INFORMAL PUBLIC HEARINGS FOR THE PROPOSED RULE

ON OCCUPATIONAL EXPOSURE TO

RESPIRABLE CRYSTALLINE SILICA

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UNITED STATES DEPARTMENT OF LABOR

OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION 

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March 21, 2014

9:30 a.m.

Frances Perkins Building Auditorium

200 Constitution Avenue, N.W.

Washington, D.C. 20210

	

BEFORE: 	DANIEL F. SOLOMON

	   	Administrative Law Judge 

DEPARTMENT OF LABOR (DOL):

KRISTEN LINDBERG

Attorney, Office of the Solicitor 

ALLISON KRAMER

Attorney, Office of the Solicitor

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA):

WILLIAM PERRY

Acting Director, Directorate of Standards and Guidance

JOSEPH COBLE, Sc.D., CIH

Director, Office of Technological Feasibility

ANNETTE IANNUCCI

Health Scientist, Office of Chemical Hazards 

- Non-Metals

TIFFANY DeFOE

Office of Chemical Hazards - Metals

ROBERT BLICKSILVER

Office of Regulatory Analysis - Health

DAVID O'CONNOR

Director, Office of Chemical Hazards - Non-Metals

ROBERT BURT

Acting Deputy Director, Directorate of Standards and Guidance	

 

AFL-CIO:

PEG SEMINARIO

Safety and Health Director, AFL-CIO

FRANKLIN MIRER, Ph.D., CIH

Professor, Environmental and Occupational Health

CUNY School of Public Health

RUTH RUTTENBERG, Ph.D.

President, Ruth Ruttenberg and Associates

AMERICAN INDUSTRIAL HYGIENE ASSOCIATION (AIHA):

DANIEL ANNA, Ph.D., CIH, CSP

Vice President

AMERICAN SOCIETY OF SAFETY ENGINEERS (ASSE):

ADELE ABRAMS, CMSP

Attorney, Law Office of Adele L. Abrams, PC

SMALL BUSINESS ADMINISTRATION (SBA):

BRUCE LUNDEGREN

Assistant Chief Counsel for Advocacy

Office of Advocacy

NATIONAL FEDERATION OF INDEPENDENT BUSINESS (NFIB):

DANIEL BOSCH

Manager, Regulatory Policy

U.S. CHAMBER OF COMMERCE:

HENRY CHAJET

Attorney, Jackson Lewis

GREG SIRIANNI, M.S., CIH

Adjunct Professor, University of New Haven

FATEN SABRY, Ph.D.

Senior Vice President, NERA Economic Consulting 

RONALD BIRD, Ph.D.

Senior Regulatory Analyst

OTHER PARTICIPANTS:

CHRIS TRAHAN

Building and Construction Trades Department, AFL-CIO

ELIZABETH NADEAU

Attorney, International Union of Operating Engineers 

BILL KOJOLA

National Council for Occupational Safety and Health

DARIUS D. SIVIN, Ph.D.

Health and Safety Department, United Auto Workers

SCOTT SCHNEIDER, CIH

Director of Occupational Safety and Health

Laborers' Health and Safety Fund of North America

TRESSI CORDARO

Attorney, Jackson Lewis

MARC FREEDMAN

Director, Labor Law Policy, U.S. Chamber of Commerce

MATTHEW SHUDTZ

Senior Policy Analyst, Center for Progressive Reform

DANIEL GLUCKSMAN

International Safety Equipment Association

FRANK HEARL

Chief of Staff, NIOSH

OTHER PARTICIPANTS (cont.):

ALAN ECHT

Industrial Hygienist, Division of Applied Research and Technology, NIOSH

LAWRENCE HALPRIN 

Attorney, Keller and Heckman, LLP

INDEX

										PAGE

		

INTRODUCTION

Judge Daniel F. Solomon		  				   PAGEREF Welcome \h  914 

AFL-CIO 

	

	Peg Seminario						  	   PAGEREF Seminario \h  917 

	Franklin Mirer, Ph.D.				    	   PAGEREF Mirer \h  933 

	Ruth Ruttenberg, Ph.D.				   	   PAGEREF Ruttenberg \h  949 

	Questions							 	   PAGEREF Aquestions \h  968 

AMERICAN INDUSTRIAL HYGIENE ASSOCIATION (AIHA)

and AMERICAN SOCIETY OF SAFETY ENGINEERS (ASSE)

	AIHA - Daniel Anna, Ph.D., CIH, CSP	   	  PAGEREF Anna \h  1025 

	ASSE - Adele Abrams, CMSP		   		  PAGEREF Abrams \h  1032 	

	Questions								  PAGEREF BQuestions \h  1038 

	

SMALL BUSINESS ADMINISTRATION (SBA)

			

	Bruce Lundegren					       PAGEREF Lundegren \h  1057 

	Questions								  PAGEREF Cquestions \h  1067 

					

NATIONAL FEDERATION OF INDEPENDENT BUSINESS	

(NFIB)

	Daniel Bosch						  	  PAGEREF Bosch \h  1073 

	Questions							    	  PAGEREF Dquestion \h  1082 

INDEX

										PAGE

U.S. CHAMBER OF COMMERCE

	Greg Sirianni, M.S., CIH				  	  PAGEREF Sirianni \h  1090 

	Faten Sabry, Ph.D.					 	  PAGEREF Sabry \h  1105 

	Ronald Bird, Ph.D.					 	  PAGEREF Bird \h  1113 

	Henry Chajet						  	  PAGEREF Chajet \h  1130 

	Questions								  PAGEREF Equestions \h  1144 

ADJOURNMENT							  	  PAGEREF Adjourn \h  1207 

EXHIBITS

EXHIBITS		DESCRIPTION				 	PAGE 

Exhibit 28	Zenz article			    	 	   PAGEREF Exhibit28 \h  914     

Exhibit 29	Dr. Mirer's PowerPoint			   PAGEREF Exhibit29 \h  999 

Exhibit 30 	Ms. Abrams' testimony			  PAGEREF Ex30and31 \h  1055 

Exhibit 31	Dr. Anna's testimony			  PAGEREF Ex30and31 \h  1055 

Exhibit 32	Mr. Lundegren's statement		  PAGEREF Ex32 \h  1066 

Exhibit 33	Mr. Bosch's comments			  PAGEREF Ex33 \h  1081 

Exhibit 34	NFIB Executive Summary			  PAGEREF Ex34 \h  1081   

			  	 

Exhibit 35	Dr. Sabry's PowerPoint			  PAGEREF Ex35and36 \h  1143 

Exhibit 36	Mr. Chajet's PowerPoint			  PAGEREF Ex35and36 \h  1143     

Exhibit 37 	Reserved - photo of air helmet 	  PAGEREF Exhibit37 \h  1144


P R O C E E D I N G S

(9:30 a.m.)

		JUDGE SOLOMON:  Okay.  We're back on the record.  I'm Daniel Solomon. 
I'm an administrative law judge with the United States Department of
Labor, and my address is 800 K Street, Northwest, 4th Floor, Washington,
D.C.  

		Ms. Lindberg, do you want to enter your appearance again for the
record?

		MS. LINDBERG:  Sure.  My name is Kristen Lindberg.  I'm an attorney
with the Office of the Solicitor here at the Department of Labor. 

		If you don't mind, Judge, I'd like to offer one exhibit to the record.
 This is a submission sent in by Dr. James Cone, who testified
yesterday.  It's a publication entitled, "Analysis of Ventilation in
Older Workers in Foundry Machine Shops and Office."  The author is Carl
Zenz, Z-e-n-z, et al.  And if you don't mind, I'm going to mark this as
Exhibit Number 28.

		JUDGE SOLOMON:  Okay.  Without objection, it's entered into the
record. 

(Whereupon, the document referred to as Hearing Exhibit 28 was marked
and received in evidence.)

 		JUDGE SOLOMON:  There were a couple of exhibits that have not been
offered, and I don't know exactly how we're going to handle that.  So
the record is left open for a couple of exhibits.  

		Okay, so the AFL-CIO presentation is probably going to take till about
11:05, and then we will have questioning after that.  

		So who's going to start?  So just to make sure that it's in the
record, would you introduce everybody, please?

		MS. SEMINARIO:  I will do that.  

		Good morning.  My name is Peg Seminario.  I'm Director of Safety and
Health for the AFL-CIO, a position I've held since 1990.  With me today
is Dr. Franklin Mirer and Dr. Ruth Ruttenberg.  

		Dr. Mirer is a toxicologist and a certified industrial hygienist.  He
is currently a professor of environmental and occupational health at the
CUNY School of Public Health, where he has been employed since 2006. 
His main academic projects are exposure assessment, risk assessment, and
risk assessment policy as applied to regulation, emphasizing the hazards
in the occupational environment.  And prior to joining the faculty at
CUNY, Dr. Mirer served on the UAW staff as an industrial hygienist since
1975, and Director of the Health and Safety Department at the UAW from
1981 until his retirement in 2006. 

		Dr. Mirer has participated in the many OSHA rulemaking proceedings as
well as many authoritative professional advisory bodies related to risk
assessment.  And with regard to silica, his specific experience includes
serving on the NTP Board of Scientific Counselors review, which
recommended the listing of crystalline silica as known to be a human
carcinogen and extensive observation of the health effects and controls
and exposure controls in foundries.  

		Dr. Ruth Ruttenberg, on my right, is President of Ruth Ruttenberg and
Associates, a consulting firm with a major focus on economic issues
related to regulation.  Over the past 40 years, Dr. Ruttenberg has
participated in numerous OSHA rulemakings on behalf of the AFL-CIO and
other labor organizations, including the rulemakings on noise, coke oven
emissions, lead and hexavalent chromium.  She has conducted
retrospective evaluations on behalf of OSHA, the Office of Technology
Assessment, and NIEHS on OSHA standards on vinyl chloride, cotton dust,
grain handling, ethylene oxide lockout/tagout, and benzene.  Dr.
Ruttenberg is appearing today to provide testimony on OSHA's preliminary
economic analysis on the proposed silica standard.  

		I will present my testimony first, followed by Dr. Mirer, and then Dr.
Ruttenberg.

		Good morning.  The AFL-CIO is a federation of 56 national unions
representing 12½ million working people in this country.  We welcome
the opportunity to present our views on OSHA's proposed silica rule on
occupational exposure to crystalline silica.  Our written comments were
submitted to the docket earlier, and this morning I will summarize that
statement with a focus on those areas where the AFL-CIO believes the
standard should be strengthened to reduce the risk of disease from
silica exposure. 

		First, let me say that the AFL-CIO strongly supports OSHA's proposed
respirable silica standard.  This proposed rule is long overdue.  The
proposal will significantly reduce workers' exposure to deadly silica
dust and prevent thousands of deaths and diseases a year.  We believe
the proposal is based on extensive scientific medical evidence and
incorporates well-established proven measures and practices that, when
implemented, will prevent hundreds of deaths each year and thousands of
diseases of silica-related disease.

		First, respirable silica is a serious workplace hazard.  It has been
well recognized that it has, you know, very serious lung damaging
effects and that has been recognized for centuries.  In recent decades
it has been confirmed that, in addition to silicosis, exposure to this
hazard causes other lung diseases, including lung cancer, kidney disease
and other toxic effects.  Millions of workers in a wide range of
industries and occupations are exposed to the deadly hazard, including
workers in construction, foundry operations, shipyards, glassmaking, and
dental laboratories.  Workers in many of these industries are
represented by AFL-CIO- affiliated unions, who will also be appearing at
these hearings and will speak to the silica exposures faced by their
members, the impacts of the diseases caused by the exposures, and how
these exposures can and must be controlled.

		The current OSHA standards to limit workplace exposure to respirable
silica are woefully out of date, adopted more than four decades ago
based on the science and evidence that were available at that time. 
These standards allow approximately 100 µg/m3 of exposure in general
industry, and between 250 to 500 µg/m3 in construction and maritime. 
The construction standard is so out of date that the measurement
technology that the standard is based on no longer even exists.

		I think it's important to point out that these standards only set a
permissible exposure limit.  There are no requirements for exposure
monitoring, no requirements for medical exam or job-specific training on
silica hazards and control measures.  Since these standards were adopted
in the early '70s, evidence on the adverse health effects of silica has
mounted, and it has since been determined that silica also is a known
human carcinogen as well as causing a range of other effects.

		And in response to this clear and growing evidence that exposure to
crystalline silica poses a serious health risk, NIOSH has recommended
that the standard be reduced, the exposure limits be reduced to 50
µg/m3.  And as importantly, authorities in other countries and
jurisdictions have moved to strengthen their standards and reduce
permissible exposure limits to workers.  Japan, Italy, and the Canadian
provinces of Alberta, Nova Scotia, and Saskatchewan have all set
standards reducing legal permissible exposure limits to 25 µg/m3.  It
is time for the United States to take action to protect workers from
this deadly workplace hazard.

		As has been noted here several times in these hearings, that the
proposed silica standard has been in process for a long time.  It is
overdue.  The delays in this rulemaking have cost thousands of workers
their lives.  

		Silica was one of the first hazards that was addressed by the Agency
after the passage of the OSHA Act.  In 1974, OSHA issued an advanced
Notice of Proposed Rulemaking response to NIOSH recommendations.  In my
files I found out that in the late 1970s OSHA developed a draft rule to
control silica exposures in abrasive blasting, and I think I still have
a copy of that somewhere.  But neither of these rulemaking efforts led
to an updated final rules.  And finally 17 years ago, in 1997, following
an enhanced silica enforcement outreach program by OSHA, NIOSH, and
MSHA, silica was again placed on OSHA's regulatory agenda and the
present rulemaking began.  But the development of the rule was slow and
stalled several times, largely for political reasons, in response to
industry objections to OSHA's effort to strengthen the standard.

		And the most recent delay in the development of this rule came after
the draft proposed rule was submitted to OMB for review under Executive
Order 12866 in February of 2011, where it remained under review for more
than 2½ years, despite the requirement under the executive order that
the review be completed within 90 days.  But finally, in August 2013,
the draft rule was released and then finally published in the Federal
Register as a proposal, September 12th, 2013.  

		The AFL-CIO welcomed the release and the issuance of the proposed
rule, but we were dismayed to discover that during the OMB review, the
provisions on medical surveillance were weakened, reducing both the
number of workers covered by the medical surveillance provisions and the
frequency exams.

		The delays in the rulemaking have allowed workers to continue to be
exposed to high levels of silica that have cost workers their lives and
their health.  Just looking at OSHA's current risk assessment with the
estimate that the standard when in place will prevent nearly 700 silica
deaths each year and 1600 cases of silica-related disease.  What we see
is that since 1997 when OSHA began this present rulemaking, an estimated
11,600 workers have died and 27,000 workers have become ill due to
silica exposures that could have and should have been prevented, and
every day that a new standard is delayed, workers will continue to be at
increased risk of death and disease.  

		I would now like to turn to the standard that has been proposed, and
my comments this morning will focus on the proposed standard for general
industry and how the rule could and should be strengthened.  The
Building and Construction Trades Department will be testifying next
week, and their testimony will address the proposed construction
standard.  

		The first point I would like to make is it is clear from the available
evidence and the risk assessment that silica exposures at the existing
general industry standard of 100 µg/m3 poses a significant risk of harm
to workers.  The risk estimates have been, you know, set forth by OSHA
and I think everyone agrees they are very, very high.  It is a very high
level of risk, particularly compared to other substances to which
workers have been exposed that have been regulated by OSHA.

		And while I'm focusing on the general industry's proposal here, I
think it is important to keep in mind, particularly with those who have
said that the standard does not need to be improved, that the
construction standard allows exposures that are two and a half to five
times those allowed in general industry.  So the risks that are posed to
those workers, who are the greatest numbers of workers exposed, is much,
much greater.

		And so the risk of death from silica exposures that are permitted
under the current standard are clearly significant.  They're well in
excess of the benchmark 1 in 1,000 excess risk that OSHA has used as a
benchmark in other health standards.  And even at the proposed
permissible exposure limit of 50, workers will still face a significant
risk of death from silica exposure.  And, again, those risks that OSHA
has estimated are very high, particularly compared to other substances
that have been regulated by the Agency.  And OSHA itself has
acknowledged that the risk posed to workers at the proposed 50 µg PEL
is significant in that this limit has been proposed due to feasibility
constraints.  Looking at OSHA's risk assessment, it indicates a further
reduction in the PEL to 25 would significantly reduce these risks.

		The AFL-CIO believes that given the high levels of risk that are posed
to workers at the proposed PEL, it is most important that OSHA carefully
review the full record when the rulemaking is completed to determine if
the evidence supports the technological feasibility of a lower PEL and,
if so, include a stricter PEL in the final rule.  At the same time,
given the high level of risk that remains to workers exposed at the PEL,
it is also important for OSHA to consider how the other provisions of
the standard can be strengthened and improved to ensure better control
of silica exposures to further protect and reduce the risk of exposed
workers.  And in that regard, AFL-CIO urges OSHA to strengthen the
general industry standard in the following areas:

		Regulated areas first.  In areas where exposures exceed the PEL, the
proposed standard requires that employers establish a regulated area or
implement a written access plan to limit the number of workers exposed
to silica.  In reviewing the existing body of regulation, I believe this
is the first time in its health standards that OSHA has provided this
option of establishing an actual area that is demarcated or a procedure
that will limit access.  And we are concerned that the written access
control option will not adequately protect workers and limit access to
high exposure areas and think it will be very difficult to enforce.  We
recommend that OSHA eliminate the option of establishing a written
access control plan and limit this provision to regulated areas only.

		The exposure control plan.  The proposed standards to do not include a
requirement for an exposure control plan.  This is in direct contrast to
almost all other OSHA health standards which require a written
compliance plan or exposure control plan.  In looking again at the body
of regulations, my review found that, except for the 13 carcinogens,
which don't have a PEL, every other health standard issued has included
a requirement for some kind of written control plan.

		OSHA hasn't provided any explanation for why it decided not to include
such a requirement for a written compliance plan or exposure control
plan in the silica standard.  And, again, such plans are really
important at the workplace for employers and workers looking at the
particular exposures and coming up with a plan not only to control them
but to keep those exposures under control.  And so we think this is a
very important element of past rules and should be included in the
current standard.

		On respiratory protection, the proposed standard refers to 1910.134,
the general standard on respiratory protection.  There isn't any
provision in 1910.134 or in the silica rule that allows an employee to
request or choose respiratory protection that provides a higher level of
protection.  This has been included in other health standards, including
asbestos and cadmium, and we urge OSHA to include such a provision in
the final rule.  

		Turning to medical surveillance, as stated, the proposed standard
includes requirements for medical surveillance.  Those are triggered at
the PEL of 50.  This is the first time that we are aware of that where
OSHA has had an action level that action level has not also triggered
medical surveillance.  As stated before, we were quite concerned when we
saw the draft standard as it went in to OMB and then emerged from OMB,
in that the standard medical surveillance provisions were changed, and
one of the ways they were changed was to change the trigger from the
action level up to the PEL and with that eliminating large numbers of
workers from exposure.

		And, again, it's particularly troubling that this change was made to
eliminate workers who OSHA has acknowledged are at significant risk of
harm, and in other standards the practice has been that where OSHA can
implement additional controls to protect workers at risk, they do so. 
That hasn't been done here.  And so we would urge OSHA to look again at
this issue and to set a standard where the medical surveillance in
general industry is triggered at the action level.  

		There's a requirement for exposure data.  The exposures will be known
in those sectors.  There's no reason not to cover those workers by
medical surveillance.

		Also, in a large number of OSHA rules, there is a requirement that
medical surveillance also be triggered when a worker reports signs or
symptoms of disease.  Again, that is missing from this rule, and I think
it's critical that the Agency include this kind of provision so if a
worker is demonstrating and coming forward with signs and symptoms of
disease, that they can enter into the medical surveillance program as is
provided by other rules.

		In the area of the physician's written opinion and medical
confidentiality, this is an area that has caused us great concern, as
well as the unions, and you'll hear more about this from the unions as
they testify.  And we are particularly concerned that the standard
allows workers' private medical information to be released to the
employer and that this will put workers at risk of being discriminated
against due to their medical condition.  And specifically, the standard
requires the medical provider to provide the employer with a written
opinion that includes a description of the employee's health condition
as it relates to silica, including the healthcare provider's opinion as
to whether they have detected any medical condition which would place
the employee at increased risk of exposure and recommended limitations
and also on limitations regarding respirators.  

		And while the standard doesn't explicitly list medical test related to
silica disease and specific diagnoses as part of what can be released,
there isn't any prohibition on the release of this information.  And,
again, looking at other rules, some of the earlier OSHA standards
actually require the healthcare provider to provide the results of
specific medical tests directly to the employer.  

		And we note that since this approach has been used by OSHA, which as
far as I can tell goes back 40 years and has never been changed, there
had been a lot of developments in the area of medical privacy and
confidentiality which, quite frankly, have not been reflected in OSHA
rules.  And looking at the guidance that is provided by ACOEM, again it
is totally out of sync with the guidance that is provided by that
professional organization.  And, again, there's great concern that
employers will use the information to retaliate against workers or
blacklist them from employment in an effort to reduce their obligations
under the standard.

		So we think this is a prime opportunity, and OSHA should definitely
look at this area and in this standard bring its medical surveillance
provisions up to date and reflect current confidentiality practices. 
And we recommend that OSHA follow the approach that's in the black lung
regulations of MSHA, its sister agency, and that the final standard
require that the written opinion go directly to the employee, as is the
case in most medical practice, and then the employee can decide what
information is released to the employer, and that is the only
information that should be released.

		And we urge OSHA to look at including a provision in the final rule
that would explicitly prohibit the employer from asking for this
information from the healthcare provider and a prohibition against the
employer for taking any action, adverse action against an employee based
on the employee's participation in the medical surveillance program or
the results of a medical exam.

		The area of medical removal protection, in many of the OSHA health
standards, OSHA has included a provision on MRP, and the reason for
that, the history on that is that MRP is a provision that is necessary
to encourage workers to participate in medical surveillance.  OSHA's
rationale here is that since these conditions for silica are permanent
and not temporary, that it is not appropriate.  We don't agree.  There
are many OSHA standards that include MRP where there are protections for
permanent health conditions, and I could go through and list them.  It's
in my written statement.  

		And, again, if the purpose of MRP is primarily as a first order to
encourage participation in medical exams, it is critically important for
workers to participate in medical surveillance for silica.  And so, we
think, absent these protections against retaliation and also the failure
to provide economic protection to workers, they will not participate in
medical surveillance, and so we urge OSHA to include MRP in the final
general industry standard.

		One last area I just want to touch on, and that is in the area of
training and education.  This standard builds on the hazard
communication standard with some additional requirements for employers
to provide employees training about hazards and control measures for
occupational exposure to silica and requirements on control procedures
and medical surveillance.  

		And HazCom is a very important rule which we have strongly supported,
but we think that the provisions in this rule, given the exposures to
silica, the hazards that are posed, needs to be enhanced.  And, again,
looking at other standards as the model for what OSHA has done in this
area, the standard must be clear, that there needs to be job-specific
training on control measures, not only what they are, but how they
should be used and how they should be maintained, because the
maintenance of those controls is really important for their
effectiveness.  And, in addition, this standard is lacking a requirement
that when workers are transferred to a job where they may be exposed,
conditions changed, it's not clear that training in those instances is
actually required and what time frame it would be required.

		And, lastly, there isn't any ongoing training.  This looks like it's a
one-time requirement.  And so, again, HazCom doesn't have any
obligations on an ongoing basis.  Most of the other comprehensive health
standards dealing with significant health risk like silica include
provisions for regular and follow-up training, and we would encourage
OSHA to do the same.

		Related to training and employee information, I looked hard but
couldn't find in the standard any requirement for the employer to
actually post the workplace about silica hazards and exposures.  In
virtually every other standard there's very clear requirements for the
kind of signage, the text of that signage providing people, the workers
in the area who are exposed, warnings.  It seems like a very
straightforward issue, particularly in fixed workplaces, And, again,
this is not required under hazard communication.  It is something that
should be added to the final standard so that workers have ready access
to information that silica is present and there is a significant hazard.

		In summary, the AFL-CIO strongly supports OSHA's proposed respirable
silica standard.  This critical protection is long underdue -- overdue
and it will significantly reduce workers' exposure to the deadly silica
dust and prevent thousands of deaths and diseases a year.  As I have
stated, we believe a number of the standards' provisions need to be
strengthened, but I would emphasize, most importantly, the AFL-CIO urges
OSHA to move expeditiously without further delay to complete this
rulemaking and issue a final silica standard to protect workers from
unnecessary disease and death.

		Thank you.

		I now turn to Dr. Mirer.

		DR. MIRER:  Okay.  Thank you.

		In the course of my testimony I will refer back to some of the
experiences and qualifications which support the statements I'm going to
make.  And so, I've been to quite a few OSHA rulemaking -- let me just
do this here -- quite a few OSHA rulemaking hearings, and I never had
a -- now I'm a professor, I have to have a PowerPoint.  I have to have
learning objectives.  And these are the learning objectives.

		MS. LINDBERG:  Will there be a test?

		DR. MIRER:  We can try that later.  That's -- but, see, if you guys
fail the test, then I get fired because that's the way it works with
teachers.  If your students don't pass, you get fired.

		Anyway, the main points of this are silica exposure at prevailing
levels at the current PEL of 100 µg, at the proposed PEL of 50 µg,
subjects workers to a significant risk of lung cancer, COPD, silicosis,
and other health conditions which have been emerging in recent years. 
These conclusions are based on multiple studies of workers.  And the
risk assessment principle is that if something turns up in an
epidemiologic study, it's a major, major problem.  Not everything is
found in epidemiology, but if it is found, it's a major problem.  

		OSHA's risk assessment procedures supporting this proposal were
advanced and strongly support the proposed rule.  This is a very high
quality document.  

		Third, it's feasible to conduct air sampling at exposure levels
equivalent and below the proposed action level of 25 µg/m3.  It's a
straightforward point.  We've heard a lot of chaff about this, but it's
really pretty straightforward.  It's necessary to maintain an action
level trigger below the PEL in order to prevent workers from being
exposed above the PEL.  This is a straightforward statistical issue.  

		I have high confidence in OSHA's assessment of technological
feasibility of the proposed PEL in the impacted general industry
segments -- I'll address that in terms of foundry later in my
testimony -- and I conclude with high confidence that it's feasible to
control exposures in many operations in many industries to less than 25
µg/m3, and moderate confidence that control to 25 µg can be achieved
in well-run facilities in the general run of facilities.  

		So let's attend to some of the specific issues:

		Risk assessment.  So OSHA did follow the latest recommendations in
risk assessment.  I was a co-author of this 1983 publication by the NAS,
as was Kenny Crump, who was here yesterday and one of OSHA's peer
reviewers.  This was said by NAS to be their best selling ever report,
and so I take some pride in that.  

		And we defined the four canonical stages of risk assessment:  hazard
identification, dose-response assessment, and the like.  OSHA followed
that and also followed the recommendations of the newest iteration of
this, Science and Decisions, which says that for nonmalignant endpoints,
non-cancer endpoints, that numerical extrapolation of risk rates should
be done on the same basis that it's done for occupational cancer so they
compare risks and decide what the protection levels ought to be.  And
actually it's a very strong facet of this proposal that OSHA has gone
ahead and done that, and actually adopting recommendations made in the
academic setting.

		So talking a little bit about looking back down memory lane about
silica.  When I was starting out in the '70s, silica was a pure -- the
effect was a pure restrictive lung disease diagnosed on x-ray.  And as
time went by, other problems emerged.  A NIOSH criteria document in 1974
expanded concern to lung function to obstruction as well as restriction,
and that was part of the basis of reducing the proposed -- the REL to
50 µg/m3.  

		This was the seminal conference which Dr. Goldsmith organized.  In
1984, compiling evidence for the existence of lung cancer from silica
exposure, I presented at that conference this UAW study we'll talk about
a little longer later.  

		IARC has classified exposure to both foundry environment and silica,
evolved over the years.  Foundry has been in front of silica over this
time, but there have been some comments about bias confounding problems
with the epidemiology studies.  IARC has active practicing scientists
review -- I've been on two IARC monographs, but not these monographs,
monograph working groups.  It's been dealt with.  It's been dealt with
over a week of intense discussion between the scientists who are on
these committees, as to whether there's chance bias in confounding which
might have led to these results, and by 1987 for foundries and 1997 for
silica, and it's been decided and reaffirmed.

		So people who don't believe it are deniers, pure and simple.  This is
the scientific consensus.  I was on the NTP Board of Scientific
Counselors when we reviewed the same data.  Known to be a human
carcinogen.  Once you know it's a human carcinogen from studies in
humans, you can calculate risk rates.  It's as simple as that.  

		And let's see where we are here.  Let me go  -- oh, one other issue. 
Biological plausibility is an important part of interpreting
epidemiology, and the biological plausibility, among other things, is
proved by laboratory bioassays.  Silica was bioassayed three times, or
four by accident.  It was selected as the fibrogenic control for things
that were feared to be carcinogenic, and it turned out that the
carcinogenicity of these agents was due to the silica.  

		These studies were not as sensitive as if they had been conducted
according to NTP protocols, but again, they are clear evidence and they
actually showed silica -- the results for silica emerged before the
actual positive bioassays for tobacco smoke were published, and silica
is way more potent, way more potent than tobacco smoke, has the effect
at a lower exposure level, much lower exposure level.

		So let's go on here.  This is the first study was Mount St. Helens
ash, and the second study was oil shale dust, and so forth.  

		Finally, the collection of all this epidemiologic data, we have 10
pooled studies, 10 cohorts.  This is the basis for OSHA's risk
assessment, but it doesn't -- this is not a backroom, you know,
commissioned calculation.  These are peer-reviewed studies by major
researchers to generate these risk rates.

		Now, let's turn to what the risk rates are, and the virtue of doing
numerical extrapolation from the epidemiologic studies.  And again to
say, this is not much extrapolation.  These studies are pretty much at
exposure levels equivalent to what we have now.  So we're not
extrapolating a lot.  We're just calculating the point estimate of the
risk practically.  

		And what's important here is that -- well, how did I generate this
table?  I took OSHA's table and I subtracted silicosis risk rates from
nonmalignant -- from overall NMRD rate and to get NMRD without
silicosis.  And it's clear that if you look here at these levels
that -- no, I should be doing it up here, right?  You guys can't see
that.

		Anyway, the bulk of the mortality is coming from nonmalignant
respiratory disease other than mortality -- other than silicosis, and
the mortality, next is lung cancer, and only at the end of it comes
silicosis.  So silicosis is the tip of the iceberg.

		And if we do some arithmetic -- oh, and one other comment.  OSHA
probably would do better to settle on a central estimate of the lung
cancer risk, so you could more readily compare it.  That range of lung
cancer risk is from several other studies, different sets of studies,
and it might be better to center on a central estimate of that so that
you could compare directly lung cancer with these other endpoints.  So
that's my peer review.

		But if we look at the risks prevented, by my calculations it's --
arithmetic, 36 out of 1,000 cases would be prevented from going from the
old PEL to the 50 µg/m3, and 54 out of 1,000 deaths from going from the
old PEL to 25.  So there's definitely benefits from going to the lower
exposure level.  

		Next issue -- oh.

		MS. SEMINARIO:  That's from general industry, right?

		DR. MIRER:  What?

		MS. SEMINARIO:  That's just for the general industry?

		DR. MIRER:  That's for general industry.  I defer to our construction
colleagues for that same calculation for 250 µg.  But I was not aware
of how much exposure that standard permitted.

		Okay.  Carcinogenic potential demonstrated in 1983 by accident. 
Direct observations of cancer among workers long observed, not fully
recognized until 1997.  Slope factors could have been calculated but
were not compiled until the OSHA package just published.  Toxic
potential has been extended to COPD, kidney, and autoimmune, and even
the action level leaves behind very high risks.  

		Now, some other points, not so highfalutin, but these are CIH kinds of
points.  Air sampling is feasible at 25 µg/m3 and below for full shift
and even for part shift.  It was dealt with adequately in the OSHA
proposal.  There's been some chaff thrown at that.  Nothing can be more
complex than the methods people, laboratory people explaining what they
do.  So the original proposal was feasible.  OSHA did not take advantage
even of improvements in technology since that old method was actually
created in 1970s, which are higher flow pumps, possibly the use of
impactors rather than the cyclone.  They're much more convenient.  

		I've been told that this is not the best pump.  I got it off the
Internet.  There are better pumps than this one.  And this one goes to 4
liters and you can get pumps that go up to 12 liters, and every liter
you increase over 2 is improved sensitivity.  

		And, finally, real-time aerosol monitor combined with area samples for
silica would enable source identification, real-time results, knowing
the overexposure within minutes of when it happened rather than waiting
for the lab results to come back.  I believe CPWR has done studies using
this kind of equipment, and the final standard should permit this as an
alternative to the full shift -- you should be able to assess exposure
using this methodology.

		And we have put this into the hands of -- this technology, at the
UAW, we put it in the hands of the UAW GM air sampling technicians who
are hourly workers to map and assess metal working fluid exposures, in
particular.  And that instrument costs about the same as a noise meter,
so it's like a -- it's a bargain compared to the typical industrial
hygiene.

		At the time I prepared my testimony, I did some calculations based on
the advertised 10 µg on a filter, sensitivity of the commercial
laboratories, and since then this is new data.  They've just posted 5
µg.  SKC just posted a 5-µg sensitivity.  So the sensitivity of the
analysis is advertised to be much improved from what was used in the
OSHA assessment.

		Finally let's talk about action level, and I think this all fits
together:  action level, competent person, education and training,
respiratory protection, and continuing monitoring.  It all fits together
into a package which would be very powerful in reducing exposures, even
with whatever technology is in place now, whatever controls are in place
now.

		And so, back to the roots of the action level, the roots of the action
level are in the middle '70s, and it's essentially the conclusion
that -- everybody knows this.  All CIH-ers are supposed to know this. 
If you get an air sample according to this at above half the PEL, you
can be pretty certain that there are exposures above the PEL happening. 
So a small number of samples underestimates exposure, but the action
level is promulgated based on much less variable exposure than exists in
the workplace.

		Now, that's not a -- that's a challenge, but it's also an
opportunity, because the variation in exposure day to day, worker to
worker, is not magic random.  Things are happening to cause the excess
exposure.  If you identify what's happening on the high days and on the
high workstations, you can discover ways of abating them, and we
actually heard that from the brick people and the sand people the last
couple of days.  However, the action level should be a lower
fraction -- this might be the most radical idea -- the action level
should be at a distinctly lower fraction than one half of the PEL.  

		All right.  Foundry issues and technological feasibility.  This
extends -- how am I doing?  I'm doing okay?  

		So in my written testimony, there's some general remarks on
feasibility based on the data which OSHA has collected.  As far as I
know, this is the best evidence there is.  The data collection is the
best that's available, and I don't think anybody, except possibly the
foundry people, have presented any competing assessments of exposure
levels.  And the foundry submission says that the exposure levels are
actually lower than OSHA found some years ago, and therefore it makes
the standard even more feasible than it already looks in foundries,
which is the most difficult area.

		So back in the day -- I get a chance to showcase old work.  We
canvassed OSHA offices for UAW represented foundries for, you know,
what's your air sampling results?  So it's not a -- it's not the most
general, but it's actually pretty, pretty general assessment.  And what
we found -- there's some mistakes.  I reproduced my table when I was
young and not able -- and didn't have PowerPoint.  It said that in the
big high production foundries, 38 percent of the air samples taken by
OSHA inspectors were in compliance, and so the remainder were out of
compliance with the PEL, whereas in the small independent foundries,
less mechanized -- 

		(Tone.)

