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 24, 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):

ALLISON KRAMER

Attorney, Office of the Solicitor

ANNE RYDER

Attorney, Office of the Solicitor

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA):

WILLIAM PERRY

Acting Director, Directorate of Standards and Guidance

STEPHEN SCHAYER

Office of Physical Hazards 

TIFFANY DeFOE

Office of Chemical Hazards - Metals

DAVID O'CONNOR

Director, Office of Chemical Hazards - Non-Metals

JOSEPH COBLE, Sc.D., CIH

Director, Office of Technological Feasibility

ROBERT STONE

Director, Office of Regulatory Analysis - Health 

PATRICIA DOWNS

Office of Technologic Feasibility 

ROBERT BURT

Acting Deputy Director, Directorate of Standards and Guidance	

ROBERT BLICKSILVER

Office of Regulatory Analysis - Health

OSHA EXPERT WITNESS:

KYLE STEENLAND, Ph.D.

Professor, Department of Environmental Health

Rollins School of Public Health

Emory University, Atlanta 

THE CONSTRUCTION INDUSTRY SAFETY COALITION (CISC):

BRAD HAMMOCK

Attorney, Jackson Lewis

STUART SESSIONS

President, Environomics, Inc.

KELLIE VAZQUEZ

Vice President, Holes, Inc.

KEVIN TURNER, CSP, CHST, CRIS

Director of Safety, East Division 

Hunt Construction Group 

OTHER PARTICIPANTS:

NEIL KING

Attorney, American Chemistry Council's Crystalline Silica Panel

DARIUS D. SIVIN, Ph.D.

Health and Safety Department, United Auto Workers

JAMES FREDERICK

Assistant Director, Health, Safety and Environment  United Steelworkers
Union

ELIZABETH NADEAU

Attorney, International Union of Operating Engineers

BRUCE LUNDEGREN

Assistant Chief Counsel for Advocacy

Office of Advocacy, Small Business Administration

CHRIS TRAHAN

Building and Construction Trades Department, AFL-CIO

ROBERT MATUGA

National Association of Home Builders

OTHER PARTICIPANTS (cont.):

SCOTT SCHNEIDER, CIH

Director of Occupational Safety and Health

Laborers' Health and Safety Fund of North America

MATT GILLEN

Deputy Director, Office of Construction Safety and Health, NIOSH

SEAN THURMAN 

Associated Builders and Contractors

PETE CHANEY

Mechanical Contractors Association of America

WAYNE CREASAP

Director of Safety and Health

Association of Union Constructors

INDEX

										PAGE

		

INTRODUCTION

Judge Daniel F. Solomon		  				  PAGEREF a1Solomon \h  1215 

OSHA EXPERT WITNESS

	Kyle Steenland, Ph.D.				  	  PAGEREF b1Steenland \h  1219 

	Questions							  	  PAGEREF b1questions \h  1236 

THE CONSTRUCTION INDUSTRY SAFETY COALITION (CISC)

	Brad Hammock						  	  PAGEREF c1hammock \h  1269 

	Stuart Sessions					  	  PAGEREF c2sessions \h  1296 

	Kellie Vazquez						 	  PAGEREF c3Vazquez \h  1350 

	Kevin Turner, CSP, CHST, CRIS			 	  PAGEREF c4tURNER \h  1366 

	Questions							 	  PAGEREF c5questions \h  1382 

ADJOURNMENT							 	  PAGEREF d1adjourn \h  1544 

EXHIBITS

EXHIBITS		DESCRIPTION				 	PAGE 

Exhibit 38	Dr. Steenland's PowerPoint	   	  PAGEREF Ex38 \h  1236 	    

Exhibit 39	Lacasse study			   		  PAGEREF Ex39 \h  1236 	    

Exhibit 40	Mr. Hammock/Mr. Sessions

			PowerPoint				   	  PAGEREF Ex40 \h  1270 	    

Exhibit 41	Ms. Vazquez' testimony		  	  PAGEREF Ex41and42 \h  1344 	 

Exhibit 42	Mr. Turner's testimony		  	  PAGEREF Ex41and42 \h  1344 	   

	

				  

P R O C E E D I N G S

(9:30 a.m.)

		JUDGE SOLOMON:  We're on the record.

		I am Daniel Solomon.  I'm an administrative law judge with the United
States Department of Labor.  My address is 800 K Street, Northwest, 4th
Floor, Washington, D.C.  The zip code is 20001.

		Now, with respect to the food in the cafeteria, I will note for the
record that I have coffee in front of me.  It's probably a violation,
and I see that some of you have coffee in front of you, too, but I'm not
going to be very strict with that since I would be a hypocrite in doing
that.

		Last week, there was some controversy about how the procedures would
be handled.  The procedures are laid out in two places, first of all the
memorandum from Dr. David Michaels as to, in quotes, "the hearing and
post-hearing procedures for OSHA's proposed standard on occupational
exposure to respirable crystalline silica," and, number two, the general
rulemaking procedures at 29 C.F.R. Subpart 1911.

		Last week, I read into the record that they were published in the
Federal Register in October of 2013.  I might state also that the
overarching authority for these hearings comes from the rulemaking
procedures which are found at 5 U.S.C. Subsection 503 and following, and
that's generally known as the Administrative Procedure Act.

		The hearing should run from 9:30 to 5:00.  The time set for one lunch
break will be adjusted if necessary.  It is at my discretion, but let me
just say that nature sometimes has something to do with that.  And I
know that some of you have medical problems; if there is a problem,
please let me know.

		As indicated on the hearing schedule sent to participants, the time
allotted for each witness on the panel is for testimony only.  It does
not include time to receive questions from other hearing participants or
the OSHA representatives.

		All participants who wish to deliver testimony must make themselves
available for questions from other participants and OSHA after their
presentations.  This is an integral part of the hearing as it allows
OSHA, along with other interested parties, to more fully develop the
rulemaking period.  

		The question and answer portion of the hearing also benefits witnesses
themselves, as OSHA's questions are often aimed at obtaining a further
understanding of the witness testimony so as to give it better
consideration.

		I direct the question of witnesses based on time allotted in the
schedule, as well as considerations such as the number of participants
who wish to ask questions and the amount of time the OSHA panel needs to
ask questions.  

		Any participants who do not wish to respond to questions should notify
OSHA before they testify if they wish to be removed from the hearing
schedule.

		As the judge, one of my primary roles is to ensure fairness and order
during the hearing as directed by the regulations, especially at 29
C.F.R. 1911.16, Subparagraph D.  I will use appropriate means to
regulate the conduct of these proceedings.

		If you are on stage and you need to take a break, just let me know and
we'll try to accommodate you.

		Hopefully, this will clarify matters, and we'll try not to go beyond
the 5:30 time.  Now the weather reports say that there is probably snow
starting later on in the afternoon and we may have some problems.  So
when we are off the record, if any of you know of anyone who is going to
have difficulty making the hearings, especially tomorrow morning, please
let us know.

		Okay.  So, at this time, Ms. Kramer, would you enter your appearance
for today?

		MS. KRAMER:  Sure.  My name is Allison Kramer, and I represent the
Office of the Solicitor here in the Department of Labor.  And I would
like to hand it over to Mr. William Perry.

		MR. PERRY:  Thank you, Allison.  This is Bill Perry from OSHA.  Today,
we have appearing before us Dr. Kyle Steenland.  He is a professor in
the Department of Environmental Health at the Rollins School of Public
Health, Emory University, Atlanta.  He is appearing today as a witness
for OSHA, and he is here to testify about work he has done in the past. 
Much of it has been the subject of discussion at these hearings already.
 And this work is work that OSHA relied on fairly heavily in its risk
assessment.

		He will also be testifying on the uncertainty analysis that he
performed for OSHA as part of the Agency's preliminary quantitative risk
assessment, as well as work that he has been involved in since that
time.  So, welcome, Dr. Steenland.

		JUDGE SOLOMON:  Would you please state your name?

		DR. STEENLAND:  Kyle Steenland from Emory University in Atlanta,
Georgia.

		JUDGE SOLOMON:  Okay.  Do you want to provide your testimony?

		DR. STEENLAND:  Sure.  I made all these slides, so --

		JUDGE SOLOMON:  You have about 20 minutes.  And then there will be
some questions from the public and then, of course, from the OSHA panel.
 

		I might say that the second panel this morning will also be held over
to the afternoon.  And so I believe that there is an agreement; is that
right, Ms. Kramer?

		MS. KRAMER:  That's right, Your Honor.  We'd like to have the
questioning for the second panel held over until the afternoon.

		JUDGE SOLOMON:  And I understand there is no opposition to that?

		MS. KRAMER:  Yes, sir, that's correct.

		JUDGE SOLOMON:  Okay.  Sorry about that.  Go ahead.

		DR. STEENLAND:  Okay.  So I'm going to just kind of give an overview
of my feelings and thoughts about the silica standard proposed by OSHA. 
If you can't hear -- I think you can hear me, yes.

		So the current standard of .1 mg/m3 was set in 1971, directed at
prohibiting silicosis -- this has kind of got some feedback -- which
was a well-known danger, of course, recognized at the time for silica
exposure.  At that time, early on, there was no data suggesting that
silica was associated or caused lung cancer.

		So I am an epidemiologist who -- further away?  Okay.  And still the
volume is okay back there?  Yeah, okay.

