm like Rick Glover.  I've seen my father pass away with black lung.  I saw my father-in-law quit breathing.  He smothered to death because of black lung.  Recent reports, gentlemen, have told you that there is still black lung being contracted in our mines today.  You need to take care, gentlemen.  I don't want think that you don't care.  Somebody's not hearing us.  You need to hear us. 
		Now, you've destroyed the Mine Act, in my opinion.  You've basically eliminated the sampling.  You go from 34 to 3, basically here.  You go in the outby from 6 to 1.  Gentlemen, the dust is going somewheres.  If you raise the level of dust, it's not going to disappear.  It's going to be somewheres in the coal mines.  And anywheres in that coal mines is a potential hazard.
		For example, somewheres in here I read that you want the ventilation -- you want to pull up the belt line.  Well, gentlemen, that's crazy, to be honest with you.  You're looking at a guy who in his last eight years in the mines was a beltman.  Have you ever been in the mines and seen belt head gob out, or timber get in the beltline and it catch on fire, or the smoke that comes out of that if it just gobs out.
		Gentlemen, it's so bad and so thick and so choking, you can't do nothing.  You can't see.  How in the world can we even think about putting that into the face?  That's not acceptable.  You have turned -- in the advisory report that I read, there were several things that they recommended, once again.  One of them was for you gentlemen to take hold and take control of the dust sampling, okay?
		You've turned it over, in my opinion, to the coal companies.  Have we forgotten the some 160 fraudulent cases where these gentlemen have been prosecuted?  We seem to have.  If you think that that fraud has gone away today, I'd like to sell you some land, gentlemen, because it has not gone away.  As I said, I don't mean to be disrespectful, but things like this just bother me.  I don't know how in the world you could once again go from 2 to 8 percent, and have someone put on a helmet.  And gentlemen, those helmets don't work.  They fog up.  I've been in the mines where they're at.  You just can't see.  Not only it's killing them by not working, but also it's just a huge safety factor when they're in there trying to work to perform their jobs. 
		You want to get people injured.  That's not acceptable either.  That is not why you were placed where you're at.  And once again -- just let me, if I may, dealing with the advisory committee, gentlemen.  Recommendation, once again, of the allowable dust.  They want it reduced.  You guys want to increase it.  They recommend you guys -- once again, I hate to repeat myself, but they recommend that you guys take control.  You're not doing that.  You're giving it to the coal companies, which will violate it every day. 
		I've been doing a lot of work over the years now.  Somewheres in here, and don't even begin to ask me where, because I can't tell you, but once again, there's little word changes in here.  And we talk about currently and "approved ventilation plan."  We go to the language of this, it says, "a ventilation plan."  Now, guys, one little word makes a big difference.  To me, that tells me once again, the company could do what they want to.  That needs not to happen. 
		We, gentlemen, are asking you, quite simply, to go to continuous sampling, use the PD, forget about the helmets, lower the dust level, and protect our people.  Because in my opinion, gentlemen, and I shoot straight from the hip, what is in front of us today is no more than attempted murder of our people in the nation's coalmines.  You're either going to blow them up, or you're going to kill them with black lung.  They're dying every day.  We don't need to kill no more.  That needs to be stopped.
		I've heard comments as I've been traveling around, that this is a mineworkers issue, this is a Joe Main issue, this is a Cecil Roberts issue.  Gentlemen, it's not.  All of us sitting in this room, probably back behind me, have relatives or friends working in nonunion mines.  This is a people issue.  It's about saving lives, gentlemen.  Don't try to turn it into something it's not, and don't think for one minute that's what we're trying to do.
		We're interested in saving lives, and we're asking you once again to rescind this policy, and deal with something that works.  Listen to the advisory committee.  Take it and use it, gentlemen.  And that's all I have to say.  I do appreciate your time.  Thank you. 
		MR. NICHOLS:  Thank you, Gary. 
		(Applause.)
		MR. NICHOLS:  Gary Trout?
		MALE VOICE:  We're going to let Ernie Woods go next. 
		MR. WOODS:  Good afternoon.  My name is Ernie Woods.  I'm president of local 5958 in Logan County, West Virginia.  W-O-O-D-S.  I was asked to come here today to speak to you all by my local union.  The reason why we wanted to come here today is, MSHA has always -- we've considered MSHA a good friend of ours.  We've always worked hand in hand together.  Even as far as mine walk-arounds, tours.  Spend a lot of time in the conference hearings, backing the inspectors.  Had an inspector tell me one time that they spend almost half of their budged on court cases and fighting the companies.  And the working miner is the one that's on MSHA's side, not the companies.
		And for what we consider MSHA leaning, or leniency toward the companies on this dust issue, it's just beyond me.  We've left them in charge.  We've seen what they do.  We've seen the fraudulent dust samples.  There's only one way we can cure this problem, and I think that this new system that NIOSH has come up with, this personal dust sampler, it's the only way to go.  The only way you can accurately get a reading of somebody's sample is for it to be on them eight hours, ten hours.  Every what they're in there.
		It also gives this miner a right to look down and see what kind of dust he's in.  And for anybody to even consider taking that away from is unbelievable.  It's beyond me.  We need more sampling, especially with this new personal dust sampler.  You'll have to make the company conform.  They're not going to do it on their own.  We've seen that.  We've seen that too many times.  We need laws that's going to put teeth into this.  We need something that ain't gonna kill the Coalmine Act. 
		This is a hurried rule.  I went back to the mines.  Guys asked me, what's it about?  And I said, well, I really can't tell you.  I don't know.  I went through it, and I've looked through it, I've read through it.  Went through two days of instructions, trying to go through it.  The figures are so complicated, the formulas are so complicated.  No one can make sense out of that.  At least not the people I work with.
		And we're going to ask that you guys remember who's on you all's side.  Listen, the companies are on theirself side, you know, and if MSHA don't help us, and if we don't get involved this -- we didn't choose to fight.  MSHA's our friend.  We get enough fights.  We don't have to go looking for them.  We get enough the way it is.  But I want to ask you all to go back to ever who's in charge or ever who's made this rule, and this is a hasty rule, a hasty decision.
		It's something that's complicated that nobody really understands.  Us on the verge of securing this personal dust sampler, I think that we owe it to every miner in the world, union and nonunion, to wait until we at least get this personal dust sampler ready.  Thank you.
		MR. NICHOLS:  Thank you. 
		(Applause.)
		MR. NICHOLS:  Gary Trout?
		MALE VOICE :  How about Carl Morris?
		MR. NICHOLS:  Okay.  You just keep moving them up here, we'll arrange them any way you want to.
		MR. MORRIS:  Gentlemen, my name is Carl Morris.  I work as a longwall shield operator for Consol energy in North Central West Virginia.  I'm here today to protest the enactment of the proposed dust rules in their present form.
		These rules are a step back from the comments and recommendations voiced by the miners during the public hearings on the 2000 proposed dust rules, and are contrary to the recommendations of the 1996 Federal Dust Advisory Committee, and the 1995 NIOSH criteria document on respirable dust.  They are also, in my opinion, in violation of the Federal Mine Safety and Health Act. 
		Reducing compliance sampling and raising the allowable dust limits will result in an encourage in the number of miners who will suffer and die from black lung.  We need continuous dust monitoring or, at the very least, full shift dust monitoring.  The coal operators can now manipulate the dust sampling with the eight-hour shut-off of the sampling.  I'm required to work a ten-hour shift.  I begin my shift at 8:00 a.m., usually reach the surface around 6 o'clock p.m.
		On the shifts that the dust samples are taken, a company safety supervisor supervises the cleaning and replacement of the water sprays on the shear, and takes pressure readings to make sure that the water spray system is in perfect condition.  This usually takes an hour to an hour and a half, and is not done on every other shift when dust samples are not being taken. 
		Management also, coincidentally, always seems to have to work on the conveyor belts or take the slack out of the face conveyor chain on these days.  We seldom start mining on a sampling day but 11 o'clock a.m., as opposed to our normal start of 9:00 a.m.  The dust pumps are removed from the miners at 3:00 p.m. for trip outside.  We, the miners, stay and continue to mine coal until we are relieved by the afternoon shift, shortly after 5:00 p.m.  We often mine as much coal, or more, after the dust pumps are removed than while we're wearing the dust pumps. 
		There is no need to raise the allowable amount of dust or to substitute respiratory devices for engineering controls.  The technology exists now to not only meet the 2-milligram standard, but to lower it.  The movement of the shields against the mine roof generates a substantial portion of the respirable dust on the longwall that I work on.  The shields that I operate have a watery spray system to control this dust, but when a hose busts, or a fitting leaks on the water spray system, the water is turned off on that shield instead of repairing the leak. 
		Approximately a fourth of the shields on the face have the water turned off on the spray system.  This longwall is also equipped with a shear initiation system that would have the shields advance automatically when the shear passes.  This system what was your understanding allow the shield operators like myself to remain on the outby side of the shield and out of the dust generated by the shields.  This system is not in use.
		The company will only do the minimum to comply with the dust standards.  If the dust standards are more, then the companies will do more.  But if the dust standards are raised, as they would be in the new proposed rules, they will do less to control the dust. 
		My father suffered and died from black lung.  I hope that you will take the recommendations that you hear today from the miners and the representatives of the miners, and incorporate them in revised dust control rules, so that I and other miners working today will not have to suffer the same fate as my father and the other miners of his generation.  Thank you. 
		MR. NICHOLS:  Thank you.
		(Applause.)
		MR. NICHOLS:  Okay, Gary Trout?
		MR. BAKER:  Hell, my name is Tommy Baker, T-O-M-M-Y B-A-K-E-R.  I have worked on the longwall.  I have used the Airstream helmet that you're talking about.  I worked as an electrician on the longwall.  It is all but impossible to use them behind the shields when you've got work to do behind the shields, replacing pins, anything like that.  It's all but impossible to use them.  But I do agree they do help to some extent if you're at the head gate or if you're running a head gate shear.  I'm not saying it's all bad. 
		And to answer your question a while ago, George, you said, did the company want you to wear them?  Yes, they did.  It was company policy at the mines where I worked at.  And it was company policy, if they seen it wasn't working for the electrician, so they're going to have to come up with something else, so they go, well, we'll let you have one of these muzzles, one of them small muzzles that you stick on.  So you can imagine what you'll lack.  You done tail gate in.  They pull shear up.  All the shields is pulling up, and that's what you got coming back up.  You can't even see. 
		And as for weight of the things, I think everybody should have to wear on for 12 hours, because the shift we worked.  And that's all I have to say. 
		MR. NICHOLS:  Okay, thanks. 
		(Applause.)
		MR. NICHOLS:  They don't want you up here.  I've been trying to get you up here for a while. 
		MR. TROUT:  My name is Gary Trout.  G-A-R-Y T-R-O-U-T.  I'm a coalminer.  I've been a coalminer for 30 years, and currently I'm a health and safety representative for the United Mine Workers of America.  I'd like to begin by saying I appreciate the opportunity to talk to the panel here today, and to echo my concerns about the new proposed rule.
		The task before this panel is one of great importance, because this proposed rule, if implemented, will affect the life of every coalminer in the United States.  As I understand it, the proposed rule has eliminated a number of requirements contained in part 7 and part 90.  Those include the standards on bimonthly compliance of sampling MMUs, and designated areas contained in C.F.R. 7207 and C.F.R. 7208. 
		These changes could allow substantial increases in the dust levels.  We have been told that dust concentrations in the mine atmosphere could increase from 2 milligrams up to 8 milligram.  This increase is in direct conflict of the Mine Act under section 202(b), which states, in pertinent part, "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 of air."
		Increasing the respirable dust levels in the mine atmosphere by utilizing any means contained in the proposed rule is a violation of the Mine Act.  The Act clearly requires dust levels to be maintained at the lowest possible level, and at no time are they to exceed 2 milligrams.  In my opinion, MSHA has overstepped its authority by proposing this rule.  The latest statistics show that in this country, every six hours a person dies from pneumoconiosis, or as we know it, black lung.  If dust levels increase, this number will also increase.
		In my opinion, the proposed rule fails to address the dust problems in our coalmines today.  Personal continuous dust monitors can address many of these problems.  These devices would allow for continuous monitoring for all designated areas of the mine.  They would provide data on the dust concentrations miners are exposed to 24 hours a day, 365 days a year.  The technology is in the final testing phases, as we have heard here today, and should be permitted to be completed so that an adequate rule can be built around this device. 
		It amazes me that in this great country of ours, we can demand clean air to breathe on the surface, but forgets those individuals who just happen to be working underground in the coalmines.  The coalminers of this nation are not second-rate citizens.  We also demand clean air to breathe.  This can be accomplished by the use of personal continuous dust monitors. 
		In closing, I would ask the panel members to remember this quote from the Mine Act.  "Congress declares that the first priority and concern of all in the coal or other mining industry must be the health and safety of its most precious resource, the miner."  Thank you. 
		MR. NICHOLS:  Thank you.
		(Applause.)
		MR. NICHOLS:  Martin Lane?
		MR. LANE:  My name is Mart Lane.  You spell that M-A-R-T Lane, L-A-N-E.  I had an opportunity to work in the mines prior to the Act for three or four years, and I've worked in the mines prior to the Act, when you could hold up your head up just like that right there, and you could not see it.
		And I've seen it progress through the years, to where there is some quality in there today.  And you can see that over the years.  I don't need to take a sample.  I can drive down the road I go to work to get to the mines I work at, and I drive by about 10 small punch mine operators, whose people will not be here today because they don't have a voice.  And you can see those people with the little packheads are coming out in their automobiles to their faces and their hands.  They still look like 1965.
		That's because of the sampling.  They're not complying with it.  I saw that cycle go through.  Even in the mines that I work today, and before the mines that even I work at today.  Before you left the pump in the mine office, you hung it up in the slope as you went in, or you took it on the section and left it at the intake.
		It's not a good system.  They can just basically manipulate it any way they want to.  It's hard for a coalminer right here to understand today how we could raise these samples -- or raise the dust level, when no doubt, myself, I'm going to lose part of my life from breathing this dust.  And there's lots of Part 90 miners that I've met here today that has Part 90 miners caught today from dust. 
		And to say that it's actually went down, I don't think there's no statistics out there that really prove that.  I know there was an x-ray given out there, that you could go to the company and take an x-ray, which was supposed to be private, that was supposed to do something with this analyzing, I guess, how much black lung was still out there over the past few years. 
		But just to go out there -- to me, it's just blatant.  We're just blatantly violating the Act to go out there and put this rule in.  I mean, it's just as if we have no respect for human life.  When you went halfway around the world to free people who are depressed (sic) and to have a quality of life, and we sent people to go out there and free them, and get them killed.  But yet, they want to put coalminers in this situation today.  This is just terrible.  And I don't know of any other way to say it.  It's terrible.  And that's all I'm going to say about it.  But I would appreciate it if you have any influence on this, to be able to get it out of there and get sampling to where it's honest sampling, then I would appreciate it, and I'm sure everyone else will.  And those miners that I see driving down that road every day would appreciate not having to blow breathe that air.
		Another thing, too.  If you think the industry will police themselves, the mining industry today probably dumps hundreds of thousands of gallons of oil out in the water tank  a day.  Just that alone.  That right there shows you lack of respect for the environment and the people.  They're not going to place theirselves to improve it.  An I thank you. 
		MR. NICHOLS:  Thank you.
		(Applause.)
		MR. NICHOLS:  Jimmy Jarrell. 
		MR. JARRELL:  My name is James Jarrell.  That's J-A-M-E-S J-A-R-R-E-L-L.  I've got working on 25 years as a coalminer.  I worked a little over 11 years underground, and I'm currently at a prep plant.  I don't think that the rules that you're proposing here are for prep plants.  I think this is just for underground mines, but I'm --
		MR. NICHOLS:  Well, sampling is.  The single sample is for surface. 
		MR. JARRELL:  Okay.  Well, I represent some underground miners also.  I'm vice president of our local union.  I think we need more samples done instead of less.  I think you're dropping the number of samples that are going to be done.  I don't want to see this.  I think if you listen to the people that have been up here before me, and the people that have been here this morning, are all of the same mind, I believe.  There's like, I figured, a little over 2,000 years experience that was in this room, and all of them are saying the same thing, that we need more, we don't need less. 
		I remember I was at the hearings down in Kentucky in Prestonburg in 2000, and we were saying down there, everyone was telling you that the operators, if they had the opportunity to use the helmets instead of using adequate controls on the dust, that they would go that route.  And I really don't think you believed us down there, but there was one operator that testified down there, and one of the things that he brought up was that he would like to see every underground coalminer wear that helmet.  He validated what every one of us had said, that one guy.  He told you what we had been telling you, that they want to see us wear those helmets.  And we don't wan to. 
		There was also a nonunion miner that testified down there how things that are done, in his mind, and he told you he was putting his job on the line.  Now, he probably didn't have a job when he want back to work.  I thought that took a lot of brass there.
		I would like to see full production samples.  I know I work a 12-hour shift, and I think your samples should be set up, if I work a 12-hour shift, to sample that 12-hour shift.  I think your proposals are in violation of the Coal Act.  I think it will allow operators to operate in excess of 2 milligrams.  I don't want to see that. 
