IN THE MATTER OF:                 )
                                  )
PUBLIC HEARING ON PROPOSED        )
DUST RULES                        )


















Pages:    1 through 314

Place:    Prestonsburg, Kentucky

Date:          August 10, 2000
                   UNITED STATES DEPARTMENT OF LABOR
     
     
     IN THE MATTER OF:                 )
                                       )
     PUBLIC HEARING ON PROPOSED        )
     DUST RULES                        )
     
     
     
                                                  Holiday Inn
                                   Highway 23
                                   Prestonsburg, Kentucky
     
                                   Thursday,
                                   August 10, 2000
     
     
               The parties met, pursuant to the notice, at 
     
     8:30 a.m.
     
     
               BEFORE:  MARVIN NICHOLS, Moderator
     
     
               APPEARANCES:
     
               Panel Members:
     
               RON SCHELL, CHIEF, HEALTH DIVISION
               COAL MINE SAFETY AND HEALTH
     
               LARRY REYNOLDS, OFFICE OF THE SOLICITOR
     
               CAROL JONES, DIRECTOR
               OFFICE OF STANDARDS, REGULATIONS AND VARIANCES
     
               GEORGE NIEWIADOMSKI
               MINE SAFETY AND HEALTH        SPECIALIST
               COAL MINE SAFETY AND HEALTH
     
               THOMAS THOM, CHIEF, DUST DIVISION
               PITTSBURGH SAFETY AND HEALTH TECHNOLOGY CENTER
               
               JOHN KOGUT, MATHEMATICAL STATISTICS
               OFFICE OF PROGRAM, POLICY AND EVALUATION               APPEARANCES:    (CONT'D.)
     
               PANEL MEMBERS:
     
               REBECCA ROPER, SENIOR HEALTH SPECIALIST
               OFFICE OF STANDARDS AND REGULATIONS AND VARIANCES
     
               RON FORWARD, ECONOMIST
               OFFICE OF STANDARDS AND REGULATIONS AND VARIANCES
     
     
               ALSO IN ATTENDANCE:
     
               PAUL HEWETT, INDUSTRIAL HYGIENIST, NIOSH
     
               EILEEN KUEMPEL, SENIOR PHYSICAL SCIENTIST, NIOSH 
     
               RODNEY BROWN
               OFFICE OF INFORMATION AND PUBLIC AFFAIRS
     
               PAM KING
               OFFICE OF STANDARDS, REGULATIONS AND VARIANCES
                                    I N D E X
     
                                                             PAGE
     
     JOSEPH MAIN, UNITED MINE WORKERS OF AMERICA               24
     
     TOM WILSON, UNITED MINE WORKERS OF AMERICA                38
     
     DARYL DEWBERRY, INTERNATIONAL EXECUTIVE BOARD MEMBER,     59
     UNITED MINE WORKERS OF AMERICA, DISTRICT 20
     
     WILLIAM BOLTS WILLIS, CHAIRMAN, MINE HEALTH AND           80
     SAFETY COMMITTEE, UNITED MINE WORKERS OF AMERICA
     LOCAL UNION 8843
     
     BO WILLIS, PRESIDENT, UNITED MINE WORKERS OF AMERICA      89
     LOCAL UNION 2274, DISTRICT 20, SUBDISTRICT 28
     
     RANDY CLEMENTS, PRESIDENT, UNITED MINE WORKERS OF         94
     AMERICA LOCAL UNION 2368
     
     RICK GLOVER, UNITED MINE WORKERS OF AMERICA              102
     
     LARRY TOLLIVER, CHAIRMAN, SAFETY COMMITTEE, UNITED       124
     MINE WORKERS OF AMERICA LOCAL UNION 1713
     
     DANNY SPARKS, PRESIDENT, UNITED MINE WORKERS OF          129
     AMERICA LOCAL UNION 2232
     
     RICKEY PARKER, CHAIRMAN, SAFETY AND HEALTH COMMITTEE,    137
     UNITED MINE WORKERS OF AMERICA LOCAL UNION 2368
     
     RALPH LONEY, UNITED MINE WORKERS OF AMERICA LOCAL        147
     UNION 2232
     
     ERIC BARNES, UNITED MINE WORKERS OF AMERICA              148
     
     TOM SWEETEN, CHAIRMAN, HEALTH AND SAFETY COMMITTEE,      154
     UNITED MINE WORKERS OF AMERICA LOCAL UNION 1545
     
     THOMAS KLAUSING, UNITED MINE WORKERS OF AMERICA          161
     LOCAL UNION 2161
     
     J.R. PATSEY, UNITED MINE WORKERS OF AMERICA LOCAL        172
     UNION 1713
     
     LARRY PASQUALE, UNITED MINE WORKERS OF AMERICA           176
     LOCAL UNION 2133, DISTRICT 20                               I N D E X
     
                                                             PAGE
     
     WILLIAM CHAPMAN, PRESIDENT, UNITED MINE WORKERS OF       180
     AMERICA LOCAL UNION 1793
     
     RICKEY KORNEGAY, EXECUTIVE BOARD MEMBER, UNITED MINE     181
     WORKERS OF AMERICA, DISTRICT 20
     
     REGGIE STALLARD, UNITED MINE WORKERS OF AMERICA          185
     LOCAL UNION 1760
     
     WILLIAM SAWYER, SAFETY COMMITTEE, UNITED MINE WORKERS    188
     OF AMERICA LOCAL UNION 1926, DISTRICT 20
     
     TOM MESSER, UNITED MINE WORKERS OF AMERICA LOCAL         205
     UNION 1760
     
     TERRY HUNTER, CHAIRMAN, SAFETY COMMITTEE, UNITED MINE    208
     WORKERS OF AMERICA LOCAL 1926, DISTRICT 20
     
     GARY TRAMELL                                             214
     
     EDMOND COOK                                              222
     
     CHUCK WILSON, PRESIDENT, UNITED MINE WORKERS OF          225
     AMERICA LOCAL UNION 1545
     
     MAX KENNEDY                                              229
     
     JIM BRACKNER, UNITED MINE WORKERS OF AMERICA LOCAL       242
     UNION 2245
     
     BILL CAYLOR, KENTUCKY COAL ASSOCIATION                   245
     
     DAN SPINNIE, UNITED MINE WORKERS OF AMERICA LOCAL        259
     UNION 2161 
     
     STEVE WOLFE, UNITED MINE WORKERS OF AMERICA LOCAL        263
     UNION 1969
     
     KEITH FLOWER, CHAIRMAN, HEALTH AND SAFETY COMMITTEE,     266
     UNITED MINE WORKERS LOCAL UNION 2397
     
     DAVID MCATEER, UNITED MINE WORKERS OF AMERICA            291
     SAFETY REPRESENTATIVE, JIM WALTERS NO. 4 MINE                               I N D E X
     