		I'm an epidemiologist.  I worked 20 years at NIOSH, and I did a lot of
studies on silica.  I retired from NIOSH and, rather than retire, I went
to work somewhere else, at Emory, in 2002.  

		I should say that NIOSH has recommended lowering the current silica
standard from .1 to .05 since 1974.  So in that sense, there is a long
history of saying the standard is too high, and I am glad that OSHA is
now recommending lowering it to what NIOSH recommended, oh, that must be
40 years ago, something like that.

		So just to say further, I have written a bunch of articles on silica,
and mostly I suppose I have tried to develop exposure-response analyses
to say how much silica results in how much disease.  I have done that
for silicosis, renal disease, and lung cancer.

		So why do we care about that?  Well, quantitative exposure-response
data, when they show a positive trend for a relationship between
exposure and disease, are among the most important data for assessing
that there is some causal relationship between the exposure and disease.
 We have, as epidemiologists, you know, some common sense decisions
about whether something is causally related, which we have inherited
from Bradford Hill in the 1950s.  

		And one of those criteria and one of the most important is, is there a
positive exposure response, so not just do people exposed to silica get
disease more than people who are not exposed to silica, but what exactly
is the relationship and is there more disease with more exposure?

		But the second reason that quantitative exposure-response data is
important preferably for humans is for doing risk assessment,
quantitative risk assessment, so that you can say that for a Level X of
exposure, you will get probably Level Y of disease.  So that then they
would set a level of exposure that will be protective against disease in
a quantitative way.  So that's what you need for risk assessment, and
that's what OSHA has done here.

		So it's an important problem.  Everybody knows this.  OSHA estimates
that there is 2 million, 2.2 million workers exposed in the United
States to silica, crystalline silica respirable.  The industries that we
know about, they are foundry, mining, sandblasting, and occasionally
some new things come up like tracking, where NIOSH has done some studies
to show that there is side exposure to silica in a new situation.

		So I'm going to talk about two diseases today, silicosis and lung
cancer.  I am not going to talk about renal disease, but if people want
to, we can.

		So silicosis, we know, is a disabling lung disease for which we have
no cure.  It develops years after exposure, many times after retirement
from the workforce.  So it is diagnosed by x-rays and clinical symptoms.
 And so if you don't have people followed with continual x-rays after
they leave work, you are not going to catch a lot of silicosis.  So
studies that study silicosis among currently employed workers only will
underestimate greatly the eventual occurrence of silicosis, which is a
caveat to some of the studies of silicosis that have been done.

		Silicosis deaths, and this is a very good thing, have dropped
dramatically since the 1960s to today.  You can see the numbers up
there, 1,200 in 1968 to 100 in the early 2000s, so that would certainly
speak to the improvement in conditions and less exposure over time
certainly partly due to the silica standard originally adopted in the
'70s of .1 mg/m3 by OSHA.

		The problem is that that may well underestimate the amount of
silicosis in the world because most people who get silicosis either
don't die of it or, if they do, it is not on the death certificate.  So
we have other sources of silicosis, for example, while we don't -- we
do not have a national surveillance system for silicosis, we do have a
few state systems that try and estimate the occurrence of silicosis.  

		For example, in Michigan, Ken Rosenman estimated there were from 3,600
to 7,300 cases based on diagnosis in hospitals in the 1990s per year. 
So if we extrapolate that out to the United States, which we can't
exactly, but it is very likely there are tens of thousands of cases of
silicosis a year that occur, most of which we don't know about.  So I am
arguing that it is also an important problem.

		So the current standard was based largely on and in 1971 adopted from
data from the granite workers suggesting that the standard was set
thinking that silicosis would not occur with exposure below that level.

		Now, I should emphasize that a daily limit, an average eight-hour
limit of a certain intensity of .1 mg/m3 ignores a second component of
what causes disease, which is how long you are exposed, so it doesn't
take duration into account.

		Nonetheless, that standard was set thinking that that's going to kind
of keep one from getting silicosis.  But as I mentioned before, already
in '74, NIOSH said no, it's not, it's going to need to be halved to
reasonably prevent silicosis.

		And so by the 1990s, there were seven new publications of
exposure-response data for silicosis.  And so I reviewed those studies
in 2005 and concluded that the lifetime risk of silicosis after 45 years
of employment, which is typically what OSHA assumes in doing these
things, at the current standard of .1 would result in about half of the
exposed workers getting silicosis, which is an enormous burden of
disease.  That is based on the seven studies and in this publication in
2005.

		At that point, with those seven studies, it looked to me like the
standard that would be needed to reduce silicosis to 1 in 1,000 exposed
workers over a 45-year period would be .01, 1/10th of the current
standard.  I assumed in that article, in 2005, that that decrease to .01
was not a feasible decrease and, therefore, suggested that anything you
could do to lower it would be better.

		So OSHA now has reviewed seven studies with exposure-response data for
silica with long follow-up sufficient for disease to develop and from
these studies concluded that approximately 30 out of 100 workers exposed
over a lifetime at the current standard would get silicosis, which
given -- it is not that much different from the same conclusion I
reached earlier.  So lowering the standard to .05 is expected to lower
lifetime risk to 5 out of 100, which still is too high, but a huge
improvement over 30.  So I would say that my conclusions in 2005 and
OSHA's in 2013-2014 are quite similar in that regard with silicosis.

		So now I want to move to lung cancer.  So by the late 1990s, a number
of studies showed an increased risk of lung cancer for silica-exposed
workers.  These data were sufficient in 1997 for the International
Agency for Research on Cancer, IARC, which is a dependent of the World
Health Organization, to classify silica as a definite Class 1 human
carcinogen.  And in 2000, the U.S.-based National Toxicology Program,
NTP, followed suit and did the same classification. 

		These decisions remain controversial in some quarters.  They were
primarily based on increased lung cancer risk among exposed workers
compared to non-exposed workers, and there were no exposure-response
data at that time or very little.

		I would say that by the late 2000s, there were 100 studies of lung
cancer and silica, so the thing mushroomed, and there were more than 15
with exposure-response data.

		It is worth pointing out that IARC then evaluated silica in 2012 and
concluded and confirmed its original judgment that it was a Class 1
definite carcinogen based on much more abundant data, and that NTP
follow suit again.

		So, furthermore, as I mentioned, the exposure-response data now
available permitted a quantitative risk assessment, and I'll talk about
that a bit now.

		So, in 2001, I worked with a bunch of other people in different
countries to assemble a pooled cohort of about 60,000 workers who were
followed over time.  I was working at IARC at the time, and we pooled
these data, which means you take all the raw data from these 10 cohorts
and you put them together, and you then analyze that data together.  And
there were, like I said, 60,000 workers and about 1,000 lung cancer
deaths.  So this was a data with -- a rich dataset with high
statistical power to see anything, if there was anything to see.

		And we, indeed, found a statistically significant positive exposure
response between cumulative silica exposure and lung cancer mortality,
with the risk of lung cancer increased about 50 percent for those with
the highest exposure versus the lowest.  So this was what we call an
internal analysis.  We're comparing high exposed to low exposed, so
we're sort of comparing workers to workers here.

		Cumulative exposure, I might say, is often the best predictor of
chronic disease in general, in epidemiology.  We also did analyses with
average exposure, which gets to the intensity, and that showed similar
results.

		We concluded that this positive exposure response was not likely due
to different smoking habits between high exposed and low exposed
workers.  And the reason we did that was twofold.  First, workers tend
to smoke similar amounts regardless of their exposure level in general. 
We often worry about comparing workers to the general population because
workers tend to smoke more than the general population.  But, in
internal analyses, we don't have this problem very often.  

		When we have smoking data, we see that it is not related to exposure,
so a priori we don't think it is likely to be a strong confounder in
internal analyses.

		Secondly, a number of the studies we used in our pool cohort had
smoking data, either for the whole cohort or partially.  And when they
took that into account, their results did not change.  In fact, they
also found that smoking was not related to exposure in their studies,
which means that it won't affect the exposure-disease relationship
because if it is going to do that, it has to differ between the high
exposed and the low exposed, and it generally did not.

		So those were the two reasons we thought smoking was less likely to be
an important factor here.

		We further investigated whether there was a level below which there
was no increase in risk, the so-called threshold.  So we fit models that
had a threshold versus those that didn't, and we explored various
thresholds that might apply.  And we found, in fact, that there was a
threshold model that fit better than a no-threshold model, not
enormously better but better statistically, but that threshold was
extremely low.  It was equivalent to a 45-year exposure of .007 mg/m3,
which is 7 times lower than the proposed OSHA standard.  So there is lot
of, in our view, lung cancer risk increased after a very low level of
silica exposure, far below the suggested proposed silica standard
proposed by OSHA.

		And we further investigated the effect of measurement error in our
study.  Now, measurement error, there is a couple of things you can do. 
One is you can, if you're lucky, you've got some actual -- in a subset
of your population, you have some actual data which is what we call a
gold standard, so you know the true exposure for this subset.  And you
also know the estimated exposure that you use for the whole population. 
And then you can compare for that subsample the true exposure to the
estimated, and you can see if the estimated has some systematic bias or
error involved in it.

		And when you have that, you can then correct, if you will, the entire
dataset for the known relationship between true and estimated in the
subsample.  That's called the gold standard.  We didn't have it.