		DR. MIRER:  Is that me?

		MS. SEMINARIO:  It's your watch. 

		DR. MIRER:  Oh.  Actually the majority of the samples were in
compliance.  So this was done with the notion that are the problems in
the big plants or the small plants?  Should OSHA ignore the big plants
and go to the little ones?  The answer is no.  The answer is that
increased mechanization produces more problems.  And so that's -- but
in light of what we said here, this is not the huge overexposures that
everybody's saying happened in the bad old days.  These are, you know,
manageable levels of exposure, and in the captive foundries they were
pretty much managed.

		Going on, General Motors Danville Foundry, the first plant I went into
for the UAW, we eventually conducted a mortality study there.  People
have asked, do you know any sick workers?  We actually don't know the
names of any of these people at this time, but we found --

		(Tone.)

		DR. MIRER:  It's got to be my phone.

		MS. SEMINARIO:  No, no, it's your watch.

		JUDGE SOLOMON:  Well, just for the record, we went from Mozart to
some -- I guess that's just a signal that your time is up, right?

		MS. SEMINARIO:  But he has -- he has more time.  

		DR. MIRER:  I asked for a lot of time because I'm -- I think I'm
worth listening to.  You may not agree, but that's what the rules are.  

		So we're -- so we found, and this is an old study, 1986, although
this study made it into the IARC review of mortality in the foundry
industry and it made it, I think, into the NTP review also.  And it
would be -- if silica were carcinogenic and they weren't a carcinogenic
risk of foundry work, that would be a real problem for us in doing this
risk assessment, but it's not the case.  

		And so, we're pushing about twofold excess for -- a little less than
twofold excess for lung cancer and for respiratory disease, and by my
calculation that meant about 25 excess deaths in the foundry.  And I
believe we had maybe one -- we have check this, Darius.  I think we had
one fatality in this facility.  So that gives you an idea of the
magnitude of fatal disease, fatal burden coming from these chemical
exposures.

		But the most profound -- the thing that struck me most aside from the
excess risk was the excess risk was in the cleaning room.  Cleaning room
is exposure to silica only, not to smoke, not to formaldehyde, not to
metal fume, but it's only silica.  So at that point I was -- decided
that silica had to be a lung carcinogen on that basis, and there's a lot
of other data.

		Now, this is -- I included it because I drew this for the ILO
encyclopedia.  And it shows the foundry operations, and the most
important point from this is that pouring and furnace are operations
where there's no silica generated.  So any silica exposure you find in
these operations is coming from someplace else, and that's also the
finding in the OSHA PEA based on 30 or 40 plant inspections.  The source
of exposure is fugitive silica in the air, and silica being -- fallout
silica being re-suspended by vehicles or by compressed air.		

		So that yields this arithmetic.  These are extracted again from the
PEA.  And what do we see here?  We see that even with all of that close
to half of the samples now are below 50, the proposed PEL.  So that
almost gets you to most of the operations most of the time.  

		But cleaning is a problem.  Everybody knows it.  And so the mean
exposure in the cleaning samples was almost 200 µg, the median was 77
µg.  Median is a much better statement of the central tendency.  This
is sort of proof of the lognormal distribution.  When your average is
twice or three times what the median is, you know, you have a lognormal
distribution, which means it's being driven by breakdowns, blowouts,
upsets, special circumstances that you could go ahead and control and
bring everything down.  

		But the point I -- I wanted to make a quantitative argument here.  If
we subtract cross-contamination -- and cross-contamination is what
you're finding in furnace and pouring.  If you subtract that from
foundries generally or from cleaning room, we're getting in the range of
25 as a feasible exposure limit.  And certainly 50 µg is, I think,
proven feasible by my arithmetic here.  

		So general ventilation can be important in controlling fugitive small
particle emissions.  General ventilation is lots cheaper than local
exhaust ventilation and control.  And here is a picture taken from
OSHA's website of a cleaning room, and I think it illustrates what I was
trying to say, which is if we take this guy, this worker, he's exposed
to the dust coming from here and the dust coming from there, the
fugitive dust.  That's where -- as well as what he's generating
himself.  His duty cycle is not 100 percent.  If you isolated him from
those other operations, his exposure would go way down.  But if you look
at the whole cleaning room, the duty cycle probably is 100 percent;
they're generating dust all the time.

		So what I'm saying is there's a virtuous circle here to control; when
you control one operation, you control a lot of other operations.  And
that's the basis for my judgment that, again, high confidence 50 µg,
and moderate to high confidence that 25 µg is feasible, even in a
foundry cleaning room, which is like a big challenge.

		So that's what I got to say.  I'm not going to read my learning
objectives to you again, but I finish every lecture by repeating the
learning objectives, and hopefully this can move the discussion forward.

		DR. RUTTENBERG:  Good morning.  My name is Ruth Ruttenberg, and I am
happy to be here as part of the AFL-CIO panel providing economic
analysis in response to OSHA's preliminary economic analysis of the
proposed silica rule.  

		I've appeared before OSHA rulemaking hearings over the last 40 years
on behalf of the AFL-CIO, on behalf of CPWR and other union groups, and
my consulting firm has dealt with regulatory issues, primarily with
OSHA, but also EPA, Consumer Product Safety, Nuclear Regulatory
Commission, and other agencies over the years.  For many years I've also
been a professor at the National Labor College, and many of my teaching
responsibilities have to do with OSHA regulations.  The topic of my
Ph.D. dissertation was also on the technology forcing and the
predictability of future technology when it comes to OSHA rulemaking.

		So I applaud OSHA for proposing this rule.  It's long overdue, and all
of those who are workers exposed to silica, all of those who work on
behalf of those folks, are very pleased that this rule has been issued,
that the proposed rule has been issued.  It's heartening also to see
that OSHA has found that every aspect of the proposed rule is both
economically and technologically feasible.  I urge you to issue this
rule expeditiously, as it will save nearly 700 lives a year, almost 1600
serious illnesses a year.  And if you look at the 40 years of delay in
this rulemaking, it's literally millions of workers being exposed over
time.  And having worked with many of these folks, it's a really
disastrous result of a work experience, to go to work and end up with
silica-related disease.

		So trained as an economist, and I'm going to talk about the economics.
 I think we have to be forever mindful of why we're here, and that is
that the economic system breaks down, workers are not protected when
they are put at serious risk, and that there really is a need for the
regulatory process to intervene in the marketplace so that all the
externalities that every economist, whether they're conservatively
oriented, business oriented, progressively oriented, labor oriented,
whatever, all economists believe that externalities should be brought
into an equation whenever possible.

		The conclusions that can be drawn from my testimony are that OSHA
could reasonably require more in its proposal for no increase in cost,
or require what it proposes for less money than it currently estimates. 
Additional significant benefits beyond those identified currently by
OSHA will come to workers, employers, and taxpayers once the rule is
implemented, and these too are discussed as I proceed.

		First, a backdrop, which I have briefly mentioned, of economics and
ethics.  We all know that there is a fundamental paradigm conflict when
conventional economics and industry costs dominate the debate.  This has
been part of every OSHA rulemaking since the '70s.  The domination of
economics in health and safety workplace decisions poses a problem. 
Social regulatory policies such as occupational safety and health is in
the public domain precisely because the economic system has failed to
achieve an adequate solution to the problems of workplace hazards.  

		Built into the economic analysis that leads to management decisions
are the costs industry is likely to incur and the income that is likely
to accrue.  If industry does not pay for or pays little for a degraded
environment or for sick or injured or dead workers, these problems are
likely to be ignored.  If a business incurs no consequences for the pain
and suffering of an individual worker and his or her family, if a
business continues to have a ready supply of labor, if a business incurs
no additional cost despite increases in public expenditures for
hospitals, research and transfer payments, then all these issues remain
external to business decision making and are treated as if they are
zero.

		Businesses have been getting valuable goods for free, but when asked
to clean up or prevent the negative consequences of their actions, they
often respond as if the burden should not be theirs.  All economists,
all economists, regardless of political persuasion, in theory, agree
that externality should be incorporated into economic decision making. 
While the burden of an industry would not be high as estimated by OSHA,
the burden on silica-exposed workers and their families is
extraordinarily high.  

		In construction and shipyards, for example, at current PELs, workers
face 37 to 653 deaths per 1,000.  And as Peg mentioned, 1 per 1,000 has
generally been the threshold at which concern begins.  According to
OSHA's assessments in general industry, more than 150 out of 1,000
silica-exposed workers currently die from their exposure.  

		Based on the discussion below, costs may actually be many millions of
dollars lower and benefits billions of dollars higher than the OSHA PEA
suggests.  Curiously, as I read industry testimony talking about the
economics of this proposed rule, workers were absent and benefits were
absent.  The only thing that was in discussion, the only thing that was
mentioned at all were costs, and I find this an extremely unbalanced
view for any economist to take.

		So what are some of the examples of OSHA's estimated costs being too
high?  Since the beginning of OSHA over 40 years ago, OSHA analyses have
overestimated costs and underestimated benefits consistently.  This has
been documented in the literature and further corroborated by a number
of OSHA 610 lookback reviews, some of which I authored as a consultant
to OSHA myself.

		Methodology and analytic techniques at OSHA have improved considerably
over the years, and the results of more recent studies are far more
credible than they were previously.  But overly conservative assumptions
and evaluation of data continue to dominate economic and technological
feasibility work, and I want to just mention and highlight a few of
these.

		Number 1.  OSHA overestimates costs when it makes estimates based on
current-level technology only.  Technological improvements, both
engineering and scientific are constantly occurring, especially when
there's a pressure pending or existing regulation.  They provide a
strong incentive to find a way to comply at a lower cost.  The genius of
American industry basically is that once engineers and scientists are
given the challenge of figuring out how to solve a problem, they bring
that to bear, and these technological improvements follow through.  And
every single rulemaking -- I mean, I could go through every rule that
OSHA's been through, the technological improvements that are
consistently and predictably there.

		So these improvements are well documented following promulgation of
rules for vinyl chloride, for coke ovens, for lead, for asbestos, for
lockout/tagout, for cotton dust, for formaldehyde, for ethylene oxide,
for a host of others.  The consistent pattern is that OSHA looks at a
snapshot of what is -- of the technology that exists at the current
moment, feeling that it's not in their purview, I guess, to look into
the crystal ball, but that that crystal ball proverbially leads to
technological improvements which are cost cutting and sometimes even
productivity enhancing.

		OSHA admits that new technology, though, is likely to emerge, saying,
for example, in the PEA the costs presented here do not take into
account the likely development and dissemination of costs in using
compliance technology in response to the proposed rule.  In fact, OSHA's
already predicted what several technological and cost-saving advances
with silica might be, even though the Agency does not incorporate these
cost savings into its analysis, so that if you go to the preliminary
economic analysis, as an example, OSHA predicts that there will be an
expanded use of automated processes which would allow workers to be
isolated from the points of operation that involve silica exposure.  

		There would be further development in use of bags with valves that
seal effectively when filled, thereby preventing product leakage and
worker exposure.  There would be integration of compliant control
technology in the reduction equipment as standard equipment, and so
forth.

		And I think what's important is that probably those in specific
industries, both on the union side and on the industry, could give us
lots of these examples of where OSHA hasn't incorporated those cost
savings into its analysis, but if one were to look forward, they would
expect that those would happen.

		Another example of overestimation of costs.  Controls in a non-silica
industry may be easily adaptable to control of silica, thus lowering the
cost of compliance.  And this has happened in many, many other
rulemakings.  While OSHA does not aggressively go out and identify
technologies from non-silica industries that could be easily adapted at
low cost to control silica, its own reports -- not the PEA, but other
reports have identified some of these.  One example just being a 2009
OSHA report on rotary hammers that talks about techniques used in
asbestos control that OSHA says could be adapted to silica control as
well, but those cost savings haven't been incorporated into the
analysis, thus making OSHA's analysis more conservative and with higher
costs than would actually occur.  

		OSHA acknowledges that adaptations from hazardous substances to silica
would make compliance even more affordable and even looks at this when
discussing hydraulic fracturing. 

		Another example:  Technology will often routinely be built into
equipment after a standard, rather than added on as a retrofit.  So that
while the retrofits are more costly and those are usually the costs that
OSHA uses to estimate the cost of compliance, when incorporated into the
actual equipment, the costs are must lower.  A good example was cotton
dust with the looms that were far cleaner but they were also far faster;
with lockout/tagout, where very quickly the machinery manufacturers put
an easy process in place for locks to be secured on equipment, and the
list goes on there.

		Another example of the overestimation of cost:  There are overlaps in
the proposed silica standard with other health and safety activities,
but OSHA's cost estimates generally do not take these overlaps into
account.  Taking them into account would lower the estimated cost of
compliance with the proposed rule.  

		There are examples with respirators with -- and I could give
details -- with exposure assessment, with the assumption of no
portability of records, with the investment of ventilation technology,
and so forth.  So there really are a lot of places where as compliance
comes into place -- and we're seeing it already with ventilation
equipment, that new ventilation equipment is better able to deal with
some of the issues that would be caused by forced compliance with a
regulation, and it's already happening because the machinery
manufacturers are getting their equipment in place to be competitive.

		Another example of OSHA's overestimation of cost has to do with how it
dealt with the economic impact of small business.  And, Frank, I was
fascinated to see that the small foundries were in better compliance,
because usually it's the opposite that's argued.

		OSHA makes an assumption about negative impact on small business and
construction, even though it concluded that costs are not high relative
to profit.  Also, OSHA ignored the fact that other small businesses
would be created to respond to the rule.  

		I once did a lot of work on what I call the hazard abatement and
pollution control industry, which is a side benefit of regulation and
better air, better water, safer environments for workers, where there
literally have been thousands of small businesses created, everywhere
from safety boots to ventilation equipment.  There have been thousands
of subsidiaries of large corporations that sell equipment that not only
solve their own problems but that are profit makers for them to sell to
other companies.  These new businesses and new subsidiaries provide
compliance services, recordkeeping, training, medical services, and they
create employment, and they pay taxes, and they make positive
contributions to the overall U.S. economy.  So I don't think we should
forget those at all.

		Another example of overestimation of cost is OSHA used an inflated
size of the construction workforce and the number of construction
establishments.  This has been a really challenging issue for people on
a lot of levels of how to deal with the Great Recession.  Was the Great
Recession a blip in a typical cycle, or is it an entirely new trajectory
in which construction may not ever recover in the way it did, in which
the types of jobs and the organization of jobs and the organization of
work teams might end up being quite different.  So that using a 2006
census number of 13.1 million workers when there really are only -- are
not even 6 million construction workers now, is something that clearly
inflated the cost.  And I understand that, you know, OSHA's under a
great challenge when the economy is moving around in the way it has, but
if the paradigm is shifted, clearly those numbers need to be reworked.

		Okay, another example of overestimation of cost is the
oversimplification of turnover which inflates cost.  OSHA cites turnover
rates of 64 percent for construction and 27 percent for general
industry, and uses these in assessing the cost of medical surveillance,
training, et cetera.  But when individuals leave their jobs, it doesn't
mean that they leave their industry.  An abrasive blaster may well
continue as an abrasive blaster on another job.  A master craftsman in
drywall finishing is more likely to stay in drywall finishing than not
because of their specialized training.  Likewise, a tuckpointing or
heavy equipment operating, that the portability of training and medical
surveillance will also help avoid duplication of services.  And all
these need to be thought of as overestimates in the cost of compliance.

		Another example:  As processes and controls are upgraded, exposure
levels will go down, and these reductions may bring exposures below the
action level and thus decrease compliance costs.  

		Another example:  OSHA overestimates cost when it assumes a low level
of controls currently in place to protect exposed workers.  OSHA and its
contractor, ERG, concluded that the large majority of overexposed
workers lacked relevant controls, that overexposures occurred due to the
absence of suitable controls.  OSHA goes on then to rightly admit that
this assumption could in some cases result in an overestimate of cost
where employers merely need to upgrade or better maintain existing
controls or to improve work practices.

		Another example -- and just a few more.  I mean, one could go on and
on and on with all the places where OSHA was conservative in its
estimates and therefore the costs really are not going to be as high as
OSHA has estimated.

		An assumption of a negative impact on productivity led to an
overestimate of cost by OSHA.  This is yet another example of OSHA
erring on the side of being conservative in its cost estimates.  Despite
the fact that some who are interviewed suggested that there would be a
positive impact on productivity, OSHA's PEA assessed anywhere from a
zero to a five percent penalty in productivity loss as a result of OSHA
compliance with the proposed silica rule.

		The impact of an assumption of lost productivity can be profound, and
OSHA acknowledges this.  In its PEA, OSHA says the magnitude of the
productivity impacts can substantially change the estimate of the
overall cost increase associated with controls.  OSHA's estimate in this
preliminary analysis reflects ERG's best professional judgment, it says,
about the likely magnitude of these impacts.  Some of the estimates may
be conservative because under some scenarios for certain tasks the
productivity impacts could be significantly smaller or even positive. 
So OSHA acknowledges that the costs are probably lower but uses a higher
estimate.

		And the list goes on.  It's amazing to me that with all that
conservative estimation going on, that one can really begin to talk
about cost being underestimated, as some have suggested at these
hearings.  

		And what I really feel very, very strongly about is that OSHA's
estimated benefits are far too low.  I've recently been doing a fair
amount of work on taxpayer burden from regulation.  And whether it's
individual taxpayers or corporate taxpayers, I have pages in my written
testimony that discuss why the benefits are underestimated, and probably
the benefits are two to four times higher when you include all of the
social and economic impact of not regulating.  So that when you prevent
a worker from becoming ill, not only are you preventing that worker from
becoming ill, but you're helping the family be a healthier family.  

		I can't tell you how many hundreds and hundreds and hundreds of
children don't go to college because they have to support their families
because they have sick parents.  I mean, and that's hundreds of
thousands of dollars in lifetime earnings that those families are
losing.  I mean, OSHA doesn't come anywhere near trying to grab and
incorporate those folks into the scenario.  

		And I was fascinated by some of the prepared testimony from the
Chamber of Commerce that talks about exactly those kind of impacts on
unemployed workers when they were concerned about those unemployed
workers losing their jobs because of the regulation.  Well, you know,
for a sick worker, there are all of those things that the Chamber talks
about happening in unemployment plus all of the medical and health
related issues.  So all of that needs to be considered.

		Also, OSHA uses a very low value, if you're going to put a dollar
value on human life.  Kip Viscusi, one of the most conservative
economists around, uses twice the value that you use.  So that that
would, right there, double the benefits in terms of every life that's
saved as a result of the regulation.

		And then we have to think about healthcare costs.  Many of the people
who become ill from silica are already over 65 because of the latency
period, and well over 60 percent of every healthcare dollar of people
over 65 is paid for out of our tax money.  So that if one wanted to
reduce the cost of Medicare, this is one really good way to do it, to
prevent older people from the kind of illness that comes.  

		And there are all kinds of other third-party transfers that -- I
think it's about 43 percent of all the healthcare dollars pre-Obamacare
came out of the federal sector.  All the veterans who also go to work
and are exposed to silica get their care federally funded out of the
Veterans Administration.  There is the CHIP program, and there's the
Social Security disability, and I could go on and on costing out what
the burden is to us as taxpayers when industry allows people to get
sick.

		So through all of those examples, we need to be ever mindful of the
fact that the cost of not regulating or the benefits from the regulation
are much, much, much higher.  

		And very quickly, just in summary, OSHA's made a sound case for the
economic and technological feasibility of the standard even when
underestimating benefits and overestimating the cost.  When greater
benefits and fewer costs, as indicated throughout the testimony, occur,
OSHA could lower the PEL, tighten the exposure monitoring, have more
frequent medical surveillance, and/or provide more significant training.
 New and less expensive control technology will emerge.  The genius of
U.S. scientists and engineers always has this occur.  OSHA and its
contractors seem to measure what was methodologically easy to measure,
but what is hard to measure is just as important, and full measurement
could very likely change the decision process even further.  

		It's unclear why OSHA didn't choose a 25 µg/m PEL.  In fact, by
OSHA's own estimates there would be more than $1.1 billion increase in
benefits in 2009 dollars, with the cost estimates going from 25 to 50
rising much less, by 670 million.

		Many have died waiting for the standard.  For decades, thousands of
people each year have become sick or died from silica exposure.  More
than 500,000 workers each year are exposed to more than 100 µg of
crystalline silica now, which is 20 million people years over the last
40 years.  But in the OSHA equation, benefits outweigh costs regardless
of how you measure.  These foregone benefits are not insignificant at
OSHA's estimate of annualized net benefits of 4.6 billion.

		Decades of endangering workers has led to inordinate suffering and
dying as well as hundreds of millions of dollars of taxpayer money to
support the victims, while industry has foregone cleanup costs.  The
expected outcomes of regulation cannot possibly be understood without
reference to what would have happened in its absence.  What happened in
its absence, thousands of deaths and illnesses, millions expended by
taxpayers to help the victims and industry reaping increased profits by
not compensating society for the harm that it has caused.

		Part of the health and safety decision making in the regulatory
process historically has been industry, excuse me, crying wolf, claiming
a regulation put them into economic danger when really it did not. 
Analysis for the 21st century needs to take this historic reality into
account.  OSHA lookback studies have consistently found that the costs
are not nearly as high as OSHA and, particularly, industry say they will
be.

		Thank you, OSHA, for this proposed rule.  Please issue it quickly. 
This year another 688 workers will die, and 1,585 will become seriously
ill for not having a PEL of 50 µg.  Time is of the essence for them.

		MS. SEMINARIO:  And that concludes our testimony.

		JUDGE SOLOMON:  Thank you.  Actually, we're a little bit ahead of
time, but we estimated about 50 minutes between the questioning from the
public and from OSHA.  So how many people from the public have
questions?  Okay, we do have a number.

		All right, starting at this row right here, perhaps you can line up. 
Come forward, state your name -- you've been here before, but you have
to spell your last name.  We had some problems --

		MS. TRAHAN:  Chris Trahan, T-r-a-h-a-n, with the Building Trades.  I
wanted to ask you, Ruth, a couple of questions.  You talked a little
about retrospective studies, lookback studies.  Can you describe that a
little bit more?  Like, do you have any idea of the number or how many
retrospective or lookback studies found that OSHA underestimated costs?

		DR. RUTTENBERG:  Every single lookback study has showed that OSHA
overestimated the costs.  And, I mean, it's to be expected just because
of the methodology, that if you expect industry to operate in its best
interest, it's going to find the cheapest and most efficient ways to
comply with the regulation, and that often means technological
improvements, which by OSHA's methodology isn't included because they
don't want to get into the crystal ball game.  So when you have an
incentive for people to do things more efficiently and they find ways,
they're going to find cheaper ways to do it.

		MS. TRAHAN:  Do the lookback studies look at benefits?

		DR. RUTTENBERG:  Some of them do, and some of them are more quantified
than others, so, you know -- 

		MR. TRAHAN:  Uh-huh.  So do they see anything with the benefits as
compared to what was estimated by OSHA?

		DR. RUTTENBERG:  Well, one of the things that they -- it depends how
you're defining benefits.  If it's benefits to industry, they look at
that.  Because there are industry claims of potential plant closings or
potential movement of plants overseas, and in a lookback you can
actually measure that.  You can see whether or not companies have folded
or not, whether or not there's been movement overseas as a result.  So
those benefits are clearly looked at.

		When trying to measure the benefits of how many fewer workers are
sick, that's a little more difficult because we don't have the kind of
registries in this country that allow us to get really good disease
data.

		MS. TRAHAN:  Yeah, we've -- there's been some discussion on our
lacking surveillance system, I think, already in the hearing.  But you
talked about plant closings or loss of business or -- what has the
lookback seen or what do we -- what evidence have we seen and -- 

		DR. RUTTENBERG:  Well, my favorite one was in grain handling, where
dozens and dozens, well over 100 companies wrote in to say that they
would go out of business with a grain handling rule.  And so, when I did
the lookback study for OSHA, I called them all up, and one of them had a
disconnected number.  I have no idea whether they were in business or
not, but every single other one, 119 of them answered the telephone.  So
this claim that businesses are going to fold -- the only business that
I know that folded was really going to fold anyway, and when you looked
at the economics -- they blamed it on the rule, but the rule wasn't --
I mean, it was in such trouble beforehand.

		MS. TRAHAN:  Okay.  Thank you.

		DR. RUTTENBERG:  Thank you.

		JUDGE SOLOMON:  Next.

		MS. NADEAU:  Liz Nadeau, International Union of Operating Engineers,
N-a-d-e-a-u.  I have a question for Frank Mirer first.  

		Your testimony notes potentially large variability of exposure and
advocates an action of level of less than 50 percent of the PEL.  Does
this variability make compliance more difficult?

		DR. MIRER:  The variability combined with knowing about the
variability through an ongoing monitoring program is the opportunity to
reduce exposure.  Exposures go up and down not by magic but by
particular conditions, differences in work methods, differences in
control efficiency, differences in adjacent operations.  

		So just as the brick people said yesterday, and I think the sand
people said yesterday, if you follow up -- if you have continuing
monitoring and you follow up the high levels, you reduce the exposure
average and onward.  And it's being -- I like to say the standard air
sampling method means the industrial hygienist hangs the pump and puts
blinders on, puts a blindfold on, comes back at the end of the shift and
gets the pump and does the analysis, and you lose a lot of the value.

		And, again, we have done this with -- in my history, the best example
probably is Johnson Controls Battery Company, where the UAW health and
safety rep did all the air sampling, also the fit test, also the
statistical analysis, and they were able to dramatically reduce their
exposures with just the same equipment that they had before.  And their
safety manager said they couldn't maintain the lead-in-blood levels
without kind of control technology.

		MS. NADEAU:  I have another question for you.  Your testimony
addressed feasibility of engineering controls in foundries.  Do you have
information on feasibility in other sectors of general industry?

		DR. MIRER:  Well, I did not do the detailed study in those sectors,
but I've been -- we have experience with a dental laboratory.  Well,
dental laboratories are already in compliance at 25, I think.  But we
have experience in pottery, Cullen Manufacturing, and I've toured some
other facilities.  So my view is that if you had -- if there were any
incentive to control those exposures, it could be done relatively
easily.

		MS. NADEAU:  I have a couple more questions.  Is that okay?  Yeah?  

		For Ms. Seminario:  Many industry groups have stated that there has
been insufficient time to fully analyze and prepare comments on OSHA's
proposed silica standard.  How does the amount of time that OSHA has
provided for this rulemaking compare to the time for comment on other
major health standards?

		MS. SEMINARIO:  When we started hearing these complaints from the
industry that there wasn't enough time after the rule had been under
development for 17 years, I went back and I looked, and looked at
virtually all the major health standards that had been issued in recent
years, at the rulemaking schedules as to when the proposal had been
issued, how much time for comment, time for hearings, et cetera.  And
what is being provided in silica is, you know, well -- you know, in
conformance, in fact longer amounts of time.  

		And these are the major rulemakings.  I didn't look at the -- you
know, some of the smaller rulemakings, but looking at the hazard
communication, global harmonization, which was a major rule covering all
sectors of the economy, looked at hexavalent chromium, looked at
methylene chloride, looked at cadmium, looked at 1,3-butadiene, and
essentially what you have is that this rulemaking is providing the same
amount of time or longer for comment and input.  

		And, you know, and we welcome these public hearings.  I think they
provide a forum for the -- you know, for all interested parties to come
forward and to present testimony for people to hear from each other. 
And from them you do get a much better, I think, synthesis and culling
in some ways of what the major issues are.  And so I thought it was
really important that OSHA move forward as quickly possible to this
phase of the rulemaking, and with these concluded, hope that they will
again continue to move forward and analyze the record and issue the
final rule certainly before the end of this administration.

		JUDGE SOLOMON:  Let's see how we do with the next three people.

		DR. MIRER:  Could I add something to that?    HYPERLINK
"http://www.regulations.gov/"  Regulations.gov  and the availability of
almost every document in this, except for the copyrighted studies,
almost every document in this rulemaking process is -- it really
facilitates the ability to comment, not just on what OSHA said, but on
what all the other participants have said in advance.  This is a very
well transparent and efficient way of going about it, and we didn't have
that before, and it has to be taken into account when we look at these
time frames.

		JUDGE SOLOMON:  We have three people behind you, so -- but if we have
enough time, I'll call you back.

		MS. NADEAU:  Great.  Thank you.

		MR. KOJOLA:  Thank you very much.  My name is Bill Kojola, and I'm
here representing the National Council for Occupational Safety and
Health.

		JUDGE SOLOMON:  Could you spell your last name, please?

		MR. KOJOLA:  Yes, K-o-j-o-l-a.  Okay, I have a couple of questions for
Peg Seminario.  

		Peg, you recommended that OSHA include medical removal protection in
the final silica standard for general industry, yet at the same time you
recommend that the employer be prohibited from receiving medical
information from the examining physician on diagnoses and results
related to silica-related disease; is that correct?

		MS. SEMINARIO:  That's correct.

		MR. KOJOLA:  So how can medical removal protection be provided if the
employer doesn't receive information on recommendations for removal or
transfer due to a silica-related health condition?  Can you explain how
this would work?

		MS. SEMINARIO:  Again, in thinking about this rule, we thought a lot
about, as you saw from my testimony, and looked at what's been the
practice in -- OSHA practice in dealing with other health standards
where that practice has been positive and made a real difference, and
one of the areas is in MRP, we think, for workers exposed to health
hazards.  But as you said, that model under OSHA is different in that
that is all triggered by the results of medical exams and determinations
going to the employer, which create a confidentiality issue.  

		And so, looking at, you know, what are other ways of doing this, we
looked at MSHA, where you have lung disease and coal miners receiving
medical exams.  And that approach is different, whereby the decision to
provide the information to the employer is the workers.  It's their
health information.  It's their health status.  They have transfer
rights under the regulations that -- under mine safety, but they are
the ones to make that determination.  

		And so what we are proposing here, and we'll be putting in specific
regulatory language to OSHA in our final comments, is that that same
approach work here, that the information goes to the worker, the
recommendation from the physician as to whether they should be removed,
go to the worker, and it's the worker who then makes that determination,
and with their authorization release, the information can be provided to
the employer, but it is not an automatic transfer of the information. 
And so, I think the big difference here is that the worker gets to
control their medical information and they get to control, you know, the
decision about their work status.

		MR. KOJOLA:  Okay.  My other question is many industry groups have
argued that the current standard is sufficiently protective and that
OSHA should focus its efforts on enhanced enforcement of the existing
standard.  Do you believe that enhanced enforcement is sufficient to
protect workers from significant risk of disease from exposure to
silica?

		MS. SEMINARIO:  The short answer is no.  I mean, clearly the situation
that we currently have, from all the data that's available and looking
at the exposure data that's available, the data out of the IMIS system
that comes forward, is that there are a lot of workplaces that are
currently out of compliance with the existing rule, with very, very high
levels of exposure.

		One of the difficulties that we have with silica, you know, it's still
regulated as it was when the act was adopted, and that is under a simple
PEL.  Actually, it's not a simple PEL; it's a pretty complicated -- 

		MR. KOJOLA:  Right.

		MS. SEMINARIO:  -- PEL for both general industry and even more so for
construction.  And as OSHA had commented and I did earlier, the
construction standard is so out of date the technology for measuring the
standard as it's presented doesn't even exist, and so they have to go
through a conversion factor, and so it's quite difficult.  But it's all
dependent, the whole standard, all the exposure is dependent upon the
kind of air monitoring that Dr. Mirer talks about, is you take a
sample, you send it off to a lab, it comes back, you make a
determination, and then you can enforce.

		And particularly in mobile worksites, and I'm sure the construction
unions will speak more to this when they testify next week, the
exposures may not last that long.  The jobs don't last that long.  And
so, you know, one of the questions is how do you -- and it really was
the focus of much of my comments.  It's a standard that's designed to
get control of the dust.  And so, the exposure level is really
important, but so are all the other provisions of it that bring about
that control.  And so, it's only a PEL.  There are no requirements right
now, there are no requirements for employers in this country to monitor
silica exposure in the workplace.

None.  Which is pretty amazing when you think about it, given what we
know about silica.  There's no requirements for medical exams, none. 
There aren't any requirements for the specific kind of training, and
there's certainly not any requirements for MRP and all those other
things.  

		And so, simply enforcing the rule doesn't really get you to a level of
exposure, but it's also really not a very good way to control exposures.
 And that doesn't even get to the issue of OSHA's capacity to get out to
workplaces, particularly in construction, where again the bulk of
workers are now exposed to silica.  

		And so I think when you just say I'll go, you know, enforce the law,
it's not as though OSHA's getting a lot more money.  I haven't seen the
Chamber or other groups up on the Hill when we're up there trying to get
more enforcement money for OSHA.  It's a fairly lonely exercise.  So
enforcement alone -- I mean, enforcement is necessary.  Enforcement of
the rule is necessary, but the other point I would make, looking at the
history of OSHA, if you look where the huge changes have come and where
this agency has been the most effective, it is with the very
forward-looking standards it has put into place because what they do is
they change practice.  They change practice at whole industries across
the board.  And the Agency can take, you know, great pride and credit
for all it has done in protecting workers.  And I think, so the
standards activity changes the whole baseline.  It doesn't just go in
and deal in particular workplaces.  And so, they need a standard for all
the reasons that I've talked about, you know, backed up by enforcement. 
But without the standard, I don't think much is going to change.

		MR. KOJOLA:  Okay.  Thank you very much.

		JUDGE SOLOMON:  Dr. Sivin.  I know how to spell your last name, but
you still have to spell it.

		DR. SIVIN:  Dr. Darius Sivin, United Auto Workers, Health and Safety
Department.  S-i-v-i-n.

		Ms. Seminario, you have recommended that the final standard prohibit
retaliation based on medical examination results.

		MS. SEMINARIO:  Um-hum.

		DR. SIVIN:  Next week the UAW panel will include someone from an
employer against whom the UAW has filed numerous 11(c)'s without much
success.  Could you explain the flaws in 11(c) that might have led to
that lack of success and how a specific prohibition in the standard
against retaliation might do better than 11(c)?

		MS. SEMINARIO:  The 11(c) protections of the OSHA Act are really --
they're important.  As imperfect as they are, they are important because
they do establish as a legal matter that workers cannot be retaliated
against for exercising their rights under the statute.  That being said,
the enforcement mechanisms in 11(c) are very, very weak.  There is
no -- under 11(c), you file a complaint but that complaint has to be
taken up by the Secretary.  It's enforced in District Court.  There
isn't an administrative process like there is for compliance for regular
violations of the standard, you know, through the Review Commission. 
And so the process is one that if you look at the program activity with
respect to 11(c), you find that very few cases are actually -- you
know, move forward.  They're not taken up.  

		And so one of the things that 11(c) also doesn't, is it doesn't -- it
deals with individual cases, which is important, but it doesn't get to
practice.  It doesn't get to broad practices.  And the concern about
retaliation, it's a broad concern as a practice by employers of
retaliating against workers, whether it's for reporting injuries, for
having a, you know, a disease status, and it's particularly of concern,
I know, for the construction unions with respect to blacklisting for
future employment, that people won't be hired.  

		And so we think that it's fundamental to the protection of workers
that that issue be dealt with and dealt with in the context of a silica
rule, where it becomes very clear the practice that, you know, is
allowed/is not allowed, and it's spelled out and that there's
enforcement as part of a comprehensive silica rule.