		I think the rules that you're proposing are very hard to understand, and I think they'll be very hard to enforce, because I know some of the operators that I've had to deal with, if there was any kind of ambiguous language in it, they could do whatever they wanted to, basically.  If it's not plain and simple and black and white, I don't have it.  And if you can't make it like that, you're not doing something for me.  That's all I've got. 
		MR. NICHOLS:  Okay.  Thank you. 
		(Applause.)
		MR. NICHOLS:  Jim Lamont.  Is Jim here?  Oh, here he is. 
		MR. LAMONT:  Good afternoon.  After speaking on Tuesday in Washington, PA, I have just a few things I would like to add to my testimony there.  The proposed rules have eliminated a number of requirements contained in parts 70 and 90.  Those include the standards on bimonthly compliance sampling of MMUs, and designated areas contained in 70207 and 70208, and bimonthly sampling of part 90 miners contained in 9208.
		That sampling will be conducted through Agency policy, which is subject to change without regulatory review, as MSHA did recently.  MSHA reduced, through policy, compliance dust sampling from six times a year to four times a year, and treating those as noncompliance target samples.  That was mentioned on Tuesday.  What is our guarantee you will not reduce this even further in the future to say, two times per year?
		The proposals make a number of other changes which would alter the allowable dust levels up to 8 milligrams and even more for compliance purposes.  An example of policy changes, to add to the confusion, would be in 7202(b), which states, "Sampling devices must be calibrated."  Not "approved sampling devices," as does in the existing 7204(b), but "sampling devices must be calibrated at a flow rate of 2 liters per minute, or at a different flow rate as prescribed by the Secretary of Health and Human Services for the particular device before they are put into service, and thereafter, at intervals proscribed by the manufacturer."
		Proposed 7202(b) does not address the calibrating being done at intervals not to exceed 200 hours of operating time thereafter that is already in the 204(b) and MSHA policy.  It refers to time intervals proscribed by the manufacturer.  Gentlemen, which one is it?  What procedure is to be followed? 
		In the past two years, MSHA has made a number of major policy changes affecting the respirable dust program.  Changes that eliminate standards, changes that adversely affect and diminish the protection of miners in this country.  In December 2001, MSHA announced that they withdrawn action on two key rules.  One standard was on continuous dust monitors to be used in underground coalmines.  The second was a standard requiring respirable dust levels to be lowered in the nation's mines. 
		Despite Agency promises to beef up MSHA dust sampling inspections, in 2002 MSHA made changes in the sampling policy, cutting MSHA compliance sampling from six shifts a year to four.  With the new Agency policy also comes a new enforcement scheme.
		To add insult to injury, the Agency recently proposed the new belt air ventilation rule.  This rule allows an operator to have an unlimited velocity of air in the belt entry.  Air that will be used to ventilate the face.  Air that will be sending dust along the belt line into the lungs of workers at the face.  Air that, under the current rule, should not have in excess of 2 milligrams of dust, as proscribed by law, but now, under the proposed rule would be allowed to have in excess of 8 milligrams, with higher velocities of air, in particular in the belt, comes more dust.  Dust going to the face.
		With that, I'd just like to make one other statement.  Last year there was several incidents.  One in particular gained nationwide attention, and that was the Que Creek incident.  A lot of work was put in that.  There was Commissions formed.  There was investigations.  Ongoing.  Again, there was other inundations that happened.  You had Jim Walters that took the lives of 13 miners.  And with that, it took upwards of a year to have a report on that.  Que Creek, still nothing come out on that. 
		And with these reports, usually there's rules or something to be promulgated to protect our miners in this country.  There are going on for some period of time.  Now, all of a sudden, we're getting rules thrown at us.  We get this dust rule thrown at us, which, in our opinion, is going to hurt miners, and I'm confused on how this whole thing works.
		I mean, we had incidents where miners were killed.  Where 18 miners were almost killed.  I don't see the urgency into protecting miners in this country from the incidents that happened there, where I see something here that's being railroaded to us that's going to be worse.  That's just totally confusing, and I have trouble understanding that.  That's all I have to say
		MR. NICHOLS:  Thanks. 
		(Applause.)
		MR. NICHOLS:  Russell Thompson?
		MR. THOMPSON:  Hello, my name's Russell Thompson.  R-U-S-S-E-L-L T-H-O-M-P-S-O-N.  Talking about testimony, and I'm not going to try to be long, but it should be honest, and it should be from somebody that has experience.  We have a lot of things in common.  We put our pants on the same way every day, me and you both.  But we don't breathe the same air all the time.
		Being an underground miner for 22 and three-quarter years, I've seen a lot of progress in the mining industry.  I've seen a lot of progress with MSHA and the different departments.  I've been on walk-arounds.  For 17 years I've been a mine health and safety committeeman.  I took the job because, when I started in the coal mines as a shuttle car operator, you had to bounce off the rim till you finally hit what they called the biner.  And then he'd try to lug you and you'd just run your chain and you didn't know how much you had on there, because you couldn't see.
		It has changed quite considerably throughout the years, but what made me change my mind and get into the health and safety part of it was because I saw when they started on the dust samples, it made such an increase in the air, and everything was so different.  I could see, finally.  And I could breathe better.
		As a young man, I didn't think much about it, because my breathing was real good.  But throughout the time now, I wake up in the middle of the night, and I've got to get up on all fours and try to struggle to breathe from the dust that I neglected years ago to try to take care of. 
		But my point is, we have a technology today.  If I was very intelligent, I would probably be up there on the panel, and I wouldn't be inside the coalmine to begin with, but the thing about it is, I represent men, coalminers that are in there every day breathing this dust, and they rely on me to stand up for them.  And I have tried to do my best to stand up for them.  I have walked with MSHA's inspectors, and I have been up to the Mine Academy many years.  And I heard Davitt McAteer make a statement a couple of years ago saying, our goal is to get black lung out of the coal mines.  Well, that's been our goal for years.
		And now I see the technology to do this, and it's in the personal sampler thing.  And that was one of my suggestions years ago, that until you got something to monitor the coalminer personally, every single day, then you can forget about it.  The Airstream helmets.  It sounds like a good solution.  But like I said, coalminers -- and I work on a continuous mine section -- we rely on sight and sound.  You can't tell me that you can put something on my head that's going to continue to have a fan back here.
		And we had tried it.  At one of our mines we did try it, but it didn't take long to find out that you can't hear, your sight is obstructed from the dust that collects on this, because coalminers, we're not the cleanest people, we're going to handle dark grease and we're going to wipe them.  And you can't see, first thing you know, well, they break that seal, they're going to take that thing off, because they're going to say, hey, when that top goes to working, I want to be able to hear, and I want to be able to see.
		I don't care what them people and lawmakers say, they're not the ones is here doing my job.  They're not the ones.  This is my life.  And I made it my goal years ago that I'm going to work, Lord willing, 30 years, if that's what it takes, or 40, but I want to do it the safe and healthiest way that I can do it. 
		And from talking to many men that have wore the Airstream helmets, and they tell me how they're restricted from their air and their hearing, and all this, and they can take -- and they're going to jam a sock in there to get that filter out of there so they can breathe some, so it's not feeling like they're suffocating.  And from the time we started wearing these selfrescuers, and you got all this other apparatus, and you want to put a helmet on me.  And it's true, I heard somebody say earlier today, it's like walking on the moon or something.  You look like a man on the moon.  You don't need to be restricted. 
		I worked high coal, and I now work in the medium coal, and sometimes it's low.  And you need to be able to see, you need to be able to hear, you need to be able to move around, not be restricted.  But you also -- it has been proven that -- Davitt McAteer made a statement.  He said, in my office I get these reports.  My man comes back and he say, well, this sampling is 1.7, but I don't understand how come so many men are going to the hospital, getting these x-rays, and they're dying from black lung.  There's something wrong.  And there is something wrong.  And it's a fact.  And job security and all.
		The coal companies, when you allow them to do the dust sampling, common sense wise, they're going to take that little sampler and they're going to hang it over there in the intake.  They're going to keep it out of that dust.  Now you say, well, why ain't the men smart enough?  It's not that they're not smart enough and they don't know what's going on.  They are job secured, for one thing.  That's the biggest reason.  Because what they hear is, you're going to shut this place down.  If they come in here and we can't be in compliance, they're going to shut us down, or we're going to have to pay out all this extra money.  And the bottom line is money.
		And I'd like to say that my life is worth more than all the money out there, and all the men I work with is worth more than money.  And if it's technology, I mean, it has surprised me that we haven't moved further in technology in the 22 years that I've worked in the coal mines, almost 23 years.  And to see something like this personal dust sampler, it makes me feel good to know that if I'm on a section that each and every one of them make, we can just push a button and we can see what we're being exposed to, and we can shut it down, or say, hey, we're going to hang some more curtain, take some curtain down, we're going to have to clean some scrubbers, put some more water sprays, clean them out, or whatever it takes, let's get some more air up here.
		Because you can't always see that dust.  We know that.  But when you break a seal on a helmet or something, you're going to breathing that stuff right in there.  And you're going to increase that?  You can't see.  When the dust is increased, you cannot visibly see that machine that you're going to be going up to load behind.  They're so wide, and the places get so narrow anymore, and the machinery gets bigger.  You're going to take bigger risk of running on top of somebody.  And I just don't want this personally.
		I've always backed MSHA when it come, as a walk-around, take my notes, and I do my best to help MSHA in any way that I can, what time they are there.  And they'll tell you that they know, when they come, that they're going to be -- the faces will probably be flush.  They're going to start over here.  They're going to run.  And they're going to be in the clean air all day long, what time they're there.  I mean, you know, it's no secret.  Everybody knows that.  Then when they leave, it's up to the men, but if we had a sampler on our side where we can have a readout at the end of the day, I mean, that sounds unbelievable to know that this kind of technology can go straight back in to MSHA, and they can see if Davitt wants to see, or whoever, they can see the true facts of after, when they're not there, what goes on.  That's all I have to say. 
		MR. NICHOLS:  Thanks a lot. 
		MALE VOICE:  Amen.
		(Applause.)
		MR. NICHOLS:  The court reporter's in dire straights over here, so we'll take a five-minute break. 
		MR. THAXTON:  The next speaker is Joe Carter.
		MR. CARTER:  Thank you.  Is this on?
		MR. THAXTON:  Yes.  You have to talk real close to it.
		MR. CARTER:  Okay.  Thank you and welcome to District 17.  My name is Joe Carter.  I'm the president of Unit W-8, District 17.
		MR. THAXTON:  Could you spell your last name for the court reporter, please?
		MR. CARTER:  Carter, C-A-R-T-E-R.  I've had the privilege of representing coal miners for many years now.  I worked underground in a coal mine for a lot of years, and I've witnessed the plight of miners and the advances that we have made.  Those advances have come at an extremely high price.  And living in West Virginia, I understand the significance of the Federal Coal Mine Safety and Health Act of 1969.
		Many people see the creation of the act as a result of a disaster that occurred in Farmington, West Virginia, in 1968.  Today, we may all agree that that was the catalyst for this landmark legislation.  However, the reason for the nation's health and safety laws in the mining industry are rooted in the bloody and horrific history of the mining industry.
		Literally hundreds of thousands of miners have lost their lives since the turn of the century.  These men and women were killed in mining accidents that were immediate and severe.  We have all seen their stories in the news.  They are the foundation of the 1969 act.  But those are not the group of miners that we're here to discuss today.  Those miners deserve our admiration, and their families our support and sympathy.
		There is, however, another group that created the framework for the act.  Generally speaking, they die a horrific and painful death in the quiet of their homes or in the hospitals or nursing homes.  These miners are out of the eye of the public and literally suffocate as a result of Black Lung.  They were sacrificed by their employer for the sake of higher production.  And until miners demanded better, they were ignored by their government for the sake of business interests.
		No operator gave us better health and safety conditions, nor did a government agency give us decreased dust levels in the mines.  Miners and those in attendance who have witnessed our brothers and sisters gasp with their last breath demanded it.  They fought for it, and many of them have died for it.  I'm here to tell you as a miner and president of District 17 that no one, no operator or this agency, is going to take these protections from us.
		I will explain some of my specific problems with the proposed rules, but it is important for everyone to understand where this dialog begins.  The dust rules are a slap in the face of miners.  It would outrageously reverse many improvements for controlling dust and ignore testimony of miners and representatives across the country.  We're not going to permit any reduction in the dust standards.  And please understand what I'm saying.  We're not talking about what is believed that we are entitled to, but what we know that our rights as miners are.
		No one is going to sell away our right to a safe work environment.  And that's what the act says.  The act says that the miners would have a safe work environment.  That was why it was offered.  That is why it was brought about, was to give miners better health in safety.
		The 1969 act called for a reduction in respirable dust of 2 milligrams per cubic meter.  Your proposed rule ignores that standard and allows dust levels in the air that miners will be working in to increase as much as 8 milligrams per cubic meter.  What is worse is that this has been done in such a way that a casual reader of this proposal would never know it.  I myself have looked at -- I have looked at the proposal, and it states 2 milligrams per cubic meter of dust.
		Your decision to allow powered air purifying respirators and introduce protection factors is a cruel method to increase dust levels in the mine.  The mine workers will not tolerate this increase, nor will we tolerate this deception.  Miners have demanded that the agency take over the dust sampling program and increase the number of samples taken each year.  Your proposal to allow the operators to verify their own dust plan and have reduced sampling, in some cases by 90 percent, is just unconscionable.
		Gentlemen, miners in District 17 and across this country are losing faith in your ability and desire to protect them.  They've seen reductions in enforcement.  They've seen a lack of caring.  But this rule, they see a far uglier side of the mine -- of management.  They see an agency who understands that at today's dust levels, 1,600 miners will die this year from Black Lung.  But do they care?  They see you as willing to increase dust levels fourfold for the sake of production and at their expense.
		Your proposal cannot be allowed to become law.  You may be willing to roll the dice on the lives of these miners, but I'm not.  We will fight to defeat this rule, and we will continue to oppose such callous proposals.  It's time that we listen to miners in this country, the men and women who know best, and write a rule that offers the protection that they deserve.
		And also, I would like to point to the fact that the advisory committee that was formed, in their report -- this proposal seems to go against many of their suggestions and their recommendations to this agency.  And you know, as a parting thought, I'd just like to say that West Virginia worker's compensation -- and I know that's not a concern to you, but it's in a terrible condition at this time by all reports, and how it's financially strapped.
		Do you know if you increase the dust levels in the mine by fourfold, there is another thing that is going to make a terrible impact up on worker's comp in the state of West Virginia, on down the road.  It may not be immediate, but as these miners are exposed to more dust, they're going to have more breathing impairment problems.  And West Virginia worker's comp is going to reap that problem.
		You know, something that I would like to ask you all to consider is that these miners, they just want to work and make a living.  Since 1969, which is about 34 years, it has been 2 milligrams.  Everything that is reported suggests that they're still contracting pneumoconiosis.  They're still breathing enough respirable dust that is causing impairment to their lungs.  And if anybody disagrees with that, you know, feel free to say so.  But that's what that I'm told, and that's what I read.
		But yet, through this rule and this new proposal, there stands a chance that you'll increase the dust levels instead of continuous monitoring, as they have developed the system that the gentleman demonstrated to us this morning that they could monitor continuously and use those to make sure that the dust levels that the miners work in are in compliance.  And I just believe this rule is unreasonable.  I believe that it needs to be taken back and rewritten, and that you need to recognize the framework of the 1969 Coal Mine Health and Safety Act.
		And I thank you all for being here in Charleston, and thank you for this opportunity to make comments at this hearing.
		MR. NICHOLS:  Thank you.
		(Applause)
		MR. NICHOLS:  Roger Slayton.
		MR. SLAYTON:  Yes.  My name is Roger Slayton.  I've been in the coal mines for approximately 30 years.  I've worked about under any conditions that a coal miner can work under.  And I am against this rule change because it may allow the dust level to be increased in the coal mine, thus creating the potential for dust explosion, which is the most violent type of explosion that you could have.  And increasing the dust level would also increase the number of miners and families of miners who would suffer from breathing the dust.
		You know, we've heard a lot about coal miners down with the Black Lung today.  But what about the families of those coal miners?  I watched my father die, by God, from breathing coal dust.  When he went to the hospital and they suctioned him out, you've got to reach in there and pull it up with your fingers.  I don't want that for no more coal miners in this state or this country.  I don't want no man to have to go through with watching their father lay there and die like that.  And to let a coal company develop their own dust plan -- they'll never be out of compliance, no way.
		What we need is a continuous dust monitoring system to where each individual knows what he's in and knows what he has to do to get out of there.  If we drop the ventilation, the water -- a coal miner is smart enough to where he knows when he is in too much dust.  He'll get out of it.  And he'll shut that section down until it's fixed, if he knows it.  But he has got to have something to stand on.  You can't wait six months for that inspector to get there to tell you you're out of compliance.  You've got to file a complaint to get them out if you feel like you're in too much dust.
		We need something that will continuously monitor that dust, and where we've got something that we can immediately get hold of the federal government or whoever we need to get hold of to get the situation taken care of.  And that's basically all I've got to say.
		MR. NICHOLS:  Thank you very much.
		(Applause)
		MR. NICHOLS:  Now Dennis O'Dell.
		MR. O'DELL:  Good afternoon.  My name is Dennis O'Dell, D-E-N-N-I-S, O, apostrophe, capital D-E-L-L.  I'm an international health and safety representative for the United Mine Workers, and I come before you today, as I did in Washington, PA, a couple of days ago, to speak to you on this rule.