                                                             PAGE
     
     GREG MAHAN, PRESIDENT, UNITED MINE WORKERS OF AMERICA    292
     LOCAL UNION
     
     RANDY KLAUSING, CHAIRMAN, SAFETY COMMITTEE, OLD BEN      298
     COAL COMPANY
     
     DWIGHT CAGEL, HEALTH AND SAFETY COMMITTEE, UNITED        307
     MINE WORKERS OF AMERICA LOCAL UNION 2397
     
     MIKE NELSON, UNITED MINE WORKERS OF AMERICA LOCAL        310
     UNION 1867, DISTRICT 20
                              P R O C E E D I N G S
                                                      (8:30 a.m.)
               MR. NICHOLS:  Good morning.  Can you hear me in
     the back?  Can you hear okay in the back?
               ALL:  Yes.
               MR. NICHOLS:  Okay.  Good.  Good morning.  My name
     is Marvin Nichols.  I'm the Administrator for Coal Mine
     Safety and Health with MSHA.  I'll be the moderator for
     today's public hearing.  On behalf of Davitt McAteer, the
     Assistant Secretary for MSHA, and Dr. Linda Rosenstock, the
     Director for NIOSH, I want to welcome all of you here today.
               This morning we will begin the public hearings on
     two proposals which were published on July 7 in the Federal
     Register, the joint single sample proposal and plan
     verification proposal.  Your comments here today will be
     included in the record with both proposals.
               Let me introduce our panel.  To my left is Ron
     Schell, the Chief of the Health Division for Coal Mine
     Safety and Health, and to my right is Larry Reynolds with
     the Office of the Solicitor.
               Behind me we have Carol Jones, Director of MSHA's
     Office of Standards, Regulations and Variances; George
     Niewiadomski, Mine Safety and Health Specialist, Coal Mine
     Safety and Health; Thomas Thom, Chief, Dust Division,
     Pittsburgh Safety and Health Technology Center; John Kogut,
     Mathematical Statistics, Office of Program, Policy and
     Evaluation; Rebecca Roper, Senior Health Specialist, and Ron
     Forward, Economist, both for the Office of Standards and
     Regulations and Variances.
               Because the simple sample is a joint MSHA/NIOSH
     proposal, Paul Hewett, Industrial Hygienist, and Eileen
     Kuempel, Senior Physical Scientist, are here from NIOSH. 
     Rodney Brown from MSHA's Office of Information and Public
     Affairs is also present at the hearing.  Rodney, raise your
     hand.  Rodney is in the back.  He will provide press kits
     for the media in attendance and will be available to answer
     any press inquiries.
               We also have Pam King from MSHA's Office of
     Standards, Regulations and Variances.  Pam greeted you when
     you came in.  If you have not signed in yet, please see Pam,
     or if you wish to speak to get your name on the list of
     speakers.
               MALE VOICE:  Sir, we can't hear in the back here.
               MR. NICHOLS:  You can't hear?  Can you hear me
     now?
               MALE VOICE:  Yes.  Sounds good.
               MR. NICHOLS:  Okay.  Good.
               I finished up with Pam.  Raise your hand, Pam.  If
     anyone wishes to speak that's not on the sign up sheet,
     please see Pam to do that.
               Let me talk a little bit about how the hearing
     will be conducted.  The formal rules of evidence do not
     apply, and the hearings are conducted in an informal manner. 
     Those of you who have notified MSHA in advance will be
     allowed to make your presentations first, and following
     these presentations others, others who request an
     opportunity to speak, will be allowed to do so.
               I would ask that all questions regarding these
     rules be made on the public record and that you refrain from
     asking the panel members questions when we're not in
     session.
               A verbatim transcript of the hearing is being
     taken, and it will be made part of the official record. 
     Please submit any overheads, slides, tapes and copies of
     your presentations to me so that these items may be made
     part of the record.  The hearing transcript, along with all
     of the comments that MSHA has received to date on the
     proposed rule, will be available for review.  If you wish a
     personal copy of the hearing transcript, you should make
     your own arrangements with the court reporter sitting to my
     left.
               We will also accept additional written comments
     and other appropriate data on the proposed rule from any
     interested parties, including those who have not presented
     oral statements today.  These written comments may be
     submitted to me during the course of this hearing or sent to
     the address listed in the hearing notice.  All written
     comments and data submitted to MSHA will be included in the
     official record.
               If you wish to present any written statements or
     information for the record today, please identify them. 
     When you give them to me, I will identify them by title as
     being submitted for the record.  Once again, Pam King
     sitting at the back at the door has an attendance sheet that
     you may wish to register your presence here today.  To allow
     for the submission of post-hearing comments and data, the
     record will remain open until September 8, 2000.
               As you may know, we held a hearing on Monday,
     August 7, in Morgantown, West Virginia.  We have another
     hearing scheduled for Salt Lake City on August 16 from
     8:30 a.m. until 5:30 p.m. or, excuse me, 5:00 p.m.  We
     scheduled this hearing to run all day today, and, if
     necessary, we'll continue tomorrow morning.
               Before we begin, let me give you some background
     on the proposals we're addressing here this morning.  First,
     the single sample joint proposal.  In it, the Secretary of
     Labor and the Secretary of Health and Human Resources
     announced their proposed finding in accordance with the
     Federal Mine Safety and Health Act of 1977 that the average
     concentration of respirable dust which each miner in the
     active workings of the coal mine is exposed can accurately
     be measured over a single shift.  In this proposal, the
     Secretaries are proposing to rescind a 1972 finding on the
     accuracy of such single shift sampling.
               The joint proposal also addresses the final
     decision and Order in the National Mining Association v.
     Secretary of Labor issued by the United States Court of
     Appeals for the Eleventh Circuit on September 4, 1998.  That
     case vacated a 1998 joint finding and MSHA's proposed policy
     concerning the use of single full shift respirable dust
     measurements to determine non-compliance when the applicable
     respirable dust standard was exceeded.
               As most of you know, the single sample issue has
     been through a long public process, which is outlined in the
     preamble to the proposal.  That process ended with the
     September 4, 1998, ruling by the United States Court of
     Appeals for the Eleventh Circuit.  The Court vacated the
     1998 joint finding concluding that the record contained no
     finding of economic feasibility and that MSHA failed to
     comply with Section 8811(a)(6) of the Mine Act.
               Therefore, in response to the Court's ruling, the
     Secretaries are proposing to add a new mandatory health
     standard to 30 CFR, Part 72.  The 1972 joint notice of
     finding would be rescinded, and a new finding would be made
     that a single full shift measurement will accurately
     represent atmospheric conditions to which a miner is exposed
     during such shift.  This finding is the basis for the new
     proposed mandatory health standard.
               MSHA believes that single shift, single sample
     measurements are more protective of miner's health than the
     current practice of averaging multiple samples.  The process
     of averaging dilutes a high measurement made at one location
     with lower measurements made elsewhere.  MSHA recognizes
     that single full shift samples have been used for years by
     OSHA and at metal and non-metal mines in this country.
               The coal mining community had the opportunity to
     experience use of single full shift measurements for a two
     year period in 1992 and 1993 and from May, 1998, until
     September, 1998, when the Court of Appeals vacated the
     agency's finding.  We're interested in your comments
     concerning the application of single full shift samples at
     your mine during those two periods.
               Additionally, because the proposal would be
     implemented as a mandatory health standard, all elements of
     Section 101(a)(6)(A) of the Mine Act have been addressed in
     this proposal.  These include the portions of the proposal
     which addressed health effects, develop a quantitative risk
     assessment and the significance of risk.  We're seeking your
     comments on this proposal as well as on plan verification.
               The plan verification proposal is based in
     significant part on recommendations contained in the 1996
     report of the Secretary of Labor's Advisory Committee on the
     Elimination of Pneumoconiosis.  That report was based on the
     studies and discussions of representatives from labor,
     industry and neutral experts.  They believe that if the
     recommended changes were made, black lung disease could be
     eliminated, and confidence would be restored to the federal
     program to control coal mine respirable dust levels.
               The plan verification proposal adopts three key
     recommendations of the advisory committee.  One, MSHA should
     take full responsibility for all respirable dust sampling
     for compliance purposes; two, MSHA should verify ventilation
     plans at typical production levels; and, three, MSHA should
     require operators to record production levels and dust
     control parameters to monitor dust levels.
               Under the plan verification rule, all the existing
     requirements in our regulations at 30 CFR, Parts 70 and 90,
     for underground coal mine operators to conduct respirable
     dust sampling would be revoked.  MSHA would assume
     responsibility for all sampling to determine if miners were
     overexposed to respirable coal mine dust.  This includes
     bimonthly sampling, abatement sampling, sampling to
     establish a reduced standard in mines for quartz as present
     and Part 90 sampling for miners who have evidence of the
     development of pneumoconiosis.
               Since MSHA would conduct all sampling, the miners'
     representative would have the right to observe sampling with
     no loss of pay.  Before approving ventilation plans, MSHA
     would conduct verification sampling under typical production
     levels with only the controls listed in the plan in effect
     and for the full shift.  This would assure that miners are
     not overexposed to respirable dust.
               The results of these verification samples must be
     below the critical values listed in Section 70.209 of the
     proposal before MSHA would approve the plan.  The proposal
     defines full shift differently for purposes of plan
     verification and abatement sampling and for bimonthly
     compliance determination.  The proposal would revise the
     existing definition of concentration so that it is an eight
     hour equivalent measure even if the work shift is longer
     than eight hours.
               In addition, under the proposal only MSHA samples
     would be used to establish a reduced standard in the
     underground coal mines for quartz as present.  This would
     change the existing procedure, which allows operators to
     submit samples which are averaged with MSHA samples.
               Finally, MSHA would allow mine wall mine operators
     to use on a limited basis either powered air purifying
     respirators or administrative controls when all feasible
     engineering controls cannot maintain respirable dust levels
     at or below the applicable standard.
               Coal mine operators must first request that the
     Administrator for Coal Mine Safety and Health determine that
     all feasible engineering controls are in place.  If so, MSHA
     would grant the operator interim ventilation plan approval. 
     However, the operator must implement any new feasible
     engineering control which may become available.
               In response to comments we got at our Morgantown
     hearing, we'd like to spend just a few minutes outlining in
     greater detail the major provisions of these rules.  Ron is
     going to give a short presentation, and then we'll begin
     taking comments.
               MR. SCHELL:  Would you just give us a second to
     set up?
               Some of the guys in the back, there are some
     chairs up here if you'd like to come up in about the second
     or third row.  This would be a good time to do it.
               (Pause.)
               MR. SCHELL:  Can you guys hear me in the back? 
     Can you hear me now?  Is this better?
               ALL:  Yes.
               MR. SCHELL:  Okay.  I'm just going to have to hold
     this.
               Guys, I'm going to try to make this short.  We're
     doing it based on a request that came out of the hearing in
     Morgantown.  I hope all of you can see the charts up there
     because I'm not going to take the time to read everything
     that's on this chart.
               The thing I do want you to know -- move to that
     next slide, would you, John?  What I do want you to know is
     the way we've set this up is on the left-hand side are the
     current requirements under the rules, and you guys are
     familiar with that.  Then on the other side of the chart
     what we've done is put the new requirements so you can sort
     of visually get an idea of what the current requirements are
     and then how we're proposing to change those requirements in
     this rule.
               Like I say, I'm going to try to keep this short. 
     Go ahead to the next one.  Basically there are four things
     that we're doing with these proposed rules.  We're
     addressing effective plans, we're addressing compliance with
     these plans, we're addressing monitoring of plan
     effectiveness, and we're addressing abatement.
               The point I want to make, guys, is mining isn't
     like any other industry.  In most industries the first thing
     you do is you go out to sample to determine if there's a
     hazard.  We don't have to do that in the mining industry. 
     We know that when you cut coal or when you transport coal,
     coal dust is being generated, and that coal dust, whether it
     be respirable coal mine dust or quartz dust, can be
     unhealthy for you, so you have to start out recognizing you
     have to control dust.
               What keeps miners healthy are dust controls in
     place that limit your exposure, and those controls have to
     be in place every shift because you're going to be exposed
     to that hazard every shift, so to us the key of these new
     rules are to have an effective control plan that works and
     have an effective control plan that works every shift.
               I'm not saying that monitoring isn't important. 
     It is.  Monitoring is key to making certain that that
     control plan continues to work.
               MALE VOICE:  The mike is out.
               MR. SCHELL:  The mike is out?
               MALE VOICE:  You're back on.
               MR. SCHELL:  Back on?  Can you hear to me now if I
     don't touch it?
               MALE VOICE:  Yes.
               MR. SCHELL:  Okay.  I'm going to pretend like I'm
     eating this.  You guys in the back, if it goes down yell at
     me again, would you?
               Again, controls are keys to protecting you guys. 
     Monitoring ought to tell us if those controls are working. 
     Abatement ought to assure us that those controls are
     working, so in this proposal we are really focusing
     primarily on getting effective controls and making certain
     those controls are placed every shift that you're working. 
     On average -- on average -- you guys work 400 shifts a year. 
     We want you to be protected on 400 shifts a year.
               How are we proposing to have effective plans? 
     Again, like I say, this is key to these regulations. 
     Simple.  We want dust control plans in place that limit your
     exposure to acceptable levels.  Secondly, we want those dust
     controls in place so that you're protected even at the upper
     limits of production.
               What these rules say is from now on we want those
     dust controls to protect you for the full shift, not just
     for the eight hours that we were sampling in the past.  The
     key to this proposal, and you guys all know what an average
     is.  Somewhere in the middle.  You've got the low and the
     high, and the average is somewhere in the middle.
               Right now we're verifying those plans at about 60
     percent of the average.  Sixty percent of the average. 
     We're proposing that in these rules we're going to make sure
     that those plans work above the average.  A key ingredient. 
     To make sure we know it's working above the average in terms
     of production, we're going to require operators to maintain
     records on what the production is on every MMU so we can go
     in and see what the production is.
               Lastly, or, excuse me, next, we're going to verify
     those plans.  MSHA is going to verify the plans through full
     shift sampling at the upper limits of production, and the
     only controls that the operator can have in place when we're
     verifying are the ones specified in the plan.
               I know some of you here I've had discussions where
     we've had conversations about the operator having controls
     greater than those in the plan in place when we sample. 
     Verification sampling.  They have to reduce those controls
     to what they say is in the plan.  We give them a range of up
     to 15 percent above because we know we can't always reach
     100 percent.
               Another key point.  That plan has to be verified
     on both the high risk occupation, the designated occupation,
     and on continuous miner sections on the roof bolting, and we
     don't just look at respirable coal mine dust.  We look at
     respirable coal mine dust, the two milligram standard, and
     we look at quartz separately, so that plan has to be
     verified on total dust and on quartz, 100 micrograms of
     quartz.
               That verification sampling could take anywhere
     from one to ten shifts or even more because again it's got
     to be at high production with only the controls specified in
     the plan in place.  We do have a provision in there that
     says if we can't verify that plan on long walls -- if we
     can't verify that plan on a long wall -- and all engineering
     controls are in place, we will consider the use of PAPRs,
     airstream helmets or administrative controls downwind of the
     shear operator.  Only downwind of the shear operator.
               You have to control to the standard to the shear
     operator.  With people going downwind, we recognize there
     might be some occasions where they aren't protected.  There
     we're going to consider PAPRs and administrative controls.
               A plan is no good unless it's in place every
     shift.
               MALE VOICE:  The mike is out.
               MR. SCHELL:  Back on?
               MALE VOICE:  No.
               MR. SCHELL:  Let me try this again.  Can you hear
     me back there?  Okay, guys?  Now?
               ALL:  Yes.
               MR. SCHELL:  A plan is no good unless it operates
     every shift.  So what are we going to do to make sure that
     that plan is operating every shift?  We're going to do what
     we currently do, and that's require mine operators to check
     that plan before production on every shift.  The difference? 
     What they're going to be checking is that plan that's been
     verified at the upper limits of production with only the
     controls listed in the plan in place.
               In addition to that, we're going to continue to
     check it when we check to make sure the operator is doing
     their on shift examinations during our regular inspections,
     but we're going to be there six times a year sampling where
     we're going to check it, and when abatement sampling occurs
     MSHA is going to do that abatement sampling.  We're going to
     be looking to make sure they're doing their on shift
     examinations.
               Also, we're going to be looking at their
     production records because if we see that their production
     is way above what that plan was verified at, they're going
     to have to go back and reverify that plan at that higher
     production.  The key, guys.  You've got to have a good plan
     that protects you.  You've got to have that plan working
     every shift.  That's what we're trying to do with these
     rules, and we're really soliciting your comments on what we
     can do to make that more effective.
               How are we going to address monitoring?  Marvin
     mentioned that we're going to assume responsibility for all
     compliance sampling.  The key to that is that sampling is no
     longer -- compliance determinations under that sampling are
     no longer going to be made based on averaging low dust
     samples with high dust samples.  We're going to use single
     sample determinations.  Each sample stands on its own, so if
     one of those samples exceeds a standard a citation will be
     issued.  No more averaging.  Significant improvement, guys.
               The rule does propose that we continue sampling
     only eight hours like we're doing now.  We have, however,
     asked for comments as to whether or not we ought to be
     conducting full shift sampling during compliance sampling. 
     The reason we went with eight hours is since the primary
     purpose of that sampling was to tell us whether that plan
     continues to protect you or not, we thought an eight hour
     sample would give us a good feel because, remember, we're
     there so we're going to know what dust controls are in
     place.
               We're going to know what the production is because
     we're doing the sampling.  That doesn't happen now with
     operator sampling because we're not there.  We don't know
     what's happening, but we are soliciting your comments on
     whether MSHA compliance sampling should be full shift
     sampling.
               Also, when we sample we won't just sample one
     occupation for five shifts.  We're going to sample at least
     five occupations on the MMU for one shift, so we're going to
     be sampling six times and taking five samples.  Right now
     the operators sample one occupation.  They do it on five
     shifts.
               We will, as the operator does, sample the roof
     bolter six times a year, and we'll sample those designated
     areas near the MMU six times a year just the way the
     operator is doing now.  Likewise, we'll be sampling Part 90
     miners at the same rate that operators do now.
               There is one difference.  The outby DAs.  We're
     proposing that we sample those once a year.  Right now the
     operators sample them six times a year.  The reason we're
     proposing that is if we look at the data we issue very few
     citations on outby DAs.  Remember, I said we're going to be
     sampling it at least once a year.  If we've got a problem
     DA, we're going to be sampling it more than once a year.
               Again, a key ingredient we believe to MSHA taking
     over all compliance sampling is we're going to be there.  We
     will know what the dust controls are that are in place.  We
     will know what the production is.  We will be able to assess
     the adequacy of that plan every time we sample, again going
     back to my point.  The way to protect you guys is good plans
     that work every shift.
               Abatement.  Abatement sampling.  Right now
     operators do abatement sampling.  We don't know what the
     dust controls are in place.  We don't know what the
     production is.  We're proposing to change that.  MSHA will
     do the abatement sampling.  Because we're doing it, you have
     a right to participate in that abatement sampling, a right
     that you don't have currently.  Also, abatement sampling
     will be based on single sample measurements.  Again, no
     diluting high exposures with low exposures.
               When we sample on an MMU, we'll sample all five
     occupations, not just the occupation that was out of
     compliance.  If it's a DA, we'll sample that DA, and
     compliance will be made on the basis of a single sample
     measurement.
               Production will be higher than when operators
     sampled, and, key, we will sample the full shift on
     abatement sampling.  If you're working ten hours, we're
     going to sample ten hours.  We want to be comfortable when
     we finish that abatement sampling that that plan works to
     protect you on every shift.  I keep coming back to that,
     guys, because that's the key, the way to protect your
     health; a good plan that works every shift.
               I've taken more time than I intended.  Marvin?
               MR. NICHOLS:  Is this mike on?  Can you hear me?
               ALL:  No.
               MR. NICHOLS:  Can you hear me now?
               ALL:  No.
               MR. NICHOLS:  Let's take a five minute -- oh, it's
     on now.  There went your break.
               Okay.  We are having copies of the presentation
     Ron made put together.  We will have that by probably
     sometime late afternoon or earlier for anybody that wants a
     copy of that.  We'll put it on the back table where Pam is.
               Okay.  I think kind of the way the hearing is
     going to go, right now we've got 63 individuals signed up to
     present comments.
               MS. KING:  Sixty-seven.
               MR. NICHOLS:  How many?
               MS. KING:  Sixty-seven.
               MR. NICHOLS:  Sixty-seven and growing, so I would
     expect that we'll be here for sure all day today and
     whatever time it takes tomorrow.  Probably we will run until
     about noon and take an hour break and then come back and
     start again.
               I was asked by the hotel folks to mention that
     there's an all-you-can-eat buffet lunch here, so it's up to
     you guys.
               Why don't we get started?  We have a shortage of
     mikes.  It would help when you come up and do your
     presentation if you could use the podium.  If you prefer to
     use the table, then we can pass this mike back and forth. 
     When you come up and start your presentation, if you would
     please state your name, the organization and spell it for
     the court reporter.  Spell your name.
               Okay.  Anything else?  Okay.  We'll get started. 
     Our first presenter is Joe Main with the United Mine Workers
     of America.  Joe?
               MR. MAIN:  Is it working back there?  My voice is
     about gone, so if it fades out just holler at me.
               I'm Joe Main with the United Mine Workers.  Since
     I presented some extensive testimony on Monday, I'm not
     going to be saying too much here this morning.  I had
     planned on doing some document introductions.  We're going
     to wait until the end of the hearing to do that because
     there are some very important documents that we need to get
     on the record, and we believe that we need to explain those
     clearly to the panel so they understand those.
               I would just like to start off this morning saying
     that we appreciate the opportunity to be here and address
     the proposal issued by MSHA.  I sometimes feel that we're in
     this Mexican standoff, and I'm trying to figure out in my
     mind how this is all playing out, but I think it's a safe
     thing to say that we have said from the beginning there is
     improvements in this rule.  Those deal directly with plan
     verification and single sampling.
               The problem with those two is that they are in
     need of redrafting, in our opinion, and we're going to give
     a lot of reasons why, as we already started to do on the
     record in Morgantown.  I think the presentation that was
     given this morning, we do appreciate that, Ron, but I still
     think it leaves a lot of things missing in those pictures,
     and it always worries me if people don't have a good
     appreciation for this whole process.
               In the plan verification process, as we pointed
     out in Morgantown, the way that's drafted is so
     discretionary that I think in comments I've also heard from
     the operators both sides have a belief that the proposal is
     too discretionary to the point that nobody knows what to
     expect when MSHA shows up at the mine.  That's one major
     problem from the outset.
               I think there's some technical problems that are
     going to be addressed here today with the formulas that's
     used, the production levels, the production rates, how
     verification will actually take place, and really in this
     plan verification process there is a miner participation
     issue, which is not in the rule.  We keep saying that.
               You know, as we look through the rule from front
     to back there's no miner participation rules at all that
     address, you know, the issues that needed to be.  We all
     know that the operators have made clear their plans to
     oppose miner participation in plan verification since it's
     going to be an announced proposal, and that for starters we
     know we're in a big hold before we ever get out of the box.
               If you look at this whole plan verification
     process, it's the operators will do this, and MSHA will do
     this.  Other than the tag along role, there is no provisions
     in there for miner participation involvement.  You know, as
     I sat down and started looking through this, and miners kept
     asking me questions.  Joe, what rights do we have there?
               I said well, if MSHA would prevail in this policy
     you would have a right to participate, which we know is
     going to be challenged unless the operators change position,
     but as far as having any influence over that proposal or
     over that process just hopefully you can influence an
     inspector, but we have no legal rights at all.  That's
     something we're taking a hard look at in terms of this plan
     supposedly protecting miners with a lack of any clear cut
     legal rights that miners would have in this plan
     verification process.
               The single shift sampling.  Just to put it
     bluntly, it ain't what miners asked for.  That's been an
     issue, one of many public hearings and much testimony before
     in the past.  Miners expect a full shift sampling to
     represent their actual exposures, not on spotty sampling.
               I also go back to the plan verification because as
     MSHA pointed out, it's going to take a long time to get
     these plan verifications in place, and if an operator passes
     the first test, which is a pretty stringent standard, which
     we appreciate, but once they pass that test then the real
     back up is compliance sampling to assure that miners are not
     in dust.
               We get over to that side of the aisle, and we look
     at what compliance sampling is.  Hey, it's far short of what
     miners have been saying for years.  I went back through, and
     I hope everybody has a copy of the Dust Advisory Committee
     report because those recommendations, we took them very
     seriously and we've recorded those, but I went back through
     there last night just flipping through here and just looked
     at some of the comments that miners made, the abbreviated
     version.
               You need to read the full text to really give you
     a feel, but how miners talked about the need for more
     frequent sampling, and that was based on the sampling that
     was taking place at the time, which I understand was four
     MSHA samples underground, two on the surface, and 30 shift
     samples by the operator.  Despite this overwhelming plea
     from miners to increase sampling, when we look at the
     proposal it does not do that, and there is a decrease in
     sampling by 83 percent of the shifts sampled under this
     proposal any way that you slice it.
               I had miners in Morgantown after the hearing ask
     me Jim, when is the next time you think we're going to get
     sampled on the midnight shift?  I said well, I didn't know
     what the deal is; if it was six samples a year.  They said
     well, when are we going to get sampled on the afternoon
     shifts?  I said, you know, those are very logical questions
     that, given the nature of the beast that we've had to deal
     with with MSHA, there's not a whole lot of folks that rush
     to the well that want to work overtime shifts in MSHA,
     particularly midnights and the afternoon.  I said you
     basically run an opinion on your past history.  I think it
     will get picked up.
               Going to the six shifts a year, sampling is an
     issue that just cannot and will not be supported by miners
     in the union.  It's contrary to everything that's been said
     by miners and mine workers over the years.
               The outby sampling.  There was some discussion in
     Morgantown about that, and I think some miners made it very
     clear that the old system or the current system is
     inadequate.  There is an entry for the sampling.  I read
     back through the notes of the July, 1998, meeting that was
     held on plan verification, and that was one point that was
     raised that MSHA had committed to go back and take another
     look at.  When they did, we wasn't happy with the end
     result.  They went from bimonthly sampling outby to one
     shift outby.  That's not the direction that miners had
     perceived this whole rule to go in or the direction of the
     reform.
               There are several other issues that we've already
     pointed out in the record that I think have not been clearly
     stated here.  The compliance sample.  Miners have to
     understand, and it's not in the rule, but it's the position
     that the agency has taken, which they've informed us of,
     that the two milligram standard as contained in the proposed
     rule under 70.100 is not a two milligram standard when it
     goes to be applied for compliance.  It's going to be a 2.33
     standard which the citation is going to be issued on.
               That is not contained in the rule.  It's in the
     reference on page whatever it is there in the preamble by
     some formula that miners, unless we tell them all this, has
     no clue.  We think that's very unfair for the agency not to
     have stated that equivocally since I understand I have been
     told that is their plan.  It's not in the rule.  It wasn't
     publicly noticed properly for miners to have a chance to
     respond to it.
               Additionally, miners who work outby and miners who
     work as Part 90 miners are going to have their standard
     increased for compliance purposes to 1.26.  Again, I think
     that's unfair not to have that kind of standard noticed in
     the rule for miners to clearly know these compliance
     standards are being elevated.
               So when you look at it you go back and say okay,
     we're going to have six samples a year.  There are going to
     be eight hour samples, not full shift samples.  They're
     going to be based not on the two milligram standard, but on
     the 2.33 milligram standard or 1.26 milligram standard.  The
     rules have changed there.  That is not, I don't think,
     favorable to miners.
               If you look at the Dust Advisory Committee in the
     recommendations of miners, I can't find anywhere where any
     miner has gone on record where the DHC was on record saying
     increase the dust levels.  That is just totally contrary to
     the direction of I think the entire record on reform.
               Now, there might have been some mine operators had
     asked for that, and I think there was some mine operators
     that asked for some increases somewhere along the line, but
     there is no evidence that I found where miners have come to
     this agency and said reduce and eliminate black lung by
     raising our dust levels.  It's just not there.  That's a
     real problem that this union is not going to support, and I
     don't think you're going to find miners who support that.
               The whole idea of jacking up dust levels to four
     milligrams on long walls.  As we said before, that is part
     of the deal, and this is a deal that we've sort of kind of
     realized because there was a lot of tradeoffs for miners to
     get two things, of course, that are still inadequate, but as
     part of the deal a lot of miners are going to find
     themselves working some of them in the same scheme like what
     the miner has here now with their dust levels jacked up two
     more milligrams, and we think that's a deterioration of the
     protections for miners.
               We sit back and say how in the world does that
     accomplish the eradication of pneumoconiosis by raising the
     dust level to four milligrams?  It doesn't make sense in our
     heads, and again we will not support that kind of a
     proposal.  As we said, too, the standards by which miners
     can point a finger to and say MSHA, go do this, or,
     operator, go do this, those have been wiped out of the
     standard or out of the rules with regard to the whole
     sampling scheme.
               Miners have to rely on running up to Marvin
     Nichols and whoever the new administrator will be after the
     next President, who could be another Ford B. Ford, who made
     a decision in 1981, whenever it was, to cut the dust
     inspections back in coal mines right after we come out of
     one of these reform periods and ask gee, would you come and
     do my six dust samplings a year because you're not
     guaranteed under the law, and there's no firm guarantee that
     those samples will even take place two and three years from
     now.  It was a pig in a poke proposal.
               The style of the proposal itself is laced with so
     much policy application and laced with so much discretionary
     control by the agency that the operators nor the miners know
     exactly what to expect when MSHA comes out.  It's sort of
     like hopefully you're good friends with the inspector when
     he makes a decision on a plan verification.  If he happens
     to be PO'd at you because you got on his case for something
     that he didn't cite, I mean, this whole standard is just
     designed in a way that allows too much personal influence in
     the decision making process.  It's not good for miners and
     not good for mine operators.  There's where we have the
     rules played out there.
               In terms of the ability of miners to understand
     this rule, it is so complex it has taken lawyers, safety
     reps.  I've pointed this out to safety committees and let
     them sit down and take a look at it.  The rule is so complex
     that if you don't have a lawyer, and I had to have a lawyer
     with me and the good help of some MSHA folks like you to
     really understand it.  I'm saying I know so much about this
     whole process.  I've served on the DAC committee to help
     make these recommendations, and if I can't figure this stuff
     out how on earth is the coal miner supposed to?  I've got
     access to all these resources.
               It's a very complicated rule, and it doesn't say
     what it means and doesn't mean what it says because of the
     policies that apply throughout the rules.  There is so much
     that is problematic with this rule that it overshadows the
     good steps forward it's taken.
               The actions taken by MSHA that they responded to
     the four issues in a lawsuit filed by the UMWA.  I'm telling
     you here now I swear to God those ain't taken care of.  I
     think it was a disservice to the public and to the mine
     workers for the agency to say, given the immense amount of
     work that has been done by miners and by the union, to have
     those four issues addressed to just chart them back in some
     discussion in the preamble and claim to the world we
     addressed those because that's exactly what you folks did.
               Until I see a rule that says those, until miners
     see a rule that says those things that we asked for, those
     are not taken care of.  We're not going to settle for policy
     statements that could be changed by the next Administration,
     and we're not going to settle for some assertation that
     these had been addressed in rule making when in fact they
     are nothing out there tangible that the miner has.
               There is no takeover of the operator program as we
     had envisioned.  There is no takeover of the operator
     program as recommended by the advisory committee.  There is
     no takeover of the program that would at least maintain the
     frequency of sampling that we had in 1996, let alone today. 
     Until those things are accomplished, there will be no
     support for the mine workers.
               The record on the Dust Advisory Committee I think
     is quite clear.  There was a lot of big discussion.  I
     remember I think it was at the Lexington meeting you came
     forward and talked about the possibility of MSHA doing a
     monthly sampling scheme.  I think it was 12 a year.  During
     this whole discussion, I think the advisory committee in its
     final action made it clear that that was not acceptable to
     the advisory committee, and when it issued its final
     recommendation calling for at least the frequency in number
     of those of MSHA and the operator that meant what it said. 
     At least that number.
               For anybody to think that -- we had miners that
     testified in Morgantown that their mine, 900 shifts a year,
     to say on three shifts a year we're going to validate those
     miners' exposure and say we're comfortable with that that
     those miners are being protected and we're eradicating black
     lung with those kinds of approaches is dead wrong.  It's a
     wrong headed approach.  It flies in the face of what miners
     have demanded for years.  It flies in the face of the
     findings of the advisory committee, and it's just totally
     unacceptable.
               I'm not going to spend a lot of time up here today
     going through these, but I think that what's happened here
     is MSHA has made a calculated decision, and maybe rightfully
     in their own mind, that this thing is going to work.  I
     think whenever miners saw it, when we see it at the bottom,
     and understand how this thing is really going to be
     implemented, it's not going to work.
               My fear is that this is the last reform that
     miners are going to see.  It took us -- to get to the stage
     we're at today, it took us over 20 years to get here.  With
     the pace of regulatory reform in this country, I'll probably
     be in a grave somewhere by the time this thing gets reformed
     again, and so will a lot of miners.
               I am not going to be one to stand up and say this
     is the kind of reform that we need to protect the miners in
     this country when I know it's dead wrong.  I don't agree
     with it.  I think it's wrong headed, and I think the agency
     missed the big mark when they failed to follow the
     recommendations of that advisory committee.
               The next time I get asked to serve on an advisory
     committee I'm going to ask a simple question.  Are you
     really going to do what the advisory committee requests us
     to do?  If the answer is no, I'm not wasting my time.
               I apologize to a lot of miners out there that I
     had to come to this hearing to testify to tell what was
     going on in the coal mines because a lot of them told me
     Joe, the government ain't going to listen to us.  They ain't
     listened to us in the past.  They're not going to listen to
     us again.  I said this time, guys, I think they will.
               There's so much on the record here.  There is such
     a case that's been built that miners have been put in
     unhealthy dust for so much of their lives.  We've had just
     thousands and thousands of miners dying from this disease. 
     We've got all this corruption going on in this country with
     the sampling program.  I think this time they will listen.
               I was wrong, and I apologize, and I will not bring
     miners back to go through that exercise again.  If the
     government ain't going to follow the recommendations of
     their own committee, by golly, don't appoint them and waste
     the public's time.
               Now that you've done it, I think the proclamation
     on this rule is not fair.  I think there's a lot that we
     pointed out here in the hearings that we have said that we
     verified that are not in the rule, not in the rule, not in
     the rule.  Things have been stripped out of the rule.  There
     is protections that are being diminished.  Miners'
     participation marginally, only by policy, has seen some
     improvements, and those are not guaranteed; only by the Mine
     Act that's been in effect for years.
               What we said at Morgantown is this proposal is
     fatally flawed.  It needs to be sent back.  Go back to the
     drawing board and come out with another one that really
     reflects the needs of the nation's miners, reflects the
     findings of the advisory committee because our lawyers in
     our department and others have taken a look at this and come
     to the conclusion the kind of reforms that need to take
     place to fix those things that follow the recommendations of
     the advisory committee, that institute the lawsuit issues,
     to respond to the needs of miners, cannot be done
     legitimately in this rule making.  You're too far off the
     path to go back and mandate it.
               This is a proposal that bandaids won't work.  It
     needs to go to the emergency room.  It needs to come back
     out of there with the whole body that really addresses the
     issues that face the nation's miners.
               As far as trying to do something here, what this
     proposal represents is give a little bit to the miners and
     give some to the operators here.  We are for reforming the
     program in the best interest of the miners in this country;
     nothing short of that.
               We fully expect the government to at least once in
     its long string of activity to take the concerns and the
     needs of miners to heart by thinking for a while how this
     affects MSHA and think for a while how this really affects
     miners and what miners really said they want and need and
     come back out with a proposal that reflects the changes that
     are necessary.
               Thank you very much.
               MR. NICHOLS:  Thank you, Joe.
               (Applause.)
               MR. NICHOLS:  Our next presenter will be Tom
     Wilson, United Mine Workers of America.
               MR. WILSON:  I'm Tom Wilson, T-O-M, W-I-L-S-O-N. 
     I work for the United Mine Workers of America International
     Union.
               It was suggested yesterday to me that probably a
     good thing for me to do today would be cover the -- give an
     overview and cover the history of what got us here today.
               As I was sitting in my room last night at
     2:00 a.m., I got so frustrated with that approach that I
     decided just go back and explain in my view what's occurred
     since July 7.
               Joe Main just mentioned the complexity of these
     rules.  That's an understatement.  On July 7, I received a
     phone call and was asked to get my hands on the proposals
     that MSHA had just released by the end of the day, while I'm
     to start reviewing those proposals over the weekend and to
     give an opinion of them on the following Monday, on July 10.
               Right here in my hands is what was on the Internet
     on July 7 that MSHA had released that morning.  I started
     reading that.  By Monday morning, by no way, shape or form
     was I completed reviewing it, but I had formed an opinion
     that somewhere along the line MSHA obviously didn't look at
     the record and didn't listen to the testimony.
               Between July 7 and the 10th, I reviewed the
     package.  I shared my opinion on July 10, and I immediately
     ordered this material, which was the background of what
     should have got us a proposed rule.  In here is the task
     group report done in 1992, and in the preamble, which I had
     read over the weekend, MSHA mentions the task group report.
     They mention their findings, or at least in part, and they
     state, "The effort to implement these changes was suspended
     pending the recommendations of the Advisory Committee on the
     Elimination of Pneumoconiosis Among Coal Mine Workers, which
     was convened in 1996."
               There's another way of saying that.  There's a Tom
     Wilson way of saying that.  From 1992 to 1996 nothing was
     done, and we formed another committee and we looked at it
     again.
               Also in what I requested on the 10th was NIOSH's
     document, Occupational Exposure to Respirable Coal Mine
     Dust: Criteria for a Recommended Standard.  I believe that
     was done around 1995.  I could be wrong on that.
               Then, in 1996, the advisory committee report. 
     Now, the UMWA had Joe Main and Dr. Weiss as members of the
     advisory committee.  Short of them, I probably attended more
     advisory committee meetings and worked in conjunction with
     Joe and Jim throughout those hearings, and I guess it was
     because of that I got the phone call on July 7 asking me to
     take a look and form an opinion.
               Also in the material I ordered on July 10 was the
     UMWA's lawsuit against MSHA.  Now, that was filed early
     2000.  Another four years, just like the task group report,
     had gone by, and there had been no movement.
               Even though I had formed an early opinion on
     July 10, between July 10 and July 17 I continued to review
     Packages 1 and 2, and this was continuously during that
     process.  The more I reviewed, the more frustrated I got;
     the more need I felt for going even deeper into the record.
               I remember back there in the advisory committee
     meetings observing something and having a thought.  Whether
     right or wrong, the thought entered my mind.  I see top MSHA
     officials pop in, maybe speak for a few minutes and pop out
     of that process.  The thought entered my mind at that time
     and again this week what possible chance was there to
     understand the problems and find a solution by just popping
     in and popping out?
               I assume they had read the report and the
     transcripts of what was said at those meetings.  I'm sitting
     here today.  I don't believe it because on July 18 I started
     reviewing the transcripts of the advisory committee
     hearings, and just like the process of starting and trying
     to absorb everything in the July 7 document, which I'll be
     very honest.  To this date I have not accomplished reading
     and absorbing all of this information.  To this date, I have
     not accomplished reading and absorbing all this information,
     and by no means did I accomplish reading word for word the
     transcripts.
               I got so frustrated with this process that between
     July 18 and 31, day after day, I called my local unions and
     asked them to come and assist in reviewing these transcripts
     and had as many as three per day volunteers assisting me
     going through the transcripts.  Even with that team, we
     didn't make a dent in it.
               I remember getting frustrated, and along about
     that time I called MSHA-Arlington thinking that possibly
     they had a shortcut to what I was seeking to find in these
     documents.  Possibly they had an index by topic of where it
     was found in those transcripts.  I was assured no such index
     existed at MSHA.
               Well, by this time we're at the end of July. 
     August 1 through August 9 I, to the best of my ability,
     myself and the safety committees and miners' reps, started
     preparing for today's hearing while continuing to do this
     review.
               The history on this subject, the record on this
     subject, and this is just the tip of the iceberg, and
     everybody on this panel knows this.  There hasn't been a
     decade gone by that miners haven't came to the mike and
     testified, that a record hasn't been made, and for a big
     part that record is pretty much consistent.
               I stopped at the office yesterday morning.  You
     know, one great thing is that we get to come to these public
     hearings and state how we feel and why we feel that way.  I
     picked up a bulletin yesterday morning released by MSHA on
     best practices on mine fires.  Whether the thought is right
     or wrong, it's a thought that Tom Wilson had that I'm
     surprised we're even having public hearings on dust. 
     Instead, it wouldn't surprise me just getting a memo on
     MSHA's best practices on dust.
               I view MSHA.  There's been a change in my heart
     and in my mind over the years.  Back in 1996, as I was
     attending those advisory committee meetings, I believe that
     I still felt and believed that MSHA was an agency that was
     after the best interests of the miners, that at that time
     they was going to take the advisory committee report, and
     they was going to do what was right.
               Today, Tom Wilson is of the opinion that MSHA is
     an agency that avoids enforcement and doesn't always look at
     what's in the best interests of the miners.  I believe some
     of the proposals in this rule speak specifically to that,
     and I would like to go into that in a minute.
               Ron, as you spoke I started making a few notes. 
     Your diagram showed -- in fact, the one on the screen now --
     a proposed approach.  Now, I believe what you're going to
     hear today, and I don't think I disagree that that's MSHA
     proposed approach.  That lays it out, but it's what's not up
     on that screen.  It's what MSHA's proposal doesn't do.
               It's the many areas that you turn a deaf ear to
     the reports that you commissioned to have done, the
     recommendations that came forth from those experts studying
     the problem in detail, not just popping in and out for an
     appearance, but studying it, giving it thoughtfulness,
     identifying the problems and searching for a solution. 
     Those are the things that I view that's missing from this
     proposal.  It's the pages and pages of transcripts of
     testimony, of discussions and intent between panel members
     that's missing from today's proposal.
               I view that even though all that was commissioned,
     all that was done and all that was finalized, MSHA still
     went of on a path of their own saying disregard what our
     past group has said.  Disregard what our advisory committee
     said.  We've got a better solution.  I believe with all my
     heart that you're wrong; that your solution will not solve
     the problems identified by the miners and discussed by the
     panels and the committees over the years.
               Ron, your demonstration pointed out effectiveness
     of plans; that 60 percent of the average production is
     currently required, that under the proposal higher than
     average production.  I personally believe that's a play on
     words.  The question must then be asked how much higher
     because I know, and I believe everybody on this panel knows,
     that it's nowhere close to the percentage suggested by the
     advisory committee.
               In my frustrations last night at 2:00 a.m., I
     decided just to go back to the basics.  By no means have I
     read enough or am I smart enough to talk a great deal about
     each and every one of these recommendations, but I am going
     to touch on some, and I'm going to go down the list.  It's
     Section 6, Statement of Committee Recommendations, found in
     the advisory committee report.
               Recommendation No. 1.  MSHA should consider
     lowering the level of allowable exposure to coal mine dust.
     Any reduction in the level should include a phase in period
     to allow allocation of sufficient resources to a compliant
     effort.  In the interim, the operators, MSHA and miners
     should develop a comprehensive program to assure compliance
     with the current permissible exposure level.  This effort
     should include at least targeted compliance efforts, sharing
     of documented exposure for reduction approaches, e.g.,
     increased water sprays, scrubbers on continuous miners, dust
     control plan parameters and increased good faith effort
     consideration in enforcement actions.
               When you read 72.12, it puts miners working
     downwind of the DO, which are required to wear PAPBs, at two
     times the verification limit.  I believe that's four
     milligrams.  MSHA should consider lowering the level of
     allowable exposure to coal mine dust.  I don't know how we
     get from that to miners work working downwind in four
     milligrams.
               MSHA makes adjustments to the PELs to account for
     measurements of uncertainty.  I hear MSHA's reasoning for
     that, but again from my perspective it's going the opposite
     direction of the recommendation.  I believe both of those
     are just examples of where MSHA has turned a deaf ear to
     what's in the records.
               Recommendation No. 4.  Environmental control
     measures should continue to be the primary means of
     maintaining respirable dust levels in the mine atmosphere in
     the active workings in compliance.  Respiratory protective
     equipment should not replace these control measures, but
     should continue to be provided to miners until environmental
     controls are implemented that are capable of maintaining the
     respirable dust levels in compliance.
               Administrative controls should only be utilized in
     situations similar to respiratory controls as interim
     control measures while environmental controls are being
     installed.  Again, 72.12 allows use of PAPRs to supplement
     engineering controls.  72.14 uses language like all feasible
     engineering controls.
               I know I've heard about this panel of experts
     that's going to be assisting you, Marvin, in making that
     decision on when that's approved, but for the life of me I'm
     going to say it like it is.  I have absolutely no faith that
     that panel of experts is going to make the right decision.
               I come from Alabama.  I know we have the most
     grindability coal in the nation, the highest air velocities,
     and you all know where our long walls was and you know where
     are long walls are at today.  I've seen teams of management
     and labor go overseas to the manufacturers of long walls and
     implement engineering controls that Tom Wilson never thought
     of and I have no assurance that the panel of experts will
     think of that not only reduce dust levels on their long
     walls, but allowed them to operate those long walls at a
     reduced standard of one milligram and be in compliance.
               I've seen other long walls where a few years back,
     and you all know I was screaming.  I was pushing every
     button I could push to turn things around.  Long walls that
     had eight milligrams on them.  These are long walls that are
     producing the highest grindability coal in the nation under
     the highest air velocities.  It was not uncommon to have one
     milligram coming in at the headgate and eight milligrams
     leaving at the tailgate.
               We was all called into a room and gave an
     ultimatum.  Either give us airstream helmets or we're going
     to shut these long walls down.  You know what the UMWA did.
     There's no airstream helmets introduced, and those dust
     levels, because of the engineering controls that came down,
     engineering controls that MSHA top personnel traveled to
     Alabama to see.
               Now, in my mind I just gave you some examples of
     the worst case scenarios, and because of the engineering
     controls and a lot of hard effort by everybody those dust
     levels came down.  I believe in this case MSHA is trying to
     take the easy way out.  They know it can be done.  They've
     seen it done.  They know the advisory committee recommended
     against airstream helmets replacing engineering controls,
     but under this proposed rule we're saying there's going to
     be occasions where the administrator and his panel of
     experts need to go the opposite direction with this.  I
     strongly disagree.
               72.14, like I mentioned, uses language like all
     feasible engineering controls.  What are all these feasible
     engineering controls?  What the hell is feasible?  I think
     you know sitting here today the argument that's going to be
     presented as to what is feasible and what's not.  I've heard
     it for years.
               72.14 also states continue to look for
     improvements that you can make.  I've heard those arguments
     for years.  We've looked.  That scrubber is too big, or that
     scrubber is too small, when the bottom line was they just
     didn't want to install a scrubber.  It also uses language
     like implement feasible solutions.  With all that said, I
     have no confidence that this system is going to turn us any
     direction but backwards.