		So absent the gold standard, what we did was basically a sensitivity
analysis where we said the observed -- the estimated exposure that we
give to each person is likely to have some error involved in it and we
estimated what that error might do.  If you had some assumption about
how big that error was around the estimate for each person and you kind
of randomly sampled from distribution of that error around that person's
assigned level, what happens to your dose-response estimate?  And the
answer was not much.

		We did 50 simulations and found that the mean result over those 50,
taking an exposure error into account, changed our estimate about 5
percent, which is more or less negligible.  So we felt that was a good
sign.  And that was for the lung cancer analysis.

		Since our study in 2001, another study has combined results of 10
separate studies of silica with exposure-response data.  This is by a
fellow named Lacasse in 2009.  

		In his 10 cohorts that he used or perhaps it's a she, they -- we'll
call them they, they did a meta-analysis, so they didn't actually have
the raw data, and put it together, and analyze it.  They took the
results of 10 studies and their corresponding confidence intervals and
pooled those results, not the raw data.  So that's called a
meta-analysis.  

		And in their meta-analysis, they required two things.  Every study had
to have exposure-response data so we could estimate the exposure
response, and they had to have smoking data.  So after they did that,
they found a significant exposure-response trend which was also
positive, similar to what we found.  And this, of course, took smoking
into account directly.  

		So only two of the studies used by Lacasse et al. were the same as the
ones that we used, so this is a more or less independent, although
slightly different approach with the meta-analysis versus the pooled, an
independent confirmation of what we found.

		So from our study we estimated with a lifetime of 45 years of exposure
at the current standard, there would be about 25 extra lung cancer
deaths beyond what you would expect from just background lung cancer
risk.  That's per 1,000 workers exposed.  

		So how does that compare to what OSHA came up with?  Now, of course,
OSHA used our study, among others, and then they kind of took an average
of what various studies had estimated.  But they came up with an
estimate there would be an increased risk of 13 to 60 lung cancer deaths
per 1,000 workers, so our estimate is kind of in the middle of that. 
Cutting permissible levels in half, as the new standard proposes,
reduces that estimate from 6 to 20 extra lung cancer risks, again still
too high since we generally want to shoot for 1 in 1,000 excess, but a
big improvement.

		So I want to talk a few more minutes about the Chinese study that just
came out last year, and that is an important study for a couple of
reasons.  First of all, it's big.  They had 34,000 silica-exposed
workers.  They had 540 lung cancer deaths and 34 years follow-up.  

		So these workers were a subset of what we had already done in 2001,
and yet they had a further follow-up of 10 years, so there were
different lung cancers and more follow-up and more strength in that
sense, and therefore somewhat different than what we had done before.

		Again, and I worked together with this so I say "we," we found a
significant positive exposure response categorical analysis shown there
versus a non-exposed group were showing risk ratios of excess risk of 26
percent, 54, and 68, and 70 percent as exposure increased in quartiles
of cumulative exposure compared to a group with no exposure.  These
results were also adjusted for smoking, as they had smoking on everyone
in their cohort.

		But the Chinese study was able to address two questions that had not
been able to be addressed in other data.  Are you trying to make me
finish?

		JUDGE SOLOMON:  You're right at 20 minutes.

		DR. STEENLAND:  I'm right about finished, too.

		JUDGE SOLOMON:  Go ahead.

		DR. STEENLAND:  That's going to work out, I think, give me one more
minute.

		JUDGE SOLOMON:  Sure.

		DR. STEENLAND:  Okay.  So the two things that the Chinese study were
able to answer was, one, do you get -- is there increased risk of lung
cancer with higher silica exposure if you have never smoked?  And the
second question is, is the risk increased with more cumulative exposure
if you never get silicosis?  

		So they found a significant or we found a significant positive
response trend among workers who never had silicosis because they had
silicosis data, x-ray monitoring every year on all their workers, so
they knew who had silicosis.  And a good percentage of the population
never got silicosis, and yet the same lung cancer dose-response trend,
exposure-response trend was seen for those who never had silicosis. 
That was an important point because some people had been arguing that
silicosis was a necessary intermediate stage between exposure and lung
cancer, and this would argue that's not the case, so there is an
independent mechanism.

		Silicosis, of course, is a marker of high exposure in the first place,
so it's difficult to disentangle.  But these guys had the first dataset
making that possible.  

		And I mentioned the smoking.  They had a bunch of never-smokers, and
they had 77 lung cancers among never-smokers and were able to see a dose
response among never-smokers as well.  

		So, in conclusion, high quality studies with exposure-response data
for both silicosis and lung cancer are now available and form a solid
basis for risk assessment. 

		In my judgment, OSHA has done a very capable job in conducting the
summary of the literature and doing its own risk assessment.  And I
think it's well-justified and overdue.  And that's it.

		JUDGE SOLOMON:  So could I have an idea of how many members of the
public want to ask questions?  Okay, we have about three or four.  Mr.
King, you are up.  While he is on his way to the microphone, you talked
around it, but that's the Liu study you were referring to?

		DR. STEENLAND:  Yes, Liu et al.

		JUDGE SOLOMON:  Okay.  

		MS. KRAMER:  Your Honor?

		JUDGE SOLOMON:  Yes?

		MS. KRAMER:  Two quick things.  First, I'd like to mark Dr.
Steenland's PowerPoint as Hearing Exhibit 38 and have it admitted to the
record.

		JUDGE SOLOMON:  Do you need my copy?

		MS. KRAMER:  I have a fresh one here.  And as well --

		JUDGE SOLOMON:  As there are no objections, it is admitted into
evidence.

(Whereupon, the document referred to as Hearing Exhibit 38 was marked
and received in evidence.)

		MS. KRAMER:  Fantastic, thank you.  The second item is one of the
studies that Dr. Steenland referenced in his PowerPoint.  It is the
study by Lacasse.  It is entitled, "Dose Response Meta-analysis of
Silica and Lung Cancer."  I'd like to mark that as Hearing Exhibit 39
and have it admitted.

		JUDGE SOLOMON:  As there is no objection, that is admitted also.

(Whereupon, the document referred to as Hearing Exhibit 39 was marked
and received in evidence.)

		MS. KRAMER:  And in case folks are interested in checking this out
later, it will soon be available on   HYPERLINK
"http://www.regulations.gov/"  regulations.gov .  Thank you.

		JUDGE SOLOMON:  Okay, Mr. King, state your name.  You have to spell
your last name.

		MR. KING:  I am Neil King, K-i-n-g, representing the American
Chemistry Council's Crystalline Silica Panel.  

		Dr. Steenland, I'd like to ask you some questions about the Liu study
that you just discussed, and I'll, for shorthand, refer to it as your
study sometimes just for simplicity.

		As I understand it, this study looked at workers from six tungsten
mines, one iron mine, and four potteries that were a subset of the
larger Chinese miner and pottery worker cohort that I think had 29 mines
and potteries.  And that had been studied earlier by Chen et al. for
example in 2007 and 2012, and a number of earlier studies as well.

		JUDGE SOLOMON:  Let the record reflect that the witness is nodding his
head in affirmance.

		MR. KING:  Can you tell me why and how you selected the four pottery
factories for your study out of the, I guess, eight pottery factories
that were included in the Chen, 2007 and 2012, studies?

		DR. STEENLAND:  Yes.  They selected the four out of the eight because
they had low PAH exposure, and they were concerned about PAH as a
confounder, so they wanted to select in general cohorts for that
analysis that did not have any occupational confounders that would be
likely to occur.

		MR. KING:  Are the data relating to the PAH exposures in the various
potteries, these and the other four that weren't selected, are those
available?

		DR. STEENLAND:  I could probably get them, but I don't have them with
me.

		MR. KING:  Could those be entered into the record?  I'm asking OSHA,
as well.

		JUDGE SOLOMON:  What is the actual title?

		MR. KING:  This would be the, the polycyclic aromatic hydrocarbon
exposure data for the eight potteries in the Chinese study, the four
that were used in the Liu study and the four that were not used.

		JUDGE SOLOMON:  Ms. Kramer?

		MS. KRAMER:  Dr. Steenland, if you are okay with making an effort to
get that data, we'd be happy to put it in.

		DR. STEENLAND:  I can try.  I don't have it with me.  I mean I don't
own it, but --

		MS. KRAMER:  Sure.

		DR. STEENLAND:  I can write the people in China.

		MS. KRAMER:  That would be great.

		DR. STEENLAND:  I should say something further, well, the Chen et al.
in 2007 noted that when the eight potteries are included, PAH is an
important confounder.  There is a couple of things besides the fact that
the Liu et al. study used four of those eight potteries without much PAH
in them.  It also involved 10 more years follow-up, so the lung cancers
are not the same in the Liu study that are in the previous analyses by
Chen.

		MR. KING:  Is it important then if you have a study of the same basic
cohort but one study extends follow-up for 10 more years, you're saying
that would generally supersede findings of the earlier study?

		DR. STEENLAND:  It should enrich the data and make it more powerful
minimally.

		MR. KING:  Make it more powerful, okay.  Thank you.  Did your
study -- incidentally, did you find an increased risk of lung cancer
and a trend in the pottery workers specifically?  The study kind of
lumps all the workers together.

		DR. STEENLAND:  Yeah.

		MR. KING:  And it doesn't break out tungsten versus pottery.