		MR. NICHOLS:  Hold on a minute.  We're doing the best we can with this mike.  But you guys in the back, come on up here close to the front so you can hear this.  We have to kind of stay close to the mike.
		MR. O'DELL:  Is that better?  Better or worse?
		MR. NICHOLS:  I hear you good.  It's the guys in the back that keep raising their hands.
		MR. O'DELL:  Okay.  Today I come before you as a representative of the miners.  I would like to thank this committee for the opportunity to speak on what I believe may be one of the single important issues today and for the future that deal with miners all across this nation.
		Tuesday, in Washington, PA's testimony, I had spoke to you on some technical aspects.  Today I'd like to speak to you on a different level.  We as miners have a lot of stake in this.  We, meaning miners who are under the jurisdiction of the Department of Labor of Mine, Safety, and Health Administration, have always been very grateful for the protection that your agency has had to offer us in the past.  By far, we know that we are blessed with what is know throughout the world as probably some of the safest coal mines to work in.  And a lot of this should be, and is credited, to you and your agencies, as well as the inspectors from your agencies, who are on the ground every day trying to enforce the code known as 30 CFR.
		With saying that, it also needs to be pointed out to all of us that somehow we've missed a part of that that we were mandated to do.  And when I say we, I speak of everybody in this room.  We've missed a part of the act somehow, when the agency is failing to protect the health of the miners.  We've gotten pretty good on the safety end, but we failed on the health of the miners.
		Miners today are still dying not just from roof falls, fires, explosions, and other mine-related injuries, but miners are still dying today of health-related illnesses such as Black Lung.  I truly believe that as I've talked to some of the gentlemen on this panel before me that somehow you've tried to fix this problem.  Somehow you believe that maybe there are some things in this proposed rule that try to address that.
		But unfortunately, in looking at the rule as a whole, it has failed and fell short in getting done in what you've attempted to do.  This proposal, as you've heard today by many who have testified before me, is considered to be complicated and considered to have fell short of that mark that we have all tried to achieve.  Many people, for example, of the miners, lawyers, representatives, and the general public are really not sure what this rule says, proposed rule says.
		To further complicate the issue, there was a limited time to digest and try to understand exactly what was being said in this proposed rule.  One of the biggest single questions that I've heard is what is actually in a rule and what is in the preamble.  What is enforceable and what is not?  The preamble addresses a lot of things, but as we're all aware, inspectors, the very guys on the ground trying to enforce these laws, cannot enforce or cite a preamble.  Judges will rule against that, and they will continue to say that if it was implied and it was intended to be law, then it should have been listed in law, not a preamble.
		Taking us a back a little bit, if anybody can remember what happened with the new ventilation regs that we went through -- and we got this nice little blue Q&A book, question and answer book.  It was given out to everybody when we were going through this process.  It ended up being nothing more than a nice piece of bathroom reading material, basically.  That's all it became worth because it couldn't be used for anything else.
		Does anybody in here ever remember seeing a citation used quoting the blue Q&A book or preamble in a body of a citation when a company violated this plan?  I think if you look back, you'll find the answer to that question is no.  That's not only what I fear -- I know will happen with the same thing with this new proposed dust rule.
		Another thing that we need to look at is how to fix the exposure limits.  Looking back, we went from a mindset of tossing around a 1 milligram standard about four years ago to now giving up a mandated 2 milligram standard, as guaranteed by the act, and possibly allowing a standard that will allow dust exposures to go to 8 or 9 milligram standard.
		We asked for samples to be taken for entire shifts at the 2 milligram standard, and you gave us an entire shift sample with a 2.3 milligram standard with a lot of other factors included in that, calculated by some mathematician or somebody.
		Also, the flexibility of the operator hasn't been fixed.  When they're allowed to go in excess of 115 percent of the quantity specified in the plan, they're allowed to exceed the production levels as specified in the plan by 32 percent.  I think if I read it right, it's not until 33 percent of the production shifts exceed that triggers a new plan verification, and that's up to the discretion of the MSHA district manager.  And I still don't understand where the gains for the worker protection are in this.
		Once an operator submits his plan to the district manager -- it's another point that I'd like to bring out today.  The district will give the operator what is called a provisional plan approval to operate under until such time that the MSHA inspector can come to the mine and make the samples.  We have numerous plans out there.  At one point, I heard 700-plus plans -- it may be more than that -- that is going to have to go through this process.  So it's going to be awhile before they can get to the mines to check these.
		Then the operator will call the agency and tell them the day and the time that they want them to be on the property to watch the sample, which to me is prior notification, no matter how you look at it or who calls who.  Why?  If our field offices have all this collection of data on a mine at their districts, and they have a lot of history of data collected, based on past history of dust samples, inspections, and the district manager feels comfortable giving a provisional plan approval based on this, by telephone or e-mail or whatever -- you get the picture -- and it's okay to operate under this plan until MSHA can come to watch the verification sample being taken place, then why does notification have to take place?
		I've been told on one side that this is the best thing since the creation of sliced bread, yet we don't feel comfortable enough to go to a mine unannounced with the very thing that we've already approved via fax or e-mail or telephone.
		I don't know what the problem would be because guess what?  On the date of the verification sampling, if I read this right, and the operator doesn't have in place what he submitted under that plan, it's no big deal because, number one, he can adjust his parameters at that time to come into compliance with his plan; or two, he can make no adjustments.
		In other words, whatever it takes for the operator to comply on that date he is going to be allowed to do.  And it still doesn't matter because there is no incentive for them to do that because MSHA is not even going to cite the operator at that point.  MSHA is just going to let them to try to do it over and over again until they get it right.  This type of loose enforcement is not going to scare Mr. Profit Coal Company.
		Some of the things that we've addressed, too, was all the miners activities that the advisory committee had addressed.  The miners' participation in the interim of the operator dust sampling program -- this should be encouraged to provide assurances that a credible and effective dust sampling program is in place.  And to some extent, it has been addressed.  Miners designated as representing the miners should be afforded the opportunity to participate in all aspects of dust sampling for compliance at the mine without loss of pay, as provided by the section 103(f) phrase in the Federal Mine Act.  And I understand this was addressed.
		Miners' reps should also have the right to participate in dust sampling activities that would be carried out by the operator for verification of dust control plans with no loss of pay.  This hasn't been.
		As a representative of the miners, I have been asked to come before you today, as well as me having a personal interest in this, to fix some of the problems that I and many other miners have raised before you.  Show us where these will be guaranteed, black and white fixes.
		I haven't heard this argument come up yet, but I'm sure it's going to appear at one time or another.  So being around as long as I have, I've just got it in my gut that it is going to pop up, so I'll throw it out there myself for the sake of argument.  That argument will be -- or I anticipate an argument that the agency will say that we won't mandate a rule to force companies to use something if it isn't economically feasible to do so.
		And I got this impression that the agency may feel that a PDM in their minds may not be economically feasible to force the companies to use.  That somewhat doesn't hold water when we have a rule that mandates airstream elements at a certain level after all engineering controls have been exhausted.  That could be argued that this isn't economically feasible as well.
		The companies for a long time have argued that the unions aren't economically feasible.  They argue that MSHA is not economically feasible.  They try to do away with you.  They try to do away with us.  And they're going to argue that some of these other things aren't economically feasible.
		I wonder what the real difference is in the cost of a PDM versus airstream elements.  The initial reaction is the PDM is probably more costly.  But I think we need to look at that on a longer term and a broader scope.  airstreams are simple helmets, supposedly.  There will be an additional cost because it's something that the mine operators don't have on a lot of their properties to this day.  So they have a cost of a helmet that has chargers and filters, as well as whatever maintenance and cost it is to provide initially.
		On the other hand, miners need cap lights to see underground.  PDMs have cap lights attached to them.  So this is a way to offset that cost as well.  But you have to look at what would be, in my opinion and in the public's opinion, and should be in everybody's opinion, the largest economic cost of this rule, of PDMs versus airstreams with an 8 milligram standard, and that is the economic impact of what it's going to be on society with the loss of many, many miners' lives by either sickness and/or death of Black Lung, and additional mine fires and explosions.
		The argument of airstreams used earlier on, which I heard today, about having the option to either put airstream helmets on a miner or take that miner out of that dusty environment and putting him in a less dusty environment is also ludicrous.
		Number one, it still allows for a more dusty work environment.  And number two, the companies won't move miners from one work place to another.  It just won't happen.  Just like this rule, the moving of miners out of a dusty area to a less dusty environment is unrealistic.  The only true way to fix this whole mess is for us all to get back to the basics, simplify, simplify things by following what was mandated by the '69 and the '77 Coal Act.
		We need to go back to enforcing a 2.0 milligram standard at an eight hour period, less milligrams for longer work shifts, not more.  We need to sample work areas.  We need to sample occupations.  We need to lower dust, lower dust, lower dust.  We need to enforce the law, enforce the law, enforce the law.  We need to go back to protecting the health of the miners, not the pocketbooks of the operators.
		I intend in the hearing in Colorado to lay out what I believe should be implemented in a plan verification process and what should be used.  But with other miners who need to speak today, I understand that time is short.  If I were you guys sitting at that panel today, I'd be pissed off.  I'd be so pissed off, I'd want to chew nails.  You've had to listen to several miners in Pennsylvania.  You've had to listen to several miners here in Charleston today.  As we sat here today, we had thousands of miners in front of the state capital protesting this rule.
		That should show you as a panel that somebody has misinformed you on what should be done.  One operator spoke in Pennsylvania.  I don't even know if we have any operators here today.  That tells me they think this rule is in the bag, and they think it's great.  That should make everybody question where we're going and what is going on.
		In closing, I wonder what has caused us to become calloused to miners.  And I don't say this to be disrespectful.  But sometimes we become calloused to miners' please.  I often wonder if anybody really listens to what miners are asking of this agency.
		When MSHA was in trouble with the Cass Ballinger bill, and he was wanting to eliminate you guys, we listened.  We knew how important it was to make every attempt that we could and to do whatever was necessary to save this agency.  All we ask is that you listen and do what is right to save us by protecting our health and safety rights, not eliminate or reduce the standard.
		When rule changes take place, they often need to be equal to -- or they should be equal to or greater than, not less than, the existing rules.  And by far, this is less than what the act has mandated by Congress.  Thank you.
		MR. NICHOLS:  Thank you.
		(Applause)
		MR. NICHOLS:  Lonnie Alsbrook.
		MR. ALSBROOK:  Good evening.  My name is Lonnie Alsbrook, L-O-N-N-I-E, A-L-S-B-R-O-O-K.  I know how we felt on 9/11, and I hope you all felt the same way when you all was attacked and had fear.  Well, that's the way we feel now.  With this that's coming up, you all are setting us up on a time bomb in the mines.  I mean every mines in the areas where we had fires, and all you all are setting us up on is there.  And I don't know if any of you all have ever worked in the coal mines.  It's obvious you all haven't.
		Do any of you have mining experience?  And I think you all need to look in the mirror at yourself before you all okay this and tell them, hey, it's our lives you all are dealing with.  This is just not on paper.  It's us, period.  And you all need to take this back to them and say, hey, this is not right because, really, this is terrorist.  I mean, my goodness.  You all need to wake up and realize what you're doing to us because it is our lives that you all are dealing with.  And I've got kids, and I've got family, too.  How would you like it if we would threaten you all?  Because that's what you all are doing to us.
		All right.  And on the space helmets -- we tried them in our mines.  They do not work.  They're top-heavy.  We have neck injuries over them.  People hurt their backs by jamming their heads in the top.  The company did not take care of the space helmets.  We had to use the same helmets the other people did.  Everybody started getting sick, like one person have a cold, they'd just throw it in a rack, and when you went up there on the lawn mow, they say, there it is, you use it, and you had to use it.
		And none of them maintain this stuff.  And you all really know it, if you know it deep down, if you'll be truthful with yourself.  Because they will not do it.  They just throw them in a rack.  Dust got on them.  There was no cleaning done on it.  You had to take your own filters in if you wanted a filter for it.  And there is not going to be no rules to make them do it because there ain't going to be nobody there to check them.  And who are we going to call, the people that wrote the law?  Well, you know they ain't going to settle.
		So where do we stand as miners?  We're going back in the stone age, and you're doing completely away with the act.  That's what you all are wanting to do with our rights.  Well, we're not going to give them up.  I'll tell you that right now.  We'll fight to the very end.  Thank you.
		(Applause)
		MR. NICHOLS:  Thank you.  Next, Dennis Bailey.
		MR. BAILEY:  Dennis Bailey, D-E-N-N-I-S, B-A-I-L-E-Y.  I'm in my 29th year of mining, District 17, Wyoming County.  I worked considerably longwall experience, construction, and continuous mine of sections.  I've basically been all throughout the mines in my career.  And as of July this past, I'm now a part 90 miner, which is not good news for me to hear.
		September 2nd is when my sampling began, my personal sampling.  I'd like to share three out of four of my personal samples.  This is my own experience.  This is my reasons for consistent sampling.
		The very first time I was ordered to put on a dust pump, I was ordered to paint a mine office with my dust pump on for eight hours.  That was a slap in my face.  That was an insult to my intelligence and to this whole system.  Upon protesting, 10 minutes into the shift, a federal mine inspector came around the corner of the mine office.  Of course, I summoned him.  I told him what was going on.  He got the mine foreman and asked the mine foreman to come to talk, the three of us.
		He asked the mine foreman if I was ordered to paint this mine office, which I've never been asked to do before in my career.  He said, yes, he will.  He says, and you asked him to wear this dust pump while painting a mine office.  He said, yes, I did.  He said, are you going to order this man to paint mine offices the rest of his career while he is at this coal mine?  He said, no, just today.  He said, you take it off, or you'll get a citation.  That was my first experience with dust sampling.  And we all know that wouldn't have been a true sample or a good sample.
		My second experience with samples -- and like I say, this is just since this past September.  I was told to operator a ram car, hauling coal, in dust.  I operated this ram car.  Monday morning, I was told to get my dust pump.  They wanted to sample me as I did this.  I didn't get the dust pump.  They didn't have it available.
		Tuesday morning, the same thing.  I ran a ram car, hauling coal.  No dust pump was available.  And the same thing Wednesday.  Three days in a row, I was ordered to run a ram car, substituting for a man who was off.  The fourth day, Thursday, I was given my dust pump, and they said I didn't have to run a ram car that day.  I was told to check pumps, water pumps, out by in good, fresh air.
		Those are bad experiences.  Those are not true, and those are not fair samples.  And anything you're basing your determinations upon should be true and fair.  And that's why a consistent sampling is really needed.  There is no use you basing decisions on untrue samples.  And I've heard these stories from other miners, but this is my personal experience.  And this is not old and hard to forget.  It's just since September.
		The third time, I wore a dust pump until 3:10, 3:15 p.m., from 8 o'clock that morning.  They took my samples from me, took it outside, and ordered me to go deface in a dusty atmosphere.  I respectfully protested.  I didn't have to go.  Had I listened and obeyed the order, I would have gone into the dust after my sample was outside.  That's another reason for consistent sampling.  You and we have been duped by companies that are sending in false information, and you can't base a true and clear decision on something that is false.  And I'm sure many men here can testify to that also.
		We now have technology available to sample consistently, and I'm living proof that we need it.  And based on my testimony, that's why I feel strongly that we need this technology put into effect.  If we can solve the problems of NASA, we can bring moon rockets back, we can do this to our miners and with our miners.  The technology is there.  The education is there.
		Also, I'm a 10-year member of the fire brigade in my rescue team where I work.  I've now retired.  My health is failing, and I don't feel like I'm a contributing party anymore.  But I've seen and I know the problems and the dangers of mine fires, and I understand an elevated dust level is elevating the risk.  That's another reason I'd like to see the dust kept where it's at, lowered, not raised.
		I'm a one-year veteran of safety walkaround with mine inspectors, and I wish you could be with me and see the things that I see firsthand.  I would like to bring what I'm saying to your level so we can meet and talk on level ground, eye to eye.  I understand clearly that your decisions are made on things that you're really not aware of.  And things are a lot worse than you could ever imagine.
		As a former ambulance driver -- my next-door neighbor died of Black Lung.  I was 18 years old.  I had to pick him up.  It wasn't a good trip.  It wasn't a good thing.  Also, while I worked for this company -- I worked for the funeral home.  I was an apprentice embalmer.  I witnessed personally an autopsy of a Black Lung victim.  It's not a pretty site.
		All these things are leading to more of these victims, and we don't need that.  As a fire department member of my home town, our smoke mask protects us from smoke.  But we can be blown out of the building by backdrafts.  Same thing with an airstream helmet.  Even if they did work and keep us out of dust levels, it's not what keeps me blowing out of a coal mine.  Dust levels raised could present this opportunity and this possibility.
		So it's a bad choice, to go out slowly with dust or be blown out quickly.  But I really feel, as a fire department member and a former miner rescue and fire brigade member that we are endangering our coal miners, not just protecting them from dust, but we're raising a dust level where there is possibility of explosion.
		This is a clear violation of the Mine Safety and Health Act.  We know that.  We've discussed that several times.  It's really too late for me.  I've been declared a part 90 miner.  It's my goal, as two and a half more years in my career, to, if I could, eliminate anymore dust.  I've had enough.  I don't want anymore.  I'm doing everything I can to prevent myself from being worse.