               Recommendation No. 6.  During this verification
     visit, miners and their representatives should have the same
     paid 103(f) walk around rights as they do under MSHA
     inspections.  I stated earlier by no means did I finish
     reading those transcripts word for word, but I did get far
     enough to review the total conversation between committee
     members on notified visits.
               The problem was perceived and detected early back
     in 1996 by the operators that once MSHA notifies of a visit
     it cannot be considered an inspection, and, therefore, they
     was not obligated to pay 103(f) walk around rights.  It's in
     the record.  The complete discussion is in the record, and
     after that complete discussion the advisory committee comes
     out with Recommendation No. 6, the advisory committee that
     you formed, you appointed and selected to study the problem
     and come up with a solution.
               Now, if there's no other example that leads you to
     how did Tom Wilson form his opinion that MSHA turned a deaf
     ear to those parts they didn't like or didn't support, I
     think that one should point pretty clear to it.
               Recommendation No. 8.  MSHA should complete
     research in consultation with outer agencies such as NIOSH
     to study the relation between -- I have to apologize; the
     pages are starting to blur -- indices collected from
     continuous monitors and the traditional methods of assessing
     exposure to respirable dust when these different methods are
     applied to the functions of hazards surveillance, as well as
     developing other potential uses of continuous monitoring
     data; for example, compliance activity.
               Where is it?  One brief little sentence?  The
     advisory committee clearly recognized that part of the
     solution to the total pie approach of fixing the problem was
     continuous monitoring.  I can't say that my opinion
     represents all the miners here, but my opinion is MSHA, with
     their one, brief little statement about continuous
     monitoring, all but put the knife in the back of continuous
     monitoring.
               It continues on.  Once the technology for
     continuous dust monitors has been verified, these monitors
     should be broadly applied in conjunction with other sampling
     methods for surveillance and determination of dust control
     at all MMUs and other locations at high risk of elevated
     dust exposure.  Once verified as reliable, as in (1) above,
     MSHA should use continuous monitored data for assessing
     operator compliance efforts and controlling miner exposure
     and should continue use of continuous monitored data
     directly in compliance.
               MSHA should take whatever action possible to
     expedite the development and field testing of a continuous
     personal monitor to serve a variety of purposes, among them
     identifying sources and levels of exposure to respirable
     dust and, as appropriate, for compliance.  Again, I feel
     MSHA has failed the coal miner.  Machine mounted continuous
     monitors is just briefly mentioned in this package, and we
     all know that the personal wearable continuous monitor that
     MSHA went after to design is not worth refinement.
               Recommendation No. 15.  MSHA reliance on dust
     sampling for compliance should be based on the appropriate
     balance of personal, occupational and environmental
     sampling.  Some of the comments here will also apply in
     Recommendation No. 16.  I don't believe MSHA went after that
     proper balance as Recommendation No. 15 speaks to.
               I believe MSHA looked at, and the term was used to
     me last week and I immediately wrote it down because it
     struck a chord with me as being the truth.  I believe MSHA
     looked at the sampling burden on themselves; not on the
     health, what was the best for the health of the miners, but
     again on the sampling burden.
               When MSHA currently does bimonthlies, what
     percentage of production do they require for a sample to be
     valid?  I believe it's 60 percent.
               MR. SCHELL:  Of the average.
               MR. WILSON:  Of the average.  And under the rules
     what would it be?
               MR. SCHELL:  It would be roughly 70, the 70th
     percentile, so it would be significantly above the average.
     Rather than 60 percent of the average, it would be
     significantly above.
               MALE VOICE:  Use the mike, please.
               MR. SCHELL:  I'm sorry.  I'm sorry.  Tom, I'm
     sorry.  You're asking about compliance sampling.  Compliance
     sampling would still be what it is today, which is 60
     percent of the average.
               MR. WILSON:  The same.
               MR. SCHELL:  What I was referring to, and this is
     a bad microphone.  Are you hearing anything at all back
     there?
               What I was referring to was above the average, the
     verification.  Tom, that is an improvement over what the
     operators do now.  As you know, they use 50 percent.
               MR. WILSON:  Ron, as you know, it's far under what
     was recommended by the advisory committee.
               MR. SCHELL:  Tom, I honestly don't remember what
     the advisory committee recommended for compliance sampling.
     Clearly they recommended in verification sampling that it
     should be near the upper limits of production, and that's
     why upon verification we went significantly above the
     average.
               MR. WILSON:  You use words like significantly. 
     70.2(a)(8) defines verification production levels, VPL, as
     the tenth high production level recorded in the most recent
     30 production shifts.  I've heard numbers that that
     calculates out to 67 percent.  You just used 70 percent.  I
     again believe that it's far less than what the advisory
     committee spoke to, and I believe 16 gets into it even
     further.
               MSHA should adjust the PELs to account for
     extended work weeks.  MSHA should develop a formal targeting
     mechanism for more frequent sampling of mining sections,
     mining units and operators found to have a history of non-
     compliance with the respirable dust standards or sampling
     procedures.  MSHA should explore innovative ways to enhance
     its presence in mines for compliance sampling.
               (b), The committee believes that any MSHA resource
     constraints should be overcome by mine operator support for
     MSHA compliance sampling.  The committee recommends that to
     the degree that MSHA's resources cannot serve the objective
     identified, resource constraints should be overcome by mine
     operator funding for such incremental MSHA compliance
     sampling.
               16(c), The committee considers it a high priority
     that MSHA take full responsibility for all compliance
     sampling at a level which assures representative samples of
     respirable dust exposure under usual conditions of work.  In
     this regard, MSHA should explore all possible means to
     secure adequate resources to achieve this end without
     adverse impact on the remainder of the agency's resources
     and responsibilities.
               Compliance sampling should be carried out at a
     number and frequency at least at the level currently
     required of the operators and MSHA.  The miners'
     representatives would be afforded the opportunity to
     participate in these inspection activities as provided in
     Section 103(f) of the Mine Act.  Operator compliance
     sampling in the interim should continue with substantial
     improvements to increase credibility of the program based on
     the committee's recommendation.
               (f), MSHA should increase the number of samples
     collected by the agency to determine compliance with
     respirable dust standards.  MSHA should place major emphasis
     on the use of personal monitoring for determining compliance
     with PELs.  However, MSHA should continue the practice of
     designated occupational sampling for determining non-
     compliance.
               (e), MSHA should make no upward adjustments to the
     PELs to account for measurement uncertainty.
               (g), Mine operators should continue to measure
     exposure to respirable dust for DOs, DWPs and DA compliance
     sampling as provided in 30 CFR 71 and 90.  Additionally,
     mine operators should sample as part of plan verification
     operator sampling.
               (i), Samples taken to determine non-compliance
     should be taken when production is sufficiently close to the
     noraml production shift.  The production level should be 90
     percent of the average production of the last 30 production
     shifts, and MSHA should require the mine operator to
     maintain the appropriate records.
               (j), MSHA should adjust the PELs to account for
     extended work shifts.  Again, when you look at that
     language, you look at the transcript that supports that
     language, I do not believe your rule, proposed rule, follows
     those recommendations.
               Recommendation 17.  Continuous monitors for dust
     control parameters should be utilized to evaluate and assess
     the quality of dust control measure as part of mine
     respirable dust control plans.
               And 19, Recommendation No. 19.  Again, as I
     mentioned earlier, if there's any doubt how Tom Wilson
     formed his opinion that MSHA went off on their own path by
     trying to address parts of the problem and failed to look at
     the whole problem and the whole solution, this is one of the
     clearest examples that I can draw to.
               In an earlier recommendation we already heard the
     committee's recommendation on 103(f) walk arounds during
     plan verifications.  This is Recommendation No. 19(a). 
     Miners' participation in the interim operator dust sampling
     program should be increased to provide assurances that a
     credible and effective dust sampling program is in place.
               To that end, miners at each mine should select
     designated representatives who are employed at that mine for
     compliance sampling.  Miners designated as representatives
     of the miners should be afforded the opportunity to
     participate in all aspects of respirable dust sampling for
     compliance at the mine.  That participation would include
     protection against loss of pay as provided under Section
     103(f) of the federal Mine Act.
               19(b), Miners' representatives should have a right
     to participate in dust sampling activities that would be
     carried out by the employer for verification of dust control
     plans at no loss of pay.  Miners' representatives should
     also have a right to participate in any activities involving
     any handling of continuous dust monitoring devices or the
     extraction of data from continuous dust monitoring devices
     without loss of pay.
               19(c), Miners' representatives should receive
     training and certification to conduct respirable dust
     sampling paid by the employer.  Miners' representatives
     should be afforded the opportunity without loss of pay from
     the mine operator to participate in the training of the
     miners.
               As stated earlier, if you review the transcripts
     of the advisory committee, the discussion between the
     committee members, recognize that they foreseen the problem
     back in 1996.  It was addressed by the operators then.  The
     proposal simply doesn't address it.  MSHA has skirted the
     issues, again I believe took an easy route and failed to
     look at the whole problem and the whole solution.
               Today you're going to hear probably in excess of
     60 miners that I'm sure will give their examples and lay the
     case out far better than I can, but I echo the message that
     Joe stated earlier.  You have failed to follow the
     committee's recommendations.  The proposals are flawed.  Go
     back to the drawing board and fix these proposed rules.
               Thank you.
               (Applause.)
               MR. SCHELL:  Thanks, Tom.  Just a couple comments.
               Tom, I would like to just clarify one point.  I'm
     not trying to be argumentative here.  I'm trying to explain
     why we did what we did so you'll understand.  You still
     certainly have a right to object to it.
               One of the concerns I think that we all agree with
     is the impact that averaging multiple samples has on the
     protection of miners.  You can go out, and you can sample
     and take five samples, and you can get a 3.5, a 4.1, and
     then you come in with 1.0 or .8 or whatever else.  You add
     them all up and you divide them, and if they come below 2.1
     under the current system everybody is okay.
               They're not okay.  One of those miners is exposed
     to three milligrams.  We've done actual cases where miners
     have been exposed to four milligrams of dust, and when you
     average it we say the miner is okay because you dilute the
     high exposures with the low exposures.
               What we're talking about is going to single
     samples, so no more do you get the 4.5s, the 3.5s.  The
     reason that we have proposed going to citing at 2.33 is a
     legal reason, and that reason simply is that the Secretary
     of Labor bears the burden legally if there's a contest of
     proving that there was a violation.
               I'm not a mathematician, but if we cite 2.0 or
     2.1, and I think Dr. Weeks will probably address this. 
     There's about a 50/50 chance that there was a violation,
     there was a violation of the standard or there wasn't.  We
     have problems sustaining before a Judge that there was a
     violation of 2.0, a 50/50 chance.  If we cite at 2.33, we
     have or we can statistically prove a very high confidence
     level that that miner was overexposed.
               The point I want to make is the great advantage to
     the miner in citing on single samples.  We don't have that
     many between the range of 2.1 and 2.33.  The great advantage
     to the miner again is using single sampling.  I can
     appreciate you can be concerned that we're not citing at
     2.0, I wanted you to understand that we're doing it for
     legal reasons.  Again, the great advantage to the miner is
     using single sample measurements and looking at every sample
     and not allowing them to be averaged.
               MR. NICHOLS:  Okay.  Daryl Dewberry will be up
     next, but let's break until 10:30.  Daryl, if you could be
     back and ready to go at 10:30.
               (Whereupon, a short recess was taken.)
               MR. NICHOLS:  Okay, Daryl.  Go ahead.
               MR. DEWBERRY:  Thank you, sir.  My name is Daryl
     Dewberry, D-A-R-Y-L, D-E-W-B-E-R-R-Y.  Before I make my
     presentation, I think that I need to get Joe to come back to
     the mike to straighten out something or rebut something that
     Ron had stated.  At this time, I would yield to Joe Main.
               MR. MAIN:  Thank you, Daryl.
               As we go through this, I'm not going to be
     interrupting.  I'm going to try to wait until the end, but I
     think this is such an important issue, Ron, that people need
     to understand what's really going here with the dust
     exposure levels.
               I understand the position MSHA has taken with
     regard to they jacked up to two milligrams and 2.23 for the
     legal issue.  That may be all well and good if you want to
     wed yourself to saying that you want to use two as a base.
               I'd like to introduce into the record, and I think
     there's enough to go around, a document.  I want to
     introduce into the record a document that was published in
     the Federal Register on April 24, 2000, by MSHA.  I don't
     want to add a lot more confusion to this whole debate over
     dust levels.  Not that I'm going to; I think the MSHA
     already has.
               What it is is a notice of potential rule making by
     MSHA, and what it says is that the 1996 Secretary of Labor's
     Advisory Committee on the Elimination of Pneumoconiosis
     Amongst Coal Miners recommended that we consider lowering
     the dust permissible exposure limit, PEL.
               In 1995, the National Institute for Occupation
     Safety and Health issued a criteria document in which they
     recommended that the respirable dust level or dust PEL be
     cut in half.  We're considering rule making to lower the
     dust PEL because miners continue to be at risk of developing
     dust condition occupation lung disease.
               Now, for the record I would like to say that on
     April 24, 2000, less than three months before MSHA issued
     this proposed rule, they put out an announcement that they
     were considering cutting the PEL in half, which means two
     would be one as I read it, and that was consistent with what
     the NIOSH criteria document is.
               Now we sit here, and we have a proposal on the
     heels of this announcement saying we're raising up the PELs
     to actually be an exposure level of 2.3 and 1.6, and a lot
     of operators will go from two milligrams to four milligrams.
               I'll tell you, if you guys haven't left me totally
     confused as to where the agency is at.  I mean, I don't know
     what any miner or what any of us should think, but I think
     the agency on one hand issuing a public notice saying we're
     considering going to one milligram and then having a
     proposal that increases these across the board is
     outrageous.  It's outrageous for government policy to do
     that.
               Secondly, with regard to the 2.3, if MSHA wanted
     to have a two milligram standard they could have followed
     the recommendation of the advisory committee and lowered the
     dust standard.  They could have followed their own notice
     and lowered the darn thing down to where they ended up with
     the two milligram standard if they chose to do that.
               The agency is thinking -- I'm not sure exactly
     what the heck the agency is thinking, to be honest with you,
     given the fact that this proposal comes out in April and we
     have one in July that goes completely in a different
     direction.  I understand the legal argument there, but I
     don't think it's fair in the context of what has been placed
     on the record, the demands for lowering the standard, the
     agency's own position as noticed in April, 2000, of
     considering cutting the standard in half.
               I don't think I'm the only one that's totally
     confused in this room about where MSHA is at on dust
     standards in this country.
               (Applause.)
               MR. NICHOLS:  Thanks, Jim.
               MR. MAIN:  Okay.
               MR. DEWBERRY:  As I stated earlier, my name is
     Daryl Dewberry.  I am the international executive board
     member for District 20, which encompasses Alabama,
     Mississippi, Georgia, Florida, South Carolina, North
     Carolina, Tennessee, Virginia and eastern Kentucky.  With
     that said, I welcome each and every one of you to District
     20, United Mine Workers of America.
               I'll give you a little background about myself. 
     I'm going on my third term as international executive board
     member.  I've been in that position since 1993.  Prior to
     that I was a District 20 executive board member from 1985 to
     1993.
               My duties are to represent the miners in all
     phases of their problems, such as arbitration, mediation,
     litigation and resolution of their problems and negotiate
     their collective bargaining agreements.  Prior to that I was
     a local union president, 2397.  I served as the chair of the
     safety committee, served on the mine committee, compact
     committee and organizing committee.
               My mining experience is I went to work at North
     River Energy in 1975, which was Republic Steel then -- it's
     P&M Coal Company now -- and then on to underground
     development sinking the shafts at Jim Walter Resources, a
     hard rock miner.  From there I went to Mulville Coal
     Company, from there to Jim Walter Resources No. 7 Mine.  I
     left No. 7 Mine and went to work for the district as a
     district rep.
               I've held the classifications of a miner operator. 
     Mostly that's what I was in my tenure employment there. 
     I've been a fireball, shot fireman, first class welder,
     pumper.  Prior to that I was a journeyman ironworker.  I'm
     registered with the State of Alabama as a certified
     competent mine foreman since October of 1981.  My
     certificate number is 5284.
               I also served on the state board of examiners,
     which was appointed by the Governor of the State of Alabama. 
     That's a state mining board of examiners.  I'm also
     certified with MSHA in dust sampling.
               A few weeks ago, as a matter of fact on the
     morning of July 7, I started my day like most mornings.  I
     put on a pot of coffee, and I went out to get the newspaper. 
     I opened it up, and right on the very front page -- let me
     get the right one here -- it says Rules Aimed At Protecting
     Coal Miners.  It goes on to state, "After a lawsuit for
     United Mine Workers of America, federal officials have
     proposed new rules to keep miners from developing black lung
     disease."
               I instantly started wondering and thinking is this
     true?  I read on into the article and saw quotes by Davitt
     McAteer, the Assistant Secretary of Labor for Mine Health
     and Safety.  He was singing the praises of the proposal.  I
     saw quotes by Bruce Watson, the vice-president of health and
     safety for the National Mining Association that was packaged
     in that article in a way that appeared to be endorsed and a
     sanction of the United Mine Workers of America.
               But guess what I didn't find?  I didn't find in
     that article any quotes from my great president, Cecil E.
     Roberts.  Even in the early morning I found it very odd that
     this front page article, which gave the appearance of a UMWA
     picture, that it had quotes by everyone but the plaintiffs
     in that original lawsuit, and that was United Mine Workers
     of America.
               I really started wondering was Davitt McAteer and
     MSHA trying to mislead the public by this release?  One
     thing that really seemed odd to me was what method, what
     miracle, had they come up with to eliminate black lung
     disease in the mining industry?  I wanted to see this.
               My great union has been good to me.  I've been to
     the Georgia Main Center for Labor Studies.  I've arbitrated
     over 400 cases in my tenure of business, and I couldn't
     believe that we had come up with some type of miracle that
     would eliminate black lung disease in the coal industry.
               Well, I couldn't wait to get my hands on the
     proposal.  I contacted Tom Wilson immediately.  He is a
     staff employee in District 20 over health and safety.  I
     asked him what about it?  He said I don't know.  I haven't
     got my hands on it yet.  I said I want to see this miracle.
               I accompanied Tom Wilson that day.  He got some
     information over the Internet.  We went to the district
     office, the MSHA district office, and obtained the
     proposals.  I immediately went back, had my secretary get me
     a copy right off the top of those proposals, those new
     rules, and I immediately started reading and reviewing.
               I've seen some ambiguous rules before in my life,
     and I call myself at least an average educated man, but the
     ambiguous language and, in my opinion, in some cases
     deceptive language, the discretionary proposals of some of
     the rules went over my head.
               At that point, and even in your own quotes of the
     proposal it refers back to the formulas.  I know that we've
     got John, who's a mathematician, back there.  I've also got
     a cousin that's a CPA.  Two and two in my book equals four. 
     It always has, but some of the math we can't even get
     experts to agree on on the formulas.  I'm speaking of the
     quartz and sampling.
               I went back to the proposed rules or the advisory
     committee's proposed rules, and I reviewed those 20 rules. 
     They're simple.  They're unambiguous.  They have a clear
     definition of what kind of conclusion that MSHA should draw
     to make a rule.  Your rules that are proposed rules that you
     have addressed in no way, shape, form or fashion come close. 
     They do in some case.  The single sample, and we appreciate
     that.  That's long overdue.  However, I think we missed the
     benchmark as far as the hours worked.
               April 1 is a holiday for the United Mine Workers. 
     It's supposed to be the eight hour work day.  You can ask
     any active member in this room.  We don't have an eight hour
     work day.  Most people change out at the faces.  They call
     it a hot seat swap out, and they work in general ten hours a
     day.  Not just those face people, but the outby people, too,
     that are on these belt headers, which are going to be
     samples one time per year.  That is absurd.
               After reading the proposals, and I earlier stated
     that I was proud to welcome everybody to District 20, but
     I'm absolutely appalled at the rules or the proposed rules
     that we're asked to be considered at this hearing today
     unless I'm wrong in reading, and I'm not because I've got
     the opinions of every safety committee in my district, the
     people that I rely on for knowledge.
               As Tom stated, we have worked those people to
     death since these rules came out.  They spent countless
     hours reading and re-reading.  I guess it's like anything
     else.  You'll come up with a different conclusion after you
     read it again and again.  However, it comes back to the same
     bases.  The point of the advisory commission on their 20
     rules that they recommended were missed by MSHA.
               As far as the rules and the advisory committee's
     recommendation, as I stated, the ambiguous discretionary
     rules that leave it up to and put the burden really on an
     MSHA inspector.  Let me say that I have personal friends
     that are MSHA inspectors and glad to see some of them. 
     However, I don't want to put this burden on them.  They need
     it in black and white rather than to make a judgement call,
     and they do in most cases have to do that, but as far as
     leaving the discretion to one individual MSHA inspector as
     to whether or not to write a citation or what, I can't
     understand putting this burden on him.
               I think that the law should be clear.  There's too
     much room for ambiguous language for problems to be when we
     wind up going with an ALJ.  You all know.  I understand your
     2.33.  If it's two percent, leave it at two percent.  As a
     matter of fact, I've done a lot of reviewing on this thing. 
     I went back to the basis for this right here.
               I compared Part 90, and that's one of my -- let me
     say this.  That's a pet peeve with me because we've lost
     over 18,000 people to mine related respiratory diseases over
     the years.  I've got a personal friend that hired in at Jim
     Walters 7, Sammy Walter.  He is my age, 49, or he would have
     been my age.  However, he passed away about three years ago
     from this disease.
               Another young man named Scott Capell, who was
     removed from the coal mines at Jim Walter No. 7 Mine at 33
     years of age because he had black lung.  I guess that's why
     Tom used the word frustrated.  I use the word angry, mad,
     because I've seen brothers fall to this disease.
               Don Hood, a personal friend of mine, can't walk
     across this room.  He's contracted it.  He didn't think a
     thing about it at the time working downwind or being
     involved or around it.  It didn't have an immediate impact
     on him other than choking to death right then.  Now he's
     choking to death in fresh air.  He walks around with an
     oxygen bottle behind him.
               The dust is still killing people today, and the
     miracle that MSHA has proposed in my opinion won't do it. 
     There are some advances such as the single shift sample, but
     480 minutes is not what these people work.  It should be
     tied to their work schedule from portal to portal.  If the
     equipment won't do it, we have the technology and the
     ability to change it, to monitor the environment that that
     person works in.
               If discretion is going to be used, use the
     discretion of when he gets on the man bus and gets to the
     work section.  Start it then.  In general, we've probably
     got about 30 minutes to the face, so you're talking about an
     hour off of ten, so instead of 480 minutes they need to be
     at least monitored nine hours, so you would have to adopt
     that employee working on the face, his specific time that
     he's worked.
               I'm sorry, but the MSHA inspector needs to stay
     down there.  Six samples a year?  All we're doing is giving
     them an average opportunity of missing the boat.  All
     they've got to be right is six times out of the year.  The
     rest of the time they can be wrong unless you catch them,
     and then we'll go back to an abatement situation.
               Let's get back to Part 90 miner sampling.  Nowhere
     in this, and I would take you to page 32 through 35 of the
     '77 Act.  This is promulgated -- I mean, this is the Act
     itself as enacted by the Congress, Senators and House of
     Representatives and signed into law.  It specifically deals
     with the standards.
               I don't see anywhere in here, and I've read.  I
     know that in the beginning we allowed up to at some places
     never to exceed 4.5 milligrams.  It goes on to state,
     however, at no time would this be extended let's say past 18
     months, and it goes on with the waiver.  It even addresses
     on page 34 effective three years after the date of this Act
     we would go at two, not 2.33, and I understand you're trying
     to give yourself a little buffer there because these
     operators are going to litigate it.  They're going to try to
     challenge your ability to prove that they've got two
     milligrams.
               I think you've got a mandate by the Congress.  I
     think that it's not discretionary on your part.  We didn't
     ask you to legislate the law.  We didn't ask you to be
     legislators.  We asked you to enforce what Congress has
     guaranteed us as citizens of this great country.
               I would also go on to page 36.  I see the brother
     back there with the airstream helmet on, and I know that
     he'll get into some testimony on that, but I would refer you
     to page 36.  It says use of respirators shall not be
     substituted for environmental control measures in the active
     workings.  Each operator shall maintain a supply of
     respirator equipment adequate to deal with the occurrence of
     the concentrations of respirable dust in the mine atmosphere
     in excess of the levels required to be maintained under this
     Act.
               Gentlemen, I would ask you all to consider the
     proposals and the recommendations of the committee that was
     formed.  I mean, you all put this committee together.  If
     you're going to throw good money out there to get their
     advice, and let me say that I have the utmost confidence in
     Joe Main and Dr. Weeks both.
               I know what Congress intended.  Congress intended
     for MSHA not to assist in coal production or the monetary
     value of coal.  It guaranteed us right on the front page the
     protection for its most important resources.  That's the
     coal miner.  I think we've missed the benchmark, even though
     we have raised some pertinent issues such as single
     sampling, and I appreciate that.  That's been a long sought
     after mechanism to try to curtail dust, but this won't do
     it.
               I would ask that this committee, this panel, go
     back to the drawing board, go back and read and consider the
     measures of the advisory committee.  They've got some good
     stuff in there.  We have technology today.  I mean, I'd say
     20 years ago you'd take -- I'll give you an example.  The
     Jim Walter mines are over 2,000 foot deep, most of them,
     varied from I'd say 1,800 to 2,200.  They deliver somewhere
     around 36,000,000 cubic foot of methane in a 24 hour period. 
     I had the very first ignition at Jim Walter No. 7 Mine and
     velocities of greater than 30,000 cubic foot of air over a
     continuous miner.
               I've been on a long wall when it took 100,000
     cubic foot of air off the face, and then it feels like
     you're working in a sand storm with the dust.  Again, I
     don't know if the airstream helmets are more or less to keep
     the dust out of your face and eyes because it pits you.  It
     feels just like somebody has a sand blasting hose blowing
     you in the face at times.
               What I would appreciate, and I guess what would
     make you I guess more sympathetic, more in tune with what
     these people have to work under, is on a normal day, and I'm
     not asking much, go spend the entire day with these panel
     members on that long wall face or out by one of the belt
     headers or deal directly with one of these people that have
     black lung.
               Their life is already shortened.  To expose them
     to 1.26 or anything greater than one milligram and, you
     know, the standard -- there's quartz in the Jim Walter mines
     in the Blue Creek seam and Shell Creek.  It's on the Blue
     Creek seam in Alabama.  I have personal knowledge of what's
     taken place there, and that's why I'm -- I'm not shorting
     any of them, Pittston or any other operations anywhere else. 
     They have similar problems, and they will address those
     specifically, but I want you to go back to the drawing
     board.  This, what we've got right now, won't work.
               I'd appreciate, and I guess I probably got angry
     right out of the chute when that proposal, and I don't know
     what I did with it, came out for doing away with black lung. 
     I don't know if that was a typo.  It indicated that it was a
     quote from MSHA.  Fellows, what you all got planned will not
     do away with black lung disease or coal related diseases as
     far as respiratory systems are concerned.
               Thank you.
               MR. NICHOLS:  Do you think those Alabama long
     walls are in compliance day after day after day downwind of
     the shear operator?
               MR. DEWBERRY:  Now, sir, but I'll say this.  At
     one time the operators screamed that they couldn't live with
     those 60 samplings.  In most cases, they beg for it now.
               The technology is there.  I don't want to steal
     the thunder from any people, but we've got committees that
     have worked on a collaborative effort with the operators
     that have gotten the long wall standard to one percent, and
     they'll elaborate on that.
               The technology is there.  When those operators are
     required to do it, and we're talking 33 samples a year. 
     That's all they've got to dodge.  You've got -- let me tell
     you what you've done for those operators, and I know some
     are here today.  You've given them the opportunity.  You've
     lifted the burden of proof out of dust problems.  They're no
     longer going to be accountable for that.  We pushed for
     that.  However, they've only got six shots a year that
     they've got to dodge -- that's it -- instead of 33.
               MR. NICHOLS:  Let's back up there a minute.  Would
     you not agree that a good plan that has been verified to
     work at a high production level gives a lot of people the
     opportunity to look on a daily basis to see that compliance
     is going to be achieved, that the mine operator, the miner,
     the inspector, that those controls are in place on a daily
     basis, and they've been demonstrated to work to achieve
     compliance for the two milligram standard?
               MR. DEWBERRY:  I would agree that if we leave it
     at two milligram standard and if there is verification that
     they're in compliance -- not just six times per year, but on
     a normal production day and I'd say within the parameters of
     what the advisory committee had recommended; not 68 percent,
     but at least, you know, 90 percent or something like that --
     this is what these people work under is the 90 percent when
     they're sampled there under there every day not for 480
     minutes, but for nine, nine and a half hours, whatever their
     work day may be.
               Yes, sir, I think that -- and I have confidence in
     the technology.  Nobody ever dreamed that we would be able
     to mine coal in 36,000,000 cubic foot in a 24 hour period of
     methane, that deliberation.
               The dust levels I've seen?  I've worked in Wind
     Gone running a continuous miner trying to allay the dust
     when it would choke you, the thick atmospheric -- the dust
     wasn't as bad as the Wind Gone, the wetting agent.  The same
     is true on these long walls, but there is technology there,
     and that's what we need to hold them to the letter of the
     law and the promise of Congress and the '77 Act and make
     them have the controls necessary to maintain it at that
     level.
               I think in line with what you're saying, if we had
     verified controls, how are you going to verify it if you
     don't check it but six times per year?  I mean, you're
     talking bimonthly.  What happens to the rest of the time? 
     Are we going to set up I guess a preliminary investigation
     to get them in line?  I don't have a problem with checking
     them at random or whatever, but these operators know when
     the schedules come around, especially if you've just got six
     times.  They gear up for it.
               MR. NICHOLS:  Well, bimonthly is intended to be a
     minimum.  There are other times we choose to sample.
               MR. DEWBERRY:  I understand that, and I read that,
     but let me assure you, and you and I both know the budget
     cuts, the money that you all have had to work with as far as
     an agency.  We'd like to see you get all the money you could
     to continue on, but it's not there.
               In some cases, we would like to have I know six is
     a minimum on the point, but I think that the operators
     should be under the gun, so to speak, you know.  The
     advisory commission had recommended continuous monitoring. 
     We monitored CO continuously.  They had the technology and
     the ability to monitor the dust, I mean, on a continuous
     basis.  That would give us a true reading of what our people
     were exposed to.
               I don't know if you've been at any black lung
     hearings where somebody has contracted black lung where
     they've already died and they've cut them open and they've
     said yes, he had it and still fighting to get it.  The
     person is deceased, but his family, you know, they're
     entitled to black lung.  These people are dying every day
     from it.  I know.  I've got some close friends, as I stated,
     that I worked with that have passed on from this disease.
               MR. NICHOLS:  I don't disagree, but Davitt McAteer
     has put a lot of emphasis on trying to identify black lung
     with his pre-test x-ray program, and then a package of dust
     rules here that we can agree to disagree on, but I can tell
     you he's trying to get at the problem.
               Now, with all the discussion about the four
     milligram standard, the dust standard being raised on the
     long wall, that's not true.  I mean, we're talking about
     some number of people working downwind where the problems
     cannot be engineered away.  If there's engineering controls
     in place that are taking care of the problem, companies need
     not ask for the use of airstream helmets.
               The four milligrams is the protection factor for
     that helmet.  That's not to say that people are going to be
     allowed to go up the standard to four milligrams.  What
     we're trying to do is identify any situation where there's
     some protection for the miner, either engineering controls
     or, in the small case, some consideration for these
     airstream helmets.
               MR. DEWBERRY:  In addressing that, I could
     understand this plea for giving that much leeway if our
     industry was just developing.  Long walls has been in the
     mines since 1978 in Alabama.  When they have to, they
     comply.  When they're put under the gun, I've seen so many
     times these operators come up with a brilliant idea along
     with the union to abate a violation.  That's what we need to
     do.
               I'm not saying fine our operators out of business. 
     We want them to operate as much as anyone else.  All I'm
     saying is that we need -- we got the laws here. I mean, it's
     clear in here to give these allowances or waivers, and it's
     just for an 18 month period.  In some cases it is extended
     where there's certain mitigating circumstances, but I don't
     think anybody in here, unless you go back to the law, has
     the authority to get in conflict with what this Act is
     proposing.
               It guarantees -- the way I read it as a common
     coal miner, it guarantees me that I ain't going to have to
     work in above two milligrams.  As a Part 90 miner, I won't
     have to work above one milligram and not with any two and
     two makes five and a half equations.
               I know it's got allowances for quartz and it
     addresses it under 202.  The Part 90 and the Federal
     Register addresses it also.  I think that we need to go back
     to the drawing board and take the advisory committee's
     recommendations in place and take this Act.  Maybe we need
     to go back and read it and what its intent is and go from
     there.
               Let me say that I have personally contacted some
     of the legislators in Alabama and brought this to their
     attention.  I would just ask that you do go back to the
     drawing board and take the advisory committee's
     recommendations and let's come up with something.
               We appreciate what gains we did make, or I do, on
     behalf of the members here in District 20.  However, they're
     not enough.  There needs to be single shift sampling. 
     That's a blessing because, I guess, if a miner is exposed to
     three percent on one day, don't take the five samples and
     then say well, we've got you down to .9.  You're okay.  I
     mean, that's ridiculous.  If you're in that environment
     you're in that environment, and I've never known of one day
     where that dust has helped anybody.  It's a killer every day
     that you're in it.
               What you need to do is go down to one of the coals
     mines, especially one of these with a high velocity of air,
     and get on that long wall face and hang in there all day. 
     Do you know what?  You'll come out with a different feeling. 
     You'll say, number one, I don't want to put one of those
     airstream helmets on.  I want to wear me some snow goggles
     to keep it out of my eyes and wear a bandanna around my face
     or a respirator even upwind of the long wall.
               Some if the best things that ever happen before we
     starting washing these shields down.  That cut down a lot of
     dust even engineering devices to put sprays on these shears,
     on these shields, would help tremendously.  At that point, I
     think some of these operators thought well, we can live with
     this 060 sampling now and wanted it back, but that's a
     different story.
               We're here to deal with the specifics of your regs
     and your proposals.  I'll say one thing.  You all put
     together one heck of a package because I have read and read
     and read and went back again, and I know that the majority
     of these people went back and read it again.
               You know, I call myself being pretty good at going
     back and reading collective bargaining agreements because I
     negotiate them and pick the ifs and ands and buts out of it
     and try to get a concise meaning or write a memorandum of
     understanding to it on exactly what the meaning is.  If this
     was a collective bargaining agreement, your proposals, we'd
     be back writing memorandums of understanding every day
     because the operator don't think the way I do.  The operator
     looks for ways to get around it, and I look for ways to
     enforce it.  MSHA is caught right in the middle to try to
     please both sides.
               I'm going to tell you.  Don't put this on an MSHA
     inspector or CMI because he'll have a heck of a task to do
     every day.  He's already got one in the first place.
               Thank you.
               MR. NICHOLS:  Thank you, Daryl.
               (Applause.)
               MR. NICHOLS:  The next presenter will be Bolts
     Willis of the UMWA.
               MR. W. WILLIS:  Thank you, Mr. Chairman, for
     having us speak at this meeting today.  My name is William
     Bolts Willis, W-I-L-L-I-A-M, B-O-L-T-S, W-I-L-L-I-S, Box
     126, Pratt, P-R-A-T-T, West Virginia 25162.  I'm the
     chairman of the mine health and safety committee for Local
     Union 8843 located at Cannelton, West Virginia.
               We have a couple of distinctions at our Cannelton
     mines.  We've been there -- not me in particular, but we've
     been there for over 100 years in continuous operation.  We
     had the first long wall 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 ever I think anyone could imagine
     some ten or 15 years ago.
               Some of you on the panel have known me for many
     years either while I was working for the MWA International
     Safety Division and also for the State of West Virginia as
     Assistant Commissioner of the Department of Energy.
               At our local union we have three underground
     mines, one four section mine, one one section, one tunnel
     mine and 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 at Cannelton and worked at several of our other mines
     at the same general location since we have a common
     seniority system where I worked.  I've 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, continuous miner
     sections and long will mine operations.  In all these areas,
     a common factor is present.  Coal dust.
               We're here today to respond to these proposed
     rules to protect miners, or us, from excessive coal mine
     dust.  I must say from reading those rules, it has been
     difficult to understand what is really being proposed.  All
     118 pages, written not to what I learned at the Mine Academy
     over 20 years ago from many of know instructor Wayne Maxwell
     who taught creative writing.  It's not clear to me in these
     rules, and I'm sure it's not clear to the rank and file
     miners.  It's muddied, to say the least, in many instances.
               I also must say as an adjunct professor at the 
     local university, the Institute of Technology, my students
     would probably have problems understanding what these rules
     say and how they're written and at what level they're
     written for comprehensive who doesn't have a college
     education or hasn't been trained in other areas.  That's not
     to put down any of us miners.  They's just tough to
     understand.  I think probably everyone here would agree with
     that.
               I will just give you a few examples.  If I were to
     enhance dust control measures, the first place I would look
     at it would be to sample continuously since the sampling
     devices to monitor dust are available and have been for the
     last 15 years.  This type of sampling could shut off the
     machinery immediately when high concentrations of dust are
     detected.  Stop period.
               We wouldn't have to worry about hiring hundreds of
     inspectors.  We wouldn't have to worry about coal companies
     going through the frustrations of trying to figure out where
     and when to control the dust and those things.  It would be
     apparent that it was happening at that time, and you
     probably could readily see it, as I have in testing some of
     these devices several years ago.
               Also, I would take over the program fully.  That's
     not taking away the responsibilities, of course, of the
     operators, but to make the approach to sample six times per
     year.  As some has stated already, this proposal seems to be
     saying that we will sample on that many occasions.
               If I were the operator, if I couldn't come up with
     a system to control dust on six dates per year with advance
     notice inspection on the advance time that it would take the
     inspector to get to the section, then I wouldn't be much of
     an operator not to be able to control dust on those six
     days.  I cut the production in half and clean the scrubbers
     every 15 minutes, and that would be the end of it.  There's
     no dust there.
               Third and last, because other people as well are
     going to speak on these things, as Tom has spoke on them and
     also Daryl spoke on them previously, other issues I have
     great concerns.  The proposed rules will in many ways set
     back to the post 1969 dust control protections.
               May I just say that MSHA recently conducted, and I
     think it's been alluded to earlier either by Ron or Marvin,
     that the x-ray testing has been going around the United
     States.  It's been to our mine.  A good friend of mine that
     I worked side by side with since starting underground in
     1969 -- he started in 1968.  He was running a cutting
     machine the first shift I worked with him.  He ran that
     cutting machine and has since run the continuous mining
     machine and still is a producing miner/operator today.
               For all these years he took the x-rays as some
     people encouraged him to do.  He's already received 25
     percent black lung payment from the State of West Virginia
     through the x-ray process system going through the
     hospitals.  He found out that he had at least 25 percent
     disability.  Lo and behold, when he got the results back
     from the x-ray system that MSHA had put on the property
     guess how much black lung he had?  Goose egg.  Zero.
               I'm telling you.  I was with him last week, and I
     stood right besides of him.  He could barely breathe, but he
     loves to mine coal, and he loves to run that continuous
     mining machine so it's pressing on me as a safety committee
     man and as a former representatives of the miners throughout
     the United States and working with many people in Alabama
     who have been in the mines, almost in every state, that we
     must be more diligent to see that we take greater steps than
     what has been proposed today.
               In closing, I took a survey last night of the
     miners in this room, and we were about half this size, about
     how many chewed tobacco or did snuff.  Over half did snuff
     or chewed tobacco.  Well, it makes me wonder not very much
     because I use this in illustrations when I teach at school
     or talking with people that are not in mining and most
     recently when I was in southern California about a month ago
     on why miners act the way they do.  I'll basically go
     through that, and then I'll be finished.
               Everybody -- I guess not everyone, but a lot of
     people wonder why miners wear hats.  You see various and
     sundry miners wearing a hat.  I also wear a hat.  Here's a
     hat that we used at a recent rally that says Keep the
     Promise.  You know Doug Day, and that's sort of what we're
     saying here today is keep the promise, MSHA, in doing what
     the Act stated in reducing dust standards.
               The reason we wear hats, and a lot of times they
     even wear them in buildings, which at one time was not
     acceptable.  My former local union president wouldn't dare
     let anyone wear a hat in a building in our local union
     meetings, much less curse.  He was just totally against
     that.  Everybody took of their hats at that time.  He's
     passed away.  He died from black lung, as well as my dad.
               When my dad died, prior to his dying he had a lung
     removed.  Dr. Prevaschultz cut away that lung.  He had
     advanced stages of black lung.  Lo and behold, the death
     certificate said he died of cancer.  It didn't say anything
     about black lung.
               So wearing the hats and sitting around like this
     at a ball game, and I'll make an illustration as I go away
     from the mike and the recorder.  I'm going to be squatting
     in low coal.  You sit around like this when you work low
     coal.  People make fun of miners for sitting in this
     position.  Well, I'm very comfortable sitting in this
     position.  I can sit at a basketball game or a football game
     for the whole game like this.  When you work low coal, you
     work that way every day of your life and it doesn't bother
     you.  It's comfortable.
               With the other issue, how many drive pickup trucks
     in here?  I'm one.  I see a lot of hands going up.  The
     reason a lot of us drive pickup trucks is that the roads are
     so bad going to the mines in eastern Kentucky and Virginia
     and Alabama and West Virginia that you have to have a pickup
     truck to get to work.
               So back to chewing tobacco.  We know why the
     miners chew tobacco.  If you work in a mine, you want to
     allay the dust.  You get hooked on the tobacco, and you chew
     tobacco and do the snuff to keep from coughing.  That's the
     reason.  You can go around to any of the coal mines and see
     a lot of people chewing tobacco, but it's a stigma that's
     put on us as miners.  People make fun of us for doing those
     things that it's a hazard of the occupation.
               So with the chewing tobacco and the dipping of
     snuff illustration, as I finish this we can't allow the dust
     that we breathe every day at work that we can do something
     about, and we have the facilities to prevent these things
     from happening.  As I've stated earlier, I'm not here to
     condemn any of you for trying to make the system better, but
     please take a step back and listen to us so we can jointly
     make our workplace a healthy place to work.
               Thank you.
               (Applause.)
               MR. NICHOLS:  You mentioned advance notice on the
     dust sampling.  There is no advance nothing on compliance
     sampling.
               Also, when you were talking about staying in
     compliance for these six sampling shifts that the operator
     could cut production in half.  You can't do that.  I mean,
     the operator is going to be required to keep production
     records.  These plans are going to be approved on the tenth
     highest production number, and that won't work.
               By today's sampling, an operator can set up ideal
     conditions probably and sample and they won't have any
     problem with operator sampling, but not under this rule. 
     The plan is going to be verified at a high production level. 
     We're going to have records that verify that production. 
     There's going to be no advance notice on compliance
     sampling.
               MR. W. WILLIS:  I hope that's the case, Marvin.  I
     hope that's the case.
               MR. NICHOLS:  That's what the rule says.
               MR. W. WILLIS:  I know what the Act says.  I know
     what MSHA does not.  That's supposed to be the case, but I
     also know that many miners at our mine know every day that
     an inspector is going to be there before he gets there.
               MR. NICHOLS:  Well, I would expect at some of
     these big mines that's an every day occurrence.  I mean, our
     people are there about every day.
               MR. W. WILLIS:  Well, that's before they start,
     Marvin.  Before they start, they're still banned.  I know
     that we have fraud in the system.  I'm not saying everybody
     from MSHA is like that.  I have a brother who's an MSHA
     inspector and been an inspector for over 25 years, but it
     really concerns me.
               And then another point, and thank you for
     clarifying that.  Another point that something strange
     seemed to be about the hearing that they had in Morgantown,
     and it seems like it may be strange here today, that the
     operators are not giving any testimony.  That kind of makes
     me wonder.  It must be a pretty good system for them. 
     They've not saying anything about it, and they're not
     complaining about it usually.
               As Carl Boone would note, I got ran out of a
     meeting one time on Wilcox Mines when I went to the Supreme
     Court.  We basically outlawed them in the State of West
     Virginia.  Then I came down here and gave a speech and was
     threatened to be killed giving that speech that day.  I
     think Carl was called on the carpet by MSHA is what I heard
     for that same hearing, but it does make me wonder.
               It must be pretty good or we'd have a lot of
     people here testifying for management, that my understanding
     was in Morgantown there was not, and it's not giving
     presentations here today.  It may be so.  It may not be so. 
               MR. NICHOLS:  Well, the operators aren't saying
     that, but if you've got information on MSHA inspectors
     giving advance notice, I'd be most interested in that.
               MR. W. WILLIS: We'll talk about that more.  No
     problem.  We'll talk about that.
               MR. NICHOLS:  Most interested.  Thanks, Bolts.
               MR. W. WILLIS:  Thank you.
               MR. NICHOLS:  Our next presenter is Bo Willis.
               MR. B. WILLIS:  Brother Don?
               MR. NICHOLS:  Brother Bo?
               MR. B. WILLIS:  I'm Bo Willis, United Mine Workers
     of America.  That's B-O, W-I-L-L-I-S, president of Local
     Union 2274, United Mine Workers, District 20, Subdistrict
     28, in Virginia.
               Two or three things I'd like to touch on.  One
     thing you just hit one when you were talking to Bolts about
     advance notice.  Advance notice is they may not know the day
     that the inspector is coming, but prior to that shift
     they're going to put a dust pump or whatever on a miner when
     he goes underground.  That is advance notice because before
     that shift starts the mine operator knows we're being
     sampled.  Whatever we need to do to take care of those
     people that day, they're going to do it.  It happens.  It
     happens every day.
               Another thing you brought up earlier about the
     dust standards being raised to 2.33 in order to go in and
     tell the Judge they're definitely out of compliance because
     it was 2.33.  That's above 2.0.  If you get a speeding
     ticket 65 and above, you're going to get a speeding ticket
     at 66.  2.1?  You're going to get a dust violation.  If two
     milligrams per cubic meter is the standard, then the
     operator should be able to go by that standard.
               What happens to a dust sample where we've been
     talking about continuous monitoring and what's available in,
     you know, today's technology and machine mounted sensors?  I
     understand that there's been a little bit of problems from
     some of the machine mounted sensors falling apart.  Well, if
     the technology is available to let the sensor work but the
     hardware fell apart because the washers weren't strong
     enough or the bolts weren't tight enough or whatever, you
     know, those things can be fixed.  That technology is
     available.
               You've also got mine atmospheric monitoring
     systems that monitor methane, carbon monoxide, water levels,
     pumps, belts, carbon monoxide, dust levels.  Just about
     anything you can think of can be monitored today through
     atmospheric monitoring systems.  You can trend every sensor
     and see what it did throughout an eight hour period.  You
     can trend it and back it up to last month.  If you've got
     carbon monoxide problems on a belt, you get a little belt
     roller getting a little bit hot, you can watch what that
     sensor is doing, and you just about pinpoint where the
     roller is.
               As far as your dust sensors, if you've got a
     machine mounted dust sensor and you've got a roof bolter
     sitting downwind of a miner and he's bolting in the dust,
     well, if he backs out and says it's too dusty and MSHA comes
     in and says hey, how do you know it's too dusty, I can see
     the dust and I couldn't breathe, but you don't have any
     definite proof that that man is not going to lose his job
     because he felt like he was going to exercise his personal
     option to get into a safe position.
               You know, you've got the ability to say we'll use
     these dust monitors, and you can legislate it, or you can
     put it into your rules, and you can say we're going to go to
     continuous monitoring.  If you get over two milligrams then
     you back your machine out, do something with the air, turn
     the miner off, let them finish bolting or whatever.  These
     are options that you have that are available that will give
     that miner immediately protection.
               If he comes in here today and he says hey, you
     know, I think I'm getting too much dust.  I'm going to bid a
     103(g) in order to get a little bit of protection down here. 
     I'm on this bolting cycle every day for two hours.  I'm in
     this dust, and it's usually six to eight milligrams per