		DR. STEENLAND:  Yeah, I'd have to go look.  I don't know the answer to
that.

		JUDGE SOLOMON:  Dr. Sivin, do you want to get in position here?  There
was another hand or two back there.  Okay.

		MR. KING:  I gather that the earlier study by Chen didn't, for
example, find an increased association between silica exposure and lung
cancer in the tungsten miners.  Your study did, or is that also
something you would have to check when you break it out?

		DR. STEENLAND:  Any division of the cohort into pieces I'd have to
check.  I don't have that data.

		MR. KING:  Is that data also that could be furnished for the record?

		DR. STEENLAND:  I can ask.

		MR. KING:  The breakdown as among pottery and tungsten?

		DR. STEENLAND:  I can ask.

		MR. KING:  Thank you.  I'd appreciate that.

		JUDGE SOLOMON:  How much longer do you have, Mr. King?

		MR. KING:  Oh, I'd say --

		JUDGE SOLOMON:  Would you want to wait for the other questioners to
get a chance --

		MR. KING:  And then come back?

		JUDGE SOLOMON:  -- and then possibly come back.  We'll see what
happens.  See how much time we have.

		MR. KING:  Okay, let me just finish on the Liu study, if I could?

		JUDGE SOLOMON:  Sure.

		MR. KING:  Your study indicates that yearly radiographs were taken of
all the workers exposed to silica dust, but the study by Chen et al. of
2012 says that workers exposed to silica dust received chest x-rays
every two to four years.

		DR. STEENLAND:  I misspoke.  Not yearly, every two to four.

		MR. KING:  Two to four years.

		DR. STEENLAND:  Yeah.

		MR. KING:  And do you know whether the silica exposed workers
continued to receive chest x-rays after their employment ended?

		DR. STEENLAND:  Yes.

		MR. KING:  And at what frequency and for how long did that continue?

		DR. STEENLAND:  Yeah, I think it went through the end of follow-up and
at the same frequency of two to four years.  I can check that, but I
believe that to be true.

		MR. KING:  Okay, I'd appreciate it if you could check it and let us
know.  Is it possible that a worker may have developed silica after the
date of his last x-ray?

		DR. STEENLAND:  Sure.

		MR. KING:  And is it possible that silicotic type opacities may have
been present but not yet sufficiently numerous to justify a
classification of silicosis under the Chinese system?

		DR. STEENLAND:  Yeah, although the correlation between the Chinese
system and the ILO system has been shown and documented to be quite
good.

		MR. KING:  But, I'm sorry, I didn't make it clear.  They used the
Chinese system and so I was referring to it.  But even if you were using
the ILO system, isn't it possible that silicotic type opacities might be
present but not yet sufficiently numerous to --

		DR. STEENLAND:  Sure.  They were using the criteria typical of
silicosis studies of 1/1 on the ILO basis, but certainly there could be
opacities that would fall below that.

		JUDGE SOLOMON:  Okay, thank you, Mr. King.  State your name and spell
your last name.

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

		Dr. Steenland, last week we heard from a Dr. Anthony Cox that OSHA's
risk assessment was capable of demonstrating an association but didn't
actually show causation and didn't actually show that reducing the
silica PEL would reduce disease.  What would be your opinion of that
kind of argument?

		DR. STEENLAND:  Well, lots of times we have studies in epidemiology
which show a finding.  And to infer causality, and I mentioned this
before about Bradford Hill in the '50s, we have a number of fairly
commonsense criteria, one of which is consistency.  So that means that
you need more than one study that show the same thing.

		And, furthermore, strength of association is another one, so if it's a
strong association that provides evidence in favor of causality.  And a
positive exposure-response relationship is another criteria from
Bradford Hill, as I mentioned, which argues in favor of causality. 
Probably the key requirement is that exposure is known to precede
disease.  This is clearly the case in silica where we start with
exposure and follow people to see if they get disease.  Most of the
Bradford Hill criteria are well -- and biological plausibility is
another one, and clearly that occurs as well.  So most of the Bradford
Hill criteria apply here.

		You know you can never prove causality.  But when the evidence builds
up to such an extent and you have 100 studies and they tend to be fairly
consistent, that's when we draw a causal conclusion.  And that was the
case for cigarette smoke in lung cancer.  That was the case for asbestos
in lung cancer.  And when the evidence builds up to a certain point, you
say, yeah, it's a reasonable assumption that this thing causes, X causes
Y.

		DR. SIVIN:  And would you say the science relied on by OSHA for its
risk assessment satisfied OSHA's burden to establish a significant risk
that can be reduced by reducing the PEL?

		DR. STEENLAND:  Yes.

		DR. SIVIN:  Thank you.  One other question, in your written comments
and I believe you also stated today, you stated that the epidemiologic
evidence for kidney disease is less conclusive than for lung cancer. 
OSHA estimated 39 deaths from kidney disease per 1,000 workers with a
lifetime exposure.  Essentially the same question, would you say the
science that OSHA used to come up with that estimate pretty much
satisfied OSHA's burden to establish a significant risk that can be
reduced by reducing the PEL?

		DR. STEENLAND:  So the renal question is a little more complicated
because there is not as many studies so that consistency criteria of
Bradford Hill is not as strongly fulfilled.  Two of the studies OSHA
relied on were mine, so I have to support them.

		But, no, I think there is pretty good evidence that silica causes
renal disease.  I just think that there is not as big a database as
there is for lung cancer and silicosis.  And so there is more
uncertainty.

		DR. SIVIN:  Thank you much, Dr. Steenland.

		JUDGE SOLOMON:  Thank you.  Next?  State your name and please spell
your last name.

		MR. FREDERICK:  Good morning.  I'm Jim Frederick with the United
Steelworkers, and it's F-r-e-d-e-r-i-c-k.  Just a couple of questions. 
You have researched quite a bit of -- reviewed quite a bit of the
research on the body of silica.  In your review of the information and
research available, is the body of evidence pertaining to silica of
equal quality to evidence of other occupational health hazards?

		DR. STEENLAND:  Yes.

		MR. FREDERICK:  Okay.  And you also spoke a bit about the
underestimates on the number of silicosis cases diagnosed.  Do you have
any information pertaining to also a misdiagnosis, people that come into
a physician with apparently silicosis but are diagnosed with other
illnesses?

		DR. STEENLAND:  I don't have any quantitative information, but my
impression is that if you -- someone comes in with symptoms of
silicosis and you don't take an x-ray which is read by someone who is
qualified to pick up the opacities, you might miss it.

		MR. FREDERICK:  Okay, very well.  Thank you.

		JUDGE SOLOMON:  Thank you.  Mr. King, do you have anything further?

		MR. KING:  Yes, thank you.  I appreciate it.

		JUDGE SOLOMON:  How much more do you have?

		MR. KING:  I guess somewhere between -- the answer is 5 to 10
minutes.

		JUDGE SOLOMON:  Okay, let's go with five.

		DR. STEENLAND:  Mr. Hill, my answers will be short.

		JUDGE SOLOMON:  Especially if they're on cross-examination.  Go ahead.

		MR. KING:  You mentioned that silicosis deaths may be underreported. 
Would that have been true in 1968, as well as today?

		DR. STEENLAND:  I would think so.

		MR. KING:  No reason it would be any less underreported back then than
today?

		DR. STEENLAND:  I can't think of any.

		MR. KING:  Thank you.  The threshold that you mentioned, I think you
said it was 0.007 mg/m3 for a 45-year exposure, is that a threshold that
you developed based on chronic exposure and then kind of translated it
back into an average exposure level for 45 years?

		DR. STEENLAND:  Yes.  We took it from our study, and we simply looked
at what level we did find no risk up to what point.  And then given that
cumulative exposure, how does that translate over a 45-year period?

		MR. KING:  Thank you.  That's what I thought.  How do you explain the
fact when OSHA predicted the silicosis morbidity risk using just studies
that had the post-employment follow-up, the estimates varied by I
believe over two orders of magnitude?

		DR. STEENLAND:  Estimates of what?

		MR. KING:  Silicosis morbidity.

		DR. STEENLAND:  I don't know.  I'd have to go back and look at the
studies.  But there is a lot of variability in diagnostic -- in
diagnosis of silicosis.

		MR. KING:  Again turning back to the Liu study, am I correct that the
available monitoring data that was used for these mines and potteries
consisted of Chinese total dust concentrations collected by area
samples?

		DR. STEENLAND:  Yes.

		MR. KING:  I understand that conversion factors for these Chinese
total dust values to respirable crystalline silica were developed in
side-by-side sampling using a cyclone sampler to collect the respirable
particles and the traditional Chinese total dust area sampler.  Is it
correct that there was large variability in the crystalline silica
content of the bulk samples collected at the tungsten mines in this
1988-89 sampling exercise?

		DR. STEENLAND:  I would imagine there was.  If you take a bunch of
area samples in a mine, you're going to get a lot of variability.

		MR. KING:  These were bulk samples, I'm sorry.

		DR. STEENLAND:  You mean they pooled them all?

		MR. KING:  The bulk samples, just the -- I'm talking about the silica
content of the bulk samples.

		DR. STEENLAND:  Again, I think if you took dust samples from different
places in a workplace, they might have different amounts of silica in
them.

		MR. KING:  And is it correct there was significant differences in the
historical silica content measurement of bulk samples in the potteries
over time?