		I also would like to say that if my statement here can help the future miners, it's well worth it.  I don't want to be selfish and just say I've got it, I'm not going to say anything.  I want to help the future miners.  And it has been determined I have lung on my dust by a team of knowledged doctors.  May it not be determined that you have blood on your hands for making decisions that could kill our miners.
		Thank you very much.
		(Applause)
		MR. NICHOLS:  William Chapman.
		MR. CHAPMAN:  My name is William Chapman.  That's W-I-L-L-I-A-M, C-H-A-P-M-A-N.  I'm with United Mine Workers, president of Local 7093.  With machines being used to mine coal in today's modern day mining, there is more dust in the mines today than ever before.  And in the past 10 years, 13,000 people have died from the painful disease Black Lung.  Painful, yes, because you smother to death.
		You all sitting at the table out there, look out to your right up there.  There is a sign that says King's Inn.  See that purple look?  That's what a man looks like when he's sucking for air, when a cold sweat is running off of you.  Now you work your lungs like that there, and your heart is overcongested, and you die of congestive heart failure.
		So why would MSHA ignore the advisory committee's recommendations and propose to raise the respirable dust levels and reduce the number of dust sampling tests?  That's absurd.  The proposed changes that you all would make would greatly increase the miners' chance to be inflicted with this dreadful Black Lung disease.
		We the miners who mine the coal that afford 70 percent of the nation the luxury of electricity deserve and demand a safer work place.  And we demand the peace of mind of knowing that MSHA is working with us and not against us.  We urge for more increased dust sampling and the reduction of respirable dust levels.  This is why we urge MSHA to put in place the advisory committee's recommendations, which include miners' participation.  And if we're going to end this dreaded Black Lung disease, we must unite.  And "unite" starts with U.
		Thank you, gentlemen.
		MR. NICHOLS:  Thank you.
		(Applause)
		MR. NICHOLS:  Clyde McKnight.  Okay.  You think Clyde is gone for the day?
		MR. KNISELY:  My name is Bob Knisely.  That's K-N-I-S-E-L-Y.  I'm going to read a prepared statement.  I wish I was articulate enough to speak off the top of my head.  But I'm going to try to read this prepared statement.  And following that, I'd like to submit it to the committee so it can be put in the record.  And I'll explain a little bit of that later.
		I'm a coal miner employed by Consol Energy at their Robinson Run mines.  I have 30 years experience underground, and it's all at this location.  My mine is represented by the UMWA.  I have served several years on the health and safety committee and have had many opportunities to speak before such committees in the past.  I now serve on our political action committee.
		And my mine employs approximately 500 people.  We have four continuous mining sections and one longwall.  And my mine produces approximately 6 million ton of coal per year.
		I had the opportunity to speak at the first meeting in Washington, Pennsylvania, on Tuesday, but I declined.  I did this not because I like what I had heard or had seen about these proposed regulations.  But instead, I felt that I was unprepared to speak at that hearing.  Well, guess what?  I wasn't the only one unprepared.
		This committee has set forth a proposal which is not only complicated, in my mind, close to being illegal.  My experience in the past has shown me that MSHA has often lost their way in regulating the mining industry.  If it were not for regular, everyday coal miners and the UMWA coming to these hearings and voicing our opposition, I often wonder where would the health and safety of our nation's miners be today.
		And please don't misunderstand me.  I take no pleasure in pointing fingers at this committee or its members, nor do I mean my comments as any personal attacks to any of you.  You must be aware of the frustration of the coal miners in this country, who must sacrifice time off from work and from their families in order to attend these public comment periods.  Most of the men and women who will speak are only working people who ask that you listen and hear what they're saying to you.
		I made a statement earlier that I felt these proposed regulations in my mind were so flawed that they were close to being illegal, and I want to tell you why.  In the Mine Act of '69, it is clearly stated that the purpose and intent of Congress with this law, when it was enacted -- and I'm quoting -- the first priority and concern of all in the coal or other mining industry must be the health and safety of its most precious resource, and that's the miners.
		I see no concern for the health and safety of the most precious resource in these proposed regulations.  For years, we have been working to clean up the mine atmosphere.  MSHA inspectors for the most part have forced operators to a 2 milligram standard.  As flaws as the current dust regulations might be, it is a system that can be enforced much more easily than what you have proposed.
		There can be no enforcement if no one can understand the regulations.  Having had the opportunity to listen to the first round of comments, it is clear to me that there is nothing in this document which will guarantee or ensure better health conditions in this nation's coal mines.
		The director of health and safety for UMWA, Joe Maien, stated at the first meeting that this committee did not take under consideration the recommendations of the advisory committee, nor NIOSH, nor the comments of coal miners during the 2000 comment period, nor even industry.  Well, what they were telling you is this.  We want less dust, more monitoring, and continuous monitors.  And it's not complicated.
		We all see a problem in the industry.  At the current dust levels of 2 milligrams, we still have coal miners contracting Black Lung.  Your approach in this document would be less sampling and more dust, up to -- and according to Mr. Thaxton at Tuesday's hearings -- an 8 milligram.  And another cornerstone of these proposals would be to have people wear PAPRs, which are powered air purifying respirators.
		There seems to be a big controversy over single sampling instead of the current averaging of samples.  The view of this committee seems to be that this single sample would give us a better view of the true nature of the dust problem.  What has changed to make you believe that this one sample would tell you the truth?  I can tell you this, that on the day of taking this sample, all dust control devices would be in place and would no way show you the true nature of mining coal on a day-to-day basis.  Also, how would these regulations address the problems of dust in our out-by areas such as our beltlines?
		With the increased tonnage being mined on today's longwalls, these out-by areas must be monitored, and the dust levels controlled.  You want to use the PPARs for compliance.  How many miners have to sit before you and testify that these do not work and do not aid and oftentimes hinder their health and safety before you hear them?  I know it has been several years we have heard the same thing at these meetings.  They don't work.  The space helmets do not work.  UMWA and NIOSH has spearheaded the continuous monitoring technology.  It was reported in Washington, PA, on Tuesday of this week that these devices are ready for field studies and will start this month.
		After all the time and effort, why are we now on the fast track to enact these flawed and complicated and inadequate regulations?  I don't know, but it couldn't be because 2004 is an election year.  I mean, that's just my opinion.
		I, as a coal miner that work in the mines every day, ask you as a committee to take a step back, look at what you have presented to us, and reconsider.  Go back and look up why this committee exists in the first place.  Write regulations that make sense and protect the coal miners, the most precious resource, the coal miner.
		As a coal miner who has worked the last 30 years underground, I, as many of my fellow coal miners, feel that we have no voice.  We look to MSHA as our protector, but often we feel we are ignored or assaulted with the argument that if we insist on a safe work place, then the cost to operators would force them out of business.  And I ask you this, when did MSHA become an economist for the coal operators?  How did the original of the Mine Act become an economic issue?
		On Tuesday, in Washington, PA, Mr. Nichols asked one respondent, what do we do to comply if continuous monitors shows no compliance.  In response, I asked him -- I asked you, Mr. Nichols, have we considered slowing down the shears on the longwall faces?  Have we considered cutting one direction on a longwall face?  We're not allowing people in by the shear as it's cutting coal.  We're simply making the fines where it would be to the operator's advantage to keep the dust control devices in place.
		I assure you that if you as a committee raise the bars as far as dust in the nation's mines, then the mining industry will comply.  They'll follow you.  We cannot allow more coal dust to legally exist in underground coal mines.  We must write regulations which make sense for the conditions which are encountered in today's mines.
		At the mines where I work, in 2002 -- and I'm not proud of this -- we were cited 804 times.  We have had several citations on dust problems.  Many of these citations were for return airways and beltlines.  How does this proposed regulation attempt to address these problems?  Also, our mine has had several dust ignitions in the recent past.  What would the outcome have been if legally we could mine coal at four times the dust levels?
		Having tried to look through and make sense out of these regulations, I must tell you that I defy any reasonably intelligent miner to make any sense of these proposed dust regulations.  Why do you as a committee believe that such regulations, ones which cannot be understood, ensure that the health and safety of this nation's mines would be protected?
		We in this country have seen many disasters in our recent past, and many people have lost their lives.  And the whole world joined us in mourning the loss of our citizens.  My question to you is who will mourn for our brothers and sisters who are suffering or have died from Black Lung?  The UMW has a rich history.  We've had many champions who were not afraid to stand with us in the many fights we have had in the past.  One of the most famous ones was Mother Jones.  She said one time, when asked about the death of some coal miners -- and I'm quoting -- we must pray for the dead and fight like hell for the living.
		And to answer my own question, I ask you to look at not only my face, but the faces in this room.  This is but a fraction of the people who are represented here.  Who will fight?  I'll tell you this, and please convey this sentiment to the power that be, we as coal miners will fight like hell for the living.
		That concludes my prepared statement.  What I would like to -- I would like to address this to the committee as part of the records.  I've attached on the back part of the Mine Act.
		MR. NICHOLS:  Okay.
		MR. KNISELY:  If there is a question as to what the purpose of MSHA should be or ought to be legally, then right there is why I made the statement I made.  And I'd like to present this, if I might.
		MR. NICHOLS:  Thank you.
		(Applause)
		MR. NICHOLS:  Dave Mullens.
		MR. MULLENS:  My name is David Mullens.  That's D-A-V-I-D, M-U-L-L-E-N-S.  I got 26 years experience in the mines.  I'm here with the UMWA, Local 1713.  I'm a safety committeeman.  And I'm sure everybody in here has heard the statement or the sling that has been pointed toward the miners as being dumb coal miners.  And evidently, the agency is believing this, for them to try to stick this on us.  Evidently, they think we're dumb.  But I don't think we are.
		I just can't see how something like this can be put before us to try to help the miners.  I just can't see it.  And another thing, too, is the companies are fighting the violations that the inspectors are writing to them, and beating most of them.  And how do they think that an inspector is going to write a violation on this when he can't understand, and thinking that he's going to get it stuck back on him?  I don't believe he'll enforce it.  I believe it will be overlooked.
		I think there is too many loopholes in it on the company's part, and formulas to figure up.  And I don't even seen why you would need a formula to figure up how much dust a miner is in.  Two is two, eight is eight, no matter whether you're in coal or not.  If you're in two, you're in two.  If you're in eight, you're in eight.  And why would you have a formula to try to figure that out?
		I can't see how anybody would try to put the miners back to the '60s as far as healthwise.  And I can't see how anybody could put this on the miners and thinking it's safety for them.  Only two things that I can figure out.  It's either people don't know mining, or either it's politics.  And evidently, these people that come up with this has never had family members to suffer with Black Lung.  I have.  I've seen it.
		And the question asked earlier about the airstream helmets, why does miners where them if they don't like.  They're in compliance or they're working.  It's about like going outside with an umbrella with a hole in the top of it.  It blocks a little bit, but you're still going to get a little bit wet.  You're still going to get a little bit Black Lung.
		I think the best thing that has happened is the PDM-1.  I mean, it's the only thing we've got right now of fighting force, and we need it.  And we need your help to try to help us with this and try to protect the miners from Black Lung.  And that's basically about all I've got.
		MR. NICHOLS:  Thank you very much.
		MR. MULLENS:  And also, the trust that people has for the agency I think is on the line on you all's part, and you really need to be looking at that.
		MR. NICHOLS:  Okay.  Thanks.
		MR. MULLENS:  Thank you.
		(Applause)
		MR. NICHOLS:  Dave Dearman.
		MR. DEARMAN:  I appreciate you gentlemen sitting here listening to us today.  My name is David Dearman.  That's D-A-V-I-D, D-E-A-R-M-A-N, a miner from Island Creek, VP No. 8, Virginia.  I'd just like to say that I don't have anything prepared for this.  I just want to speak from my heart and take just a few minutes.  But, gentlemen, I'm opposed to this.  And I've been in the mines for 30 years.  I've been in and around longwall, seen these helmets, laid back on the ribs and back in the toolboxes and not used.  And it seems they didn't use them, and I know they're not going to use them unless they're made to use them.  And I know the company is not going to make them use them unless you all are around.
		So I don't think the system is going to work any way, form, or fashion as far as using any kind of a helmet.  And I'd like for you all to think deep and hard of what MSHA is.  It's supposed to be a mine, safety, and health administration, made up for the benefits of the working miners, whether it be union or non-union.  And I'd like for you to just take pride in that because without you all, we know where we would stand with the companies, and we depend on you all for our health and our safety.  And I'm depending on you all to reconsider this, and we can come up with something better.
		I don't know what the answer is to it.  But I can say for myself, I've been around a lot of especially the older men walking on the canes and carrying their canisters with them of oxygen.  I've seen it firsthand, and thank God that I'm not in that shape myself.
		With that, I'll end my statement.
		MR. NICHOLS:  Thank you very much.
		(Applause)
		MR. NICHOLS:  Roger Horton.
		MR. HORTON:  My name is Roger Horton.  That's H-O-R-T-O-N.  I'm a mine worker's representative here in District 17, and glad to have the opportunity to be here.  I wish it was under a more pleasant circumstances.  But be it as it may, we'll go ahead anyway.
		I started my mining career in 1974, and it was a very low coal scene, Rum Creek in Logan, West Virginia.  It was the Winifreed Mine, metallurgical coal.  And about that time, the agency, which you now represent, was in its fledgling years, and they were experimenting with different types of water supplies and different areas, different ways to eliminate dust and to cut it down.  And my father was part of that team who -- I call them a team -- who tried to implement all these various dust control measures.  It was a conventional mining section when I began and later went to a continuous mining section.
		Then there was occasions they had numbers of people employing many different methods trying to control the dust.  Well, they worked very, very hard to do that, and were successful to a very much good degree.  And they understood the dust was a problem, not only from an explosive nature, but from a health and safety nature.  They understood it then.  And we understand that now.
		You know, the continuous mining device that has been developed is a God-send.  It really is.  We no longer have to argue about the amounts of dust that we're in.  It's going to lessen the work that MSHA has to do, and it will lessen the worries of not only the miner, but the families themselves.  They will not have to worry about their husbands and wives if they work there inhaling the deadly dust.  You know, it's going to eliminate it.  And it's something that we wanted to do since the implementation of the act, is eliminate the exposure to the harmful effects of rock dust and coal dust.  And we're at the threshold now of being able to comply with that.  And they will do that.  And then all of a sudden, we have this rule that says you're going to do otherwise.
		Well, I don't think that we should do it.  And the reason I don't think that we should is because the rule itself is -- it's a violation of the act.  It really is.  You know, you've heard many people today testify that the reason for the act itself is to protect the most precious resource, which is the miner.  And in fact, it is.  No one can debate that.  No one should even attempt to do so nor even try to do so in a manner that is not consistent with good sound policy.
		It's almost as if someone is trying to weasel out of citing violations, you know.  It just doesn't make sense to me.  We have the technology to eliminate this.  Let's please do it.  Let's please do it.
		Now I've been very fortunate in having to have worked in a union mine for nearly most of my mining career.  And if you're a non-union miner, you do not have the same tools and the same leverage that we have because of the mine workers.  You know, we're not afraid to stand up and implement the rights under the act.  Those who are in the non-union sectors, they are scared to death.  They would not do so.  They would not.  They depend totally upon you.  And without your help, they're going to die a horrible death.
		So I implore you to please take this rule back.  You have a file for it -- I'm sure it's called file 13 -- and place it there, and leave it there.
		And I know it has been a long day, gentlemen, and I thank you for the opportunity again, and I hope you'll reconsider.  Thank you.
		MR. NICHOLS:  Thank you.
		(Applause)
		MR. NICHOLS:  James Tiller.
		MR. TILLER:  My name is James Tiller.  I'm representative of 2888.
		MR. NICHOLS:  I don't think they can -- can you hear?
		MR. TILLER:  James Tiller.
		MR. NICHOLS:  You'll have to get a little closer, James.
		MR. TILLER:  James Tiller, representative of 2888.  I don't have much to say, but I have been a coal miner for 28 years.  Right now, in my position, I'm a supply motorman, and we breathe a lot of dust, sand dust, rock dust, coal dust, diesel fumes.  And we have been on to several federal people trying to help us, and they say they don't have no plan for us.  And I believe we're going to hear -- it would be a real help to us in monitoring where we go.  You know, we're catching it all the time, in and out.  And whenever they do sample the company, you know, we don't do no spline, and that's where they get their sampling for us.  And in the eight years I've been on that supply, they have never run a sample on us.
		That's all I have.
		MR. NICHOLS:  Okay.  Thank you.
		(Applause)
		MR. NICHOLS:  Go ahead.
		MR. COHEN:  Hi.  My name is Robert Cohen, C-O-H-E-N.  And I want to thank you very much for the opportunity to come and speak to you today.  Just a little bit about who I am.  I'm the medical director of the Black Lung Clinic's program at Cook County Hospital.  I also serve as the medical director for the National Coalition of Black Lung and Respiratory Disease Clinics, which is the coalition of Black Lung clinics that are funded by Health and Human Services.  So I act as their advisor and also help them with treatment, diagnostic guidelines, and so forth.
		I'm a pulmonary specialist, board certified in pulmonary medicine and critical care, and I'm also appointed to the division of occupational medicine at Cook County Hospital, as well as in the Department of Environmental Occupational Health Sciences at the University of Illinois' School of Public Health.  So I work with them quite a bit.  And I've been working with coal miners since about 1988, working with the clinics since the early '90s.