     cubic meter.  It's pretty high if you're on the bottom side
     of a miner and he's cutting a little bit of rock.  If you've
     got that ability and you don't put it in to where somebody
     can use it, you know, then do you know what?  Why do we even
     bother with it?  Those are some of the things that I wanted
     to bring up.
               You know, the reasons is we've got the technology
     to do these things.  We want to try to eliminate black lung
     disease for coal miners, and by saying that we're going to
     raise the standards, we've got a gentleman wearing an
     airstream helmet back here.  We're going to raise the
     standards that would be acceptable under, and I heard, you
     know, your talk about it a little bit earlier that if we
     think something is not being done we're not going to agree
     to let them go to four milligrams and so on.
               But, if you all think based on whatever your
     basis, you know, whatever you base your thinking, they've
     done everything they can do so we're going to let them go to
     four milligrams until they get through this bad part of
     their mine or they slow their production down or they can
     figure out a way to do something else with some other
     standard.
               During that time, this man is wearing this
     airstream helmet.  You've got noise standards where they've
     got to wear ear plugs.  They can't hear.  If you're looking
     down the long wall and looking at the lights coming lack
     through one of these lenses, you can't see, so they're going
     to be blind.  They can't hear, you know, and they're going
     to be subjected to twice the normal standards of dust for
     whatever period of time you all determine on a case by case
     basis is acceptable, so they're going to be handicapped even
     further, plus having their lungs at a, you know,
     disadvantage.
               You know, I'd like you all to think about that. 
     If a person decides that they want to go in and they want to
     wear one of these helmets but they're still under two
     milligrams, you know, we can agree with that, but to say
     just because they want to wear those helmets we can raise
     the standards because we think that these helmets give a two
     milligram protection, you know, that's not really acceptable
     because the people that are making that call aren't the
     people that are down there having to live there, eat the
     dust and look at all of it.
               You do need to consider again, I mean, under your
     advisory committee they suggested the continuous monitoring. 
     If you know you're in over two milligrams immediately and
     you can withdraw, you've got one minute.  You're out.  You
     can back up.  They can shut the miner down, or they can do
     whatever, and you're protected.
               Thank you.
               MR. NICHOLS:  Thank you.
               (Applause.)
               MR. NICHOLS:  There are places where a lot of
     miners on their own wear airstream helmets, and we've never
     given any consideration to companies for engineering
     controls.  They still have to comply with the two milligram
     standard.  The only place we're considering a consideration
     is that one area downwind of the long wall shear.
               The next presenter will be Randy Clements, UMWA.
               MR. CLEMENTS:  Good morning.  My name is Randy
     Clements, R-A-N-D-Y, C-L-E-M-E-N-T-S.  I'm a member of the
     United Mine Workers of America local 2368 where I represent
     323 people.  I also right now am the president of the local. 
     I've been on the safety committee for 14 years.
               As we went around when we got these new proposals
     and talking to our members about what was going on, they
     proposed a question to me that I could not answer, and I
     would like to ask this panel where I can carry the answer
     back to them.
               Their question was to me is, and I'll put it in a
     nice term because if you've ever been around coal miners
     they don't have the best language at times, but their
     question to me was how many members of this panel has
     actually worked in the coal mines?  I think that's a fair
     question to be asked and answered.
               MR. NICHOLS:  I don't know how many hands you see,
     but we've got a lot of coal miners in the agency that we can
     draw from, probably 700 or 800.
               MR. CLEMENTS:  Well, then I guess the question
     that was asked of me I could reply back to them that there
     is none that is on this panel that has worked in the coal
     mine.  Okay.  Thank you.
               MR. NICHOLS:  You can tell them that MSHA is well
     represented by coal miners, though.
               MR. CLEMENTS:  I will add that.
               I made this trip on this behalf to Prestonsburg,
     Kentucky, in order to speak at this hearing.  After talking
     to many of the members that I represent, they wanted me to
     send a message up here clear that the message is in this
     hearing for MSHA to go back to the drawing board and make
     rules that will protect the coal miners, not hurt them.
               In the early 1990s, the miners appealed for action
     to reform the respirable dust program that evidence showed
     from operator upon operator the continued corruption in the
     program.  The Secretary of Labor addressed the situation by
     an MSHA task force for respirable dust.  The task force was
     to address three areas in particular, expanding the roles of
     miners in their sampling program, review the feasibility of
     MSHA taking over the operator sampling and work on
     developing continuous dust monitoring devices, which
     apparently these rules don't.
               In 1995, the Secretary of Labor chartered an
     official advisory committee for the purpose of recommending
     health and safety standards and to overhaul the troubled
     coal mine respirable dust program.  The advisory committee
     was on record calling for engineering controls that
     specifically noted that administrative controls should not
     substitute for engineering controls.  The UMWA has supported
     the advisory committee's recommendations, which are, A,
     attention to the respirable dust program.
               MSHA's proposed rules ignore the modest demands of
     the troubled sampling program.  MSHA's proposed rules
     dramatically reduce the frequency of sampling, shift
     sampling, by 83 percent in allowing the mine operators to
     double the two milligram standard to four milligrams.  The
     advisory committee called for increased compliance sampling
     and lowering the dust standard levels.  The MSHA proposed
     rules make one point clear to coal miners; that the
     compliance dust sampling is not important.
               As we all know, respirable dust is a problem in
     the coal mines because of the development of larger
     equipment, bigger long wall panels.  In this report, you
     only see pictures, as my brother here beside me will show
     you all pictures, of dust filters that miners today are
     wearing, and I want it to be noted that this long wall under
     the current standards is in compliance.  The pictures he'll
     show you on one hand will be the pictures of what they're
     wearing, and the other one will be a single one that is
     unused.
               The Example A that he's showing you is a picture
     of a dust filter that was worn by a long wall helper
     downwind of the shear after making only one pass with the
     shear.  Picture 2 is a filter that had been worn by two
     miners on the long wall.  The top filter is the long wall
     helper that was working on the tailgate end of the long wall
     after three passes.  The bottom filter is a long wall helper
     that was working no the headgate of the long wall after
     three passes.  As you can see, there's a dramatic difference
     in the two.
               Example C is a picture of two dust filters that
     was worn by a miner on the long wall.  Both dust filters is
     a long wall helper that was working on the tailgate end of
     the shear and had changed them out in between shifts,
     halfway through the shift at his lunch break.  Both of them
     was after three passes.
               Example D is two filters that was worn by a miner
     on a long wall.  Both dust filters was a long wall helper
     that was working on the tailgate end of the shear and had
     changed the filter out again during mid shift.  Both of
     these filters is after three passes, which the majority of
     our long walls average about five to six passes.
               Example E is two dust filters that was worn by
     miners on the long wall.  Again, both filters, these two
     filters, are shear operators that had changed it out at the
     end at his lunch break after making the top filter was three
     passes.  The bottom filter was after two passes.
               Example F is a picture of three dust filters that
     was worn by three long wall helpers on the same day and
     shift.  The top filter is the headgate long wall helper. 
     The middle filter is the mid long wall helper.  The bottom
     filter is the tailgate long wall helper.  Again, I would
     like to reiterate these are long walls that is under the
     current standard plan or in compliance.  Excuse me.  The
     examples that have been shown shows the large amount of
     float coal dust that is distributed into the atmosphere
     during a normal work shift.
               By increasing the standard of the long wall to
     four milligrams, is MSHA creating at atmosphere so filled
     with float coal dust that it creates a disability hazard for
     miners to perform their work?  As you recall, the advisory
     committee asked to lower the standard, not increase it. 
     They also asked for more frequent sampling.
               I think before these new rules should go into
     effect there are three questions that I would like to be
     answered.  One, how much float coal dust would have to be
     distributed into the atmosphere in order to obtain a two
     milligram or a four milligram respirable dust sample?  As we
     all know, respirable dust is the small particles that comes
     from the float coal dust in the air.
               The second question is by MSHA allowing the dust
     standard to be increased to four milligrams, are they
     creating a greater danger for dust explosions?  Three, is
     MSHA is creating a visibility hazard by allowing the float
     coal dust in the atmosphere to be increased?
               MSHA insists that the recommendations of the new
     proposed dust rules would fix the troubled dust sampling
     program.  I would have to say in this hearing to the
     proposed dust rules they will become known nationwide not as
     the rules that protect the miners and do away with black
     lung, but will become known as the rules that possibly have
     caused a great deal of mine explosions and deaths in the
     coal fields.
               Should these new rules have been in effect when
     the methane ignition occurred in Willow Creek Mines in
     Price, Utah, here recently, not only, unfortunately, would
     two miners have been killed, but also it could have created
     a major dust explosion which could have killed everyone that
     was working on that owl shift.
               Again, I send this message from my members for
     MSHA to go back to the drawing board and follow the advisory
     committee's recommendation and protect the coal miner's
     rights.
               Thank you.
               MR. NICHOLS:  Thank you.
               (Applause.)
               MR. NICHOLS:  Randy, do you want to submit those
     folders for the record?
               MR. CLEMENTS:  I can give you a copy of the --
               MR. NICHOLS:  A copy of them I mean.
               MR. CLEMENTS:  -- whole thing.
               MR. NICHOLS:  I'll say it once more, and I won't
     keep coming back to it.  We're not raising the dust levels
     to four milligrams on the long wall.  Four milligrams is the
     protection factor for that airstream helmet that we can see
     here in the audience.
               The manufacturer of that helmet recommends a
     correction factor of 25, which would be two times.  That
     would be 50.  What we've said is no, that based on the
     studies we've got four would be a more appropriate number,
     but it does not mean that people are going to automatically
     be able to go in and for this area downwind of the shear
     operator and say I can have a four milligram standard.
               What it means is that if it can't be engineered
     down to two then somewhere between two and four it will be
     protective of the miner.  I think that's about as clear as I
     can make it unless the panel wants to add something to that. 
     You may not agree with that, but that's the -- you may not
     agree with the idea of allowing the airstream helmet, but
     that is what the rule is talking about.  It's not talking
     about automatically raising the standard to four milligrams.
               MR. SCHELL:  The only other clarification I'd like
     to make is if -- a big if.  If a determination was made that
     engineering controls wouldn't control downwind of the shear
     operator, the high risk occupation would become the 044, the
     shear operator.  The environment that the shear operator has
     to comply with, the two milligram standard, is only those
     people that would go downwind of the shear operator, when
     they were down there, that would be required to wear a PAPR
     or to use administrative controls.
               Remember, if we're using administrative controls
     no one would be overexposed because they'd still have to
     limit their exposure, so it's administrative control and
     PAPRs, but again only if you can't control the environment
     downwind of the shear operator and using administrative
     controls.  We're not substituting administrative controls
     for the PAPR.
               MR. NICHOLS:  Okay.  The next presenter will be
     Rick Glover, UMWA.
               MR. GLOVER:  Thank you, Marvin.  My name is Rick
     Glover, G-L-O-V-E-R.  I work for the United Mine Workers. 
     I've been in the industry approximately 30 years.  I spent
     13 years actually underground, and the other 17 years I've
     pretty well represented the miners in southern West Virginia
     and also throughout the country.
               You know, this is probably one of the most complex
     proposed rules in the history that I've been following
     health and safety and the times that I came and had the
     opportunity to speak before you all.  I have learned more
     today than I did know about the rule before I walked in
     here.
               I think we need to ask ourselves, because it's
     been talked about, why are there so much discrepancy between
     the federal advisory committee, and I would assume that this
     group had a lot of impact on writing these proposed rules. 
     I would assume that.  If not, correct me on that.  Is that
     pretty well accurate?
               MS. KUEMPEL:  I would like to add one
     clarification, the clarification that NIOSH is on the single
     shift sample rule.  The second one dealing with the dust
     ventilation is MSHA, just for clarification.
               MR. GLOVER:  Yes.  Yes.  I understood that, but
     the point I'm going to make, and I think it's the reason why
     we keep referring to the advisory report and because for one
     we believe that will protect our miners much more than this
     proposed rule, and the reason is, and I think it was a fair
     question.  I don't think it was what I will say is slighted
     against any individual sitting on this panel.
               I was involved whenever they traveled the coal
     fields.  They went, and they seen firsthand the dust
     conditions.  They were in prep plants.  They were in surface
     mines.  They were underground.  They talked to miners.  They
     seen the coal dust on the miners faces so that I think it
     has more of a bearing, and I'm not slighting anyone on this
     panel, and I hope not to offend anyone.  If I do, so be it,
     but I'm trying to say that we all do not realize sometimes
     how severe or how effective something is unless you go do it
     yourself.
               I mean, it's easy just today.  We're sitting in a
     room here breathing pretty good air, I would assume.  All
     indication.  I feel comfortable in here, but currently right
     today we have people that is in the mines mining coal and
     the dust, and they're breathing dust.
               It's kind of like when you live in Washington,
     D.C., and I won't slight you people.  You live in Arlington
     probably.  We've got people in our office, and I'm not
     slighting our office, that forget the reality in coal
     fields, but when you live there and you see the economic
     impact, you see miners having to do things that they never
     dreamed they'd have to do, and I'm speaking of breathing
     dust.  It's called economic pressures.
               They look toward this agency, which under the Act
     guarantees the most precious resource is the coal miner. 
     Sometimes we get into economics and don't want to put a
     burden on a coal company, but whenever, you know, you open
     the Act or the first page of the Act we talk about that most
     precious resource.
               Now, since mining of coal has begun we have had
     coal miners dying from black lung.  I think we all can agree
     with that.  I think we took a giant step in 1969.  That's
     basically when I came into this industry, and I don't want
     to take too long and take too much of your time because I do
     know there's been a lot said here today, but I think it's
     important.
               I'm going to refer back to my childhood because I
     grew up in a coal camp.  I'll never forget the first victim
     of coal dust, and I was approximately ten years old.  The
     individual's name was Mr. Gerald, and he lived right up on
     the hill from where I was raised.  He passed away, which at
     that time they called it silicosis.  Now, I'll never forget
     my father saying he died from silicosis.  It wasn't black
     lung.  I can remember this because his wife run down to our
     home, and actually my dad rode up there, and me as a kid
     followed him up there.  In all honesty, it was the first
     dead body I ever seen, so it had a big impact on me.
               Anyway, the ambulance came.  They took Mr. Gerald
     away.  It made me wonder, you know, what is silicosis.  I'd
     see my dad coming home with a dirty face, seen my
     grandfather later in years die from black lung.  It's a slow
     death.
               The point I'm making is it was there, it's for
     real, and I also believe it's there today.  I'd say
     sincerely to everyone on this panel I think if we don't
     believe that and the four milligram or two milligram
     standard, and I'm going to throw some other things out that
     I think you should consider.
               Really I think you should go back and review that
     advisory report and focus on what these individuals have to
     say here today because one of the reasons I don't want to
     take too much time, which it's probably going to take more
     than I want to, is they're going to tell you some of the
     hands on things that they do on a daily basis and the
     conditions of work, and I don't want to take any time away
     from those individuals.
               Going back, I come into the mine in 1970, and I
     seen the dirty faces, seen the dust, sucked the dust, seen
     my father die from black lung.  The federal government said
     he didn't have it.  When he passed away in 1997, my mother
     had already passed away.  No dependents, but he asked me,
     because he was always denied black lung, to have a biopsy of
     his lungs.  He knew he had black lung.  He couldn't breathe. 
     The x-rays, the blood gas at the hospital, all the things
     that they run him around said he didn't have it.
               I did that.  It was tough.  I got the report. 
     Sure enough, he had black lung.  Severe stages of black
     lung.  As Bolts referred to about the x-rays, Bolts Willis,
     about whenever you all came around and I guess a lot of
     people satisfied.  Overall, you know, you didn't see on the
     x-rays near the amount of black lung they thought could be
     out there.  I only make that point because the x-rays, the
     blood gases and everything is not telling the true story.
               So, what do we have to do?  We have to eradicate
     the dust.  We've got an obligation to do that.  It's the
     right thing to do.  At whatever expense it takes this
     industry, this industry owes miners an environment that
     we're in today.  This industry owes that to our miners day
     in and day out, and that's even if we talk about diesel, we
     talk about dust, whatever the issue is.  We deserve good air
     and good water.  It's something the Lord give us, and we
     deserve it.  It's something that our bodies has to have.
               But, let's talk about black lung for just a
     second.  We come up with regulations.  Generally they're cut
     and dried.  If you touch a trolley wire here, you know, we
     put barbs on it.  If you touch it, it's going to bite you. 
     You know it's there.  You know how to protect yourself.
               Black lung creeps up on you day after day after
     day, and we all know this.  I'm just kind of going through
     something to share with you.  Then it bites you all at once.
     Then the first thing you know, as Daryl talked about, we see
     our friends dying off.  We find out they have black lung.
               We have came a long ways, and I give MSHA a lot of
     credit.  I give Congress a lot of credit in 1969.  A lot of
     people suffered for that in 1977 when we upgraded, but we
     cannot, the point I'm making, go back to a greater standard
     than we have.
               Now, I can make some recommendations, and I fully
     support what the Federal Advisory Board did, the committee.
     They worked hard at it.  They seen firsthand, but let's talk
     about the buffer zone.  You talked just a little bit about
     the importance of two milligrams, and we'll kick it up there
     to I think it's 2.33 or something like that as a buffer zone
     for the valley part.  You better do that or we all -- if any
     thing passes their going to take it to court and tear it all
     to pieces.  It's human nature.  If I was a coal operator I
     might be doing the same thing.  I wouldn't say if I would or
     I wouldn't.  I haven't been in that predicament and don't
     plan on being in that predicament.
               The point is let's do this.  On your continuous
     miner sections, I know without a doubt that we can meet a
     one point standard milligram.  One point in the continuous
     miner section.  No doubt in my mind.  We've got scrubbers. 
     We've got air.  We can do it.  It's proven.
               Let's talk about long walls for a second.  We're
     talking about bumping them up to four.  I'm convinced --
     well, I know you're shaking your head, Marvin.  I'm just
     going to the extreme end.  Under certain circumstances.  Let
     me put it like that so you won't shake your head there on
     me.
               MR. NICHOLS:  Small.
               MR. GLOVER:  Small, yes.  Okay.  Let's go even
     with the small.  Let's do away with that small.  Let's go
     with the two point milligram standard on long wall and give
     it a little buffer zone, the same as you would on a one on a
     continuous miner section.
               If you ever go to these airstream helmets, you've
     done away with any kind of engineering controls that will
     ever be considered.  The bottom line is long walls will meet
     a two point standard.  If the guys want to wear an airstream
     helmet, that's fine, but as this guy has sit here all day,
     and I'd say it was pretty uncomfortable.  He's going to talk
     about that, and I'm not going to get into it because he's
     going to tell you what the doggone -- being uncomfortable
     all day in that thing.
               But say if you do.  We can meet, I know, a two
     point standard on long walls.  If you ever go to this, it's
     going to be exactly on the hearing protection.  Now, think
     about it.  I'm going to take a guess here.  In 1978, we had
     a Joy miner that had a scrubber on it.  They disconnected
     that scrubber.  I never did know why other than the boss
     come up there and said hey, this thing was sucking air in
     and spraying it down.  This was the greatest thing I'd seen
     since I'd been in a coal mine.
               I kept thinking and thinking, and it went for
     years.  They never would say.  It wasn't required.  Well,
     then I come to find out a year or so later it was because of
     the noise.  We've got to try to get the noise down.  The
     scrubber is making too much noise.
               Now, over the years we've over come that.  We've
     got scrubbers, the greatest thing that's happened to take
     care of dust on continuous miners, but do you know how we
     got the scrubbers?  It wasn't because coal operators cared
     about my lungs or coal miners' lungs or anybody in here.  It
     was because of extended cuts.  That's the only reason that
     they put scrubbers on.  That's the only reason.  The sad
     part is the production dominated the protection for the
     miners on the Hill, and that's a fact.  Some can disagree,
     but that's how Rick Glover feels because I've seen it. 
     That's how this industry operates.
               We do have some good companies out there.  We have
     our share of bad companies.  Currently right today we've got
     dust fraud out there.  Currently right today we have miners
     dying, and currently right today we have investigations
     going on with MSHA about dust.
               Now, I want to just talk a little bit about the
     effective plans, and then I'm going to wrap this thing up
     because there's a lot of people, and if we all keep talking
     a long time a lot of people aren't going to get it.
               I've got some questions.  Effective plans.  I was
     looking at your overview here this morning, and as you go
     back, and I hope you come back with a better proposed rule,
     and I would really appreciate when you do that it's not 700
     pages and it's pretty simplified, but go through the coal
     fields and do some briefing and educate us and then let us
     make some comments.
               We may be able to help you a lot better because I
     haven't studied near as hard as Tom Wilson and a lot of
     other people, and I haven't looked at that.  I don't
     consider myself a dummy, but I'm far from the highly
     intelligent person, but I'll put my common sense up against
     any individual that ever walked around here, and practical
     mining is right up in there.
               But effective plans.  Let's just talk about that a
     minute.  This is kind of like I'm trying to -- of what
     you're all wanting to do.  You're going to come up with an
     effective plan that's going to meet a certain amount of
     milligrams, require the companies to go back, right?  You're
     going to have miners not participating in developing this
     plan.  Is that true?
               MR. SCHELL:  No.
               MR. GLOVER:  They will be involved in the -- I'm
     wanting you to help me here because I want to educate --
               MR. SCHELL:  Yes.
               MR. GLOVER:  -- the people myself, too.
               MR. SCHELL:  Yes.  Rick, it's a ventilation plan.
               MR. GLOVER:  Yes?
               MR. SCHELL:  There's a requirement that that be
     shared with the miners.
               MR. GLOVER:  Yes, I know it's going to be shared.
               MR. SCHELL:  It's the same process that we go
     through now to get an approved ventilation dust control
     plan.  We weren't proposing to change that.
               MR. GLOVER:  Okay.  Now, we've got this effective
     plan in place.  We've had miner participation is what you're
     saying to get this effective plan, and we have run our dust
     surveys, and we have met all the criteria that you all got
     lined up, which is pretty complex, which is this going to be
     regulation, or is this going to be policy?
               MR. SCHELL:  It would be part of the ventilation
     plan, so it would be you can cite it.
               MR. GLOVER:  Okay.  Now let's go to the next one,
     compliance with the plan.  Now, whenever you come with
     compliance is that going to be your bimonthlies to see that
     your compliance --
               MR. SCHELL:  No.  What we're saying, Rick, is a
     couple things.  Once that plan is approved, we've got the
     requirement now that before every production shift the mine
     operator has to check to see that those controls are in
     place and operating.
               MR. GLOVER:  Right.  That's the point that I was
     hoping would come out --
               MR. SCHELL:  Yes.
               MR. GLOVER:  -- because that was going to be my
     next question.
               We've got a plan.  MSHA is not going to be around
     for two months give or take a week or whatever.  I mean,
     we've learned about, you know, that they're going to know
     they're coming.  Well, let's say that every inspector in
     MSHA is honest, and I know a heck of a lot of good ones, but
     the point I think some of them was making is how the company
     knows that today is dust day.  Let's make sure we've got
     everything rolling.  They've got signals.
               MR. NICHOLS:  Yes, but --
               MR. GLOVER:  Let me just finish here, Marvin, and
     then you can ask me all the questions you want to.
               MR. NICHOLS:  All right.  Go ahead.
               MR. GLOVER:  I'm going to make some points, and I
     think it's important for everybody to understand.  We've got
     our compliance.  We're dependent on these dust perimeters,
     curtains, whatever will outline this plan.
               I'd assume that the FAR section -- foremen,
     whoever, is going to make sure those curtains are there and
     the workers and everything like that for these two months,
     you know.  Some of the inspectors will come and make a
     regular inspection where the curtains are up, take an air
     reading here and there.  Am I getting pretty close?
               MR. NICHOLS:  Yes.  I mean, in these underground
     mines of any size I dare say, especially the Jim Walter's
     mine and mines like that, we've got more than one or two
     inspectors in the mine.
               MR. GLOVER:  Do you know how may large mines we
     have in southern Wester Virginia?
               MR. NICHOLS:  I know you have a smaller number
     than you used to have, but I don't know.
               MR. GLOVER:  We have a whole lot smaller.
               MR. NICHOLS:  Yes.
               MR. GLOVER:  I'm not talking about our service
     mines.  We're probably talking about somewhere around ten,
     and we've probably got about 300 small mines, 250, give or
     take.
               MR. NICHOLS:  Yes.
               MR. GLOVER:  But anyway, I'm speaking of southern
     West Virginia.
               So we will depend once again for the companies for
     two months to take care and make sure this effective plan
     stays in place.  We've got the fox guarding the chicken
     house basically.  The only trouble you're doing with it is
     you took all the responsibility and all of the burden off
     the operator, and the operator should be tickled to death. 
     They don't have to worry about fraud.  They just only have
     to, as has been mentioned earlier, every couple of months
     make sure I'm right.
               MR. SCHELL:  I guess, Rick, and I'm not being
     argumentative about it.
               MR. GLOVER:  This is being extreme, and I'm just
     laying out the extremes.
               MR. SCHELL:  What we're having trouble
     understanding is, and rightfully so, you've talked about how
     ineffective operator sampling is.
               MR. GLOVER:  I haven't finished.
               MR. SCHELL:  Okay.  I'm sorry.  I'm sorry.
               MR. GLOVER:  Yes.  Now, I'm going to give you an
     idea on that.  You've got MSHA going to come every two
     months.  It will depend on the companies and the laborers,
     even the ones that has problems every day.  We have good
     mines.  We have bad mines.  As I mentioned earlier, we have
     economic pressures on miners.  They're doing things they
     never dreamed they'd have to do.
               But, I'm going to tell you a solution to this. 
     Monitoring the plan's effectiveness.  MSHA comes bimonthly. 
     Why not require to get the company to do the samples and do
     them more often to meet the criteria?  Can there still be
     fraud?  You better believe it, but at least if you're
     lowering the dust standard you make them take it whether
     it's once a week on the whole crew or you have designated
     operators. 
               There's got to be a solution.  It keeps the
     responsibility, the burden, on the operator rather than just
     that every six months -- I mean every two months -- making
     sure I'm in compliance.  He's got to do it more often is the
     point I've trying to make.  You can never take that
     responsibility off of the operator.
               Now, that may not make sense, but the direction
     we're headed -- now, if you're going to be there every day
     or once a week and test the whole crew, I'd say hey, MSHA,
     which I think that's what should happen.  I believe in
     continuous dust monitoring.  If you can't come up with the
     technology, which I do believe is available from what's been
     told to me, that's the direction you should head.
               That is the only way you'll ever know what miners
     are actually breathing.  Sample them every day.  They say
     boy, that gets expensive.  It don't matter how expensive it
     is when it comes to people's health.  Let them send them to
     you.  If it's fraudulent, it will gradually come out, but
     you're holding the operator responsible, and you're not just
     saying you're no longer responsible for the conditions that
     your miners are working in but for every two months, and
     that's how I see this thing shaping up.
               If we end up with policy, it will not be every six
     months, or it will not be every month or every three weeks. 
     I don't know.  Policy is no good, you know.  I don't think
     we deserve policy.  I think we should put it in black and
     white so the operators understand it, I understand it, the
     miner understands what they have, and we don't have to worry
     about it.
               The only point I'm trying to make, and I'm not
     trying to be derogatory, but every two months that you all
     come around takes a heck of a burden off this industry. 
     They ought to be tickled to death.  If you still make them
     do their -- I don't care if it's every day.  Miners deserve
     it.  We're mining more coal with less miners.
               We should have more inspectors as many mines as is
     being shut down.  You should have adequate work force out
     there.  You all know that more than I do, but you should.  I
     mean, I traveled to D.C. in the middle of the night to try
     to help you get your budget several times.  It's been cut
     very minimal.
               But anyway, that's an idea, and I throw that out. 
     Whether it's right or wrong or indifferent, and I want to
     point out for sure the reason why we are so supportive of
     the advisory committee because they was there, and they seen
     it firsthand.  Not slighting any individual here, but if you
     haven't been involved you should get involved.  I know you
     are highly intelligent people.  I don't want to take
     anything away from you when it comes to health, but there's
     a whole lot of difference from what you read in a book and
     what actually goes on when you get to doing it inside a coal
     mine.
               The other point I wanted to make about effective
     plans.  We have an effective plan, and you will come back in
     two months.  What if in that two months you hit rock?  The
     quartz goes up.
               MR. NICHOLS:  But keep in mind the bimonthly
     sampling is minimum requirements.
               MR. GLOVER:  I understand that.
               MR. NICHOLS:  If the district managers chooses to
     sample every month he can do that, I mean, for conditions
     that -- a poor history of compliance or different
     conditions, mining in rock.  We've never been shy about
     doing things in addition to the minimum.
               MR. GLOVER:  I understand that, Marvin, but the
     point I'm making or I'm trying to make is two months is way
     too long if we're serious about eradicating black lung in
     the coal mines because conditions change every day.  Every
     day in a mine conditions change.  We get in the bottom.  We
     get in the top.  We get in middle bands.  Seams drop.  Seams
     increase.  Sometimes we've got to take extra because of the
     rolls.  We've got to take extra top.
               I'm just saying if we are serious about
     eradicating black lung in the coal mines, we've got to
     reduce those standards.  Is it feasible?  You better believe
     it is.  Go back and do your research on continuous mining
     sections.  You can reach the one milligram standard.
               I just wanted to say this earlier, and I know
     we're ready to eat.  If we ever go to accepting airstream
     helmets, we'll be exactly, exactly like our hearing
     protection.
               Since MSHA, and relating back to that scrubber
     about that noise and they disconnected it I was telling you
     in the late 1970s, you know, to meet.  They used to have us
     putting rubber under the shields continuously working on
     trying to get the noise level down.  MSHA comes along and
     comes out with a policy that the hearing protection is the
     route to go.
               There was never -- very minimal.  For one thing,
     there's no an incentive.  The second thing is there's not a
     mandate.  There was no engineering controls developed or
     very minimal -- they had no incentive to do it -- whenever
     we started accepting hearing protection in lieu of
     engineering controls.
               If we start here with this and we open that door,
     it will come to your miner sections.  It will come to your
     outby areas, and it will come everywhere else in the coal
     mines.  You might as well put them in a space suit and walk
     them around.
               MR. NICHOLS:  It won't happen.  I mean, it --
               MR. GLOVER:  It will, Marvin.
               MR. NICHOLS:  No.  It's already been tried.  When
     I go out in Alabama, out west, I see a lot of miners wearing
     airstream helmets that they choose to wear on their own.
               We have been asked over and over by mine operators
     to consider those engineering controls, which we've never
     done, and we never will except for this one small area we're
     talking about working downwind of the shear operator because
     we think as much as people say that they continued
     compliance day after day after day, there are some mines
     where you don't have compliance with the two milligram
     standard working downwind.
               Now, is it better to keep arguing and say we have
     got it, or does it make sense to adopt some additional
     protection for the miner?  That's all we're saying.  I can't
     tell you how many times I've been asked to consider the
     airstream helmet in other sections of the mine as an
     engineering control.  We've never done that.
               MR. GLOVER:  You're like I am, Marvin.  One of
     these days I'm not going to be here and you're not going to
     be here.  There will be somebody else here.
               MR. NICHOLS:  It isn't me.  It's been the agency's
     position --
               MR. GLOVER:  Yes.
               MR. NICHOLS:  -- that it is not an engineering
     control.
               MR. GLOVER:  Okay.  Anyway, you know, that's a
     point that I want to make because I think, you know, that we
     can very easily get into that posture.  It may not be in
     your heart to do that.  It may not be in anyone's in this
     room.
               MR. NICHOLS:  I've been with the agency almost 30
     years, and --
               MR. GLOVER:  Yes.
               MR. NICHOLS:  -- it's been that position from day
     one.
               MR. GLOVER:  The only thing is you're going to
     retire one of these days.
               MR. NICHOLS:  One of these days I will.
               MR. GLOVER:  I'll just go ahead and close here
     because I've talked long enough, and I do want to thank each
     and every one of you.
               I hope I don't offend anyone here because I know
     you're highly intelligent people, but I do know that you've
     got to look at the miners' environment.  You've got to live
     it.  You've got to know what it is to really understand why
     this is so critical and why we believe so hard in it.  It's
     long past time to eradicate black lung in the coal mines. 
     We have continuous monitoring available, and if we don't
     they should be sampling every day as far as I'm concerned.
               MSHA should follow up with theirs like your plans
     are, but don't never take the responsibility of the
     operators off of them to where they put that responsibility
     entirely onto you unless you're going to do it every day
     with continuous monitoring and be there.
               Now, that's Rick Glover's position.  I encourage
     you to go back and review once again the advisory report and
     look at why they felt like that.  Whoever called the shots
     that this document was good or bad, you know, in you all's
     agency I don't know, but I do know that I've heard Davitt
     McAteer, and I can't give you a date, even said the only way
     we'll ever eradicate black lung is to get it down to at
     least one milligram.  We can do that.
               I don't know about long walls.  I think we can in
     our area, but I can't speak in Alabama.  In our areas, we
     can do that.  If you want to increase the buffer zone, put
     it down to one milligram and like 1.25 so when we go to
     Court you can hold the operators.
               What I say comes from my heart.  I would just say
     in closing, you know, I want to take the opportunity to
     thank you for the time that you've given us because I've
     been before you up here, and maybe it's the right thing to
     do.  You give someone five minutes.  You don't get to say a
     whole lot in five minutes, but you all have been kind in
     letting us lay out all of our positions.
               But, remember just what your objective is,
     whatever the final product comes out, and that is I hope to
     eradicate black lung.  We've got a golden opportunity. 
     Improve the working conditions, as referred to earlier, for
     our most valuable resource, which is our coal miners.
               I thank you very much.  Any questions?  I'll be
     glad to try to answer them.
               MR. NICHOLS:  I think your comment about doing
     some up front briefing on these future rules is a good one;
     that we go out and try to do some with education.
               MR. GLOVER:  All right.  Thank you.
               MR. NICHOLS:  Thank you, Rick.
               (Applause.)
               MR. NICHOLS:  Okay.  Let's break until 1:15. 
     Larry Tolliver will be the first presenter after lunch.
               (Whereupon, at 12:15 p.m. the hearing in the
     above-entitled matter was recessed, to reconvene at 
     1:15 p.m. this same day, Thursday, August 10, 2000.)
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     //                   A F T E R N O O N   S E S S I O N
                                                        1:15 p.m.
               MR. NICHOLS:  Go ahead.
               MR. TOLLIVER:  All right.  My name is Larry
     Tolliver, L-A-R-R-Y, T-O-L-L-I-V-E-R, United Mine Workers. 
     I've been a miner for 26 years.  I'm chairman of our safety
     committee at Local 1713.  I work for U.S. Steel Mining.
               I have just a few comments to make.  Most of the
     people have talked about a lot of things I was going to talk
     about, but the one thing that still concerns me, and I know
     you all have said that the four milligrams is not going to
     be an issue technically, but the way I see that is we have
     two milligrams now.  We're wanting to raise it to four
     milligrams in you all's recommendations here and then go for
     an airstream helmet.
               We used airstreams years ago at U.S. Steel.  That
     was an option that people used.  The people at our operation
     -- we don't have a shear.  We have the only plow in the
     United States, and that's what we use.  Airstream helmet
     stuff, as you can see the gentleman back there wearing it
     all day.  Like we was talking at lunch, what really would
     have been interesting is if one of you all wore one of that
     all day long here sitting and all the get-up you had to
     wear.
               Air flow at our mines, probably the highest coal
     we have is probably 60 inches.  When you put your shields
     and stuff in there and you have to get underneath and crawl,
     you're talking probably anywhere from about 38 inches up to
     probably about 52 inches of clearance underneath that.  If
     you try to wear something like that and try to see where
     you're going and try to protect yourself with that, it
     becomes more of a hazard than what is the benefit to you.
               Where I see going with this airstream helmet issue
     is that once a coal operator is allowed to use that to come
     in compliance, then he has met his criteria as far as his
     company to get himself in compliance by MSHA standards, but
     now I know how miners are.  They get frustrated because they
     can't get around.  They can't see.  They can't breathe
     through them.  What I'm afraid will happen is the miners
     will just disregard them.  They'll quit using them.
               But now, when MSHA comes in and tries to cite the
     company, the company, all they're going to do is say now
     wait a minute.  We're meeting our criteria.  We have given
     these employees these helmets and everything to wear.  We
     can't force them to wear them.  The people are going to be
     jeopardizing themselves because, like I said, it's
     inconvenient and in some instances dangerous for them to
     wear stuff like that trying to work on that jack lines. 
     Believe you me, you do have dust in the jack lines.
               Down at U.S. Steel we keep our dust pretty much
     under control, but we're a big operation.  We have 400 and
     some union people that works there, not counting the
     salaried people.  We have a safety committee and, as you was
     talking about federal inspectors, we have two resident
     inspectors assigned to our mines who are there almost every
     day.  We have one state inspector.  Through them and through
     the committees and through the UMWA itself, we pretty much
     enforce U.S. Steel, and so does any other big company get
     enforced and apply the standards.
               What really worries me is these small operators
     where an inspector, if it's one section mines he can
     probably complete his inspection probably within one week to
     a week and a half.  You see that inspector no more until the
     next quarter.  Then who is going to make these small mines
     adhere to the dust regs if we can't do it now?  How are we
     going to make them adhere to them in the future if we even
     increase this stuff?
               I hear obscure stories now from inspectors that go
     to these other mines that is absolutely unreal.  The state
     inspector tells me.  He says I go on the property.  They
     notify them underground I'm coming in.  He said I get to the
     section, and a brand new line curtain is hanging on that
     section.  He says it's never been used before.  He says
     there's nothing I can do about it.  He said I can't issue no
     citation because, he said, they're complying with the law,
     but he says I know as quick a I leave that property that
     line curtain comes down.
               I see employees that does not bathe at the work
     site.  I see them from other mines.  The majority of them
     are non-union mines.  Folks, I'm going to tell you.  You
     need to see what they look like.  The coal dust that is
     embedded into their faces, their clothes.  When you can see
     that, you know they're not adhering to the ventilation
     policies.
               They don't have any say so of what they do,
     because they know if they complain these operators are going
     to tell them there's the street.  They have no recourse. 
     They don't have a union.  They don't have safety officials
     to back them up, and they know if they go to the federal
     agencies or the state agencies and they are found out about,
     they're going to get fired.
               Some way, somehow, they're going to get rid of
     them, and that's what really worries me, like I said, is
     small operations and even the non-union operations out here. 
     It worries me that people are going to be jeopardized and
     killed.
               When we start raising and giving operators a
     higher dust level for Part 90 miners and even for long walls
     when we say we can raise it to four milligrams, that's
     giving them a very bad disadvantage to the working men, the
     men that work in these mines.
               I think we need to lower the dust levels, just
     like Rick Glover was talking about.  We need to look at
     getting one milligram on miner sections.  We need to try to
     bring everything we can down instead of raising them up and
     giving them a more disadvantage against the workers because
     I'll tell you.  These companies, and you all know it.  These
     companies will jump on this stuff if they can.  They'll jump
     on this any time they can get a chance to better themselves.
     These coal companies will.  You all know it as good as I do.
               I've talked to foremen at U.S. Steel that have
     come from non-union mines.  We have several of them that has
     worked at several different operations, and I'll tell you
     right now some of the horror stories they tell me and talk
     about.  It's unreal how they mine coal.  When you get on the
     sections, you have super sections.  You have two miners on a
     section, and you run both miners at one time and mine coal. 
     Folks, you're not having no kind of dust control.  You're
     endangering everybody's lives in that mine, and most of
     those mines are non-union.
               When they're already doing that now, we can't
     afford to give them a different kind of advantage that the
     law says they can do legally because they're doing it
     illegally now.  We need to crack down on the dust controls
     and make them enforce them and get tighter with them is what
     we need to do.
               That's all I have.
               MR. NICHOLS:  Okay.  Thanks, Larry.
               (Applause.)
               MR. NICHOLS:  The next presenter will be Danny
     Sparks, UMWA.
               MR. SPARKS:  Hi.  My name is Danny Sparks,
     D-A-N-N-Y, S-P-A-R-K-S.  First of all, Mr. Moderator and
     panel, I'd like to thank you for the opportunity to speak. 
     As the old saying goes, I'm as nervous as a long tailed cat
     in a room full of rocking chairs, so just bear with me here.
               Anyway, I'm president as Local Union 2232.  I
     represent 140 active miners and 300 plus laid off miners
     that's on the panel.  I'm presently a member of the Mine
     Health and Safety Advisory Board in Virginia, and I'm here
     to log testimony here this morning.  I wrote about ten pages
     of notes, but as we go on maybe I'll refer to some of them.
               On July 7 when I got up, you know, I was getting
     ready for work.  I go out and get the paper.  I look at the
     paper, and it says -- in the paper we got it says black lung
     has been eliminated from the mines.  I didn't get a chance
     to get into it, but as I go to work I get to thinking about
     it and then get at work and talk to some of the men, and
     some of them had seen the headline.  They asked me what it
     meant.
               My first thought was well, MSHA is going to take
     over the sampling program.  There will be no more cheating,
     no more wetting down the track ways, no more increasing your
     water infusion in the coal.  MSHA is going to take it over,
     and we know what we've got.
               Then the next comment was we're going to get a
     full shift sampling.  If you go in the mines at 8:00 and
     when you come out at 6:00 or whatever, you're going to be
     sampled for the full amount of the time you was there.  My
     next thought was well, at least 90 percent of production,
     maybe even 100 percent.
               Then my last thought was at the least we would be
     one-half milligram would be the maximum, maybe even down to
     one milligram.  You can imagine my surprise or whatever as I
     got into these regs.
               From what I can understand or got to reading them,
     first of all, if MSHA takes over the program, the dust
     sampling program, and, you know, I know we've got some
     companies out there that does the sampling honest and, you
     know, you know they're concerned, but I was probably in
     three different meetings with Davitt McAteer, and I
     testified before the advisory committee on this very thing,
     black lung, and Davitt, and it keeps going over and over in
     my mind, but Davitt said that we're going to eradicate black
     lung from the United States or from the mines.
               To be honest with you, after looking at these regs
     I'm not even sure we put a dent in it.  In a lot of cases I
     believe we even hurt what we already had as the proposed
     rules as written goes in.
               I work at Island Creek Coal Company that's run by
     Consol Energy, and I am a long wall jack setter, the tail
     jack setter.  I know you spoke about the airstream helmets
     or we call them Darth Vader helmets, but, anyway, you spoke
     that this would just be a small number affected or a small
     area.  Well, you're looking at one that would be affected if
     it comes to that.  I've tried wearing airstream helmets. 
     They're cumbersome.  They're hot.  They're sweaty.  The
     shields sweat up.  They're almost impossible to wear.
               I know that you said going to the four milligrams
     would just be when everything else is exhausted, but the old
     saying goes if you give them an inch they take a mile.  If
     you open the door as this to be a way to come in compliance,
     the airstream helmets, and don't get me wrong.  If a man
     wants to wear them that's fine, but if it's a way to come in
     compliance then you've defeated the purpose.
               In my opinion, what experience I've had with the
     airstream helmets, the only advantage I found to it is like
     when you're setting jacks when the booster material, the
     rock and stuff comes off the jack.  It keeps it out of your
     eyes and stuff.  As far as respiratory, I didn't see
     anything.
               On the full shift sampling, our shift starts at
     8:00.  I'm on day shift.  We go in the mines, and whether
     it's company sampling or the inspector sampling, when we go
     in the mine you get on the man bus or portabus, whatever you
     want to call it, and we advance to the long wall.  We
     usually arrive on the long wall at 8:30 or 20 minutes to
     9:00.  A lot of times the company gives us their dust pumps
     outside and a lot of times the inspectors do, but there have
     been occasion when they give them to you when you get on
     stage.
               You put the dust pump on, and you go down the jack
     line.  We run a 1,000 foot face.  We're putting 180,000 or
     200,000 cubic foot of air across the headgate to the face. 
     It is a gassy mine, and right now we're in compliance on
     dust.  We haven't been out in the last while.
               Getting back to the sampling, you take this, and
     the inspector or company, whoever is sampling, and then at
     3:00, 3:10, 3:15, they come get the dust pumps and they say
     well, we've got to go.  Here I am setting jacks or in a lot
     of cases running the shear.  I'm there until 4:45 or ten
     minutes to 5:00 exposed to this dust, so at the least you
     need a full shift.  Let me take the pump in with me as I go
     in, and then when I come out ten hours later I'll have the
     pump with me and turn it in.
               You know, it's not only the long wall that creates
     dust or the section.  I mean, you've got dust outby.  Any
     time you're transporting coal, transferring it to different
     belts you've got dust.  Not only coal dust.  You've got rock
     dust.  It's different amounts.  You've got sand dust if
     you've got track equipment, you know.  It's not only in the
     face area, so we need full shift sampling from the time you
     leave the portal until the time you get back.
               On the production levels, for the last 20 years
     the dust standards has been the easiest thing to cheat and
     cheat legally if there is such a thing.  Sixty percent
     production at the current sample or whatever, if you're
     getting eight runs a shift and you're just required to get
     60 percent.  You run six runs, and then there's always
     something you have to do.  Always before they do their belt
     work on third shift or whatever, but it just so happens the
     day their sampling they had to take the belt structure out
     that day.  That's probably --.
               It's too easy to cheat, and that's the reason I
     was getting back to if MSHA took over.  You know, I'm not
     here accusing anybody of this falsifying or whatever, but
     the day before sampling day if you wet the track down
     leading to the long wall section and don't do it no other
     than but the day before sampling day, if you plan your
     sample days where your water infusion is at its greatest or
     you're closer to a water infusion hole, if you make the rule
     or the foreman on the long wall tells you that no one runs a
     scoop outby today, if you need oil or whatever, you know,
     you hand pat it, but see, all these things they add up.
               The dust that's accumulating on the long wall
     section, all the dust that's accumulated outby that whole
     area is funneled across your long wall face, especially in
     our area.  We've got so much gas.  You have to have the air,
     you know, to dilute the gas.
               So the sampling, if you can reduce your sample and
     slow it down, but if you was at 100 percent of what your
     sample was last week, if you averaged 20 foot a day, today
     when you come to sample you have to run 20 foot or you'll be
     back tomorrow sampling or the next day or whatever.  You
     need -- even 90 percent would be better than 60 percent.
               I hear Ron say, and again I thank you for your
     time.  I know it's a long day and you hear a lot of
     comments.  You know, I'm not here pointing fingers or
     browbeating no one, but I think if we had really got to what
     the advisory committee wanted I think that we would at least
     have a 90 percent production before it would counted a valid
     sample.
               Ron made the comment when he was showing the
     slides about once, and this is the way I understood it. 
     Once they come out of compliance when you come into the
     sample that they would be much higher than average
     production.
               See, that's not spelled out.  It don't say you
     come out of compliance, and when we come back to sample or
     compliance sample or whatever you'll run 100 percent of your
     average.  You know, they don't say that.  For the life of
     me, I don't see how in the world if we get 20 foot a day how
     could you have a valid foot on 14 foot that day.  I mean,
     this is real numbers, what people or miners is breathing
     every day, so it at least needs to be 90.
               As far as the dust standards, the two milligrams,
     I thought maybe we was even going to go to one and a half or
     maybe even one.  I know Marvin talked about the airstream
     helmets, you know, and how, you know, you hear a lot of
     comments how you doubled the standard to four, but I know in
     some cases I know you were saying that it's just an area
     where they can't come in compliance downwind or in by your
     tail drum on the shear, but in reality you had, though, that
     standard from two to four.  Why didn't you just say it would
     be two milligrams or less?
               You know, I don't know.  Really I'm at a loss of
     words.  I'm sad.  I not only represent the union miners, but
     as a member of the Health and Safety Board of Virginia it is
     bestowed upon me, and I don't take it lightly.  I represent
     every man that goes underground in the coal mines in
     Virginia.
               At big mines where you've got the union walk
     arounds, you've got company safety reps, you know, things
     for the most part is done right.  If the standards was
     better they'd be done a lot better, but for the most part. 
     You take these little, and pardon the expression.  You take
     these little dog holes, and it's not done that way.  I
     worked out six different coal mines in Virginia, four of
     them being dog holes, and if you want to work there then you
     eat the dust and you do that.