		DR. STEENLAND:  You mean did the dust content of --

		MR. KING:  Not the dust content.

		DR. STEENLAND:  The silica content of the dust change over time in the
potteries?

		MR. KING:  Well, I don't think they did actual silica content of the
dust.  I think they did it of the bulk samples, if I'm correct.

		DR. STEENLAND:  I'm a little confused what you mean by bulk samples. 
Are they bulk samples of dust?

		MR. KING:  Okay.  And is it true that those varied significantly over
time in the pottery?

		DR. STEENLAND:  This I don't remember, but I would not be surprised. 
Most workplaces change, hopefully improve over time.

		MR. KING:  In your study, did you use industrywide conversion factors
or facility specific conversion factors, or something else?

		DR. STEENLAND:  For?

		MR. KING:  For converting the Chinese total dust measurements to the
respirable dust measurements.

		DR. STEENLAND:  Ah, this I'm not sure.  I'd have to go back and look.

		MR. KING:  Is it correct that in deriving conversion factors, the
distribution of particle size is an important factor to be considered?

		DR. STEENLAND:  I would think so.  I'm not an industrial hygienist. 
I'm an epidemiologist, so I can't answer that without further --

		MR. KING:  And so you wouldn't know how that would have been taken
into account in applying the conversion factors in this study?

		DR. STEENLAND:  No.  I'd have to go back and look.

		MR. KING:  Okay.  How confident are you in the exposure estimates that
were used in the pooled analysis that you published in 2001?

		DR. STEENLAND:  I thought they were pretty good.  You know if you find
a strong dose response for silicosis using your exposure measurements,
which we did, that's indication that you're unreasonable estimation.

		MR. KING:  Am I right, though, there is considerable heterogeneity in
the exposure response coefficients among the 10 studies that you
included in that analysis?

		DR. STEENLAND:  If you take the log transformation of the exposure
measurements, of the cumulative exposure, there was no heterogeneity
between the 10 studies.  If you didn't take the log transformation,
there was, and particularly the South African study had a different
coefficient.

		JUDGE SOLOMON:  Okay, I gave you an additional five minutes, so --

		MR. KING:  Okay, thank you.  I appreciate it.

		JUDGE SOLOMON:  Ms. Kramer, Mr. Perry, do you have questions for the
witness?

		MR. PERRY:  Yes, thank you, Your Honor.  We will have some questions
for the witness beginning with Stephen Schayer.

		MR. SCHAYER:  Oh, good morning, Dr. Steenland and thank you for your
testimony.  I have a couple of questions on exposure measurement error. 
So last week, we heard testimony that the cohorts used in the literature
are subject to potentially large sources of exposure measurement error
and that these errors can bias regression coefficients, modify the shape
of exposure-response curves, and obscure the presence of a threshold.  

		So you mentioned that you had used Monte Carlo simulations for your
uncertainty analysis.  We received a comment that Monte Carlo may not be
the correct approach for an uncertainty analysis.  We were just
wondering if you agree with this.

		DR. STEENLAND:  Again, absent a gold standard to do some sort of
correction of errors in measurement, the Monte Carlo approach is a
reasonable approach to estimate the possible effect of measurement
errors absent any, again, gold standard.  So I think it was a reasonable
way to go.

		MR. SCHAYER:  Great.  So say you believe this analysis, then, you
know, it shows that the studies were not too affected by exposure
measurement error in your analysis.

		DR. STEENLAND:  I think that's a reasonable conclusion.

		MR. SCHAYER:  Okay, great.  Another commenter also suggested that a
larger number of simulations should have been performed in the Monte
Carlo analysis.  So we were wondering how likely it is that additional
simulations would change the results?

		DR. STEENLAND:  Unlikely.  There is some literature that says that 50
simulations of the type we did are quite enough.  Given the amount of
computer time to do each simulation, it's quite burdensome.  So
certainly you always can do more, but I think 50 should be reasonable.

		MR. SCHAYER:  Great, thank you.  So some commenters also suggested
several other sources of exposure measurement error.  These included
those focused on variability in measurement samplers, duration of
sampling, location of sampling, laboratories and particle potency.  So
we were wondering if there is data available for these sources of error
or potential sources of error.

		DR. STEENLAND:  You're asking industrial hygiene questions again,
which I don't know the answer to, but my guess is no.

		MR. SCHAYER:  Okay, thank you.  And then I just have a couple of
questions on your 2001 pooled study of lung cancer.  Could you comment
on your use of the spline model and tell us if the spline model provides
evidence of a threshold in OSHA's region of interest, namely .05 mg/m3?

		DR. STEENLAND:  So a word about spline models.  We often do two kinds
of analyses to look at the shape of the exposure response before we try
and pin it down to a specific parametric model where you have a linear
or a loglinear relationship between exposure and disease in the two.  So
we did categorical analyses, which are parametric free in the sense that
you're just looking at, well, we've divided the group into five
categories of higher exposure and did we see increased risk of lung
cancer across those five.

		And the spline analysis is similar.  It's a very flexible look at the
exposure response without having to pin it down to a particular model. 
So we then go from there to pick a particular model, and that's what we
do risk assessment with usually, which is what we did.  

		Your question specifically says what about the spline threshold.  If
you look at the figure in our paper, the threshold for the spline that's
apparent, and again I wouldn't judge a -- I wouldn't probably pick the
best threshold based on the spline, but it's quite consistent with the
threshold.  We did, in fact, estimate using the log transform cumulative
exposure as we did in our 2002 paper response to OMB.  

		And even if you look at the figure, you see that the curve of the
spline starts to go up around four on the log scale of microgram per
meter cubed days.  And if you transform that from the log to the regular
scale, that is quite consistent with the threshold we got when we did a
formal analysis using the log transform model.

		MR. SCHAYER:  Okay, great.  Thank you.

		DR. STEENLAND:  Long answer.

		MR. SCHAYER:  Very good answer, thank you very much.  And then the
last question I had, so you mentioned in your presentation about how
smoking was controlled for in the pooled analysis.  So we were just
wondering is it appropriate, or do you think it's appropriate to compare
risk groups, such as ever, never, and unknown if you have incomplete
smoking histories?

		DR. STEENLAND:  Sure, ever smokers versus never smokers.  Well, I
don't know about unknown, you can't do anything, but ever smokers versus
never smokers is often done absent more specific data, and certainly
ever smokers are known to have much higher risk than never smokers.  So
it's a method of adjustment that you can use.  It's maybe not ideal
compared to having detailed smoking history on everybody, but sometimes
you don't have that.

		We didn't control for smoking in our pooled analysis because we didn't
have smoking data on all our cohorts, by the way.  But I did say why I
thought that was not a relevant problem, and then subsequent studies
have a control for smoking, the Chinese did and the analysis, the
meta-analysis by Lacasse.

		MR. SCHAYER:  Okay, great.  Thank you very much.  So I think Tiffany
DeFoe has some questions now.

		MS. DEFOE:  Thank you.  First, I'd just like to check on something you
just commented on in response to Steve's question about your spline
analysis.  You said that in your analysis, you started to see exposure
response increase around 4 mg per cubic meter days in your chart, in
2001.  And we've seen this chart cited earlier in Dr. Cox's testimony,
I believe, and he said that it showed an increase around 4 to 6 mg per
cubic meter years.  And, in fact, along the x-axis, I do see it listed
as mg per cubic meter years in his slide.  Is it years or days?

		DR. STEENLAND:  It's days.  It's an error in the paper.  We sent a
correction in later, I believe.

		MS. DEFOE:  Oh, okay.

		DR. STEENLAND:  But it should be pretty apparent.  If you
exponentiate, you know, it goes out to 11.  If you exponentiate 11,
you're going to be days, not years.  That's a big number.

		MS. DEFOE:  Okay, thank you.

		DR. STEENLAND:  But it's a mistake in the paper.

		MS. DEFOE:  Thanks for clarifying.  Okay, now also on Dr. Cox's
testimony last week, he testified that OSHA's risk assessment did not
correctly account for a variety of biases that can occur in
epidemiological studies including model biases, model selection bias,
model form specification bias, model over-fitting bias, and model
uncertainty bias.  And he suggested that a technique biasing model
averaging could be used to properly account for these.  Are you familiar
with this technique, and do you believe that it would benefit OSHA's
risk assessment?

		DR. STEENLAND:  I'm familiar with it.  No, I don't believe it would
benefit OSHA's risk assessment.  Biasing model averaging basically says,
well, you've got a bunch of models and they give you different results,
so how are we going to average them?  Well, we have some prior beliefs
about which ones are better, which we take into account when we average
them, so we give more weight to one versus another.

		That makes more sense when you don't have a lot of data.  In general,
biasing analysis, which requires some sort of interjection of a prior
belief into your conclusions beyond what the datas say, are most useful
when you don't have a lot of data.  And when you do have a lot of data,
the data should drive your conclusions about what the best model is, and
you should use that best model rather than say I think that this other
model should be weighted importantly and we should average them based on
some prior belief.  

		We don't have really a prior belief about what model is better, but we
do have an abundance of data and, therefore, sort of a biasing prior
analysis is not usually used.  And that's probably the last point on
this is that biasing model averaging, to my knowledge, has not been used
in risk assessment ever.  And so, sure, you could try that.  You could
try a million things.  But I think OSHA has correctly used standard
methods to do their risk assessment and biasing model averages is not
one of those standard methods.