		I just wanted to speak a little bit about the medicine and epidemiology of Black Lung.  I know that -- which is what these whole dust rules are designed to prevent.  And then some of my impressions -- I'm not an industrial hygienist, but I know a fair amount about industrial hygiene from my work with my industrial hygiene colleagues.  And just from the point of view of those that work in the clinics that take care of these miners, what some of our concerns are.
		The first thing that we're concerned about is that -- or that we are concerned about is that we're not here today talking about implementing the REL that NIOSH recommended in 1996.  You know, it seemed that we all were very, very interested in reading the criteria document that NIOSH publish in '96 -- I guess dated '95, but published in '96 -- which was a tremendous summary of the world literature on the medical effects or health effects of coal mine dust, and which summarized not only the U.S. literature, but worldwide literature on those effects.
		And based on that review, we learned several things.  One is that pneumoconiosis, in terms of radiologic disease, scarring in the lung, simple pneumoconiosis, and to a smaller degree complicated pneumoconiosis is still occurring at these 2 milligram cubed standard.
		The other thing that we learned is that there is a very significant problem with lung function impairment at the current levels of 2 milligrams per meter cubed.  It's not just the scarring in the lungs that we are all taught classically in medical school we should be concerned about with coal mine dust exposure.  But it's the development of chronic obstructive pulmonary disease, emphysema, which were very clearly shown, at least in NIOSH's summary, certainly in this five or eight years since then, have been proven over and over again in other epidemiologic studies in the U.S. and worldwide that coal mine dust does result in emphysema and chronic obstructive lung disease and lung function impairment.
		And I think the best data that NIOSH summarized comes from articles by Mike Atfield and colleagues from the national study of coal workers' pneumoconiosis.  And their data on past-1970 coal miners shows that a year of underground coal mining for a miner who has only worked after 1970 is equivalent to about a half a pack year of smoking.  So smoking a half a pack of cigarettes per day is about equivalent to an eight-hour shift underground, mining under post-1970 dust controls of 2 milligrams per meter cubed.
		So recommending that our miners smoke half a pack a day of cigarettes or allowing that wasn't acceptable.  And I think that that was a huge part of why NIOSH took the step of proposing a recommended exposure limit of 1 milligram per meter cubed.  And so when I teach my medical students, they say, well, that's great.  REL of 1 milligram, that's what it should be.  Then I have to explain the difference between what is recommended by the scientific and research organizations of the U.S. government and then what is actually put into regulations by the regulatory agencies, which in this case is MSHA for non-mining OSHA.
		But so I was hoping that at some point I would be sitting at hearing saying this is wonderful that we're implementing the 1 milligram per meter cubed, which we know -- or at least from all the world literature -- is what we should be doing.
		The other thing I think Bob Thaxton, in his original presentation this morning, showed the data that NIOSH published in the most recent MMWR on radiologic pneumoconiosis, which I just wanted to comment on a couple of things from that presentation or that article, and that's that there is a very clear plateau for miners with less than 20 years of mining tenure in their rates of pneumoconiosis.  It's not going down any further for the younger miners.  The rates were dropping for people with higher tenure.  And Bob pointed that out when he showed us that it was at 2.9 and 2.8 percent, which for all practical purposes is the same number.
		So there has been no decline at all since 1995 in radiologic pneumoconiosis.  And I think it's important to point out that coal workers' surveillance -- chest X-ray surveillance program and the miner's choice program, which I don't think is existent anymore -- are still only measuring the tip of the iceberg in terms of what were termed as contract miners or miners that are working for contractors -- only 0.1 percent of those miners participated in that chest X-ray study.
		So we really have no idea what is going on among those miners, who tend to be, as I understand it, more likely to be working in small mines, and also more likely to be non-union mines, and therefore I think less likely to be as well controlled in terms of their exposures to coal mine dust.  The data they did have on those miners showed a rate of PMF which was five times higher than those of noncontract miners.
		Also. the study showed that for small mines, the rates of pneumoconiosis were higher than for larger employers.  And we have lots and lots of small mines that are opening up in the country, which is of concern because I think that there tend to be less stringent regulations or attention to regulation, and therefore more disease.  Those mines tend to be sicker mines, I think, ecologically, and therefore should be of great concern in terms of the development of disease.
		So I think that this article should give us pause.  It was just published three weeks ago.  And let us understand that we're certainly under the current program seeing disease, and we're seeing disease -- that's just radiologic disease.  But we're also not measuring lung function problems anymore.  That was part of a national study of coal workers' pneumoconiosis, which is not really ongoing to a large extent.  And in NIOSH's document, they recommended that medical surveillance for miners includes spirometry, which that hasn't been implemented yet either as a regular surveillance technique.
		So I would just say that we're really operating largely in the dark in terms of how much disease is really out there for lung function impairment.  And in terms of chest X-ray available disease, we see the tip of the iceberg, I think, with some of the surveillance programs that are currently in place.  But we're still, I think, somewhat lacking in what is really going on.
		So I'm very, very concerned that we're not implementing 1 milligram per meter cubed.  And I guess I would be laughed out of the room if I said that we should modify, go back to the drawing board when we're rewriting this rule and put in 1 milligram.  But I would recommend that.  I think that when NIOSH drew up its document, it was a very, very persuasive document.  It still is persuasive.  And there is nothing that has been written in the medical literature since 1995 -- and I've reviewed it pretty carefully.  I do searches on the health effects of coal mine dust frequently.  There is nothing that has said that the 2 milligram cubed is healthy since that time.
		So I think that what has been recommended by NIOSH in 1995 still stands, that that is what we should be talking about now, and not 2 milligrams per meter cubed and sustaining that.  And then if we're going to be talking about 2 milligrams, I just wanted to mention a few of the details that I understand from the proposed regulations.  And I must admit, I'm not thoroughly familiar with every page of that document, but I saw the presentations and went through some of the summaries.
		One question one would have is if we're -- in the single sample strategy, you are recommending that we take into account measurement error, which makes sense.  Certainly, the devices that we're using to measure if it was a single sample does give us a range of error.  So you're recommending looking at the 95 percent confidence intervals for those measurements.
		But then when you look at a confidence interval, you have a choice of accepting the upper limit of normal, where you would issue a citation, or the lower -- the upper limit of the range of error or the lower limit of the range of error.  And I noticed in the proposed regulations that MSHA is recommending using the upper limit of error before issuing a citation, which is -- I'm just wondering why that is done when NIOSH already recommended 1 milligram as being a safer level.  I forget what the lower level of the 95 percent confidence interval -- maybe someone can tell me.  I know 2.33 was the upper limit.  The lower was 1.78 or something.  I can't remember.  1.71.
		But it seems to me that if we're trying to err on the side of protecting the health and safety of the miners and preventing disease, which is I think why we're all here, that one would err on the side of exposing the miners to less dust.  So I think that that's something that from the point of view of a practitioner in the clinics that we would recommend that if we're going to understand that there is measurement error, and we know that, and the fewer samples you take, the more error there is, so the wider the 95 percent confidence interval will be, that we choose the lower -- you know, we choose the end that would favor protecting the health and safety of the miners as opposed to the end which might result in him being exposed to -- him or her being exposed to higher levels.
		I think that we know from medicine -- we have a saying in medicine that was sent by -- I guess we say this in medical school in residency by physicians who didn't want to work very hard.  We would say, if you don't take a temperature, you won't find a fever.  You know, we didn't want to do blood cultures and urinalysis and do all the work of chest X-rays and workups, so we just would not want them to take temperatures and find out that our patients were sick.  And I'm concerned that cutting down the number of samples that we do -- you know, basically monitoring the health of our patient, taking the temperature of our coal mines -- if we don't take enough temperatures, we won't find the fevers.  We won't find the disease or the sicker mines, and we won't be able to implement treatment, which means we won't have to work hard because we're not going to be doing the citations, doing the repeat inspections.
		But from my point of view, I think that the more temperatures we take, the more samples that we take, the better that we're going to be able to protect the health and safety of our miners.  We'll know what are the conditions in those mines.  And that's taking into account -- I'm not very, very familiar with the history of fraud and other issues in sampling.  But I know that it existed.  I don't think it was fabrication.  I never went to criminal trials.  But there was stuff that was going on there.
		So clearly, the more government regulatory agencies are responsible for taking those measurements and doing them frequently, and the more data that we have, the safer and healthier the environment can be made for our miners.  So I think that I applaud MSHA's not averaging out the low samples with the high ones, which I think is a good thing.  But then after we've done that -- and then issuing a citation on the overexposures makes sense.  But then reducing the number of samples so that we only do it six times a year or three times a year -- it's a little confusing to me exactly how many times a year it will be done.  But it's clearly less than what is happening now with the operator plus MSHA samples combined, that we may be missing some fevers.  We may be missing some bad conditions in the mines that we shouldn't be missing.
		So I really think that not averaging up, you know, the bad stuff to make it look better makes sense.  But I think more sampling makes even more sense, which means that the continuous dust sampling which is a revolutionary device and a wonderful device -- I remember talking to Dr. Volkwein from the Pittsburgh laboratories when he was explaining the engineering of that device, and we were very interested in trying it in Ukraine and other mining atmospheres where there is very, very high dust levels.  And now I see the prototype of the device here, which looks pretty complete.  It's just wonderful.
		That kind of device and the opportunities that that provides for continuous data, it just seems on the verge of having a new CT scanner, that we would say that we're not going to mandate that we use the CT scanner.  We have wonderful technology to treat something, but we're not going to mandate that it be used.
		I applaud that MSHA's rules are allowing for the possibility for it to be used.  That makes -- you know, I think that's wonderful.  But I think that unless we mandate it, I'm very, very concerned that it won't be used very much, if at all.  And at that type of device, as long as it's calibrated correctly -- and we have the standard cyclone pumps and standard MSHA technology to confirm what we're seeing with those continuous samplers -- is exactly what we need.  We need to get that out there, and it needs to be much stronger in the regulations than as just an option.
		I don't think that if we just take it as an option that that option will necessarily be taken by many of the mining operations, and certainly not the very small mining operations where we see from the medical data and the epidemiology that those are the sicker mines.  Those mines are the mines where we're getting the cases of pneumoconiosis.  And certainly, that tracks the cases of obstructive lung disease and lung function impairment that we see.
		So I think that the use of the continuous dust monitor, which is tremendous -- and I really think that the work that NIOSH has done in conjunction with your contractors and companies that you're working with in Pittsburgh to develop that device is fantastic.  And I really -- it sounds like we're right there.  We're right there within just a few months of being able to actually use that device.  So certainly, these rules should -- I believe should consider some mandatory role for that technology.
		Finally, I just want to make a few comments about the use of personal protective equipment.  When I trained in occupational medicine and pulmonary medicine, we're always taught the classic hierarchy of controls in terms of controlling any occupational exposure, and the first being engineering controls.  And the very, very last thing, only out of desperation, and I mean true desperation, do we consider relying on personal protective equipment to maintain the health and safety of our miners.
		And it just seems to me -- and again, I'm not a mining engineer.  But I think that we have the technology.  And I know that in other countries, Australia, New Zealand, there are mines where you can see from one end of a longwall, you know, 500 feet or 800 feet down to the other end and see perfectly clearly, that you can engineer the dust out of the mines to levels that are healthy, certainly to levels like the 2 milligram per meter cubed level.
		I think that that engineering work can be done.  We have an incredible technological capacity in our country to produce amazing things.  And I think that relying on miners to wear personal protective equipment to protect their health and safety under the conditions of heavy labor in those mines is very, very troubling.  I think that as an adjunct, that's fine.  But to change the regulations to allow for higher exposures and rely on personal protective equipment to achieve our minimum thresholds of health and safety is really a dangerous door that we're opening.  And I think that that has to be very, very seriously reconsidered.  And I think that if there is a particular mine that is so dusty and so dirty that there is no way that it can be engineered, then perhaps that particular mining unit doesn't need to be operating.
		But otherwise, I think that this should be able to be engineered, except for very, very exceptional circumstances.  I'm afraid that we're opening a Pandora's box by allowing the PPE to replace a reasonable engineering control or engineering controls.  And I think that that basically completes my remarks.  Thank you.
		MR. NICHOLS:  Thank you.
		(Applause)
		MR. NICHOLS:  Ronald Sharp.
		MR. SHARP:  I'm Ronald Sharp, S-H-A-R-P.  I represent Local 7170.  I don't know that much about this new device.  I've never seen one up until today.  But my problem is on our dust sampling at our mine, the company sends bosses to make sure that no man is allowed to get near dust when he is wearing a sampler.  He'll empty his dust box, do whatever is necessary to make sure that man stays out-by.
		I've asked MSHA about it when they do their inspections, and nobody can give me an answer to it.  I'd just like to have an answer.  But I believe that to be declared illegal, the way they're doing it.  Now me, I have Black Lung.  You sent me a card to carry if I want to present it.  But who wants to go down and shovel belt dust?  That's even worse than face dust.
		So I would rather see them get the observation down lower than what we have now, not higher.  And I thank you.
		MR. NICHOLS:  Thank you.
		(Applause)
		MR. NICHOLS:  I may have marked Carl Morris off accidentally here.  Has Carl been up here?  He spoke?  Okay.  Bobby Mullins.
		MR. MULLINS:  Thank you, Mr. Chairman.  My name is Bobby Mullins, B-O-B-B-Y, M-U-L-L-I-N-S.  I'm the chairman of the safety committee for the UMW at the Rock Lake prep plant in Boone County for Peabody Coal.
		The proposal that you put forth today seems to rely heavily on company engineering controls.  I'd like to talk a little bit about what we have done at Rock Lake.  We do have a dust collect engineering control system at our plant.  But like most places, we work with a minimum crew.  A lot of times, when a man retires, he is not replaced.  We have people off on comp, so we're always short-handed.  And when it comes to maintenance, it seems like our dust collect is always on the bottom of the list, and it is always a constant battle, and always the burden is on us, the union and the safety committee, to make sure that the dust collect is working the way it was designed to do.  And we have failed at that.  We haven't been able to keep it up that way.
		The managers, the company officials who are in their offices outside of the contaminated atmosphere, make the argument that the dust is at an acceptable level.  And the reason they make that argument is that on all of our inspections we have been -- all but one exception -- we have been in compliance with the MSHA inspections on dust, the dust samples that they've taken.
		But I've worked in a temple all of my working life in the coal mines.  And recently, I was diagnosed that I have between 5 and 10 percent Black Lung.  Now certainly, in my own life, I've noticed a reduction in breathing ability.  I wear a dust mask almost all the time at work, one of the dust flow single filter types.  But I can't wear it all the time.  We work in an uncomfortable atmosphere.  The work is uncomfortable anyway.  And to put those things and to have to do either maintenance or have to do any communication with coworkers is almost impossible.  And when it gets hot, it's almost impossible to keep it on all the time.  I wear it as much as I can.
		So here I've been diagnosed with Black Lung, wearing the dust mask, and yet hearing that companies can engineer, that they should be given the responsibility to engineer the dust at our work place so that I won't get Black Lung.
		If we had tighter restrictions on the amount of dust allowed in the air that we breath, like the NIOSH recommendation of 1 percent, I think it would be a lot easier to get the dust control levels down.  It would be a lot more effective.  We don't need a restriction that allows more dust in the air.  We need tighter controls and more frequent dust samples so that we as miners and the MSHA inspectors that come up there can have a little bit of teeth in what they do to reduce the dust level in the working place.
		And I know it's underground.  They have -- like on the working face, they have higher levels.  I work on a temple, so I know that they have a higher level of dust they have to work in than what we do.  This would reduce opportunities to ignore, manipulate -- like reducing -- right now, when an inspector comes in to do a dust sample, we can reduce the amount of coal we put on belts, which is going to reduce the amount of dust in the air.  We can run a different type coal.  Some coals are a little more moist than others.  We always run our moister coal whenever the inspectors are around.  And they choose who is sampled.  They can choose a less dusty part of the plant because they don't sample everybody.  They just take a slice of the work force -- or otherwise escape the hassle of handling dust in the work place.
		At the mandated congressional level of 2 percent or even more, like the 1 percent recommended by NIOSH, we still have Black Lung.  We still have Black Lung.  I know it in my own life.  It still shows up.  But if we're serious about miners' health, we need to lower those levels that we're looking at.  And one way that I've thought about it in our work place that would really work great is that continuous dust monitoring.  That would be a great thing in our work place.  But it needs to be -- it would have to be forced upon the work place.  And the miners would have to have a lot of input because the companies know who and who does not have to work in this dust.
		That's about all I have to say about this.  But one thing I would like to add is being a surface miner on a prep plant, one thing that we have to deal with that they don't underground is magnetite.  When you consider your regulations for surface, I'd like for you to remember that, that you can look at the magnetite as well because from what I understand, it can be even harsher than the coal dust on breathing.  Thank you.
		MR. NICHOLS:  Thank you.
		(Applause)
		MR. NICHOLS:  Frank Wyda?  Oh.  Okay, John.  Come on up.
		MR. STEWART:  Yeah.  My name is John Stewart, J-O-H-N, S-T-E-W-A-R-T.  I've been a coal miner for 32 years, 29 of them being underground.  In that 32 years, I've seen a lot of changes.  Most of them have been improvements of conditions for the miners.  I'm also the National Black Lung Association president.  And on a daily basis, I deal with widows who have lost their husbands due to Black Lung, and members who are slowly dying a painful death of Black Lung.