               If MSHA, and I hate to be repetitive, but if MSHA
     would take over the dust program then there wouldn't be no
     getting your ducks in a row before sample day.  I mean truly
     take over the program.  The single full shift sampling that
     you talked about, that's good, but I can see drawbacks to
     that.  There's too many variables, and there's too many ways
     to cheat the dust program before and even in these regs now.
               From my first impression reading them, an
     operator, if he's devious enough and he keeps coming out of
     compliance, I envision him coming up with some kind of plan,
     dust control plan or whatever, where it takes all
     responsibility off of him.  You know, I'm doing what I'm
     supposed to do, and MSHA is saying well, you put airstream
     helmets on your jack setter or your tail jack setter.  Put
     an airstream helmet on your tail shear operator to use.  You
     know, it's all right.  We can go ahead and mine, but there's
     better ways to mine.
               Rick said in closing several times I'm reminded
     of --
               MR. NICHOLS:  He never closed.
               MR. TOLLIVER:  Yes, I know.  I'm reminded in
     church when I was a young boy the preacher would say in
     closing.  I asked Dad.  I said what does that mean?  He said
     it means he's going to talk about 30 more minutes.
               (Laughter.)
               MR. TOLLIVER:  But in closing, and I hate to be
     repetitive.  MSHA needs to take over the program.  We need
     full shift sampling from the time you enter the mines until
     the time you leave.  We need the production level at least
     90 percent, and we need the dust standards at two milligrams
     or even lower.  It can be achieved.
               If you've got any questions, I'll try to answer
     them.  If not, I'm done.
               MR. NICHOLS:  Thank you, Danny.
               (Applause.)
               MR. NICHOLS:  Rickey Parker, UMWA?
               MR. PARKER:  My name is Rickey Parker,
     R-I-C-K-E-Y, P-A-R-K-E-R, and I'm chairman of the safety and
     health committee for UMWA Local 2368.  I'd like to thank the
     panel for allowing me to appear before you today.
               Many changes in the MSHA proposals are difficult
     to understand.  The preamble, the proposed rule and existing
     rule all need to be read carefully to fully understand them. 
     As the old saying goes, the devil is in the details.
               Side by side comparisons of the current rule are
     difficult since MSHA proposes significant structural
     changes.  MSHA reduced some important protections and
     substituted those legally enforceable protections with
     agency policy.  Some such changes are reflected only in
     preamble, but not in the rule itself, and some are
     curtailed.  Some enforcement and proposal actions would be
     discretionary.
               MSHA publicity about the proposed rule has
     contributed to the misunderstandings.  For example, some
     announced improvements are simply not to be found in the
     proposed rule.  The MSHA proposals ignore the longstanding
     demands by miners and the UMWA on reforms needed to fix the
     troubled dust sampling program.  Despite MSHA's assertions,
     the proposals disregard reforms sought in the lawsuit the
     UMWA filed January 13, 2000, this year.
               The proposed rule also ignores the findings and
     recommendations of the 1996 federal advisory committee.  The
     Secretary of Labor established that committee to guide MSHA
     in developing proposed rules to reform the dust sampling
     program.
               Several MSHA proposals contradict its
     recommendations, undercutting protection for miners, and the
     miners in UMWA participated in the advisory committee
     recommendations which were aimed at fixing the flawed
     respirable coal mine dust program and eradicating black lung
     and silicosis diseases.
               We ought to wonder how MSHA veered off so far from
     the path from adding the protection miners have long sought
     for and how its rule can be so contrary to the findings and
     recommendations of the advisory committee.  The proposal
     makes one point clear to coal miners.  Compliance sampling
     is not important.  Thus, while the MSHA proposals would add
     single sampling in plan verification requirements, which
     we're thankful for, they eliminate the compliance standards
     in Part 70 of CFR, including the standards the miners could
     point to and know what requirements were.
               The proposed rule eliminates the entire compliance
     sampling requirements of Parts 70 and 90 with no replacement
     rules for compliance sampling.  Also, it dramatically
     reduced an 83 percent reduction for frequency of shifts
     samples for respirable dust compliance.  Finally, section
     compliance sampling would occur only six shifts a year and
     outby areas one time a year.  Those are not guaranteed by
     rule or funding.
               It also would increase the dust exposure levels
     above those contained in the Mine Act and current standards,
     whereas the advisory committee recommendations were to lower
     the dust standard for respirable coal mine dust.
               The proposals would allow mine operators to double
     the two milligram standard on long wall faces, while the
     proposed rule states that the exposure level would be 2.3,
     and for Part 90 miners outby and intake samples to 1.26. 
     These were referenced in the preamble by a formula.
               It also permits mine operators to replace
     engineering and environmental controls with the Recal
     airstream helmets or administrative controls on long walls
     in which the 20 years of mining experience that I have I've
     never seen environmental or engineering controls exhausted
     in a coal mine.  I've seen our long walls get out of
     compliance, and by the grace of God that mine operator comes
     up with a plan, whether it be environmental or engineering
     control, to simplify and get the long wall face in
     compliance with the dust standards.
               Various unique conditions of coal mining,
     obstructive views, difficulty communicating, may compel
     miners to lift the visors on their airstream helmets.  The
     actual fit or seal of this respirator helmet, to wear in
     repeated work task motions in confined work spaces, raising
     the visor and high velocities of air along the long wall
     face may all significantly reduce the actual degree of
     protection provided in the workplace.
               Enforcement of the MSHA proposal is too fuzzy. 
     Miners may not know what to expect.  The MSHA policy
     addressing the sampling process and intended enforcement of
     the plan verification and other standards appear to reduce
     the policy and discretionary decision by MSHA or its
     inspectors, and that is not good for miners or the mine
     operators, as a matter of fact.
               With an Administration that would be soft on
     sampling levels, miner participation activities, approval of
     increasing coal mine dust levels and other provisions could
     leave the miners in a hole.  With already the mistrust among
     the working coal miners of this country pertaining to
     respirable dust sampling practices and recommendations of
     both NIOSH and the task group put together by the
     government, along with the proposed rules, you're sending
     that mistrust deeper into the coal fields of this country.
               Despite reports of an MSHA takeover of compliance
     sampling, in the proposed rules we don't see that.  There's
     nothing in the proposed rules on compliance sampling
     requirements.  To us, those were eliminated.  Since it is
     not a rule and funding has not been guaranteed, MSHA's
     current sampling is not legally guaranteed and can be
     reduced.
               Despite references of increased miner
     representation and participation, there were none in the
     proposed rule.  For compliance sampling, there have been no
     more rights miners have had since 1997 or 1977 -- excuse me
     -- in MSHA's plans to recognize by policy miners'
     representatives rights to participate in announced MSHA
     visits to verify dust plans.  The industry has already
     challenged that, and absent a rule miners will not likely
     get it.
               The rule again does call for single shift
     sampling, and we appreciate that.  That has been supported
     by the miners and the UMWA.  That proposal has been altered
     by MSHA policy and other proposed rules reducing the benefit
     for miners.  Full shift samples would only be taken during
     abatement sampling.
               Routine compliance sampling, which will be the
     vast majority of sampling, will not be full shifts.  They
     will be eight hour, 480 minute samples with some flexibility
     when they will be taken during the shift.  This brings to
     mind what a full shift is today in the coal mining industry. 
     As many of my fellow brothers here have mentioned, a coal
     miner routinely works nine to ten hour shifts producing coal
     underground.  Why for dust sampling purposes, may I ask, is
     a coal miner only sampled eight hours when there are up to
     two more hours in a working shift for him?
               The proposed rule contains a dust control plan
     verification that is complex.  Although plan verification is
     needed by all means and we support that, as designed it is
     too complicated and may be ripe for the operator to abuse,
     and enforcement is far too discretionary.
               There are parts that truly need changes in the
     proposed rules.  There is no backup plan.  The proposal
     contains changes in the manner quartz is sampled, and the
     full effect of those changes are still being analyzed, to be
     honest with you.  The rules implementing those are contained
     in agency policy in the preamble.
               The rules establish procedures for administrative
     controls for mine operators to rotate miners, activities to
     reduce exposure and comply with the dust standards.  Under
     that scheme, MSHA would not have operators under citation to
     implement engineering controls, which would remove legal
     rights miners had to enforce engineering controls.  MSHA
     policy on this discretion lacks teeth in enforcement and
     clarity.
               Ladies and gentlemen, the federal advisory
     committee was officially chartered under Section 101(a) and
     102(c) of the Federal Mine Safety Act of 1977.  The advisory
     committee was comprised of two representatives each of
     miners and mine management and five neutral representatives
     who had no interest in the mining industry.
               Two UMWA health and safety officials served on
     this committee.  Those representatives, as well as several
     miners and black lung victims across the country testified
     before the federal advisory panel, and they laid out reforms
     needed to overhaul the federal respirable dust program.
               In the month of September, 1995, NIOSH issued a
     criteria document calling for reforms in the coal mine dust
     program.  That document was forwarded by MSHA to the
     advisory committee for consideration as they developed
     recommendations to overhaul the coal mine sampling program
     dust program.
               The federal advisory committee sent its official
     report detailing actions needed to reform the coal mine dust
     program to the Secretary of Labor on November 14, 1996. 
     Under this Section 101(a)(2) of the Mine Act, upon
     submission of recommendations from the advisory committee
     presented, MSHA was obligated to publish a proposed rule for
     reasons not doing so.
               Following years of delay, the UMWA filed suit. 
     They filed suit against MSHA on January 13, 2000, to force
     MSHA to issue regulations on key reforms miners and the UMWA
     had sought for years and were recommended by the advisory
     committee over three years earlier.
               I am asked numerous times in the coal fields why
     did MSHA turn their back on the coal miner, the UMWA and
     advisory committee with their recommendations and force UMWA
     to file suit against MSHA, which is our friend?  I hear
     comments that it seems that MSHA does not care how many
     people or how many coal miners contract pneumoconiosis
     because they were in no hurry to fix the failed dust
     sampling program.
               When I'm asked that question and I explain to them
     that MSHA is our friend, they're our buddies, they help
     protect us, and they read the proposed dust rules and they
     ask me well, does it look like it in the proposed dust
     rules, it's hard to come back with a good answer for them.
               Ladies and gentlemen, let's not kid ourselves. 
     There actually isn't an MSHA takeover of the operator
     controlled respirable dust program.  It's actually just flat
     out eliminated.  What the MSHA proposal is wipe out all
     operator compliance dust sampling requirements contained in
     Part 70 of the regulations, and there are no replacement
     regulations.
               The committee recommended that sampling be
     increased, that the compliance sampling be carried out at a
     numbered frequency, at least the same level currently
     required of operators in MSHA and that MSHA explore all
     possible means to secure adequate resources without adverse
     impact to other agency resources and responsibilities and
     that any resource constraints in MSHA be overcome by mine
     operator funding.
               Again, instead of increasing compliance dust
     sampling in the coal mines to protect miners, the proposed
     rule dramatically decreased the frequency of sampling, an 83
     percent reduction.
               Following our review of the MSHA proposals by the
     UMWA health and safety committee specialists, including the
     health and safety and legal departments of the mine and
     health safety committees, which we have a total of four
     committees at our local and we've all looked at it and it's
     all been mind boggling to us, needless to say, we have been
     able to determine one thing for sure is that the proposed
     rules are fatally flawed and not in the best interest of the
     nation's miners and in need of major changes.
               While the proposed rules do provide some
     improvements for miners, they are overshadowed by changes
     that would be adverse to miners and some undercutting of the
     Mine Act and health and safety standard protections.  In the
     years of hard work we have all done to reform the respirable
     dust program, we were extremely disappointed with some
     several areas of the MSHA proposals.
               There is a loud call from all coal miners from the
     proud State of Alabama to recommend MSHA to go back to the
     drawing board and publish new proposals that follow the
     recommendations of the federal advisory committee.
               With that, I do end my speaking.  I thank you so
     much.  If there's any questions, I'll be glad to answer
     them.
               MR. NICHOLS:  Thank you
               (Applause.)
               MR. NICHOLS:  The next presenter will be Ralph
     Loney, UMWA.
               MR. LONEY:  My name is Ralph Loney, R-A-L-P-H,
     L-O-N-E-Y.  I'm a safety committee man of Local Union 2232.
               We have about 95 people working underground at our
     mines.  Over half of them is mandatory ten hour work days. 
     When the MSHA people come to run dust samples, I try to --
     them.  Usually the starting time is 8:00 to 4:00.  He turns
     the pumps on maybe five minutes to 8:00, and he puts them
     back in his box.  Then he takes them to the section on to
     the dinner hole and then distributes them out to the people. 
     That takes approximately 45 minutes.  Around 3:15 he gathers
     then back up again, proceeds to take them outside so he can
     turn them off at 4:00 or 480 minutes.
               In the meantime, the men is still in there two
     hours in the face in two cuts of coal, two runs on the long
     wall.  That's approximately an hour and a half the men is
     not even wearing a dust pump.  In reality, the people that
     we've got in our mines that's working ten hours a day is
     only wearing them six and a half hours.  As I said, after
     the dust pump leaves the sections they've got to get two
     more cuts of coal, two more runs on the long wall.  That's
     exposing them to more dust.
               How can you justify an honest dust sample when the
     men are still running coal while the dust pumps are in the
     back of the jeep on the way back to the office?  I don't see
     why we can't have the people wearing dust pumps from portal
     to portal to where they get honest and accurate readings of
     the dust for the day that they're exposed to.
               Thank you.
               MR. NICHOLS:  Thank you.
               (Applause.)
               MR. NICHOLS:  The next presenter is Eric Barnes,
     UMWA.
               MR. BARNES:  I guess you've been waiting on me.
               MR. NICHOLS:  How did you get this job?  Are you
     the rookie?
               MR. BARNES:  Yes, I'm the rookie.  I'll make it
     short and sweet.
               My name is Eric, E-R-I-C, B-A-R-N-E-S.  I've got
     to get this scarf off.  It's about to kill me.
               MALE VOICE:  We can't hear back here.
               MR. BARNES:  You can't hear me?
               MALE VOICE:  No.
               MR. BARNES:  Would you like for me to raise my
     mask?  You know, I've always wondered how it would feel to
     be a pack mule, and I think I know now.  Let me see.
               I'd like to start the day by asking Mr. Nichols or
     anybody else on the panel would you like to wear this the
     rest of the day?  I don't think you'd enjoy it.  I've had it
     on for about six hours now, and it's about to kill me.
               I'd also like to say to these people that enjoy
     wearing this or don't mind wearing these on the long walls,
     I don't see how they get through the day.  I really don't.
               The mining industry representatives have
     repeatedly urged MSHA to accept the use of airstream helmets
     as an alternate means of complying with dust standards when
     engineering or environmental controls fail or were not
     feasible.  MSHA has constantly acknowledged that airstream
     helmets can be effective as an interim method of protecting
     miners when properly used and maintained.
               Now MSHA -- pardon me.  I'm about to die here. 
     Now MSHA is proposing to permit under certain circumstances
     the limited use of either airstream helmets or
     administrative controls for compliance purposes under
     typical mining conditions.
               The degree of protection depends on the ability of
     the airstream helmet to prevent dust from entering the
     miner's breathing zone.  To protect the miner, he has to
     check the filter system, make sure the battery pack is fully
     charged, which is one of these gadgets here, and make sure
     he keeps the visor in a lowered position.
               We all see how difficult that is, and this is in
     an air conditioned atmosphere.  I mean, I've been on long
     walls, and the heat in Alabama, which that's where I work,
     is anywhere from 100 to 105 right now, and it's almost
     impossible to keep this visor pulled down for ten hours. 
     There's going to be some individuals downwind of that shear
     for ten hours if we do it day in and day out.
               There's virtually no positive pressure in the
     airstream helmets.  Dust may invade the miner's breathing
     zone through openings along the side and bottom of the visor
     in this area here.  The tests have shown that getting the
     best results out of this helmet is always face the air flow
     direction.  Now, that's going to be very difficult.  Now
     I've got to go down on the long wall face and face the
     direction of the wind all day.  That's impossible. 
     Impossible.
               We also feel by having to use the airstream
     helmet, our vision will be impaired by the design of the
     helmet.  My side vision is hampered right now.  I can't see
     my hand until now.  We depend on that as our defense
     underground.  We have lots of different situations we have
     to face every day when you're on the long wall face.
               Tests have shown -- well, I've already read that
     part.  We also feel by having the communication problems.  I
     think a gentleman in the back said he couldn't hear me when
     I had it down like this.  That's also an element that coal
     miners have to depend on.  We have to trust each other and
     rely on each other to tell us when there's danger.  If we
     can't hear, there's no way for us to protect each other.
               Another problem with this outfit that I see is our
     maintenance people.  They're pretty much downwind of the
     shear ten hours a day, and they're working on shields in
     between leg jacks.  I don't know if you people know what
     those are, but that's a very difficult place to be.  With
     this on, I don't know how they could get in there with this
     on.  Well, I know what they'd do.  They'll field strip it. 
     They'll take it off.  There's no doubt in my mind.
               And the weight of this.  I don't know.  It's got
     to weigh 25 pounds.  It's got to.  If you don't believe me,
     again I will let anybody on the panel wear it the rest of
     the day, and I think you'll see what I'm talking about. 
     It's very uncomfortable.
               The Mine Act required the engineering or
     environmental controls to be in place to maintain respirable
     coal mine dust at or below compliance levels.  Section
     202(h) of the Mine Act prohibits replacing engineering
     controls with respirators for a good reason.  If the mining
     industry was not forced to use these controls, they wouldn't
     do it.  Sorry.  I can't see.  It's fogging up.
               The proposed rule allows the mine operators to
     replace engineering controls with respiratory protection. 
     The UMWA would ask that MSHA go back to the drawing board
     and publish new proposals that follow the recommendations of
     the federal advisory committee.  Please try to imagine what
     coal miners are facing day to day in the workplace; the
     danger we have to face.
               Don't let this airstream helmet be a substitute
     for environmental control.  We need engineering devices.  We
     need worker friendly dust monitoring like the PDM-1.  This
     unit is the PDM-2.
               Also, hearing protection.  There's no way to use
     this.  This is the one I prefer.  I've used these for years. 
     We've been limited.  With this gadget on, we've been limited
     to just the earplugs.  I can't find a way to put it on, you
     know.  It just won't happen.  It's not big enough.
               Any questions?
               MR. NICHOLS:  Yes.  Which Jim Walter's mine do you
     work at?
               MR. BARNES:  No. 5.
               MR. NICHOLS:  No. 5.  I would expect that there's
     some number of miners that choose to wear the airstream
     helmet because they like to wear it?
               MR. BARNES:  I think we tried it at No. 5.  It's
     been years ago.  I talked to one employee.  I can't --
               MR. NICHOLS:  Well, is it safe to say that at some
     places Jim Walter's miners choose to --
               MR. BARNES:  I don't think any of Jim Walter
     miners use these.
               MR. NICHOLS:  Okay.
               MR. BARNES:  This outfit.
               MR. NICHOLS:  Well, is it safe to say that
     somebody in Alabama uses them?
               MR. BARNES:  Maybe in Alabama.  Not with, you
     know, the air we have to have on the faces to keep the
     methane.
               MR. NICHOLS:  Okay.  And MSHA has never considered
     them an engineering control anywhere on the long wall face. 
     All we're saying in this rule is that if you can't engineer
     out the problem downwind of the shear, we would consider it.
               Now, does everybody who works at No. 5 working
     downwind apply to the two milligram standard?
               MR. BARNES:  As far as I know.  I'm not sure.  I'm
     not sure.
               MR. NICHOLS:  That being the case, you won't be
     wearing any airstream helmets.
               MR. BARNES:  Well, until you raise the milligram
     standard.
               MR. NICHOLS:  We're not going to raise it.  If the
     problem has been solved by engineering controls, then
     companies need not petition MSHA for the use of airstream
     helmets.
               MR. BARNES:  Well, I think they will.  I think
     they will.  I think they'll do that.
               MR. NICHOLS:  They can petition for anything, but
     it won't be granted.  If engineering controls are taking
     care of the problem, it won't be granted.
               MR. BARNES:  Okay.  Thank you.
               MR. NICHOLS:  Thank you.
               (Applause.)
               MR. NICHOLS:  The next presenter is Dave Deerman,
     UMWA.  Is Dave Deerman here?
               How about Tom Sweeten?
               MR. SWEETEN:  Good afternoon.  My name is Tom
     Sweeten, S-W-E-E-T-E-N.  I'm the chairman of the health and
     safety committee for Local Union 1545.  I'm here to let you
     know we have coal mines in Illinois also.  West Virginia and
     Alabama have been prevalent so far, but I'm from southern
     Illinois.
               First of all, I'd like to comment on the airstream
     helmets.  I wasn't going to, but I've worked on the long
     wall for nine years.  I'm a roof bolter right now.  Before
     that I was on the long wall.  That was an option for us. 
     The last gentleman asked one of you guys if you'd like to
     put one on and wear it.  I'd like to go a little farther.
               We've got low coal there at times.  Put one on and
     crawl under that table for four or five hours, or, to be
     like a repairman working downwind, put it on and crawl
     inside the podium for four or five hours like we have to in
     the shields.  That's the facts on those airstream helmets. 
     I would not wear one.
               We were lucky enough that they did do it with
     engineering controls.  I think what scares us bigger, the
     most, is if the management decides they can't do it by
     engineering controls then that's going to be a fall back
     position for them.  If they don't have that fall back
     position, they'll figure out a way to do it.  They always
     have, and they always will.
               I hate to see a fall back position such as that. 
     It's dangerous.  As he mentioned, you don't have any
     peripheral vision.  It steams up.  It was steaming up on him
     sitting there.  If you look, his head is indented right
     there where the helmet was pushed in on him to keep it
     tight, so I really think those are a bad deal.
               I met Dr. Jones out in the hall a while ago, saw
     her about two years ago.  She came and visited our mine, and
     the first thing she said was do you hate our rules, too?  I
     don't think any of us hate this rule, both rules, but I
     think we've found a lot wrong with them.  I think there's
     some good in them, but I also think there's some bad.
               A while ago it was asked of the committee or the
     panel how many coal miners.  No one held their hand up.  You
     mentioned that you had coal miners, experienced coal miners,
     to draw on their experience in formulating these rules. 
     You've got a whole room full of them here, and that's what
     we're telling you people now, you know.  Believe us when we
     tell you there's a lot wrong with this.
               On the VPL, I think that stands for verification
     of production level.  That should have been approached, and
     I brought this up in MSHA District 8.  There's so much that
     management can do to put the production level in their
     favor.  If they report production level, they might report
     it as clean coal, but when the inspector comes and does his
     dust sampling, they'll report it as raw coal.
               At our mine right now, we're running 27 percent
     reject, so that's going to be a 27 percent difference in
     your reporting.  We don't have any way.  I, as the chairman
     of the safety committee, or none of my committee men have
     any way to verify what numbers they're turning in.  Are they
     turning in clean coal and then raw coal?
               There's another problem.  We flat at our mine.  We
     cut a ten foot box cut, and then you move over and slab six
     feet to get your 16 feet.  By their formula, if you don't
     complete your slab cut you don't count that as production
     footage.  The next shift gets it.  So what happens at our
     place a lot of times, they'll do their box cut and then move
     over to another cut during a sampling procedure, and they
     won't count it.  The inspector goes by what the section
     foreman tells him his production footage is.
               We go by footage, as opposed to tonnage, so we
     don't know what formula they use, how many tons per foot. 
     Sometimes they say if you have a higher seam, of course,
     you'll have more tons.  They can wiggle that in the process
     also.  They'll say they have lower feet so you have lower
     tonnage.  If they have higher feet, they have higher
     tonnage.
               What we need, we need someone there, one of the
     committee men, who is familiar with the situation at the
     mine, at any mine, to have input into this, to have input on
     how much the reporting, over reporting or under reporting. 
     That's really important because, like I said, it could be a
     27 percent difference at our mine simply by using raw coal,
     as opposed to clean coal.
               Again, we don't need to take the foreman's word
     for it.  I think the inspectors are sent to the mine and
     said that's what you should do.  I think that the inspector
     should measure it himself and then have a formula to figure
     out how much coal they've run.
               I think the committee recommendation, as Tom
     Wilson said early on today, under Recommendation 16(i), I
     think that should be followed, and 16(i) says the production
     level should be 90 percent of the average production of the
     last 30 production shifts, and MSHA should require the mine
     operator to maintain the appropriate records.
               The way I read it right now, and I believe it's
     going to be the tenth highest out of 30 samples, and then
     there's something in there which I'd for you to explain
     about the 67th percentile.  Again, I think that's going to
     get us pretty close to the 60 percent we're at now, but I
     don't understand that 67th percentile in there.  Could you
     explain that to me?
               MR. SCHELL:  Actually, what we're proposing is
     higher than the advisory committee.  The advisory committee
     was recommending 90 percent of the average, okay, so you'd
     have the high and the low average was about in the middle,
     50 percent, so the advisory committee was proposing 90
     percent of the average.
               You might want to read those words back just to
     make sure I quoted. it.
               MR. SWEETEN:  Yes.
               MR. SCHELL:  What we're proposing is higher than
     the average, so we're going above what the advisory
     committee recommended.  Our statisticians tell us since
     we're talking of the tenth highest production during a 30
     day production shift, that is about the 70th percentile, so
     if average is 50 percent we're talking about 70 percent, and
     then we're asking for your comments if that's high enough.
               We didn't do a good job of explaining that, but I
     want to focus on that.  What we're proposing as the
     verification level is higher than that proposed by the
     advisory committee.
               MR. SWEETEN:  Okay.  You know, you guys have had
     accountants, lawyers, doctors and probably an archeologist
     or two writing these.  I don't understand them.  I've read
     them.  I've scratched a hole on the top of my head.  You
     know, I've read them four times, and I don't understand
     them.  Luckily we have Joe Main and Tom Wilson and Joe
     Urbahn to explain some of these things to me, but it is
     confusing.  If I misunderstood that, you know, I apologize.
               I'll say this in closing.  For all of you guys up
     here and a lot of them out here, it's a job.  You guys have
     been assigned to come up with new regulations for dust
     sampling and to reduce the amount of dust that we're
     breathing, but the people like me, I've got 26 years in the
     industry.  Most of us in here have over 25 years.  It's more
     than a job to us.  We're fighting for our lives on this.
               This isn't -- I mean, we're not here to knock
     everything you're saying.  We're here to let you know we're
     fighting for our lives.  We've got people, fathers and
     brothers and mothers and sisters, dying of black lung or who
     have already died, and that's what we're doing.  That's why
     we're wanting you guys to take a look at this and to listen
     to what we're saying and try to take it to heart that we're
     trying to help out other miners.
               Someone mentioned a while ago everyone who spoke
     so far has been a union miner.  There's a lot of people out
     there that don't have the protection that we have, and
     they're still coal miners.  They deserve protection from you
     guys the same as we do.
               Thank you very much.
               MR. NICHOLS:  Thank you.
               (Applause.)
               MR. NICHOLS:  Is Dave Deerman back yet?
               MS. KUEMPEL:  I just wanted to make the
     clarification that the dust advisory committee
     recommendation of 90 percent was for the compliance
     sampling, which is different from the plan verification, as
     Ron pointed out, so those two really aren't comparable.
               MR. SCHELL:  In an effort not to confuse it again,
     we are, when we do compliance sampling, we are saying that
     we would do it at the level we're going into now at 60
     percent of average.
               The question was asked about the VPL, which is the
     verification.  There what we're saying is that we're doing
     it at a level greater than the average.  Did I totally
     confuse you on that?
               MR. NICHOLS:  Tom Klausing will be the next
     presenter.
               MR. T. KLAUSING:  My name is Tom Klausing,
     T-H-O-M-A-S, K-L-A-U-S-I-N-G.  Let's see here.  I'm getting
     older.  I've got to put these specs on.
               Before we go any further, I'd like to ask one
     question on the thing that was brought up just a while ago
     on the dust.  You're saying you're wanting to increase more
     than what the regs already say?
               MR. SCHELL:  What I'm talking about is the plan
     verification, and the question was asked for Mr. Sweeten. 
     He didn't quite understand this 67 percentile.
               The point I was trying to make is when it comes to
     plan verification, we want that plan to be verified at a
     high level, and through the discussion today I had the
     impression that people were under the understanding that we
     were going to approve that plan at less than the average.  I
     heard comments about 60 percent of the average, 90 percent
     of the average.
               The point I wanted to clarify is that when it
     comes to the plan verification, we want that plan to be
     verified above the average and significantly above the
     average.  Going back to what I said this morning, to us, the
     key to protecting miners is to have a plan that works at the
     parameters the operator has in the plan and at high
     production.
               MR. T. KLAUSING:  Okay.  Thank you.
               My name is Thomas Klausing.  I work in Local 2161. 
     I mine at Old Ben Coal, Zeigler Mine No. 11, Coulterville,
     Illinois.  I've been a local union president for about 20
     years.  I also have my state miner examiner papers from
     Illinois, state mine inspector papers, hoisting papers, shot
     fire papers, mine manager papers.  I represent the people
     that work at the mine.
               I would like to take the opportunity to speak to
     the board here for the proposed respirable dust rules. 
     MSHA, the United Mine Workers insists you go back to the
     drawing board.  The proposal is outrageous.  When this
     proposal it was brought up it was supposed to be better, not
     a take away.
               The advisory committee is also outrageous.  Some
     of the key points on page 3 and 4 eliminates the entire
     compliance sampling requirements in Parts 70 and 90 with no
     replacement rules for compliance sampling, dramatically
     reduces the frequencies of shift sampling for respirable
     dust compliance.  Mining section compliance sampling would
     occur only six shifts a year, outby work one time a year. 
     These are not even guaranteed by rule or funding.
               Increase the dust exposure level above the content
     in the Mine Act and the current standard.  The proposal
     would allow mine operators to double the two milligrams to
     four milligrams on a long wall face, while the proposed rule
     states that the exposed level would be two milligrams, three
     and one milligram for Part 90 and outby intake samples. 
     MSHA's plans to allow them to reach 2.33 milligrams and 1.26
     milligrams.  These specific levels were not cited in the
     proposed rules or the preamble.  They were referred in the
     preamble by a formula.
               Permits mine operators to replace engineering
     control with respirator protection or administration control
     on long walls, which are prohibited by the Mine Act. 
     Enforcement of the MSHA proposal is too fuzzy, and miners
     may not know what to expect.  The proposed rule gives too
     much discretion to the MSHA inspectors and the MSHA district
     manager.
               These are some of the problems that we've had at
     our place.  We have three continuous miners and two roof
     bolters that are in and out of compliance all the time. 
     With the new proposed rule, we will be running them out of
     compliance more, but what is compliance?  There is none
     under the new proposal.  With the new proposal, there is no
     rule that MSHA cannot cite the company for being out of
     compliance.  MSHA enforcement is only as powerful as the law
     gives it to enforce the company, and the company knows this.
               The United Mine Workers of America thought MSHA
     was their friend, but this is no friend.  We have been after
     MSHA to get us more involved with the dust sampling for some
     time.  Now, under the new proposal, we have none that is
     guaranteed.  I have worked in coal mines for 23 years, and I
     enjoy working as a coal miner, and I want to go forwards,
     not backwards.
               There was some stuff that was brought up through
     some of the testimony that I just wanted to bring out that I
     still don't quite understand.  I've read it and read it
     over, and it's just confusing.
               Mr. Nichols said a while ago that they're not
     raising the standards of two milligrams to four.  It's only
     in a certain area.  The law now does not cover that.  I
     mean, it says if you're over two milligrams you get cited.
                If they can't keep it under two milligrams, then
     they need to do something with it; not put a doggone helmet
     on him and send him to space.  We're not going into space. 
     We're down there trying to work in an environment that is
     close, closer than sometimes even you guys sitting together,
     and ladies.
               It is an environment that there's times it gets
     frustrating, and with the new proposed rules it's just T
     totally outrageous.  I don't quite understand that.  You say
     that you're not increasing it.  No matter how you look at
     it, it's not in the regs now.  To me, you're adding to the
     regs by increasing it.
               MR. NICHOLS:  You're saying if something can be
     done and should be done that it will.  If there's an
     engineering control that can be applied to reduce the dust
     levels below two milligrams, that will be done.
               Now, your statement about --
               MR. T. KLAUSING:  It did.
               MR. NICHOLS:  We will.  Your statement about
     increasing dust levels on long wall faces is totally
     misleading.  I've tried to explain that.
               MR. T. KLAUSING:  Well, I think there's a lot of
     these rules in here that are misleading, and there's a lot
     of them that we don't understand.  That's what we're here to
     try to bring across to you that we don't understand them.
               MR. NICHOLS:  And we've been trying to explain to
     you the situation on long walls.
               MR. T. KLAUSING:  No.  You just told us that
     you're planning on taking that individual, and if there is
     no correction, no way to correct it to get down to the two
     milligrams or the four milligrams, then he has to wear that
     until somebody finds out what they've got to do.  Is that
     correct?
               MR. NICHOLS:  That's correct.  If there's a --
               MR. T. KLAUSING:  Now, is that in the regs now?
               MR. NICHOLS:  I think it's pretty well explained
     in the preamble.
               MR. T. KLAUSING:  Not in the regs.  This is
     something that --
               MR. NICHOLS:  I mean, you folks have made that
     point over and over about what ought to be in the rule
     versus the preamble, and we've heard that comment.
               MR. T. KLAUSING:  Okay.
               MR. NICHOLS:  But what you're talking about here
     now is the real live situation of either letting somebody
     breathe dust or offering them some personal protective
     equipment.  If the solution is engineering controls that
     will be applied, but if that's been exhausted rather than
     let some miner continue to breathe excessive amounts of coal
     dust we think that's a viable option.
               Also, your comment about your continuous miners
     being in and out of compliance and it would be out of
     compliance with the new regs.  I don't understand that
     comment.
               MR. T. KLAUSING:  That's a good point there
     because I got that brought up in here, too.  MSHA is only
     going to be taking six samples, right?
               MR. NICHOLS:  That's right.  We're going to be --
               MR. T. KLAUSING:  There is a thing in there that
     they would possibly take more.  I understand that.
               MR. NICHOLS:  That's right.
               MR. T. KLAUSING:  But I'm talking about legally
     them only taking up to a minimum of six samples, right?
               MR. NICHOLS:  That's the minimum number.
               MR. T. KLAUSING:  The company takes roughly around
     30?
               MR. NICHOLS:  That's correct.
               MR. T. KLAUSING:  Okay.  Now, most of our
     citations that we've ever received is because of the company
     sampling when they send them in, MSHA reads them, and
     they're out of compliance.  They get five days to get them
     back in.  They know if they don't get them back in the MSHA
     inspector comes out there and cites them.
               Most of the time -- I'm not going to say it
     happens all the time -- when an MSHA inspector comes out
     there and he takes his, there's not a citation going to be
     wrote because they do everything according to Hoyle.  They
     take and water the roads down.  They take and every time you
     make a cut you back the miner out.  You clean the scrubbers. 
     You make sure all your water sprays are up.  Most of the
     time they rock dust prior to even going in there because
     they know that they're going to take their dust samples in
     Unit 3 because it's time to take the dust samples in Unit 3.
     That's just the way it is.
               MR. NICHOLS:  I think what you're missing in this
     process is that MSHA is going to ask the operator to put in
     their plan those controls they're going to use all the time,
     and we're going to verify that those will work so on a daily
     basis the mine operator, the safety committee the inspector
     can look at those plans and see if those controls are in
     place.  If they're in place and the plan has been verified,
     I think you can make some assumption that you get compliance
     day after day after day after day is what we're looking for.
               MR. T. KLAUSING:  Yes, but what's to say when MSHA
     comes out there and does their thing underneath these new
     regs to get their start in there, you've got your plan
     verification, okay?  You've already worked your 30 days or
     whatever.  Meanwhile, while they was working these 30 days
     in order to get their quota as far as their tonnage is what
     you're going by on this, I imagine, they did exactly what I
     just told you.  They didn't run the unit that day.  They're
     sampling in here.
               They're getting the production on this day here. 
     They've got the unit spotless.  They've got everything rock
     dusted.  They don't have to rock dust in there on the shift
     that day.  You've got the roads all watered down, the whole
     nine years, the scrubbers all cleaned.  You've got 110
     sprays working on there.  You ain't got 45 today, but you've
     got the full 110 working on there, and then now you're
     turning around, and we've broke a production record, okay,
     for that time.  We're at high tonnage right now, so that's
     added in.
               Now you've got your criteria of your plan
     verification or whatever, I take it, and this is what MSHA
     is going to go by their standards, unless I'm
     misunderstanding this or something.  It's the same way. 
     It's the exact same way it is right now.  There's ways to
     get around it, and that's how they do it.
               I work in a coal mine.  I used to be a mine
     operator.  I know how it takes.  When you take a dust
     sample, he should wear it.  The individual hangs it up on a
     curtain where the air is blowing down there.  He's not in
     there getting the doggone dust on that doggone pump.  It's
     sitting up there hanging in fresh air all the time.
               MR. NICHOLS:  Are you arguing for operator
     sampling or against operator sampling?  You know, on the one
     hand --
               MR. T. KLAUSING:  I don't have any problem with
     operators sampling.  I mean, they keep continually cheating
     or whatever.  We take our safety committee, which we are a
     union mine, and, God forbid, I feel sorry for the non-union
     people that don't have the rights that we have under some of
     these rules that are proposed here.
               Any time they take a dust sample since we found
     out they was doing all this fraud stuff, you know, back in 
     -- when was it -- the late 1990s or early 1980s or whenever
     that took place.  When they started doing that, we started
     taking cassette numbers.  Any time they'd take a dust sample
     and we'd get the reading back from MSHA, we make sure the
     cassettes match.  That's how we keep track of ours.
               No, I have no problem with the company doing their
     own sampling.  More power to them.  At least they're held
     responsible for it.  They're held accountable for it.  Now
     MSHA is taking the brunt of it, and it just blows my mind.
               I think that concludes my statement.  I did enough
     patcheting towards you guys and ladies.  I T totally
     sometimes feel sorry for you being up here.  I know how it
     is.  You're in the front line.
               I do appreciate MSHA because without MSHA we would
     be back in the stone age then.  You'd be back down there
     with no scrubbers or no dust control or no ventilation, no
     roof control or nothing, you know, but you've got to realize
     that there is mines that are out there that are still
     working underneath that, and your MSHA inspectors can tell
     you that.
               From the stories that they've told me, you know,
     they try to go to a property to shut it down, you know, that
     day so they don't have to inspect it, you know.  Why do they
     do that?  There's got to be a reason behind it.  The reason
     is they don't want you in there.
               We do want MSHA to continue to inspect the mines. 
     We want MSHA to be able to give us a proposal that we
     deserve, not something -- what really throws me is that you
     hear so much about waste, you know, and I didn't really get
     this until probably a few days ago, but this has been going
     on for 20 some odd years that they've been trying to get a
     proposal for dust.  It just blows me, and I've only been in
     the mine 23 years.
               I've listened to the old timers, and I'm sure that
     you guys have a time or two.  And ladies.  I don't want to
     knock you ladies out or anything.  They talk about you
     should have been back there when you didn't have the
     scrubbers in there, when you could put your hand right in
     front of your face right there, and you couldn't even see
     it, you know.
               Them are the guys that these guys are talking
     about that are dying because of black lung that the federal
     government doesn't agree that they have black lung and the
     companies don't agree to that, you know.  They oppose it
     against them.  They were the people.
               There's people today that are the same way.  It's
     not near as bad, but you still have the dust down there. 
     They don't come out of the mine the way we're sitting here
     right now.  They've got to be getting that dust from
     somewhere.  Where are they getting it?  It attacks through
     their skin down there.
               I mean, the dust is still there.  It's just not
     near as bad, but we still need the dust control to be able
     to stop that, and that's all we're asking, to be fair with
     them and to listen to the people that you're going to hear
     today.
               Thank you.
               MR. NICHOLS:  Thank you.
               (Applause.)
               MR. NICHOLS:  J.R. Patsey, UMWA?
               MR. PATSEY:  I'm J.R. Patsey.  I'm from Local
     1713.  I work for U.S. Steel Mining Company, Pinnacle Creek,
     West Virginia.  I've been in the coal mines approximately 24
     years.  I've worked in the face.  I've worked in the long
     wall.  I've run a motor for eight years.  I've worked at the
     preparation plant approximately seven years, and currently
     I'm a mine examiner floor boss.
               We appreciate what you're doing for the single
     sample compliance.  We've needed that for a long time, but
     one of my big problems is this six shifts a year that you're
     going to be doing your sampling with.  We've got a big
     operation in our mines, and it don't really affect us as
     much as it would a small, non-union mine because I know at
     our mines we've got a good safety committee man, and we've
     got resident inspectors there.
               We pretty well keep control on things, but these
     small, non-union mines you've got nobody there to look out
     for the coal miners.  I've been in a few myself.  You've got
     to get down and crawl like this.  You've got no ventilation,
     no rock dust.  The roof bolts, they'll send them out with no
     top, no support at all.
               It's a bad thing because if you've ever had a
     brother or a sister or a dad or a grandpa get carried out of
     the coal mines, you know, because he's dead or if you've
     ever had somebody die from silicosis or black lung, I have. 
     It's a sad thing.
               Another thing I'd like to mention is on this outby
     sampling once a year.  We've got a lot of areas at the coal
     mines with belt haulage.  Our mines is all belt haulage.  We
     used to have -- we've got several union brothers that never
     received benefits, was lucky to have received benefits, you
     know, 40 percent silicosis, worked on the belts all of their
     working life.
               You know, now you're wanting to reduce, you know,
     to once a year is all you're going to sample the outby. 
     There's a lot more dust in this outby than what people wants
     to admit to, and it's a big problem.  Like at our operation
     we've got 78 employees at our preparation plant outby on the
     surface.  We've got 41 members on the strip job outby on the
     surface.  If you've ever been outside when a wind storm
     comes up, you've got 250,000 ton of coal in a stockpile
     there.  It will blow it for miles.  I mean, it's unbearable.
     You can't see.
               Another thing.  I know you've explained it several
     times today, and it really sticks in everybody's throat
     really.  When I try to explain to the members at our mines
     these milligrams of what you're proposing now, this 2.3 on
     your regs on your milligrams there, you know.  We've got
     2.0.  It's there.  That's the law.  That's what we've got to
     deal with.
               You know, if we've got a problem that we need to
     raise it to 2.3, we need to lower the regs to 1.7.  If
     there's a variance there, they've got .3 there so they can
     come in compliance with the 2.0.  Don't raise it and put us
     in more dust than what we're already in.  I mean, I know
     I've heard you say it several times today.  We're not going
     to raise it.  If you go from 2.0 to 2.3, you are raising it
     any way you want to look at it.
               I ain't going to get into the airstream helmet
     because we've heard it today.  I wore one.
               MR. NICHOLS:  I appreciate that.
               MR. PATSEY:  I wore one, and it's been beat to
     death.  The guys is right.  You need to stick one on and
     wear it for awhile.
               Like our mines, you've got to crawl.  You know,
     we've got a long wall, a 1,000 foot face.  The height is
     probably about like this.  You're on your knees all day
     long.  If you've ever gone down a long wall and seen that
     long wall come by you, you know, you can't see nothing when
     it goes by.  It's pitiful really, you know.
               Another thing that Rick mentioned there was about
     the conditions in the mines, you know.  You may be running
     good one day, you know, no rock, no nothing.  Then all of a
     sudden you hit a middle man, nothing but rocks.  You know,
     that quartz, that's going to change your condition, you
     know, but yet you ain't going to be there but that six times
     a year.  Who's going to be there when us miners is there
     mining that when we hit that fault and rock.  You done gone. 
     You done did your six samples.  Nobody is going to be there
     to protect us.
               About all the laws we've had today, you know,
     somebody has had to lose their life for it or it would never
     become law, you know.  That's a fact.  You know, I preached
     at you.  You give me the opportunity to sit up here and
     speak before you.  I'm not going to take no more of your
     time because I know we've got a lot of people that's got
     things to say, and I appreciate it.
               MR. NICHOLS:  Thanks, J.R.
               (Applause.)
               MR. NICHOLS:  Larry Pasquale?  Larry Pasquale?
               MR. PASQUALE:  Good afternoon.  My name is Larry
     Pasquale.  I'm a UMWA member from Local Union 2133 in
     District 20 in Alabama.  I'm also a UMWA District 20 board
     member.  I would like to make a few comments and maybe ask a
     few questions on the proposal.
               After reading the MSHA proposed rule on dust
     sampling and the advisory committee recommendation, I
     started doing some thinking about other MSHA hearings we all
     attended in the past through the years of our existence in
     working in the industry.  If you look back at some of the
     history and some of the testimony, miners have testified
     that they wanted to have dust sampling programs done by coal
     miners, not the coal operators, because they didn't trust
     the coal operators.  Miners told the panel at other hearings
     it was a mistake to continue to allow the operators to do
     the sampling because the operators can and will falsify dust
     sampling.
               If you look at the advisory committee's
     Recommendation No. 19, it talks about the involvement of the
     miners and the miners' representatives under the 103(f) walk
     around rights.  I would like to ask the question today to
     the people out here in the audience if they would rather the
     miners, MSHA or the coal operators do the dust sampling.
               MALE VOICE:  Miners.
               MALE VOICE:  Miners.
               MR. PASQUALE:  I think that's the answer that a
     lot of us would like to see.  I'm not taking anything away
     from MSHA, but I think the miners would do a better job to
     protect themselves because they're the ones in that
     operation mining that coal; not the operator, the miners.
               Also, as a district board member I handle mine
     construction in the district.  I also know that in July of
     1996, the president of the construction local, Mr. Tim
     Burshel's testimony to the panel was why there was nothing
     being down for construction workers.  UMWA construction
     workers do all types of work in and around the mines. 
     Nothing has been written to protect them, especially in the
     shaft and the slope areas.
               MSHA has said they will do something at a later
     date.  It's been four years since the July, 1996, hearings. 
     My question is what?  If you look at the advisory
     committee's Recommendation No. 14, it addresses the concerns
     for the construction workers.
               Again, I was a coal miner at the Oak Grove Mine in
     Alabama.  Prior to that, I was a coal miner with a U.S.
     Steel mine, the Maybrick Mine in southwestern Pennsylvania. 
     I have roughly 15 years of underground experience.  The rest
     of my time has been working for the union either as a
     district rep, a construction rep, and also as a regional
     coordinator in charge of safety and health in the
     Pennsylvania and West Virginia area.
               I feel like I have some background and some
     knowledge.  I do some instruction.  I'm a certified MSHA
     instructor.  Also, inducement training.  I try to help our
     people.  What I've done Friday and Monday is I've talked to
     the district office at MSHA in Birmingham and just asked the
     question how many citations were written for respirable dust
     at the Oak Grove Mine since August 1, 1999, to the 24th of
     July, 2000.  There was ten citations written for respirable
     dust at the Oak Grove Mine.
               One citation was written.  The date issued was
     9-15-99.  The date it was terminated was 10-28-99.  That's
     43 days.  Another citation was written on 10-13-99.  It was
     terminated on 12-1-99, 49 days.  Another citation, and this
     one really bothers me, was written on 4-20, 2000.  It was
     terminated 7-20, 2000, 91 days.  The list goes on.  I wish I
     had a copy.  I should have brought a copy for your
     gentlemen, but I didn't.
               Coal miners today feel MSHA and the coal operators
     are selling them out by the proposals of the new dust
     sampling, but enough negatives.  Let's talk about a little
     bit of positive today for a change.  If we would all work
     together, for the health and welfare of the coal miners, a
     lot could be accomplished.
               Look at the money being spent having hearings to
     weaken the dust sampling program.  Let's look at the
     technology that's available by both MSHA and NIOSH.  There's
     good statements made.  The technology can be used to monitor
     dust levels, but it will take government regulations to make
     it a reality.
               We don't want to hear another promise for another
     20 years.  The technology for machine mine continuous dust
     monitors to provide instant information on respirable dust
     and record data over extended periods is available and
     feasible.  Read the advisory committee's No. 8
     recommendation.  It calls for development and use of
     continuous dust monitors for compliance surveillance and
     controlling dust.
               If you look at the gentleman who spoke a little
     bit earlier, Mr. Barnes, he asked this panel if somebody
     would want to put it on.  No one took the opportunity to put
     that gear on.  Just pick it up, if he wouldn't mind coming
     up and taking it off and letting one of you gentlemen pick
     it up and see how heavy it is.  It's roughly about 100 and
     some odd pounds.  I picked it up last night.
               We need rules to protect the coal miners from coal
     dust, a rule requiring the use of modern technology that's
     waiting to be used to save poor miners' lives, to protect
     them from getting black lung.  This panel needs to listen to
     what has been said in all the hearings that we're having now
     in Morgantown, today, tomorrow, in Utah, and the past
     hearings and go back to the drawing board and follow the
     advisory committee's recommendation.
               Remember, Congress' intent in passing the Coal
     Mine Act Health and Safety Act is clearly spelled out in the
     Act's first sentence, "To protect health and safety of the
     mining industry's most precious resource."  That's the coal
     miners sitting out here because we, and I consider myself a
     coal miner, hold the operators, the government bureaucracy
     and the Administration accountable.