		MS. DEFOE:  Thank you.  Dr. Cox also brought up the use of regression
diagnostics and stated that this was a better mode of finding the best
model to fit the data and suggested that residual analysis and other
regression diagnostics should have been performed in OSHA's risk
assessment.  Did you use regression diagnostics?

		DR. STEENLAND:  No.  Regression diagnostics typical of linear
regression are not often used in Cox regression, which is what we used,
where the outcome is binary.  And what we did to assess model fit is
what, again, standardly is done, looking at the model likelihood and
penalizing it with the number of degrees of freedom of the covariates in
the model and calculating something called the AIC, Akaike's information
criteria, which you compare one model to another and the lower is the
best.  So, again, standard procedure for this sort of regression is what
we used.

		MS. DEFOE:  Okay, thanks.  And you said that the Cox model was
typically used when the outcome is binary.  Is it the case that since
lung cancer and silicosis outcomes are all binary, that this is the
standard approach for pretty much any dataset --

		DR. STEENLAND:  Yes.

		MS. DEFOE:  -- that we're using, looking at here.  Thank you.

		DR. STEENLAND:  Sure.  I mean there's other binary things you can use,
like logistic regression.  But in a survival analysis situation where
you're looking at people surviving over time and then failing at a
certain point, Cox regression is the usual method.

		MS. DEFOE:  Okay, thanks.  Now, earlier also in one of your responses
to Mr. Schayer's question, you made a statement, you said I wouldn't
pick a threshold based on a spline.  Could you elaborate on that?  Why
would it be difficult to pick a particular level for the threshold using
the spline analysis?

		DR. STEENLAND:  Yeah, well, it's a little harder to program, and the
spline has got a lot of cubic terms in it, and it's a very flexible way
to look at the exposure response.  You could estimate a threshold with
it.  In fact, we did.  But I would say that, in general, using the
spline to pick the best parametric model is what we did, and then when
you've got that parametric model, estimate the threshold with that is a
preferable way to go.

		MS. DEFOE:  Okay.

		DR. STEENLAND:  The answer doesn't differ much.

		MS. DEFOE:  Okay, thank you.  Let's see here, I just have a couple
more.  In response to a question by one of the audience members, you
were discussing the Bradford Hill criteria, and you were saying that if
you meet various ones of these criteria, you can be fairly confident
that there is a causal relationship between the exposure of interest and
the disease of interest.

		And you stated very clearly that these relationships were met in the
case of asbestos and smoking.  And it seemed that you were implying that
they were also met for silicosis, but I just wanted to confirm.  Is that
what you meant to say that they were, in fact, met for silicosis?

		DR. STEENLAND:  For silicosis or for lung cancer.  I had said they're
met for both.

		MS. DEFOE:  Oh, yes, both.

		DR. STEENLAND:  Yes.

		MS. DEFOE:  Thank you.  Earlier in your testimony, you said that if
you had a gold standard subset in a dataset, you can use that gold
standard for your exposure measurements, and you have that in a subset
of your data, you can use that subset to correct exposure error in the
rest of the dataset. 

		And you stated that in your 2001 analysis, you didn't have such a
subset.  Are you aware of other studies in the silica literature that do
have the necessary gold standard to correct for exposure error?

		DR. STEENLAND:  Not off the top of my head.  The industrial sand
industry has a lot of historical measurements that could be useful
perhaps, but I'm not sure.  I can't answer that question without doing a
little bit of study.

		MS. DEFOE:  Okay, that's the end of my questions.  Thank you.

		JUDGE SOLOMON:  Mr. Perry?

		MS. DEFOE:  Oh, I'm sorry, my mistake.  I did, in fact, have one more
question I neglected to ask.  I know that you have done a good bit of
work in the area of exposure-response attenuation at high exposure
levels.  Do you have any insight you can share with us on whether this
is a common occurrence in epidemiological datasets and why it occurs?

		DR. STEENLAND:  Yeah.  It's a very common occurrence in occupational
datasets, and there are four or five reasons why it is likely to occur. 
And one of these, well, I can just mention what they are.  One is you
might have more exposure measurement error at higher exposures, which is
often the case, and that tends to, in general, exposure measurement
error tends to, in general, bias things to the null.  So you would have
less of an exposure-response trend.  And if that occurs at higher
exposures, it tends to pull the curve down at higher exposures, which is
one reason for attenuation.

		Another reason is that susceptible people, who are susceptible, get
disease, get the disease and at the end there is hardly any -- with
people cumulative exposures far out with the follow-up with the cohort
and the susceptibles are gone.  So that's depletion of the susceptibles.
 

		Another important reason which I think is often the case, although it
is unknown, is that biological pathways get saturated so that after a
certain point with higher exposure, it doesn't do any more damage; for
example, platelet aggregation is a problem in smoking and platelet
aggregation with more cigarette smoke at a certain point no longer --
the platelets don't get any more sticky than they already are.  And so
that might be reason why some cigarette studies show attenuation after
cumulative exposure for certain amounts, so biological saturation
pathways is another.

		So there are a number of reasons why this might occur.  And what I
would stress is it's extremely common in occupational studies.  And we
wrote an article about it that Leslie Stayner is first author on in, I
think it's 2003, kind of outlining this and showing in dozens of
occupational studies.  I'd say it's more the rule than the exception.

		MS. DEFOE:  Thank you.  And actually I just noticed, I promise this is
the last one.  I do have just one last question.  In your response to an
earlier question, you said that in your 2001 study, if you take the log
transform of exposure, you didn't see heterogeneity between the cohorts,
and if you did not take the log, you did see heterogeneity.  Why is it
that taking the log transform reduced heterogeneity?

		DR. STEENLAND:  You say why would that be?

		MS. DEFOE:  Right.

		DR. STEENLAND:  Well, taking the log transform gives less influence to
really high exposures because it pulls them in toward the middle.  And
high exposures, as I mentioned, may be more mismeasured than low
exposures because there are fewer of them.  You are estimating some
average for a job that has very high exposures and you have less
sampling data to back that up.  So my guess is that the influence of
outliers, if you will, in the exposure data is lessened by the log
transformation.  It often makes things less heterogeneous in pooled
analyses.

		MS. DEFOE:  So if I understand correctly, it's helping to reduce the
effect of exposure measurement error?

		DR. STEENLAND:  Yes.  It certainly has helped -- it reduces the
effect of the very highest exposures being able to drive an
exposure-response curve because those exposures are often way out-skewed
to the right, because occupational exposure data is often log normal. 
With some very high exposures, they are sort of extreme, and that can
drive your exposure-response curve.  And you take the log, it pulls them
in, and so therefore gives less influence to those high data points. 
And I think those high data points are often measured with more error.

		MS. DEFOE:  Thank you very much.  Thanks for your patience.

		JUDGE SOLOMON:  Mr. Perry?

		MR. PERRY:  Thank you.  I have I think just two very quick questions
for Dr. Steenland.  You were asked a number of questions about the
exposure estimates and information that were used in the Liu study. 
Could you tell us, in general, if in fact we are not assessing exposures
for the cohort members correctly, what is generally the effect of
misclassification on epidemiologic studies such as this one?

		DR. STEENLAND:  Right.  So there are a lot of caveats to this, but
misclassification I would say in general tends to bias things to the
null.  It's harder to see positive exposure-response trends in the face
of misclassification.  

		It depends partly on the type of error, and it gets fairly complicated
about the error structure and whether it is classical or Berkson,
whereas Berkson doesn't show such attenuation but simply more variance. 
And the classical error in fact shows attenuation in most circumstances.
 But, on the whole, I would say that exposure measurement tends to bias
things down rather than up.

		MR. PERRY:  Thank you.  Also, I think you were asked about OSHA's
estimates of silicosis morbidity risks where, for example, 45 years of
exposure at the current general industry standard, OSHA estimates a
range of between 60 to 773 silicosis cases per 1,000 workers.  That's a
little more than one order magnitude; would that be correct?

		DR. STEENLAND:  Say those two numbers again?

		MR. PERRY:  Between 60 and 773.

		DR. STEENLAND:  Right.

		MR. PERRY:  So that's about one order of magnitude --

		DR. STEENLAND:  Yes.

		MR. PERRY:  -- or a little more.  All right, thank you very much. 
That's all I have, Your Honor.

		JUDGE SOLOMON:  Ms. Kramer?

		MS. KRAMER:  I don't have any questions for this witness, just my
thanks for coming in.

		JUDGE SOLOMON:  Okay, thank you very much.  The next panel is the
Construction Industry Safety Coalition, Mr. Hammock, Mr. Sessions. 
Let's go off the record while they come forward.

		MS. KRAMER:  Your Honor?

		JUDGE SOLOMON:  Yes?

		MS. KRAMER:  One thing real quick.  The next panel has graciously
agreed, as you noted earlier, to hold their questions -- their
answering of questions until after the lunch break.  Since we have gone
a little bit longer here than we had anticipated, we would ask that you
hold the lunch break until they have had a sufficient amount of time to
present their testimony.

		JUDGE SOLOMON:  Right.  They get about two hours.

		MS. KRAMER:  Thank you.

		(Off the record at 10:40 a.m.)

		(On the record at 10:44 a.m.)