		DR. SIVIN:  Thank you.

		Dr. Mirer, you presented an epidemiologic study of a UAW foundry which
found elevated rates of cancer, among other things, and you mentioned
that we don't know the names of any of the deceased.  Next week the UAW
panel will include folks who work in foundries and other UAW silica
workplaces who do know the names of sick and deceased people.  Do you
have additional evidence that would corroborate the kind of anecdotal
evidence that will be presented by that panel next week?

		DR. MIRER:  Well, first, it turns -- we actually did know the names
because the local union had been collecting the death certificates, and
so the death certificates had names.  So I misspoke about that, but it's
a long time ago.  

		The other thing I left out about that study is that back when GM was
GM, they re-read the chest x-rays -- they were giving regular chest
x-rays.  They re-read the chest x-rays of every one of those
nonmalignant respiratory disease victims and told us that none of them
had silicosis.  So I think it goes to the question of completeness of
silicosis.  

		But a study presented by Dr. Rosenman in that foundry in Indianapolis,
that was Chrysler foundry, and the reason why he was able to do that
study as well as he did was because we had negotiated as part of an OSHA
settlement regular air sampling of all the elevated jobs there using the
area sampling real-time monitoring technique that we talked about. 
Allis-Chalmers foundry was a UAW foundry, and there's a half a dozen
other -- not half a dozen -- there's several other studies have been
done in UAW- represented plants, and excess mortality was found in most
of them.

		DR. SIVIN:  Thank you.

		JUDGE SOLOMON:  Okay, next.

		MR. SCHNEIDER:  Okay, Scott Schneider with the Laborers' Health and
Safety Fund of North America, and it's S-c-h-n-e-i-d-e-r.

		Dr. Mirer, I had a couple questions for you.  In terms of the need --
in construction we use a lot of competent persons, and there is a
limited provision in the proposed rule for competent persons in
construction.  How could they be beneficial perhaps in the general
industry workplaces and what kind of qualifications should they have?

		DR. MIRER:  Well, to do the -- I mean, it would be nice to say a
certified industrial hygienist has to be in charge of all of these
programs, but you don't need a certified industrial hygienist to operate
what has to be operated.  Unless you know what the exposures are, you
can't train workers how to protect themselves.  Unless you know what the
exposures are and how they vary, you can't implement an effective
respiratory protection program, you can't train the workers, you
can't -- you also can't oversee the control measures, like ventilation
and work methods.  So I think there's definitely a need for --
competent means authority to get things fixed, but it also means
knowledge of what needs to be fixed, and we need it.  In a foundry you
need it.  Probably in a pottery you need it.  And, I mean, the precedent
is in -- I think it has to be defined better in construction than it is
now, but we certainly need it in general industry as well.

		MR. SCHNEIDER:  Okay.  Now, yesterday we heard some testimony from the
sand folks and from others that said that they don't use industrial
hygienists to do their sampling.  The National Industry of Sand
Association said they had 46,000 samples and they train their own
in-house people and it's a lot more cost effective.  What's been your
experience with the UAW IH techs?

		DR. MIRER:  Well, it's -- in General Motors we have a union rep who
does all the air sampling, and he also or she also has responsibly for
the hazard communication and some of the other chemically related
issues, and it's a benefit.  They know the jobs better than somebody
from outside.  They know the people and can interact with the people. 
It just works very well.  

		And as I mentioned, Johnson Controls was a much more -- they only had
one process and it was -- making batteries is a difficult process.  And
I can say from labor-management relations, we didn't agree with much --
Johnson Controls very much.  We went to the Supreme Court, UAW v.
Johnson Controls.  But on that we agreed that hourly people and -- you
know, can do this.  And certainly the regular kind of facility
management safety rep can do it as well.

		MR. SCHNEIDER:  Okay.  I just have two quick questions.  One is, is
there evidence of a threshold for lung cancer or other silica effects?

		DR. MIRER:  First of all, everybody knows, if we listen to Kenny
Crump, you cannot demonstrate a threshold.  And Crump will say there
might be a threshold, but you don't even know what it is and you can't
demonstrate it.  So there's very limited evidence for that, and most of
the studies quoted for demonstrating threshold effects were very
short-term studies in small groups of animals that found a no-effect
level.  And everybody in the risk assessment field knows that the
no-effect level is about a 10 percent effect level, and it's just a
non-acceptable risk rate. 

		So the short of it is no.  And a lot of the discussion of threshold is
confusing a no-effect level with a threshold, which it's not evidence
that there is one.

		MR. SCHNEIDER:  Okay, thank you.

		MS. CORDARO:  I have one quick question.  My name's Tressi Cordaro. 
And spell the first and last name?

		JUDGE SOLOMON:  Yes.

		MS. CORDARO:  T-r-e-s-s-i, Cordaro, 

C-o-r-d-a-r-o.  I'm with Jackson Lewis.

		This is for Dr. Mirer.  I got your last name right?  Sorry.

		DR. MIRER:  Mirer, yes.  

		MS. CORDARO:  Okay.

		DR. MIRER:  Like the quarterback.

		MS. CORDARO:  Okay.  I just want to make sure I understand the scope
of your technological feasibility analysis and the expert conclusions
that you drew.  They were limited in your written testimony, and I'm
assuming here as well.  Those expert conclusions were limited to general
industry and to foundry operations; is that correct?

		DR. MIRER:  Well, general industry is everything and --

		MS. CORDARO:  Except for construction.  Right.  

		DR. MIRER:  Except for construction.

		MS. CORDARO:  Okay, so that's what I want to make clear, that your
expert testimony --

		DR. MIRER:  Right.

		MS. CORDARO:  -- with respect to technological feasibility does not
include conclusions with respect to the construction industry?

		DR. MIRER:  No.  I didn't -- I guess you're right.

		MS. CORDARO:  I just want to make sure.  Okay, thank you.  That's all,
thanks.  

		JUDGE SOLOMON:  Okay.  Ms. Nadeau, do you want to come back or --

		MS. NADEAU:  Sure.  I have one question.

		I have one more question for Mr. Mirer.  Is a no-effect level evidence
for a threshold?

		DR. MIRER:  Yeah, I think that -- I tried to say that before.  The
answer is no.  A no-effect -- the entire risk assessment structure at
EPA is based on the fact that the no-effect level is an effect level and
that you need to have some means of setting an exposure limit below the
no-effect level in order to protect people.  And how far below is --
some of that is accomplished by the risk extrapolation that OSHA has
done.  But just crudely, you have to go tenfold below before you're
getting any -- you're getting close to a real no-effect level.

		MS. NADEAU:  And I have one question for Ms. Ruttenberg.  In terms of
your economic analysis and the big fact that you -- your discussion of
OSHA's conservative estimate of costs, is there something in your
analysis that deals with the economic costs for persons who cannot work
because they are the caretaker of somebody who has silica?

		DR. RUTTENBERG:  Absolutely.  And, I mean, there are two sides to
that.  You have people who need to hire caretakers and then you have
families where someone has to drop out of the workforce to be that
caretaker, and in both cases, significant financial costs.

		MS. NADEAU:  With silica, have you found that people have prolonged
periods where they need somebody to be daily taking care of them for --
it could be for years potentially?

		DR. RUTTENBERG:  Right.  I mean, once you get a chronic disease that
sets in and is increasingly debilitating, the caretaking is
overwhelming.  And there are also costs that have to do with the space
in a person's home.  I mean, you basically turn a home into a hospital. 
And, you know, the most common place for a sick or an ill person to live
is the dining room.  I mean, that's just what people have found.  And
so, nothing in the household is the same again, and it affects everybody
in multiple ways, and that also is a cost that needs to be considered.

		MS. NADEAU:  Thank you.

		JUDGE SOLOMON:  Dr. Crump, you're the only one who -- from the peer,
I assume.

		DR. CRUMP:  No, that's not --

		JUDGE SOLOMON:  Are there any other questions from the --

		MS. LINDBERG:  Your Honor, we don't have the peer reviewers here
today, so --

		JUDGE SOLOMON:  Okay.  Well, he's in the position of one.  You may be
sued --

		DR. MIRER:  He's sitting a peer review seat, yeah.  

		JUDGE SOLOMON:  So you get about a couple hours this afternoon.  

		MR. CHAJET:  Good morning.  

		JUDGE SOLOMON:  Would you state your name and spell your last name,
please?

		MR. CHAJET:  Yes, my name is Henry Chajet, C-h-a-j-e-t, and I'm
counsel to the Chamber of Commerce.  Good morning.

		Good morning, Dr. Mirer.

		DR. MIRER:  Good, glad you're here.

		MR. CHAJET:  It's been a while since we've seen each other.  I think
the last --

		DR. MIRER:  I was hoping you would be here.  I was feeling abandoned,
disrespected by your not being here.

		MR. CHAJET:  The last time we visited, you were sitting on one side of
me, and Dr. Michaels was sitting on the other side of me, and we were
testifying in front of the United States Congress at a hearing that was
held by --

		JUDGE SOLOMON:  Is this a question, Mr. Chajet?

		MR. CHAJET:  It is, it is.

		JUDGE SOLOMON:  Okay.

		DR. MIRER:  This is a great story.  He should tell it.

		MR. CHAJET:  Charlie Norwood, by way of background, the late Dr.
Norwood, was chairing the hearing, and you and Dr. Michaels were
testifying in support of the ACGIH TLVs.  Do you remember that?

		DR. MIRER:  Yes.

		MR. CHAJET:  And I was testifying that they were not consensus
standards and they shouldn't be used for public policy.

		DR. MIRER:  Right.

		MR. CHAJET:  And that's still an issue today, but I'm --

		DR. MIRER:  Right.

		MR. CHAJET:  -- I'm glad to see you here so I could ask you a couple
questions.  

		Number 1 on your slide talks about other diseases, lung cancer, COPD,
other health conditions.  You agree that these other diseases that are
discussed are also caused by other causes, right?  Smoking?

		DR. MIRER:  Well, the emerging consensus is that dust causes, and
silica dust in particular, causes COPD.  There are other causes, but
dust -- I mean, there's other causes of lung cancer too.

		MR. CHAJET:  And you would agree that some of those other kinds of
dust cause these conditions?  That's, I think, apparent in the OSHA risk
document where they talk about dusts of different kinds cause COPD,
right?

		DR. MIRER:  Almost all the studies that talk about dust in general are
talking about increased COPD in populations who are exposed to silica
dust, construction workers, other categories who are exposed to silica
dust.  So I'm not sure what I'm agreeing, does other dust -- so,
anyway, most of those are silica-exposed workers.

		MR. CHAJET:  Those are dust overload studies?

		DR. MIRER:  No, dust overload is a Houdini risk assessment hypothesis
that doesn't -- I mean, it's just -- it's a made-up hypothesis.  It's
clear that if you have more exposure to silica in a group of animals, a
group of people, you're going to have more nonmalignant respiratory
disease in addition to increased lung cancer, but there's no way to
prove that it's secondary or that it's inflammation or a threshold.  

		MR. CHAJET:  So you don't think that you have to -- do you think this
is a silica rule, or do you think this is a general dust rule?

		DR. MIRER:  It's a silica rule.

		MR. CHAJET:  Okay.  So you would have to show the cause and the risk
based on silica, right?

		DR. MIRER:  Yes.  It's a silica rule. 

		MR. CHAJET:  Okay.  So when there are other causes and other risk
factors, you have to separate those out, right?

		DR. MIRER:  Yes.

		MR. CHAJET:  Okay.  So are you familiar -- I mean, did you review the
OSHA risk assessments?

		DR. MIRER:  Yes, I did.

		MR. CHAJET:  So are you familiar with any construction worker that has
a 45-year life exposure to silica?

		DR. MIRER:  The silica -- the risk assessment was based on studies in
mostly industrial populations and some mining populations.  So I don't
know many construction workers, actually.

		MR. CHAJET:  Okay.  And you would agree that the 45-year expectancy of
continued exposure doesn't apply to many of these temporary site
workforces like construction or fracking or other places where you go to
from site to site; 45 years has nothing to do with their reality, right?

		DR. MIRER:  I don't agree with that.  They may be at the fracking site
for a week, two weeks, three weeks.  Then they pick up their equipment
and go to the next site.  So the -- and the same with temporary
worksite construction workers.  They don't, like, fall off the earth
when the job is done; they go on to another job.  So they have extended
histories.

		MR. CHAJET:  Have you seen any studies that document what their
projected exposure work time is, lifetime exposure?  Any studies at all?

		DR. MIRER:  I'm not aware of a -- do you have those studies?

		MR. CHAJET:  We do.  We actually do.  

		DR. MIRER:  Okay, very good.

		MR. CHAJET:  They're in the record.  So you agree that a risk
assessment should measure real risk, right?

		DR. MIRER:  What do you mean by real, I guess, is the question?  There
is a standardized approach to risk assessment, which OSHA has adopted
going back through many, many chemicals.  And so, to establish a stand
operating procedure, they have adopted a duration of exposure criteria.

		MR. CHAJET:  Okay.  So if somebody is having a work experience and
they use respiratory protection and they do it all right and they have
fit testing and they're protected and they're within with the protection
factor, that impacts risk, right?

		DR. MIRER:  Boy, that's a whole lot of assumptions about the
effectiveness of the respiratory protection program.

		MR. CHAJET:  But you agree it impacts risk?  It reduces risk?

		DR. MIRER:  I don't agree that a respiratory protection program
that -- facility-wide or something like that actually does reduce risk.
 

		MR. CHAJET:  You don't think you're better off wearing a personal
protective device under all the proper conditions and uses and -- you
don't think you're better off wearing that than not wearing it in the
face of dust exposure?

		DR. MIRER:  Well, let me give you an example from my misspent youth. 
There's a process in the car plant used to be called solder grind.  And
when it was introduced in 1937 there was an outbreak of lead poisoning
and fatalities in Detroit.  It's documented in textbooks.  And the
adopted corrective measure was a positive pressure air fed helmet, the
top of the line protection.  And when the OSHA standard came in,
management sampled the lead exposure inside that top of the line
protection and found numerous exposures above the lead PEL.  So it
doesn't provide protection.

		MR. CHAJET:  Have you seen any recent reviews of personal protective
equipment?  Have you read any of the research on new technology?

		DR. MIRER:  Yes, I have read it, and it's not adequate to demonstrate
effectiveness.

		MR. CHAJET:  Okay.  So when you're measuring risk in the risk
assessment, shouldn't you examine whether there is risk reduction or not
by use of personal protection?

		DR. MIRER:  I'm not -- so the OSHA risk assessment is addressed at
what the risk is at the PEL, the current PEL.

		MR. CHAJET:  Without regard to personal protection?

		DR. MIRER:  If somebody's exposed at the PEL, that's what their risk
is.  

		MR. CHAJET:  Okay, you don't know that the OSHA risk assessment,
according to their own contractor, ERG, ignores personal protection? 
You're not aware of that?

		DR. MIRER:  I think the risk assessment is oriented to what the -- to
what risk the employee would have if they were exposed at the PEL.

		JUDGE SOLOMON:  Okay.  I think I'm going to stop you now, Mr. Chajet.

		MR. CHAJET:  Can I have two more questions?

		JUDGE SOLOMON:  Well, OSHA gets to ask some questions.  You know, we
don't have a lot -- how long are these questions?

		MR. CHAJET:  Less than five minutes.  

		DR. MIRER:  He's going to say it depends on how long the answer is.  

		MR. CHAJET:  Well, that's true too.

		JUDGE SOLOMON:  The last couple were sort of argumentative, and we
don't get a definite answer --

		MR. CHAJET:  Dr. Mirer and I know each other.  We don't argue.

		JUDGE SOLOMON:  So I think what we're going to do is go to the OSHA
panel.

		MR. CHAJET:  So I'm going to be prohibited from asking two more
questions?

		JUDGE SOLOMON:  That is correct.

		MR. CHAJET:  Okay.  Note our objection for the record, please.

		DR. MIRER:  He cut me off yesterday.  

		MR. CHAJET:  I think you should object as well.

		DR. MIRER:  Well, I'm not involved in a legal process, so --

		MR. CHAJET:  Thank you very much.

		JUDGE SOLOMON:  Okay, Ms. Lindberg?  Well, first of all, are there any
other exhibits that we didn't get?

		MS. LINDBERG:  I have Mr. Mirer's presentation here.

		DR. MIRER:  Yes.

		MS. LINDBERG:  If you don't mind, I'm going to mark that as Exhibit 29
for the hearing record. 

(Whereupon, the document referred to as Hearing Exhibit 29 was marked
and received in evidence.)

		MS. LINDBERG:  Are there any other materials that you would like me to
mark as exhibits to your testimony or anything like that?

		MS. SEMINARIO:  I think all the written testimony was included in the
record when we submitted it back in February.  I didn't bring extra
copies, but it's already in the docket, so --

		MS. LINDBERG:  Okay.  If we already have it, that's great.

		MS. SEMINARIO:  You do.

		MS. LINDBERG:  Thank you.

		JUDGE SOLOMON:  Mr. Perry.

		MR. PERRY:  Thank you, Your Honor.  It's Bill --

		JUDGE SOLOMON:  William Perry again.

		MR. PERRY:  This is Bill Perry, yes.  And, first of all, the OSHA
panel appreciates the time and consideration that AFL's given for your
appearance and testimony here today.  So thank you for that.

		We will start with Joe Coble and a few questions.

		DR. COBLE:  Yes.  Good morning.  

		DR. MIRER:  I think that's Dr. Coble, right?

		DR. COBLE:  Yes.  Yes, thank you.  

		My first question to Dr. Mirer relates to clarification on the scope
of your analysis.  In the NPRM, OSHA lists 23 industry sectors that
detailed feasibility analysis were conducted.  

		DR. MIRER:  Yes.

		DR. COBLE:  You provided analysis of foundries but make a general
statement that you have high confidence it's achievable across these 23.
 Is that what you intend to imply by this slide?

		DR. MIRER:  That's what I intended to imply.  I looked at the, you
know, the variation in exposure across those categories and inferred
what could, you know, what could be achieved from people doing things
that they never attempted to do.

		DR. COBLE:  And then -- and furthermore, in your judgment, foundries
represents one of the more challenging sectors?

		DR. MIRER:  That's true.

		DR. COBLE:  But you find that it's nonetheless feasible?

		DR. MIRER:  Yes.  And I --

		DR. COBLE:  To achieve 50?

		DR. MIRER:  Yeah, and I physically observed the Rock of Ages granite
shed of the -- the granite shed in Vermont that's sort of the source of
a lot of this data.  I've observed pottery making and toilet bowl making
at Kohler in Wisconsin.  I'm aware of the processes, but I don't have
detailed knowledge of what the no exposure job would be.

		DR. COBLE:  Sure.  And just, you also state that you have -- that the
evidence presented is less convincing regarding 25?

		DR. MIRER:  I have moderate confidence that --

		DR. COBLE:  You would make that distinction?

		DR. MIRER:  I have moderate confidence that 25 is achievable, but
that's still confidence.

		DR. COBLE:  Yes.  So in your experience with UAW, have you seen
examples of effective controls applied in foundries that have resulted
in significant reductions?

		DR. MIRER:  Absolutely.  

		DR. COBLE:  To what extent are some of these technologies transferable
to either other foundries or comparable operations, say, maybe for
example, you know, sand handling at a fracking operation?

		DR. MIRER:  Well, the conveyor in sand mixing is sort of the start of
the foundry process.  As I understand it, that's the start of the
fracking process as well.  So ventilation designs, ventilation capacity,
maintenance, enclosure for a conveyor is the same whatever the process
is, and so that would be applicable to fracking.

		DR. COBLE:  So it's your position that these controls are available
and currently in use at various operations that could potentially be
applied to operations that don't have controls?

		DR. MIRER:  That's correct.

		DR. COBLE:  Okay.  I want to ask, in your experience, how would
setting up a regulated area work in a foundry?  Is that a workable
proposition to set up a regulated area in a foundry?

		DR. MIRER:  Yes.  You post signs.  I mean, in a foundry the regulated
area is probably a workstation or a series of workstations.  And you
indicate the -- you determine probably with short-term monitoring.  But
you determine the extent of the dust cloud, assuming it's still there,
and you post it.  I don't see that -- this is like a simple concept,
not something very difficult.

		DR. COBLE:  Um-hum.  So in your assessment, it's not that complicated
to establish a regulated area?

		DR. MIRER:  I don't think it's complicated at all.  The problem
goes -- once you have a viable control system so you're not spewing
things from the shakeout over the pouring station, you can do it pretty
well.

		DR. COBLE:  You mentioned real-time monitoring in your presentation.  

		DR. MIRER:  Yeah.

		DR. COBLE:  Can you expand on how real-time monitoring might be used
to establish and maintain regulated areas?

		DR. MIRER:  Yeah.  Well, Chrysler did it at its Chrysler Indianapolis
foundry.  Rather than -- we accepted it anyway, that rather than do
full shift sampling at each station in the cleaning room and whatever,
they took area samples -- and this is just what the lamented [sic]
particle count method was.  You take area samples for silica, and then
you use a dust monitor at each position to look at what the mass is,
apply the silica content, and you've got it.  

		DR. COBLE:  So that's actually been done?  You've seen where that's
been done?

		DR. MIRER:  It's been done.  It's also been done in metal working
fluid operations, particularly in GM.

		DR. COBLE:  Right.  We've heard a little bit of discussion about use
of PAPRs and maybe advancements in respiratory protection.  Have you
seen a situation in which you would think PAPRs would provide effective
control in lieu of engineering controls as opposed to in addition to?

		DR. MIRER:  So the respirator reduces the amount in the operator's
breathing zone, but the maintenance requirements for these are -- we
wouldn't need a requirement that a worker could get a higher level of
control if it were a zero effort change.  

		DR. COBLE:  Right.

		DR. MIRER:  So let's go back to the regulated area.

		DR. COBLE:  Sure.

		DR. MIRER:  Exposure mapping is a well-recognized technique.  Again,
in GM it's done by hourly industrial hygiene workers or by industrial
hygiene students on a summer job.  So the contours of that map establish
where the exposure limits are, and that would define what the regulated
area would have to be.  

		When we get to PAPRs, the mode of failure of a respirator is usually a
catastrophic failure; that is, some workers it's not fitted right and
they don't get any protection, and other workers could get a hundredfold
protection, a thousandfold protection, and your problem is you don't
know which one they are unless you sample underneath the helmet on a
regular basis.  

		DR. COBLE:  Irrespective of the efficiency of the PAPR itself, there
is disadvantages to using a personal protective -- a respirator, in
lieu of an engineering control.  Is that --

		DR. MIRER:  I'm sorry, I got --

		DR. COBLE:  Irrespective of the actual effectiveness of the PAPR and
the design improvements, there would be disadvantages to using a PAPR as
opposed to an engineering control; is that correct?

		DR. MIRER:  Yes, and you have people walking through the clouds
anyway.  

		DR. COBLE:  What about this issue of cross-contamination?

		DR. MIRER:  Well, that's -- it's very clear in -- I did read other
sections of the PEA than just the foundry, but it's clear that
cross-contamination is listed as a source of exposure on many, many --
many, many jobs.  

		DR. COBLE:  So your estimate that OSHA's feasibility analysis may have
in fact underestimated the reductions achievable due to control
technologies rests partly on this assumption that we have not accounted
for cross-contamination?

		DR. MIRER:  I don't want to state it that -- the PEA does not account
for cross-contamination.  If the guy who has no -- not generating any
silica, like on the pouring line, has 50 µg/m3 of exposure, you can
assume that the worker who is generating silica, like in the cleaning
room, is getting 50 µg from all that other stuff plus whatever he's
generating for himself or herself.  And so, I think you get to --
legitimately should be subtracting that from what the exposure at the
workstation is.

		The other issue, and again this is especially in the cleaning room,
and it's been looked it, you have individual workstations.  And so, the
worker is not hitting the casting with a tool every minute of every day.
 There's a duty cycle.  But there is some worker in the cleaning room is
hitting that casting every minute of every day and generating dust, and
that's going from workstation to workstation.  And if you isolate them,
you can control and then typically that grinding booth also controls for
noise.  

		DR. COBLE:  Okay.  Okay, thank you.

		DR. MIRER:  Thank you.

		MR. PERRY:  Next Annette Iannucci.  

		We have to do the musical chairs because we have a couple of dead
microphones back here.

		MS. IANNUCCI:  Good morning.  I have a couple of questions for Ms.
Seminario.  

		We thank you for bringing the issue of medical privacy to our
attention, and we very much understand your concerns; however, are you
concerned at all that if a worker with a silica-related illness chose
not to disclose it to the employer, that the employer wouldn't know that
the worker may be placing himself at further risk from further silica
exposure or that there might be an uncontrolled silica exposure at the
company that the employer wouldn't know about and therefore not be able
to address?

		MS. SEMINARIO:  There are numerous related issues here.  I mean, I
think there is -- you know, there's no question about that.  But I
think ultimately that the approach that, say, was taken under mine
safety, which leaves the decision about the medical information in the
hands of the worker to make that decision, is the right one.  The
employer has a lot of information.  They should be basing controls
primarily on exposure levels and whether or not the situation is being
controlled.  

		And so, you know, while I think there is, you know, an interest in the
employer of having some knowledge, that the decision on whether or not
that information is provided to the employer should be the worker's. 
And I think in situations where the worker believes the employer will
take the correct action, you know, protect the individual, that that
information will be forthcoming.  

		So it's not an easy issue, but I think the construct that OSHA has is
the wrong one and that a better construct would be to have that
information be provided upon the decision of the individual worker,
particularly since there really isn't any protection for that individual
in this rule, as I read it.  If the employer takes any action against
him because they have been determined to have a disease, then there's no
protection for that individual, which I think has got to be a
consideration that is dealt with squarely by the Agency.

		DR. MIRER:  And if I could say, I've had some experience in industry. 
The hypothetical you posed, I don't think it ever happened.  I don't
think that a report of respiratory illness has spurred engineering
controls by itself.  I don't, I just don't -- it never happened, in my
experience.

		MS. IANNUCCI:  Okay.  If we did add a provision for protection, would
that change your view, or would your view remain the same on reporting
of medical results?

		MS. SEMINARIO:  It would remain the same.  I mean, if you -- again,
if you look at MSHA model, it has both of those components in it: 
basically that the worker is provided the information, they get to
decide what goes to the employer, and then they are provided with, you
know, the right of transfer.  But, again, they make that decision.

		MS. IANNUCCI:  And then one final question.  In your written comments
you give the example of Alan White, who was transferred to a low dust
job under his union contract after he was diagnosed with silicosis. 
Could you give me some information on how union contracts generally work
in regards to medical removal protection?

		MS. SEMINARIO:  I would suggest that you ask the individual unions who
will be appearing.  They're most familiar with their provisions, either
of their collective bargaining agreements in that regard.  And there may
not be specific provisions that deal specifically with silica medical
removal protection, but there are provisions for people to, you know, to
transfer and have bidding rights, et cetera.  So it's -- the provisions
and the protections under collective bargaining may be, you know, more
general and more comprehensive, but also applicable to the kind of
situation that Alan White found himself in, and other workers do.  But
they are certainly not a substitute for what is needed for all workers,
particularly, you know, given the fact that so many of these workers are
not represented, have no collective bargaining rights and no protection.

		MS. IANNUCCI:  Okay, thank you.

		JUDGE SOLOMON:  Mr. Perry.

		MR. PERRY:  I believe Tiffany DeFoe has a few questions.  

		MS. DeFOE:  My questions are for Dr. Mirer.

		Dr. Mirer, early in your testimony you said -- I believe you said
something very close to if something turns up in an epidemiological
study it's a major problem.  Not everything turns up in epidemiological
studies, but if it does, it's a major problem.  Would you please explain
what you meant by that statement and why you believe that to be the
case?

		DR. MIRER:  Well, I was thinking about lung cancer, but the same would
apply to chronic obstructive pulmonary disease and any common condition
of that nature.  So the average rate of lung cancer among American
males, about 5 per 100, 5 percent, 6 percent, something like that.  So
if you find an excess, you're talking about 1 in 100, 2 in 100, 3 in 100
attack rate, you know, within the 1 in 1,000.  So you're talking about
1, 2 percent of the population.  That's number one.  

		Number two, it's happening at a exposure level which prevails in
workplaces, in modern workplaces.  So that's a measure of potency right
there.  And so, that's what I'm saying, you've got a big number; 1
percent is 1,000 -- is 100 times what's considered a significant risk,
and it's happening within, you know, within the range of exposures that
prevail.  So that's why it's a huge problem.

		We have this joke:  A public health crisis is something that's so bad
even an epidemiologist can find it.  And that arithmetic is what
supports that joke.

		MS. DeFOE:  Is it the case that there's something about
epidemiological studies that can make it difficult to see an effect if
there is one?

		DR. MIRER:  Oh, the cohort mortality study, which is the big gun,
is -- first of all, you have to get through the healthy worker effect. 
So typically your starting population has a significant -- a
meaningfully lower rate of every disease than the general population. 
Our world-record SMR was, I think, 60 at Lordstown Assembly.  

		So first you had to get through the healthy worker effect.  And Leslie
Stayner and Kyle Steenland have written on this.  They would be more
eloquent and better grounded.  

		So first you have to get through that.  Then you have to try and
demonstrate exposure response.  Well, the problem with exposure response
is that people leave work, the sicker people leave work early, and so
they have less exposure because they've left.  And so that's an obstacle
to observing.  It's called the healthy worker survivor effect, and it's
an obstacle again to finding something.  

		And, lastly, when you're looking at a distribution of exposures, in a
workplace you can have non-differential classification, but -- this
classification, but the high exposed group is usually smaller than the
next highest exposure group.  That's just the way it is.  So the high
exposure group is contaminated with more moderate exposure workers
than -- and that flattens your exposure response relationship.  But Dr.
Steenland is like the world's expert on this.  He and Leslie Stayner are
the world's experts, and you could get better with them -- get better
opinion from them.

		MS. DeFOE:  Thank you.  

		About exposure measurement, over the couple -- last couple of days of
the hearing, OSHA has heard a variety of commenters who have argued that
the risk assessment methods used by the Agency and the methods of the
epidemiology relied on by OSHA has insufficiently addressed the effects
of possible errors in exposure estimates, and that the consequence is
that OSHA has overestimated the risk of disease related to silica
exposure or has identified a risk where none, in fact, exists.

		As an expert in both industrial hygiene and risk assessment, do you
have any insights you can share with us on the ways that errors in
exposure estimates typically affect epidemiology and risk assessment?

		DR. MIRER:  Essentially, the errors obscure exposure response rather
than -- I can't think of a way in which you could create an exposure
response relationship through uncertainty, and typically it's an
obstacle to see an exposure response relationship if it's there.  

		There was testimony that there are -- there is some kind of error
that doesn't, you know, that doesn't obscure exposure response, but in
my experience it doesn't create exposure response, you can't create
exposure response through that.  On top of that, OSHA has essentially
extracted information from peer-reviewed studies, well-respected
peer-reviewed studies, so I don't see how OSHA has created anything that
wasn't there before.  So I don't see the criticism.  I mean, you can
raise it, but I think the consensus would be that the uncertainties go
the other way.

		MS. DeFOE:  Thanks.  And just one more.  I think you stated that as an
employer identifies and controls its highest-level exposures, that this
will reduce not just the average, but also the variability of exposures
in the facility.  Would you expect this reduction in exposure
variability to function on a day-to-basis?  That is, should getting the
highest exposures under control increase the employer's confidence that
a TWA exposure sampled on one day is representative of the TWA exposure
on unsampled days?

		DR. MIRER:  There's actually a formula where you can infer the average
from the -- from knowing the geometric standard deviation, you can
infer the average exposure from the geometric mean.  And when you reduce
the variation, you reduce the divergence and you end up with a lower
arithmetic mean, which is actually what the worker is exposed to.  So
reducing variability reduces exposure because you're knocking down the
highs.  You aren't trying to intervene on the low exposures and make
them higher; you're trying to reduce the high exposures.  So it's sort
of a double improvement.

		MS. DeFOE:  I was actually -- thank you for that.  The direction of
my question had more to do with -- it wasn't in this case so much about
the way that it affects worker exposure overall, but more about how
reduction in variability might affect an employer's confidence that
they're in compliance with the rule.

		DR. MIRER:  I'm not sure I'm getting the question.  If the employer
knows that his or her process is well controlled and is generating
exposure results which are in compliance, that would be more -- they
would have more confidence than if they didn't think it was under
control.  I can't -- I'm not sure what you're -- the question is. 
This is like one of my exam questions.

		MS. DeFOE:  Sorry.  I apologize for that.  

		JUDGE SOLOMON:  That's what's called a declaration against interest.

		MS. DeFOE:  Thank you.

		JUDGE SOLOMON:  Okay, we have about five minutes allocated to OSHA. 
Are you going to be able to do this in five minutes or do we have to --

		MR. PERRY:  We will certainly do our best.

		JUDGE SOLOMON:  The plan right now is to have the AIHA and ASSE
constitute a panel, and that would take place in about five minutes, and
then we would have questioning.  So that means lunch would be about
12:30, and we would resume this afternoon at about 1:30.  Go ahead.

		MR. PERRY:  This is Robert Blicksilver from our Office of Regulatory
Analysis. 

		MR. BLICKSILVER:  Good morning.  

		Dr. Ruttenberg, you, in your testimony, in your written comments, you
identified an apparent conservatism you've observed in your review of
regulatory analyses over the years and overestimation of costs, and you
give an example of technology built into equipment is often cheaper than
technology retrofitted into equipment.  

		Could you please elaborate on that point and if you have some examples
to give, and also in your post-hearing comments and your review of the
record, if you could provide any more evidence that you've identified of
that phenomenon?  Thank you.

		DR. RUTTENBERG:  I mean, there are many examples.  You know,
retrofitting a piece of equipment is kind of like putting a band-aid on
it, and if you design the equipment to be safe from the beginning, you
often not only solve the problem but you can enhance productivity.  I
mean, for example, in noise when you have metal on metal and you do
something to try and muffle that noise, that's not improving
productivity at all.  But if you change some of that metal to plastic,
just as an example, and the noise is reduced, it often is also less wear
and tear on the equipment because the metal on metal, like, breaks down
faster.  And so you get the equipment moving better and you also solve
the problem.  And, I mean, there are many, many, many examples, and I'd
be happy to provide them in post-hearing.

		MR. BLICKSILVER:  So that's an example of equipment productivity
enhancement, you would say?

		DR. RUTTENBERG:  Right.

		MR. BLICKSILVER:  Okay.  You also mentioned worker productivity
improvements:  Limiting dust increases visibility for workers --

		DR. RUTTENBERG:  Right.

		MR. BLICKSILVER:  -- vacuum systems speed up drilling because
continuous removal of drill cuttings from the hole reduce the need for
workers to periodically stop and clean.  Are there any other examples
that come to mind or, again, in post-hearing comments if you could
provide any for the record?

		DR. RUTTENBERG:  Examples of that kind of problem in other --

		MR. BLICKSILVER:  Of worker productivity improvements through
implementation of controls.

		DR. RUTTENBERG:  I mean, in the textile industry it happened
profoundly because as they made the looms bigger and bigger, and quieter
and quieter and less dusty, they also had less breakdown of the small
looms and so workers weren't stopping their work and fixing them.  As
the looms got bigger, it was more important to industry to keep those
breakdowns from happening, because if a big loom stops, you lose a lot
more work product than when a small loom stops.  And so all kinds of
controls were put in there to keep that as a continuous process that
would move.