		From 1968 to 1992, there was 59,000 deaths from Black Lung.  In the last 10 years, there has been 18,240 deaths from Black Lung disease.  That's reported deaths.  It could possibly be more.  That's a total of 77,245 Black Lung deaths.  These are people's lives, their families, that we're talking about.  MSHA is trying to increase the death limit, is what we see, possibly four times higher than what it is now.  Estimating that in the next 10 years, that would be about 72,980 more people that will die of Black Lung compared to the preceding 10 years, being four times higher, which the coal companies deny Black Lung even exists.  But yet, every six hours, we have a member die of Black Lung.
		Black Lung disease was discovered in 1831.  Now it's 172 years later, and our members are still dying of Black Lung.  The emotional impact on the miners and his family who is dying of Black Lung is beyond measure.  Because of the coal company's money and the politicians they buy, the members can't even get the benefits that they need to treat Black Lung before they die of it.
		Over 160 individuals or companies has been convicted or pled guilty to criminal charges of respirable dust role.  That probably won't change much.  MSHA stands for Mine Health and Safety Administration.  I say that because everybody should know that the health and safety of the miners is your total goal, should be.  We all would hope that MSHA would set standards to assure that working conditions are free of respirable dust concentrations and that no miner will have to suffer impairments of health by Black Lung, and to lower the dust and increase the samplings, not to ignore the needs of the miner, increase the dust, and decrease the samplings.
		For MSHA to raise the level of coal dust four times higher than it is now and reduce the sampling of coal dust from 34 shifts down to as level as three shifts a year, and to allow coal companies to put our members wearing airstreams helmets that will not protect our members from the dust particles that causes Black Lung, that also will fog up and will affect their vision for safety of what is happening around them.  And to expect the coal companies to verify their own dust plan, that's like asking a bank robber to hold your billfold so you won't lose it.
		This is all contrary to the 1969 Coal Act.  It's reversing our current protection back 40-plus years.  The new rules don't even require citing the coal companies until the dust level gets way above the exceeded amount.  MSHA knows because of all the studies that has been done that 2.0 milligrams of respirable dust per cubic meter of air is already causing our members to die of Black Lung disease.
		But because of taking care of the coal companies, I feel that we're going to kill thousands of more members of Black Lung.  Our members are already afflicted with disease and agony and death, while the coal companies make big profits, and the government officials and the politicians sit idle in their office.  We are sending a message to MSHA, the National Black Lung Association, that we are fighting for our members' freedom of breathe.  Thousands of our members who spend decades in the mines to fuel the energy of this great country, they should not have to die a slow death of Black Lung disease because MSHA refuses to decrease the coal dust in the mines.
		These rules must be withdrawn and rewritten.  Thank you.
		MR. NICHOLS:  Thank you.
		(Applause)
		MR. NICHOLS:  Okay.  Do you think Wyda is gone?  Okay.
		MR. RYAN:  My name is Rick Ryan, R-I-C-K, R-Y-A-N.  And I appreciate you all being here today to listen to us and giving me this opportunity to talk.  I don't have a whole lot to say, but I want to start out and tell you a little bit of history.  I do work in a prep plant.  I'm 45 years old.  I've got 26 years mining experience.  I work for Hobat Mining.  I'm a recording secretary, mine and safety committee, for Local Union 2286 of United Mine Workers.
		We have 270 strip miners.  We've got 45 that work in and around the prep plant, and a deep mine that supplies coal to the prep plant with 40 employees, for a total of 355 miners.  And this deep mine is in the process of putting on another section, so they're looking to go up to about 80 employees total.
		So we represent a wide variety of different type miners in different type situations.  On the average, we usually load clean coal, anywhere from 4-1/2 million to 5 million tons a year, into the railroad car.  We have 10 miles of overland belt.  We have got 2-1/2 miles of refuse belt.  It's a large prep plant.  We have nine crushers, 22 feeders.  We have 97 transfer points, and we have seven large stockpiles.  And with running as much coal as we do in all these places, we all know what happens when you transport and move coal.  They all create coal dust that we have to breath and we have to put up with.
		Back when it was proven that the coal companies were being illegal with their dust sampling, we thought we've got to go to MSHA and let MSHA do it.  We can't trust the coal companies, so surely we can trust MSHA with more or less our lives because that's what it boils down to.
		But the people that work on our job -- and the way that we see MSHA leaning more toward the coal companies now when we thought you were going to be our saviors -- we see you nothing -- no more than what the coal companies was.  So we can't trust you now.  You know, we have no other place to turn but you guys.  We need your help.  When you come on a job now, and one of your inspectors writes a citation, the company almost automatically -- he is going to conference that.
		We go to that conference, and we back your inspectors 100 percent because we know we need him.  But still, it seems like when you come out with a deal like this, you lean more to their side than you do us.  And I don't know.  I might be wrong.  But I was always under the impression that when MSHA come into being, that you came into existence to protect the coal miner, not to protect the coal company.
		I don't know.  Maybe I'm -- somebody can give me some better history on it if I'm thinking wrong.  But I thought you all were to enforce the laws of the act that Congress initiated and put down into a law for you to make sure that the coal companies live by.
		Well, why should they have to live by these if they're going to change or be changed to make it easier for them to get by without having to live up to it.  All we want is a little backbone in the laws that we have.  We don't want you to raise the 2 milligram standard.  If it goes anywhere, we want to see it come down because I have friends, good friends, that's got this disease.  I have young friends that's got this disease.  And I know people that has died from it, and it's not easy to watch.
		We need something done.  We need the dust monitoring system that they've come out with.  It's so close to being perfected to put into the mines.  Why did this have to come down now?  Why couldn't it have been waited on just a little longer to give this a chance to work?  It seems like it's like everything else.  We've got to get something shoved down our throats that's not going to help us.  All it's going to do is hurt us.
		Like I say, the guys that I work -- well, we've got 355 people out here.  And we're a union mine, and we can stand up for ourselves.  And I feel real sorry for the non-union guys out there that can't even do that.  And without you all, we're going to hurt.  But without you all, I don't know how they're going to exist because they have no say-so.  They can't stand up and say, no, I'm not going to work in that dusty area today because if they do, they're going to be looking for a job, period.
		Like I say, we don't want you to raise the 2 percent milligram.  We'd rather see it go to 1, like NIOSH recommended, which we feel that would wipe it out quicker than any other thing that any agency could do.  When the federal -- the Dust Advisory Committee come around -- they came and toured our job.  You know, Joe Maien was with them.  And I said, Joe, are you going to go down and tour the plant, the prep plant?  He said, yeah, we're going to try our best to us.  I said, well, you know they don't want you to go down there.  He said, well, we're going to go anyhow.  I said, well -- on the way down the hill to this plant, I said, don't be surprised when we get there if this plant is not shut down.  Joe is here today.  When we got down to the plant, it just so happened on our way from point A to point B, they had something that happened.  They had to shut the plant down.  They didn't want to see all the dust floating in the air.  They had an excuse to shut it down.
		That's the same thing that went on with our dust sampling.  It was a running joke where I worked when they'd do a dust sample.  We had river duty.  We got to go over and lounge on a river bank all day and watch a pump run.  We wasn't over where the dust was at.
		We don't want it to go back to those things.  We want MSHA to take care of the dust samples, continual sampling, lower the standards and give us a chance.  You know, when MSHA was getting ready to be cut -- they were slashing MSHA, going to try to do away with it -- we were there.  We were there to help you all so you all can exist.  Well, we're here now needing MSHA to help us so we can exist, so that we can live.
		And that's what this is.  Without these dust regs, when we go to work at a coal mine, we just well sign our death warrant because believe me, these coal companies are not going to do one thing more than they're made to do.  And that's about all I have to say.  I appreciate it.
		MR. NICHOLS:  Okay.  Thanks.
		(Applause)
		MR. SERIAN:  Ralph Serian, S-E-R-I-A-N, Local 1501, Consol Mine 95.  I had a lot to say.  I don't really have a lot to say now.  I noticed one thing in these hearings today, that a lot of people have said that they were thankful, you know, for these hearings.  If you buy my lunch, I'll be thankful.  But this happens to be my right, to speak my opinion on this.
		And I guess I'm charged with trying to convince you all what a bad law it is.  But hell, you guys know this is a bad law.  I don't have to convince you.  You know the facts and figures.  I mean, they've been out there for years.  And you don't have to be a coal miner to know it's a bad law.  My wife doesn't know the first goddamned thing about coal mining.  So I'll tell her -- she's a school teacher.  She thinks it's ludicrous.  And the other thing she said is that they either think you're stupid or they don't respect you.  And I don't think you think we're stupid.  But I don't think you all respect us, you know, what we're saying because all of the studies, all the everything supports that this is bad.  And the people who crafted this and who support this, they don't respect the coal miners.  They don't respect the laws that are on the books to stop this from happening.  And they don't respect anything about what we do.
		They don't respect the promise made to us to lower the dust, the continuous monitoring.  And all that we want is the promise kept that was made to us, the continuous monitor, and lower the dust standards.  And that's all I have to say.
		(Applause)
		MR. NICHOLS:  Max Kennedy.
		MR. KENNEDY:  My name is Max Kennedy, M-A-X, K-E-N-N-E-D-Y.  I'm a third-generation coal miner from Virginia.  I'm also an international health and safety rep for the United Mine Workers of America.  Gentlemen, it has been a trying two years for the United Mine Workers and the miners across the eastern part of the United States.  It started out with 9/11.  Then on the 23rd of that month, we lost 13 miners in Alabama with a coal dust explosion, a secondary coal dust explosion occurring.
		Then from there, we had a rash of mine fires occurring in northern West Virginia.  And as recent as three weeks ago, we had a belt conveyor fire at the Consul VP-8 mine, of which miners you heard testimony here today.
		During this time, the agency has pushed through proposed regulations on ventilating active working sections with conveyor belt intake air.  In the midst of this, we've had a rash of fires on these belt entries and the velocities on these entries.  And you can go back and you can check the records of coal float dust cited by 75400 on these entries.  And my point is what the miners are saying today is true.  If you allow PPE in above the 2 milligram standard, you will have float dust accumulation continuing in these coal mines, and you will have visibility problems because as far as feasible -- the definition of feasible can mean anything to anyone that's operating a coal mine.
		Unless you mandate what is engineering controls, then that definition is wide open.  And as far as the preamble to your proposed reg, an ALJ -- it doesn't mean anything to an ALJ.  It doesn't mean anything -- the review commission may point to it.  But if it's not set in writing and clear, it's not enforceable.  And you know that.
		This reg is so complicated, I don't understand it.  The testimony that I gave you in Prestonsburg, well, that's the very same issue.  I had questions that you couldn't answer.  And I think the gentleman on the end referred to the comment that I made was a valid comment, and it needed to be addressed.  I don't see it addressed in this proposed reg.
		So apparently, you're not listening to the miners.  You're not listening to valid statements of what is going on in the industry as it occurs right now.  Instead of taking the time and effort of the experts on respirable dust in an advisory committee report -- and you heard the doctor a few minutes ago talk about that report as a valid report -- and not incorporate each one of those recommendations into this rulemaking is not the process, as I see it, that Congress intended as far as the 1977 Mine Act.  And you'll just have to excuse me a minute because I've seen so much death, fatalities, and people killed, that it sickens me to see this government say that it's okay.
		You know, we're hunting down two people who are guilty of war crimes.  One is in Iraq.  The other one is in Afghanistan.  And those troops that we sent over there, if they were caught and prisoners of war, they're given better treatment under the Geneva Convention than our coal miners are.  And we charge people in other countries with human rights violations for conditions that they work in or live in.  But coal miners have less than that.  They don't have a right to breath.
		We're not asking for pure, clean air.  We're just asking for what the doctor said that won't kill us.  One milligram.  Is that so much to ask?  The technology is here.  But it's too late because you're pushing this reg through.  And that's why it sickens me.  It does sicken me.  Both my grandfathers and my father died because of this disease.  And I'm tired of seeing it.  I am.  I'm tired of going seeing old man in Walmart pulling their oxygen cart.  But you say this is okay.  This will cure us, that 2 milligram, as was stated a while ago, prolonged periods of just 2 milligram is not healthy for you.
		But in the statement I gave you and the questions I asked you, what studies was done on airstream helmets at higher velocities -- when the higher velocity overcomes the fan in the airstream helmet, what protection is given?  Did you all go out and do a study on that?  Do you have the data on that?  What velocity did you set for these?  Each and every PAPR that you have in this reg, is it documented that that is the protection level?  Or where did that number come from?
		There is no reason why any coal operator at this point in time with the technology -- the spray systems that are currently utilized, if maintained -- and that's the key, maintained in these entries in the sections on the lawn laws.  If they're maintained in administrative controls as far as work areas, and time limits on those individuals in the areas of the longwall, you can bring those people in compliance.
		Now the operator will argue about that.  But the argument is not valid because today because there are lawn laws in compliance with administrative controls without airstream helmets.
		And with that, I want to submit my written statement for the final time, if you'll listen to it.  And this is the same statement I gave you in Prestonsburg.
		(Applause)
		MR. NICHOLS:  Thanks.
		MR. CIENAWSKI:  I'm Chuck Cienawski.  I was down at the other meeting in Pennsylvania the other day.  I'll spell the last name again.  C-I-E-N-A-W-S-K-I.  I worked in mines 27 years, worked underground, worked the preparation plant, worked heavy equipment.  I've done everything just about that there is to do.  I've seen everything, too.  So it's really hard to imagine MSHA is looking out for the health and safety of our country's coal miners.
		This rule, if approved, will send the coal industry back into the '30s, a time when the dust dosage was at an uncontrolled level.  We will see the dust dosage increase about or above 8 milligrams from 2 milligrams.  That's four times higher than we have seen it before.  Lowering the respirable dust limits is what we need to be doing here, not increasing them.  Increase the sampling, not decreasing the sampling.
		If the rule is allowed to pass, we will see the blood of our brothers and sisters shed again because of the more violent explosions and the return of higher levels of Black Lung injuries.  MSHA needs to work with her experts on coal dust in coal mines, the professionals, our nation's coal miners.  Who else knows any better?
		Getting to the PDM-1 is something that we need to be looking at.  It's a full-time dust monitor, and it doesn't tell a lie.  Do the right thing.  Kill the dust rule and monitor our nation's coal miners.  It's your responsibility, MSHA.  Thank you all.
		MR. NICHOLS:  Thank you.
		(Applause)
		MR. NICHOLS:  James Linville.
		MR. LINVILLE:  Hello.  My name is James Linville, L-I-N-V-I-L-L-E.  I'm a surface miner.  I work for Obit Mining near Danville, West Virginia.  I've been in the mining industry for over 25 years.  Most of that time is being a -- I worked in a preparation plant for about two years, and the rest of the time has been construction and working on the strip mine.
		I'm currently chairman of mine health and safety, and I've been involved in safety for most of my mining career.  And I've traveled with mining inspectors, accompanying them on a lot of dust sampling.  And I have a lot of knowledge and input into how that has been done.
		I'd like to propose a question for you to think about.  What has changed in the coal field?  We wanted to change a law.  Since 1969, we've had 2 percent, 2 parts per million rule that has kept the companies in line.  Now you think that's no longer necessary because it seems as though MSHA is bent on changing this law that has been in effect for so many years.
		My argument is that the need for dust sampling still exists.  It's still there.  I would like for you to think about when you drove to this meeting last night or today or whenever it was.  There were several laws that you had to obey on your way here.  One of them was the speed limit.  It was 55 miles an hour, 60 miles an hour, 65, or 70, whatever it might be.
		Most of us will travel five to eight to ten miles per hour over the speed limit because we know that we can get by with it.  The coal companies have been doing the same thing with the dust samplings.  They have been traveling a few miles over the speed limit because they know they can get buy with it.  You heard testimony today from a lot of individuals, and I've seen it myself, that when you're going to be sampled, the day that you're going to be sampled, things are not normal.
		Now we have a lot of employees on the strip job.  And when the mine inspectors come out to run dust samples, usually they have about 14 pumps.  In the interest of production, the company will arrange for two or three of those individuals not to do their normal duties, or there is something wrong with their piece of equipment that has been wrong with it for a week, but all of a sudden they decide it's time to fix it.
		Now this goes on.  That's a part of running over 55 miles per hour.  I feel that as a result of the dust sampling that has been done in the manner that it has been done that there have been a lot of miners' lives that has been preserved as a result of it.
		We all know that this is a hard economic times for a lot of corporations, and the coal industry has not been exempt from this.  And I'm sure that there has been a lot of pressure put on the politicians and on probably MSHA and the state regulators also to help ease some of the restrictions that is being placed on them and the way they see it.  I'm hoping that we don't consider someone's life less important than the economics of our country or the coal companies that are involved in the coal mining business.
		Sampling forces the coal companies to spend money on defective equipment and get it fixed because they know if they don't they're going to get a fine for it.  One thing that really bothered me on the new proposal was the fact that MSHA is thinking about eliminating the S&S.  If you were to be in our position and travel with the mine inspectors and see the concern that the company has for an S&S citation, you would understand how important this is for the miner.