               I thank you for your time.
               MR. NICHOLS:  Thank you.
               (Applause.)
               MR. NICHOLS:  William Chapman?
               MR. CHAPMAN:  My name is William Chapman.  I am
     with the United Mine Workers, president of Local 1793.
               With the machines being used to mine coal in
     today's modern day mining, there's more dust in the mines
     today than ever before.  In a 30 year span of time, there's
     been over 55,000 deaths attributed to the black lung
     disease.  In the past ten years, over 13,000 have died from
     this painful disease.  Painful, yes, because you smother to
     death, or you overwork your heart and cause congestive heart
     failure.
               So why would MSHA ignore the advisory committee's
     recommendation and propose to raise the respirable dust
     level and reduce the number of dust sampling tests?  The
     proposed changes you all make would greatly increase the
     miners' chances of being infected with the dreaded black
     lung disease.
               We, the miners, who mine the coal that affords 70
     percent of this nation the luxury of electricity deserve and
     demand a safer workplace and the peace of mind knowing that
     MSHA is working with us and not against us.  We urge for
     more increased and stress dust sampling and a reduced
     respirable dust level.  This is why we urge MSHA to put in
     place the advisory committee's recommendation, which
     includes miners' participation, if we're going to end the
     dreaded black lung disease.
               Thank you.
               MR. NICHOLS:  Thank you.
               (Applause.)
               MR. NICHOLS:  Rickey Kornegay?  I probably
     butchered that name.
               MR. KORNEGAY:  It's close.  How are you all doing
     this afternoon?
               MR. NICHOLS:  Okay.
               MR. KORNEGAY:  My name is Rickey Kornegay.  You
     was pretty close.  That's spelled R-I-C-K-E-Y,
     K-O-R-N-E-G-A-Y.  I'm a third generation coal miner with
     over 26 years working in strip mines, underground and
     outside at an underground mine.  I'm currently serving as a
     UMWA District 20 executive board member in District 20 in
     Alabama.
               My opinion of MSHA's performance through my career
     in the mines relates directly to a roller coaster.  That is,
     I started out thinking MSHA was one of the best
     organizations around.  Then in early 1996, I seen
     enforcement all but disappear while the MSHA bosses bragged
     in the newspapers about how much safer the mines were since
     they came into town.  Then I read the 1996 advisory
     committee report, and once again I became very impressed at
     the work that my government was doing with miners.
               As I read that report, I couldn't help but be
     impressed by how much thought had gone into identifying the
     problems and finding the solutions.  As I studied the 20
     recommendations that the advisory committee had developed, I
     could actually see how they all fit together towards solving
     the problems.
               I normally do not speak on health and safety
     issues since I normally deal with contractual issues, but
     since I was elected to represent the miners and after
     reviewing MSHA's proposed rules, I knew that I belonged at
     the mike today.
               A person not familiar with MSHA's proposed rules -
     -- any confidence in the dust sampling program because,
     quite simply, MSHA only adopts a few of the advisory
     committee recommendations, and MSHA failed to follow the
     complete process of the advisory committee leaving serious
     problems with these rules.
               I have several issues that I would like to raise
     at this time.  Issue No. 1.  The rules are made to reduce
     the frequency of shift samples for respiratory dust
     compliance.  This is what the advisory committee
     recommended.
               Issue No. 2.  The rules do not provide for paid
     miner participation in MSHA's announced visits.  The
     advisory committee's Recommendation No. 6 stated that during
     this verification visit, miners and their representatives
     should have the same pay, 103(f) walk around rights, as they
     do under MSHA inspections.
               Issue No. 3.  The rules all but fail to mention
     continual monitors.  I must ask what happened to the
     advisory committee's Recommendation No. 8?
               Issue No. 4.  There was no intent by the advisory
     committee to do away with all of the operator sampling.  See
     advisory committee Recommendation No. 5, operator
     verification; also Recommendation No. 19(a) and (b).
               Issue No. 5.  The advisory committee's
     Recommendation No. 1 states, "MSHA should consider lowering
     the level of allowable exposure to coal mine dust."  Now the
     level is being raised.  I've sat here and listened all day.
     This I cannot begin to understand because the advisory
     committee asked recommendations for it to be lowered.  It's
     going from two to 2.3.  I don't keep up with all the
     numbers, but if you go up it's going up, not down.
               Issue No. 6.  The advisory committee
     Recommendation No. 5 states, "Environmental control measures
     should continue to be the primary means of maintaining
     respirable dust levels," and also states, "Respiratory
     particular equipment should not replace these control
     measures."
               I know it's getting repetitive about Mr. Barnes,
     but you saw him earlier today and heard him speak.  I
     shouldn't have to say any more.
               To give companies a way out, you would not work as
     hard to find a solution if you give them a way.  If they
     have a way out, they're only going to work as hard to find
     the solutions to solve a problem.  If you give them a way to
     wear the airstream helmets, then that's a way out.
               The flaws in these rules go on and on.  I must ask
     that MSHA go back and fix these rules.  I remain very
     disappointed that MSHA as an agency of my government, that
     they did not.
               Thank you very much for your time today.
               MR. NICHOLS:  Thank you.
               (Applause.)
               MR. NICHOLS:  Shelly Branham?
               MALE VOICE:  He had to leave.
               MR. NICHOLS:  He had to leave?
               MALE VOICE:  He had to leave.
               MR. NICHOLS:  Eddie Castle?  Eddie Castle?
               Reggie Stallard?
               MR. STALLARD:  I'm Reginald K. Stallard, Local
     1760, and I was wanting to ask a question about the super
     section on eight cuts where we've got eight places.  One
     side gets four places, and we get the other four.
               They require us to bolt one place per shift, and I
     was wondering why they don't do dust samples, why we're
     bolting that place in the dust?
               MR. NICHOLS:  George?
               MR. STALLARD:  Anybody?
               MR. NIEWIADOMSKI:  I'm not sure I understood.
               MR. NICHOLS:  Could you just repeat that again,
     please?
               MR. STALLARD:  See, we've got eight headings, and
     we're required to bolt one place in the dust per shift.  I
     was wondering why they didn't do dust samples on it.
               MR. NICHOLS:  While they're sampling?
               MR. STALLARD:  Like when the inspectors come.
               MR. NICHOLS:  Yes.  They put the plum line where?
               MR. STALLARD:  They don't let us bolt when the
     inspector comes in the dust for that, you know, one wall.
               MR. NICHOLS:  The big difference under plan
     verification is that we're going to be sampling full shift. 
     The intent is to get those instances where, you know,
     normally on the 480 minute sampling shift we might not do it
     because we don't have total control over what actually
     happens on a section.
               MR. NIEWIADOMSKI:  Are you saying that the
     operator won't let you bolt when the inspector is there to
     sample?
               MR. STALLARD:  No.  He pulls us out.  Don't go in
     there he says.  See, they're making it so they don't want to
     get a bad sample.
               MR. NICHOLS:  I don't think it has anything to do
     with the rule.  I think it has to do with the inspector not
     being able to figure out what's going on here.  I don't
     know.
               MR. STALLARD:  He tells us, you know, when the
     inspector is there --
               MR. NICHOLS:  Have you talked with the inspector?
               MR. STALLARD:  Yes, I've talked to him.  I forgot
     his name.  I'll have to get that.
               MR. NICHOLS:  Why don't you get it for us.  I
     don't think this is an issue with these rules.  I think
     that's something we need to work out enforcement wise.
               MR. NIEWIADOMSKI:  Where did you say you were
     from?
               MR. STALLARD:  Cleveland, Virginia.  I work at
     Jewell Ridge Division.
               That's all I've got.  That's all I was wanting to
     ask you.
               MR. NICHOLS:  Okay.
               (Pause.)
               MR. NICHOLS:  How about Reggie Stallard coming on
     up?
               MR. STALLARD:  That was me.
               MR. NICHOLS:  All right.  How about William
     Sawyer?  All right.  Sawyer?
               MR. SAWYER:  I'm here.
               MR. T. KLAUSING:  While he's coming up here, using
     that same scenario that he had there just a while ago, under
     the new regs if an MSHA inspector come in there and did the
     same thing they still wouldn't let us bolt.  Is there
     anything MSHA could do to cite that?
               MR. NICHOLS:  Well, we keep coming back.  I know
     for a fact that some of you know how to file 103(g)s.  I've
     seen a few of them.
               MR. T. KLAUSING: That's not the avenue for 103(g).
               MR. NICHOLS:  Well, we used to respond to a
     telephone call, too.
               MR. T. KLAUSING:  I'm saying the MSHA inspectors
     are in there while they're doing the test.  He's in there
     for ten hours let's say, if you can even get to the rule for
     that.  They still haven't bolted that place.
               MR. NIEWIADOMSKI:  There's nothing MSHA can do.
               MR. NICHOLS:  We're going to bolt to something.
     Somebody else made a point that we're pretty well staffed. 
     I think this is a situation that's an enforcement situation
     that can be worked out.
               MR. T. KLAUSING:  Yes, but it goes along with some
     of the testimony that has been brought up in front of you
     that this is the way that management plays the game.
               MR. NICHOLS:  Go ahead.
               MR. SAWYER:  Good evening.  I'd like to thank the
     panel for the opportunity you've given us as the mine
     workers to come forward to testify and express our opinions.
     My name is William Sawyer, W-I-L-L-I-A-M, S-A-W-Y-E-R,
     safety committee, District 20, Local 1926 in Alabama.  I
     answer to Hacksaw.
               First off, let me know if I make you ill.  Tom
     Meredith said he would deal with me personally if I do. 
     Coming from Alabama, we know him pretty good.
               I'd like to start off by saying that we had a
     quarterly safety meeting several years back in Alabama, and
     there was a gentleman that came down that had a suit on, and
     I didn't know him.  It was during a break we got to talking,
     and I told him.  I said I had heard that somebody from the
     Department of Labor or MSHA had made the statement that one
     day you could go to work in the mines and realize that you
     could return home as healthy as you was when you arrived at
     the mines.  I told him.  I said I don't know what idiot that
     was, but he needs to work in the mines.  Well, that happened
     to be Davitt McAteer, and he's the one that made the
     statement.
               As I read these rules, I wondered what has
     happened to his theory?  Now, I took a lot of notes and I've
     heard a lot of information, and I hope I don't cover a lot
     of it, but if I do forgive me because there's been a lot
     presented.  As I look through my notes, I know I'm going to
     miss some.  I usually do.
               As I read this right here, I got this far in it
     and I was lost.  I attended the hearings up in Lexington,
     and I think some of the testimony up there got lost, too,
     ladies and gentlemen, because some of it I don't see here.
               To start with, I'll start in the effective plans
     and in the verification plans.  You know, we like that, but
     the fact is management is going to have the full
     responsibility of setting it up to submit it to MSHA. 
     They're going to have the most recent 30 day production with
     the ten most productive shifts as what they set it up on.
               During the setting up of this plan, what bothers
     me is what conditions our people are going to be in while
     the company sets this up without the UMWA representation
     there or MSHA representation there.  As I understand it,
     once they submit that they can receive a temporary
     verification plan or temporary okay to go ahead until MSHA
     can come out and do a compliance sampling.  That could last
     on to a longer period, which means that they will build out
     and run under there parameters and under their ventilation
     until MSHA shows up, which further increases the danger that
     our people are in this dusty atmosphere.
               Now, I know how it's supposed to be, and I know
     once they get it set up and the compliance sampling is done
     and everything is kosher, the compliance with the plan is
     the second part you showed up.  Each shift all these
     parameters is to be checked and engineering means or
     environmental means to make it safer and better has got to
     be intact and operating.
               My question is who is going to monitor this plan
     for effectiveness?  I know MSHA is going to do their one
     sample bimonthly six times a year.  During the time of this,
     who's going to monitor, you know, in between the bimonthly
     samples at the time they monitor?  That's just a question. 
     You might want to answer some of them later.  You may not.
               The way I see it as a working miner, I see them
     not doing their sampling, but they're still in control of
     the situation until MSHA comes in on their bimonthly
     inspection, and I see in this plan when they set that
     verification plan the UMWA is not allowed to be part of it
     to monitor it, yet it's for our people's health and safety. 
     That wasn't addressed in there.
               The abatement.  If for some reason MSHA comes in
     and it's not working and MSHA does an abatement sampling, it
     puzzles me because the abatement is a pre-warning.  We're
     coming in to do an abatement because you're out of
     compliance.  At that point, and I believe this has been
     brought up.  We're not guaranteed the right to travel with
     MSHA.
               All right.  The checking of the plant before each
     shift, which includes the dust parameters, the ventilation
     and all, that is going to be left up to the company to make
     sure it's in place.  If it's in place, MSHA assumes that the
     men will be working in a safe atmosphere.
               Now, I don't throw it critically at you, but if
     you haven't worked in the mines it changes from one hour to
     the next.  It will change that fast, and it takes the effort
     of the men down there to create the situation.  If they
     can't, then they have to either come to the safety
     committee, and if we can't get it corrected then we have the
     103, which most of us don't know what that is.
               That takes out from the previous regs or the regs
     at the present.  At that time a man could request for a dust
     sample, okay?  If I understand this new proposal, now we
     don't have but one recourse.  That's the 103(g).  I need an
     answer to that now.  Am I right?
               MR. NICHOLS:  There would be no change in what you
     want to request.
               MR. SAWYER:  I can 103(g) and get pretty much what
     I want from MSHA, okay?  What I'm saying is prior to that if
     we had people on the long wall that were being put downwind
     of the shear and exposed to dust, you know, I've been
     involved when they've requested a dust sample from the
     company.  We want a dust pump down here now.
               That's taken out of the scenario once this new
     proposal comes in.  They can request it, but by the regs
     they really don't have the right for it.  We're left up to
     103(g) and get MSHA in to do a 103 dust sampling.  Am I
     right?
               MR. NICHOLS:  That's right.  MSHA would do the
     sampling.
               MR. SAWYER:  Right.  Okay.  That's taken one route
     away from our people who we're here to represent.
               Okay.  Like I said, if I hit on something that's
     been hit on forgive me.  I won't stay on it long if I can
     remember it was talked about.
               All right.  After the plan is approved, and what
     I'm speaking of is not the sampling.  I'm talking about
     after the plan verification is passed by MSHA and everything
     is supposedly intact.  You all will do the bimonthly
     sampling, but it may not be every bimonthly, okay?  This
     leaves the monitoring of this verification up to management
     solely.
               MR. NICHOLS:  Well, management, the safety
     committee, the miners.  The plan will be posted.  The miners
     should understand the parameters in the plan, and all these
     folks ought to be able to check it on a daily basis.
               MR. SAWYER:  Well, that's what bothers me because
     we have dust parameters intact now, and I travel with our
     inspectors down there a good bit.  I would say eight out of
     ten times we go to a section and it's a dust sampling shift. 
     That miner will be backed out, and they will be working on
     the dust parameters on the miner, on the ventilation and all
     this.
               I know from my people it's not done.  The dust
     pumps are not handed out prior to the start of the shift.  I
     know that, so that makes me worry because we're putting our
     faith in manmade installed engineering means that will
     better the dust if they're maintained.  Still, without the
     dust sampling it bothers me how they can get out.  They can
     get out.  They can be checked at first shift and get out
     before the shift is over.
               Okay.  The outby sampling once a year.  That
     really bothers me, too, because it hadn't been long ago we
     had ventilation changes that increased the ventilation
     because everybody has got so much diesel outby.  One of our
     main gripes was, you know, the diesel emission, of course,
     concerns us, but these diesels run at such high rpms, and
     most of the exhaust is such a forceful exhaust.  It kicks up
     float dust, rock dust, sand dust, anything, because we run
     our track next to our belt engine and our separator.
               The way our mines is, if it ever gets into the
     intake, which it can because we take our intake down our two
     entries to our butt sections and our wall, then you're
     putting that much more dust in there that your verification
     plan might not cover it, okay, so that's more dust that may
     be coming in on the sections.  Okay.
               MR. NICHOLS:  How would that be different from it
     coming in in between sampling cycles now?
               MR. SAWYER:  Because right now, well, you don't
     never -- it's not predestined that they're going to run in. 
     You know, if they do their verification plan on the day
     shift and that section is not serviced on the day shift --
               MR. NICHOLS:  I'm talking about the current
     situation, not the new rule.
               MR. SAWYER:  Okay.  The current situation, it's
     still coming in, but they're taking dust samples pretty
     regular, you know, right now, but under the new rule you'd
     be taking one every bimonthly, and this could be happening
     in between the bimonthly sample, which let me explain.
               We had a miner section that got out.  It took
     everything we could do to get it back in because the dust
     from the scoop, every bit of dust that was being emitted
     outby that was making it in was having a big effect on that
     pin there.
               MR. NICHOLS:  So your company sampled more than
     bimonthly?
               MR. SAWYER:  They sampled a good bit on those
     sections that run close.  A good bit because it got to be a
     problem the way head pinners sawed it for a little while,
     and then it kind of messed up.  They brought another one in,
     and it got it back into compliance.  We had a problem with
     it for a while.  We changed in our top, our material in the
     top, and it got to be a more dry powdery type top.
               What I'm saying is that there's situations -- not
     just these, but there's situations that can make it change
     just, you know, in a matter of hours, and with this
     bimonthly sampling, you know, a lot could go on between one
     sample and the next.  Do you understand what I'm saying?
               MR. NICHOLS:  It can go on now between one sample
     and the next.
               MR. SAWYER:  Yes, but you -- you're right.  It
     can, and it does, but there's samples being taken.  There's
     more samples being taken now, and it's picked up quicker is
     what I'm saying.  The men are exposed to it in a shorter
     period of time, whereas if it happens on this new proposal
     it could span out to a 60 day period plus before it's ever
     detected.
               The company may not even know about it under this
     new proposal.  That's what I'm worried about.  It can
     happen, and without as much sampling as what the company
     does, if you take that away and then cut it down to what
     this new proposal is comparably it's not a whole lot of
     sampling to what's going on right now.
               What I'm trying to say is we have a better
     monitoring system right now than we would under the new
     proposal.  You have a full shift sample, which I agree on,
     but you have less samples.
               MR. NICHOLS:  But you've got plans that have been
     verified to work.
               MR. SAWYER:  Right.  If they're maintained by the
     company, which the samples is being maintained by the
     company now except for MSHA's bimonthly.
               So you're taking one thing, one responsibility,
     away from them and placing another responsibility in their
     hands.  You're taking out the dust sampling.  This is a
     verification plan that you all are going to have on record
     that they're going to maintain.  Like some of my brothers
     said, they'll be maintained pretty much when the inspector
     comes.  You know, you can bet on it.
               I'm not saying there's no phone calls because I'm
     around enough to know there ain't no phone calls, but by
     wind or whatever, by the smell of a federal agent or
     whatever, I guarantee you they will know something is going
     on.  I've seen it before.  Inspectors I've went down with
     have seen it before.  It just happens.
               Let me go on.  I know that's done been hit on. 
     Okay.  What weight does the preamble have in the protection
     of the miner right now in this proposal?
               MR. NICHOLS:  When we -- I probably ought to let
     the lawyer answer that so I don't get in trouble, but we're
     looking at what was really intended by a standard, even one
     that's promulgated years ago.  We go back and look at the
     preamble.
               Do you want to say more?
               MR. SAWYER:  Make it to where I can understand it.
               MR. REYNOLDS:  Any time in the future when you
     think of what the agency intended to do in a proposal or in
     a rule, you always go back to the preamble, which has over
     the years become more and more complicated.
               Because of the fact that it was done at the time
     the agency promulgated the rule, the Courts will generally
     refer to what the agency says in the preamble because it's
     very clear that's what they meant at the time they
     promulgated the rule, so it's almost like if you can imagine
     just a long series of footnotes to the actual text of the
     regulation so that when you look at the preamble and you
     don't understand a particular part of it, you can go back to
     the section by section analysis or you can go to the
     background description of the rule, and it will give you the
     history in why the agency decided to do that.  Then it goes
     into a greater explanation.
               There's been a greater move to do comments in the
     preamble because of the fact that the rule making process
     has gotten so complicated that once you put a rule in effect
     it's very, very difficult for the agency to do anything to
     change it, so if you wanted the flexibility in what you're
     going to do in the future, generally the agency will put
     more material in the preamble to explain.
               If you look at the old rules, the old standards
     that particularly MSHA promulgated in the early 1970s,
     you'll find there's hardly anything in the preamble.  In
     fact, for the most part it just looked like they copied the
     statute.
               I understand all the comments here today.  It's
     not just MSHA, but it's true of any agency, any federal reg
     agency, that the preambles have become more and more
     complicated, and there has been a move to provide the
     material in the preamble rather than in the reg, so it is
     very important to have that material there, and it is relied
     on by the Courts to show what the agency's policy would be
     and what the agency intended to do.  That's the effect of
     it.
               MR. SAWYER:  I can understand that, but me as a
     safety committee man, I can always take the reg down and
     read it and pretty well know what MSHA had on their mind.
               Going back to this preamble, it's kind of like,
     you know, look back here for a reference, yet this reference
     is back over here.  It's a preamble, true, to the reg, but
     it's outside the reg over here trying to explain what was to
     be done in here, which I guess because I'm not a lawyer I
     can't understand why you don't put it in simple terms in the
     reg where the people that it's devised for to protect and
     maintain a healthy and safe atmosphere can understand it.
               I think that's a big question here today through
     the whole thing.  You know, why has it been written in the
     proposal where me as Hacksaw, a safety committee man for 275
     working miners, would pretty well have to contact a lawyer
     to explain it to me?
               MR. NICHOLS:  Well, you said you didn't want to
     plow old ground.  That comment --
               MR. SAWYER:  Okay.  Okay.
               MR. NICHOLS:  -- has been made over and over, and
     we've duly noted it.
               MALE VOICE:  Tom, he ain't mad yet, though.
               MR. SAWYER:  Okay.  Let me go on then.
               MR. NICHOLS:  My point is we've got 71 folks --
               MR. SAWYER:  Right.
               MR. NICHOLS:  -- signed up to testify, and we're
     on number 26.
               MR. SAWYER:  Okay.  I know.  I've been sitting
     back there all day long.  Okay.
               This one has been hit on, too, and I'll just make
     a statement.  We wanted full shift sampling for the miner,
     but not an abatement sample.  We wanted it on the
     verification sample.
               Okay.  Why are we going, and this has been beat
     on, too.  I'll hit on another topic, airstream.  I wore one
     for two years on a long wall, so they're not nothing new to
     me.
               Okay.  This is just a little information to try to
     play down the airstream.  Like I said, I'm from North River,
     and we have a fairly new long wall system, okay?  We got
     into serious compliance trouble on our old wall while our
     new wall was being built.  We hit a stream bed, and the top
     chain dragged.  We had lots of forks and lots of dust.
               Okay.  We sat down.  This was already being done. 
     We sat down with the inspector to go over ventilation and
     all, and I was allowed to sit in with management.  There was
     a couple more MSHA reps there.  We kind of suggested we'd do
     on the old face what was being set up on the new face.  This
     stuff hadn't been built yet.  We did, and it got us back in
     compliance, got us out of trouble.
               On our new equipment, management finally realized
     that there is years of experience on their long wall faces
     and on their miner sections, too.  These people pretty well
     know what causes dust, you know, other than the drum cutting
     it out of the virgin face, so they allowed our people to go
     with them, to go to the shield manufacturer in Germany, to
     the shear manufacturer, you know, to the pump stations, to
     everybody that was involved and have them set it up the way
     they knew it would be best.
               We have everything is high tech.  Everything is
     controlled by PLCs.  They had several sprays put on the
     shields that had never been put on before and did the
     locations for the shield pullers, and the operators knew
     that there was dust being generated every time that shield
     moved.  The shield was redesigned where it would allow more
     of instead of a tunneling effect into the shields, more of
     pushing air to the face where we wanted anyhow to keep the
     dust out from the shield line.
               The shear people realized that all these I guess
     engineer designs, these dust parameters on the old shear,
     had at one time worked, but now they were forcing the air
     back over the handrail onto the people instead of making it
     over to the face, so they redesigned that and changed that.
               The water pressure.  We had to check with Joy to
     make sure how much psi could go through the drums without
     rupturing the cutting motor tubes inside -- and found out
     that they had been upgraded a long time ago to withstand a
     whole lot more pressure than we realized it would, so we
     increased the pressure on the drums.  We changed the spray
     orifices so we could get the mist instead of the volume so
     we could knock it down.  We used a wetting agent, and now we
     have a long wall that runs really good in compliance.
               This was pretty much engineering means suggested
     by the people that worked on it day by day by day, and it
     worked.  There's just a wealth, you know.  I don't want to
     see the airstream throwed in there.  I just really don't
     because I wore it, like I say, for two years.
               To let you know how good it went down there, when
     we were first put under the 060, and we were the first one
     in Alabama, it scared us to death, you know.  We thought
     well, we're going out of business.  You can't run under
     this.  Through efforts from the men and company, we stayed
     in the 060, and it's never been really a problem to us.  Of
     course, we don't generate the dust that some of those mines
     do, but still we handle it.
               Okay.  A couple more things.  In getting to where
     we are today and where we are hoping to go in the future,
     the traditional methods, and I'm speaking of the amount of
     sampling plus we would like to see more, has helped us
     assess the exposure to the respirable dust and has brought
     us this far.  Under this new proposal under the cut backs on
     the sampling, it has done away with what I call the
     traditional methods, and it's also completely forgotten the
     continuous monitoring, which that's been talked about today
     so I won't harp on that.
               Like I said, Brother Barnes had the airstream on. 
     If you pick it up, it feels kind of heavy.  If you sat in
     here for eight hours, it gets uncomfortable.  If you get on
     a 55 inch face on a long wall and got the seal pulled up
     tight, it makes it almost impossible to function in that get
     up that he had on.  You know, he explained to you a lot of
     the disadvantages to it.  They're there, plus more.
               Okay.  I'll tell you about a situation in our
     mines, and it's a complete change from what this proposal is
     to what happened to us two years ago.  We changed our are on
     the faces.  We got scrubbers on our miners.  We designed the
     miners and put the scrubber on the other side because of the
     way we was bringing the air in.
               When we redesigned it, it put the scrubber point
     out on the ram car operator's side.  They stayed in
     compliance on dust, but it blew on the rib, and they
     received big chunks of coal, you know, and the bigger
     particles of dust in the face.
               We talked to MSHA about it.  They suggested
     plexiglass.  It would last maybe four hours, and then from
     the pressure of all this material hitting it it would be
     scarred up so bad you couldn't see through it, so we came up
     with airstream helmets, you know, to protect their face. 
     MSHA's pretty much direct words is you can use this for
     protection, but you cannot use it for a means of ventilation
     or to eliminate a man out of a dusty situation.
               Now this proposal, and I understand what you said
     about when you use it, but it's kind of swinging in left
     field from what was told to us two years ago, which we
     didn't want to use them for ventilation, but we were told we
     would not be allowed to use them for ventilation to protect
     the miner from any kind of respirable dust.
               Okay.  That's it.  I've got a little statement I'd
     like to say or read.  As I said, there's been a lot that
     went on today.  We come to hearings like this to express our
     opinions with the hopes that a panel of your calibre will
     listen to us, the miners, who have the years of experience
     and knowledge to testify to you of what would be best for us
     for our health and safety, whether it be dust, diesel,
     ventilation, roof control.
               We now ask you to return to the tables, take into
     consideration our testimony, our livelihood as it is, and
     bring forth a proposed rule that we feel and know is put in
     place to keep us healthy for ourselves and our families.
               We've always looked to MSHA for help in our
     continuing fight for a safer and healthier workplace.  We
     now ask you again.  Please return to the tables.  Look at
     the miners' testimony and come forward with a rule that we
     can live with.
               I thank you.
               MR. NICHOLS:  Thank you.
               (Applause.)
               MR. SAWYER:  I chew tobacco because this has left
     a bitter taste in my mouth.
               MR. NICHOLS:  Tom Messer?
               MR. MESSER:  Panel, I was going to speak on that
     subject Reginald brought up a while ago about --
               MR. NICHOLS:  You have to come up if you want to
     speak --
               MR. MESSER:  Okay.
               MR. NICHOLS:  -- because it doesn't work well with
     the court reporter here.
               MR. MESSER:  My name is Tom Messer.  I work with
     Reginald up at 1760.  He brought that up a while ago about
     the discrepancies of working in a place where they're taking
     samples.  I was wanting to speak on that.  Do you want to
     hear it?
               MR. NICHOLS:  Is it another --
               MR. MESSER:  Well, this is elaborating on what he
     brought up a while ago.
               MR. NICHOLS:  I think you'd be better to take that
     up with local law if it's a situation where --
               MR. MESSER:  Well, they're not doing anything
     illegal.  It's just -- I like that term they use -- cheating
     legal.  They're not doing anything illegal.  It's just the
     way they're going about it.  There's nothing you can bring
     charges or anything like that upon.  It's just the way
     they're going about it.  Do you want to hear about it?
               MR. NICHOLS:  I think I've heard about all I need
     to.  The situation appears to me if we've got these charges
     of fraudulent sampling and then we have a whole new set, a
     discussion about legally cheating, sampling under best
     conditions, but we will want to argue that this operator
     program still has some merit.  I'm a bit baffled by all
     that.
               MR. MESSER:  Well, I believe what it boils down to
     is everybody wants you to sample more often than what was
     prescribed in the documents we've had.  What they're doing
     is they're kind of falsifying it, but they're not falsifying
     it, what the operators are doing.  I mean, these inspectors
     come underground.  They're not red hats.  They can see
     what's going on.  Again, it's not illegal what they're
     doing.
               They're taking samples legal, but the boss will
     have you in cleaner air where you're taking samples.  The
     next day when you go back to work you're right back in the
     dust.
               MR. NICHOLS:  Well, doesn't that argue for what
     we're trying to do here?  We're trying to establish good
     plans that work and do the compliance sampling ourselves.
               MR. MESSER:  Yes.  We appreciate that, but what
     we're trying to get is more sampling out of you.
               MR. NICHOLS:  We said that's the minimum.
               MR. MESSER:  Yes.
               MR. NICHOLS:  If we have problem compliance mines
     or somewhere where we suspect that people are manipulating
     the system, we would do more sampling.
               MR. MESSER:  Can you empower the inspectors to do
     that --
               MR. NICHOLS:  Yes.
               MR. MESSER:  -- if they recognize that they have
     been cheated on?
               MR. NICHOLS:  Yes.
               MR. MESSER:  Okay.  That's what I wanted to ask.
               MR. NICHOLS:  Okay.  Thank you.
               MR. MESSER:  Thank you.
               MR. NICHOLS:  Terry Hunter?  Okay.  Terry, you be
     ready to go at quarter to 4:00.
               (Whereupon, a short recess was taken.)
               MR. NICHOLS:  Go ahead, Terry.
               MR. HUNTER:  Mr. Nichols, panel, I appreciate the
     privilege of getting up here and talking in front of you
     all.  I'm chairman of the safety committee for District 20,
     Local 1926, the same mines Hacksaw is from.
               As was said a while ago --
               MALE VOICE:  Your mike is off.
               MALE VOICE:  Turn it up.  We can't hear you.
               MR. HUNTER:  How about now?  I'll stand a little
     closer.
               I'd like to ask you a question on your sampling on
     the six samples a year.  How many samples would that be each
     day?  Like you come out one day.  How many samples would be
     in a day?  You ask different people, and different
     inspectors give you different answers.
               MR. NICHOLS:  Five, plus the DA near the section.
               MR. HUNTER:  All right.  We've got a long wall and
     two sections.  You all would do one section a day, wouldn't
     you, or would you do one each --
               MR. SCHELL:  Depending on how many inspectors.
               MR. HUNTER:  Okay.
               MR. SCHELL:  Basically one section a day.
               MR. HUNTER:  All right.  The average would be 80
     samples a year at that?
               MR. SCHELL:  You've got how many sections?  Excuse
     me, Terry.
               MR. HUNTER:  Two sections and a long wall.
               MR. SCHELL:  Times six would be 30.  It would be
     90.  It would be 90 plus.  It would be at least 30 on each
     of the sections, so you have three sections.  That's 90.
               MR. HUNTER:  Two sections and a long wall.
               MR. SCHELL:  Right, so it would be 30 on each of
     the sections, so that's 60, another 30 on the long wall. 
     That's 90, plus any of the DAs that were near the section
     like intake air or if you had a DA on a dumping point or
     something.
               MR. HUNTER:  Okay.
               MR. SCHELL:  So it will be 90 plus.
               MR. HUNTER:  Ninety plus.  All right.
               Last year, in a year's time we had 486 samples. 
     That's your company and MSHA's inspection samples.  As
     Hacksaw said a while ago, like equipment going up the belt
     line.  With the company sampling more often and you all
     sampling more often, they keep the roadway wetter.  They
     keep the track wetter to keep the dust down.  If there ain't
     as much sampling going on, they'll slide a little bit on
     their wetting and get more dustier in the outby areas. 
     That's one of the concerns that we have.
               We're glad you all want to take over the full
     sampling.  I went and got certified on noise and dust
     sampling where I could watch the company make sure they're
     doing their sampling right.  I guess one of the reasons that
     we would like to see more sampling than what you all propose
     because your proposal is that many unless your funds get
     cut, or you said that would be the least amount.
               If you had more funding with more amounts, we
     would be more likeable or more pleased with that result on
     account of more sampling because the longer your samples are
     apart it gives the companies a chance to slip by their
     wetting because we're on that quartz standard.  On our long
     wall we're under a 1.6 standard on dust.  On our L-4
     section, we honor a .4 standard and our L-90 on the 1.0
     standard.
               MR. SCHELL:  Terry, can I ask just a quick
     question?
               MR. HUNTER:  Yes, sir.
               MR. SCHELL:  Is the requirement for wetting the
     roadways was in the plan, wouldn't your operator do it every
     day?
               MR. HUNTER:  Well, it ain't really in the plan. 
     That's something we come up with them.  If we keep our
     roadways down, it would keep our dust from coming up in the
     sections because our air comes up, and we've been trying to
     get them to keep it wetter.  We've talked to our ram car
     operators and our scoop operator about wetting their
     roadways before they run in it to keep the dust down that
     they was traveling in.
               MR. SCHELL:  But if they need to do that to be in
     compliance, we pick that up in plan verification.  Hopefully
     we'd have that requirement in the plan so they'd be wetting
     that roadway every day whether or not they're sampling. 
     That would be our goal.
               MR. HUNTER:  We have a hard enough time getting
     them to do it now with as many samples as we've got.  That's
     some concern we have on the compliances and everything.
               On your full shift like on your outby Part 90
     miners, you brought your standards up to 1.3 or 1.23 for the
     legal where you could find it and not throw it out.  On Part
     90, it doesn't classify the black lung.  It would have been
     better in his benefit if it had been brought down to 1.7. 
     Then if it got up to two it would have been a legal to fine
     him, and they wouldn't have said nothing about it.
               It looked like that there's more benefit to the
     miners and the section if you had went down .3 on each one
     he sampled.  That way when they got up to two on the face,
     they would have been citeable, or if it had been on the
     outby and they got above a warning it would have been
     citeable.  Our concern is our mine people for dust if they
     get in the outby face here.
               I just made this map up to show you -- I'll let
     you have it -- the sampling of the company.  The company's
     samples are in blue, and the federal is in red, the samples
     they took from last year.  That was from June 1 to May,
     2000.  I can leave this with you.  You all can have it.
               Hacksaw was talking about our long wall where we
     put the sprays on top of the shield and on our jack springs
     when we let down to move forward.  We're afraid on some of
     these companies that wouldn't go for this where they could
     put the streamline helmets in they'd go to streamline
     helmets instead of trying to come up with something to cut
     down on the dust.
               The way it is now, if you don't have nobody down
     there below two percent if they got the right fuse on the
     airstream they say well, we can't confine it.  Let's get it. 
     They could put somebody down there for a little while to use
     that.
               That's one of the concerns we got that the
     companies take advantage because I think many of these
     companies are going to take advantage of anything they can
     do, a loophole, because they've got better lawyers than we
     have, and they understand this stuff better.
               As Hacksaw said, you all wound up talking about
     your own self, your own shift examiners of the dust
     parameters.  That's one thing that we rely mostly on the
     foremen on the sections and the men when you all ain't
     there.  By working, you know, they're trying to get out the
     coal.  Sometimes they won't make a check on that.
               If you go down to federal, like Hacksaw said, any
     time you go to federal eight or nine times -- eight times
     out of ten they've got the equipment back working on the
     spray or something, so they know if they can get at least 60
     percent of the coal production that sample will be reliable
     on the production.  That will cut down because nowhere in
     your sample do you ever see 100 percent of production.
               Every sample you see, the production is down the
     least they can get close to that amount to make them legal. 
     Every once in a while they misjudge and a sample gets
     throwed out because it didn't make it.  If they all have a
     belt go down or take an adjustment up on the take up just to
     lower the production sample on that shift.
               That's all I have to say.
               MR. NICHOLS:  Thanks.
               (Applause.)
               MR. NICHOLS:  Okay.  Gary Tramell?  I passed over
     him earlier.  There he is.
               MR. TRAMELL:  Yes.  I'm ready.
               MR. NICHOLS:  Are you Hacksaw?
               MR. TRAMELL:  No.  Don't even call me that.
               (Laughter.)
               MR. TRAMELL:  Those are nasty words.
               Okay.  I'm Gary, G-A-R-Y, Tramell, T-R-A-M-E-L-L. 
     I've been hearing you all talk about the airstream helmets,
     and I'm not going to go there.  There's only one thing that
     I want to tell you is that for a fact that for dust control
     engineering controls are the best way that you can go, not
     airstream helmets.
               The reason I know this is because at our mines,
     Jim Walter No. 5 in Alabama, we have had MSHA give us a
     plan.  Our approved plan that we have on our long wall face
     is downwind exposure times.  You all might be familiar with
     that.
               The first month that we took the sample, in the
     very first month our miners was only allowed downwind one
     hour.  That gave our management an incentive to do better,
     and due to that incentive they started adding water, using
     engineering controls, more sprays, washing tops of shields. 
     They went to a big really reduction of dust, and they tried
     real hard.  At the end of six months, our miners was allowed
     to go do for five to six hours on that same face, and that
     just goes to show you that engineering controls is the best
     way to reduce the dust.  I can be done.
               I heard Hacksaw mention it.  They got about the
     same thing with their mines.  It's downwind exposure timing. 
     He just didn't go there with it, but engineering controls is
     what I would like to see you all really think about and try
     to -- you see my friend with the helmet on.  That weighs a
     lot in those faces.  If you don't have nothing on by the
     time you step over those relay bars and the toes of those
     shields for about 180 of them, by the time you walk that 800
     foot your legs are just completely gone with nothing on, so
     if you was to wear all that weight you'd tell by what your
     legs and your hips are going to feel like by the time you do
     that six or eight times a day.
               There was some questions.  You come up with in
     your introduction, Mr. Schell, you said something about the
     -- let's see.  That MSHA was going to give usa good plan
     that worked every shift.  I believe I heard you say that.
               MR. SCHELL:  Yes, sir.
               MR. TRAMELL:  Right away I was going well, he's
     kind of talking my language about every shift.  My language
     is continuous monitoring, and I would like to see MSHA get
     into continuous monitoring and getting real serious about
     continuous monitoring.
               That's something that engineering controls.  We
     can make it work with water.  We can make it work with
     continuous monitors.  The biggest question that I've got is
     out of the last ten or 12 years that we've been developing
     the technology, why hasn't MSHA went further with that
     technology to get it to a shape to where we could use that
     in a coal mine?
               Therefore, you cut down on your MSHA inspectors,
     from what I'm understanding reading all those documents that
     Tom got me to read.  MSHA had a problem getting enough
     people to do sampling, and if we could get continuous
     monitoring in the mines then that would help MSHA come up
     with a better control.  I'd like to see that.
               Could you comment on why MSHA has not pursued or
     even in this proposed dust plan I see that in those hundreds
     of pages that I helped Tom Wilson read I seen where you all
     in your committees you touched on those subjects of
     continuous dust monitoring quite a bit, but yet in these
     proposed regs it's not there?  Could you expand a little bit
     on why you don't go there?
               MR. NICHOLS:  Well, we have pursued it, but we
     don't think that we're there with useable technology.
               MR. HEWETT:  If I could expand upon that?
               MR. NICHOLS:  Paul?  I'll let Paul with NIOSH talk
     a little bit about that.
               MR. HEWETT:  Can you hear me?
               MR. TRAMELL:  Yes.
               MR. HEWETT:  Okay.  My name is Paul Hewett.  I
     work with NIOSH in Morgantown, West Virginia.  In the
     development of the machine mounted continuous respirable
     dust monitor, it was really started in the 1980s and on into
     the 1990s and was taken over by NIOSH whenever the Bureau of
     Mines was abolished or when the Bureau of Mines joined
     NIOSH.
               We can take it with that program and have found
     that in the laboratory the instrumentation that was decided
     upon and was targeted for use in the 1980s, which involved
     direct on-the-filter sampling, something that would get --
     the hope was to get something that would give you a closer
     compliance sample.  It was useable or worked fairly well in
     the laboratory, but in the field test has just not proven to
     be as reliable.
               Reliability is a key issue here.  Instruments
     would fail within days or weeks after installation, and you
     must appreciate mining is a fairly harsh environment. 
     Mounting a machine mounted unit on a continuous miner or on
     the shear or somewhere along the pan line or whatever -- you
     know, if it was on a shield that's a different issue.  If
     it's on a shear or a continuous miner, it's a very, very
     rugged environment, and they just haven't survived.
               Then there's the other issue of extrapolating the
     measurement from a continuous monitor mounted somewhere in
     by the operator and relating that measurement to the
     operator.  You're not going to have the same degree of
     accuracy you would have with a personal respirable dust
     monitor, you know, your pump and cyclone.  For that reason,
     these measurements are of doubtful use in terms of
     compliance, but it might give you an indication of whether
     or not controls are, you know, with too much dust and not
     enough ventilation or not enough water sprays.
               We made the decision to suspend research on the
     machine mounted continuous respirable dust monitor that was
     envisioned that started out in the 1980s and concentrate
     efforts on another more reliable or a more promising
     technology.  We have some very bright engineers at the
     Pittsburgh research lab that formerly worked for the Bureau
     of Mines, now NIOSH, that have come up with some personal
     respirable dust monitor technology that they're working on
     and feel would give operators and minors indications of what
     the exposure currently is and the shift measurement.  You
     know, at the end of the day you have a measurement rather
     than waiting ten days, but these are still in development.
               The technology is well, we can put a man on the
     moon, and we've only done that a couple times, incidentally. 
     It's been a long time since we've done it.  This is almost
     as difficult.  A methane monitor is simple by comparison. 
     The gas passes into a stationary sensor.  Here we've got
     moving parts, computerized sensors, and it's just not up to
     snuff whenever it comes to the mining environment.
               So while the dust advisory committee can say look,
     it would be great to continue these readouts, getting there
     has proven very, very difficult, so we've decided to
     concentrate efforts in more promising directions and are
     hoping to have something else fairly soon on that, but it's
     not available let.
               MR. TRAMELL:  Thank you.  Being that the situation
     is that we're kind of at a stalemate at technology with the
     continuous monitoring, in this plan the dust control plan,
     you all don't hardly mention it.  When you do get that
     technology, will you bring it forth, or will you put
     something in this plan that might govern when it comes into
     some that is useable?
               MR. NICHOLS:  I see that as being something for a
     future rule making.
               MR. TRAMELL:  Yes.  Okay.  I've heard everybody. 
     I'm not going to take a lot of you all's time, but I just
     want to ask you one more question.
               MR. NICHOLS:  Okay.
               MR. TRAMELL:  Being that all of us coal miners has
     come down here to honestly tell you all that the plan that
     you have now, the dust control plan, is something that we
     really have some problems with and after all the testimony,
     and I know we hadn't gotten through yesterday, but I want to
     ask this question now to see if we've got to keep you all
     here another couple of days.
               Have we said anything to you all as a panel that
     has made you think about changing some of these plans from
     the original ones?  Have we said, the people that you heard
     so far, anything to make you change your mind?
               Okay.  I'll have to go on.
               MR. REYNOLDS:  I'll be glad to answer this.  Part
     of the reason we're here is to get your comments, and part
     of the proposed rule process is to do just what we're doing
     here.
               We will always consider your comments when we're
     revising upon, you know, -- I mean, when we move toward a
     final rule or maybe even a re-proposal, but I think we have
     to take everybody's comments into consideration when we're
     doing that.  Whatever we do, we'll fully explain it in our
     favorite topic, the preamble, of the next document.
               MR. TRAMELL:  I've heard that.
               MR. REYNOLDS:  One thing I did want to ask you
     while I've got the mike is on page 42138 and 42139 of the
     preamble there is a discussion of what we would expect an
     operator to do if they were willing to work with us on
     continuous mining monitoring technology and what things we
     would expect them to have in their plan, so there is some
     material in there.  You just didn't find it in the preamble.
               There is a discussion of other things that Paul
     talked about in the preamble as well.  It's on 42138 of that
     big document.
               MR. TRAMELL:  Okay.  Thank you.
               MR. NICHOLS:  That was not a no.  We need to kind
     of do a reality check here.  We have 71 people signed up to
     present comments.  We just finished with number 25.  I was
     wrong earlier.  I thought we were a little further ahead
     with number 25.
               We don't want to limit the comments of anyone.  I
     do appreciate the fact that people are starting to recognize
     we've spent a lot of time on certain issues like airstream
     helmets and the requirements are in the preamble and not in
     the rule, outby sampling and some other things, and people
     are starting to not be repetitious on that.  I appreciate
     that.
               I think to get through the list of 71 people that
     are signed up currently, and I don't know if we'll get any
     more than that, we need to work later tonight in an effort
     to try to finish up tomorrow, so I'd like to run until at
     least 7:00 and see where we are then.
               Now, at 4:45 we'll need to take a break, and the
     motel needs to rearrange this room a little bit.  We're
     going to lose part of the back so we'll have to move up
     front, but I don't see any way of getting through this
     without working late at least tonight, and then it's
     probably going to take a good chunk of tomorrow to get
     through it, but to the extent you can if we spend a lot of
     time on something how about hitting it a lick and then move
     on?  I'd appreciate that.
               MR. T. KLAUSING:  Are we going to get --
               MR. NICHOLS:  Say that again.  You can't make a
     comment without coming back to the table.  You've already
     been up here once.  You're No. 72.
               MR. T. KLAUSING:  It was a wisecrack.
               MR. NICHOLS:  That was, too.
               Okay.  Edmond Cook?
               MR. COOK:  Edmond Cook.  That's E-D-M-O-N-D Cook,
     and I work for Peabody Coal Company in West Virginia.  I've
     been a miner for 31 years, and I just want to take a few
     minutes.  I want to make sure.
               There's a lot I don't understand about it, but I
     was glad to see, you know, talking about the simple sampling
     because I know there's a lot of discrepancy that goes on
     when you just take one or two people off a section and
     sample them.  There's people that will do anything with
     these dust samples in order so they don't have to wear them
     again.
               You talk about the long wall.  Our mine is a long
     wall mine, and it is in compliance with the dust standards. 
     They had the helmets.  The men didn't like them.  They
     buckled down, you know, and said hey, there's other ways
     that we can do it without having to wear the helmets.
               A lot of things worry me about this sampling
     stuff.  In the industry in the last few years there's
     different work schedules.  I'm just wondering if MSHA is
     going to have a weekend holiday crew because we've got a lot
     of people that work at our operation that never works during
     the regular work week.  They only work Saturdays and
     Sundays, and so I just wonder if that's going to leave those
     people out there that will never be sampled or never see an
     inspector out there.
               In our operation, just recently in the last week
     or so they drove a tunnel from our rock prep plant through
     the mountain to the Harris operation, which is in the
     Maitwan seam, and they had to take approximately four foot
     of top.  We see in the paper that the mine foreman pleaded
     guilty to dust fraud.  For 18 months, those guys was in dust
     from where they was cutting top, that rock and stuff, to
     find out that he'd been hanging the samples, these
     cassettes, in the intake.
               I just kind of wonder where was everybody at for
     18 months?  When we took that over under our jurisdiction,
     that about as filthy and dirty as any place you'd ever seen. 
     Like I say, last week he pleaded guilty.
               Then you go back, and you're talking about this
     dust sampling stuff.  In the past six to eight months, the
     increase when you come home from work.  You stop in the
     convenience stores and stuff.  If you didn't know better,
     you'd think you was in the '50s.  The men coming out of
     these mines are as black as they can be.
               There's something wrong somewhere because, you
     know, when the dust sampling first started you seen it
     started getting better.  The men wasn't near as black and
     dirty as he was in the '50s, but now you see people coming
     out of these mines that, like I said, if you didn't know
     better you was in the '40s and the '50s.  Something is wrong
     somewhere and stuff.
               Like I say, any step.  We need you all's help, but
     I think the company needs to be held responsible, too,
     because you people ain't going to be there all the time. 
     It's a proven fact.  If these companies can shed the
     responsibility just to one agency, this thing ain't going to
     work.
               I know what black lung does.  I had the misfortune
     of having sat a couple years ago and watch my dad take his
     last breaths due to black lung.  That is a tough thing to
     watch your parents pass away from black lung.  I would just
     ask that you take this thing and go back and listen to what