		And when I talk to the industry people who had decried the possibility
of even operating textile machinery before the rule, they admitted quite
frankly that there had been productivity enhancement and that the OSHA
rule had moved them ahead and gotten them investing in the best and most
productive equipment sooner than they would have otherwise.

		MR. BLICKSILVER:  Thank you.  That's all I have.  

		JUDGE SOLOMON:  It's 11:55.  Do you have any more?

		MR. PERRY:  I have one question for Dr. Mirer, if I may.  

		Dr. Mirer, okay, you made reference, I think, in answering a question
to our risk assessment and using 45 years as a basis for estimating
risk, which, you know, you're correct, OSHA has typically done.  Would
you consider it appropriate if I take -- if these risk models were then
used in life tables to estimate lifetime risks for less than working
life or less than 45 years to estimate risk of a partial lifetime
exposure?  Is that an appropriate thing to do, do you think?

		DR. MIRER:  I'm not -- I'm pausing to think before I say something. 
I don't -- you know, I think our practice over time has been to do them
all the same so you could compare the results the same way.  And so you
can calculate -- you can do any calculation you want; the question is
where does it fit into the regulatory scheme?

		MR. PERRY:  Okay.  

		DR. MIRER:  And in this case, there's so much head room between, you
know, significant risk and what you're predicting that it might not
matter, but for another example it might matter a lot.  And you remember
the statute said no worker and then it was sort of redefined by the
courts to say, well, a couple of workers shall suffer the adverse
effect.  So, you know, that's sort of my response.

		MR. PERRY:  Yeah, and I wasn't talking about would it be appropriate
for OSHA to do this for purposes of evaluating significance of risk,
which is when we do -- under Section 6(b)(5) of the Act, we do use an
assumption of 45 years to represent exposure over a working life.  But
if we wanted to, say, estimate the benefits of the rule based on more
realistic assumptions of job tenure and exposure, could I use these same
risk models in a life table approach to make those kinds of estimations?

		DR. MIRER:  All right, so my concern is that latency -- in terms of
measuring health effects, latency is probably more important than
duration or certainly equally important to duration.  So if we cut the
duration from 40 to 20, you -- you know, we don't have the data to go
to what the health effect would be 20 years plus 20 years of
observation.  That's my concern with launching to this.  But, honestly,
this is quite a hypothetical, and I'd like to see it written down and
figure out what -- 

		MR. PERRY:  Okay.

		DR. MIRER:  -- what the implications were before I tried -- 

		MR. PERRY:  What I might invite you to do, then, is if you would like,
we have used a similar approach like that in our benefits analysis, so
if you wanted to maybe take a look at that, at the underlying
assumptions.  I think we just assumed that the excess risk after
accumulating the exposure, and there's a lag incorporated in there as
well, just like in our risk assessment, that that would -- that
relative risk would remain constant even though, of course, the
background risk increases with age.

		DR. MIRER:  Yeah.

		MR. PERRY:  So I would invite you to comment on that assumption, if
you would.

		DR. MIRER:  Yeah, just as a personal concern, it used to be we'd say
people over 65 are the people who get cancer and therefore they're not
working, and that was before I got to be 65.  Now I take a different
attitude towards it.

		MR. PERRY:  Okay, very well.  

		That's all we have, Your Honor.  Thank you.

		JUDGE SOLOMON:  Ms. Lindberg, do you have anything else?

		MS. LINDBERG:  Nothing further, Your Honor.

		JUDGE SOLOMON:  All right.  So we're going to bring up the AIHA and
the ASSE panel.  I'm not going to go off the record in doing that
because we are pressed for time, like I said.

		Now, I didn't ask the panel any questions, and what I'm about to say
really goes to form and not substance, but there were some issues that
were brought up that are near and dear to my heart, especially
retaliation, because about half my time is spent hearing whistleblower
cases for the Department of Labor.  And the investigating entity in all
of those cases is OSHA, so those cases cut across not only the labor
statutes; those cases cut across a number of other statutes.  We have
jurisdiction over approximately 23 other forms of whistleblowing, and
among those are the environmental whistleblowing statutes.  

		Now I'm also a member of ACUS, which is the Administrative Conference
of the United States, and ACUS has been looking at the issue of multiple
agency concurrence -- it isn't that there's concurrent jurisdiction,
but cover the same territory.  And they actually looked into science,
how science is evaluated generally across the government, and they made
some rulings about that.  So, you know, I'm not in a position to tell
anybody what to do, but I mean I didn't see any comments about that.

		And, lastly, this is sort of a commercial.  The American Bar
Association Administrative Law Section is putting on a conference next
week, and the subject is rulemaking.  Some people nodding their heads,
for the record.  And we're going to be here, so we won't be able to be
there, but it could very well be that there will be some valuable
information.  So I thought I would just state that for the record.

		So let me know when everybody's ready here. 

		Do we have anybody else that's coming forward?  

		So we have the entities, and we have two witnesses.  Would you
introduce yourselves?

		MS. ABRAMS:  Yes.  Good morning, Your Honor.  Good morning, Panel.  My
name is Adele Abrams.  That's A-d-e-l-e A-b-r-a-m-s.  And I am
representing the American Society of Safety Engineers.

		DR. ANNA:  And I'm Daniel Anna, A-n-n-a, Vice President of the
American Industrial Hygiene Association.

		JUDGE SOLOMON:  Okay.  So who's going to go first?

		DR. ANNA:  I guess I will.

		All right, thank you.  As I said, my name's Daniel Anna.  I'm Vice
President of the American Industrial Hygiene Association, certified
industrial hygienist, certified safety professional, and have been
involved in occupational safety and health for nearly 25 years.  It's a
privilege for me to be here to represent AIHA and our members at this
public hearing.  

		AIHA is the premier association serving the needs of professionals
practicing industrial hygiene in industry, government, labor, academic
institutions, and independent organizations.  The AIHA mission is to
promote healthy and safe working environments by advancing the science,
principles, practice, and value of industrial and occupational hygiene. 
Our members recognize that a healthy workforce is essential to the
success of our American industry, our national economy, and our position
in the global economy.  

		AIHA submitted extensive comments that appear in the federal docket,
and I'd like to just use this opportunity to summarize some of our key
points. 

		As stated by OSHA in the announcement of the proposed rule, exposure
to silica can be deadly, and limiting that exposure is essential. 
Ultimately the question we posed to our members is:  will this proposal
result in improved employee health and safety?  AIHA answers a
resounding yes and supports OSHA's efforts to move forward with the
proposed rule that helps to protect worker health and reduce illnesses
related to silica exposures.

		AIHA provided responses to questions raised in the Notice of Proposed
Rulemaking published in the Federal Register.  These responses included
the following comments on several aspects of the proposed regulation: 

		The proposed standard defines respirable crystalline silica as
airborne particles that contain quartz, cristobalite, and/or tridymite,
and whose measurement is determined by a sampling device to meet the
characteristics for respirable particle-size selective samplers
specified in the International Organization for Standardization, "Air
Quality - Particle Size Fraction Definitions For Health-Related
Sampling."  It's a great title.  

		This definition would consider the entirety of a sample of dust
containing any miniscule but detectable quantity of quartz,
cristobalite, or tridymite as respirable crystalline silica.  So AIHA
recommends that OSHA change the beginning of that definition to read: 
"Airborne particles of quartz, cristobalite, and/or tridymite," and then
continue with the current definition that's proposed.  That would
clarify that the silica content is what is considered when determining
the airborne concentration.

		Compliance with the PEL should be required until sufficient objective
datasets are assembled to account for the variability of workers' tasks
and materials.  Then acceptable work practice and workplace controls can
be assigned to tasks and activities.  When the performance of these
controls are verified, techniques such as work permits, job
observations, and workplace assessments can be conducted real time to
see if the controls are being properly administered.  Employers
implementing strategies other than monitoring should have researched the
control appropriateness and developed their own strategies to ensure
that the controls are working on a day-to-day basis.  

		The AIHA endorses the concept at Table 1, and the options it provides
to the construction contractors.  Although AIHA encourages air
monitoring as an important part of an overall worker exposure assessment
program, the reality is that potential worker exposures on a
construction site are constantly changing.  By the time samples are
collected and analyzed, tasks may have been completed and workers have
disbursed to other jobs, which may minimize the usefulness of monitoring
results.  Use of Table 1 allows contractors to anticipate and implement
protective measures from the start of the project and to avoid the
expense of air monitoring that would provide only minimal information.  

		Table 1 also allows contractors to anticipate control needs and factor
costs into a job bid to produce an awarded contract that will contain
needed resources to perform the job with reduced silica exposures. 
Smaller contractors without dedicated safety professionals will benefit
because the requirements needed to properly protect workers are more
clearly defined.  Project owners will be able to evaluate bids to ensure
that contractors have incorporated the cost of silica control into their
proposal.

		Many silica-producing tasks on construction sites are of limited
duration during a shift.  OSHA endorses the dual-table format
characterizing exposures as either less than or greater than four hours
in duration.  This acknowledges that a limited duration exposure will
provide a level of protection by reducing a worker's eight-hour time
weighted average exposure and may reduce the cost associated with
respirator use during limited duration activities where other controls
are properly implemented.

		While AIHA endorses the use of Table 1 as a compliance option, there
are six recommendations that we ask OSHA to consider:

		First, several engineering and work practice control methods state
that the equipment should be operated such that no visible dust is
emitted from the process.  AIHA is concerned that this is a subjective
determination and recommends that this requirement be removed.  The
competent person operator and employer are responsible for ensuring
proper use and functioning of the equipment and should evaluate controls
on a case-by-case basis to determine if excessive dust is being
released.

		Second, several of the tasks listed in the table do not require any
supplementary respiratory protection when the task duration is less than
four hours.  AIHA recommends that for any task in Table 1 where no
respirator requirement is listed, that OSHA require the employer to
provide a minimum half-face piece respirator upon employee request or
when a competent person determines that respiratory protection would
indeed be needed for that task.

		Third, because engineering and work practice control methods play a
critical role in exposure control, AIHA recommends that OSHA require the
employer to have a competent person whenever Table 1 is used for
compliance purposes regardless of whether a respirator is used or not.

		JUDGE SOLOMON:  You're at the end of your time, Mr. Anna.

		DR. ANNA:  I thought we had 10 minutes.

		JUDGE SOLOMON:  Ten minutes, right.  

		DR. ANNA:  Okay.  May I finish the comment?

		JUDGE SOLOMON:  Sure.

		DR. ANNA:  All right.  We'd also recommend that manufacturers'
instructions are followed for any controls.  

		We would recommend that respirator requirements be performance
oriented and based on the assigned protection factor.  What's in there
now we're concerned might lead employers to think that that is the exact
respirator that must be used.  

		With medical surveillance, we'd ask you to look at the asbestos
standard and look at the frequency related to medical testing for
younger workers.  We'd also have you consider the 30-day trigger for
medical exams in construction, since that population can be transient.  

		And, finally, we would like to see that within the requirements for
industrial hygiene and industrial hygienist that you note that there
should be certification of the industrial hygienist, at least have a
certified industrial hygienist see the professional and technical --
have professional and technical oversight over those professional
activities that people are doing to monitor airborne exposures.  

		So thank you for this opportunity.  We appreciate the chance to work
with OSHA in helping achieve a mutual goal of protecting our American
workers.  Thank you.

		JUDGE SOLOMON:  Ms. Abrams.

		MS. ABRAMS:  Yes.  Thank you.

		Good afternoon now.  My name is Adele Abrams, and I'm an attorney and
a certified mine safety professional.  I'm testifying today as a
professional member and also the federal representative for the American
Society of Safety Engineers.  But I am a professional member of ASSE's
construction, mining, and consultant practice specialties, and I'm also
a co-author of the ASSE textbook on construction safety management and
engineering, including the chapter dealing with crystalline silica and
other occupational health issues.  And in addition to this, I serve as
the secretary of the ASTM E34 Committee, which oversaw the development
of the ASTM E1132 and E2625 standards for general industry and
construction.  These set best practices for management of crystalline
silica in the workplace and are referenced in OSHA's proposed rule.

		ASSE is an international professional society of more than 35,000
members, including safety and health professionals who will be affected
by this rule or tasked with its implementation for their employers or
for the customers or clients for whom they consult.  And ASSE previously
submitted written comments on the proposed rule, so I'm going to just
summarize the key points of those, and I'll be happy to respond to any
questions.

		ASSE generally supports the proposed rule and we commend OSHA for
addressing this issue in a manner that should reduce the incidences of
occupational illnesses that may be silica-related.  Silica overexposures
have been linked to occupational illness since the time of the Ancient
Greeks, and silica has been classified as a Group 1 human carcinogen by
the International Agency for Research on Cancer since 1997.   

		While no doubt other witnesses will argue over the epidemiological
studies that form the basis for OSHA's risk assessment, ASSE agrees that
there is sufficient scientific evidence to support a reasonable
reduction in the permissible exposure limit, or PEL.  Moreover, the
National Institute for Occupational Safety and Health, NIOSH, which is
tasked under the OSH Act with making recommendations for regulatory
action and developing recommendations on exposure limits as well as
criteria documents for emergent occupational safety and health issues,
has long had a recommended exposure limit of 50 µg/m3, the level
consistent with the proposed PEL in the OSHA rulemaking.

		The action level of 25 µg/m3 proposed in this rule is consistent with
the threshold limit value for crystalline silica adopted by ACGIH.  And
while there remains some concerns about the ability to sample and
analyze workplace exposures with precision down to this action level, we
understand that this rule is anticipated to be technology forcing and
that OSHA intends to provide sufficient time so that laboratories will
be able to render accurate findings about the amount of silica contained
in samples that are used for compliance by employers as well as for
enforcement purposes.  

		ASSE supports the goals of this rulemaking and believes it's a
reasonable approach and is consistent with the ASTM E1132 and E2625
voluntary consensus standards.  Under the Technology Transfer Act of
1995, as implemented by OMB Circular A-119, OSHA should consider
adopting these voluntary consensus standards where appropriate.  We note
that the ASTM standards do not include an occupational exposure limit
and they simply delineate standard practices for health requirements
related to occupational exposure to crystalline silica.  

		The proposed rule places similar obligations upon employers for
exposure monitoring, medical surveillance and adoption of best
practices, and it emphasizes the hierarchy of controls, with engineering
and administrative controls followed by the use of personal protective
equipment, ranging from full-face respirators and hoods all the way down
to protective masks as a last resort after all other feasible
engineering and administrative controls have been implemented. 
Protective clothing is not required, as silica hazards only concern the
respirable fraction.

		Training of workers is a critical component, as required under the
recently revised hazard communication standard and with the additional
training required under this proposed rule, and we agree with this
approach.  We do ask OSHA to reconsider the ban on job or worker
rotation as a tool for reducing worker exposure levels.

		Silica is a ubiquitous substance, and it makes up a significant
portion of the Earth's crust.  Virtually every human being on the planet
is exposed to it to some degree or another.  And while barring worker
rotation to limit the number of exposed employees certainly makes sense
in the context of highly hazardous chemicals, in some trades all workers
are going to have certain levels of exposure, and the goal should be to
use engineering controls plus other feasible administrative options,
including job rotation, to maintain exposures below the legal and
protective limits.

		ASSE supports the exposure monitoring provisions combined with the use
of objective data to demonstrate a level of confidence that respirable
silica will not be expected to be released at or above action levels
under expected circumstances.  We support using electronic storage of
data to minimize paperwork burdens, and use of industrywide data may be
helpful in making determinations.  Hopefully those in management, labor,
and the safety and health profession can all contribute to this effort. 
Other reliable sources of data will include safety data sheets from
product manufacturers, prior historical sampling data under comparable
conditions, and aggregated company-wide sampling information.  

		Exposure monitoring, we believe, should be done on a periodic
performance-based cycle rather than on a fixed timetable.  ASSE also
supports the task-based approach for construction activities using Table
1 references on methods of reducing construction exposures by particular
trades and functions.  And this again is similar to the approach taken
in ASTM E2625, which has other such charts that OSHA may want to look
at.  If OSHA does adopt this approach, it should also be considering
that an employer implementing all of the recommended actions will be
deemed in compliance with the standard.  OSHA could also perhaps take
this approach in a non-mandatory appendix for some of the general
industry tasks that commonly have silica exposures.  

		I'll try to condense here.  We support the potential value of
establishing regulated areas and creating written access control plans. 
We do recommend that OSHA define the competent person with respect to
oversight of the access control plans and we suggest having specific
training or certification requirements for this.  CSPs and CIHs are
certainly well qualified to develop and implement exposure control
plans.

		And the issue of exposure time for employees that triggers medical
surveillance needs further consideration when it comes to contingent
workers and those who are transient, as other witnesses have mentioned. 
Will the 30-day exposure be per worksite?  Will it follow the worker? 
How will a subsequent employer know what the worker's prior exposures
have been during the earlier part of the year?  And without clear
guidance, this can become a documentation enforcement and legal
nightmare.

		Finally, we encourage OSHA to implement timely guidance and compliance
assistance, including guidance in multiple languages to assist employers
and workers for whom English is not a primary language.  And the
excellent outreach that OSHA has done on its revised hazard
communication standard can serve as a model for this.  

		So we thank you for the opportunity to present our testimony here, and
we look forward to working with OSHA to bring a robust and effective
silica standard to fruition.

		JUDGE SOLOMON:  Okay.  I'm going to ask how many people want to
question?  There are quite a few people, so starting at Dr. Schneider,
will you line up, please?

		MR. SCHNEIDER:  Scott Schneider, 

S-c-h-n-e-i-d-e-r, with Laborers' Health and Safety Fund.  

		Thank you very much for your testimony, both of you.

		JUDGE SOLOMON:  Let me stop you.  

		Are you going to take those statements as exhibits?

		MS. LINDBERG:  Yes.  If you have your testimony here that I can mark
it as an exhibit?  Just hand it over, please.

		JUDGE SOLOMON:  Okay.  Sorry to break in, Doctor.

		MR. SCHNEIDER:  No, that's fine.

		We've had suggestions from previous commenters and questioners and
witnesses about the efficacy of respiratory protection saying, well,
people could just wear respirators.  What's your expert opinion in terms
of the efficacy of respirators in terms of worker protection relative to
engineering controls and what are some of the problems with relying on
respirators to protect workers?

		DR. ANNA:  What we saw in our comments from members were that they
supported Table 1 with the idea that there are engineering and work
practice controls that would be in place, and then respiratory
protection on top of that in situations where those controls aren't
known to be fully effective.  So as a supplemental method, I think we
saw support for respiratory protection.  

		I think we also support that, in cases where it's not necessary
because of the length of exposure, that we shouldn't burden workplaces
with having to require respiratory protection in situations where there
are other controls in place or where the length of exposure is shorter. 


		I think the third piece that came out from our membership was that,
within that table, that it should be based on the protection factors as
opposed to specifying what type of respirator should be there.  That way
if a workplace would choose to provide more protection than what's
currently required by saying half-face piece, full-face piece, so forth,
that they would be able to have that opportunity.

		MR. SCHNEIDER:  Yeah.  I wasn't specifically referring to Table 1.  I
was asking more of a general question about the efficacy of respiratory
protection relative to engineering controls.  I don't know.

		MS. ABRAMS:  I would agree largely with what has already been said. 
Personal protective equipment, specifically respiratory protection in
this case, can be effective when used properly, when fit tested.  And I
in my own practice doing consulting, do see problems sometimes with fit
testing of respiratory protection, especially in the construction trades
where you have a lot of turnover in personnel.  

		From a safety professional's perspective, you should be following a
hierarchy of controls.  Engineering controls should be exhausted to the
extent that they are feasible, followed by administrative controls.  As
I've testified, worker rotation can be used after other administrative
controls are implemented to further reduce exposures, perhaps keeping
them under four hours.  Because personal protective equipment,
respiratory protection, while it can be effective when used properly, it
isn't a solution to minimizing dust exposure or silica exposure in the
workplace.

		MR. SCHNEIDER:  So, but you're saying the hierarchy of controls is
predicated on the premise that engineering controls are more reliable in
terms of protecting workers than respiratory protection is?

		MS. ABRAMS:  Well, in stationary situations it's a permanent fix.  And
even in the construction industry, as shown in Table 1, there are
engineering and administrative controls that can be utilized there
before you have to go to what I consider personally the last resort,
which is personal protective equipment.

		JUDGE SOLOMON:  Okay, thank you.

		MR. SCHNEIDER:  Thank you very much.

		MS. TRAHAN:  Hi.  Chris Trahan, 

T-r-a-h-a-n, with the Building Trades.

		Something you said, Adele, you said it's particularly difficult in the
construction industry to do fit testing or do respirator programs
effectively.  I mean, I'm wondering if you are thinking more than just
fit testing?

		MS. ABRAMS:  Yeah, let me clarify.  I know a lot of construction
companies, I work with a lot of construction companies that have great
occupational health programs already, so I don't think that it's
impossible or infeasible for construction companies to have such
programs.  

		What I was talking about is, especially with smaller construction
employers, and I'm just speaking a bit anecdotally here, I see a lot of
use of the N95 dust masks, and people aren't aware that you're still
supposed to fit test those.  And so if you're just slapping one of those
on a worker, so to speak, and not giving them instruction, not letting
them know that these are supposed to be one-time use, they're not
supposed to take one mask and use it all week, you're not getting the
effectiveness of that respiratory protection.  And so that worker
actually can be lulled into a sense of complacency thinking they're
being protected when they really aren't, and that's one of the concerns
I have.  You know, it's just something I've seen time and time again in,
you know, over 25 years in the safety field.

		MS. TRAHAN:  Thank you.  And one other question for you and ASSE is,
how extensively did ASSE look at Chapter 4 of the preliminary economic
and technological feasibility document, particularly as they relate to
the construction operations discussed therein?

		MS. ABRAMS:  Well, I will a little bit dodge a bullet on that.  We did
review it, of course, as part of our review and preparation of comments,
but we did not retain any forensic economist to look at that and
challenge any of the underlying assumptions.

		MS. TRAHAN:  I wasn't talking about the economic feasibility.  I was
specifically --

		MS. ABRAMS:  Or the technical feasibility.

		MS. TRAHAN:  -- talking about the tech feas in Chapter 4. 

		MS. ABRAMS:  Yeah.  In looking over that, the folks, including myself,
who came from a variety disciplines, who are industrial hygienists as
well as certified safety professionals, in my case a CMSP, came to the
conclusion that this is a feasible rule, both technically and
economically.

		MS. TRAHAN:  Thank you very much.

		MR. KOJOLA:  Hi.  Bill Kojola, K-o-j-o-l-a, and I'm representing the
National Council for Occupational Safety and Health.  I have two quick
questions for both AIHA and ASSE on hierarchy of controls for the
record.

		Does the AIHA and the ASSE fully support the hierarchy of controls as
the fundamental approach for most effectively protecting workers from
exposure to hazards?  AIHA.

		DR. ANNA:  I think the short answer to that is yes.

		MS. ABRAMS:  And also our answer is yes, with the caveat that we did
ask OSHA to reconsider the bar on worker job rotation as an option, you
know, before you get to the point of putting everybody in respirators.

		MS. KOJOLA:  My second question for both AIHA and ASSE is, the
proposed OSHA standard for silica incorporates the control hierarchy by
requiring employers to first use feasible engineering controls and work
practices to reduce the exposure, you know, to or below the PEL, and
that when these controls are not sufficient to reduce exposure to at or
below PEL, only then can respiratory protection, the lowest order in the
hierarchy, only then can it be used to supplement the engineering and
work practice controls.  Does AIHA and ASSE support that exposure
control measure in the proposed silica rule?

		DR. ANNA:  Yeah, we didn't have any specific comments from our members
that addressed that exactly.  So I can tie from the comments that were
made that, you know, particularly with the comments related to Table 1,
where they were looking at it being appropriate that respiratory
protection was an add-on to the controls that were recommended as the
primary in that table.  So I'm going to draw a conclusion and say, at
least to that degree, that our members support that.

		MR. KOJOLA:  Okay.

		MS. ABRAMS:  And we would concur. 

		MR. KOJOLA:  Okay.  Thank you very much.

		JUDGE SOLOMON:  Okay.  So now OSHA, Mr. Perry.

		MR. PERRY:  Yes, Your Honor, we do have a few questions, starting with
Dr. Coble.

		DR. COBLE:  Yes, thank you.  Mr. Anna, I appreciate very much the
comments you made on Table 1.  Table 1 represents something of an
innovative approach, and we welcome all comments on that to try to
figure out how to make that work because I think a lot of people are
supportive but have concerns.  You expressed a concern regarding the
inclusion of a "no visible dust" criteria for assessing effectiveness,
and that in fact tends to be a comment that several other people have
made regarding assessing the effectiveness of the controls. 

		DR. ANNA:  Right.

		DR. COBLE:  And presumably those controls when properly used and
implemented can reduce exposures to the place where they cannot have to
rely upon respiratory protection.  But the issue is limitations on air
monitoring; as you described, you may not get the result back until
after the fact.  

		Would the AIHA be able to provide some language on how we could assess
the effectiveness of -- on site, how you might be able to assess the
effectiveness of control systems and determine whether they're properly
working?

		DR. ANNA:  Sure.  I think we would be able to get our technical
committees to be able to provide some potential language for that.  The
concerns were that it's very subjective to say how much visible dust is
okay or not okay.  But I think that we did have some comments related to
how you might assess that or how you might -- maybe a pre-work
checklist type of approach -- 

		DR. COBLE:  Yeah.

		DR. ANNA:  -- to look at the factors that might lead to variability
in how much dust would escape.  And so I think we could provide some
input that way, yes.

		DR. COBLE:  Okay, thank you.

		MR. PERRY:  Annette Iannucci has a few questions I think.  

		MS. IANNUCCI:  Okay, good morning.  I'd like to start with Ms. Abrams,
but Mr. Anna, feel free to also add to it because you've commented on
this issue also.

		Ms. Abrams, can I clarify with you if you believe that the medical
provision for the transient construction workforce may be possible if
OSHA provides further guidance on how to do that?

		MS. ABRAMS:  Yes.  We're not suggesting that contingent workers or day
laborers should have lesser levels of protection.  It's more a matter of
how do you track that as a practical matter, because you're going to be
holding an employer liable for putting this into motion, the exposure
monitor -- or the medical surveillance, rather, after a certain
threshold of days has been reached.  But if the worker is never with
them for that period of time, they will need to really know what the
actual exposures have been on the previous jobs that that individual has
done.  

		And also, this was brought up, I believe, by the economist, there may
be a method of determining has medical surveillance already been done on
this worker, so that you're not repeatedly putting workers through
multiple medical exams, and that will reduce the overall cost and burden
of the rule as well.

		MS. IANNUCCI:  Okay, thank you.

		DR. ANNA:  I would just add that the AIHA concerns were very similar
along the tracking of workers and how to track their days of exposure as
they move from job to job, and also concern about potentially workers
not being hired because they've approached that limit of workdays
exposed.

		MS. IANNUCCI:  Okay, thank you.  And then just one point of
clarification with Mr. Anna.  You mentioned something about frequency of
medical surveillance in younger workers.  Do you believe that an initial
medical exam is still useful in a young worker?

		DR. ANNA:  Yes.  The comments that came back related to medical
surveillance really tied into the idea that doing a lot of that --
doing a lot of the medical exams on the younger workforce that hadn't
had the years of exposure yet would not necessarily lead to early
detection, but after 10 or 15 years of that exposure, then we would
certainly want to see that described in the proposed regulation.

		MS. IANNUCCI:  Okay, thank you.

		JUDGE SOLOMON:  Mr. Perry.

		MR. PERRY:  Thank you.  I have just a few questions.  

		First of all, Mr. Anna, just a clarification.  In your written
statement -- or your written submission, talking about exposure
assessment and you recommend, I think, for general industry that they
use the AIHA strategy, and you talk about a sufficient sample set
usually numbering from 6 to 10 samples.  Is that annually or over what
period of time are you looking at?

		DR. ANNA:  Typically annually, or as the job changes, right, to
develop your base of statistical significance over time.

		MR. PERRY:  Okay.  And assuming after taking those samples, the job
is -- conditions are fairly stable, we can cut back on the number?

		DR. ANNA:  Right.  Correct, over time.  And you know, to point out
that's it not just the number of samples, but it's also the entirety of
that strategy in ensuring that it's representative of the workers and
work group you're sampling, and so forth.

		MR. PERRY:  Okay.  Very good.  And then in a construction environment,
you addressed, I guess, the use of personal sampling in construction,
it's not so useful because of the changing environment, but you disagree
that OSHA should exempt any kind of exposure assessment process as part
of complying with Table 1.  So what is the exposure assessment process
in construction that makes sense to you here?

		DR. ANNA:  I think what -- what we heard back from our exposure
assessment folks and our construction folks within our membership
obviously has some diverse opinion.  We represent almost 10,000 people
in different industries.  What kind of streamlined to what you saw in
our submitted comments were that for -- as you mentioned, for
workplaces where we know that things are pretty stable, you can follow a
good exposure assessment guide and strategy.  For construction industry,
the concerns were raised about changes in the work environment and the
usefulness of sampling.  So the balance though is that somewhere along
the line our members wanted to see that there is emphasis on verifying
that those controls that are put in place, whether it be in general
industry or in construction, that they actually are reducing exposures
to the level that's expected.  So it's kind of using the sampling to
verify the controls, but then allowing the exemptions such as are
outlined in Table 1.

		MR. PERRY:  Okay, thank you.  

		And, Ms. Abrams, also on the exposure assessment topic, you also
suggested that OSHA not require periodic sampling on a fixed schedule. 
And you made a reference to, if we did so, that that would cause some
unnecessary sampling to be done.  So can you give us some examples of
what unnecessary -- when it isn't necessary really to sample?  I mean,
I think we all know under very low exposure conditions you're not going
to learn anything, but what are some others?

		MS. ABRAMS:  Well, I think what we were getting at was if you're
routinely requiring sampling to be done every six months even though the
job has not changed, even though the personnel doing it, the controls,
have not changed.  Those are examples where you would be imposing a
monetary burden without achieving any tangible benefits.  

		What we did encourage, I think in both our testimony today and in our
written comments, is that companies should be doing some fairly
aggressive sampling upfront to build a database for different job
classifications, job tasks, to determine the efficacy of their controls.
 And then, again, assuming no changes, no introduction of new equipment,
no unique situations, you would have historical data, which to some
extent is used in the asbestos field as well, so you can rely upon that
without having to continually resample.  And I think for people who are
doing the same type of tasks over and over again, that is important.  

		Now, if you introduce something different, there's suddenly demolition
going on nearby which is going to introduce additional respirable silica
into the work environment and this is going to be going on on a
continuing basis, that is going to change the exposures for persons who
are in the zone of danger; additional sampling might be needed there. 
But it allows -- the term we used was performance oriented.  So
periodic, but performance-oriented sampling.

		MR. PERRY:  Okay, very good.  Thank you.

		I think in -- I had some questions for each of you on competent
person, but I think in the interest of time I'll just ask you if in
post-hearing comment, it would be very helpful to OSHA if you could give
us some greater detail on the nature and content and duration of
training that you think would be necessary both in general industry and
construction.

		I know, Ms. Abrams, in your written submission you make reference to,
for example, an OSHA 30-hour course.  But what would be the content and
what's the sort of the background of the person and so forth?  If you
could just include that in your post-hearing submission, that would --

		MS. ABRAMS:  Yes, we could certainly do that.  And, you know, just to
say, the OSHA 10- and 30-hour courses cover myriad topics.  Certainly a
person who is going to be handling the access plan should have at least
some content on industrial hygiene so that they understand what it is
they're dealing with.

		MR. PERRY:  Very good.  

		You had a question, Ms. Lindberg?

		DR. ANNA:  Could I add a comment to that last one real quickly? 

		MR. PERRY:  Oh, yes.  Please do.

		DR. ANNA:  AIHA does have a white paper related to silica competent
persons that could serve as a potential reference for the types of
knowledge and expertise that you would expect somebody in that role to
have.

		MR. PERRY:  Very good.  Thank you.

		MS. LINDBERG:  Just one last question for you, Mr. Anna.  In your
submission you recommended that OSHA come up with a more useful trigger
for medical surveillance in construction, as compared to the, you know,
exposure of more than 30 days over the PEL.  Can you give us a more
specific idea of what that might look like?

		DR. ANNA:  Unfortunately, we didn't have a good idea of what that
might look like.

		MS. LINDBERG:  Okay.

		DR. ANNA:  What came back were the number of concerns that we've
already addressed, but I'll be honest, we didn't get an idea back on how
to recommend a solution to that.

		MS. LINDBERG:  If you do come up with anything and you could submit it
to the record, that would be helpful.

		DR. ANNA:  We will.

		MR. PERRY:  I was going to say, welcome to our world.  I think that's
all we have, Your Honor.  

		And, OSHA, we very much appreciate the two of you taking the time to
submit testimony and appear here today.  So thank you.

		MS. LINDBERG:  And if I could get your testimony right now to mark? 
Thank you.

		MS. ABRAMS:  Thank you.

		MS. LINDBERG:  I would just like to mark Ms. Abrams' testimony as
Exhibit Number 30 and Mr. Anna's testimony as Exhibit 31, to the
hearing record. 

		JUDGE SOLOMON:  Okay.  And you're moving those into evidence and so
moved.  

(Whereupon, the documents referred to as Hearing Exhibits 30 and 31 were
marked and received in evidence.)

		MS. LINDBERG:  Thank you.

		MR. PERRY:  Thank you.

		JUDGE SOLOMON:  Okay.  We're going to come back at 1:30.  

		(Whereupon, at 12:38 p.m., a lunch recess was taken.)

A F T E R N O O N   S E S S I O N

(1:30 p.m.)

		JUDGE SOLOMON:  We've had a change in the cast of characters.  So do
you want to enter your appearance for this afternoon, Ms. Kramer?

		MS. KRAMER:  Hi.  I'm Allison Kramer.  I'm with the Office of the
Solicitor.

		JUDGE SOLOMON:  Okay.  So first up is the Small Business
Administration, and Bruce Lundegren, do you want to state your name and
your affiliation, please?

		MR. LUNDEGREN:  My name is Bruce Lundegren.  I'm with the Office of
Advocacy of the U.S. Small Business Administration.

		JUDGE SOLOMON:  Okay.  So you're going to speak for about 10
minutes --

		MR. LUNDEGREN:  Yes.

		JUDGE SOLOMON:  -- and then we'll have some questions for you.

		MR. LUNDEGREN:  Perfect.  Thank you, Your Honor, and members of the
panel.  My name is Bruce Lundegren, and I am Assistant Chief Counsel for
Advocacy at the U.S. Small Business Administration's Office of Advocacy.
 

		Advocacy was established by Congress to represent the views of small
entities before federal agencies, the White House, and Congress. 
Advocacy is an independent entity within SBA so the views expressed by
Advocacy do not necessarily reflect the views of SBA or the
administration.  Advocacy is responsible for overseeing federal agency
compliance with the Regulatory Flexibility Act, as amended by the Small
Business Regulatory Enforcement Fairness Act, or SBREFA.  The RFA and
SBREFA give small entities a voice in the rulemaking process.  For all
rules that are expected to have a significant economic impact on a
substantial number of small entities, federal agencies are required to
assess the impact of the proposed rule on small business and to consider
less burdensome alternatives. 