		They don't want to get any S&S.  If they get a citation, they definitely don't want it to be an S&S because that carries a lot of weight with the corporate of headquarters, CEOs, or whoever.  So they'll go to great lengths to get an S&S taken off from a citation that has been issued to them.  Our company protests quite a few of their citations in an effort to try to get this done.
		As Rick Ryan, who works for the same company I do -- we work on different ends of the job.  As he has said, we accompany the mining inspectors.  So when it comes time for the company to protest a citation, we go to the conference and we uphold and try to support our mine inspectors as much as we can because we know we need them.
		I'd like to make this statement, and if you would, I'd like for you to write this down.  There must be something in the law requiring mine operators to furnish the miners with safety equipment at the operator's expense.  And you go ahead and put "shall" in there or some might strong words that they can't get around.  And I'd like to relate to you, a few weeks ago, we had an incident happen on our job where the company decided it was going to quit furnishing white paper or paper coveralls for their people doing maintenance work.
		Now these coveralls were not very expensive.  They was about $2.50 apiece.  But they had to buy several of them, and they told us they spent $26,000 on these coveralls, and they didn't have to do it because the law didn't require them to do it.  So we went through a procedure and had MSHA involved.  And in the process, it looked like we were going to get a better quality coverall than what we had, and the price went from $2.50 to $25 a pair for these coveralls that would keep carcinogenic material off of you.
		Well, as time went on, and two or three days went by, and the first thing you know MSHA backed up on their position and quoted the law as stating that the company must ensure that their employees had protective clothing.  But the law did not say that the company had to furnish it.
		Now, gentlemen, I'm telling you, these are hard economic times for these corporations.  They're going to turn a buck however they can turn it, and it don't mean giving us something that they don't have to.  The law doesn't mandate it.  Anything you write a new law for -- I read there a while ago where you was talking about your equipment.  It was going to be a requirement for the company to make sure that these miners had it.  But I didn't see in there anywhere that the company had to pay for it.  So who do you think is going to have to pay for that?
		The company says, Mr. Miner, you've got to have this article, and it's your responsibility to buy it.  It's not ours.  Now how many of these miners can afford to go out and buy an airstream helmet or one of these constant monitoring devices that you have in here?  Not very many.  We all have families to feed.  We make a pretty good buck, but it takes a lot of money to feed a family and keep everybody going.  They take a lot of taxes out on us, too.  We don't realize the money that we make after taxes.
		So anything you got to do, make sure that you put in the law "shall" or whatever language you feel you need to use to make sure that companies are paying for this new type of safety equipment you wanted implemented.
		Sure.  Dust sampling is expensive.  It costs MSHA a lot of money.  When they run dust on our job, they send two mine inspectors in.  And it costs the company a lot of money because there is two miners' reps have to go with their two mine inspectors because they're in different vehicles and going to different parts of the job.  It's very expensive.
		Do we have a moral obligation to protect our miners, to run dust pumps and make sure they are not being overexposed?  Yes, we do.  This is the right thing to do.  Yes, it is.
		We had another incident that happened on our job.  In the interest of production, the company decided they was going to start leaving their 240-ton trucks parked fully loaded.  Well, we objected to this.  And again, they pointed out to us by law that they could do it.  The law didn't say they couldn't do it.  When we talked with MSHA, the same thing.  Well, I'm sorry, but we don't have a law that covers this.
		I'm telling you, gentlemen, we're dealing with a group of people that are more concerned with profit than they are with people, with getting people hurt or injured.  It's low on their priority, even though they say they're safety minded.  Our goal, according to them, is to be the safest, most productive company in the world.  They'll tell you that, and they got the little plaques up on the wall.  But what they do does not demonstrate that.  When you start parking the truck fully loaded, and then the guy gets off from it.  Another man comes on the next shift, he has to walk around that truck and preshift it with stuff hanging over the edges of it.  This is not right.  This is not morally right.  Is it legal?  Yes, it probably is.  There is nothing in the law that says they can't do it.
		But when you guys enact any kind of law on dust or whatever it might be, think about it.  If you're going to require some type of equipment for the miner to wear, who is going to pay for it?  If you don't put it in black and white, it comes down on the miner, and the company will force him to wear it.  They'll implement a policy that says you must wear this or you must do this, and the miner has to do it.
		Now we're facing some hard times ourselves.  Our numbers are decreasing.  There is less and less corporations that are UMWA.  And from what I understand, some of them are dropping out of the BCOA.  And it may be questionable whether we'll be union in a few years or not.  So we need all the help we can get, and we definitely don't need laws that take away our rights and our benefits.
		I've had the highest regards for MSHA.  I've always regarded them as a straightforward organization, and I'd like to continue to think of them as that way, not someone trying to take our health and safety away from us.  Thank you.
		MR. NICHOLS:  Thank you.
		(Applause)
		MR. NICHOLS:  Ron Dress?  I thought you had a break earlier.  Is Ron gone?  How about Bobby Santonio?  Yeah, yeah, go ahead.  I'm just putting them on notice.
		(Whereupon, a short recess was taken.)
		MR. NICHOLS:  Go ahead.
		MR. SIEMIACZKO:  My name is Dwight Siemiaczko.  That's spelled D-W-I-G-H-T, S-I-E-M-I-A-C-Z-K-O.  I'm a safety representative for United Mine Workers Local Union 8833, Hamilton, West Virginia, and I have over 21 years underground mining experience.
		After reviewing and being briefed on this complicated MSHA proposal concerning control of respirable coal dust in underground coal mines, I find this proposal to be, number one, illegal, and number two, unethical.  This proposal is illegal because MSHA is ignoring the 2 milligram standard set forth by Congress.  What right does MSHA have to ignore coal mine safety standards set forth by Congress?  What right do you have to do that?  That's a question to the panel.
		MR. NICHOLS:  Have you read the rule?
		MR. SIEMIACZKO:  Yeah.  Well, yeah.  I read, and probably derived what everybody else has --
		MR. NICHOLS:  I don't want to get in a lot of back and forth here because we've got other people --
		MR. SIEMIACZKO:  All right.  We'll let that lay.
		MR. NICHOLS:  All right.
		MR. SIEMIACZKO:  Well, who is it at MSHA who believes that they are above the law of the land?  We'll let that one lay then.
		The fact of the matter is no one has the right to replace or displace a law without legal arbitration.  Therefore, this proposal is illegal and violates the act.  It is apparent MSHA is trying to ram this proposal through the system with total disregard to the legal system which we all live under, and is ignoring recommendations from credible groups and individuals, from labor, management, and safety organizations who state this proposal is the wrong way to control coal dust exposure levels inside coal mines.
		This proposal is unethical because it allows coal dust to accumulate in amounts greater than four times above what is not considered a safe level of 2 milligrams.  MSHA is justifying this unethical deed by stating that personal respitorial protection will also be increased to protect the coal miner.  It is odd.  Nowhere can it be found that it is permissible or even recommended to substitute personal protection for engineering controls.  It is known fact the way to manage airborne coal dust is to increase water and air flow.  And as long as there is air and as long as there is water, there will be no limitation for feasible engineering controls regarding airborne coal dust.
		Someone in MSHA has failed to realize airborne coal dust can do other things besides cause Black Lung.  It is a well-known fact that coal dust can explode and contributes to mine fires.  By allowing coal dust to be generated at or above 8 milligrams, it is going to increase coal mine dust explosion and mine fires.
		Passage of this proposal will place coal miners inside what is equivalent to fully primed cannon barrels ready to go off.  There is no doubt death due to coal mine dust explosions and mine fires will increase if this proposal is allowed to become law.
		What is so upsetting to coal miners is MSHA, of all organizations, of all people -- it is MSHA who is going to allow this to happen by creating the conditions.  Even today, under 2 milligram standards, coal mines do catch on fire and explode due to coal dust accumulation.  Just imagine what is going to happen if the coal mine operator will be allowed to increase the generation of coal dust four times greater.  Isn't it reasonable to believe that coal dust explosions and mine fires will increase four times also?
		We are very much aware coal dust explosion and mine fires can bring death.  With that being so, I am not willing to accept this proposal.  I'm not willing to go back 30, 40, 50 years ago when the life of a coal miner was considered an expendable and disposable item of doing business.  No, I will not jeopardize life or limb by accepting the proposal.  And no, I am not willing to support any proposal that will take me or my fellow worker back to the days of high coal dust exposure of yesteryear.
		I can remember the days when a 100-watt light on a shuttle car at 2 feet away was dimmer than a candle due to high dust concentrations.  I remember those days all too well, and I'm not willing to go back.  As my duty as a safety committeean, I will report my opinion of this proposal to the miners I represent as unacceptable.
		Also, as my duty as safety representative of the miners, I will report to MSHA what will be accepted.  Number one, I'm willing to accept lowering the coal dust levels by using engineering controls which modifies the usage of water and air.  It is a time proven fact water and air can and does control coal dust.
		Number two, I am willing to support monitoring of the mine atmosphere as a whole more frequently and at longer intervals.
		Number three, I am willing to accept a continuous, 24-hour a day, seven day a week individual air sampling program which would include the usage of a device that would give recordable and instantaneous readout of exposure levels.
		I'm having problems understanding why MSHA would not support the views that I have.  It is well known NIOSH is on the verge of releasing a device which can monitor the coal dust levels of a coal miner 24 hours a day, seven days a week.  We coal miners do have the right to know what we're exposed to.  At least that's what I have derived from MSHA's hazcom program.  Therefore, an air monitoring device that measured coal dust levels continuously should find support under the MSHA's hazcom program.
		We coal miners have read the allegations that for his own benefit a Pennsylvania coal operator can have MSHA inspectors transferred.  If these allegations are true, one also has to think where does this policy begin and where does this policy end.  There is no coal miner who I know understands how they will reap any benefits by means of this MSHA proposal.  If there is not any benefits in this proposal for the working coal miner, than who does it benefit?
		Passage of this proposal will be remembered as the dawn of the darkest days in modern coal mining history.  And for that reason, I do not and I will not accept this proposal.  And I am willing to either lead or follow my union to the courts to stop this.  That's all I have to say.
		MR. NICHOLS:  Okay.
		(Applause)
		MR. NICHOLS:  Okay.  Tim, I've got some people on here that I need to check on.  Charlie Santonio, is he here?  Okay.  James Jarrell?  Dennis Robertson?  Okay.  You wanted to put somebody else on in your last.  Yeah, okay.
		MS. CHAPMAN:  My name is Linda Chapman, L-I-N-D-A, Chapman, C-H-A-P-M-A-N.  I walked easily up here.  I don't have lung disease.  I'm not breathing hard.  It was easy for me to walk up here.  I walked up here today because my husband couldn't.  See, my husband had Black Lung, had pneumoconiosis, had silicosis, had chronic bronchitis, had just about every lung disease known to a coal miner.
		You know, we talk about samples, one sample after another.  We talk about the samples and the air quality that these men are forced to work in every day.  If we don't get the levels correct, if we don't get them low enough, we read a whole different kind of sample.  We read autopsy samples.  And that's what I was forced to do two years ago.
		You know, it started out just about like any normal day for a coal miner who is dying of lung disease.  He got till he no longer could shave himself, could not bathe himself, got to he couldn't even feed himself without strangling on his own food.  Now why is that?  Why does a coal miner strangle on his food?  Because he is trying to breath through this mouth and eat at the same time.  So food is sucked down the wrong way.
		Does this happen often?  Daily.  It happens daily.  When I wasn't at home and I was on my job working, I wouldn't leave food by his recliner because I was afraid he would strangle and I wouldn't be there to help him.  Now my husband died in his own bed.  I made sure of that.  That's what he requested.  Even though my mom and my dad kept begging me to take him to the hospital -- you don't want him to die in your bed.  I said no.  He's going to die at home.
		Most miners, though, die not in their own bed.  They die in a recliner.  Why is that?  Because they can't breath laying down.  There was a miner who testified here 20 minutes ago, and he said he got so sick of seeing death.  He choked up when he told you that.  Well, I watched death for about four years.  Four years.
		Our home is a split level.  The last year and a half of my husband's life, he never had a meal in our dining room because he couldn't take those two steps to go into the dining room to eat.  All of his meals got carried to him.
		The morning he passed away started like just any other days for him.  I bathed him and I shaved him.  I powdered, pampered, and tucked him.  That's what I called it.  This was a mountain man, much pride, much honor, who couldn't even take care of himself, did not have the lung capacity or the air capacity to take care of his own personal needs.
		When I got him ready for the day, he smiled great big, and he said, you got me ready.  And I said, yeah, I got you ready, Bear, because we had a lot of company coming in, a lot of friends and family because the doctors had told me it was soon.  It would be soon.  I said, yes, I got you ready, Bear.  And he kind of winked at me, and he said, you got me ready to go home.  And I said, oh, Bear, we got a few more days.  We got a few more days.  I didn't get you ready to go home.  You got me ready to go home.  I said, Bear, I'll do that when it's time.  And for the third time, he said to me, you got me ready to go home.
		So that gave me a little clue that maybe something was going to be a little bit different this day.  So I kept an eye on him.  He fell asleep.  And for 10-minute increments, I kept checking on him.  And the house started filling full of friends and family coming by because the time was close.  And I said, you know, I don't want to wake him up.  He doesn't rest good because of the machinery.  There were machines and stuff, the air quality machine trying to keep the air filtered out of the bedroom even.  I said no.  I said, let's not wake him up.  He's resting.  And for three hours, in 10-minute increments, I kept checking on him.  And I noticed around noon there was a change.  And I tried to rouse him, and I couldn't.
		For the second time that morning, I flipped back the blankets and I lay down with my husband, and I cuddled with him, and I stayed with him.  And I told him that I would be all right.  For the first time in my marriage, I lied to my husband.  I told him it was okay for him to go home.  I would be all right.  And 20 minutes later, he was gone.
		A miner told you a while ago that he got so sick of seeing death.  Six weeks before my husband died, he pretty much quit eating.  He was going to call his own destiny.  And I begged him not to give up.  Please don't give up, Bear.  And he smiled at me, and he said, Linda, I'm not tired of life.  I love my life with you.  I'm not tired of life.  But I'm tired of dying.  Because you see, he had been dying for about four years.  Towards the end, it was about four years, and no quality of life.  None.  Living with an air tank strapped to him.
		My husband had 21 years coal mining experience.  He was third generation.  He was a proud man.  He was an honorable man.  The men that worked alongside of him said he had the strength of 10 men on many a day.  And he couldn't even shake himself because of this dreadful disease.
		When it comes to a time when a disease will take your dignity to the point that you can't even get yourself off of a commode -- now that's why we have to regulate the dust in these mines.  You know, these men are honorable men.  They are great men, every one of them.  But if we don't take care of the laws and the regulations that take care of them, they're as disposable as this cup.
		We live in a disposable age.  We throw things away when we're done with them, and they're discarded, and they no longer have any use.  When a coal miner ends up with pneumoconiosis, he's disposable.  And once he gets that round of disease, the law is against him even to helping with his medical needs.
		I don't think I've met any of you before.  I guarantee you this won't be the last time you'll see me.  I set out a year ago from the capital down here, and I walked to Washington, D.C., from Charleston.  I walked every day for almost a month to get there because I wanted Washington, D.C., and the lawmakers there to understand that these miners are honorable men.  They can't be disposable.  And when we start treating them as disposable, some day the light is going to go out because no one is going to want to go down in that mountain and get this ore out because it's too deadly.  The price is too high.
		I was training for this walk on September 11th when the towers went down in New York City.  I was on a treadmill training because I was supposed to leave in October for Washington, D.C.  I shut my treadmill off, and I prayed to the father above that he would help those people because their need was great.  I didn't know what I could do, but pray.  Thirty-five hundred people lost their lives in those two towers that day.
		But two weeks later, there was something that was told on the news that really captivated my attention.  The rescue workers and the survivors and the people that was going in and around what they considered ground zero was already complaining of respiratory difficulties from breathing the dust off of those towers when they come down.  Just two weeks later, the damage was already done.  And they started the study.  That was in September.  By January of that year, they said 35 percent of the people that was working in and around ground zero was already affected with terminal lung disease, already suffering at night, couldn't breath when they lay down.  COPD had already been diagnosed in many of them.
		But we have miners going in 10 years, 20 years, 30 years, and 40 years, and we are led to believe that they annihilated this disease and it no longer exists.  I know what has been annihilated.  The laws are being annihilated and the rules are being annihilated that helps these men, that keeps the coal operator in some guidelines and helps them -- makes them be accountable for these men.
		I've been asked what is the hardest days after I lost my husband.  I first said it was anniversaries, birthdays, holidays.  But it's also Mondays and Tuesdays, Wednesdays, Thursdays, Fridays, Saturdays, and Sundays.  I've carried many titles through my life.  I've been a friend, a daughter, a worker.  I've been a volunteer.  I've been many things.  And know I'm a widow.  And it's up to you.  You all have the power.  You all have the final say that none of these men will ever be considered disposable.  Thank you.
		MR. NICHOLS:  Thank you.
		(Applause)
		MR. NICHOLS:  Tim Baker.
		MR. BAKER:  Excuse me.  My name is Tim Baker.  That's B-A-K-E-R.  What I'd like to do first is briefly read a statement into the record on the union's position on the part 72, determination of concentration of respirable coal mine dust single sample policy.
		MSHA proposes two changes in their single sample policy.  The first is that citations would be based on MSHA's samples rather than operator samples.  The second is that citations would be based on a single sample rather than the average of five.  On the surface, there appears to be improvements, but there are many problems that are buried in the details.