		JUDGE SOLOMON:  Let's go on the record.  As I said, they get about two
hours, so it may mean that we will have to give up part of the lunch
hour.  But I'll play it by ear.  Mr. Hammock, do you want to introduce
yourself and your witness.

		MR. HAMMOCK:  Great.  Thank you, Your Honor.  My name is Brad Hammock.
 I'm a lawyer with the law firm of Jackson Lewis.  I am here
representing the Construction Industry Safety Coalition.  Testifying
with me to my right is Stu Sessions, who is President -- is that what
you are, President?

		MR. SESSIONS:  Yes.

		MR. HAMMOCK:  President of Environomics, Inc., which is a consulting
firm in the Washington, D.C. area.

		JUDGE SOLOMON:  Okay.  So do you have any exhibits you want to start
with, Ms. Kramer?

		MR. HAMMOCK:  Yes, Your Honor.  And depending upon how OSHA and
Ms. Kramer would like to proceed -- and as was pointed out, we are
going to have four witnesses total today, two this morning I believe and
then two this afternoon.  And for timing purposes, Your Honor, I believe
the actual testimony will be longer with the two of us than it will be
in the afternoon.  So however that factors in from a timing perspective.
 

		And we prepared a PowerPoint, which we have given to the participants,
which we would ask to be submitted into the record as part of this
hearing.

		JUDGE SOLOMON:  So is that marked?

		MS. KRAMER:  Sure.  I'd like to mark it as Hearing Exhibit 40 and have
it admitted.

		JUDGE SOLOMON:  Okay.  As there is no objection, it is hereby admitted
into evidence.

(Whereupon, the document referred to as Hearing Exhibit 40 was marked
and received in evidence.)

		MS. KRAMER:  Thank you.

		JUDGE SOLOMON:  Go ahead.

		MR. HAMMOCK:  Thank you, Your Honor.  Thank you, OSHA.  Let me just
get started by saying a couple of things, and that is to thank OSHA for
putting on these hearings and, in particular, it occurred to me
listening last week to some of the testimony, there has been quite a bit
of recognition on behalf of a number of witnesses and on behalf of OSHA
with respect to the unique challenges that the construction environment
brings with respect to controlling occupational exposure to crystalline
silica.

		And I would just say at the outset what probably everyone here is
anticipating and certainly OSHA is anticipating, we're going to spend
the next four or five hours being very critical of OSHA in the approach
that was taken and all that sort of thing.  And I know that's what the
expectation is, but I would like to put that in context and say that we
appreciate OSHA's recognition of the differences in construction and
general industry, the challenges that are there.

		And I will also say one of the things we will talk about is Table 1
and some of the concerns and questions that we have related to Table 1. 
But I do want to say that we appreciate Table 1 in concept, and we
understand that when OSHA put that together, it was in response to some
of the things that they heard from the construction industry.  

		And while we'll spend quite a bit of time criticizing it, we want you
to know that we appreciate it and the thought process involved.  So,
hopefully, our comments will provide some good information for OSHA to
consider as they figure out how to proceed with this very important
proposed rule.

		Okay, first, to begin, as I mentioned, I'm here on behalf of what's
called the Construction Industry Safety Coalition.  We are a group, a
coalition of approximately 25 different construction industry trade
associations.  And I am going to actually flip through very quickly all
the different members of the coalition.  We had to get it on three
slides.  

		Talking with folks that are involved in this, they say that it is
probably the first time that they can imagine where this number and this
diversity of trades have gotten together to form one coalition.  And I
think it speaks to the importance of this proposed rule certainly to the
construction industry.  And, again, to echo what I said at the first
instance, I appreciate that OSHA has also recognized that this probably
is in many ways the most significant rulemaking undertaken with respect
to the construction industry given the degrees of exposure and the
challenges that are there.

		What I want to do today is talk through several things.  And as I
mentioned, there are going to be four of us testifying here today. 
Starting, we're going to talk a little bit just quickly about some
process issues, some things that we would recommend, and some
considerations that we have there.  

		Then we want to spend a little bit of time talking generally about
OSHA's technological feasibility analysis.  OSHA spent obviously a lot
of time and a lot of energy and a lot of resources trying to make the
determination whether reaching a PEL of 50 µg is technologically
feasible in the construction industry.  We want to talk a little bit
about that and some of the concerns with respect to the underlying
analysis that OSHA actually undertook.

		Then I will turn it over to Stu Sessions, who will spend probably way
too much time talking about all the different cost concerns and
considerations that we have related to OSHA's economic feasibility
analysis.  And then, finally, we are going to hear from two members of
association participants, Kellie Vazquez and Kevin Turner, who are going
to really speak about the ancillary provisions and some of the concerns
that they have if they were to have to implement the proposed rule as
put forward by OSHA.

		That's what we want to accomplish in the next three, four, five hours
or however much time we have, and obviously we look forward to receiving
questions from folks, from OSHA, and the public participants.

		Okay, let's get started.  The first thing I wanted to talk about a
little bit relates to process.  I'm certain last week there was some
discussion about the process that OSHA has undertaken to develop this
proposed rule has certainly been under analysis and promulgation for
several years within OSHA.  We do want to highlight two things from the
construction industry's perspective.

		OSHA conducted a SBREFA panel on this proposed rule about 10 years
ago, and a couple of things are very striking about that SBREFA process.
 First of all, it was 10 years old.  The construction industry looks
much different today than it did 10 years ago.  We understand as an
industry that the SBREFA process does not need to take place two months
before a proposed rule is issued.  We understand that is not possible.

		However, we do believe and believe strongly that 10 years is simply
too long a period of time to really make the SBREFA process adequate and
helpful to the Agency as it conducts its various analyses, and certainly
with respect to economic feasibility, and some of the costs, and some of
the economic impacts that go along with the proposed rule.  The reality
is things are much different today than they were 10 years ago.  

		There is obviously nothing that prevents OSHA during that 10-year
period of time from conducting another SBREFA panel or reaching out even
informally with small businesses to discuss the impact of the proposed
rule on them.

		We would say to OSHA that 10 years is too long and would consider
using this opportunity as a chance to get more information about the
effects of a proposed rule, and then consider reissuing a proposal going
forward.

		The other thing I would like to highlight about the SBREFA panel is
Table 1 was, while included in the package, much different than what it
appears today.  And one of the things that we are going to be talking
about today relates to the notes in Table 1.  There are a number of
notes which we'll talk about, that talk about there being no visible
dust exhibited when a particular process is undertaken in the
construction environment, under Table 1.  And those types of -- that
type of information was not included in the SBREFA draft, nor was there
any indication that there could be an action level of 25, which we'll
talk about a lot during this presentation as well.  We think there could
have been a lot more value given to the SBREFA process for small
business outreach generally.	

		The other thing I want to talk a little bit is ACCSH.  Obviously, the
Agency has a responsibility and a requirement to consult with the
construction advisory committee on proposed rules and provide the
construction advisory committee with as much detail and as much
information as possible so that the advisory committee can make
recommendations to the Agency with respect to the Agency's proposal.

		Here, OSHA did go to ACCSH on one occasion.  They limited the
discussion to about three issues on one day.  And we don't believe that
ACCSH was engaged fully in a complete assessment of the rule.  What was
again proposed to ACCSH was different, much different than what was
here.  Back to Table 1, there were no notes in the table.  There was no
indication of an action level of 25.  There was no firm indication of a
permissible exposure limit that was given to ACCSH at that time.

		We believe it was incumbent upon the Agency to go to ACCSH and more
fully explain the proposal, where it was, where OSHA was thinking and
going to go with respect to the proposal than what occurred here.  And,
of course, the construction industry and I'm sure ACCSH would welcome
another opportunity to provide that feedback to the Agency, but we
wanted to at least highlight those two aspects of the procedural parts
of the pool.

		Okay, I want to turn a little bit to the first what I would call
substantive portion of the presentation related to technological
feasibility.  Obviously, as we know, OSHA is required to show that its
rules are technologically feasible, capable of being done in most of the
operations most of the time.  

		Okay, putting aside economic feasibility considerations for the
moment, I want to focus just specifically on technological feasibility. 
And for purposes of construction, it is very basic.  It is basically can
the construction industry reach a permissible exposure limit of 50
µg/m3 in most of the operations most of the time?  That's what we're
talking about and are going to be talking about over the next few
minutes.

		We do not believe that OSHA has met its burden to show technological
feasibility in this proposed rule.  And to put everything in context, as
folks here know, it is the Agency's burden in the first instance to show
technological feasibility.  At that point, the rule sort of is assumed
to be feasible in all construction industries.  And in the context of
any specific enforcement action, the burden gets shifted to the employer
to demonstrate that it is not technologically feasible to reach a
certain permissible exposure limit in a particular job, at a particular
time.

		The key to that burden shift, though, which places the responsibility
on an employer in any particular OSHA enforcement action, is that OSHA
makes that initial finding up front in the proposed rule.  If they fail
to do that, that burden doesn't shift.  Fundamentally, we believe that
OSHA has not met that burden in this proposed rule.

		We are not going to spend the whole time regurgitating what our
comments are, but there are a number of basic reasons why we believe
that burden has not been met.  And we'll go through them now.