		Further, OSHA, as a covered agency under SBREFA, must convene a Small
Business Advocacy Review Panel, also known as a SBREFA panel, prior to
proposing any rules that are expected to have a significant economic
impact on a substantial number of small entities.  

		OSHA convened a Small Business Advocacy Review Panel for its proposed
silica rule in 2003 to consider the impact of the proposed rule on small
entities.  The panel, which consisted of representatives from OSHA, the
Office of Advocacy, and the Office of Information and Regulatory Affairs
within the Office of Management and Budget, was assisted in its work by
a number of small entity representatives, or SERs, S-E-R's, from
regulated industries who provided advice and recommendations to the
panel.  The panel report was presented to OSHA on December 19, 2003,
over 10 years ago.  The SERs generally opposed lowering the silica PEL
and recommended that OSHA enforce the current PEL because of significant
noncompliance.  

		Prior to and following publication of the proposed rule, a number of
small business representatives contacted the Office of Advocacy and
expressed concern about the potential impacts of the proposed rule on
small business.  Advocacy discussed the proposed rule at three small
business roundtables held on September 20th, November 15th, and
January 24th, respectively.  Professional staff members from OSHA
attended the September roundtable meeting and provided an overview of
the proposed rule.

		Advocacy then filed public comments on the proposed rule that are
reflective of the issues raised during the SBREFA panel process and the
roundtable meetings, as well as with additional meetings and discussions
with small entity representatives and small business representatives.  I
will provide a brief overview of those comments, which generally address
the issues of risk, technological and economic feasibility, the
construction industry, the need to consider significant alternatives,
and small business participation in this rulemaking process.  Many of
the concerns centered on the unique challenges of small business in
complying with the proposed rule and the disproportionate burden the
proposed rule would have on small business.  

		With respect to risk, the SERs and the small business representatives
remain highly skeptical of OSHA's risk assessment and determination of
significant risk.  During the SBREFA panel, nearly all of the small
entity representatives stated that they have not seen any incidences of
silica-related illness in their industries in many years or even
decades.  For this reason, the SERs recommended that OSHA enforce the
current PEL and conduct compliance assistance to better educate
employers and employees on silica exposure and risk and safe work
practices.

		They also raised a number of other issues, including that residual
illness could be linked to noncompliance, the data OSHA was relying on
was old and unrepresentative of current workplaces, that modern
industrial hygiene practices have changed dramatically, and that
industries with high silica exposures have either gone out of business
or changed significantly.  

		They raised issues about sampling methodologies and laboratory
protocols being obsolete and unreliable, that there may be physical
factors in the form and condition of silica that significantly affects
risk among various workplaces, and that if the trend in declining
silica-related disease has continued, even at a slower rate, that the
purported benefits of OSHA's proposed rule could be nonexistent.  

		They raised other factors about uncertainty, including confounding
factors, long latency periods, and questions whether a 45-year working
life reflected modern conditions.

		On economic feasibility, the SERs and small entity representatives
expressed concern that compliance with the proposed rule would not be
economically feasible.  In particular, they complained that OSHA's
economic analysis understates costs and exaggerated benefits through the
use of several assumptions, such as calculating costs on a per
overexposed employee basis, assuming that each control would benefit
multiple employees, assuming that firms operate two shifts per day.

		With respect to technological feasibility, the SERs and small business
representatives have expressed concern that the proposed rule is not
technologically feasible.  For example, they complained that OSHA sets
the action level at 25 even though OSHA states that that level is not
technologically feasible, yet they expect small businesses to achieve
that level, or to attempt to achieve that level.

		The construction SERs and small business representatives from the
construction industry also raised technological and economic difficulty
of complying with the proposed rule.  These include the ubiquitous
nature of airborne silica around construction sites, the size and
variability of construction sites, changing environmental conditions and
other factors.  For these reasons, the construction industry has told
Advocacy that Option 1, which is the general industry standard, is
completely unworkable for construction.  

		However, many of the construction SERs and small business
representatives from the construction industry have endorsed the concept
of Table 1, but not in its current manifestation.  They noted several
significant problems with Table 1, but most importantly that Table 1 is
not useful because it does not provide a method of achieving compliance
with the PEL and still triggers all of the ancillary provisions except
for exposure monitoring.  They stated that since Table 1 is supposed to
reflect silica-safe work practices, following it should result in
compliance with the PEL and not a presumption of noncompliance.  

		Advocacy appreciates OSHA's statutory charge with respect to
mitigating workplace hazards; however, the Regulatory Flexibility Act
also requires OSHA to consider significant alternatives to the proposed
rule which accomplish the stated objectives and which minimize any
significant economic impact on small entities.  Since it is the business
community and thousands of small businesses across the country who will
have to implement any new requirements, Advocacy recommends that OSHA
carefully consider the views and experiences small businesses and their
representatives before proceeding.  Many of the trade associations that
represent small businesses and participated in our roundtables will be
testifying at this hearing in the coming days, and Advocacy recommends
that OSHA pay particular attention to the concerns of their small
business members.  

		Advocacy commends OSHA for heeding the advice and recommendations of
the small entity representatives in several respects, most notably in
proposing the Table 1 option for construction, eliminating the ancillary
provisions at the action level except exposure assessments, and removing
the hygiene facility requirements except in regulated and
access-controlled areas.  These changes have resulted in considerable
cost savings for small business; however, OSHA did not follow the advice
and recommendations of the SERs with respect to lowering the current PEL
and proposing an action level one-half the current PEL.  			

		Finally, small businesses -- small business representatives have
contacted Advocacy and expressed concern about the length of the public
comment period and other deadlines in the proposed rule.  In particular,
they have noted that nearly 10 years have passed since the conclusion of
the Small Business Advocacy Review Panel in 2003, that the proposed rule
and associated analyses comprise thousands of pages of material and that
the comment period was interrupted by the federal government shutdown
and Thanksgiving, Christmas, and New Year's holidays.  For these
reasons -- I'm just about done, Your Honor -- for these reasons
Advocacy is concerned that small businesses and their representatives
had not had adequate opportunity to fully participate in the rulemaking
and recommend that OSHA consider providing additional opportunities for
their participation, including the possibility of regional hearings
targeted at small businesses or convening a new SBREFA panel to consider
all of the data and information that has been included in the docket
over the past decade, including the hydraulic fracturing industry, which
was not represented during the panel.

		Advocacy appreciates the opportunity to provide this testimony on
OSHA's proposed rule and hopes these comments are helpful and
constructive.  Again, Advocacy commends OSHA for making several changes
to the proposed rule that would reduce the impact on small entities and
hopes that OSHA will continue to carefully consider the views of small
entities before proceeding.  

		Thank you.  And I will be happy to answer any questions.

		JUDGE SOLOMON:  Mr. Perry.

		MS. KRAMER:  Your Honor, a quick housekeeping matter.  

		Mr. Lundegren, do you have a copy of your written statement --

		MR. LUNDEGREN:  I do.

		MS. KRAMER:  -- you could submit to the record?  Thank you.

		Your Honor, I believe we're up to Hearing Exhibit Number 32.  If I
could have Mr. Lundegren's written statement submitted as Hearing
Exhibit Number 32?

		JUDGE SOLOMON:  Okay.  Did you mark it?

		MS. KRAMER:  I will do so.	

		JUDGE SOLOMON:  Okay.  It is admitted into evidence.

(Whereupon, the document referred to as Hearing Exhibits 32 was marked
and received in evidence.)

		MS. KRAMER:  Thank you.

		JUDGE SOLOMON:  Okay.  Are there any questions from -- okay, I see
two hands.  So let's race to the microphone.

		State your name and spell your last name.

		MR. FREEMAN:  Thank you, Your Honor.  It's Marc Freedman.  First name
is M-a-r-c; last name is Freedman, F-r-e-e-d-m-a-n.  With the U.S.
Chamber.

		Bruce, just a quick, you know, quick set of questions here.  Did the
2003 SBREFA report include any representatives from the fracking
industry?

		MR. LUNDEGREN:  No.  As I just stated in my testimony, it did not.

		MR. FREEDMAN:  And have you had a chance to review the analysis that
was submitted to the record by NIOSH on the fracking industry?

		MR. LUNDEGREN:  Yes, I have.

		MR. FREEDMAN:  Okay.  Would that in any way duplicate a SBREFA panel
report?

		MR. LUNDEGREN:  I don't -- I just mentioned in my testimony that I
think that if OSHA thinks that convening a new SBREFA panel with respect
to the fracking industry would be helpful to their decision making
concerning that industry, that the Office of Advocacy would be happy to
assist in convening and holding that panel.

		MR. FREEDMAN:  And how long does it usually take a SBREFA panel to
conclude their meetings and issue a report?

		MR. LUNDEGREN:  Well, the statute requires a 60-day panel process, but
in reality it takes at least 120 days per OSHA's internal procedures. 
So at a minimum of 120 days.

		MR. FREEDMAN:  And you're familiar with how long this reg was under
review at LIRA?  

		MR. LUNDEGREN:  Yes, I am.

		MR. FREEDMAN:  And presumably --

		MR. LUNDEGREN:  Two and a half years.

		MR. FREEDMAN:  -- presumably part of that time was for NIOSH to go
out and conduct their SBREFA -- excuse me -- conduct their review of
the fracking industry?

		MR. LUNDEGREN:  Oh, you'd have to ask OSHA that question, so --

		MR. FREEDMAN:  We can't tell, but we know that happened during that
period.

		MR. LUNDEGREN:  Right.  

		MR. FREEDMAN:  Okay.

		MR. LUNDEGREN:  We participated in the interagency review of
regulations, and those are considered to be confidential.

		MR. FREEDMAN:  Understood.  Thank you.

		MR. LUNDEGREN:  Thank you.

		MR. SHUDTZ:  Hi.  Thanks.  I'm Matthew Shudtz.  That's S-h-u-d-t-z,
with the Center for Progressive Reform.

		In your written comments you note that the Office of Advocacy
conducted extensive outreach on the proposal with small business
representatives.  I'm just wondering if, consistent with other
advocates' disclosure of their clients' identities, can you provide a
list of the small business representatives who you contacted or who
contacted you in preparation for these remarks or your written comments?

		MR. LUNDEGREN:  Yes, we have a list of the people who were invited to
the roundtable.  I don't necessarily have a complete list of who
attended, and I do not have a meeting records of who said what.  It
was -- it's my recollection of what was said.

		MR. SHUDTZ:  Okay.  And would --

		MR. LUNDEGREN:  But they are not clients of the Office of Advocacy. 
These are open meetings that anyone is welcome to attend.

		MR. SHUDTZ:  To comply with the Freedom of Information Act, though, I
would assume that your communications with outside parties with
reference to this rule, whether it be through the roundtables or
otherwise, should be docketed in some way?

		MR. LUNDEGREN:  They are subject to FOIA, yes.

		MR. SHUDTZ:  And when you sought small businesses' input on this rule,
did you develop a survey instrument that would ensure a statistically
valid sample of small businesses, or was it more of an ad hoc approach?

		MR. LUNDEGREN:  It is an ad hoc approach.

		MR. SHUDTZ:  Okay.  And do you have any -- we heard some testimony
earlier from Dr. Ruttenberg about small businesses, hazard abatement
firms, for instance, that might benefit from this rule.  I wonder if you
could speak to any --

		MR. LUNDEGREN:  Yes.  The Regulatory Flexibility Act, which is the
statute that the Office of Advocacy operates under, or oversees agency
compliance with, deals with the directly regulated entities.  So those
are the entities that OSHA has to assess in their reg flex analysis, and
those are the ones that we're concerned with.  But there would obviously
be many other small businesses, such as consultants, safety equipment
manufacturers, and others who are not regulated entities but obviously
have an interest in the rule.

		MR. SHUDTZ:  Thank you.

		JUDGE SOLOMON:  Thank you.

		Does OSHA have any questions?

		MR. O'CONNOR:  Yes, we do.  Bob Burt will begin OSHA'S questions.

		MR. BURT:  I just wanted to ask one or two questions about the panel
process.  If any representatives of the fracking industry had come
forward at the time of that panel, do you think they would have been
included in the panel as SERs?

		MR. LUNDEGREN:  Yes, I'm sure they would have been.

		MR. BURT:  And we've conducted a number of panels.  Are we normally
able to have every single affected industry represented?

		MR. LUNDEGREN:  No, it's a representative sample of industry.

		MR. BURT:  Thank you.

		MR. O'CONNOR:  And Allison Kramer will continue with questions.

		MS. KRAMER:  I just have a couple questions for you.  First, related
to your comments on the substantive issues in this rule, I just wanted
to confirm my understanding of a couple things.  

		First, SBA has no independent source of expertise in these matters,
you know, things like risk, sampling analysis.  Your comments were
mainly just summarizing things that you heard from the folks that you
represent; is that right?

		MR. LUNDEGREN:  Yes, that is correct.

		MS. KRAMER:  Okay.  And, second, since you are mainly summarizing, and
this is similar to what Mr. Shudtz was asking about you, the comments of
these representatives -- I just want to make sure we understand who
they are.  Aren't some of them trade representatives that represent both
large and small businesses?

		MR. LUNDEGREN:  Yes, they are.  But the focus of our meetings is on
the small business effects.

		MS. KRAMER:  Okay.  Thank you.

		JUDGE SOLOMON:  Okay.  If there's nothing else, thank you very much.  

		MR. LUNDEGREN:  Thank you.

		JUDGE SOLOMON:  I might say that your agency is also affiliated with
ACUS.

		MR. LUNDEGREN:  Yes, we are.

		JUDGE SOLOMON:  I talked about the data, that you're involved in that
data.  Okay.  Thank you very much.

		MR. LUNDEGREN:  Thank you.

		JUDGE SOLOMON:  So next is the National Federation of Independent
Business.  Okay.  State your name, please.

		MR. BOSCH:  My name is Dan Bosch.

		JUDGE SOLOMON:  And you have a statement?

		MR. BOSCH:  I do.

		JUDGE SOLOMON:  You'll have 10 minutes.  Go ahead.

		MR. BOSCH:  Thank you.

		My name is Dan Bosch.  I represent the National Federation of
Independent Business.  NFIB represents about 350,000 independent
business owners who are located throughout the United States.  At least
25 percent of NFIB's members are in industry categories that OSHA has
identified will be directly regulated.

		Our membership fully understands the need to protect workers from any
dangers presented by the exposure to respirable silica; however, they
believe that this proposed rule is not the answer.  In the written
comments NFIB submitted February 10, we highlighted several reasons why
this is the case. 			The first reason is OSHA never adequately analyzed
if increase in compliance with current standard would improve rates of
silica illnesses or deaths.  According to CDC data, since the 1960s,
rates of silicosis deaths have dropped 93 percent, despite OSHA's
estimate that 30 percent of the regulated population is not currently in
compliance. 

		Given the success of OSHA's current standard, and with technology
constantly improving, the most logical approach the Agency should have
considered is helping the regulated community, like our small business
members, achieve compliance.  Unfortunately, OSHA reviewed nine other
alternatives, including the proposed rule.  It is unclear why the Agency
looked at so many, yet avoided the most obvious alternative.  This is
further troubling because the 2003 Small Business Advocacy Review Panel
specifically recommended that OSHA explore this possibility.

		The second reason is that OSHA has not adequately justified why a new
rule is necessary.  It has greatly overestimated the number of lives
this rule purportedly would save.  OSHA's analysis says 375
silicosis-related deaths would be saved annually; however, according to
the CDC, only about 150 deaths per year occur in cases where silicosis
was the underlying cause or contributing factor.  Therefore, OSHA has
overestimated lives saved from silicosis by about 150 percent.

		Further justification based on market failures is also inadequate. 
NFIB finds two overarching problems with this analysis.  First, the
evidence cited for each market failure is very general and could be used
as justification for virtually any type of perceived workplace market
failure in the American economy.  Regardless, none of these
justifications necessitate further government intervention.  Second,
OSHA seemingly makes its case of market failures without acknowledging
that the government has already intervened in the market with success. 
That success has only been limited by OSHA's inability to help the 30
percent of the market not in compliance achieve it.

		The third reason we oppose the rule is that OSHA offers no explanation
for how it would ensure compliance with the proposed PEL.  Given that
the primary reason for why the current PEL has not been as successful as
it could be is because OSHA has not been able to ensure compliance, it
is illogical that the Agency would decide the best way to further lower
silica-related deaths and illnesses is to lower the PEL, add in
expensive new employer requirements, and include a virtually
unattainable action limit.  If OSHA cannot ensure compliance with the
current standard, why would it seek to layer on more requirements and
more stringent standards which would further tax OSHA compliance and
enforcement staff?

		A fourth reason is OSHA's inadequate Regulatory Flexibility Act
compliance.  Under the RFA and SBREFA, OSHA has certain obligations to
adequately consider the impact of a regulation on small businesses. 
Specifically, OSHA is required to perform adequate outreach to small
businesses when a proposed rule is expected to have a significant
economic impact on a substantial number of small entities.  

		In such a case, OSHA is to convene a Small Business Advocacy Review
Panel of small entity representatives to obtain input on a forthcoming
proposed rule.  In 2003, OSHA convened a panel each for general industry
and construction regarding a forthcoming silica rule that was later put
on hold.  These panels overwhelmingly recommended that OSHA not continue
to pursue a rule.  The panel determined that the rule was unnecessary,
overly burdensome, and it would not necessarily address the problem.

		Rather than convene a new panel for this proposed rule, OSHA is using
the 2003 panel to meet its obligations under the RFA.  NFIB believes
that panel is inadequate.  OSHA must perform outreach through the
reasonable use of techniques, including panels.  Relying on a
10-year-old panel is not reasonable in our opinion.  As an example, this
proposed rule covers hydraulic fracturing, an industry that was nascent
10 years ago and was not discussed by either the panels nor the draft
rule they considered.

		Changes in technology have made things safer for workers and helped
further lower respirable silica exposures.  Affected businesses have
reported to us that there is now widespread use of devices that release
water at the point of cutting to help reduce dust particles dispersed in
the air.  There is also greater use of tools with dust collection
components to help prevent particles from being breathed in.  These are
just a couple of examples where OSHA's 2003 panel is not reflective of
current technologies.  

		Furthermore, two NFIB members that participated in the 2003 panels
disapprove of OSHA using that panel for this NPRM.  Specifically, they
cited changes in work practices and technology as key reasons why a new
panel should have been convened before the proposed rule was published. 
In addition, one noted that the new data that OSHA has put forward in an
attempt to justify the NPRM still does not demonstrate a risk to workers
that would require additional regulation nor does it demonstrate that
OSHA's proposed scheme would actually achieve its goals.  

		NFIB strongly believes that OSHA has not fulfilled its legal
obligations under the RFA and urges the Agency to, at a minimum,
withdraw this NPRM and convene a new panel to adequately reflect changes
that have occurred since 2003.

		The final problem to mention is that NFIB research shows OSHA has
severely underestimated costs to businesses and the economy.  OSHA
estimates total compliance cost for employers to be about 637 million
annually over 10 years; the average annual cost for all firms would be
about $1200, while those firms with 20 or fewer employees, truly small
businesses, will have an average cost of 550.  NFIB's research
foundation conducted its own analysis, and using OSHA's own compliance
cost estimates, found the total cost for the economy to average $7.2
billion annually over 10 years.  The study also found net job losses of
27,000 jobs over the 10-year analysis window.  A copy of this report was
submitted for the rulemaking record as an appendix to our written
comments.  

		Importantly, the NFIB study found that for general industry and
maritime, firms with 4 or fewer employees were more than double -- face
more than double the cost as opposed to employers with 100 to 499
employees.  Specifically, the smallest firms will face about $2200 per
year, while the 100 to 499 employee group would realize about $1,000 per
year.  For construction, the smallest firms would face nearly $4,000 per
year, about eight times OSHA's estimate.  

		Getting back to the Agency's estimate, OSHA finds its assumed cost to
be insignificant relative to the revenues and profits of the industries
it examined; however, the financial figures it uses for the analysis are
from 2008 and earlier, before the recession.  In many industries,
particularly construction, revenues and profits are lower today than
they were back then.  The costs accordingly represent a higher
percentage of impact today than six years ago.  To obtain a realistic
projection of impact, OSHA should redo the analysis with current
figures.

		Further, in determining the cost estimate of this NPRM, OSHA has
assumed full compliance with the current PEL, even though its own data
show that 30 percent of the regulated population is not currently in
compliance.  Therefore, the cost estimate is entirely inaccurate, even
assuming all other assumptions are true.

		In conclusion, we believe OSHA should withdraw the proposed rule, and
it should explore how silica-related illnesses and deaths would be
affected by improving compliance rates with the current scheme because
it cannot justify the proposed changes.  Even if OSHA were to enact this
proposal, it gives no description of how it would ensure compliance with
it, even though it can't ensure compliance currently.

It needs to convene a new SBAR panel, and last but not least, it needs
to produce a more realistic cost estimate.

		JUDGE SOLOMON:  Okay.  Thank you, Mr. Bosch.

		Ms. Kramer.

		MS. KRAMER:  Mr. Bosch, do you have a copy of your written testimony
that we could have marked and entered into the record today?

		MR. BOSCH:  I do, yes.

		JUDGE SOLOMON:  Are there members of the public who want to ask Mr.
Bosch any questions?

		Not seeing any -- oh, one.  Is that a hand?

		Come forward, please.

		MS. KRAMER:  Your Honor, Mr. Bosch handed me two documents.  The first
appears to be their comments on the silica rule.  I'd like to mark that
as Hearing Exhibit Number 33 and have it admitted to the record.

		JUDGE SOLOMON:  So admitted.

(Whereupon, the document referred to as Hearing Exhibits 33 was marked
and received in evidence.)

		MS. KRAMER:  And the second seems to be the executive summary of the
NFIB small business impact studies.  I'd like to mark that as Hearing
Exhibit Number 34 and have that admitted as well.

		JUDGE SOLOMON:  Okay.  That is also admitted into evidence.  

(Whereupon, the document referred to as Hearing Exhibits 34 was marked
and received in evidence.)

		JUDGE SOLOMON:  Would you state your name and spell your last name?

		MS. SEMINARIO:  Yes, my name is Peg Seminario, S-e-m-i-n-a-r-i-o, from
the AFL-CIO.  Thank you for your testimony.  Just a couple of questions.
 

		You mentioned in your testimony that the NFIB members had reported
that there had been changes in technology since the SBREFA panel back in
2003 to the present time, and you talked about the -- you know, some of
the particular controls with respect to local exhaust ventilation on
tools, wet methods, et cetera.  Do you have -- did your members provide
specific information on these control measures and could you provide it
to the record?

		MR. BOSCH:  They did not.  I can see if we could come up with some,
but the specifics that I cited in my testimony were anecdotal.

		MS. SEMINARIO:  Okay.  Now, did any of your members -- did you
request and did you receive any exposure data from any of your members
on what current levels of exposure are being seen in their operations
currently?

		MR. BOSCH:  We did not.

		MS. SEMINARIO:  All right.  Thank you.

		You also mentioned that a number of people, and I don't know, many of
them I'm sure were NFIB members, participated in the 2003 panels.  I
guess there was one on construction and there was on general industry. 
Are any of those individuals, are they appearing in this proceeding at
this time?  

		MR. BOSCH:  They are not as far as the testimony portion.  I know that
one of the members that participated in the panel process submitted a
letter for the record during the written comment period.

		MS. SEMINARIO:  So they have submitted some comments.  Because this
hearing as well does provide an opportunity for people to come forward
and present their views and present additional testimony, correct?

		MR. BOSCH:  It does, yes.

		MS. SEMINARIO:  It does.  So there --

		MR. BOSCH:  If I may, I think for a lot of our members that are trying
to run their businesses, getting to Washington, D.C. isn't the most
convenient for them, but it's -- we understand that they can submit a
written comment.

		MS. SEMINARIO:  No, we understand that.  We've got a lot of workers
who are coming in and they have jobs, and so we do understand that can
be an issue.  But they have had the full -- they've had the same
opportunity to participate --

		MR. BOSCH:  Sure.

		MS. SEMINARIO:  -- that everybody else has.

		MR. BOSCH:  Absolutely.

		MS. SEMINARIO:  Thank you very much.

		JUDGE SOLOMON:  Thank you.

		Okay, Ms. Kramer.

		MS. KRAMER:  I believe Bob Burt has a couple questions.  

		MR. BURT:  Yeah, I had a couple of questions about the economic
analysis that you provided.  And you stated that in your testimony that
the smallest firms would pay twice the costs that others would, as well
as the attachment includes a number of tables showing costs for various
sizes of firms.  How were these derived?

		MR. BOSCH:  That, I'm not sure.  I'd have to speak with my economist
about that, but I'd be happy to provide something in follow-up.

		MR. BURT:  Yeah, that would be very critical.  

		MR. BOSCH:  Sure.

		MR. BURT:  Because they're very different than OSHA's, and there's no
explanation.  They're just giving the tables.

		MR. BOSCH:  Okay.

		MR. BURT:  Second, similar question is, there are a lot of ways you
can enter data into a model such as the one you used.  And a little more
detail on just exactly how the model's parameters were manipulated would
be helpful in evaluating this.  

		MR. BOSCH:  Absolutely.

		MR. BURT:  I'd also ask you to contrast this to -- there are two
other model results in this record:  one, I believe, done by
Environomics; one by OSHA, which see much smaller ratio of effects to
costs.  For example, the Environomics model done for, I believe, ACC and
some others, shows 10 times the cost has a job loss of only 17,000. 
Similarly, it has -- with again 10 times the cost, a relatively -- a
much smaller multiplier than you have of the total impact.  OSHA's had
fairly -- with much smaller -- with the same costs you used, had
fairly negligible impacts.  To the extent that you could help us out in
explaining why this model has so much higher impacts, that would be
helpful.

		MR. BOSCH:  Okay, we will do that.

		MR. BURT:  Thank you.

		MR. BOSCH:  Thank you.

		JUDGE SOLOMON:  Anything else?

		MR. O'CONNOR:  Yes.  Mr. Bosch, in your testimony you referred to OSHA
not being able to ensure compliance with its current rule.  To the
extent that there is noncompliance, do you have a sense as to why
there's noncompliance?  Is it a matter of employers not being aware of
what exposures are in their workplaces and what the current limits are,
or are there other reasons?

		MR. BOSCH:  If I had to guess, I would say that it is simply the
inability of our members to fully understand exactly what's expected of
them and exactly how to prevent as many exposures as possible.

		MR. O'CONNOR:  Thank you.

		MS. KRAMER:  If I can just follow up on that.  You mentioned that if
you had to guess that would be your answer.  Have you spoken to any of
your members?  Have they suggested anything like that to you?

		MR. BOSCH:  Yes.  They absolutely have.  I've spoken to at least a
dozen of our members on this.  

		MS. KRAMER:  And your sense from those discussions is that they simply
don't understand the current rule?

		MR. BOSCH:  That is -- that's a considerable part of it.  A lot of it
is also that, you know, they just -- they may not be able to, you know,
fully get their arms around, you know, places to go to get answers.  So,
yes, you're right.

		MS. KRAMER:  Okay, thank you.

		MS. BOSCH:  Yep.

		MR. O'CONNOR:  We have nothing further.

		MR. BOSCH:  Thank you.

		JUDGE SOLOMON:  Okay.  Thank you very much.

		The next panel is the U.S. Chamber of Commerce revisited.  Let's go
off the record for a minute or two while they make their way forward.

		(Off the record.)

		(On the record.)

		JUDGE SOLOMON:  Okay.  Mr. Chajet, introduce the panel, please.

		MR. CHAJET:  Yes.  Thank you very much.  

		Testifying today on behalf of the United States Chamber of Commerce
are three more expert witnesses, and then I'll have a short statement at
the end.  

		First of all, Mr. Greg Sirianni is going to be testifying.  Mr.
Sirianni is an adjunct professor at the University of New Haven.  He
teaches several subjects within the Department of Fire Science,
including the performance characteristics of personal protective
equipment used in industry and in the fire service.  He's a certified
industrial hygienist.  He has conducted a number of industrial hygiene
field surveys and exposure assessments in a variety of mines, foundries,
automobile and truck manufacturing plants, wood treatment facilities,
marine vessels and granite quarries.  I'm happy to have Dr. Sirianni
with us today, who's going to talk a little bit about the practical
elements of protection from silica exposure.

		We also have with us today Dr. Faten Sabry.  Dr. Sabry is a Senior
Vice President in the securities and mass torts practice of NERA
Economic Consulting.  She's responsible for providing economic analysis
and testimony in cases involving product liability, mass torts, complex
damages in securities.  Her work has included estimating future personal
injury claims in toxic torts, analyzing liabilities related to
environmental contamination, and analyzing economic issues involved in
class certification.  Dr. Sabry has testified as an expert in state and
federal courts and is the author of various articles on the econometric
analysis of claiming behavior, impact of tort reforms and regulatory
changes, and determinations of trade protection.  Her research has been
published in the Journal of Investment Compliance, Journal of
Alternative Investment, Business Economics International Trade Journal,
and others.

		And last but not least, we have with us Dr. Ronald Bird, an economist
specializing in costs and benefits of regulation.  He received his Ph.D.
at the University of North Carolina, Chapel Hill, and he has faculty
affiliations at North Carolina and the University of Alabama.  He served
as an economic regulatory analysis consultant from 1989 to 1999 to OSHA,
EPA, the U.S. Army Corps of Engineers, U.S. Navy, U.S. Department of
Energy.  He was the chief economist at the U.S. Department of Labor from
2005 to 2008, and he was at the United States Department of Labor during
President George Bush's administration.  

		With that, I'm happy to welcome our experts, and I call on Mr.
Sirianni to speak to you -- 

		JUDGE SOLOMON:  Okay.  Let me just say we have two hours attributed,
and we assume that there are going to be a lot of questions, and I'm
sure that OSHA will have a lot of questions.  Go ahead.

		MR. SIRIANNI:  Okay.  Can you hear me?  Yes?

		MS. KRAMER:  Yes.  

		MR. SIRIANNI:  Affirmation.  Okay.  

		My name is Greg Sirianni.  As Mr. Chajet said, I am adjunct professor
at the University of New Haven, and I spent many years looking
specifically at silica and silica-related issues and exposures in a
variety of workplaces.  And I came here today sort of to try and lend a
little bit of my experience with how we can control some of these
out-of-compliance issues with something that will protect the workers.

		You know, I come from a background in a lot of the industry that I've
been in of what you can do that works best in certain scenarios.  And I
think for silica, there are a lot of particular jobs out there that have
really high exposures that we just require certain controls that aren't
feasible.  

		Last year, at the end of last year, a paper came out by a
NIOSH-related person whose name was Esswein, and he described and
discussed exposures in the fracking industry.  Now, fracking industry
and certain construction jobs tend to have some of the highest exposures
that we see and are in environments that don't lend themselves to the
typical control hierarchy is what -- you know, people like to get into
this discussion of, you know, the hierarchy of controls and, you know,
you're going to do A, and then you're going to do B, and then you're
going to do C.  In the last decade or so, that sort of discussion of
hierarchy of controls really doesn't fit for all types of workplaces,
so -- and certainly that's the case for some of these silica-related
jobs.

		So I'm here to discuss the proper use of powered air-purifying
respirators and respiratory equipment in lieu of large-scale engineering
controls that aren't feasible and not practicable and have been -- are
sort of in design stages and not available for large segments of the
working population right now.  

		So some of the jobs in the fracking that were described in the Esswein
paper are the sand mover operator and transfer belt operators, and these
jobs have -- were shown to be 20 times the current PEL.  And that puts
you in a situation where you can't use, you know, a traditional
half-mask respirator.  You need to use something like a full-face mask
respirator, which has an assigned protection factor of about 50, or
powered air-purifying respirators.  

		I actually brought with me an example of some of the newer -- one of
the newer powered air-purifying respirators that's available so you get
a sense of sort of the light-weight materials and its incorporation of
all types of PPE into one unit.  So this has a face shield and a dust
shield that wraps around the neck.  There's also a very small fan unit
that will attach to a belt and a very small battery pack.  Okay, and --


		JUDGE SOLOMON:  Let me just say, I have -- this is déjà vu for me. 
I get these all the time.  

		So you've already described pretty much what is -- what it looks
like, right?  We have -- we're making a record and -- 

		MR. SIRIANNI:  Okay.

		JUDGE SOLOMON:  -- transcribing this.  So are you going to provide us
with a picture of it, or --

		MR. CHAJET:  We'd be happy to provide --

		MR. SIRIANNI:  Sure.

		MR. CHAJET:  -- a photograph, Your Honor.

		JUDGE SOLOMON:  Okay.

		MR. SIRIANNI:  Or I could -- there's even, you know --

		MR. CHAJET:  We have two hours.  We want our witness to feel
comfortable about his testimony.  We don't want to speed him up.  We
want him to say whatever he has to say.

		MR. SIRIANNI:  Okay.  So I'll let it sit like this.  There, it's a
host.  

		So basically this unit can now integrate all forms of personal
protective equipment into it.  So you can literally clip on some
earmuffs for noise control if needed; it has face protection already
integrated.  So it's really sort of a really nice system.  

		Secondly, the batteries that are utilized now are -- have come an
exceptionally long way in just the last few years.  So they're very
lightweight, they recharge very quickly, and they're a lower cost.  So
it's something that, you know, the cost has come down on these units
quite a bit.

		So getting back to the fracking operation and the exposures that we
have seen, you're really going to need something along these lines to
protect workers in areas that you can't quite retrofit or add on
engineering controls.  You know, you're going to -- in these
operations, you know, the amount of air that you would need to put a
hood over something is -- it's just not, it's not possible.  

		I've been in dozens of mine environments and they move air with these
huge fans and, you know, you need something along, you know, those
lines, but then with some type of capture hood and filtering mechanism,
and to move that much air it's just not practical.  So this would be a
way that you can immediately protect workers and have a positive effect
on the exposures that they are seeing in some of these jobs.  

		Now, NIOSH themselves in this document also point to the use when the
controls are not feasible, and so respirators may be used when
engineering and work practice controls are not technically feasible or
when they fail and need to be supplemented.  So not only is this
something good for areas that even do have engineering controls already,
but with the potential for exposure that's there with the amount of
silica that can potentially be in the air with the amount that they're
using for, you know, the injection process and all that.  If an
engineering control fails, you have an exorbitant amount of material
that's going to be spilling into the work environment.  

		People have been talking about, you know, you can monitor by looking
at, you know, dust in the air.  I can tell you if you look at the dust
cloud in the air when, you know, these materials are being ingested,
it's opaque, you know, if one of these units would fail.  So at that
point where are you?  You have just a huge exposure that's uncontrolled.
 So I would like to see workers be able to utilize something like this,
just because of the practicality of it and the like.

		So NIOSH and also OSHA also put out a hazard alert on fracking and
they outlined some work practice changes and a few engineering controls
in order to limit exposure.  And some of these engineering controls are
only in concept stage and so, you know, you're left in this area that,
you know, people are being left unprotected.

		So NIOSH also proposed the use of respiratory protection as a control
measure.  Specifically they state:  Respiratory protection, when it is
needed to protect workers when engineering work practice controls are
not feasible, while they are being implemented or when they do not
reduce silica levels below OSHA PELs, employers must provide workers
with respirators.  

		So then if silica level is more than 10 times the PEL, a half-face
respirator is not adequate and in which case a full-face powered
air-purifying respirator must be provided.  And, in general, workers
find PAPRs more comfortable.

		There was also Dr. Mirer -- I don't know if he's still here.  He
was --

		DR. MIRER:  Hi.