     the advisory committee has recommended.
               Thank you.
               MR. NICHOLS:  Thank you.
               (Applause.)
               MR. NICHOLS:  Russell Thompson?  Russell Thompson?
               Chuck Wilson?
               MR. WILSON:  I'd like to thank you for the
     opportunity.  My name is Chuck Wilson, C-H-U-C-K,
     W-I-L-S-O-N.  I'm the local president at Council's Red Lake
     Mine.  It's Local Union 1545 in Sesser, Illinois, District
     12.  I'm going to be short and sweet.
               My question is in our recommendations, the
     advisory committee recommendations I should say, called for
     full rights of paid participation in every phase of the
     respirable dust sampling, verification and training program. 
     That included all compliance sampling, MSHA and operator
     verification sampling, handling of continuous dust
     monitoring devices, which we've talked about that, and
     extraction of data and training of miners.  You know, that's
     recommended in No. 6, 16(a), 19(a), (b) and (c).
               Okay.  My questions are I think we've already
     determined today that notified visits are not determined to
     be an inspection.  Am I correct?
               MR. NICHOLS:  No.
               MR. WILSON:  Okay.  Preannounced?  Are
     preannounced?
               MR. NICHOLS:  I think what we said is any sampling
     as part of this rule, miners would be entitled to walk
     around pay.  Is that right?
               MR. WILSON:  Okay.  Any sampling under that rule? 
     Okay.
               How about the miners' right to be a walk around
     like during the company's verification process?  Now, is it
     insuring that we have our walk around rights then also?
               MR. NICHOLS:  Yes.  MSHA would be doing the
     verification.  We'd be doing the sampling.
               MR. WILSON:  See, it was my understanding that
     when a company -- if they're devising a plan, they also
     would sample to see if their plan is going to work.  Am I
     correct?
               MR. NICHOLS:  They may, but this rule doesn't
     require it.
               MR. WILSON:  It doesn't require it?
               MR. NICHOLS:  No.
               MR. WILSON:  Okay.  I was assuming that they
     would.  Okay.
               Are our rights covered under that to be with the
     company basically when they're doing their verification
     sampling?
               MR. NICHOLS:  No, I don't think they would be.
               MR. WILSON:  Okay.  That was a concern there, you
     know, as far as what the advisory committee, you know, had
     requested.
               Also, I have another question.  I think Edmond
     kind of hit on it.  If we're getting ready to go on the
     alternate schedule, Appendix C, in our contract and we're
     also, you know, going to the ten hour shifts and also
     they're going to have 12 hour production shifts on Friday
     and Saturday.  How is that going to affect the dust sampling
     like when a person is in the dust for 12 hours?  It's
     definitely not going to be your eight times 60.
               MR. SCHELL:  I think there were three kinds of
     sampling that we're talking about.
               MR. WILSON:  Yes, sir.
               MR. SCHELL:  The verification sampling that MSHA
     is going to do, during that verification sampling that will
     be full shift sampling.
               MR. WILSON:  Even if it's 12 hours?
               MR. SCHELL:  Yes, sir.
               MR. WILSON:  Okay.
               MR. SCHELL:  The second type of sampling is
     compliance sampling, the bimonthly sampling.  The proposal
     is that that sampling would be 480 minutes.  We've asked for
     comments if it should be longer.
               MR. WILSON:  I think it should be myself.  Like
     myself, Tom and I, we'll be working ten hour shifts.
               MR. SCHELL:  Okay.  That's the kind of comments
     we're soliciting.
               MR. WILSON:  We'll be on tens, but they will have
     two 12 hour production shifts on Saturday and Sunday, one
     each day, as in our tentative plan for what we're going to
     go to when we go to the alternate schedule, so they will be
     mining 12 hours.
               I'd like to request full shift compliance sampling
     because realistically that's the amount of dust that we'll
     be in is ten hours or more because we'll have changing out
     at the face likely, so we're looking at ten hours and 45
     minutes, and then, of course, there's no changing out at the
     face on the 12 hours.  They can't make them work past that,
     but still they will basically be in the dust close to 12
     hours.
               MR. SCHELL:  Just to finish that, --
               MR. WILSON:  Yes, sir.
               MR. SCHELL:  -- abatement sampling if they were
     out of compliance.  That also would be full shift.
               MR. WILSON:  Okay.  We're just requesting, you
     know, the full shift regardless of the amount of time, tens
     or 12s.  I would also urge you if possible we're requesting
     the right to maintain our walk around rights when the
     company does their verifying also.
               I'm not going to hit on the airstream helmets
     because I've tried to wear them before, too.  They're bad.
               Thank you very much.  I appreciate it.
               MR. NICHOLS:  Thank you.
               (Applause.
               MR. NICHOLS:  Is Russell Thompson back yet?  Okay.
     He's history.
               Max?  Max Kennedy?
               MR. KENNEDY:  Mr. Chairman, members of the panel,
     my name is Max Kennedy, M-A-X, K-E-N-N-E-D-Y.
               First of all, I live in the State of Virginia.  I
     hold a first class underground mine foreman certification,
     among other Virginia coal related certifications, and I want
     to mention this one panel because later I'll refer to it. 
     I've served on the MSHA panel under the direction of Jack
     Tysdale to provide input on clear and gob ventilation
     systems training modules now used at the mine academy.
               I've been involved in several coal mine
     explosions, mine fires and too many fatal investigations. 
     For the past ten years, I've been appointed by three
     successive governors to serve on Virginia's Coal Mine Safety
     Board.  That board is the regulatory work group for the
     Department of Mines, Minerals and Energy for the development
     or revision of any of the state's regulations.
               That poses -- it's similar, but different, because
     it's state.  It's not federal, but in rule making the rules
     that we develop are similar with public hearings.  We
     consider all comments and address those comments in a rule
     making process.
               I won't hit on that again about the advisory
     committee.  I don't understand why.  That's between you and
     the outcome.
               The reason I mentioned the panel that developed
     that training model for bleeder systems and gobber is it
     leads me to a question, and I don't think Ron quite answered
     that question as far as one an operator exhausts all
     engineering administrative controls for bringing a long wall
     in compliance below the two milligram standard, he can
     petition the Administrator of Coal for the interim use of
     PAPRs.
               Now, in your commentary it says the effectiveness
     is in dispute as far as testing that's been done at lower
     velocities versus velocities that are above 500 feet per
     minute.  Is that clear?  Do I understand that they are more
     effective in lower velocities, and once you get to 500 feet
     per minute then that was the decision that you all signed,
     the protection factor of two?  Okay.
               What about the extreme velocities that was
     testified here today of 2,000 feet per minute?  Is that
     going to be still a fair protection factor for that unit?
               MR. NICHOLS:  I don't know.
               MR. KENNEDY:  Well, let me rephrase that.  Let me
     rephrase that.  Are you going to accept or approve those
     devices at those levels of velocities?  It isn't clear in
     the preamble commentary whether you will or whether you
     won't.  It only mentions the 500 feet, and then it's silent
     as to whether or not you will or you won't above that.
               MR. SCHELL:  We would.  They've been determined to
     be effective above 500 feet for the protection factor of
     two.
               Max, in reaching that protection factor of two we
     factored in raising the shield of velocity, so the way this
     proposal is written if you had exhausted all engineering
     controls for those workers working downwind of the 044, they
     could go to either administrative controls or PAPRs.  There
     was nothing in this proposal that limited, put an upper
     limit, on PAPRs because of the velocity.
               MR. KENNEDY:  It's still unclear in the
     commentary.  It insinuates that the approval was based --
     you know, because of the high velocities, it just says
     they're effective up to 500 feet per minute.  It doesn't --
     to me, you know, that's what I'm reading.  I don't know if
     I'm confused.
               MR. NICHOLS:  Did you want to comment on that?
               MR. KENNEDY:  What my question is is will you
     approve them no matter what the velocity is?
               MR. NICHOLS:  We don't know.
               MR. KENNEDY:  Okay.
               MR. NICHOLS:  Let's talk about it.
               MS. ROPER:  If you look on page 42137, we talk
     about some of the summary statistics for some of the studies
     that we used, and we do talk about 1,200 feet per minute,
     1,400 feet per minute, but we can look at the upper values
     because there were higher velocities that were observed in
     the studies with respect to estimating the protection
     factor.  We'll address that issue.
               MR. KENNEDY:  So that means that you will if
     everything is exhausted and they can't get below the two
     milligrams?  Then you will consider any velocity?
               MR. NICHOLS:  I think that's right
               MR. KENNEDY:  Okay.  I think you have solicited
     for comments on that protection factor, but, first of all,
     I'd like to know how you arrived at two when there were
     testing done.  You know, you still -- it mentions the
     highest was I think she said 1,400 feet per minute.
               MS. ROPER:  That wasn't necessarily the highest. 
     That's how we chose to characterize it.
               MR. NICHOLS:  Do you know how we arrived at that?
               MR. SCHELL:  No.
               MR. NICHOLS:  Is your question how we arrived at
     the two?
               MR. KENNEDY:  Yes.  You know, I want to comment. 
     It says you're soliciting comments on that number for the
     protection factor.
               MR. NICHOLS:  Yes.
               MR. KENNEDY:  I'm saying it's too high at two
     because of the higher velocities.
               MR. NICHOLS:  Does anybody know how we arrived at
     the two?
               MR. NIEWIADOMSKI:  The basis for us selecting two
     is explained in here, and it's basically a factor of safety
     built in.  Based on the best information we have, we decided
     we're going to limit it to a protection factor of two.  It
     was based on the highest velocity, so all the data that
     we've had, all the studies that we've done.
               Now, you're going to hear others indicate that
     there should be a much higher protection factor, but we
     decided we'll go with a factor of safety with the lowest,
     which is two, and that's based on all the data that we have,
     okay?
               MR. KENNEDY:  I'm still --
               MR. NIEWIADOMSKI:  So it's ten times lower than
     what NIOSH is recommending.
               MR. KENNEDY:  Well, the high level -- the
     testimony here today was that a long wall in my area from
     Danny Sparks was 2,000 feet per minute down that long wall. 
     The commentary doesn't mention velocities that high for a
     protection factor of two, and I'm asking that question. 
     Does two fit all, all the long walls out there?
               My assertion is when you ask for a comment on that
     protection factor, I'm saying that you can't fairly, and
     you're saying of this best evidence that you have, assign
     any protection factor until you have the data and the
     figures for the higher velocities before you can do that.
               MR. NIEWIADOMSKI:  Max, that's a fair comment. 
     We'll look at that.  I can tell you what we did was
     summarize that data.  We'll go back and take a look at that
     data in light of your comment.
               MR. KENNEDY:  There is one thing that I'm glad,
     and really I'm really not glad, but if you decide to proceed
     with this rule as written and you do have this provision for
     PAPRs and you assign a velocity factor or protection factor
     and you limit that and only long walls with lower velocities
     will be given the opportunity to apply for this, then you
     may create an incentive for long walls that now have complex
     bleeder systems that maintain pressures on the face line to
     control the methane and the gob to go with lower velocities
     on that face to gain this approval, which will create
     another monster in that gob as far as ventilation goes.
               So don't, you know, create a hazard for methane
     build up by creating an opportunity for an operator who may
     manipulate the system in order to gain this approval without
     utilizing all administrative and environmental controls. 
     That's a point I need you to understand.
               I'm not going to dwell on what's been testified
     to, and I don't want to take up a lot of time of the miners
     here that do have concerns.  They sincerely ran across those
     concerns as they did before the advisory committee, so this
     is the second testimony that they've given on the same
     issue.
               It's still unclear to me and also to a lot of the
     miners in the room of some of the answers given of the
     questions that they asked validly, and that was one of the
     questions the answer that was given was about the
     verification production as far as the percentage of the
     production for the verification sample was higher than the
     recommendation made by the advisory committee.
               That is what I perceived the answer to be for that
     question that was asked.  Can you clear that up for us so
     that we all understand that?
               MR. SCHELL:  I'm going to try, Max.
               MR. KENNEDY:  Okay.
               MR. SCHELL:  I think part of that is probably my
     fault for confusing production level during compliance
     sampling with the production level during verification
     sampling.  What we are proposing for compliance sampling is
     60 percent of the average.  Right now operators use 50.  We
     use 60.
               What I was trying to say is that when it comes to
     verification sampling, we are looking at a production level
     that is significantly above the average.  We are not looking
     at 60 percent of the average or 90 percent of the average. 
     We are looking at a number that is above the average.
               Now, to try to quantify that, if you were to have
     a continuum of zero percent to 100 percent and let's say 50
     percent was the average --
               MR. KENNEDY:  Okay.
               MR. SCHELL:  Okay.  On verification sampling, we
     would be looking at the 70 percent level, not the 100
     percent of the 50 percent level.
               MR. KENNEDY:  Okay.  I thank you for making that
     clear, and I hope that that clears it up for the rest of the
     miners here.
               The other question and the other answer.  This
     horse has been beat to death today, and that is the 4.0
     milligrams.  You've stated that this is not a 4.0 milligram
     standard, but in essence it's a 3.9.
               MR. NICHOLS:  What I said was it's not a 4.0
     standard for the entire long wall face.
               MR. KENNEDY:  Right.  Right.
               MR. NICHOLS:  That's the impression you get of
     hearing the comment.  What I said was that you're looking at
     the protection factor for the miners.  For these miners that
     are working downwind of the shear operator, it will protect
     up to four milligrams.  That's a far sight from saying we're
     going to just carte blanche raise the dust standard four
     milligrams.
               Let's say somebody is overexposed at 2.7, and
     there's absolutely no other way to get it down to two. 
     Well, that's not a four point standard.  That's not a -- the
     airstream helmet would protect in that case, but it wouldn't
     be four milligrams.
               Do you understand what I'm saying?  The protective
     factor of the airstream helmet --
               MR. KENNEDY:  And I think that's still in question
     as far as that number, as far as the velocity.
               MR. NICHOLS:  Well, wait a minute.  You're talking
     about something different there.  I'm talking about --
               MR. KENNEDY:  If you do assign that to that --
               MR. NICHOLS:  Yes?
               MR. KENNEDY:  If you assign to the protection
     factor --
               MR. NICHOLS:  Right.
               MR. KENNEDY:  -- then in essence if they say that
     I did all that I can do and now I'm going to submit this to
     the Administrator of Coal, and if that number is two and you
     decide it's two for all velocities then in essence in the
     interim while the operator continues to demonstrate that
     he's working on his administrative controls, he's working on
     his engineering controls and then he utilizes the PAPRs,
     then he does have a 3.9 milligram standard, and if he
     doesn't exceed to the 4.0 he won't be cited.
               If he is 3.9 when sampled, when compliance
     sampling, he won't be cited, as I understand this.  This is
     a 3.9, and he is in compliance.
               MR. NICHOLS:  Well, that's correct, but you can't
     take that and make a carte blanche that MSHA is raising the
     dust standard to four milligrams on the long wall face.
               MR. KENNEDY:  For those long walls that have
     applied and gotten approval for those persons working
     downwind of the shear --
               MR. NICHOLS:  That's correct.
               MR. KENNEDY:  -- they are and will, if this is a
     final rule, with that number two protection factor assigned
     to that airstream helmet then that individual, his working
     environment is and can go up to 3.9 --
               MR. NICHOLS:  That's correct.
               MR. KENNEDY:  -- and be in compliance.
               MR. NICHOLS:  That's correct, but a lot of the
     testimony was just open ended that MSHA is raising the dust
     level to four milligrams on the long wall face, and that's
     not correct.
               MR. KENNEDY:  I think that everybody understands
     what was said just then, and they understand that individual
     on that long wall, his exposure will be increased, but he'll
     have a protection factor if it's two.
               MR. NICHOLS:  Only after all the other controls
     have been exhausted.
               MR. KENNEDY:  Okay.
               MR. NICHOLS:  All right.
               MR. KENNEDY:  Now, will all available data be
     gotten to these operators to utilize these engineering and
     administrative controls, all data that is present and in the
     future before such approval is gained such as water infusion
     if they don't water infusion at this time on the panel, such
     as wet heads on the shear drums?
               Will those be incorporated or required prior to
     the extremes as the Mine Act says that those are time tested
     and proven?  Will that occur?
               MR. NICHOLS:  Well, yes.  We've put together a
     list of controls.  We've circulated it for --
               MR. KENNEDY:  It says all feasible.  You know,
     this was printed.  It's time tested proven, scientific data,
     okay?  It should be incorporated prior to any approval that
     all methods should be exhausted prior to approval of
     respiratory protection, just as the Mine Act says.  Am I
     right, or am I wrong?
               MR. NICHOLS:  Well, that's what the rule says that
     all feasible engineering controls shall be exhausted.
               MR. KENNEDY:  There's one other thing I want to
     clear up, and then I'll hush and let the miners speak, and
     that is verification sampling and 103(f) rights.
               You're saying that miners will be afforded 103(f)
     rights when MSHA comes and does verification sampling.  What
     guarantee that they will have those rights and they won't be
     challenged and they won't be stopped from traveling with
     MSHA?
               MR. NICHOLS:  Well, it would be our intention to
     put it in the rule and also, like anything else, I mean,
     we'd issue citations.
               Anybody got anything different?
               MR. KENNEDY:  The last thing I'll say is this is
     the only part that an ALJ looks at when an operator contests
     a citation.  This they throw in the trash, so whatever your
     comments are, they only look at the rule, so when you go
     back whatever the rule is going to be, that's the only thing
     a miner can hang his hat on.
               Thank you.
               MR. NICHOLS:  Thank you.
               (Applause.)
               MR. NICHOLS:  Do we need to break, Pam, and let
     them rearrange the room?
               MS. KING:  Yes.
               MR. NICHOLS:  Okay.  Let's try to be back at 5:00.
               (Whereupon, a short recess was taken.)
               MR. NICHOLS:  Okay.  Let's get started back.  Is
     Jim Brackner here?
               Larry wants to make a comment on one of my
     comments.
               MR. REYNOLDS:  I just wanted to me, and Max
     Kennedy is not back yet, but at the end of his discussion we
     had he was talking about the guarantee that people would
     have walk around rights for all types of verification
     sampling, verification sampling, abatement sampling and
     compliance sampling.
               In the preamble of the rule, it was our intent in
     the way that we structured the reg that it was MSHA's
     interpretation that walk around rights would apply for all
     these types of sampling.  It's on page 42134 of the
     preamble.  There's a footnote where it says that based on
     our guidance and our interpretation of the statute that's
     what we had intended in this rule making.
               I just wanted to make clear that, and Marvin
     reiterated that, it is something that we will consider in
     developing the final rule that might be more appropriate to
     put that into the text of the regulation, but we were going
     to hear the comments from everybody that would be interested
     in that, you know, at the rest of the hearings and also the
     comment period.  I just wanted to preface those remarks with
     that.
               MR. BRACKNER:  Okay.  Mr. Chairman, members of the
     panel, I am Jim Brackner.  That's J-I-M, B-R-A-C-K-N-E-R.  I
     work for Jim Walter No. 4 in Brookwood, Alabama in various
     classifications, 20 years.  I'm also a section committee man
     for Local 2245.
               I'd like to voice my concerns that even though the
     preamble states the miners' reps will have walk around
     rights during the sampling, thereby increasing miners'
     confidence in the dust sampling program, the proposed rule
     contains nothing that provides the miners' reps with
     increased rights during the sampling program.  I feel that
     the miners' reps should be afforded the opportunity to
     accompany MSHA any time they're on mine property and suffer
     no loss of pay.  It is part of the miners' reps'
     responsibilities to aid in inspections.
               I've seen times during sampling when someone would
     bump an equipment operator out for lunch, and instead of
     leaving the dump pump with the person at the controls the
     operator would take the pump to the dinner hole.  I've seen
     times when sampling long walls when someone would be working
     near the tailgate downwind of the shear without the 060
     pump.  If it had not been for the miners' rep calling the
     inspector's attention to this, accurate samples would not
     have been collected during the shifts.
               As a miners' rep, I've spent enough time on MMUs
     when they're not being sampled to know and to be able to
     inform the inspectors when the unit is running under sugar
     coated conditions.  There have been times in the past when
     inspectors doing the sampling will bring -- they did not
     have AR cards and were not at all familiar with the
     ventilation plans.  Management knew this also and would have
     taken full advantage of it had it not been for the miners'
     rep.  Also, the miners' reps can be a valuable link in
     communication between fellow miners and MSHA.
               Yes, it would increase miners' confidence in dust
     sampling programs to a company, not only MSHA, but could
     also be present and assist the operator in verification
     sampling and in the training of miners as suggested by the
     advisory committee.
               The miners' rep participation in the dust sampling
     program would help to insure that all aspects of the
     sampling program are being carried out properly instead of
     just being mimicked.
               After reviewing the proposed rules, it's very
     plain that the goals of decreasing exposure, stopping black
     lung and saving lives don't seem to be as important to some
     people.  I'd like to take this time to urge MSHA to utilize
     one of the most effective dust controls ever.  That's the
     coal miners and their reps.
               It would also be our intention and I will also ask
     that MSHA go back and increase the sampling in the proposed
     rule, guarantee the rule with lasting funding and to take
     the discretion out of their proposals.
               Mr. Chairman, back to the statement you told Mike
     earlier that it would be our intention to put that in a
     rule.  Please stick by that statement because we want to see
     it.
               MR. NICHOLS:  Keep in mind, when I speak of a
     rule, I speak of the whole package.  I'm talking about the
     preamble.  I did not make a commitment to you to put it in
     the rule.  It is a commitment that will consider that.
               MR. KENNEDY:  Your statements --
               MR. NICHOLS:  I know.
               MR. KENNEDY:  Your statements --
               MR. NICHOLS:  As quick as it came out of my mouth,
     I knew I was going to hear it.
               MR. KENNEDY:  It would be our intention to put it
     in the rule.
               MR. REYNOLDS:  I just wanted to make it clear
     that, you know, because of the nature of the rule we would
     accept comments from everybody, and then we will address it
     in, you know, the next document, whether it be a re-proposal
     or a final rule.  We certainly will consider everybody's
     comments on that issue.
               I just wanted to make it clear it was our intent
     when we put this discussion in the preamble that because of
     the nature of the way we structured plan verification and
     the compliance end point for respirable dust, because MSHA
     would be doing all of this it was our interpretation of the
     statute that the well grounded rights would apply, but
     apparently this is causing confusion.
               It's something that we will address later.  I know
     there are several concerns.  I can tell you one of the most
     obvious would be to put it into the text of the reg.
               MR. KENNEDY:  Thank you.
               MR. NICHOLS:  Thank you.
               I seen all you guys writing real fast when I said
     that.
               The next presenter will be Bill Caylor with the
     Kentucky Coal Association.  Bill?
               MR. CAYLOR:  Thank you, Mr. Nichols.  I appreciate
     you letting me go out of turn.  My name is Bill Caylor, it's
     C-A-Y-L-O-R, with the Kentucky Coal Association.  I'd also
     like to thank Mr. Wilson to agree to let me go out of turn
     as I will not be here tomorrow.  I could be here late
     tonight, but I just could not be here tomorrow, and I
     appreciate the opportunity to go out of turn.
               We're making comments on this proposed regulation
     on behalf of three coal associations in the State of
     Kentucky, the Cooperators & Associates, the Kentucky Coal
     Association and the West Kentucky Coal Association. 
     Collectively, these three organizations represent over 90
     percent of the production in the State of Kentucky.
               I'd like to comment on MSHA conducting all
     compliance and abatement sampling.  Most health and safety
     professionals and coal operators favor MSHA conducting
     compliance sampling of coal dust.
               Over the past years, operator sampling has become
     Catch-22 for operators.  If an operator is in compliance,
     MSHA and the newspapers say that cheating has occurred.  If
     an operator is out of compliance, then he gets cited by MSHA
     and again is criticized by the news press.  Either way, the
     operator loses so in that regards, you know, we favor, you
     know, that aspect of MSHA taking over the sampling process.
               With regard to single full shift sampling, we've
     got three different comments.  First, we feel like the
     single full shift sampling violates the law under previous
     regulations.  The Mine Act and the previous MSHA regulations
     clearly address average concentrations of coal dust.  MSHA's
     current proposal for single shift monitoring ignores over 23
     years of precedent in determining how coal dust should be
     measured; that is, averaged.
               The Mine Act, in Section 202(b)(2), clearly states
     this.  "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 two
     milligrams of respirable dust per cubic meter of air."
               In 1980, MSHA recognized that, "Congress
     recognizes that variability in sampling results could render
     single shift samples insufficient for compliance
     determinations.  Consequently, Congress defined average
     concentration in Section 202(f) of the 1969 Coal Act, which
     is also retained in the 1977 Act."
               We feel that measurement uncertainty demands
     reasonable backups.  Because of the measurement uncertainty,
     which involves, you know, physically taking the sampling,
     the mechanical device itself and the location of the sample,
     a lot of different parameters, we feel like the mining
     community would like to make two requests.
               First, the operator should be afforded the
     opportunity to take a controlled sample for verification of
     the inspector's sample.  Second, the inspector should at
     times, or upon a reasonable request, take a second sample
     that needs to be sent to a lab other than MSHA's lab for
     independent verification.  I think those are very reasonable
     requests.
               The third comment under this area is on quartz
     measurements being taken based on three samples.  The day
     quartz is sampled is very important, as we even heard
     earlier in the testimony.  There are many atypical periods
     that impact the percentage of quartz in the mine atmosphere. 
     The ventilation may not be established.  The operator may be
     taking more rock in the ceiling, presser room and so forth,
     again citing the examples we've heard earlier.
               Three bimonthly samples are needed for each MMU. 
     This would comply with MSHA's language that states the
     measurement accurately represents atmospheric conditions to
     which a miner is exposed during each shift.  This appears to
     be the intent of MSHA, as reflected on page 42130 of their
     preamble.
               Defining concentration using an eight hour MRE
     equivalent measure is flawed.  Section 7.2(j), Definition of
     Concentration, makes an eight hour MRE equivalent measure of
     the amount of respirable dust per unit volume of air. 
     MSHA's definition of concentration, which is based on an
     eight hour MRE equivalent measure, is an example of what I
     would call voodoo mathematics.  It sounds good, but it's
     mathematically flawed.
               MSHA, on page 42140 of its proposal, addresses
     concentration by setting a daily maximum concentration of
     coal dust exposure to a miner.  MSHA made the following
     statement, "MSHA developed the existing coal mine dust
     standards from eight hour shift exposure measurements. 
     Therefore, if you take a sample over a period other than
     eight hours you must adjust the concentration measurement to
     be equivalent to an eight hour exposure."
               This statement is incorrect.  It mixes the term
     concentration and exposure.  An average concentration is
     simply the average of the dust weight per unit volume of
     air.  Concentration is not time dependent, as MSHA tries to
     make it.  You can have the same concentration in coal dust
     over one hour as you do over 24 hours.
               Exposure, on the other hand, is cumulative in
     nature.  The Mine Act and MSHA, throughout the preamble to
     the proposed regulations, confirm this.  The examples
     include on page 42127 of the preamble, "For example, to
     effectively monitor the mine environment for miners' work or
     travel it is essential that respirable dust samples are
     representative and that they reflect typical dust conditions
     to which the miners are exposed."
               The Mine Act uses the term average concentration
     throughout.  In Section 202(c)(2), the law states the
     ability to reduce such dust to the level required to be
     maintained.  Section 202(b)(5) requires the operator to
     maintain continuously the average concentration of the
     respirable dust in a mine atmosphere during each shift and
     the working places of such mines.
               It is clear that the Mine Act uses the term
     concentration to mean the average concentration of two
     milligrams per cubic meter of error.  However, MSHA's use of
     the 480 minute maximum completely destroys the integrity of
     the use of concentration.  What MSHA appears to be trying to
     do is to reduce the longer work shifts back to the eight
     hour work shift.  Why else would MSHA add the 480 minute
     maximum?  It clearly does nothing more than penalize longer
     work shifts.  This shouldn't be MSHA's focus.  MSHA's focus
     should be the average exposure rates during working shifts.
               One flaw in MSHA's theory could be observed in the
     example where the operator uses shifts of less than eight
     hours.  When MSHA speaks of travel time diluting the
     calculated concentration, simply doing the calculations
     using a six hour work shift with a one hour travel time, the
     accumulated dust during this work shift will be less because
     the one hour travel time would generate almost no dust. 
     Instead of working a five day work week, the miner would
     then be required to work, you know, roughly a six and a half
     day work week to give him his 40 hours of total work.
               The same number of total hours as with the longer
     work shifts, but different compliances with MSHA's
     definition of concentration.  The key is the exposure of
     miners to coal dust of a long period of time, the cumulative
     exposure.  Even MSHA recognizes the importance of cumulative
     dust exposure on page 42155 of the preamble.
               Whether a miner works four 12 hour shifts or six
     eight hour shifts or eight six hour shifts, the cumulative
     exposure is the same, and that's after adjusting out, you
     know, the travel time.  MSHA's proposal to adjust
     concentrations to an eight hour equivalent is mathematically
     flawed and clearly biased against longer work shifts.  The
     eight hour equivalent is not an adjustment of the
     concentration measurement to equate it to an eight hour
     exposure.  It's simply a biased calculation aimed at
     reducing longer work shifts.
               If a company was borderline compliant on an eight
     hour shift and then began working a ten hour shift, the
     company simply wouldn't be able to meet the two milligram
     standard in that ten hours under this proposal.  If MSHA
     wants to us a 480 minute factor, it should adjust the dust
     standard accordingly, you know, mathematically however it
     should be adjusted.
               Finally, we feel that the use of the 480 minute
     factor is in conflict with proposed Section 72.500 that
     requires that measurement accurately represents atmospheric
     conditions to which a miner is exposed during such shift. 
     "One certainly can't do this if one tampers mathematically
     with the figures that go into the calculation of the
     measurement that represents atmospheric conditions."
               With regard to the verified mine ventilation plan,
     on page 42141 of the preamble MSHA says that a verifiable
     administrative control would mean a work practice intended
     to reduce a miner's full shift exposure to respirable dust
     hazards by altering the way in which work is performed. 
     Examples include rotation of miners to areas having lower
     concentrations of respirable dust, rescheduling a task and
     modifying work activities to reduce exposure.
               We have some questions.  What credit is given for
     the rotation of employees?  Where does the air pump go? 
     Does sampling follow the miner or stay with the MMU?  We
     feel that the paperwork associated with this will be
     substantial and, more importantly, we feel that it will be
     confusing.
               We have several other general comments.  We feel
     that MSHA should insure that the equipment that is sold to
     the mining equipment meet standards that's promulgated by
     MSHA.  We feel like MSHA, pursuant to Section 102 of the
     Mine Act, should form an advisory committee using expertise
     such as NIOSH to insure that new machinery sold to the coal
     industry is in full compliance with existing MSHA health
     standards.
               MSHA has the duty to insure that equipment sold to
     the industry can comply with current regulatory
     requirements, and we feel that that is actually a mandatory
     duty to insure that whatever is purchased by the coal
     industry can meet the applicable health standards.
               We also feel that the impact on small businesses,
     small mines, will be significant.  MSHA should also -- we
     feel that MSHA should also publish a study on the impact on
     small businesses, on small mines and the small businesses
     that actually work with all mines.  The study on the impact
     on small business should be for the first 12 months of this
     new rule, whenever it becomes effective, and should report
     it no later than the fourteenth month.
               With regards to the use of hired air purifying
     respirators, i.e., airstream helmets, we feel that they
     should be encouraged by MSHA, contrary to what you've heard
     earlier today.  On page 42138, MSHA "...encourages mine
     operators to adopt new and better dust monitoring technology
     as part of the approved ventilation plan."  If this is true,
     then why not allow the use of the airstream helmet
     technology?
               Airstream helmets should be allowed in all mines,
     not just long wall mines.  The Mine Act, in Section 202(h),
     states, "Use of respirators shall not be substituted for
     environmental control measures in the active workings."  We
     read this provision as saying that engineering or
     environmental controls should first be used before
     respirators are allowed.  Respirators should not be
     considered as substituted when environmental control
     measures are unable to reduce dust in the mine atmosphere.
               The Mine Act does not preclude, however, the use
     of airstream helmets as effective dust control.  MSHA should
     not discourage the use of new technology when the new
     technology can effectively reduce the miners' exposure to
     dust.  MSHA should be ashamed of itself for not requiring
     the use of airstream helmets if it would eliminate a coal
     miner's exposure to dust.  The Mine Act certainly does not
     restrict new technology that would have such a positive
     effect on the miners' health and neither should MSHA.
               In summary, I'd like to talk very briefly on
     economics.  I know this hasn't been touched on much today,
     but I'm seeing a trend, which is very disturbing.  I'm
     seeing a trend east of the Mississippi, and I am not
     singling out Kentucky, Illinois, Virginia, West Virginia,
     any state, but I'm seeing a trend of production east of the
     Mississippi, underground production, declining.
               You might actually say why is this happening? 
     Well, there's other fuel supplies that are taking the place
     of the coal that's been produced east of the Mississippi
     typically by underground methods.  The coal is coming from
     the Powder River Basin where you have these seams that are
     40, 50 feet thick, very low sulfur.
               Syn fuels, which is a new coal product.  You've
     got tax credits of $26, $27 a ton for using these syn fuels,
     and these utilities are really gobbling this up.  They're
     estimating that it will replace 40,000,000 to 50,000,000
     tons of coal in the near term, in the next four or five
     years.  That will come out of the areas that because it's
     mining these old gob tunnels and it's located really east of
     the Mississippi again, so that's going to replace coal east
     of the Mississippi.
               Natural gas.  You're seeing the utilities switch
     to natural gas.  Why?  To comply with the Clean Air Act
     requirements.  Natural gas has several advantages over coal. 
     It can take away the price, and the price is outrageously
     high.  We've seen the increases.  Natural gas requires a
     smaller plant.  They can build these plants within a year
     and a half, two years, a small location, and when you turn
     that gas on there's no residue.  There's no flash, no waste
     that the utility has to worry about disposing of.  The only
     drawback, which is the major drawback, is the enormous price
     of natural gas, the fluctuating price and the availability
     of the supply.
               The other impact on American coal is coal that we
     see coming from South America, and it's usually hit a lot of
     our markets in Florida and in states along the coast.  This
     has taken markets away from coal that's mined in Kentucky,
     Illinois, Indiana, West Virginia, Virginia.  You know, it's
     replacing it, simply replacing our markets.  That coal is
     very low sulfur.  It's mined very cheaply overseas, and it's
     barged across the ocean to our consumer utilities in the
     southeastern states.
               As we watch the production falling, we're also
     watching the employment falling.  Fifteen years ago, we used
     to have 50,000 miners in Kentucky.  You know, today I'd
     venture to say we have a whole lot less than 15,000.  I
     think that officially you might see a number around 15,000,
     but I don't think it's that.
               We're not just losing the miners, you know.  We're
     losing the management.  You know, I've worked with people
     over the last 20 years that have lost their job.  You know,
     these are the management.  You know, miners are losing their
     jobs, and management people are losing theirs.  The next
     thing is it's going to have to be the rank and file at MSHA.
               I don't think you all can justify regulating a
     declining industry at the same levels as you all are using
     now on the inspectors and the personnel.  It may not affect
     you all in Arlington, but it's sure going to affect the rank
     and file that you're going to see out in the various states. 
     I just want to point that out because that is a factor that
     needs to go into this.
               You might ask, you know, why is all this
     happening?  I could blame over regulation as the sole cause,
     but that's not fair to say, just over regulation by itself. 
     One other major factor is the Clean Air Act.  You know, the
     year 2000 restrictions of the Clean Air Act is devastating. 
     You know, Illinois, Indiana and Ohio, western Kentucky, and
     now these restrictions are starting to flow over to eastern
     Kentucky.
               There's a lot of coal reserves in eastern Kentucky
     that are just absolutely not compliant as we look at the
     2000 Clean Air Act restrictions.  You're going to have, you
     know, similar coal in West Virginia and Virginia that will
     also be knocked out of the market because it can't meet the
     sulfur requirements.
               Also, you know, I'd like to blame MSHA for its
     share of cumulative incremental costs.  When we're seeing
     regulations on diesel, ventilation regs, noise, dust and
     numerous other regs that we've seen over the last several
     years, it has certain cumulative costs associated with it
     that impact the cost of that ton of coal that's mined by
     underground mining methods.
               It gets to the point where one by one these mines
     will drop out because they can't afford to compete because
     there are just more costs on that kind of coal, as opposed
     to coal that are competing from the Powder River Basin or
     maybe from some of these large surface operations or South
     America or syn fuel where the coal is just simply going to
     be too expensive to mine economically, and these mines are
     going to slowly one by one drop away.  You don't notice from
     going.  You can't put your finger on exactly what the reason
     is, but they're going to drop out because they can't afford
     to stay in the marketplace.
               The goal of MSHA is to protect the miner.  I think
     they're heading toward an unmitigated success in that regard
     because, you know, sooner or later there's not going to be a
     lot of miners working so you're going to protect this guy
     because he's not even going to be working in the coal
     industry.  Just keep that in mind.  You need to balance your
     protection of the miner along with, you know, keeping him on
     the job and keeping him working, which is important.
               I don't think there's a lot of other livelihood
     that you're going to find in the coal fields.  The coal
     fields just simply are not diversified.  Unfortunately, coal
     mining is the only viable occupation that you find in the
     coal fields.  We need to keep that a very viable occupation.
               It's well paying.  These guys -- you know, it's a
     tough job.  They deserve every penny they make.  You know,
     coal mining is not easy, but I'm quite proud of these guys,
     you know, that's here behind us.  They do a good job, and
     the American coal miner, you can't be more prouder of him.
               In closing, I'd like to say I've never seen an
     industry that's been regulated into prosperity.  All that
     happens is that we're going to lose jobs, and we're going to
     lose our jobs overseas.
               Thank you.
               (Applause.)
               MR. NICHOLS:  Dan Spinnie?
               MR. SPINNIE:  Dan Spinnie, S-P-I-N-N-I-E.  I'm
     from Local 2161, United Mine Workers, Coulterville,
     Illinois.
               A lot of this stuff has already been gone over,
     but I've come 500 miles so I'm going to go ahead and do it
     anyway.
               MR. NICHOLS:  We're going to let him.
               MR. SPINNIE:  Which brings me to my first point. 
     How come we don't have one of these closer to the midwest? 
     You've got two of them out here east and you've got one out
     west.  I mean, who decides this, where these are going to be
     held at?
               MR. NICHOLS:  My guess is it's a collective
     decision of a lot of people at MSHA.  I don't know. 
     Obviously I don't have the final say.
               MR. SPINNIE:  Okay.
               MR. NICHOLS:  We'll keep you in mind for the next
     set of rules.
               MR. SPINNIE:  Okay.  Thank you.
               The Mine Act requires that, you know, and we've
     already talked about this engineering thing, but I want to
     go on the record as saying that we need to use all these
     engineering devices before we go to these airstream helmets. 
     I don't know nothing about them.  I've never used them, but
     from what I've seen about them and heard about them they're
     not good.  They're uncomfortable.  They're hot, from the
     folks I've talked to.  I just want to go on the record as
     saying that we should go the engineering before we resort to
     that.  It's a last result.
               I had one question on that.  In the very end, who
     decides if all these engineering controls are over with or
     exhausted?
               MR. NICHOLS:  That would be a discussion with the
     inspector, the supervisor, the district manager and finally
     up to me.
               MR. SPINNIE:  And then when are they over?  I
     mean, is there a time limit when you use all these?  Do you
     know what I'm saying?  When is it over?
               MR. NICHOLS:  It's over when your best collective
     thinking is that there's nothing else that can be done, but,
     as I said earlier, let's say we make that determination and
     then something new appears on the scene.  Then we would
     expect those new things to be implemented.
               MR. SPINNIE:  All right.  As far as the walk
     around rights, we've already discussed it.  As I said, I
     want to go on the record as saying that it's a good thing. 
     I've been safety committee man for 15 years at my mine, and
     we have a good working relationship with MSHA.  We help
     them.  They help us.  These miners' reps and the miners
     themselves, they know this mine better than anybody. 
     They're on the front lines every day.  I would not like to
     see that leave.
               On the outby sampling, probably in 1980 in our
     mines we was a small operation.  We didn't have much belt
     line to contend with and belt drives and outby locations
     where a lot of dust was generated, but over the years these
     belt lines have got bigger.  The horsepower on the drives
     has increased, more belt lines, and I think we need more
     than one sample taken on these outby areas.
               Speaking on the production levels that are going
     to be monitored, back when we had our last set of hearings I
     guess it was back in the 1990s, early 1990s, I spoke, as a
     lot of gentlemen here have spoken tonight, that things
     aren't done the same way on sample days as they are on
     regular days.  I don't know what somebody called it.  Legal
     cheating.  I've seen that happen.  I don't know what we can
     do about it other than raising the tonnage, you know,
     raising the percentage of the tonnage.  I don't know what
     can be done about it.
               As far as raising the standard to 2.33 milligrams,
     in 1997 the mine where I work at went to a super section
     running two machines on a split tail ventilation.  Since
     then, we've been out of compliance.  I don't know if this
     has been addressed on these split tails as doing something
     different with this, but certainly we don't want to increase
     it.  You know, it's like one gentleman said.  If you're
     going to do anything with it, take it to 1.75 and cite them
     at two, you know, if it's a legal thing.
               On these super sections, first of all, do you
     understand on a split tail ventilation?  Are you familiar
     with that?
               MR. NICHOLS:  Yes, the group is.
               MR. SPINNIE:  I'm not real familiar with it
     because we've only had it a couple years and we've had our
     problems, but that's what I'm talking about because ever
     since -- we've been out of compliance ever since we've had
     this.  We've been under an order for almost a year at
     Zeigler No. 11 Mine, Old Ben Coal Company/AEI or whoever it
     is.
               One other thing I wanted to mention.  You probably
     know about this, but I'd like to voice a concern on it that
     on page 42177, Part 70, the scope does not appear in this
     current regulation under the definitions in the CFR.  Do you
     understand?  Part 70, subpart (a), where it says
     Definitions.  The word scope does not appear in there as it
     does in the regulations, the CFR.
               MR. NICHOLS:  We understand.
               MR. SPINNIE:  Okay.  That's all I have for now. 
     Thank you.
               MR. NICHOLS:  Okay.  Thank you.
               (Applause.)
               MR. NICHOLS:  Steve Wolfe?
               MR. WOLFE:  My name is Steve Wolfe, W-O-L-F-E,
     UMWA Local 1969, Crown Chee Mine, Burton, Illinois.  I'm a
     safety committee man.
               I've been in the mines for 24 years.  I don't know
     much about long walls because we're in the heartland of farm
     country so we can't long wall so I can't talk about that.  I
     don't know anything about airstream helmets.
               What concerns me is this yearly sampling of outby
     areas.  I myself am a belt shoveler.  I have been for six
     years, and the conditions of the beltways change daily or
     even quicker.  I cover approximately eight miles of belt
     every day.  I work six days a week, eight hours a day.
               Now, how can one sample in a year give you the
     information on how much dust I am around in 48 hours a week? 
     I've been along belt lines where you couldn't see ten foot
     in front of you one minute.  Go back in an hour, and it's
     clear.
               Also, it's not just me.  Our examiners spent half
     of their day working on the belt lines examining the belt
     lines.  Also, one-third of our shift is outby.  You know,
     it's not just respirable dust that we're concerned with. 
     It's the idea that we could have a mine explosion.  A lot of
     belt fires are from dust, hot roller ignition.
               I've heard talk of this continuous monitoring,
     which doesn't work on miners because they can't stand the
     rigorous impacts.  I thought that this would be a place
     where a continuous monitor could work on the belt lines. 
     Like we said, there are some things the companies do on dust
     sampling days, and one of those are make sure there's water
     on the belt so that the dust is allayed on the belt line.
               My question to you is why would our outby people
     be less important than the coal producing people?
               MR. SCHELL:  The answer is clearly they're as
     important.  I'll try to at least explain to you why.  In our
     proposal, we suggested that we would sample outby DAs at
     least once a year, and I underscore the words at least.
               When we look at the data that we receive from our
     sampling outby DAs now and the data that we receive from the
     operator outby sampling, we collect a lot of samples outby. 
     Very few of them show high dust levels.  I think last year
     there were perhaps eight citations issued outby.
               It was with that in mind that we felt that we
     needed to continue to monitor those definitely and focus on
     where we have problems.  If you just look at our experience,
     most of the problem appears to be at the faces, not at the
     outby.
               You raise that question.  A lot of people have,
     and that's an issue --
               MR. SPINNIE:  Right.
               MR. SCHELL:  -- we certainly need to consider, but
     that's what led us to that conclusion.
               MR. SPINNIE:  Well, I would suggest that if you
     would come to the mine and look at me when I come up out
     from underground there isn't anybody any blacker than I am
     at the end of the day.
               MR. SCHELL:  We understand your comment.  My
     calculation is it ranks in the top five of the most
     commented on here.
               MR. SPINNIE:  That's all I have.  Thank you.
               (Applause.)
               MR. NICHOLS:  Keith Flower?
               MR. FLOWER:  Hello.  My name is Keith Flower.  I'm
     the chairman of the health and safety committee for Local
     2397 of the United Mine Workers.  I also work at Jim Walter
     Resource No. 7 in Brookwood, Alabama.  It's good to see some
     of you all.  I've seen some of you in the past and had some
     comments on other areas of the law.
               I appreciate the opportunity to address all of you
     concerned the new proposed regulations, but I must say that
     I shouldn't be having to address such ridiculous
     regulations.  I, too, have drove approximately 500 miles,
     and I believe today that it's a waste of my time to have to
     be here.  That's no throw back to any one of you all, but I
     honestly believe if you all care about the welfare of the
     miner down there working that you wouldn't propose such
     regulations as we have today, as best I can understand them
     anyway.
               I have read through them numerous times, and still
     to this day I don't really understand, you know.  I read the
     preamble and I read the proposed rule, and I don't
     understand how they conflict with each other and what they
     say and what they don't say.  I'm going to best try to
     address some of the concerns I have that I've had probably
     with the old regulations also that's not addressed in the
     new regulations.
               Nearly all, if not all, the proposed regulations
     continue to put miners at high risk for black lung and other
     respiratory disease.  I must remind you that miners are
     dying every day of black lung, and it is time that we put a
     stop to this.
               You know, I heard the gentleman talk a while ago
     from the coal association, and it took me back.  My father
     died from black lung.  I was age four, so I was raised up
     without a father.  I've heard other people today testify
     having to see their father go through this awful disease and
     die.  I guess maybe I'm blessed that I didn't.
               I heard him talk about the burden that this might
     put on the operators and that miners are not put out of
     work.  Let me say today I assure you if you'll call my
     mother, which is about 82 years old, that she would tell you
     if she had the opportunity to go back she'd have rather been
     on welfare than to have my father working in conditions and
     died at an early age.  There's just something that touched
     me as this guy was talking.  I wasn't even planning to talk
     about it.
               You know, today I realize my job is real
     important, and I need my job, but I don't want to end up at
     the age of 60 and be dead.  I'd rather see my grandkids grow
     up, my kids, so let's remember today the most important
     thing I feel like you all's job is is to put out rules that
     will protect the miner that's down there working, not to
     raise the profits of the coal operator.  I don't think that
     you all have a right or a responsibility to that.  I know
     that we need to stay in business and keep the job, but I
     also know there's ways of doing that, and I'll share some of
     them in just a moment.
               First off, Marvin, you asked earlier to a guy
     that's from Alabama, Jim Walter No. 5, if there wasn't
     people in Alabama wearing airstream helmets.  Like I said, I
     work at Jim Walter No. 7.  I can attest that we're not
     wearing them.  We've tried them in the past.
               I've had the opportunity to go into several other
     mines and inspect other mines, the U.S. Steel operations,
     some of the Drummond operations, and I can tell you to this
     day that there is not a single union mine that I know of in
     the State of Alabama, in talking to some of the other
     operators or mine operators, that wear airstream helmets
     today and work on a daily basis.
               I would challenge -- if you've been told they do,
     I would challenge whoever told you that and see.  That's
     what I want to start off talking about.  I know you don't
     want to hear about it because you're heard a bunch, but I'm
     going to anyway.
               First off, in lieu of using airstream helmets, in
     lieu of engineering controls for respirable dust
     compliances, first of all I want to talk about some personal
     experiences.  Back in 1990, JWR No. 7 Mines was out of
     compliance on the dust standard.  During this time it was
     allowed to mine just about two-thirds of a panel out of
     compliance.
               The union started taking position of this,
     starting raising the issue with MSHA.  MSHA came in at this
     time and started changing and went and said they was going
     to put us under 060 sampling.  The first thing -- not the
     second, not the third, but the first thing management had
     stated was we cannot operate under 060.  We will shut the
     coal mines down.
               The first position that UMWA took with Joe Main
     and several others in the local subcommittee that we was not
     going to allow our miners to wear airstream helmets.  The
     second position was we was not going to allow the mines to
     be shut down; that we was going to sit down and try to work
     and try to come up with engineering controls that would keep
     that mine operating.
               We went to doing this.  We sat down and came up
     with a plan.  At that down it was called a downwind sampling
     plan used in the hanging method.  I don't whether any of you
     all remember that.
               MR. NICHOLS:  We're quite familiar with it.