		Compared to the operator samples, MSHA samples are more likely to be accurate.  In addition, if citations are based on an average, dust levels can easily go over the standard on single shifts, and the average will be below the standard.  But if citations are based on single samples, if the dust level is too high on that sample, MSHA could issue a citation based on a single sample.
		This policy is more in keeping with the Mine Act because it requires that concentrations of respirable dust be at or below the standard for each miner on each shift and expresses a clear preference for taking samples on a single shift rather than over several shifts.  But MSHA makes several adjustments that weaken these improvements.  These adjustments come from a) the way we define a shift; b) they define a single sample, and what they mean by over the standard.
		First, in spite of miners regularly working 10 or 12 hour shifts, MSHA considers a shift to be eight hours or less.  They propose to start the sample when the miner enters the section and turn it off eight hours later, regardless of how long a shift is.  The Mine Act refers to a shift without defining how long it is.  Thus the MSHA proposal would not measure miners' true exposure if it is longer than eight hours.
		Second, MSHA proposes to take samples for several miners on a shift.  But even if more than one miner is exposed over the standard, MSHA will issue one citation.  In other words, not every single sample that is over the standard will result in a single citation.  This does not protect each miner on each shift.  Not only does this not provide adequate protection, it also has the effect of making the likelihood of MSHA issuing citations depend on the number of samples taken rather than the level of dust.
		Third, what MSHA means by over standard is over 2.33 milligrams per cubic meter of air, for a 2.0 milligram per cubic meter standard.  To complicate things more, they propose smaller adjustments if they average samples, or if there is a reduced standard because of quartz.  They explained this adjustment because the dust sampler does not always give precise results.
		For example, even though the true dust concentration may be 2 milligrams per cubic meter, it might read 1.9 or 2.1, depending on many small variations in how the filter is weighed, whether the battery is fully charged, whether it pumps at the right rate and so on.  In other words, there is some doubt about whether any samples give the true concentration.  And the closer you get to 2 milligrams per cubic meter, the greater the doubts.
		MSHA gives nearly all the benefit of the doubt to the mine operator.  If you measure exactly how the sampler varies above and below the true value, then 95 percent of the time any measurement greater than 2.33 is in fact greater than 2.0.
		Of course, you could look at the other side of the problem.  If MSHA were giving the benefit of the doubt to miners, they could require citations be issued if a single sample measurement were above 1.67.  That is when you could be 95 percent sure the exposure was below that standard.  That is, subtract .33 from 2.0 to make sure that you are below the standard rather than add .33 to make sure that you were above the standard.
		Incidentally, with MSHA's policy on plan verification, they require that dust be below 1.67.  For this reason -- but to make the unusual two steps backward for every forward, this measurement, a single sample measurement is taken by the mine operators and not by MSHA.  By giving the benefit of the doubt to operators, the MSHA policy sacrifices miners' health to operators' rights.  It is a clear demonstration that they do not think miners' health is as important as mine operators' legal rights.
		But the purpose of the Mine Act, as we recall, is to protect miners' health.  The MSHA policy is a step in the wrong direction.  When we consider that NIOSH has recommended that the standard of 2 milligrams per cubic meter be lowered to 1 milligram per cubic meter, this adjustment for simply variability is another step in the wrong direction.
		MSHA should enforce the Mine Act as written.  For example, if 2 milligrams is the exposure level, MSHA should issue citations if exposures above 2 milligrams per cubic meter for each miner on each shift is detected.  If the shift is longer than eight hours, the standard should be adjusted down so that, for example, if a miner worked 10 hours, the standard should be 1.6 milligrams per cubic meter for eight hours.  If there is uncertainty about the measurement, let the burden be borne equally by miners and operators rather than give the benefit of the doubt to the mine operators.
		So while we have talked previously about our position on a single sample, and we have supported single sample, I think that when we look at the entire package, we're making a grave mistake here whenever we begin to determine that citations won't be issued until we go beyond a 95 percent confidence level.  And I guess one of the questions that is on my mind as I read through this is if we're going to give a benefit of the doubt, as the document says, why did we not issue citations at 1.67?  Ninety-five percent confidence level -- we should give the benefit of the doubt to the miner.
		I would submit that the reason is probably because everybody on this panel would say a judge would throw that out of court and we wouldn't be able to sustain that, and we wouldn't get any citation issued anyhow.  I would submit to you that before these hearings are all over, we're going to make it very clear that 2.33 is unacceptable, and we will do everything in our power to make sure that MSHA is not allowed to stretch to 2.33, and that that should never be allowed in court either.  Two-oh is two-oh.  How we get there and we make sure that is enforced and enforced every time is maybe something we need to discuss and we can build that model around continuous dust monitoring.
		And we have looked at the single sample, and we are fine with I guess the general idea.  We're very upset with the fact that we would give the benefit of the doubt to the mine operator.
		A few other comments that I have -- and I'm going to read some stuff, just very brief statements out of the criteria document because it was mentioned on Tuesday that NIOSH criteria document was a basis for this rule.  And so if I can -- and I'll try not to bore everybody, but some of these things need to be put on the record.  And we will admit the entire criteria document as part of the record.
		This criteria document reviews available information about the adverse health effects associated with exposure to respirable coal mine dust.  Epidemiological studies have clearly demonstrated that miners have elevated risk of developing occupational respiratory disease when they are exposed to respirable coal mine dust over a working lifetime at the current MSHA permissible exposure limit of 2 milligrams per cubic meter.  The exposure limit of 1 milligram per cubic meter recommended in this document is based on an evaluation of health effects data, sampling and analytical feasibility and technological feasibility.
		In a very brief statement, I think we've clearly said it all, that we're overexposing people at 2.0.  Black Lung is still a problem at 2.0.  Not only as NIOSH stated that it should be 1.0, they clearly have concluded in 1995 that we have the feasible controls available to us to accomplish that.  And what we're talking about is accomplishing that in the mine atmosphere.
		They go on to say that their recommended exposure levels of respirable coal mine dust be limited to 1 milligram per cubic meter as a time weighted average for up to 10 hours a day, up to 40 hours a week, as currently measured by MSHA's methods.  So clearly, they were taking into consideration the changes within the industry.  And we need to look to that.
		The NIOSH REL represents the upper limit of exposure for each worker during each work shift and shall not be adjusted upward to account for measurement uncertainty.  To minimize the risk of adverse health effects, exposure shall be kept as far below the REL as possible using engineering controls and work practices.
		So now we are saying that -- or NIOSH has clearly said that 2.33 should not exist, okay?  And I won't read all of these.  I would point out that on page 2 of NIOSH's report and going into page 3 that they again discuss and talk about 1 milligram and not adjusting the exposure for errors in calibration of equipment.
		On page 4, when we discussed the participation of miners, they actually go beyond what sometimes we look at as miners' reps, that we should be involved in all aspects of sampling.  Whether that is MSHA sampling or operator sampling, we should be involved.  But NIOSH actually went into claiming that mine operators should ensure that miners can participate in all medical screening and surveillance programs at reasonable time and place without loss of pay to the miner.  So we're even talking about medical screening as we go through the criteria document.
		It says on page 11 of the document the current U.S. standard of 2 milligrams per cubic meter for respirable coal mine dust is based primarily on estimates of early studies.  The intent of the standard of 2 milligrams is to prevent the development of PMF by preventing progression of simple CWP to a category of two or greater.  More recent studies from the United States and the United Kingdom indicates that the risk of PMF is higher than estimated in these studies used to base the current U.S. dust standard.
		They estimate that at age 58 an average of seven out of every 1,000 U.S. workers exposed to lower dust standards would possibly contract Black Lung.
		Somebody had mentioned earlier -- and there has been some discussions about -- and I know that there is a real difference in opinion on whether or not we ever get to 4 milligrams, 6 milligrams, or 8 milligrams.  And at Tuesday's hearing, I had expressed my concern that the proposed rule retards any desire to do any new engineering controls.  And I think that's very true.  And what I based that on is even what I see in the NIOSH document -- I see an increase from -- and these figures are rather old, but they nonetheless hold true.
		From 1980 until 1990, coal production has increased vastly.  And between 1980 and -- in 1980, miners were producing about 16.32 tons per day per miner.  In 1990, that was up to approximately 33.25.  Now I would suggest to you that that double increase in production also brings with it a corresponding doubling of dust that is generated because what we're talking about is advancements in machinery, larger machines that produce more, produce faster.  And when you're cutting coal faster and you're cutting more coal, you're producing more dust.
		In that time, while we have not been at all happy with the fact that miners still continue to contract Black Lung, we have at least had a standard that said you still can't go above 2.0.  I would suggest that those machines are going to continue to keep getting bigger.  Coal is going to be mined faster.  Dust is going to be generated much greater than this 1990 study shows.  And it probably is already, and it will only increase.
		If in fact that does occur, and we do not have a rule that forces technology, that forces environmental and engineering controls that meet the increase in production, then we will very quickly hit a standard that says eight-oh PAPR.  I would suggest that that is a reality that is just around the corner because production is going to increase, dust is going to increase.  There is nothing to drive engineering.
		On page 41 of the criteria document, the study states that before 1970, the average concentration of respirable dust for most job categories of underground coal mines exceeded 2 milligrams per cubic meter.  The average concentration for some jobs at the working face where coal is being extracted exceeded 6 milligrams per cubic meter.  We're headed in the wrong direction.  They're saying that it was outrageous that they found 6 milligrams.  And I suggest to you that if this rule continues, they will be even more outraged because we will find 8 milligrams.
		We will admit the document, of course, into the record.  I'm sure you had it.  One last statement that I would like to read.  The excess -- and this is part of their study.  The excess prevalence of simple CWP, PMF, and decreased lung function is estimated to be substantially reduced if lifetime average exposure to respirable coal mine dust is reduced from 2.0 to .5 milligrams per cubic meter.  However, even in a mean concentration of .5 milligrams per cubic meter, miners have a risk of 1 in 1,000 of developing these conditions.  A 1 in 1,000 risk is defined as significant by the United States Supreme Court in the 1980 benzene decision.  And that decision states, if the odds are 1 in 1,000 that regular inhalation of gasoline vapors that are 2 percent benzene will be fatal, a reasonable person might consider the risk significant and take appropriate steps to decrease or eliminate it.
		Now that's one quarter of what we are currently talking about in the standard.  And the United States Supreme Court said this was outrageous.  So we need to continue to look to decrease our exposure.
		There was some questions raised earlier today about -- and I think, George, that you had raised the question to an individual who is here, and you said, well, if these helmets are faulty and they're leaky, why would you wear them.  And I think to a certain extent there is a feeling out there, a misconception in many respects, on the part of some miners, and we try our best to educate the people in the union.  But there is a misconception out there that these things actually work.  And I would submit to you that there is probably a lot of operations out there that we may not represent that these people are educated by their employer and told these things work, and you can work in as much dust as want.  You're just in good shape.  I think that's one concern.
		The other thing is I think that miners at least now tend to be more proactive when it comes to health.  And, you know, if there is a chance that this thing is going to work, and even if they know it's faulty, you know, it's better than what they had.  It's not what it needs to be.  But I think in many respects, that's what -- you know, I'll give it a try.  I'll see if it works.  I think over the course of time, they found out it not only does not work, it doesn't function as it should.  But in fact, they can't wear it for a full shift, and they can't use in certain specific tasks they have to do.
		So I would commend them for at least putting forth the effort.  I think we need to go much further on exploring how to correct the problem rather than just discuss why would you wear it anyhow.
		On Tuesday, there was some discussion on the scarce resources.  I think that the statement was made by someone on the panel that, you know, we're going to do -- allow the employers to do the verification sampling, and we're going to start the compliance sampling.  But we're going to go out to the ones that can't get in compliance.  It will better allow us to utilize our limited resources.
		I would suggest that there is a problem there, too.  And I think Joe Maien alluded to it on Tuesday.  But what we need to look at is if the resources are limited, then there should be a concern with the reduction in the budgets that are being requested at MSHA.  And I know we have expressed a concern with that, and we need to look at increasing resources rather than decreasing sampling.  We need to protect these miners.
		Just a short while ago today, there were 1,500 miners and their family members and supporters who rallied at the capital in Charleston.  And I would suggest that if you add those 1,500 miners and family members and friends to the roughly 75 people that have attended these last two hearings, I would say that I have not heard one person, including the lone operator who testified, ask for this rule to be moved forward.  Not one person has come forward and said, listen, this is a good thing.  We need to go with it.
		That is a message that I think clearly each of you have heard.  I think that is a message that you as the panel need to carry back to Arlington.  This is clearly a nonstarter.  This is a bad proposal.  It is bad for miners.  It would appear from the deafening silence on the other side except for one operator that it's not very good for them either.  I'm not sure how that works.  But nobody has spoken in support.  And I think that that speaks volumes.
		I will close by saying what I said whenever I opened on Tuesday.  You have overstretched your authority.  You have no right to propose and do what you were doing.  We would hope that you would recognize that fact.  We would hope that you would take this proposal back and build it around a single sample -- or I'm sorry, a continuous sampling device.  We think that's the right thing to do.  That's the proper thing to do.  And to be honest with you, neither side, neither one of us, or the operators need to be dragged down in a quagmire that continues this process when nobody wants it.  The technology to correct the problem is just around the corner.
		To be honest with you, we can stop now.  We can stop the hearings.  You can take it back.  We can get our continuous sampling, which is right around the corner, and we'd all be better off a lot sooner than what we're going to be going through this process.
		I'll be happy to take any questions.  But I'm guessing it's the end of the day, and there probably won't be any, not even one.  Thank you very much for --
		MR. NICHOLS:  You're correct.  Thank you.  Tim is our last scheduled speaker, so thanks for showing up.  Thanks for your comments.  How much time do you want?  You already had 45 minutes.
		MR. MAIEN:  Yeah.  I don't want to keep you guys here.  I apologize.  When I promised this morning to do something, I wanted to deliver that.  Joe Maien with United Mine Workers.  And I'll be real brief here.  When I spoke this morning, I had laid out a case that there was a number of sections of the Mine Act that was being violated by these rules.  And when I finished my testimony, I had failed to provide you with that information.
		With regard to the rule that will increase the dust levels to upwards of 8 milligrams and will have respirators replace engineering controls under the rule, we have done an assessment of the rule after hearing the testimony or the message from the agency on Tuesday and found that it violates section 202(b) regarding the mandate that the cumulative gram standard not be exceeded.  It violates section 202(h), which says that the mine operators are prohibited from using respirators to replace engineering controls, environmental controls with those respirator devices, which we have found to be faulty as well.
		It violates various parts of section 303(b), which dictates that the government has to make sure that the operator has sufficient air used to dilute and render harmless dust and in specific cases respirable dust.  It violates part 75.325(a)(1), which dictates air requirements for diluting and rendering harmless dust to the air quality standard.  It violates part 75.321(a)(1) with regard to air quality that requires that the air be used to dilute and render harmless dust.
		It violates part 75.300 that explicitly prohibits respiratory equipment from being used to replace engineering controls and requires, as has been since 1969, respiratory equipment to be provided under the current law.  This is not something that's new.  It's something they have to do.  Again, the proposal would violate that section by allowing respirators to replace engineering controls.
		It violations section 70.100 with regard to the 2 milligram standard being exceeded in the mine environment with regard to the way that this rule is proposed.  It violates section 101(a)(9) of the Mine Act, which says that you cannot diminish protections miners currently have or are afforded under the Mine Act.  It violates section 101(a)(6)(a), which sets straightforward a provision of lowering dust levels in the nation's coal mines to protect miners, and it says that it shall set standards which most adequately assure on the basis of the best available evidence that no miner will suffer material impairment of health or functional capacity, even if such miner has regular exposure to hazards dealt with by such standard for the period of his working life.
		With regard to the proposal to change the sampling of coal mines, it violates section 75.207, which mandates bimonthly inspections, at least a frequency of inspections of working sections, and it violates part 75.208, which mandates bimonthly dust sampling inspections in out-by areas of mines.
		These are all standards that we have identified very readily that would be violated by the proposal that has been pushed forward by the agency.  And at the end of the day, just looking at those standards alone, this proposal is highly illegal under the Mine Act and violates both the intent and direct language of Congress.
		And in closing, I will say that I would urge you as well to send a message back to the leadership of MSHA that through two days of hearings in the coal fields, two key areas, West Virginia and Pennsylvania, there has been no support for this rule.  As expressed in these public hearings, we set out to do that, to provide guidance and information to the panel.  And we would urge that the agency immediately withdraw this rule, which has been the overwhelming message that has been received at both these public hearings, including that of the one mine operator who testified on Tuesday in Washington, PA.  Thank you very much.
		MR. NICHOLS:  Thank you.  That concludes our hearing.
		(Whereupon, at 4:01 p.m., the hearing in the above-entitled matter was adjourned.)
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	REPORTER'S CERTIFICATE

DOCKET NO.:	N/A
CASE TITLE:	Office of standards, Regulations, and 		Variances
HEARING DATE:	May 8, 2003
LOCATION:	Charleston, West Virginia

	I hereby certify that the proceedings and evidence are contained fully and accurately on the tapes and notes reported by me at the hearing in the above case before the
Department of Labor.


			Date:  5/8/03

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


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