		MR. SIRIANNI:  Hello.  How are you?

		So, you know, he mentioned something back in 1937 when there was lead
soldering or something happening, and then he went to speak on powered
air-purifying respirators and how they were discounted as being useful. 
I have to say it's interesting that the current lead standard actually
recommends the use of powered air-purifying respirators when the
employee chooses to use one and when they are adequate for the
environment.  So that tells me that OSHA has looked at these as a
benefit.  

		And as far as Dr. Mirer saying that these were not useful, I mean,
they were first developed in like the early '60s, and that was really
under the direction of respirator manufacturers trying to do something
about those individuals that have physiological issues or physical
issues with maybe facial malformations or -- it's very hip to wear
beards now.  So even folks that have beards typically couldn't wear a
traditional respirator because of the face seal.  This is something that
allows folks with respiratory ailments, facial conditions, even dental
problems, that can't wear a traditional respirator to put one on without
the need for fit testing.

		Which is another complaint that folks seem to have with respiratory
protection equipment is the need for fit testing and, you know, people
come in and they change jobs and then you need to fit test somebody
else.  And what is great about these is someone can be trained on a new
job -- there's a lot of, you know, temporary workers, people that come
in to do certain roles, and you don't need to, you know, send them out
or have a full course.  You can teach someone how to wear one of these
properly because they are -- they're relatively fool proof.  They're an
incredibly advanced technology, but -- and they're getting better all
the time, but they're very simple to use.

		Now, the NIOSH certification of these units, they look at both the
helmet and the mask, all the components, the fan systems, the
filtration, and they're really -- for the silica standard, they're sort
of ideal in the sense that when NIOSH certifies these respirators
they're looking at silica when they do the tests.  So they have these,
you know, four-hour dust test and they'll try and overload the mechanics
of them to try and see how they perform, the volume of air that's being
drawn through them, and, you know, from start to finish they can only
reduce a certain amount of their volume.  So anything that's certified
has been certified actually against, you know, dust and material that is
reminiscent of what we're trying to regulate here.  So they're good for
that purpose.

		Now, we talked about assigned protection factors, and the assigned
protection factor for a powered air-purifying respirator is 25, and that
is what NIOSH and OSHA have come up with.  NIOSH in their respirator
decision logic, and OSHA actually has a footnote related to these units.
 Because we know, you know, in all the newer peer-reviewed literature
and studies of these units that are more modernized than ones that Dr.
Mirer was mentioning, we know that they perform exceptionally well.  In
some cases, you know, in hundreds of thousands of protection factors. 
So, you know, there's a certain point -- I'm not going to get into the
statistics where you cut it off and say, well, that's, you know, you
don't need to get into that level of protection because it would
essentially be like trying to inhale a cinderblock or something.  

		But on the bottom end of that, they're also conservative in the level
at which they say here is your assigned protection factor.  They'll look
at the bottom five percent of not just an individual but between
individuals.  So there's, you know, a lot of conservative estimates that
go into these assigned protection factors.  OSHA themselves will give
you a 1,000 protection factor if you can display that in your own
workplace.  So that would be getting a unit like this and putting a
probe somewhere in and sampling on the inside and the outside
simultaneously and seeing the difference.

		I want to get into how far along these units have come in just the
last few years even.  They are useful and they work.  And, you know, my
students -- I have a lot of students that are -- they're basically
fire service; they're going into the fire service.  They're going to be
chiefs or assistant chiefs, and they require a good background in
occupational safety and health because they are actually -- they're
going to actually run their OSH programs, you know, within their own
departments someday.  And, you know, these guys are -- and gals are
very aware of personal protective equipment, and in the fire service
it's your only line of defense.  And they wear SCBAs and similar in
nature to -- sort of getting off track but -- sometimes I get off
track.  I apologize.  I'm just going to stay with this.  

		So they're useful and they work, and there have been a lot of papers
recently that describe this.  They'll go and they'll get a bunch of
these units, and they'll test a variety of different PAPRs in different
working conditions, different work environments, different workplaces. 
Some do it in a laboratory setting and those are what are called
simulated workplace protection factors, but this -- and then they do
them in the actual workplace.  And of all these studies that I've seen
recently, these have been shown to achieve that 1,000 workplace
protection factor, you know.  So that's a very conservative value.

		In the early days when these were sort of coming online and being
utilized, NIOSH had reduced their assigned protection factor from 1,000
down to 25.  And that was due to some early studies that looked at some
of these, you know, some of the first versions of these units.  And one
study that somehow just kept getting through and was very influential in
what they ultimately determined to then reduce these from 1,000 down to
25, was a study by Myers -- not Mirer, not the football star -- but
Myers.  

		And this paper, buried in there in one paragraph, one line at the
bottom said, we also found some dust in the blower unit between the hose
and the connection.  So it literally had -- the unit itself had failed
and air was getting through behind the filter, but somehow they just
ended up keeping this study as being useful.  And so there's -- you
know, not only were those units sold, but some of the early studies were
kind of fraught with disaster.  So ANSI has these units at 1,000 with
the helmets like this.  And right out of the box there are some
additions that you can add where you can get that thousand protection
factor.  

		But as far as being comfortable for the workers, I just really think
that if we're going to try and protect folks in areas that, you know,
we're obviously having difficulty, then this is the right way to go.  

		So on top of just their comfort, they are also -- they don't impose
what's known as a physiological burden.  So traditional respirators,
they're what are known as negative pressure.  So you literally have a
seal against your face, and when you breathe in, it takes your lung
capacity and all that resistance to draw air through the filter and then
to inside the mask.  If you don't get a good fit or a good seal, if you
have to breathe deeply, which a lot of folks do in like hard working
environments or if you're real physical labor, you end up breathing
really rapidly, really fast, it's difficult, you end up -- you know,
you have heat load, reduced carbon dioxide, reduced oxygen levels,
carbon dioxide in the mask, you can draw contaminants in and around the
filter.

		These units essentially do away with all that.  They're powered, they
put fresh air at a decent volume into the mask.  It's easy to breathe. 
You just breathe normally.  There's no reduced capacity for yourself,
and everybody finds them very comfortable.  

		In my experience, I've had a lot of workers that were adverse to
traditional respiratory protection.  They had, you know, claustrophobia,
you know, I've had all these description of, you know, how people are
uncomfortable, and those aren't even people that are actually
physiologically affected.  They're just psychologically affected.  And
so these types of units had done away with those problems.  So, in
essence, there's been a lot of studies that also show how comfortable,
and there's been no physiological burden associated.

		NIOSH even addresses the protection of PAPRs in the context of
potential use in the hydraulic fracturing industry where they say: 
"Full-face powered air-purifying respirators provide more protection
than half-face air-purifying respirators and, in general, workers find
PAPRs to be more comfortable."

		So while NIOSH proposes the use of full-face PAPR due to their comfort
and protection, it should be noted that the hood and helmet style have
inherently more comfort due to not having that seal pressed against your
face as compared with other respirators.  

		And also another thing that I think is very important in trying to
control these exposures is realizing that if a worker finds something
comfortable, they have a tendency to wear it.  You know, I battled this
constantly in different work environments is folks taking off their
protective gear because it wasn't comfortable or it was obtrusive in
some way.  And folks across all types of work environments, including
EMTs going into certain locations where there's like, you know, a CBRN
issue or something and need to provide resuscitation, have utilized
these inside ambulances and have commented on the fact that they're
comfortable and they have no hindrance even moving around the confines
of an ambulance.  

		So I think that there's enough data here to show that folks like them,
they provide adequate protection, they have no physiological burden and
they're useful.  And I think that they should be entered into the
discussion outside of the realm of this antiquated hierarchy of controls
to really put these things in a different category, because the
technology is there and there are thousands of workers that need
something immediately and this, I think, is the best way to provide
adequate protection.

		Okay.  And I'm going to wrap it up.  There are obviously benefits to
engineering controls, and by all means I want the use of engineering
controls when they are possible.  And in certain work environments, you
know, basically outdoor environments, continually changing workforces,
you need to have something that can protect all workers in all
scenarios, and engineering controls are good for most cases, but there
are a lot of workers out there that need something like this, and I
really recommend their use.

		I think that should do it for me.

		DR. SABRY:  Thank you.

		JUDGE SOLOMON:  Next.

		DR. SABRY:  Thank you.  Good afternoon, Your Honor.  Good afternoon. 
My name is Faten Sabry.  I am a Senior Vice President at NERA Economic
Consulting, and I'm an economist by training.

		I have examined OSHA's methodology of estimating expected benefits of
the proposed silica rule, and I have also assessed the associated
Federal Register as well as various calculations and data files that
OSHA made available to the public.  And I would like to raise concerns
about specific quantitative issues that would affect OSHA's estimates of
the benefits of the proposed rule.  And please note that my comments are
mainly specific to the estimates related to the fracking industry.

		My first comment really has to do with the size of the samples that
OSHA used to estimate the exposure profiles -- or to estimate the
exposure profiles of various job categories in the fracking industry. 
The first step in OSHA's computation of benefits is based on exposure
profiles of different job categories.  And in doing that OSHA -- or the
OSHA study relied on NIOSH reports for 11 fracking sites that were
conducted in 2010 and 2011.

		And in my first slide, I am showing you the summary or the breakdown
of the size of the samples for each job category that OSHA relied on for
fracking.  And, for example, for ancillary workers the sample size was
6; for conveyor belt tenders there were 2; for remote workers there were
a total of 26.  So this is the total of the size of the sample that OSHA
relied for this first step in deciding how many workers are exposed at
different levels of silica.

		When I added -- after replicating OSHA's computations, I've added to
that table a computation with a very standard statistical metric or
measure of certainty or reliability, which is a 95 percent confidence
interval of these estimates.  And as you can see from this table, for
example, the 95 percent confidence interval around the estimate of
silica exposure for ancillary workers ranges from 20 to 8,088.  What
does that mean?  Well, it means that there is roughly a 95 percent
chance that the true exposure level of workers in that job category be
as low as 20 and as high as 8,088.  And OSHA acknowledged in their
papers that these sites, the NIOSH sites were not randomly selected and
that the data does not exist to assess whether the sites are
representative.  

		But even if one assumes that the sample size are representative of all
the sites in the fracking industry, a standard statistical measure like
the 95 percent confidence interval document a high level of uncertainty
in OSHA's estimates of silica exposure, which is their first step in
computing the benefits.

		My next comment has to do with the step that follows that in OSHA's
methodology.  So once OSHA computes or once OSHA's study computes the
exposure for the various jobs, they extrapolate to the population of
workers in the fracking industry.  The following step is where the study
would rely on the epidemiological literature to compute excess risk of
various diseases.  

		To be very specific, OSHA relied on three epidemiological studies on
the dose-response function of documenting the relation between silica
and lung cancer, and used four models from these studies:  two from the
Steenland study, one from Rice, and one from a study by Attfield and
Costello.  

		And that, I have a comment about the Attfield and Costello effect on
OSHA's estimate of excess risk for lung cancer in particular.  And to
demonstrate that I will -- I'll bring your attention to the chart that
I'm presenting to you here.  And this chart is -- I computed this chart
using the exact same models, four models that OSHA used to compute the
excess risk of lung cancer using the exact same functional forms.  And
the only thing I did is I varied the level of exposure on the horizontal
axis and what I'm measuring on the vertical axis, and what you're seeing
is the level of excess risk.

		And as you can see, for example, at an exposure level of 100 on that
chart, the Attfield and Costello model would predict an excess risk of
lung cancer that is twice as large as every -- as any of the other
models that OSHA relied on to compute the excess risk of lung cancer
among the fracking workers.  And as you can tell from the chart, that
impact or the outlier result of Attfield and Costello increases as the
exposure level increases.  

		And to assess the impact of that study, I also computed the avoided
fatalities or the -- as well -- the same way that OSHA did, using
their backup files, and computed the annual number of avoided fatalities
from lung cancer without that one study, and I find that the results
would decrease by 46 percent.  That one study has that significant
impact on the computations.  And it would have been helpful to maybe
report the results with and without the effect of this one clear study
that seems to be an outlier relative to the other studies, particularly
for lung cancer.

		My third comment has to do with the way OSHA treated the use of
respirators when calculating the cost and benefits for the fracking
industry.  And, again, all my comments are based on an analysis of the
data and the computations underlying OSHA's results.  

		So when OSHA estimated the cost of the proposed rule in the fracking
industry, the computations took into account that some workers were
already in compliance in terms of the use of respirators.  Okay.  So
assuming everything else is the same, that would lead to a lower cost of
compliance than would have been had you also had to tagalong or add on
the additional cost of respirators.  But then when OSHA came to compute
the benefits of reducing the exposure level, OSHA assumed that there was
no respirator usage in the fracking industry.  And that in itself, at
least for the fracking industry, there was evidence in the record from
ERG, and this is -- the slide here just shows a table directly from
ERG's report, where they indicate that there was a -- as far as
respirators are concerned, there was at least a 98 percent compliance in
the fracking crew, according to ERG.  This is not a number that I
independently verified.

		However, in order to assess the possible impact on OSHA's results of
the use of respirators -- and this is a hypothetical or an example --
what I did is, I computed the percentage of workers in the fracking
industry whose exposure would exceed 50 had we taken into account a use
of half-mask respirators, not even full-mask respirators.  And that
would have taken OSHA's reported percent of 69 percent down to 23
percent.  So if we were take -- we were to make an adjustment or an
acknowledgment that there is some application or use of respirator in
the industry, then OSHA's estimate that 69 percent of fracking workers
are now, are currently at exceeding the 50 mark would have gone down to
23 percent.  

		My next comment has to do with the methodology that was used to
compute the benefits.  So once that OSHA computed the exposure levels at
the various job categories and extrapolated that to the workers in the
fracking, the next step was to apply the epidemiological studies to
identify the amount of excess risk related to various diseases among the
relevant workers.

		In order to compute the benefits, the OSHA study developed two
counter-factual worlds:  one in which all workers were assumed to be in
compliance at 100 PEL; then they computed the avoided fatalities and
illnesses assuming compliance at 50, and then they took the difference
between those two numbers.  And that's how -- that's the methodology
that was used definitely for computing the benefits of the proposed rule
in terms of avoided fatalities and illnesses in the fracking industry.

		And my comment is based on, you know, again, the same data files and
computations that OSHA provided.  If we were to use the exact same
logic, the same methodology, and compute the number of avoided deaths
and illnesses between the baseline exposure, which is where we are today
in the fracking industry, and full compliance at 100 percent, and again
I am reporting numbers in OSHA's own backup data files, you will find
that the benefits in terms of avoided fatalities and illnesses would
have been substantially higher than the benefits of going from full
compliance at 100 to full compliance at 50.  More specifically,
achieving full compliance at the current PEL would be about 11 times
more effective than the reduction that went from 100 to 50 in terms of
avoided fatalities, and 4 times more effective in terms of avoided
illnesses.  So I would suggest -- you know, I think given these results
and given that these results were in the backup files of the
computations that OSHA did, it would be important to consider the
implications of these comparisons.

		And my final comment has to do with silicosis-related deaths. 
According to the National Occupational Respiratory Mortality System,
NORMS, as you can see, the number of deaths with silicosis as an
underlying cause had dropped from 557 in 1968 to 52, according to NORMS.
 And for clarification, the CDC defines underlying cause of death as the
disease or injury that initiates a train of events leading directly to
death.

		Now, let's compare that to OSHA's predictions that the annual number
of avoided silicosis-related deaths for all industries due to the
proposed rule would be 102 once the proposed rule is fully effective. 
That would be nearly twice the number of actual silicosis deaths in
2010.  

		This data, which is directly taken and compiled from the CDC website,
raises questions about the computation of the expected benefit from the
proposed rule.  Thank you very much.

		JUDGE SOLOMON:  Mr. Bird.

		DR. BIRD:  Thank you.  I'll try not to spill that.  Your Honor, my
name is Ronald Bird, 

B-i-r-d, and I am Senior Regulatory Economist for the United States
Chamber of Commerce.  I'm here today to discuss my review of the
analysis of compliance costs and economic feasibility of the proposed
respirable silica standard as presented by OSHA in its Notice of
Proposed Rulemaking.  The full text of my review has already been
submitted to the record and my remarks today are a brief summary of
that -- those findings that are already in the record.

		OSHA, in my opinion, has not shown that the proposed rule is
economically feasible.  And this is because OSHA has failed to consider
important aspects of the problem of assessing the costs of economic
feasibility of the proposed rule, including the variability of
compliance costs across the distribution of facilities, including the
effect of the proposed compliance schedule on compliance cost and
feasibility, including the extreme uncertainty surrounding its cost
estimate, and including the impact of the proposed rule to possibly
create a labor market shortage of industrial hygienist professionals.

		Considering all the flaws, errors, and omissions that I've seen in
OSHA's analysis, it is my opinion that the compliance cost for this
proposed rule could range from 1.5 billion to 6 billion or more per
year, 2 to 10 times the amount forecast by OSHA.  I think that such a
high range of uncertainty suggests that the risk is too great to support
a regulatory decision based on OSHA's current analysis.  There is just
too much that is unknown and uncertain.  Even the lower end of the
likely cost range could imply economic infeasibility for many employers,
and the upper end of the possible cost range could imply economic
infeasibility for most.

		The following points summarize the salient flaws in OSHA's analysis
and the reasons why I think OSHA's proposal does not demonstrate
economic feasibility.  

		First, OSHA's analytical approach is fundamentally flawed by OSHA's
entire failure to consider the distribution of compliance costs across
the spectrum of affected establishments in each industry, and by OSHA's
failure to conduct the necessary surveys and research to obtain data to
accurately characterize the distribution of compliance costs.  OSHA
assumes that a single typical facility characterizes the spectrum of
firms in each industry, and it ignores the reality that facilities of
different age, different configuration, and different production
specifics will likely experience quite different compliance costs,
especially for installation of engineering controls.

		Secondly, OSHA's preliminary economic analysis is incomplete. 
Significant cost elements have been entirely omitted.  Significant
numbers of establishments that will incur costs have been omitted and
significant secondary economic impacts on the U.S. economy have been
ignored.		

		Third, OSHA's preliminary economic analysis is not accurate.  OSHA's
compliance cost analysis is rife with instances where key cost
computation parameters are given arbitrary values without a clear basis
in fact, and in other instances OSHA relies on flimsy and I think
unrepresentative observations to establish critical baseline conditions
for determining the level and distribution of compliance costs.  

		Fourth, OSHA failed to conduct the basic survey research and
scientific experiments on which an analysis of economic impact and a
determination of economic feasibility for such a complex and
broad-reaching regulation should be based.  OSHA's failure to consider
and assess the time dimension of Number 5, of time of compliance cost,
is another concern.  OSHA should have assessed the impact of the time
dimension in relation to its proposed compliance schedule.  OSHA's
proposal would require employers to achieve complete compliance with the
proposed PEL by retrofitting or in some cases having to rebuild
facilities to incorporate engineering controls within one year of the
effective date of the final rule.

		OSHA has ignored the realities that especially significant changes in
the structure and the organization and the operation and the equipment
in a complex facility requires months, if not years, of planning,
design, obtaining appropriate governmental permits, of testing and
training.  And just the work of getting a contract done and getting a
contract in place and having the work done, including also possible
backlogs because so many facilities will be having to comply with this
new rule, there may be shortages of critical pieces of equipment and
materials in the pipeline.  These problems and challenges seem not to
have been taken into account in OSHA's analysis, and each of these can
have significant impacts on the actual cost in relation to the speed
with which you try to bring a facility into compliance.

		Sixth, OSHA failed to examine the adequacy of the supply of
occupational health professionals to meet the demand for services that
would be required to enable employers to comply with the proposed
regulation.  There is a significant risk, I think, that the lack of
available service providers or the resulting escalation in the costs of
their services because of such shortages, will render compliance with
the proposed rule within the schedule proposed by OSHA technically and
economically infeasible.  And also, there's the danger that the attempt
to comply with this rule will compete critical occupational safety and
health resources away from other important safety and health activities
and, therefore, result in offsetting of effects of higher injuries and
illnesses from other causes because of the shift of resources that this
proposed rule will mandate.

		I think there is a significant risk that this rule, if adopted, will
have serious adverse economic consequences for the nation.  And that's
the central question of economic feasibility.  

		Let me give you an example.  In the context of analysis of feasibility
of controlling exposure to the proposed new PEL in foundries, OSHA's
primary consultant, ERG, in 2008, in a 2008 report, advised OSHA that,
quote, "operators in some foundries will not reach this level,"
referring to the PEL, "because casting size or the need to manipulate
castings will make it more difficult to fully enclose this high energy
operation.  For some older, less modernized facilities, it might be more
practical to replace existing open shakeout equipment with more modern
enclosed or automated equipment for separating sand from castings."  In
some instances, ERG writes -- "In some of these cases," ERG writes,
"foundries would need to fully automate and rebuild the facility to
reach exposure levels of 50 µg/m3 or less."

		Now, the recovery of manufacturing is at the foundation of the
President's agenda to restore economic well-being of middle class
Americans.  The foundries described in the ERG report in 2008 are
critical elements of America's manufacturing infrastructure and a
regulatory action that would necessitate the total rebuilding/replacing
of a substantial number of these facilities, and along with that the
potential that when it has to be replaced it might well be off shore to
another country, this would have a profound negative impact on the
economic resurgence of America that is just underway.  We need to ask
how prevalent are cases where retrofitting engineering controls will
force employers and industries to close or rebuild existing facilities,
and possibly lead them to decide instead of rebuilding here where we
are, we'll move off shore.  

		These are questions that go to the heart of the determination of
economic feasibility of the proposed rule, and these are questions that
OSHA has not answered with credible evidence.  OSHA has not answered the
necessary questions about the distribution of economic impacts across
facilities by facilities' age, by their design, by their operations, by
their condition, and by the region in which they operate with any of its
available data.  A full-scale, a full-scale national survey of baseline
conditions, practices, exposures, and other characteristics in the
affected industry sectors, on an industry-by-industry basis and on a
construction-activity-by-construction-activity basis is needed to reveal
the full range of costs and economic impacts of the proposed rule and to
determined accurately and credibly the economic feasibility of this
proposal.  OSHA's current analysis cannot be relied upon as an accurate
basis for determining the economic feasibility of the proposed rule
because this essential step has been omitted.

		So here we have the fundamental flaw in OSHA's analysis of compliance
and economic feasibility as its "one size fits all" approach, which
assumes that a single typical facility in an industry adequately
represents the entire industry sector for purposes of assessing
compliance cost and feasibility.  This is a flaw that permeates OSHA's
analysis for every one of the 25 general industry and maritime sectors
and 6 construction activities for which OSHA assesses technological
feasibility compliance cost and economic feasibility.  

		It is a flaw that cannot be corrected with the existing data that OSHA
has compiled and reviewed because that data is not statistically
representative of any of the industry sectors or activities of concern. 
It is a flaw that can only be corrected by OSHA doing the statistically
representative sampling and surveys that OSHA should have known from the
very beginning was necessary and that OSHA certainly should have become
aware was necessary and essential following the 2008 report from its
contractor, ERG.  

		The question of economic feasibility of the proposed standard cannot
be answered with any degree of economic certainty without the results of
a comprehensive national statistically representative survey for each
affected industry of the baseline exposures, current control practices,
and assessment of the specific compliance engineering retrofit costs
including, where applicable, rebuilding, as suggested by ERG for
each -- to do this for each facility in the sample.  Such a survey
could have been done by OSHA over the past 10 years.  Such a survey
should have been done.  And I believe that such a survey must be done
before the present rulemaking moves forward.

		Another concern that I have involves underestimation of cost impacts
that OSHA did address -- or rather, that OSHA did not include in its
analysis.  OSHA omitted key elements, and among these are general
familiarization costs with the rule, specific initial and ongoing risk
assessment and exposure monitoring costs, and costs for financing the
capital investments needed for retrofitting or totally -- and in some
cases, totally rebuilding facilities, which flows from the lack of
looking at the distribution of the types of facilities that I referenced
earlier.

		Now, I'll talk a minute about familiarization costs.  General
familiarization costs comprise an element of the compliance costs of
every regulation, and I'm puzzled that this really hasn't been addressed
in OSHA's analysis here, because I know from my personal experience
of -- including as a former contractor providing support for OSHA in
various contexts, that this is an issue that has been recognized and has
been discussed in the past.  

		For any new or revised regulation, every employer covered by the
Occupational Safety and Health Act will need to make an initial
determination of whether any of the establishments that the employer
operates are affected in any way by the new or revised rule. 
Familiarization covers at least the basic initial screening of the
published new rule to determine the likelihood that the regulation
contains any applicable requirements or exposes the employer to any
legal liabilities that might merit further examination.

		For employers who are unable to conclude, then, from an initial
screening whether a new or revised rule applies or does not apply, there
then would be a further extended familiarization process required to
fully review the regulation to determine in detail what elements of the
regulation apply and to then plan organizational responses, adjustments,
and so forth to comply with the rules.  This is before actually
implementing anything, just to see what do we have to do and let's think
about how we would proceed to do it.  

		These initial and extended familiarization steps impose costs on
employers.  Knowledge of new or revised legal obligations or the fact
that you don't have any obligations is information that does not flow to
employers by costless osmosis.  Someone, the owner or the chief
operating officer, a designated management or legal specialist or
occupational safety and health specialist, must expend time and effort
to obtain and process new or revised regulatory information and figure
out what it means for the organization.  In large corporations this task
may entail time and effort of coordination and communication among
several highly compensated executives and professional specialists.  

		The cost is not only imposed on the actual targets of the regulation,
the million or so of -- the actual number of affected establishments
that OSHA identifies in its cost analysis as having potentially to incur
costs, but on a much wider number.  Because even though OSHA may know,
think it knows who is affected and who is not, I don't know whether I'm
one of the lucky winners or not, whether I'm in or out.  And so, the
cost is imposed on a broad range, on all employers, because each
employer must exert at least some effort, at least an initial effort,
and thereby suffer some opportunity cost in the process to determine
whether or not that firm and its establishments are inside or outside
the affected pool.  

		Now, once you've made that determination, am I in or am I out, then
the extended element of familiarization cost is also relevant.  And this
element applies to those who answer the initial question with yes, this
revised rule does apply to me.  The extended element of familiarization
cost then entails the question, okay, what do I need to do?  Answering
this question requires the employer to thoroughly review the regulation
and to interpret it in the context of the specific facilities, which
requires some further investigation and looking around, and activities
of that specific firm.  

		For the 1 million establishments listed by OSHA where employees are
potentially exposed to silica, regardless of the level of exposure, this
extended familiarization process could take many hours of professional
labor time.  And this has not been addressed anywhere that I can find in
the PEA or in any of the other supporting documents.  OSHA has not
considered this important cost element, and it is potentially very, very
large.

		I can't at this stage say what a precise number should be, but even if
you just hypothesize a reasonable kind of number of hours, you get a
number in the hundreds of millions of dollars for at least the initial
year.  And this is a number that affects at least the economic
feasibility of initial compliance in the initial year.  

		OSHA should address this issue with appropriate empirical research,
including surveys or controlled experiments.  You can conduct an
experiment just to see how long it takes an educated person to read the
regulation and correctly answer questions about what it says, you know. 
You can -- in fact, I've done this with students in classes, and it's
very revealing about how important it is for agencies when they
promulgate new regulations to try to really write the regulation text in
such a way that, up front, people really know right off the bat whether
they're included or not included.

		But if you look at the proposed regulation text here, you see a whole
lot of circuitous references that you're enclosed, you're under this if
you refer to this other rule -- you've got to go referring somewhere
else to find out where you're in, where you're out, and all of this
takes time, instead of writing it in plain language that at least
somebody can quickly assess, hey, this applies to me or, hey, this
doesn't. 

		This is the kind of issue that in fact OSHA previously tried to
address also through compliance assistance, expert systems, and other
kind of products, which may help, but a problem we -- that's always
been encountered in that context is that all an employer can really rely
on is, not some summary or some online press release, but the actual
regulatory text.  So it's important that the regulatory text itself be
written in a clear manner.

		Now another issue of -- just in the couple of minutes that I've got
left, I want to touch on, is -- involves OSHA's calculation of economic
benefits based on the assumption that every worker exposed to
current -- currently to levels of silica above the proposed PEL would,
in the absence of the proposed rule, continue to be exposed constantly,
8 hours daily every working day, for 45 years.  

		There are two errors embedded, I think, in OSHA's calculation here: 
first, the 45-year working life assumption; and second, the continuous
year-round exposure assumption.  Each of these contributes, I think, to
a gross overestimation of the economic benefits of the proposed rule. 
Despite OSHA's claim that the proposed level of protection is needed
because some worker hypothetically could work under constant daily
exposure for 45 years, does not translate into a benefits calculation
that the benefits should be based on the assumption that every currently
exposed worker is exposed to that extreme scenario.

		And, finally, another item that I think is important to consider is
OSHA's failure to consider the question of whether the supply of
occupational safety and health professionals can adequately respond to
the demand shock of the proposed regulation, especially given the time
schedule of implementation that OSHA is proposing.  

		Of particular concern is the supply of certified industrial
hygienists, who are involved at critical junctures in a number of
aspects of compliance with the proposed rule.  They have to conduct
extensive new exposure assessments, collection of workers' silica air
sampling, consultation regarding adoption of controls, and the necessity
of respirator use in certain circumstances, et cetera.  BLS data for
2012 show that the total supply of college-educated occupational safety
and health professionals in the United States is only 62,900, of which
certified industrial hygienists comprise a subset.  Unemployment among
these professionals is practically nothing today.  The additional work
demanded from these professionals to help employers comply with the
proposed standard would likely exceed the capacity of the existing
supply of already fully employed professional service providers,
especially given the short time frame.  

		For the 1 million potentially affected establishments identified by
OSHA in this analysis, a mere 3 days, 24 work hours per year per
establishment of professional occupational health services would require
12,000 full-time professional workers.  This would represent a 19
percent increase in the supply of professional health workers, and the
compliance schedule proposed by OSHA would require this increase to
happen almost immediately, despite the fact that to train a professional
occupational health worker takes at least a four-year college degree and
often a two-year master's degree beyond that.  Such an immediate
increase in the professional labor supply seems impossible.

		And I'm not saying by my example that this is the number of hours and
this is the number you come up with.  I'm just saying just a -- I think
positing a reasonable idea, a fairly small idea of what it would be
implies a big problem for the labor market, which is why OSHA should at
least have addressed this issue in detail by really analyzing, well, how
much services will we be requiring?  Maybe it'll be 24 hours a year per
establishment; maybe it'll be less, maybe it'll be more.  The point is
we don't know.  OSHA doesn't know because OSHA hasn't even apparently
thought about the problem.

		In conclusion, I think OSHA just simply has not conducted the research
that is needed to provide a credible foundation for the determination
that this complex broad-reaching proposal is economically feasible.  It
seems that at every juncture OSHA has chosen to do less rather than more
of the difficult complex research work and data collection that needs to
be done, and never enough of the detailed field research that such a
rulemaking requires.

		Thank you.

		JUDGE SOLOMON:  Mr. Chajet.

		MR. CHAJET:  Thank you, Your Honor.  

		I have to get another slide back up here.

		So let there be no mistake, the United States Chamber of Commerce and
all of the businesses and entities that it represents believes that all
occupational health and safety problems must be solved and that not one
illness or injury is acceptable.  But we also believe that the current
performance of American industry is the most incredible success story in
occupational health in the last 100 years.  And if you look at these CDC
numbers, you can look at them all day long, and they show nothing but
incredible achievement of trend, as the discussion that took place the
other day by David Goldsmith and one of our witnesses exemplify.

		David Goldsmith, Dr. Goldsmith was one of the first people that ever
talked to me about silica disease 30 years ago or more, and this
achievement is a marvelous achievement.  It is the best set of data we
have, and you can try to change that data all you want, but it is the
Center for Disease Control data.  And if you run analysis of this, no
matter how you analyze it, it's a steeply, steeply declining trend and a
tremendous success story that needs to be and will be continued.  So
that's the first point.  

		This is Dr. Sabry's slide, where they statistically extended this
graph for another few years, and it shows the continued trend.  

		So let me stop there and say that this has been a hearing for several
days that has been somewhat disappointing to us and we want to register
these procedural objections to the hearing and to the process.  We may
have others, but this is a good start, and we want to make sure that
everyone understands that the failure to conduct a SBREFA review of
current conditions that includes the fracking industry is a major
procedural problem for this rulemaking.  Relying on 11-year-old
proceedings and outdated economic data from before the recession doesn't
work.

		We are concerned that there was an allegation that there were OMB
documents withheld and no explanations made, and we join in the request
that all documents relevant to this rulemaking be released for public
viewing and for transparency purposes.  We have not seen any number of
the peer review documents.  We have not seen the correspondence or the
individual comments.  We've not seen the e-mails and memoranda involving
this rulemaking.  We've not seen the documents related to OSHA's
contractors who did most of the work, particularly ERG.  We've not seen
their contract, even the basic contract itself, nor have we seen their
memoranda or reports on various aspects.  

		We've not seen even an attempt to analyze or release OSHA's current
exposure data.  OSHA has about five to seven years' worth of exposure
data that they collected, both at regulated sites and at -- with their
own inspectors, that should be released for public analysis and review.

		We have not seen lab performance review, that surprised me as I was
sitting here the other day, and one of OSHA's personnel testified that
they had a new lab performance review study.  Why wasn't that given to
the public, and why wasn't it made available for these rulemaking
hearings?  It's perplexing.  

		We have been prohibited as members of the regulated community from
meaningful questioning of witnesses and limited to time, very limited
amounts of time, while the OSHA panel is asking unlimited number of
questions for unlimited amounts of time.  We object.

		The same for NIOSH, we were prohibited from asking important questions
for NIOSH witnesses and stopped.  We have had a very difficult time
trying to get the information that would be useful for a fair record to
be made in this proceeding.  

		We object to a number of the analyses.  The hydraulic fracking
industry analysis procedurally is flawed.  It was added at the last
minute, and there was no SBREFA review, and it is extraordinarily
flawed.  

		Let me just see if I have this slide to show you what Dr. Gerhard
Knutson was talking about.  This is the worksite that OSHA used to
compare to the American hydraulic fracking industry to determine
potentially feasible engineering controls.  And another worksite with
similar conditions.  

		This is not acceptable in rulemaking in the United States to draw
feasibility conclusions from these types of conditions.  We just don't
look at primitive worksites and say it's feasible from their use of a
control to our use of a mechanized mechanical system.  It doesn't work. 
And I wanted to show that to you as an example of some of these concerns
we have that are procedural concerns.  It's not only that the analysis
is wrong, it's that the analysis is procedurally flawed.  Right.  It's
both.

		We object that OSHA continually relies on the ACGIH, a non-consensus
group, by admission of their own.  I was glad to have Dr. Mirer here to
confirm that the current assistant secretary and Dr. Mirer and I sat on
a panel together when Dr. Mirer and the assistant secretary endorsed
the ACGIH TLV, predetermining the end result of this rulemaking.  And
this use is a problem.  The use of the ACGIH TLV by this agency is a
problem, because you're supposed to use consensus standards, not
non-consensus standards.  This is a procedural flaw as well as a
substantive flaw.

		We object that the Judge's description of loaded questions, that the
OSHA panel's been asking them nonstop and using the questioning for
testimony.

		JUDGE SOLOMON:  Did you object?

		MR. CHAJET:  I did, Your Honor, and I object again.