               MR. FLOWER:  It was real complicated in some
     areas, but it gave the miner some protection as far as
     working downwind how long they could be exposed.
               As I said, we sat down and came up with a new dust
     control plan which calculated downwind time for the shear
     and added several engineering controls.  We accomplished
     getting several sprays added, including shield sprays onto
     our long wall shields.  It first started out with our plan
     saying we're going to wet down the top of our shields.  We
     came up with adding the shield sprays.
               You know, when we first started talking with
     management they wanted airstream helmets.  They said there's
     no way -- no way -- that you can add shield sprays to the
     top of these shields to wet down the shields as they
     advance.  We accomplished doing that.  We did not even wait
     until we got new shields in.  We retrofitted the shields
     that we had and started putting some.  They're not as good
     as the ones we have today, but they did start having some.
               We have a continuous problem still today, though,
     with the operator maintaining the controls that are
     installed.  If these regulations are implemented, you can be
     assured again that the first thing the operators are going
     to scream is that there's not any engineering controls
     available and cannot develop any that can be installed to
     reduce respirable dust.  That's the first thing they're
     going to holler after they come to you and tell you we've
     tried this, we've tried that and we've tried this.
               That brings me to the point of you saying well,
     we're not going to raise the standards to four milligrams. 
     I understand what you're saying, but if you read the rule in
     essence you are raising the standard on long wall to four
     milligrams, up to four milligrams, for the person downwind
     of the shear.
               Now, I don't know.  From the school I come from
     the only way you can interpret that is raising it.  I know
     you say this is after everything has been exhausted, but the
     operator has to come back and show you all what they've
     done, what's out there, that there's nothing else out there,
     and then it's going to be raised.
               Like I said, again, in 1990 if we had had this in
     place we would have been forced to wear airstream helmets
     today.  Airstream helmets also pose several other dangers to
     the miners working on the long wall.  As you've heard
     already, the visibility is greatly reduced, and historically
     on our long walls faces continuous roll out, causing large
     rocks to roll out into the walkways.  By wearing these
     helmets, the miner cannot see from side to side; therefore,
     causing the miner to be covered up and possibly killed from
     the rocks.
               I said before we have tried to use the airstream
     helmets at our mines in the past.  The miners wouldn't use
     them because they could not communicate with each other. 
     The guys today, I think you heard him up here trying to
     testify.  We couldn't hear him in the back, and there wasn't
     any other noise going on in this room like there are on the
     long wall face.
               Also, I think one gentleman testified about people
     chewing tobacco.  How many times do you think that guy
     working downwind is going to keep that face shield down when
     he's got a dip of tobacco or chew in his mouth to spit? 
     He's going to be raising it up continuously to do that. 
     Therefore, if he's working in 3.5 milligrams he's going to
     be exposed to higher levels of concentrations.
               You talk about -- the NIOSH study that I read
     talks about the guy looking into the air, facing into the
     air at all times.  This is not feasible for a person to do
     that.  If on our long walls that person is constantly facing
     the air, then all the rocks from behind him, which we
     historically get coming up the panel line and rolling over
     into the face, could also cause a great danger to him.
               I also remind you that -- excuse me.  I also don't
     understand where MSHA gets their information about the state
     raising the dust standard to four milligrams by using
     airstream helmets.  From the testimony today and re-reading
     the preamble and all, I see something NIOSH does come up
     with, but I also didn't see in there anywhere, as Max talked
     about earlier, where they tested it using high velocities of
     air.
               I think you've all been in our mines.  You know
     the high velocity that we have on our long wall faces.  At
     no time do you ever go down there and find we're using 400
     or 500 foot per minute.  There's always extreme higher
     levels than that due to methane levels.  There's no way we
     can operate without it.  Actually, it creates us some more
     dust problems from having to have so much ventilation on our
     face.
               We strongly believe that not only would using
     these airstream helmets expose miners to higher risk of
     black lung.  It would create other dangers to the miners.  I
     must remind you again, and I have a totally different
     interpretation of the Mine Act than what the fellow that was
     representing the coal operators a while ago had.
               Let me read.  Section 203(h) of the Mine Act
     plainly states that the use of respirators shall not, and I
     underline shall not, be substituted for environmental
     controls, measures and active workings.  I think it's
     plainly stated.  I don't think you should be reading
     anything else in it except it was not the intent of Congress
     to be able to put something on a miner that was going to
     reduce the dust concentration that had been if you had to
     clean the environment up.  We believe that this portion of
     the proposed rule makes it clear that MSHA believes that
     compliance is not important to the miner working down there.
               Secondly, I think that's enough on airstream
     helmets.  I believe you've got the message today.  I hope
     you have anyway.
               Let's talk about the single shift and full shift
     sampling.  UMWA has been complaining and communicating to
     MSHA for years that miners are not being monitored under
     normal working conditions due to the fact that samples are
     being taken on an eight hour portal to portal, and miners
     are being required to work up to ten hours a shift.
               We've been requesting that samples be taken for
     the entire shift on which the miners are being exposed. 
     This is the only way we can be assured of what levels of
     dust concentration miners are being exposed to on a daily
     basis.  Here again I want to give you a true experience that
     I had.  Let me rephrase that.  That one of my other
     committee men had here in the past July, this last month.
               In July of this year, an MSHA inspector ran dust
     pumps on the long wall of our mines.  When he arrived on the
     long wall, he started checking all the dust parameters,
     which included taking water pressure readings on the shears
     -- and other areas of the long wall, all the dust
     parameters, which took him approximately an hour to an hour
     and a half to take all these readings before mining could
     even be started.
               In talking to the miners and from my own
     observation of the long wall, this procedure is not done on
     every shift when they are not sampling.  An inspector took
     up the samples also 45 minutes before the end of the eight
     hour shift in order to get the pumps outside by the allowed
     eight hour sample time.  Therefore, the miners was only
     being sampled for approximately six hours of the actual
     mining cycle being done.
               When I say this is not done on every shift, when
     our people go down there when they're not running dust
     pumps, when the inspector is not down there, they go down
     there, and they have gauges on the shear, the incoming water
     pressures to the sprays and everything so all they do is
     look at their pressure gauge to see that they got the same
     amount of pressure coming to it, make sure all the sprays --
     eventually look at the sprays and make sure they're working.
               This has been approved by MSHA for them to do
     that.  They don't have to go and get a gauge.  They put it
     on the drum, so they're going to put it on each spray to
     check and see how much pressure they've got.  That's the
     reason when the inspector comes in he does it this way, and
     that's one of the reasons that it takes so long for him to
     do it.  It wasn't that he wasn't trying to do his job. 
     Actually, I think he was trying to do his job properly to
     make sure.  If these samples was taken for an entire shift
     the miners worked, then it would be harder for the company
     to manipulate the sampling process.
               You'll have to excuse me.  I've got notes wrote on
     every different topic here.  Here again, I must remind all
     of you that we're continuously having miners die of black
     lung and other respiratory disease caused by exposure to
     mine dust.  Until we start sampling miners for their entire 
     shift, we will not know what engineering controls to add to
     reduce exposure to the respiratory dust concentration.
               It is not only the right of the miners to be
     protected from respirable dust, but it's MSHA's
     responsibility to make sure that operators maintain the dust
     concentration below or at allowable limits.  This rule does
     not do that.  We, the working miners, demand that MSHA
     demolish this proposed rule and go back and start over with
     a new rule by adopting the recommendations of the federal
     advisory committee's recommendations that was approved and
     which was appointed by the Secretary of Labor.
               Here again I'll stop for a minute.  Why should we
     have wasted all this money putting this task force together,
     this committee together, and get their recommendations and
     throw them out the window?  I challenge you, each and every
     one of you.  Go back and get the advisory committee reports
     and compare it to what you all come up with.  Basically
     that's what you're doing.  You took a couple good ideas out
     of there.  Again, I think you was on the right start with
     the full shift sampling, but you just didn't carry it
     forward enough.
               I remind you that my understanding of this
     advisory committee, it was made up of two people from labor,
     two people from management and five independent people. 
     Each and every one of them agreed on that report.  Each and
     every one of them I believe signed off on that report, so I
     believe that if you had adopted that report then the UMWA,
     labor and management would not have had a right to complain
     about what's in that report because they all signed off and
     agreed on what was in there.  They had their representation
     there.
               We have also requested that miners or miners'
     representatives be allowed to participate in all sampling
     procedures, whether it was for compliance or plan
     verification, at no loss of wages to the employee, but there
     is none in the proposed rule.  Operators surely, surely will
     challenge the policy or preamble if it is not mandated in
     the rule, and it is likely that miners will not participate. 
     There again, I heard I think Mr. Schell, and maybe you, too,
     Marvin, saying that they will have the right.
               Let me address policy and preamble.  I have over
     the years of being involved in the safety committee, I have
     dealt with policy.  I have dealt with MSHA subdistrict
     managers, MSHA district managers.  I have seen policy change
     from one manager to another manager, subdistrict manager to
     manager.  I've seen inspectors interpret the policy totally
     different.
               Recently, a few years back, I seen a lot of policy
     changes change.  The first thing when I contested a lot of
     this thing was that it will not hold up in Court.  I've been
     told that numerous times by a hearing officer, by an ALJ in
     a Court case that I was in with a person at Jim Walter
     Resources.  That policy cannot and will not be mandated by
     the law.  It has to be final rule before it can be upheld.
               I'm not saying that some of them haven't got by,
     you know, and been enforced that way, but any that's
     challenged can be throwed out.  I firmly believe that. 
     Again, if it's not in the rule don't expect it to happen.
               I'll give you another example of the company that
     I work for, how I guarantee you they will challenge it. 
     Back in November, 1991, and this is all documented in the
     105(c) that was filed, and I can show you reports on it. 
     The safety committee man at my mines was discharged, the
     company stating that he was not staying close enough to an
     MSHA inspector that was on the No. 1 long wall to evaluate a
     proposed dust control plan.
               The foreman stated that the committee man was
     spending too much time at the shear and talking to the
     workers about the conditions of the sprays and also to MSHA
     inspectors about the plan not being followed.  The committee
     man at all times was within 15 feet of the inspector, but
     yet he was discharged.
               Therefore, the operator plainly demonstrated that
     they don't want miners' reps with the inspectors when it's
     required by the Mine Act under the protective rights, so
     they sure won't allow miners' reps to be part of any dust
     sampling which is not required by the final rule, there
     again underlining final rule, not preamble.
               For years, UMWA has been complaining to MSHA about
     the operator conducting their own compliance sampling, how
     easy it was for them to manipulate the dust sampling
     procedure.  I've stated I think to you, Marvin, personally
     and to Lawrence Schell at -- and at other places I always
     give this example.  It's like me or you driving down the
     highway.  We notice that we're going too fast so we pull
     over and give ourselves a ticket.
               You know, that's what the operator in a sense in
     essence does by doing their own sampling.  That's what I
     feel it's like.  Hey, we're out of compliance so we're going
     to sample and give ourselves a citation.  No, most of the
     time they're not.  They're going to try to manipulate the
     system and keep from getting that violation.
               Therefore, I appreciate, and I underline really
     appreciate, you taking or saying that you're going to take
     over the operator sampling procedure because I believe that
     should have been done years ago and needs to be done today. 
     The only problem is I don't see anywhere in the final rule
     that says you are going to take them over.  It says that
     you're going to do all the sampling, but in essence what
     you're going to do is sample at least six times a year. 
     Therefore, we're going to be losing all that sampling that
     the operators do.
               You asked a guy earlier today well, do you all not
     want us to do away with operator sampling?  I guess if it
     came down to having no sampling or the operator sampling
     some, I guess we're better off having the operator sample
     some, but I think it's been mandated and I think all the
     testimony will show that MSHA should take over all sampling,
     but not reduce it.  Not reduce it.
               You talk about manipulating the system.  If they
     know you're coming six times I guarantee you they're going
     to make sure the plan is being followed once the plan is
     approved, the verification plan has been approved.  They can
     make sure that that plan is right for that period of time
     you're coming.
               They can afford to operate a whole week because
     you get to a point as a miners' rep and as an operator.  You
     can about figure when MSHA is going to come and run dust
     samples.  All you've got to do is keep it on the calendar
     when they've been there last, so it will be a lot easier for
     them to do.
               As I said again, this is ridiculous.  We asked for
     more efficient sampling.  As a result to our request, we get
     less sampling and higher levels of allowable dust
     concentration.
               What MSHA is proposing in this final rule is to
     steal, and I underline steal.  It's like taking candy from a
     baby or something or going to the store and getting a candy
     bar and not paying for it.  Steal the health from the
     working miner is what this rule does.
               I'm about to wrap up.  I just have a couple more
     things here.  I guess the first question, and I think it's
     been asked, but I want to re-ask it for the record, is why
     is it not in the final rule?  You know, it's in the
     preamble, but why is it not in the final rule that miners'
     representation will have the right to be with MSHA on all
     inspections, plan verification, abatements, compliance and
     all in the final rule?  Why is it not put in the final rule?
               MR. NICHOLS:  Well, it's clear in the preamble,
     but we have a comment about, you know, we know your desire
     to have it in the final rule, which we'll consider.
               MR. FLOWER:  All right.  Another one.  On this
     plan certification, the way I understand it's set up, and
     correct me if I'm wrong.  The operator is going to get
     everything they think they've got that needs to be in place,
     set it up on the long wall or the miner section, as far as
     that goes, that they think can be in compliance.  Then
     they're going to call you all or MSHA --
               MR. NICHOLS:  Yes.
               MR. FLOWER:  -- and you all will come out and
     sample it.  Is that correct so far?
               MR. SCHELL:  I don't know if they'll call us,
     Keith, but you're right.  We will notify them that we plan
     to do verification sampling.  Then they have to get prepared
     for us to do that.
               MR. FLOWER:  Okay.  All right.  So why is it then
     once they say they're ready to have the verification of the
     plan, why is it if MSHA comes out and samples and they're
     out of compliance there's no citation written?
               MR. SCHELL:  The purpose is to test that plan to
     see if it works at these high levels.
               MR. FLOWER:  Right.
               MR. SCHELL:  So it may not work, which means they
     may have to do some more.
               MR. FLOWER:  Okay.  Do you think, though, you
     know, these miners are having to work in these high
     concentrations of dust this whole time when they're out of
     compliance, this month or two months or three months it can
     take for them to finally notify you all or either you all
     notify them that we're coming out.  The miners are exposed
     to higher levels.
               You come out.  You sample and find out that plan
     is not working, so then you come around and tell them
     they've got to do something else.  No citation, no abatement
     time, nothing that the union can challenge, nothing that the
     union has a right to go -- under the Mine Act, but yet they
     could have another month or two months, and you come back
     and sample again and it still might be.
               Do you understand?  If you write a citation, then
     you have to put an abatement time.  The union at that time
     will have a right to challenge that abatement time, whether
     we say no, MSHA, that's too long.  I believe we've got good
     inspectors, okay, but I honestly believe that those working
     miners and miners' reps has more of a feeling of what time
     it would take to abate a certain citation, how long we
     should give operators.
               I guess you're not going to give me an answer that
     I like.  The statement I'm trying to make is take that under
     consideration.
               Talking about the highest average production, this
     is going to be based on eight hours or ten hours of
     production that you talk about they're going to have to put
     in their plan.  You know, you talk about well, we're going
     to go with the highest percentage of the production. 
     There's nothing that I see spelled out in there that says
     okay, even though people are working ten hours, you know,
     what are they putting in the plan, what those people produce
     in an eight hour period or what they produce in that ten
     hours or that 12 hours?
               MR. SCHELL:  It's required to be put in the plan.
               MR. NICHOLS:  Full shift?
               MR. SCHELL:  And required to be put in the plan.
               MR. NICHOLS:  Full shift and required to be put in
     the plan.
               MR. FLOWER:  Okay.  Is that in the final rule?
               MR. SCHELL:  Yes, sir.
               MR. FLOWER:  It is in the final rule?  What part
     of the final rule?
               MR. SCHELL:  Keith, there's a section that
     describes new information that has to be added to the
     ventilation plan.  It relates to 75 to 300.  There's a
     section at the end of the final rule where it talks about
     new things that have to be added to the ventilation plan. 
     It's in that portion of it.
               MR. FLOWER:  It does spell it out?
               MR. REYNOLDS:  Yes.  I was going to say also I
     think we've had this -- a lot of people didn't realize it
     was in the proposed rule, but everything in the existing
     ventilation plan submission and approval process would apply
     here, so the identification requirements.  None of that
     changes.  That would still be in place, so the miners'
     representative would have to be notified, and copies of
     everything that went back and forth would have to be posted
     on the bulletin board.
               The additional information is also the one part of
     the actual rule which gets the list of what the operator has
     to include in the ventilation plan, which includes the shift
     plan.
               MR. FLOWER:  Okay.  That brings me to another
     question then, I guess.  If they put a number in the plan,
     we produce this amount of tons, and as a miners' rep, as the
     lawyer said, I have a right to comment on any plan
     submitted.  Thank goodness that hasn't been took away yet,
     but if I challenge that, their numbers are wrong, then what
     resources are you all going to use to come back and
     determine whether they're putting the proper numbers in the
     plan or not?
               I mean, I don't see a big change today from when
     the inspector comes out there.  He calls the engineer on the
     phone and they say well, we produce this many tons.  I mean,
     all he's got to do now is write it in his book.  How are you
     going to be assured that he is accurate in telling me what
     he produced?
               MR. SCHELL:  On the tonnage, there's a
     requirement, and it's a new requirement, Keith, that the
     operator has to record production on every MMU every day,
     and that's a record that they have to keep.
               MR. FLOWER:  Right.
               MR. SCHELL:  So if we have reason to believe that
     those records aren't accurate, number one, we're going to be
     talking to people like you.  Also, we can come out and do
     physical measurements to see what they're doing, but our
     experience has been when you require an operator to document
     every day on every MMU they're very careful about it because
     they know that if they screw up there's a written record
     that demonstrates that they've screwed up.
               So just the fact that they have to keep that
     written record and the fact that there are people like you
     and the fact that we can make those measurements, we ought
     to have a pretty good idea whether those records are
     accurate or not.
               MR. FLOWER:  Okay.  I would disagree with you on
     what you said about the operator making sure.  I can show
     you numerous violations now where they're supposed to record
     in our boss book examination of an accurate record that's
     been taken, what they did and what they didn't do.  You go
     down there, and you see totally opposite of what they wrote.
               As a matter of fact, a common statement is area
     clear.  Area clear.  They you go down there are write 15
     violations.  You know, it doesn't seem like the area would
     be clear.
               It just seems to me that without MSHA getting
     involved and taking their own measurements, there again
     talking to the miners, the miners' reps, having them in the
     plan verification process, the operator could, and I ain't
     saying he would, but I'm saying the possibility is left out
     there for him if he mines 100 foot to come out and say well,
     I mined 70 feet, 80 feet.
               There again, even though I work in a pretty large
     mine and have several memberships, I know we put a high,
     high burden on our local if they had to pay me to be with
     the inspector on plan verification, much less on the
     operator going down critiqueing their plan.  If it was all
     spelled out, we would be there throughout the process to be
     assured to be a set of eyes for MSHA, a voice for the miners
     to MSHA to know what we've recorded and what we know that
     they've produced.
               There again, in the final rule there's nothing for
     that in there.  You know, there's nothing stating how you're
     going to get them measurements or how the operator is going
     to get them measurements.  There's another loophole.  I
     think attorneys know about loopholes; at least mine did.
               I'm trying to wrap up here.  Here again, I've
     talked about I know policy can't be enforced.  One other
     thing I want to touch or a couple things that I'm going to
     try to touch.  The main thing is I want to make it clear
     that, you know, once the operator has notified MSHA that
     they're ready for them to come out and sample for a plan
     verification, how long -- there's nothing in the rule that
     says how long MSHA is going to wait before they come to each
     MMU to make that plan verification.
               There's nothing in the rule that mandates that. 
     Therefore, if the budget was cut, the money was taken away
     and you couldn't afford the personnel, it could go on for
     months because there's nothing mandated that we will be
     here, MSHA will be here, at a certain time and make that
     plan verification.
               Again, I know that you sit here and say you can be
     assured we're going to be there, and I've learned from
     dealing with the agency, with MSHA over the period of time
     and with the operators that if there's nothing in final
     print written out that mandates it, then there's no recourse
     that the miners have, so please take that into
     consideration.
               My miners might be exposed to over three
     milligrams of dust up to a six month period of time.  The
     possibility might not be but two weeks, three weeks, but,
     you know, and I would like to think at my operation I would
     be taking some more avenues as it was addressed here today
     under the 103(g).
               What I'm trying to say is why put something in the
     regulations that I would have to be forced to use that
     avenue when we can put it in a mandated rule now that spells
     how long an operator is going to have before you come in and
     make the verification?  The answer is going to be here a
     certain amount of time.  There's nothing that states that in
     there anywhere.  There's nothing that gives any time frame
     or any time amounts.  I can have all the good intentions in
     the world, but sometimes I don't have the resources myself
     to do all of it.
               I think it was stated and we all know that there's
     a possibility of a change, an administrative change due to
     the election coming up, an election year, so when we make
     the final rule let's make it as clear as we can.  Put
     everything in it that mandates what we're going to do and
     when we're going to do it.  Then we have some avenues to
     come back at.
               Lastly, I think, unless something else comes to
     mind, I want to address one thing that I think I heard Mr.
     Schell talk about today or asked for comments on, and it's
     the abatement samples.  I want to make it clear today before
     I leave even though I don't have all the answers at this
     time.  I do want to let you know that we believe that a
     higher level of confidence should be required on abatement
     samples.
               You know, that level of confidence could come from
     several different ways, I guess.  I don't have all the
     answers, but I definitely believe that even though I don't
     really believe there's going to be many abatement samples. 
     I'll tell you that right now.  In this rule, I don't think
     there's going to be many citations written to the mine
     operator.  That's one of the problems that I have.  I think
     this gives so many leeways for violations not to be
     existing.  I do believe that we do need a higher level of
     confidence in that area.
               That's all I've got right now.  If you're got any
     questions -- I might think of something else, though.
               MR. NICHOLS:  I better say no.  Thanks.
               MR. FLOWER:  Let me say this.  If you do have any
     questions --
               MR. NICHOLS:  In closing.
               MR. FLOWER:  In closing, as the preacher says.  In
     closing, if you have any questions at any time, don't
     hesitate to write them.  My address is available.  Send them
     to me.  Call me.
               MR. NICHOLS:  We know where you work.
               MR. FLOWER:  Thank you.
               MR. NICHOLS:  Okay.  Thank you, Keith.
               (Applause.)
               MR. NICHOLS:  David McAteer?
               MR. MCATEER:  Good evening, Mr. Chairman, other
     panel members.  My name is David McAteer, D-A-V-I-D,
     M-C-A-T-E-E-R.  Like a couple of other guys said, I've come
     a long ways.  Although everything has been pretty well
     covered, I'm going to go ahead and state.
               I'm been a UMWA safety representative for 15 years
     at Jim Walters No. 4 Mine, Brookwood, Alabama.  I came here
     to speak today on behalf of over 300 miners at our mine.  I
     need to get our message across loud and clear.  It's been
     said many times today.  Go back to the drawing board.  These
     two proposed rules as they are now will eliminate or
     undercut a key portion or the key protections coal miners
     currently have.
               Go back to the drawing board and follow the
     federal advisory committee's recommendations.  Do not
     increase dust levels.  Do not reduce dust sampling
     frequencies.  Do not replace engineering controls with
     respirable protection or administrative controls on long
     walls.
               The advisory committee called for lowering dust
     exposure levels.  The committee called for increasing
     compliance sampling.  The committee called for environmental
     controls to continue to be the method to control coal mine
     dust and not to be replaced by respiratory devices.  MSHA's
     proposed rules allow respiratory devices to replace
     environmental controls while increasing dust levels.  It's
     wrong.  It's going to prolong progress and reforming the
     coal mine dust problems.  MSHA should get back on track and
     follow the advisory committee's recommendations.
               Mr. Chairman and panel members, you have heard and
     will hear many more serious problems with these proposed
     rules today.  By no means is this all we found wrong with
     the proposed rules.  I'll say it again.  It's wrong to raise
     dust levels.  It's wrong to reduce dust sampling.  It's
     wrong to reduce coal miners' protection from black lung. 
     It's just plain wrong.  Somebody at MSHA should stand up and
     admit it's wrong, but say they're going to make it right.
               Thank you.
               MR. NICHOLS:  Thank you.
               (Applause.)
               MR. NICHOLS:  Greg Mahan?
               MR. MAHAN:  My name is Greg Mahan.  I'm from
     Illinois.  I'm the local union president.  I'm glad to be
     here today, and I'm glad you let me speak.  I'm very
     disappointed.  I've come over 500 miles, and I'm tired.
               First, the board did not follow the federal
     advisory committee's recommendation.  That's very
     disappointing to me.  Second, you did not listen to the
     miners.  They have spoken for many years.  You did not
     listen to the International in their lawsuit.  If I could
     fill out a citation, I figure that would be reckless
     disregard.
               To get on to the matter that I have, there are
     many submissions that I need to bring up that I'm concerned
     about.  At my mine, we have just changed to a new system. 
     It's a blow in system, and the State of Illinois has already
     considered that outby people don't matter no matter what.
               To sample one time per year is very minimal.  It's
     not right.  We have more dust problems now than we've ever
     had inby and out.  The citation levels, the flow air
     readings, have increased since December of 1999 since this
     has been implemented as a blow in system.
               One gentleman talked about the outby being dusty,
     and if that's in the ventilation plan they should be
     required to dust every day.  I have codaphoned the federal
     at least three times in the last three months.  The last one
     was last Wednesday or Thursday, and before I got to the mine
     the codaphone was faxed to the company.
               The inspector was there on a regular inspection. 
     He was told to go back below.  While on his rounds, he
     wanted to know.  They were attempting to water the roads. 
     As long as they're attempting to do whatever they're going
     to do, there's no citation that will be written in my mind. 
     Just like too many open cross cuts.  As long as they're
     attempting to work on something, no citation.
               On that matter, I also support a higher level of
     confidence required on abatement samples.  In that I'm
     asking a question here.  What provision in this proposal
     will empower miners' representatives to assure that between
     plan verification approval and compliance sampling that the
     operator will comply with the approved plan?
               MR. NICHOLS:  Well, you've got the operator
     himself.  You've got the inspector.  Then I would expect the
     safety committee is going to be attentive to that, too.
               MR. MAHAN:  We hope so.  I mean, we can go as far
     as the miners' representative here.  The board says its
     intent is to have us go and not lose no pay.  We hope the
     commitment will be made that they will be allowed.  It will
     be rule.
               The companies are already saying that they're
     going to challenge our participation in this.  We hope the
     board, knowing that they are intentionally intending to
     require us to go, we hope that this rule will be law, not
     just an intention.  We need a commitment.
               Another question I'm asking.  I think Dan Spinnie
     said they have a section where they have two machines.  The
     question I have, and I've seen this before.  If they know
     that a section or a unit is high in respirable dust, I've
     seen them shut the section down and say something is wrong. 
     It's down.  It's not running.  Something is wrong.
               If they have two machines in that unit, will you
     allow them to shut one machine down and sample one or wait
     and come back when both machines are running?
               MR. NICHOLS:  I think we want to verify the plan
     the way they normally operate.
               MR. SCHELL:  Yes.  Clearly it depends on how
     they're ventilating it, if both sections are ventilated on a
     separate split.
               MR. MAHAN:  It will be coming down the travel way,
     fishtail, two miners running at the same time.  If they know
     that one machine is high or going to be high or just say,
     for instance, when they come in and do their -- one side of
     the mine is drove up farther than the other.  They know the
     ventilation is going to be a problem.  Will they be allowed
     to shut down one of those miners and sample just the one?
               MR. SCHELL:  Well, clearly if we knew what you
     just said, no.
               MR. MAHAN:  I mean, whether or not I say what I'm
     saying.  Just say, for instance, they know that that
     machine, one of those machines, could be out of compliance. 
     Could they just say we're not running that machine today and
     you go ahead and sample that one machine?
               MR. SCHELL:  With verification sampling, that
     wouldn't be allowed.
               MR. MAHAN:  Okay.  I mean, I know the company I
     work for.  I've seen it done.  Right now we're not talking
     about dust sampling.  We just got these new coal haulers. 
     Okay.  They're taking production out of one unit and adding
     it onto this unit.
               MR. NICHOLS:  Would that be one or two?
               MR. SCHELL:  That would be two, but again we'd be
     interested in seeing -- you know, if we're going to verify
     that section, we want to see it operating the way it --
               MR. MAHAN:  Normally would?
               MR. SCHELL:  -- normally would be.
               MR. MAHAN:  Okay.  It is my belief that the only
     way to make this program effective is to have miners
     included in the sampling process.  We're there.  We should
     be included.
               You know, a few years ago a lot of us were
     certified by the MSHA inspectors to take methane checks.  We
     were certified, got the little card back.  A lot of the
     individuals didn't have -- weren't certified by the State of
     Illinois, so MSHA come in and certified them to take methane
     checks.
               Well, I think it would be a little bit different
     than having somebody take a spotter out, but I believe for
     this to be more effective that the miners at that facility,
     that mine, knows what goes on and can see how this is going
     to work, and we would feel more confident if we would have a
     say so in this.
               Actually, you know, not only do we go with the
     inspectors to see that everything has been followed, but we
     also go with the inspector.  If the company challenges him,
     we're there on his side.  You know, this will happen.  Under
     these guidelines or these proposals, if my company with no
     representation, that MSHA inspector, it's his word against
     the money.
               I believe that our confidence would grow with MSHA
     if we were involved and included in this process.  I believe
     actually that we all need to take a stronger and harder look
     at the dust sampling throughout this country.  It's been a
     problem since day one that coal was taken out of the ground. 
     It still is, and it always will be.
               We've asked for over a quarter of a century to
     have continuous monitoring, and we haven't done it.  The
     company, in my mind, is continuously monitoring their belt
     lines.  Why can't they continuously monitor the dust
     sampling?  I don't think it would cost as much as what
     they're spending on our belt lines.
               We have fought long and hard for this.  We are
     willing to fight as long as it takes.  We hope the board
     will take it back to drawing board and not take away our
     rights and our health.
               I thank you very much.
               MR. NICHOLS:  Thank you.
               (Applause.)
               MR. NICHOLS:  Randy Klausing?
               MR. R. KLAUSING:  My name is Randy Klausing,
     R-A-N-D-Y, K-L-A-U-S-I-N-G.  I'm from Illinois, Old Ben Coal
     Company, chairman of the safety committee.  I had a bunch of
     questions.  They were answered, and I'm not going to go back
     over them.
               I've got a couple of them I just don't understand
     here.  I know you made a statement that we talked about the
     rights of the safety people to go with the MSHA.  You know,
     you changed your mind once.  I presume he's a lawyer.
               MR. SCHELL:  He is.
               MR. R. KLAUSING:  Okay.  Once you said this, you
     changed your mind.  I mean, this was in all this here.  You
     went through all this.  I went through this four times, and
     I still don't understand what the hell it is.
               MR. SCHELL:  What I changed my mind on was --
               MR. R. KLAUSING:  Well, the reason you changed
     your mind is because your lawyer stopped you.  That's the
     reason why you changed your mind.
               (Laughter and applause.)
               MR. R. KLAUSING:  I don't want to be smart or
     nothing, but that's the reason why you changed your mind.
               MR. SCHELL:  And Joe will stop you if you get up
     and testify the wrong way.
               MR. R. KLAUSING:  Well, there's no doubt.  He
     probably will.
               MR. SCHELL:  I guarantee you he will.
               MR. R. KLAUSING:  Well, that's what I don't
     understand.  There's stuff that you made the statement that
     you thought was right, but then you --
               MR. SCHELL:  No, no.  I said a key word that you
     guys have been looking for, which was rule.
               MR. R. KLAUSING:  All right.  All right.  Okay. 
     On the DAs, the designated areas, we've got designated areas
     at our mine.  They're at the drives, okay?  What I don't
     understand is you're wanting to raise the standards on the
     Part 90 miners to 1.26.  It used to be one, and you're
     raising it.  That's outby people, okay, or whatever.
               We don't sample the people.  We sample the drives. 
     Just like the gentleman said.  He was a belt shoveler.  Now,
     I don't know how the rest of the mines are.  I'm just
     talking about our mine.  Our designated area is at the
     drives.  We've got our shelf wipers, you know.  There's
     very, very seldom you have a spill there at your drive. 
     Your spills are on the belt line where the people are
     shoveling, but they don't get sampled.  The drive gets
     sampled.
               That's what I don't understand.  You say like you
     looked up statistics of eight citations.  That's probably
     true because there's very few times that we got cited on our
     designated area, but if you would sample the belt shovelers
     or the people that is outby, you would probably get a better
     feel of what's going on besides designating a drive that
     does pretty well in air and is very seldom going to be out
     of compliance.
               MR. SCHELL:  Okay.  Well, that's worth looking at,
     but the theory of this DA concept came into effect in 1980,
     and the theory, maybe it needs to be reconsidered.  The
     theory was that major dust generating sources are at the
     faces.  If you control dust at the faces, people outby
     normally would be protected.
               The unknown was these dust generating sources, so
     we said instead of sampling the people that are outby we're
     going to sample these dust generating sources outby.  Just
     like you said, it's a belt transfer point.
               MR. R. KLAUSING:  Sure.
               MR. SCHELL:  We were actually sued by the mining
     industry for doing that because they claimed that was more
     stringent than sampling the miners because when you're
     sampling that dust generating point you're sampling where
     dust is created, even though there's no miner around there.
               MR. R. KLAUSING:  True.
               MR. SCHELL:  We ultimately prevailed in that
     litigation, but for the industry their position was that we
     were sampling a place where miners didn't even work or
     travel.
               Our position was if we sampled faces and
     controlled dust at the faces, if we controlled dust at these
     generating sources outby, we're going to be protecting
     miners, so that's the theory in why we have those DAs.
               MR. R. KLAUSING:  In a sense, yes.  You're right
     in a sense and you're not right in a sense because you put
     the pumps at a special place where it's got the sign, DA,
     you know, and the whole nine yards, but you got people
     that's not even very seldom there.
               The examiners come in to make sure everything is
     okay, you know.  The belt shovelers stop, but the majority
     of your spillage and your dust is actually on the belt line
     itself, not the drives.  It's mainly because you have to
     have your head spray at your drive, your transfer point. 
     That's in our plan and all that stuff, but the dust mainly
     is on your belt lines where the belt shoveler is actually
     shoveling.  He's not getting sampled.  You're sampling a DA. 
     You're not sampling that belt shoveler.
               That's what I don't understand.  That's what I've
     argued numerous times.  Why can't we get the outby people
     sampled?  Well, I've never got a complete answer.  Can you
     give me an answer?
               MR. SCHELL:  Again, it may not be the one you
     like, but that's not the way our program is designed.  That
     doesn't mean if you believe there's an individual that's
     being overexposed you ought to call the district and ask
     that that be sampled.  We can do that.
               MR. R. KLAUSING:  Well, the only time that
     actually an outby person gets sampled is if he's a Part 90
     miner.  That's the only time that anybody outby gets
     sampled.
               MR. SCHELL:  And like I say, it's because our
     theory is if you're controlling the dust generation points
     both at the face and on the outby areas, the miner should be
     protected.
               MR. R. KLAUSING:  Okay.  With the Part 90 miners,
     I know I got -- let's see.  Where is it here?  Just bear
     with me.  I'll be right with you.  I'm not leaving.  Okay. 
     Here it is.
               According to NIOSH, they done a study from 1987 to
     1996.  At least 18,245 people died of black lung, but now
     we're wanting to raise it to 1.26.  That don't make sense,
     and we're at one percent?  Why?  Because we've only had
     eight citations.  It don't make sense when we're still
     having people die of black lung.  I don't understand.  I
     don't have a lawyer to grab me either.  I don't understand.
               MR. NICHOLS:  I've got a mathematician back here,
     but I don't know if I want to grab him.
               We're not raising it because people are still
     dying.  It's the correction factor, right, the sampling?
               MR. R. KLAUSING:  Yes.  Well, mainly, and maybe
     I'm reading it wrong.  The reason I guess you're raising it
     is because you only have eight citations.
               MR. NICHOLS:  No, no.  We're raising it because --
               MALE VOICE:  We're not raising it.
               MR. NICHOLS:  Now you got me saying we're raising
     it.
               (Laughter.)
               MR. R. KLAUSING:  Boy, I'm glad I was late.  See,
     I got you when you're tired.
               MALE VOICE:  Did the court reporter get that?
               MR. KOGUT:  If a measurement comes in above one of
     those citation threshold values, then we can issue a
     citation because we have a high level of confidence that the
     standard has been exceeded.
               If a measurement is below the citation threshold
     value, but above the standard, that does not mean that the
     line is in compliance.  It simply means that we don't have a
     sufficiently high level of confidence to warrant a citation
     at that time, but we do not consider the mine to be in
     compliance with the standard.
               There's a number of other steps that we might take
     in that kind of situation.  We might come back, for example,
     and take another sample.  We might require -- if we get a
     sequence of samples that are in the case of the outby
     samples for Part 90 miners, a few samples that are above one
     but that aren't high enough to warrant individually a
     citation, we might require that the plan be verified.
               MR. R. KLAUSING:  Not to be disrespectful, but we
     had a lot of mights in that.  I mean, we might, we might, we
     might.
               MR. REYNOLDS:  I wanted to say something as well. 
     I mean, this practice of putting that 95 percent confidence
     level into a situation where you're citing somebody for
     violating a standard like this, and this is not unique to
     MSHA.  It's the same way with OSHA and their 95 percent
     confidence level.  It's also used by EPA.
               So it's not a matter of raising the standard. 
     It's just really an enforcement policy or a level at which
     we will clearly pursue that as an enforcement action rather
     than trying to get them to either correct the problem or
     abate the problem, so we're not changing the standard with
     the 1.2.  The standard is still one or two.
               MR. R. KLAUSING:  Okay.  I know Ron talked about
     the six samples a year and the eight hour samples.  I know
     you've heard it millions of times.  I don't know about
     millions of times, but you've heard it numerous times that
     it's not an eight hour sample.  Actually, your pumps are
     actually probably around six hours actual in the --.
               Then you said that if there's a citation to abate
     the citation the inspector would stay the full shift if it's
     a 12 hour shift, ten hour, nine hour.  What's the
     difference?  Why can't we just -- if he's going to stay to
     abate the citation, why can't he stay there the whole eight
     hours, nine hours, 12 hours if he's going to stay there to
     abate the citation?
               MR. SCHELL:  When we were drafting this our view
     was, and, to be honest with you, we had some questions about
     it, but our view was that since the real purpose of that
     sampling was to give us an idea whether that plan continued
     to reflect mining conditions and whether that plan would
     continue to protect miners.
               We felt that since we had production records
     available to us, since we were there and did the sampling
     and that we could see the controls that were in place, on an
     eight hour sample we'd be able to make a judgement as to
     whether or not that plan continued to be protective of
     miners, but we were concerned enough about it that we did --
     if you read the preamble, we said that we had a question
     about that, and we specifically asked for comments from the
     public on whether or not we should do compliance sampling
     for the full shift.
               MR. R. KLAUSING:  True.  I've heard you say that.
               MR. SCHELL:  I think we've heard that.
               I want to go back to the Part 90 if I can --
               MR. R. KLAUSING:  Okay.
               MR. SCHELL:  -- and just clarify one thing.  We do
     understand your concern, but I don't want to leave you with
     the impression that the Part 90 miner is worse off than they
     are today because what we do today is that damn averaging
     again.
               We take one sample on a Part 90 miner, and if
     that's high we go out and we take five samples on a Part 90
     miner and we average them, so there could be a two milligram
     standard in there.  There could be a 1.4 in there.  Then you
     get a couple low ones, and it brings you down below one.  We
     say the Part 90 miner is protected.
               We are going away from that averaging on Part 90
     miners to a single sample measure on that Part 90 miner. 
     That will be more protective of that Part 90 miner.  That
     single sample is a significant improvement, but I'm telling
     you to let you guys know what it is.  It doesn't allow the
     higher readings to be diluted by the lower ones.
               MR. R. KLAUSING:  Yes.  I understand what you're
     saying, but we've had people die for one milligram, what the
     standard is now, but now we're going to raise it so we don't
     average out the other five.  I don't understand why.  Why
     don't we lower it?
               If we're wanting to protect the Part 90 miners,
     let's lower it, not raise it, regardless of the pie divided
     or however you want to do it.  Let's lower it.
               That's it.  You got any questions?
               MR. NICHOLS:  No.  I think we understand your
     comments.
               MR. R. KLAUSING:  Thank you.
               MR. NICHOLS:  Thank you.
               (Applause.)
               MR. NICHOLS:  Dwight Cagel?
               MR. CAGEL:  My name is Dwight Cagel, Local 2397. 
     I'm on the UMWA health and safety committee at Jim Walter
     No. 7 Mines, Brookwood, Alabama.  I've got 26 years'
     experience.  I appreciate the opportunity to address the
     panel concerning the new proposed dust regulations.
               One thing I was going to touch on was the Part 90
     miner myself and even add a little to it.  I know on these
     under the old rule in Part 70 and 90 miners would read the
     requirements for sampling, including the time they are
     required to, the sampling methods to be used, the number of
     samples to be taken, location, how abatement samples are to
     be taken, when, how.
               If this new one comes in, a policy won't do, a
     discussion of a policy.  They don't have no teeth.  You
     can't enforce a policy.  That's our opinion.  Miners want to
     know the dust level that they're breathing now.  That is one
     of the reasons that we need more sampling.  Six samplings
     won't do, compliance testing on six production shifts out of
     600 shifts a year or more that we work.  We work seven days
     a week, holidays.  That's mining today.  That's what they do
     at our mines.
               I think we need to go back to the advisory
     committee rule and look that over again myself, but just in
     the past year the people that I've worked with in the past
     three mines, we have lost four people to black lung disease. 
     It's hard to just see them leave like that, some of them in
     their late fifties, early sixties.  One of them we lost just
     yesterday.  I got a call on the phone through black lung
     disease.
               We need to wake up on this about the way we treat
     Part 90 miners.  I know to up the dust standard on them,
     that won't get it in my book.  You're talking about an
     average.  The reason you don't get a citation on it is when
     you hang the pump on them they'll move them to a less dusty
     area.  I know that's what you're going to do is take dust
     samples.
               As late as three weeks ago we run a Part 90 miner. 
     They sent him to the wrong place, and then they sent a man
     down there to move him to a belt header where it had been
     sampled to get a lower dust average.  They put him on the
     belt line shoveling.  The average would have been high, but
     it just so happened they made a mistake and sent him to the
     wrong place.  This kind of manipulation is going on.
               I know everybody is talking about more sampling
     and more sampling.  The reason we need more sampling, just
     like the wall.  We went down, and it took an hour and a half
     to get things right to run it.  They said well, we're
     working on the spray.  We're doing this.  We're doing that. 
     They won't run until it's right.  More sampling?  They'll be
     right more often.  Better running samples?  They'll just run
     them like they want to.
               As far as running those pumps a full shift, our
     shift is nine and a half hours on the wall, sometimes ten.
     That's what we need to run.  We need to run a full shift,
     not six and a half hours.  That's what we need as far as
     running those pumps.  Sampling on that?  Yes, they can
     manipulate it because they'll hang the pumps on these
     people.  They know where they're going.  It may take an hour
     to get there.  By that time they'll have everything
     corrected and ready.
               Bimonthly testing?  That won't do.  That would
     just give them more time to run the way they're going to
     run.  We've got plenty of dust on the wall.
               I had a couple pages of stuff here, but it's been
     beat to death.  Airstream helmets.  Everything has been beat
     to death.  Maybe somebody got the point across that we need
     to go back to the advisory board on the committee rules.
               That's all I got.
               MR. NICHOLS:  Okay.  Thanks.
               (Applause.)
               MR. NICHOLS:  Mike Nelson?
               MR. NELSON:  My name is Mike Nelson.  I work out
     of District 20, Local 1867, construction.  I want to touch
     base on construction.
               Not putting the miners down, I think what they're
     talking about is good, but I've got to look at our problem. 
     The construction workers local, all of the construction
     workers in the coal mine fields, have no laws at all.  We
     don't have nothing to protect us on our dust.  In the shaft
     and the slope work that we do, we're breathing 99 percent
     rock dust, and that's from what I understand is far yonder
     worse than any coal dust could ever be.
               I mean, it's just we sit down there drinking water
     all day long.  There's no way for ventilation to come down
     and right straight back up.  You get so deep it rolls.  The
     dust rolls.  I mean, it don't get out fast enough.  We're
     down there in it eight hours a day, five days a week.
               I would appreciate it if and when you do go back
     to the drawing board, consider doing a little something for
     us.  I mean, when we have problems out there in the shaft
     and slope work we have to write like safeguards, you know,
     just because we don't have any laws.  We don't have nothing
     to protect us.
               I want to say thanks to UMWA District 20 and our
     district rep, Larry Pasquale, because of all the help that
     they've gave us writing these safeguards.  We have had a
     little help due to them, and I would just appreciate it if
     you all would see fit to try to help us a little bit.
               To go back to like, for example, I think it was in
     May MSHA did -- I've been working a shaft and slope work for
     seven years.  I seen MSHA take a dust test for the first
     time in May of this year.  In June, the company come in,
     brought an independent, strapped it on me, the dust monitor,
     sent me in the hole.  The foreman knew or our supervisor
     knew that day that the shift before had shot through a coal
     seam.  Okay.  No way to wet that down.
               I don't care how much water you put on top of coal
     dust.  It will sit there.  You get down under it, and you're
     getting nothing but dust.  That's all you're doing.  You
     pick the water up and the dust.  That's all.  You know, it's
     really rough on us.  He got a bad reading on that dust test
     there.
               What did he do?  He sent that independent back two
     weeks later to take another one.  Lo and behold, that one we
     go down and we load and shoot.  Everything is wet down there
     then.  No dust.  For five hours, that dust monitor drawed
     clean air from the time we started that morning to the time
     I went back down on the muck cycle and stated mucking.  We
     mucked three hours and got a dust sample for three hours. 
     He takes that dust sample and runs with it.  I ain't seen
     nobody since.
               I'm telling you, if he's using that, that second
     sample, he's doing us dog wrong.  Like I say, I appreciate
     any help that you all can do to write us a few laws to help
     us out in our dust problem.  I appreciate that.
               That's all I got.
               MR. NICHOLS:  Okay.  Thanks.
               (Applause.)
               MR. NICHOLS:  Mike was the fortieth person that
     presented comments, and it's 7:00.  We still have an
     additional 31.
               The next 25 I believe are UMW presenters.  Do you
     want to take a break and go on longer, or do you want to
     adjourn and pick up at 8:30 in the morning?
               ALL:  Adjourn.
               MR. NICHOLS:  In the morning?  Okay.  The notice
     said 8:30.  Does anybody want to start earlier than 8:30? 
     The notice said 8:30.  Let's stick with that.
               MALE VOICE:  8:00?
               MR. NICHOLS:  8:00?  8:00.
               (Whereupon, at 7:00 p.m. the hearing in the
     above-entitled matter was adjourned, to reconvene at
     8:00 a.m. on Friday, August 11, 2000.)
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                             REPORTER'S CERTIFICATE
     
     DOCKET NO.:    --
     CASE TITLE:    Public Hearing - MSHA
     HEARING DATE:  August 10, 2000
     LOCATION:      Prestonsburg, Kentucky
     
           I hereby certify that the proceedings and evidence are
     contained fully and accurately on the tapes and notes
     reported by me at the hearing in the above case before the
     United States Department of Labor.
     
     
                                   Date:  August 10, 2000
     
                                    Debra Anderson              
                                   Official Reporter
                                   Heritage Reporting Corporation
                                   Suite 600
                                   1220 L Street, N. W.
                                   Washington, D. C.  20005-4018