		JUDGE SOLOMON:  Yeah, I don't think you did, but that's okay.  Go
ahead.

		MR. CHAJET:  We have serious concerns about this rulemaking being
rushed, being pushed through in order to allow a decision before the end
of the administration, as opposed to having a rulemaking that really
seeks a proper answer for the question:  Is this rule justified?  Is it
based on a significant risk?  Does it produce significant benefits? 
Does it produce technologically and economically feasible results? 
These are substantive questions that have been raised over the last few
days of testimony.  

		The CDC numbers were not properly analyzed.  There was no study done
by OSHA of the data.  They could have sought first date of employment. 
They could have sought length of exposure.  They could have sought
industry relationship to those data.  None of that was done.  

		The current 100 µg PEL has been demonstrated by a number of witnesses
to be protective with a threshold above that.  There has been no
substantive demonstration by OSHA with direct evidence that these --
this information is rebuttable.  Instead, the CDC number is attempted to
be shot down with an analysis that is all hypothetical and no direct
real evidence.  So we have a concern about that analysis.  

		We are concerned about exposure assessment from the first exposure
assessment in the field, where you heard that OSHA's own performance in
their laboratory can produce results that range from 55 percent to 165
percent of the true value.  These are not our numbers.  These are the
round-robin numbers that OSHA participates in.  They're in the comments.
 We'd like OSHA to release all of its round-robin results for all of the
public to be able to review them.  They are far from accurate, and yet
accuracy is assumed in all of the exposure assessments and risk
assessments.  

		We don't think OSHA can take a sample at 25 or 50 and produce an
accurate result.  You heard the testimony of some of the leading
laboratory personnel in the United States that you can't get there.  If
you can't have a feasible analysis, you can't have a feasible rule.

		What really is taking place here is that OSHA is converting a
compliance problem -- they have 30 percent or more of their samples
above the 100 µg PEL, and they're converting a compliance problem into
a reason to regulate.  Right.  There's no demonstration whatsoever that
any new regulation is going to solve the compliance problem.  There's
not even an analysis of that question.

		So all of us, I invite us all to go down to the construction sites
that are within 10 blocks of this office and to look at them and see the
real world in play and see what OSHA's going to do to solve any issues
in that real world, as opposed to theoretically demonstrating or trying
to demonstrate that there is a problem with the PEL.  It's not.  It's a
compliance problem.

		Dr. Borak showed you the latency of this disease.  If there's any risk
remaining, if there's any new cases occurring, it's cases with very high
exposures with very long time frame exposures.  There's no evidence that
has been shown that that 100 level is not protective.

		The definition of crystalline silica is another problem that I'm going
to stop on when I'm done.  But this definition is not a definition of a
crystalline silica rule, and that's part of the problem here.  OSHA's
not regulating crystalline silica.  OSHA's regulating any dust that gets
into one of these approved samplers as long as the sampler is designed
to collect a certain type of dust.  And then you take it to the lab,
where the ability to detect crystalline silica is interfered with by a
variety of other minerals that are in the same location as the
crystalline silica, and you can't for sure identify it unless you take
certain steps that OSHA doesn't take, like analyzing a bulk sample.

		And you don't define the regulated substance, so what you're really
doing is you're regulating something else.  Perhaps OSHA wants to do a
regulation on particulates not otherwise regulated, for which the
current exposure limit is 15 mg of total and 5 mg of respirable.  But
that's not what this rulemaking has done, but that's what it really does
because of the definition and their inability to measure.  And we would
suggest that OSHA needs to start over again if they want to regulate
this other material.  		

		They also don't tweak out the effects of those other dust materials on
health, and they combine all those effects and say it's crystalline
silica.  But their studies repeatedly show, as does their own language
in their analysis, that they can't tweak out the effects of the other
materials or of smoking.  

		So we have a serious problem with this rulemaking because it's not a
crystalline silica rulemaking, although that's what it was intended to
be and that's what it started off as.  

		So I say to you that this rulemaking needs to be looked at carefully
so that we can really achieve benefits if there's a new rule.  And some
of the best benefits that can be achieved in this process is to find a
way to address the 30 percent overexposures that OSHA has quantified,
and to find a way to provide practical easy solutions where there are
overexposures, like respirators and air helmets.

		So join me.  We'll go out and look at one of these sites that's close
by here, or maybe OSHA wants to, to compare the real world to the world
that they hypothesize, which doesn't exist.  And that's the conclusion
of my remarks of trying to summarize the supporting testimony that
you've heard for the last few days from our expert witnesses.  Thank
you.

		JUDGE SOLOMON:  Okay.  Ms. Kramer, do you want to comment on the
objection?

		MS. KRAMER:  No, Your Honor.  I think we're okay.

		JUDGE SOLOMON:  Okay.  Let me just state that's not really a legal
objection.  Historically in the law there was something called the
general demurrer, and that's pretty much what you just heard.  

		Rulemaking is governed under 5 U.S.C. Subsection 503, and it's also
part of the Administrative Procedure Act.  And in this case, the rules
were amended -- besides our rules from the Department of Labor, they
were amended at 29 C.F.R. Subparts 1910, 1915, and 1926, and they were
entered into the Federal Register.  

		So normally in cases that involve me, if there's an objection, I would
have to rule on the objection, and I could kick out some of the
evidence, but under these rules we can't do that.  There is no mechanism
to do that because this is just rulemaking.

		So there are amendments and agreements to the -- to how the evidence
would be elicited, and I understand that you've made this statement, but
there is another two weeks of rulemaking hearings that are going to take
place, so all the evidence isn't in yet.  I understand that you're going
to reduce all this to writing; is that right?

		MR. CHAJET:  Yes, Your Honor.  And we would welcome the opportunity to
ask more questions of the OSHA panel and the NIOSH panel.  If --

		JUDGE SOLOMON:  There is a mechanism.  I don't want to give you any
unsolicited advice, but there is a mechanism, and I am not empowered to
make a ruling one way or the other.  I believe I told you that before. 
Because of the amendment to the rules, the Assistant Secretary, who is
Dr. Michaels, probably has the authority, but I am not empowered in any
way, manner, shape or form to render any advice on either side of this
issue.

		So do you have any -- are you going to give us some exhibits, I take
it?

		MR. CHAJET:  Well, you have this exhibit, Your Honor.

		JUDGE SOLOMON:  Okay.

		MR. CHAJET:  Which -- already.

		JUDGE SOLOMON:  Ms. Kramer, you have -- do you have copies of all of
this?

		MR. CHAJET:  And you have the vials with the amount of silica in them.
 And --

		JUDGE SOLOMON:  And you have the demonstrative evidence that you
brought.  You have the helmet --

		MR. CHAJET:  And we will bring you a photograph of that.

		JUDGE SOLOMON:  Unless you want to give us the helmet?

		MR. CHAJET:  No, Your Honor.  You know, one of the things that OSHA
could do is encourage their use, bring the price down and spread them
around, and provide them to workforces or even the small dust masks
would be a good thing to give to employees as OSHA drives around town
and sees potential exposures.  Those kind of things might be real
effective in bringing down exposures. 

		But this exhibit, and I thank you for reminding me, shows exactly what
one of our issues is.  This Agency wants to regulate this much dust, the
amount shown in that little teaspoon, in a room 30 by 20 by 15.  Right. 
You can't measure it accurately.  It's covered all over the Earth, beach
sand and everywhere else, and it's used in hundreds of millions of tons
of material.  So you've got a very significant problem in terms of
trying to get to where the Agency wants to go.  

		JUDGE SOLOMON:  So let me --

		MR. CHAJET:  And maybe they need to look at a new way to do this.

		JUDGE SOLOMON:  So let me just say that it's up to you how you want to
present your evidence.  Your statements -- you are a lawyer, and your
statements are partly testimony and partly argument.

		MR. CHAJET:  I would consider them all argument, Your Honor.

		JUDGE SOLOMON:  It's all argument, okay.  So there's no responsive
pleadings.  There's none of that here, so --

		MR. CHAJET:  No, I was just, I was just trying to summarize.

		JUDGE SOLOMON:  Is there anything else before we let the public ask a
few questions?

		MS. KRAMER:  Your Honor, I'd like to go ahead and mark the
PowerPoints.  Dr. Sabry's PowerPoint could be marked as Exhibit Number
35, Hearing Exhibit Number 35, and Mr. Chajet's PowerPoint could be
marked as Hearing Exhibit Number 36, and admitted, if that's all right
with you?

		MR. CHAJET:  I have no objection.

		JUDGE SOLOMON:  Okay.  So 35 and 36 are hereby admitted into evidence.

(Whereupon, the documents referred to as Hearing Exhibits 35 and 36 were
marked and received in evidence.)

		MS. KRAMER:  And I'd like to reserve Hearing Exhibit Number 37 for the
picture of the air helmet.

		JUDGE SOLOMON:  Right.  There's more than one way to do that.  I mean,
I get cases where we have like heavy machinery, you know.  

		MR. CHAJET:  I could send you some documentation on a few of them.

		JUDGE SOLOMON:  The long wall from, let's say, mining or something,
we're not going to put the whole thing in, so -- okay. 

		All right.  So how many people are going to ask questions?  We have
lots of people.  So let's start at the first -- this is the lowest row
here.  If you'll come around, please, and stand behind the microphone. 
Okay, the gentleman with the computer is with the lowest row.

		MR. GLUCKSMAN:  Lowest rung?

		JUDGE SOLOMON:  Right.  You have somebody tailing you, so -- state
your name for the record.

		MR. GLUCKSMAN:  Dan Glucksman.

		JUDGE SOLOMON:  And who do you represent?

		MR. GLUCKSMAN:  The International Safety Equipment Association.  And
the last name is 

G-l-u-c-k-s-m-a-n.

		JUDGE SOLOMON:  Okay, go ahead.

		MR. GLUCKSMAN:  And a quick question, or clarification for Greg.

		MR. SIRIANNI:  Sure.

		MR. GLUCKSMAN:  You were talking about the way the PAPRs, powered
air-purifying respirators, are tested.  But I wanted to make clear that
it's the manufacturer of the device that tests it for the APF of 1,000,
not the employer that's purchasing them.

		MR. SIRIANNI:  Right.

		MR. GLUCKSMAN:  And so that if an employer does want a powered
air-purifying respirator with an APF of 1,000, they just need to ask the
supplier to provide that -- 

		MR. SIRIANNI:  Sure.  And they are available.

		MR. GLUCKSMAN:  Yeah.

		MR. SIRIANNI:  You know, they are available at 1,000, too.  There are
some of these that have bibs or other things right out of the box that
you can be provided with something that attains those levels
specifically as tested.

		MR. GLUCKSMAN:  Yeah.

		MR. SIRIANNI:  And then there's others that, you know, like the one
here, all the recent research indicates that they are attaining those
levels.

		MR. GLUCKSMAN:  And just the employer would have to ask the
distributor or manufacturer for that documentation and then they're good
to go.

		MR. SIRIANNI:  And it might not be specific to their workforce. 

		MR. GLUCKSMAN:  Right.

		MR. SIRIANNI:  I mean, you can go in and do something that's specific.
 So, I mean, that's why I really want to emphasize the fact that, you
know, OSHA should look at these things not as a typical sort of
hierarchy of control but actually look at these as more of an
engineering control because they have come so far.

		MR. GLUCKSMAN:  And there are a number of suppliers that provide PAPRs
with APFs above 1,000.  It's not just --

		MR. SIRIANNI:  Yes.

		MR. GLUCKSMAN:  Okay.  

		And, finally, Judge, one thing for you.  I would ask that the clock
for post-hearing comments start ticking after the transcript is actually
publicly available in   HYPERLINK "http://www.regulations.gov/" 
regulations.gov .

		JUDGE SOLOMON:  I don't believe that I am actually empowered to make
that determination; however, I will pass that on.  

		Does the Solicitor have any comments as to that issue?

		MS. KRAMER:  We will, of course, take your comment into consideration.

		MR. GLUCKSMAN:  Well, there's a little bit of a precedent in the
walking and working surfaces rules, subparts (d) and (i).  The
precise -- pardon?

		UNIDENTIFIED SPEAKER:  This is --

		MR. GLUCKSMAN:  Oh, well, I was just going to say there was another
judge that allowed that to happen.  I forget the judge's name, but --

		JUDGE SOLOMON:  These rules are -- the rules that we're operating
under were just amended for this proceeding.  And so, I can give you the
actual --

		MR. GLUCKSMAN:  You know, I don't think I need it.  But I would ask
OSHA and others that are empowered here to let the clock tick once --

		JUDGE SOLOMON:  These were filed on October 30th, 2013.

		MR. GLUCKSMAN:  Excellent.  Thank you.

		JUDGE SOLOMON:  You have to spell your last name.

		MR. HEARL:  I know, Your Honor.  Thank you.  I'm Frank Hearl,
H-e-a-r-l, and I'm with NIOSH, and I work here in Washington, D.C.  

		And I have a question for Dr. Sabry concerning the data that you
analyzed from NIOSH on the fracking.  And one of the lines you had
there, you indicated that the ancillary workers had an exposure 95
percent confidence interval between 20 and 8,888.  And if you'll forgive
me a little bit of mathematical gyrations here, I want to take a look at
that.  Because if you divide the 20 into 8,888, that means the range is
by factor of 444.  

		DR. SABRY:  Right.  You have -- there is --that's a direct --
first, this is a direct result of two things:  one, the size of the
sample, the six observations.   

		MR. HEARL:  Right.

		DR. SABRY:  And that's a -- as you well know, this is by any
statistical measure not a reliable size for a sample.  And the second
is, because of the variability of the values of the individual
observations.  And I used -- happy to share with you the Cox confidence
interval formula that I used.

		MR. HEARL:  Oh, sure.

		DR. SABRY:  It's a lognormal formula.

		MR. HEARL:  Well, I assumed it was lognormal.

		DR. SABRY:  Yeah.

		MR. HEARL:  And I know that the usual range is basically 2 times the
standard deviation to get you the 95 percent confidence on each side.

		DR. SABRY:  That is if you're assuming a normal --

		MR. HEARL:  Correct.

		DR. SABRY:  -- but this is not a normal distribution.

		MR. HEARL:  This is lognormal.

		DR. SABRY:  Yes, it is.

		MR. HEARL:  So it's a multiplier?

		DR. SABRY:  Yes.

		MR. HEARL:  Right.  So --

		DR. SABRY:  So, I'm happy -- as I said, I'm happy to share that
information with you.

		MR. HEARL:  Forgive me -- or permit me this one thing, though.  If I
were to take half of the 444, that's 222, and half again for 2 times the
geometric standard deviation, it takes us down to about 100 for
geometric standard deviation, which would be my estimate for the GSD for
that. 

		But on Wednesday afternoon, the Chamber of Commerce panelist, Dr. Tom
Hall, he testified that even in a very ill-controlled situation, that he
had never seen distributions with greater than a geometric standard
deviation of 4.  So --

		DR. SABRY:  Okay.

		MR. HEARL:  And he said the situation, if you get a larger geometric
standard deviation, you may not have had an appropriate homogeneous
exposure group in the methodology, so that what you would not want to do
is use that range and that particular model for those -- using those
data to project out the expected concentrations in others.  That's sort
of my question and comment.  If you want to comment on that?  

		DR. SABRY:  I think the comment, what I would say is, and this goes
back to my point, you could defer as to how I computed this and you
would say it's a -- it can only be four times as wide.  But then, at
the same -- I think we are moving away from the relevant point here. 
The relevant point is for this, for the fracking industry, there was
only 6 workers and 6,000 ancillary workers for which OSHA basically
extrapolated from 6 observations.  And as far as I could tell, and I
don't know of any -- and I do a fair amount of sampling analysis too
for a variety of economic analysis.  I've never seen extrapolations done
from samples as small as six.  Thank you.

		JUDGE SOLOMON:  Next.

		DR. MIRER:  Frank Mirer, M-i-r-e-r, like the quarterback.  CUNY School
of Public Health.  

		Since I've been singled out several times, I have a couple of
questions.  First, for Mr. Chajet.  I tell the story of that hearing a
lot of times, and to the best of my knowledge, Dr. Michaels was not at
that hearing and certainly not on the panel that was questioned by Dr.
Norwood.  So I think my memory is correct.  It's not a recovered memory.
 

		MR. CHAJET:  We'll just admit the -- we'll just bring the video in
and admit it into evidence.

		DR. MIRER:  Sure.  If you got it, bring it in.

		JUDGE SOLOMON:  The best evidence is the transcript.

		MR. CHAJET:  That's right.

		DR. MIRER:  Yeah.  

		So, let me just make a couple of small questions.  Who's the author of
the False Exposure Estimates heading in the Chamber testimony?  I'm just
wondering who to ask about it.

		MR. CHAJET:  I'm not sure which testimony you're referring to.

		DR. MIRER:  Here it says U.S. Chamber of Commerce Comments, and it
says on 4(a), it says, "False exposure estimates and OSHA policy create
false risks and benefits."  Who's the author of that line so I can ask
them about it?

		DR. SABRY:  Not me.

		MR. CHAJET:  I'm not sure.

		MR. SIRIANNI:  I took my data from NIOSH, so --

		MR. CHAJET:  I'm not sure.  We've had several panels over here, so you
may be too late, Dr. Mirer.

		DR. MIRER:  Okay.  So doesn't this go to the question of transparency
of the experts?  But anyway --

		JUDGE SOLOMON:  Well, in pure impeachment what you would have to do is
have the person who actually made the statement.  So you don't have --

		DR. MIRER:  All right.  Well, so my question is, does the Chamber have
any exposure data to provide to the record here of any kind?	

		MR. CHAJET:  There are many exposure data -- I'll respond to your
question even though I am counsel and not a witness.  But there are many
exposure data referred to within the comments that are contained in
various studies, and many of them are OSHA's.  So, yes, there are many
exposure data contained within the comments.  

		DR. MIRER:  So, but you have no data to supply to the record?

		MR. CHAJET:  We supplied all the data that we have to the record in
the comments.  

		DR. MIRER:  Can you identify any data element that you supplied to the
record?

		MR. CHAJET:  We'll do that after the hearing, not at the moment. 
Sure.

		MS. KRAMER:  Mr. Chajet?  Mr. Chajet, would you mind making sure to
speak into that microphone that's right behind you?

		MR. CHAJET:  Sure.

		MS. KRAMER:  Thank you.

		MR. MIRER:  Second -- I'm just working from the testimony here,
right.  Second, in this set of testimony there's a reference to the
Howard Ayer paper about whether the standard is twice as protective as
it ought to be.  Is anybody here aware of that paper, wrote it down,
whatever?

		MR. CHAJET:  It's in our comments.  

		DR. MIRER:  Yeah, so whose -- whose comments?

		MR. CHAJET:  It's in the comments of the Chamber of Commerce.

		DR. MIRER:  All right.  So --

		MR. CHAJET:  Do you need a copy of the paper?

		DR. MIRER:  You're the Chamber of Commerce, right?  

		MR. CHAJET:  We'll be happy --

		DR. MIRER:  Okay, let's pass on.  Just to note here, I read that
paper.  He's questioning whether the conversion factor from the particle
per cubic foot standard was correct, not making any comment about health
effects, correct?

		MR. CHAJET:  That's incorrect.  We'll supply a copy of the paper for
the record.

		DR. MIRER:  Okay.  I think I've got the whole paper.  I think it's in
the record.  It's easy to say it's incorrect, but he's talking about the
conversion factor between particles and mass.

		Going on to fracking.  

		MR. CHAJET:  Dr. Mirer, I will specifically get a copy of that paper
to you, where he concludes that the 100 µg standard is twice as
protective as they anticipated, in that they should have calculated a
number of 200 instead of 100, and they got much more protection.  So
he's concluding that the 100 µg standard that he personally with that
group developed is twice as protective as they intended.  And I will
give you that paper and show you the quote.

		MS. KRAMER:  Mr. Chajet.

		DR. MIRER:  Yeah, I admitted --

		MS. KRAMER:  Mr. Chajet -- excuse me for just a moment -- we're not
certain whether that paper is currently in the record.  So when you
provide it to Dr. Mirer --

		MR. CHAJET:  It is, but I'll provide it again.

		MS. KRAMER:  Wonderful.  Thank you.

		DR. MIRER:  I found the paper.  I've got it.  I'll provide it to the
record.  

		MS. KRAMER:  Either way is great. 

		DR. MIRER:  So back to fracking.  Do you have any alternative exposure
data regarding exposures in fracking, alternative to the NIOSH exposure
data?

		MR. SIRIANNI:  Those exposures were?

		DR. MIRER:  Well, there was an assessment of exposures and fracking. 
Are you aware of any alternative exposure data?

		DR. SABRY:  My opinion was based on the data that OSHA used, and this
data is -- there is serious issues with the reliability of the estimate
because of the extrapolations.  

		DR. MIRER:  Well, I think the purpose of the hearing is to bring new
data into the record.  So do you have any?

		DR. SABRY:  And the purpose of the hearing is also to evaluate what
the reliability of the expected benefit calculation too.

		DR. MIRER:  Okay.  But --

		JUDGE SOLOMON:  This is argumentative.  Why don't you just ask a
specific question?

		DR. MIRER:  I'm sorry.  Well, since I've been singled out.  Now, back
to the --

		JUDGE SOLOMON:  Ask a question --

		DR. MIRER:  -- back to the 1937 dumb story that you said I told.  The
answer --

		MR. SIRIANNI:  No, I didn't say it was dumb.  I said it was a story
from --

		DR. MIRER:  So let me, let me pose --

		JUDGE SOLOMON:  Let him ask the question.

		DR. MIRER:  Let me pose not a hypothetical.

		MR. SIRIANNI:  I don't want to come across as I prevented him from --

		DR. MIRER:  The positive --

		JUDGE SOLOMON:  Mr. Sirianni, let him ask --

		DR. MIRER:  -- positive pressure air supplied respirators, hard
helmets with vortex coolers were used in the solder grind booth.  It was
found that there were exposures above the OSHA PEL, the old OSHA PEL,
underneath those helmets when they were finally addressed.  So the
question is, first, you advocate -- if you're going to use them as a
substitute for engineering control, would you ask employers to take air
samples under the helmet, the loose fitting helmet?

		MR. SIRIANNI:  There have been recent studies that have done this.  I
am for the idea, if they can be utilized and shown to be effective --
they have been shown to be effective -- to do that, yes.

		DR. MIRER:  So, but are you saying that each employer should evaluate
the effectiveness by air sampling under the helmet, or not?  Yes or no?

		MR. SIRIANNI:  Well, I don't think it -- I don't think each workplace
can do that.  We see that we can't even get to each workplace to take an
air sample.  So to have them do --

		DR. MIRER:  Second question.  Do you think the employer should, since
these are such good items, 

should the employer be required to provide a powered air-purifying
respirator to an employee on request?

		MR. CHAJET:  And I'm going to cut off the questioning now because Dr.
Mirer's time is up, and our time was cut short so we're cutting off his
questioning at this point.  Thank you very much.

		JUDGE SOLOMON:  Well, I don't know that you have the capacity to do
that.  I was going to let him ask another question.  

		MR. CHAJET:  Well, I mean, I'm just going to instruct my witnesses to
stop answering questions because the amount of time allocated for this
witness is equal to already more than the amount of time allowed for us,
so -- to ask questions, so we're going to cut off this questioner.

		JUDGE SOLOMON:  Okay.  Dr. Mirer, we'll wait till the other people are
done, and we'll see if we have any time for you.

		DR. MIRER:  Sure.

		JUDGE SOLOMON:  Let me just state for the record, Mr. Chajet, I let
you go longer than anybody else so far today.  So, and as a matter of
fact, there are probably three or four other witnesses -- or other
questioners that I cut off, but I just thought that you had a chain of
questions that sort of related to each other.  One of the -- I want to
make this comment for the record.  When the witnesses don't give the
questioner a chance to answer, that leads into more questions, and
that's what's been happening here.

		MS. KRAMER:  Your Honor?

		JUDGE SOLOMON:  Yes?

		MS. KRAMER:  We appreciate your instruction, checking with witnesses
to make certain that they give the questioner a chance to answer, but we
also want to just object.  We believe that the Chamber requested a
certain amount of time to testify, and we sent aside an afternoon for
them to be allowed to be appropriately questioned by those in the
audience who would like to.  And we appreciate your chance to give Mr.
Mirer -- Dr. Mirer a chance to come back at the end of this set of
questions.  And we just wanted to register our objection as well.

		JUDGE SOLOMON:  Yeah, we're going to see how much time we have left,
and then we'll accommodate accordingly.  

		Okay, state and spell your name, please.

		MR. KOJOLA:  Good afternoon.  My name is Bill Kojola.  That's
K-o-j-o-l-a, and I'm here representing the National Council for
Occupational Safety and Health.  And I have some questions for
Mr. Sirianni.

		This morning the American Industrial Hygiene Association testified
that they fully support the use of a hierarchy of controls for
controlling exposure to chemical hazards in the workplace.  Are you
aware that this is the professional association for industrial
hygienists' position on controlling exposures?

		MR. SIRIANNI:  I am aware.

		MR. KOJOLA:  Okay.  Are you aware also that all existing OSHA
standards for chemical hazards, including the proposed silica standard
before us at this hearing, have utilized or are proposing to utilize the
hierarchy of controls as the means to protect workers from exposure and
that feasible engineering controls and work practices are to be used
before relying on respiratory protection?  Is that your understanding?

		MR. SIRIANNI:  I understand the old way of doing things.  

		MR. KOJOLA:  That is the current way of doing things, is it not? 
Those are existing standards in place?

		MR. SIRIANNI:  Okay.  It is, and I think it should be, in certain
instances, should be reevaluated.

		MR. KOJOLA:  Okay.  So now you've talked about fracking and the NIOSH
work that identified some extremely high exposures within that industry,
and you talked about the use of PAPRs for workers and advocating that
workers be provided with powered air-purifying respirators in the
industry.  Is it your position and are you testifying that you believe
that workers should use respirators instead of engineering controls?

		MR. SIRIANNI:  I think that there are some instances where we are
currently experimenting with engineering controls, and it leaves those
folks in these high exposure scenarios unprotected.  And even when maybe
something is completed in a form of engineering control, it won't go far
enough with the potential for the exposures that are there with the
amount of material that is being used.  So it's my position that this is
something that will offer adequate protection across industry groups in
many circumstances.  

		MR. KOJOLA:  Is it your position that NIOSH and the fracking industry
should halt all efforts to develop feasible engineering controls for
this industry to reduce worker exposure?

		MR. SIRIANNI:  I think in the immediate term, workers should be
offered actual protection.			MR. KOJOLA:  So really what you're saying,
in the circumstances where there's not feasible engineering controls,
that workers should be offered respiratory protection, but that if
feasible engineering controls are in place, that those should be put in
place before respirators?

		MR. SIRIANNI:  If they're feasible and they work and the statistics
and the data and the experimenting is there, it's a moot point, workers
are protected.  But in the current realm of many industry groups,
including fracking, construction, this is where we're left.  These
people are going without, and this is appropriate.

		MR. KOJOLA:  But you know that NIOSH is working with the fracking
industry to develop feasible engineering controls?

		MR. SIRIANNI:  Lot's of concepts out there, right.

		MR. KOJOLA:  And if they develop feasible engineering controls, would
it be your position that they not be implemented, that workers just use
powered air-purifying respirators to control their exposures?

		MR. SIRIANNI:  I'm just trying to offer my opinion as to how these
units work, and all my research and experience with these units show
that they're helpful.		

		MR. KOJOLA:  Do you think that -- is it your position that you would
require PAPRs for all workers who are exposed to crystalline silica?

		MR. CHAJET:  We're going to cut off the --

		MR. SIRIANNI:  No, I --

		MR. CHAJET:  Excuse me, Mr. Sirianni.  

		We're going to instruct our witnesses to stop asking questions --
answering questions from this questioner because his time's up.

		JUDGE SOLOMON:  Well, I think I'm the arbiter of that issue.

		MR. CHAJET:  You are, Your Honor, but I also am -- I have input into
this.  

		JUDGE SOLOMON:  Well, it's his third question.

		MR. CHAJET:  No, it's about his seventh question.

		JUDGE SOLOMON:  No, it isn't.  We can read the transcript back.  

		MR. KOJOLA:  I was interrupted during the middle of a question.  Can I
at least finish that question?

		JUDGE SOLOMON:  What is the actual question?

		MR. KOJOLA:  Shall I repeat the question?

		JUDGE SOLOMON:  State the question.

		MR. KOJOLA:  To state the question that I -- the last question I asked
was, is it your position that all workers should be required to wear
powered air-purifying respirators for exposures to crystalline silica?

		JUDGE SOLOMON:  That requires a yes or no answer, and that'll be the
last question.

		MR. SIRIANNI:  No, and it depends on their job.  There's some jobs
with no exposure.  Obviously, I'm not going to put a secretary in a
powered air-purifying respirator.  

		MR. KOJOLA:  Thank you very much.

		MS. KRAMER:  Your Honor?

		JUDGE SOLOMON:  Yes?

		MS. KRAMER:  We'd like to once again object to Mr. Chajet inserting
himself into your role.  We're very disappointed that the Chamber is not
availing the public with an opportunity to answer questions and
certainly not for the five minutes that each member of the public had to
answer questions to OSHA.  

		JUDGE SOLOMON:  Okay.  Well, that's -- it's marked for the record,
and we'll proceed further.

		State your name and spell your last name.

		MR. ECHT:  Your Honor, my name is Alan Echt, last name E-c-h-t.  I
work for NIOSH.  This is for Mr. Sirianni.

		Mr. Sirianni, in your written testimony, you stated that recent
studies of workers using PAPRs have shown they do not reduce the ability
to communicate effectively while in place, and you cite two studies, one
by Ku and one by Shumacher.  Are you aware that the Ku study have found
that actually 42 percent of the PAPR wearers found unacceptable hearing
impairment using one model, and 27 percent found moderate to significant
hearing impairment wearing the other model?  And that in the first
model, 95 percent had to raise their voices to be heard; the other model
86 percent needed to raise their voices to be heard?

		MR. SIRIANNI:  They were discussing, you know, communication and all
these elements -- I've got my comments here.  

		MR. ECHT:  Well, yes or no, are you aware that that's what they found
in the studies?

		MR. SIRIANNI:  Yes.  I reviewed the paper and --

		MR. ECHT:  Okay.  Are you aware that in the discussion he says,
"However, the PAPR is bulky, heavy, requires maintenance, interferes
with communication"?  

		MR. SIRIANNI:  That's not -- the one I brought here is --

		MR. ECHT:  But you said in your testimony that --

		MR. CHAJET:  Excuse me.  Would you let the witness -- if you want to
ask this witness a question, you've got to let him answer the question.

		MR. ECHT:  Okay.

		MR. CHAJET:  And if you don't, I'm going to cut off the questioning.

		JUDGE SOLOMON:  Mr. Chajet, you will speak to me.  If you're going to
render an objection, I'm the person, I'm the --

		MR. CHAJET:  Your Honor --

		JUDGE SOLOMON:  Thank you.  Believe me, I am the pincushion for this
afternoon.  

		MR. CHAJET:  Your Honor, I object to the witness cutting off -- or to
the questioner cutting off my witness.

		MR. O'CONNOR:  If I could insert myself here, Mr. Chajet, and if you
could speak into the microphone, please?

		MR. CHAJET:  Sure.  I object to the questioner cutting off our witness
in the mid-sentence of his response, and if he continues, I think you
should stop him from asking questions.

		JUDGE SOLOMON:  Okay.  You did stop him from answering a question.

		MR. ECHT:  I'm sorry, Your Honor.

		JUDGE SOLOMON:  Dr. Sirianni, you were saying?  

		MR. SIRIANNI:  It's Mr. Sirianni --

		JUDGE SOLOMON:  Oh, you're Mr. Sirianni.  I'm sorry.  

		MR. SIRIANNI:  Yeah, that's okay.  That's okay.

		JUDGE SOLOMON:  I elevated him to the position of doctor.  I've done
that with several other witnesses.

		MR. SIRIANNI:  Well, my comments are as they are here, so I'm not
going to respond further without looking at it.

		MR. ECHT:  Well, the second study you cited was a study of healthcare
workers wearing either -- I'm sorry -- paramedics in CBRN suits.  They
either wore a full-face tight-fitting respirator, a tight-fitting PAPR
with no respirator, and what they found was that compared to no
respirator, both the tight-fitting and -- tight-fitting air-purifying
respirator and the tight-fitting PAPR both significantly interfered with
communication.

		JUDGE SOLOMON:  Okay, before you say anything, Mr. Chajet has another
objection.  What is the nature of --

		MR. SIRIANNI:  I can answer this one actually, if it's -- I would
just -- I prefer to --

		MR. CHAJET:  Mr. Sirianni, please.

		MR. SIRIANNI:  Okay.  Okay.

		MR. CHAJET:  Control yourself.

		JUDGE SOLOMON:  What's the objection?

		MR. CHAJET:  The objection is that if the questioner has testimony,
he's welcome to provide his testimony.  

		JUDGE SOLOMON:  Well, I don't have to tell you, you did the same
thing.  It's cross-examination, and he can, if it is accurate, state
what --

		MR. ECHT:  I'm getting to the point that he's making a statement not
supported by the references he cites.

		JUDGE SOLOMON:  This is getting far away.  You have to wait also.

		MR. ECHT:  Sorry.

		JUDGE SOLOMON:  You have to wait until I'm done saying that.  

		Okay.  So at any rate, he -- Mr. Sirianni, he directed you to a
point in the prior record.  

		MR. SIRIANNI:  Um-hum.  Sure.  And --

		JUDGE SOLOMON:  Wait a minute.  Wait for me to ask a question.  Are
you familiar with that?

		MR. SIRIANNI:  Yes.

		JUDGE SOLOMON:  Okay.  Now you can answer his question.

		MR. SIRIANNI:  Okay.  The point of that study is that there are
instances where someone is going to need respiratory protection, so they
evaluated the group without the use of respirators and then with various
kinds.  They're never going to go into a certain scenario without
protection.  So when they looked at and evaluated the two, they
determined that the PAPRs were preferable.  They were comfortable and
they --

		MR. ECHT:  But didn't they, when they compared the communication, they
found that both the PAPR and the tight-fitting air-purifying respirator
were both significantly worse than no respirator?

		MR. SIRIANNI:  I can tell you that they are certainly better than
communicating in a situation where someone is in a cab or something. 
They're going to open the door of that cab and they're going to
communicate and be exposed.  

		You know, two workers -- I've worked a lot in areas, I've been in all
these places where I have to communicate with a respirator on.  It's --
you're not going to go into certain environments without a respirator. 
You wouldn't want to.  And, of course, there's some hindrance, but as
far as these have come along, they are such an improvement and --
that's my piece, is that they're useful and you still can communicate,
and papers have shown that they -- you can -- you know, it's a little
worse than not having anything on, but also you're not protected when
there's nothing on.  So I think that's kind of a moot point.

		JUDGE SOLOMON:  Dr. Abrams has been very patient waiting for the next
question, so I think you ought to give her --

		MR. ECHT:  Well, we'll leave communications behind.  Later on in your
written testimony --

		JUDGE SOLOMON:  Just a minute.  Okay?  You've had enough --

		MR. ECHT:  I'm sorry.

		JUDGE SOLOMON:  So let Dr. Abrams ask a question.  If we have any
additional time, then --

		MR. ECHT:  I'll put it in writing.  Thank you, Your Honor.

		JUDGE SOLOMON:  First Dr. Mirer and then you.  

		UNIDENTIFIED SPEAKER:  She's not Dr. Abrams; she's Ms. Abrams.

		JUDGE SOLOMON:  She's Ms. Abrams.  Did I elevate you or --

		MS. ABRAMS:  Pardon, Your Honor?

		JUDGE SOLOMON:  You are not a Dr. Abrams?  You are --

		MS. ABRAMS:  Well, I'm a doctor of law, if you want to be technical
about it, but I don't use that.  Ms. Abrams is fine.

		JUDGE SOLOMON:  State your name, and spell your last name.

		MS. ABRAMS:  My name is Adele Abrams.  That's A-d-e-l-e, A-b-r-a-m-s. 
Not like the football player, just like the singer.  And I am speaking
on behalf of the American Society of Safety Engineers.

		I had a couple of questions for Dr. Bird. 

		You made a comment that in essence said there would be an inadequate
supply of safety and health professionals capable of carrying out the
responsibilities that would be required under this rule, and I believe
you referenced BLS data on that.  My questions are:  First of all, what
year was that BLS data?  In making your assumption that there would be
an inadequate supply of safety and health professionals, did you do any
independent survey or contact with the American Society of Safety
Engineers, the American Industrial Hygiene Association, the National
Safety Council, or other similar safety organizations throughout the
United States?  And did you take into account the number of new safety
and health program graduates that are coming out of the myriad safety
and health programs, including those run by NIOSH's educational research
centers in computing your numbers of safety and health professionals?

		DR. BIRD:  The number that I quoted comes from the Bureau of Labor
Statistics Occupational Employment Survey Program for May 2012, and also
is used in their biennial 10-year forecast of job openings and future
graduates and so forth.  Included in what I looked at for the BLS data
were some numbers -- were numbers that estimated the number of new
graduates, which I don't have right handy here, but I relied on the BLS
data, which is generally considered authoritative.  

		I did examine the websites for the Industrial Hygiene Association,
which indicated numbers of certified industrial hygienists, which was a
fraction of that 62,000-and-some-odd number, a very small fraction of
that.  I don't recall the exact number off top of my head, but I think
it was probably less than 20,000, or thereabouts.

		And the burden of both my presentation of those numbers is not to say
that that's the be-all-and-end-all answer to the issue, but that there
is, at least from this data, a reason to be concerned about the effect,
both on the available supply -- I also checked the BLS numbers by
occupation for unemployment in the most recent year and found very low
unemployment in that professional category.  The point of my comment was
not to say that, okay, here's the answer that ought to be used, but to
say that, you know, some data suggests there is a very potential issue
here, a need to focus on expanding the number.  The existing number
of -- the existing supply of industrial hygienists is possibly already
fully employed and this is going to put a quite likely large burden on
that supply.  Perhaps it will be a pleasant burden to have because
your -- if supply and demand works the way it should, your hourly fees
will go up and you won't have any problem, you know, prospering and
finding work.  But on the other hand, the people who need to use your
services are going to be perhaps at a loss sometimes to find the
services they need, especially in a short time period.

		I appreciate your suggestion of other sources to look at, and if this
raises an issue that if there is interest in that, I would be happy in
the post-comment period to address that issue in a little more detail. 
But the real point is not for me to say what the answer is, but to
suggest that this is a subject that OSHA should have at least looked
into already, and right now, after -- hopefully, after my comments,
OSHA will look into it more and take that problem and what it can find
out in response to -- you know, by research on that problem, into
consideration before it goes forward with a rulemaking that may create a
problem for your profession or at least a challenge for the customers of
your profession in finding the services they need.

		MS. ABRAMS:  The BLS data, just to be clear, you said there were
63,000, and of course there's 10 million workplaces who need services
regardless of this rule for safety and health professionals.  Was that
63,000 number inclusive only of CIHs and CSPs, those with professional
accredited certifications, or did that include everybody who has safety
as part of their portfolio of work responsibilities?		

		DR. BIRD:  My understanding of the data that I examined, the BLS data,
is that these are people whose occupational designation is a safety and
health professional.  Some --

		MS. ABRAMS:  Okay.  And a follow-up --

		DR. BIRD:  May I finish?  My interpretation of the data is that the
certified industrial hygienists and the other professional
certifications that you referred to would be a subset of that number. 
That does not include -- that number does not include a separate body
of people who might be considered sub-baccalaureate-educated safety and
health technicians, rather than professionals.

		MS. ABRAMS:  And isn't it true that the proposed rule in no way
requires the services to be retained of an accredited CIH, CSP, or
someone with another designation like myself, certified mine safety
professional, to carry out the responsibilities under the act?  And, in
fact, isn't it true that you do not have to have a certification to do
industrial hygiene sampling?  Many of the OSHA inspectors are not
certified industrial hygienists.

		DR. BIRD:  I would respond to that by saying that in fact I think you
raise a question that adds to and complements what I said.  That raises
a further issue that OSHA should have previously and certainly should
going forward address, which is actually to clearly define who is
supposed to do what.  

		As I read through the 3,000-some-odd pages of both OSHA's PEA and the
ERG reports and so forth, and I read the preamble to the regulation, it
appears to me as an economist -- I'm not an industrial hygienist -- as
an economist that there is a lot of language in there that seems to
speak to a safety and health professional rather than a technician or
rather than an unskilled or only on-the-job skilled layman.  I think
that it would be certainly useful for OSHA to clearly define what it
means by who should do what, and back that up with evidence based on
research, that it's certainly within its capability to do, that would
show the relevance of different qualifications or lack of qualifications
for effectively doing the job you want to do.  

		If the intention here is to, as stated, to try to improve the health
of workers, you certainly want to make sure that the resources that you
are directing through your regulatory action to help those workers are
in fact resources that can do the job correctly and not make matters
worse.  

		MS. ABRAMS:  To repeat the question I actually asked:  Isn't it true
that the proposed rule does not require any company in the United States
to retain the services of a CIH or a CSP in order to be in compliance
with the rule?

		DR. BIRD:  I think that the -- at least my reading of the proposed
rule is that you should use those services, is a pretty good implication
to draw, especially if you want to avoid winding up with a OSHA
violation liability.  You need -- just as if one is charged with a
traffic violation, one ought to go retain a lawyer instead of
representing oneself.  Obviously, yeah, somebody could say, well, I'm
going to make myself a self-trained industrial hygienist.  Well,
that's -- one would be doing that, I think, at one's peril.  

		MS. ABRAMS:  Are you aware that the Mine Safety and Health
Administration has a program where they will provide training for
non-safety professionals on how to conduct silica sampling, after which
they will lend them sampling equipment for free so that they can do
their compliance monitoring?

		DR. BIRD:  No, I'm not aware of that.

		MS. ABRAMS:  Okay.  Thank you.

		JUDGE SOLOMON:  Thank you.  Okay, we have about, let's see, about 46
minutes to get to 5:00.  

		MS. KRAMER:  Your Honor, I believe the hearing schedule has us going
to till 5:30 each day.

		JUDGE SOLOMON:  Oh, okay.  So do we have enough time for Dr. Mirer to
ask a couple --

		MS. KRAMER:  We have plenty of time, and we're only about 45 minutes
into the scheduled hearing questioning period, and I believe the
scheduled questioning period was for approximately two hours, so we have
a ways to go.  I don't think we'll go that long, but there's plenty of
time.

		JUDGE SOLOMON:  Okay.  So but I'm going to limit Dr. Mirer to --

		DR. MIRER:  Yeah, this is -- I was going to yield my time, but
just -- for Mr. Chajet, are you aware that all -- you made the point
that OSHA's current air sampling data is not available to analysis, for
analysis.  Are you aware that all this data is available for download on
the OSHA webpage, all the air sampling data?

		MR. CHAJET:  Dr. Mirer, I'm counsel, and I'm not answering your
questions, but I would challenge you to find the inspector data there,
which one of your colleagues sued over.  It's certainly not there. 
So --

		DR. MIRER:  He's saying names of the inspector is not there, but --

		MR. CHAJET:  Let me just stop for a second. 

		May I try to clarify?  We signed up for two hours.  Our two hours is
what we --

		JUDGE SOLOMON:  Well, that was your, supposedly your --

		MR. CHAJET:  No, yesterday you limited us for our questioning and our
time to two hours.  We signed up for two hours, and our witnesses have
airplanes to catch and trains to catch, and we were planning on
ending --

		JUDGE SOLOMON:  I'm not going to ask them to see the tickets, but --

		MR. CHAJET:  Well, you know, we don't think it's right when --

		JUDGE SOLOMON:  OSHA is going to ask some questions, okay?  So --

		MR. CHAJET:  Well, they've used up all their time.

		JUDGE SOLOMON:  Well, I don't believe that OSHA has.  I mean, we were
talking about going to 5:00.  Now I find out it's 5:30.  But that's
probably because I extended the lunch.

		MS. KRAMER:  Your Honor, we don't want anyone to miss their plane. 
We'll try to keep our questions short.  

		MR. CHAJET:  We -- you know, the other day we had two hours and that
included asking our questions of your peer reviewers or our questions of
anybody else.  So this is a two-hour event.  The two hours is already
up.  We're trying to give you additional time, but we're not going to
sit here and be subjected to more questions than you allowed us to ask
your own witnesses and your own people.  That's just not fair.

		JUDGE SOLOMON:  Well, you know that I don't represent --

		MR. CHAJET:  It's just not fair.  And we're not going to participate
on that basis.

		JUDGE SOLOMON:  You're not going to let them ask any questions?

		MR. CHAJET:  No, we're not.  No, we're not.

		JUDGE SOLOMON:  You're not going to answer any questions?

		MR. CHAJET:  We used up the allotted time.  We have sat here and
allowed questioning for the last hour, and we've exceeded the two hours
that this panel is listed for on the agenda, and that time included the
question and answer period.  So it's not fair for me to try to ask three
questions and get cut off and then you sit here with this panel for more
than two and a half hours and expect to go another hour, or another hour
and a half.  It isn't appropriate.

		MS. KRAMER:  Your Honor, the Agency strongly objects to Mr. Chajet
attempting to prevent us from asking questions of the Chamber witnesses.
 We've already said that we are more than willing to keep our questions
short and respect his witnesses' time, and we request that we be allowed
our opportunity.

		JUDGE SOLOMON:  Yeah, let me ask you, what flight arrangements do you
have?

		DR. SABRY:  I have a train that leaves to -- that supposedly left to
New York at 4 p.m., so I'm going to try and take whatever comes up next.

		MR. SIRIANNI:  And I'm going to Baltimore on -- Baltimore airport,
so --

		JUDGE SOLOMON:  BWI.		

		MR. SIRIANNI:  And so it's like, you know, rush hour on Friday, so I'm
just because I got the last -- it's like the only direct flight to
Phoenix that exists in the world, so --

		JUDGE SOLOMON:  Do you have a car or are you taking the train?

		MR. SIRIANNI:  I do not have a car.  I'm taking a taxi or something.

		JUDGE SOLOMON:  You're taking a train probably.  So --

		UNIDENTIFIED SPEAKER:  -- has a shuttle.

		JUDGE SOLOMON:  Right.  Well, that's the cheap way.  I will take
administrative notice that's the cheap way to do it.

		MR. SIRIANNI:  I'll take a personal escort to the -- well, that
didn't come out right.

		MR. HALPRIN:  Your Honor, may I say something?  

		JUDGE SOLOMON:  Yes.

		MR. HALPRIN:  Lawrence Halprin with Keller and Heckman.  This is
really not about whether they can make their trains.  There's hypocrisy
going on.  If OSHA's not going to allow adequate time for questioning,
there's no reason for witnesses on the other side to allow time for
questioning.  And, furthermore, this is not a courtroom where there's a
court order for somebody to appear and stay until the testimony's over. 
It's based on cooperation on both sides, and OSHA has totally fallen
down on its side in making themselves available for cross-examination,
and it's unfair, as Mr. Chajet has pointed out, to have hypocrisy and
take two different approaches, where OSHA can ask as long as it wants
and schedules time till 5:30, and its witnesses disappear after two
hours after they've had 10 years to get this rule into place.  So that's
all I wanted to say.  Thank you.

		JUDGE SOLOMON:  Okay.  Ask a question.

		MR. BURT:  Hi.  First of all --

		MR. CHAJET:  Your Honor, out of an attempt to be courteous, we'll
allow a few questions, but then we're going to close this up and let our
witnesses try to catch their planes and trains.

		MS. KRAMER:  Your Honor.

		JUDGE SOLOMON:  Who's asking the questions?

		MS. KRAMER:  I'd actually like to just register a few objections for
the record.  First, this is a clear violation of the rules of procedure
for the hearing.  Second, the refusal to answer questions as OSHA would
like to ask undermines the purpose of the hearing, and also it could
result in less weight being placed on the witnesses' testimony because
of their refusal to respond to questions.

		JUDGE SOLOMON:  Who's asking the question?

		MS. KRAMER:  Also one last thing, Your Honor.  I apologize.  If any
public witness refuses to answer questions, OSHA might take that into
account when weighing their testimony.  

		I thank you, and we'll let the panel actually ask questions.  Thanks.

		JUDGE SOLOMON:  So who's up?  That's --

		MR. BURT:  Hi.  I'm Bob Burt, and I want to thank you for being here
after all that discussion.  And I just want to ask a few questions to
clarify a few things.  Let me start with Dr. Sabry.  

		The first table you showed, I think you clarified somewhat earlier
that this assumed a lognormal distribution; is that correct?

		DR. SABRY:  That's right.

		MR. BURT:  Now, just to be sure I understand, and I'm -- that, for
example, the first line shows a 95 percent confidence interval from 333
to -- my eyes aren't that good -- I think 840.  Let's take the 333. 
The 95 percent confidence interval means there's a 95 percent chance
that the average falls between those two numbers; is that correct?

		DR. SABRY:  Correct.

		MR. BURT:  And this means there is a 2½ percent chance that the
average is below 333; is that correct?

		DR. SABRY:  That's right.

		MR. BURT:  Okay, thank you.

		You mentioned that there was widespread respirator use.  Do you or
anyone else have clear evidence that the respirator -- these
respirators were used in a way that would in fact achieve the APF of 10?
 

		MR. CHAJET:  I'm going to object, Your Honor.  The data is OSHA's
data.  It's OSHA's contractor.  The information is fully within their
control.  It's based on a NIOSH study.  The information is within their
control.  All Ms. Sabry did was use their data.  So --

		MR. BURT:  So you made an assumption that there was an APF of 10; is
that correct?

		JUDGE SOLOMON:  Wait a minute.  Wait a minute.  There's an objection. 
There's an objection.

		MR. BURT:  I'm sorry, Your Honor.

		JUDGE SOLOMON:  Okay.  If you can answer, go ahead.

		DR. SABRY:  Just a clarification.  I want to make two points.  One,
the 98 percent use of respirator in the fracking industry is based on
the ERG report.  That is ERG's data to OSHA.  And the second point that
I -- the point I was trying to make in the analysis really has to do
with the inconsistent treatment of the use of respirator when estimating
costs versus benefits in the fracking industry.

		MR. BURT:  Okay.  Thank you.

		And then what the APF does is, when you recalculate the benefits, it
assumed an APF of 10; is that correct?

		DR. SABRY:  That's correct.

		MR. BURT:  Thank you.  Let me ask a few questions of Dr. Bird.  

		You discuss the issue of employee tenure, and you say you used a
Markov chain model.  Now, such a model assumes -- is it correct that
such a model assumes that past history is irrelevant?  So a person with
one-year tenure in an occupation has the same probability of leaving it
as someone with 10; is that correct?

		DR. BIRD:  It can be based on that assumption, or if there is
sufficient data to look at the effect, otherwise you can construct a
model that has a little bit more refinement in it. 

		MR. BURT:  But the model you used, does it assume 90.4 percent every
year as an independent event?

		DR. BIRD:  Yes.

		MR. BURT:  Thank you.

		We've both been economists 40 years.  This is a pretty unlikely event
in your model, isn't it?

		DR. BIRD:  Not for economists necessarily, because we tend to be
the -- although -- yeah, not for economists necessarily.  

		And I put that illustration in my comments as an illustration. 
Admittedly a limitation of that is the 9. whatever year average, which
refracts an average across all occupations.  That comes from that
specific study that I cited that was done in the 1980s by a staff member
from the Bureau of Labor Statistics.  

		I agree with your implication that in fact the Markov model parameters
could well -- I think likely would vary by occupation and vary over
time.  These are all factors that are -- you know, could be examined in
more detail.  Again, the purpose of the illustration was just to
illustrate that this is an issue that I think OSHA should have addressed
and/or should going forward address and do further research, that there
had not been any, that I could find, significant analysis of this issue,
which I think could, by my illustration, be found to be reasonably
suspect as something that needs to be looked into.

		JUDGE SOLOMON:  Let me just point that the beginning of the colloquy,
Mr. Sirianni again said something at the same time that Mr. Bird was
speaking.  So hopefully there will be a clear record on this.  If there
is not a clear record on this, then the parties are directed to go back
and make sure that it is clear.  However, Mr. Bird went on for probably
another page or two in the transcript, so it should be pretty clear.  

		DR. BIRD:  I apologize.  Your Honor, may I interject one thing?  I'm
very happy to be in colloquy with my old friend and colleague, Dr. Burt,
but I would just interject a personal note here, that I am 66 years of
age and subject to the physical infirmities that go with that, and if we
continue past 5, a comfort break would be in order.

		JUDGE SOLOMON:  Well, you know, I'm older than you are, so -- but
it's 4:27, so you have --

		DR. BIRD:  Oh, okay.  So --

		JUDGE SOLOMON:  -- yeah, you have 33 minutes.

		MS. KRAMER:  If this reassures you at all, we should be done by then,
but --

		MR. CHAJET:  Why don't we take a comfort break now, because I could
use one myself?

		JUDGE SOLOMON:  But you are the same person who said that your
witnesses have an exigent reason to leave.

		MR. CHAJET:  Well, they're going to leave whether --

		MS. KRAMER:  Mr. Chajet?

		MR. CHAJET:  -- whether we take a break or not, but it would be good
to take a break.

		JUDGE SOLOMON:  Okay, five minutes.  Off the record.

		(Off the record.)

		(On the record.)

		JUDGE SOLOMON:  We're back on the record.  Any more questions, Ms. --

		MS. KRAMER:  Your Honor, real quick.  As a procedural matter, I'd like
to note that since Mr. Sirianni has departed, we're not going to have
an opportunity to ask him questions.  We would certainly expect the
Chamber to submit the photograph of the air helmet that Mr. Sirianni had
referenced, and also the materials regarding the air helmet -- it's
weight, it's size, things like that, that he had mentioned that he would
have an opportunity to submit to the record.  We would appreciate if,
given that we don't have an opportunity to question him, that he
certainly submits that as soon as possible.

		MR. CHAJET:  Happy to do that.

		JUDGE SOLOMON:  Okay.  So who's going to ask the next question?

		MR. BURT:  I have a few more questions, thank you.  First let me
appreciate your suggestion we take a break.  

		JUDGE SOLOMON:  Glad to oblige.

		MR. BURT:  You suggested to me for a survey.  Do you know if OSHA has
ever used surveys for a health standard in the past?

		DR. BIRD:  Yes.  

		MR. BURT:  When?

		DR. BIRD:  In 1990, in the context of the bloodborne pathogens
rulemaking.  The initial contractor assessment of baseline conditions
that was submitted to Dr. Conway, who then at that time had your job
then.  And you remember Hugh?  

		MR. BURT:  Yeah.

		DR. BIRD:  And the initial work that the contractor did was based on
nines, the familiar -- you're familiar with that, looking at nine of
this and nine of that.  And it was then determined that for such a major
rule, and this one was -- in 1990 was the bloodborne pathogens' rule
was a very important national matter to protect healthcare workers from
bloodborne diseases such as AIDS and hepatitis.  And it was determined
that that baseline assessment that was initially done, which was in some
ways quite similar to the kind of work that -- by ERG that you've based
the analysis in this case on, that that was inadequate.  And in
consultation between -- with the contractor and the -- and OSHA, it
was decided that to make sure that a rule that was protective of workers
could go through effectively and be properly justified and so forth,
that a national survey was needed.  And the appropriate OMB clearance
was obtained in about three or four months -- the survey was designed,
the clearance obtained, the survey implemented, and the results analyzed
within about a 12-month period all together.  So that it added to cost
of the rulemaking the cost of -- you know, the budget cost to the
Agency, I think it added, if my recollection is correct, around a half
million dollars to the cost.  

		But this was a rule that was estimated as having an annual economic
impact on the economy of about $900 million a year.  And, you know, sort
of the view, I think, was that when a rule has a major effect on the
economy, the Agency has a major obligation to devote appropriate
resources to put the right legs and foundations under the rulemaking. 
And so that was done, and in fact, the findings of that survey I think
had some effects on how certain elements of the rule ultimately were
evolved and also had an important effect on -- ultimately on having a
better estimate of the actual cost, because we got a better estimate of
the -- what already the baseline compliance before the rule was, and
also from that some good information came regarding what were the causes
of people who -- what were the challenges and underlying causes that
were associated with not already being voluntarily adopting universal
precautions.  

		And I think, you know, there's a couple lessons here in that
experience that I hope OSHA would take away.  I know that when I was
first at the Small Business Administration roundtable that
Mr. Lundegren was describing in his earlier testimony, and I was -- I
asked a question publicly of the OSHA people that were there.  You were
not, but I think Mr. Stone was and Mr. Perry were there, and I asked a
question about did you do a survey, and -- a baseline compliance survey
and so forth.  And the response was, horrors, of course not; that would
require OMB clearance, as if this is something impossible to obtain.

		In fact, OMB has procedures in place to facilitate and I think
expedite calls for surveys associated with regulatory needs, and my
experience and as -- and this goes back to 1990; I was involved in --
I was part of a contractor team at that time on the bloodborne pathogens
rule -- is that when you go to OMB, they are welcoming of this sort of
petition for clearance for a survey.  And, furthermore, they have
resources there, including Katherine Wallman, who is the chief
statistician of the United States, there in OMB, who can be very helpful
in helping -- and some of her staff in helping design a survey that is
in fact representative and statistically reliable and questions that are
appropriate and so forth.  There's a lot of resources there.  So, yeah,
I would encourage OSHA to go take that step.  This is a major rule that
may have a major impact.

		And there's another reason for that too, and that has to do with
something that's -- it's actually mentioned in the President's
Executive Order 13563 that was issued a couple of years ago
regarding -- and in that executive order, which laid out some expanded
principles and so forth for regulatory economic analysis, was also an
increased emphasis on doing retrospective studies.  And, frankly, doing
the kind of survey now that I'm describing could also lay the foundation
for planning within any rulemaking, that if the results of the survey do
indicate that a rulemaking is justified or feasible or -- and so on and
so forth, building into that revised regulatory program an explicit plan
for then evaluating, doing a retrospective study to evaluate the results
later as it's implemented.  

		And then finally in that regard, I would say too, the things I've
heard in this conversation and all that we've had today and I've seen
elsewhere in the record as I've looked at about -- I think it's been
said that the current PEL has a noncompliance rate of maybe 30 percent
or so forth.  This is an important number.  And actually the kind of
study that I'm saying that the survey and so forth, research, that needs
to be done, could help understand critical questions that I don't think
OSHA currently has a sufficient understanding of regarding the current
PEL, what the challenges are for some establishments for compliance with
it, what the actual -- I know it's been said 30 percent, but a lot of
that's kind of on shaky grounds.  We could really find out what is the
actual current compliance with the current PEL and what are the actual
exposures around that PEL and so forth, that -- all of which could be
gotten from that kind of research that I'm really sad to see that it
does not seem to have been done and I think could be done and I hope
will be done.

		MR. BURT:  Let me ask a question to the Chamber of Commerce as a
whole.  OSHA has used surveys.  The last two times I have used a survey,
Chamber of Commerce questioned such a survey because they argued that
people would lie and that there was inevitably a response bias and
persons who were not complying, not doing things, would simply not
respond to the survey.  Would Chamber of Commerce have a solution to
these problems?

		MR. CHAJET:  I guess we'd have to go back and find out what you're
talking about.  

		MR. BURT:  I'd welcome --

		MR. CHAJET:  I don't know what you're talking about.  So we don't have
any answers for you right in the moment, but we'd be happy to get back
to you.  

		MR. BURT:  Okay.  Thank you.

		Let me take up one other issue.  You give an example and talk
about -- for example, you say, well, you look at the typical facility,
but you could have three facilities that cost 50,000 and one that costs
10 million, something like that.  Is that based on examples like your
quotation from ERG, that OSHA -- that your interpretation of the ERG to
think that OSHA, a PEL of 50 µg would require people to rebuild their
facility?

		DR. BIRD:  ERG in its 2008 report, on page --

		MR. BURT:  Yeah, I agree with the ERG report.  I know what the ERG
report --

		DR. BIRD:  -- on page --

		MR. BURT:  My apologies.

		DR. BIRD:  I'll give you the exact page.

		MR. BURT:  Sorry, Your Honor.

		DR. BIRD:  If I may complete -- ERG 2008, page 2-53 estimated that
five percent of the establishments in the foundry industry sector may
require complete rebuilding to achieve compliance.  Five percent's a
pretty big number.  That's -- and what does it cost to rebuild a
foundry?  I don't know -- may I finish my response?

		MR. BURT:  Yes.  Our time is limited, so I'd like to have a chance to
ask a question or two.

		DR. BIRD:  I know, I know, I know.  I'm -- I understand that.  But
the -- five percent's a significant number and the cost of rebuilding a
facility as large and complex and capital intensive as a foundry is
highly significant.  I don't know what that number is, but I think that
it is a number that it behooves you and all of us to find out and think
about and understand, because the point of my illustrative example is
just to show that this isn't some marginal thing that can just be kind
of ignored.  It could be a big -- have a big effect on the economic
feasibility question.  It is an issue that at least should be addressed
seriously, with serious data and with careful analysis.  

		Now, I would have loved to have been able to actually go out and do
more research on that issue because I think it's a very fascinating and
interesting issue, not only for the foundry industry -- and the people
I've talked with in the foundry industry say, you know, it -- they
resonate with that concern -- but for many other industries as well. 
And I would have loved to have actually gone out and done, as we have
otherwise in my tenure at the Chamber, done our own surveys of companies
and so forth to get data.  I would love to have done a more real
analysis rather than just an illustrative example.  But the fact of the
matter is, the restricted comment period that was provided to respond to
your over -- I went through more than 3,000 pages of documents in your
record, including your PEA, your various ERG reports, and so forth.  The
volume of material that OSHA had accumulated over 10 years that it
expected the public to respond to and digest within such a short period
of time was overwhelming.  

		I've noticed that other agencies have done differently.  For example,
the Food and Drug Administration with its very significant Food Safety
Modernization Act implementation regulations, for some of those
regulations, have provided comment periods, after especially providing a
couple of extensions, comment periods nearing a year.  And that's
actually what it is needed sometimes to get into these issues and to
provide, not response that's intended to stonewall the regulatory
process, but response that's intended to participate in it, to be
helpful and help shape a regulation, if a regulation is needed, or some
other program change such as an improved enforcement strategy, if
needed, that is appropriate and useful and ultimately that protects
workers, because that's what we are all ultimately here for.

		JUDGE SOLOMON:  Thank you.  Any other questions?

		MR. BURT:  One or two more.  

		DR. BIRD:  Glad to.

		MR. BURT:  You mentioned the number of pages in the record.  Is that
perhaps why you didn't notice that we did address the issue of the
length of tenure of employees and what difference it made to the
benefits?

		DR. BIRD:  I did not see that, and actually my colleague, Dr. Sabry,
and I were talking about something was said earlier today that implied
that might be there.  And so I -- 

		Do you recall seeing it either?

		DR. SABRY:  Were you referring to the live tables less than 45 years
or analysis under an assumption of less than 45 years?  Is that what
you --

		MR. BURT:  Well, I'm referring to a sensitivity analysis in the PEA
concerning the tenure of workers.  

		DR. SABRY:  Was that done also for fracking?  

		MR. BURT:  It was not done separately for fracking.

		DR. SABRY:  Yeah, that's what we were discussing.  

		DR. BIRD:  I vaguely remember seeing something like what you may be
describing, but I did not see where the results of that changed the
ultimate benefits calculation.  But if you think that I have missed
something or am incorrect in my interpretation, I would appreciate you
pointing me to that, and I would be very happy to review it in detail
and to address the issue in the post-hearing comments.

		MR. BURT:  Thank you.  I don't have it handy today, but on the first
day of the hearing in response to a question, I cited the page number
where you could find that analysis.

		I had one more question.  

		DR. BIRD:  Excuse me.  On that issue, if you could -- since the
transcript is not available and I was not here that first day, if you
could provide Mr. Chajet or some way that to pass to me or somehow
memorialize that issue so that we can be sure to address it, I would
appreciate it very much.

		MS. KRAMER:  We'd be happy to do that.

		DR. BIRD:  Thank you.

		MR. BURT:  I believe I heard Mr. Chajet state at one point that a PEL
of 100 is adequately protective.  Would this apply to the -- would that
comment apply to the current PEL in construction, which is much higher?

		JUDGE SOLOMON:  Who are you asking?

		MR. BURT:  I'm asking Chamber of Commerce, whatever -- 

		MR. CHAJET:  I think you heard testimony from Dr. Valberg and Dr. Long
about evidence, scientific evidence of a threshold of around 200 to 250
in a number of scientific papers.  And I'll let you draw your own
conclusion from that testimony.  I don't want to speak for them, but
there was testimony about that.  

		And, frankly, it's consistent with -- I mean, I don't know how you
look at this chart and not draw that conclusion yourself with 30 percent
of your samples in excess of the exposures.  And among that 30 percent,
I have to say, there's some humongous exposures.  And yet this trend
continues downward.  If you plot the opposite trend -- it happens to be
on the CDC site -- the opposite trend for asbestos, you see the
complete opposite graph.  Right.  And here you have a nonstop decline
with very large exposures; you have to conclude that there's protection
at higher numbers here.

		MR. O'CONNOR:  A question for Dr. Sabry.  In your written comments,
item 51, you reviewed the statistical confidence limits for some of
OSHA's risk estimates and you go on to state in item 52 that OSHA
provided no justification for accepting this level of uncertainty in its
dose-response coefficient.  But it isn't clear what your position is as
to what OSHA should do in light of this uncertainty.  Could you share
any thoughts you might have on how you think OSHA should handle this?

		DR. SABRY:  Sure.  So on, for example, on the dose-responses or the
estimates for the -- for lung cancer, my suggestion was to run the
estimates because of the results of one study, the Attfield and
Costello, was so critical.  Maybe one suggestion may be to run the
analysis on the benefits with and without that study and to see the
impact of it.  

		Another thing that could be done, if possible, is to run the analysis
on the -- or report the result for the upper and lower bounds of the 95
percent confidence interval instead of the point estimate, at least to
get a sense of how much of the variability in your results are driven by
the measurement errors in the dose-response regressions, whatever
they -- whatever models that have been used.  That could be another
suggestion.  

		In some instances I've seen some academic studies run simulations to
assess the extent of the measurement error because there's an error in
the -- from the sampling, to start, for the exposure levels, and then
there is a different type of error, a measurement error that is in the
dose-response models.

		MR. O'CONNOR:  Thank you.  My other questions were for Mr. Sirianni,
so I think that concludes OSHA's questioning for today.  

		On behalf of the Agency, I wanted to make sure that we thanked our
panel and that you're aware that we appreciate you attending this
proceeding and presenting testimony today.

		DR. SABRY:  Thank you very much.  				DR. BIRD:  It's been a pleasure
to be here.  Thank you.

		MS. KRAMER:  Your Honor.

		JUDGE SOLOMON:  Yes.

		MS. KRAMER:  I'd like to add my thanks on behalf of the Solicitor's
Office as well, and if it's okay with you, I just have two quick
clarifications that I'd like to say for the record.

		First, to the extent that the Chamber has implied today that OSHA has
been in any way improper with regard to the timing of the scheduling,
I'd like to refer Your Honor and also the Chamber and anyone who intends
to testify in the future to the first page of the schedule.  The note at
the bottom of it reads:  "The duration of the testimony is listed for
informational purposes only.  It reflects the amount of time requested
by each participant for their testimony and does not include time for
questions."  And that comports with the first page of the NPRM, which
indicates that those that wish to testify should notify the Agency of
the time with which they'd like to use so that we could plan our
schedule accordingly.

		And my second point was with regard to Mr. Chajet's earlier refusal
to answer a question, and I'd like reiterate with my colleague's
statement that we very much appreciated you answering questions at the
latter portion of your testimony, but I'd like to refer everyone to
Hearing Procedure 2-4, which indicates that all participants who testify
or who participate in a panel of testifying witnesses will be expected
to respond to questions following their presentations.  

		And that's all I have.  Thanks so much, Your Honor.

		JUDGE SOLOMON:  I have -- I think, again, the interests of justice
require that I ask this question.  Is there a correlation between --
you just took off the CDC 2000 slide, but is there a correlation between
that and insurance rates or insurance coverage?

		MR. CHAJET:  I have no idea, Your Honor.

		JUDGE SOLOMON:  Well, you have experts there, so they -- do you know
whether or not there's a correlation?

		MR. CHAJET:  We didn't even testify or study it or look at it or --

		JUDGE SOLOMON:  Okay.

		MR. CHAJET:  -- anything else.  So I --

		JUDGE SOLOMON:  I mean, that's an answer.  Well, not -- okay.

		DR. SABRY:  We don't know.

		MR. CHAJET:  What we do know is this is what CDC says.

		JUDGE SOLOMON:  Right.

		MR. CHAJET:  This is the reality of their facts, and the statistical
modeling has been used to try to eliminate the reality of the facts.

		JUDGE SOLOMON:  I just asked the question.  

		MR. CHAJET:  That's what we know.

		I'd also like to place on the record our thanks for your hospitality
here during this hearing, and that we have a difference of opinion about
how questioning and time frames were handled.  I consider that a
professional difference of opinion.  We don't think it was fair or
appropriate.  On the other hand, we thank you very much for hosting the
hearing, permitting us the time to present our views on behalf of the
Chamber, and we look forward to presenting post-hearing comments at the
end of this proceeding.  Thank you very much.  

		And we would reiterate our request for further hearings, perhaps in
the regions, so people could testify -- they feel this important to
them -- in Pittsburgh, in St. Louis, in San Diego, and other --
Chicago and Detroit.  And we would also reiterate our request for more
time to ask questions of the OSHA personnel and the NIOSH personnel.  So
thank you very much.

		MS. KRAMER:  We will, of course, take your requests as well as your
comments today under consideration.

		JUDGE SOLOMON:  Okay.  So if there is nothing else -- is there
anything else from anybody?

		The time is now 5:01, and the hearing is closed.	

		(Whereupon, at 5:01 p.m., the hearing was continued, to resume on
Monday, March 24, 2014, at 9:30 a.m.)

C E R T I F I C A T E

	This is to certify that the attached proceedings in the matter of:

INFORMAL PUBLIC HEARINGS FOR THE PROPOSED RULE 

ON OCCUPATIONAL EXPOSURE TO

RESPIRABLE CRYSTALLINE SILICA

March 21, 2014

Washington, D.C. 

were held as herein appears, and that this is the original transcription
thereof for the files of the United States Department of Labor,
Occupational Safety & Health Administration.

				 							    					____________________________

				    	ED SCHWEITZER

				    	Official Reporter

_________________________

		Continued

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