		First and foremost, we believe that OSHA has not identified and
evaluated all of the construction tasks that would be affected by the
proposed rule in its technological feasibility analysis.  What OSHA has
done in their feasibility analysis, which analytically makes some sense,
is to basically group large tasks and large operations into 12 major
groupings, whether sort of rock crushing, or drywall finishing, whatever
it is, major grouping that they put together.  And then they have looked
at a number of samples, some in the laboratory, some from their SEP, and
determined that, in general, with the exception of two out of those 12
tasks, that the types of operations can reach a PEL of 50 in most
operations, most of the time.

		We believe, though, that there are a number of tasks that are not
actually reflected in those broad categories.  We list those tasks in
our written comments, and I'm not going to repeat those here.  But there
are a number of holes, so to speak, that are not filled.  And, remember,
what OSHA is doing is shifting the burden from a feasibility assessment.
 So you are shifting what OSHA has to prove to what the employer has to
prove.

		And the result of that is that OSHA has not incorporated all the tasks
that are potentially affected and puts an unfair burden on employers. 
We believe that OSHA has not captured all of those tasks.  And we
provide a list, frankly, of those tasks in our written comments.  

		And let me just say one of the things that OSHA raised in their
proposal was they sought questions from the public as to what are the
tasks that haven't been included.  We have already provided some of
those tasks, and we'll continue to look at that to try to provide
feedback on those types of areas that we think OSHA needs to do more
from a tech feas perspective to actually fill in the gaps that currently
exist.

		So we appreciate that OSHA has requested comment on that.  We have
already provided some and hope to do so in post-hearing comments to
provide other types of tasks that were not covered.  

		That's the first thing that we don't think constitutes meeting the
burden of tech feas.  The second is, in our view, OSHA is incorrect and
unjustified in assuming that for all exposure samples of less than a
full shift duration, that there is no exposure after the sampling period
ends.

		All right, so what is going on here, and I think everyone who is
listening understands what this issue is all about, OSHA has relied on a
number of different samples for coming up with their tech feas
conclusion.  Some of those samples are full shift samples, 8 hours, for
example; some are partial shift, 4 hours, 6 hours; some are a very small
portion of time, 15 minutes, maybe 30 minutes, maybe an hour.  This is
the sampling data that OSHA has and it has a number of different samples
that is included.

		The question for OSHA is what do you assume beyond that sampled period
as to what is the exposure of the individual to silica after the
sampling period ends?  In the case of construction, OSHA has assumed for
essentially all partial shift exposures that there is no other exposure
to silica for the remainder of the shift.  OSHA admits that this
particular assumption probably has the effect of underestimating
exposure both from a corrective methods perspective, as well as a
baseline perspective.  But OSHA says that it is the best available
option to the Agency.

		We contend that it probably is not the best available option.  To
assume for all unsampled portions of the shift that there is no
additional exposure to crystalline silica doesn't really reflect the
differences that exist in the different trades, information upon which
OSHA has information in its tech feas analysis.  For example, OSHA has
information that folks who operate various types of excavating equipment
usually operate and are exposed to silica for essentially a full shift. 
Yet, if OSHA has only a partial shift sample for those folks, it assumes
that there is no additional exposure to occupational silica for the
remainder of that shift.  We believe that that does not accurately
reflect what is actually going on.  And we think OSHA can do better in
terms of how it is actually assessing and assuming those different
exposures.

		We are not saying necessarily that OSHA has to assume a worst case
and, therefore, assume maybe a full shift for every single unsampled
portion of an exposure assessment that it has.  But we also conversely
don't think you can assume for all tasks that there is no additional
silica exposure for the remainder of an unsampled portion of the shift. 
That's the second issue that we have with OSHA's tech feas analysis.

		All right, the third issue is that we fundamentally do not believe
that OSHA's analysis considers the broad scope of tasks and environments
affected.  And I did want to start this discussion with a quote, because
I think ERG really says it best.  And it says the following in its
report regarding feasibility, "The construction industry presents
several challenges that affect both exposure analysis and the task of
controlling exposure.  Important considerations include irregular
schedules, variability in the silica content of work materials,
different types of mechanical actions that generate silica-containing
dust, secondary exposure from adjacent activities, and the effect of
weather on work that is frequently performed outdoors."

		There are a number of factors in the construction industry that day in
and day out are going to affect exposures and the ability of control
measures to get exposures below the permissible exposure limit, in this
case of 50 µg/m3.

		It is funny, when I was here last week and NIOSH was testifying, I
asked the panel at what level did they believe a prudent employer would
need to make sure exposures reached in order to be fully sure that they
would be in compliance with a PEL of 50.  And the response I got was you
had to be essentially at or below the action level of 25 µg/m3.

		What NIOSH is telling me and what I think ERG is saying here is that
there is so much variability, there are so many things that factor into
a particular assessment, a particular exposure level, that in order to
meet the PEL, you have to be significantly below it.  And we'll talk
about that at length.  But what that means for OSHA is you have to
understand and analyze at least a strong cross section of the types of
exposures and environments that are there.  You can't assume that you're
going to be in compliance with a PEL of 50 if you have not factored in
all of these different things, the winds, the environments, the dry day,
the muddy day, the brick that contains 20 percent silica, the brick that
contains 5 percent silica, the concrete that contains 35 percent silica
or 5 percent silica.  You have to look at all of those conditions to
make a determination that it is technologically feasible to comply with
a PEL of 50 in most operations most of the time.

		We don't believe on the whole that OSHA's dataset accomplishes that
particular task.  Unfortunately, there are some where there are a number
of different data points, but we don't think that it meets the type of
distribution that would reach that threshold level.  And that is a
significant concern that we have with respect to the tech feas analysis.
  

		Okay.  We also have concerns about OSHA's assumption about compliance
on multi-employer worksites with respect to exposure effects and
secondary exposures.  Our read of the tech feas analysis, and we're
obviously welcome from OSHA's perspective to hear if we're wrong on
this, our read is that there was no -- that OSHA did not consider any
secondary exposure effects when folks are essentially performing
silica-generating tasks side by side.  

		The thought process of OSHA was, at least in our view, that everyone
is going to be controlling silica below the PEL and, therefore, there
should be no secondary exposure effects that would factor into whether
you can actually reach the PEL of 50.  And so my take on this and this
is sort of the basic, sort of the lawyer take is if someone is cutting
concrete here on this side of the stage and someone else is cutting
concrete there on that side of the stage, different contractors, let's
just say different methods, but they are both under 50, let's just say
they are both 49 µg/m3, those different employers will not affect the
exposure.  Okay?

		Now, it may be that -- and everyone is sitting there saying, well, if
they're both under 50, then that's probably true, right?  They both
controlled it.  But when you are actually looking at what the level is
that they have to reach in terms of implementing their engineering
controls, in our view it has to be below what that 50 would be.  So they
could have been using wet methods and get below 50 Day 1, when there is
no one else cutting a wall on this side of the stage, but when someone
else is cutting a wall on that side of the stage, they actually have to
have their exposures significantly below that level, below where they
had previously been.  And that is something that is not factored in, at
least in our view, in OSHA's analysis.

		The upshot is you actually have to get much lower than a 50 µg/m3
limit to make sure that you are in compliance with this PEL.  OSHA's
tech feas analysis, in our view, does not actually analyze getting down
to that level.  And it kind of goes back, frankly, to what NIOSH was
telling me last week, which is if you're an employer and you have to
think about all these things, you have to think about the fact that
someone could be cutting right next to you, or you have to think about
that the winds could be coming in, blowing a bunch of silica dust from
another activity, that you actually have to be much lower than what OSHA
has assumed in this analysis.  You have to be at 25 or below.  Simply
being at 50 is not going to get you there, and that is something that we
don't think OSHA has fully analyzed here.

		Okay, we also believe that Table 1 shows that the proposed rule is
infeasible.  We're going to talk a lot about Table 1, and I don't want
to belabor that here because, as I said in the beginning, we very much
appreciate what OSHA has done with Table 1 and what it has tried to do.

		But we think, at the same time, that it fundamentally shows that the
rule is not feasible.  And I say this because of the heavy reliance on
respiratory protection that exists in the table.  Something like 8 out
of the 13 different tasks that are included in Table 1 require some form
of respiratory protection.  

		You could be working in a situation, let's say you're cutting concrete
with a masonry saw, you could be in a situation where you're fully
implementing wet methods per the table.  You've controlled things so
that there is no visible dust whatsoever because you're fully in
compliance with Table 1.  You have taken a variety of different work
practice control methods to make sure that wet slurry is not
accumulating and drying.  You have prohibited dry sweeping.  You have
done all of these things and, yet, you're still performing this task for
four hours and one minute, and you've got to be in a respirator the
whole time.

		I understand that OSHA is taking a conservative take on Table 1, and
that's why it included that respiratory protection.  But it also shows
to me that fundamentally OSHA is saying employers can't reach a level of
50 µg/m3 in most of the operations most of the time.  And the reason is
they are requiring employees to be in respirators if you use Table 1.

		You have full implementation, full implementation of the engineering
controls that OSHA expects employers to implement in the construction
industry, wet methods or LEV showing no visible dust whatsoever, along
with a number of other protective measures, and OSHA is saying in Table
1 that you still need respiratory protection.  

		OSHA has historically stated that technological feasibility should be
shown without regard to the use of respirators.  Here, OSHA is relying
heavily on respirators.  And, in our view, the reason is you can't reach
a PEL of 50 in most operations most of the time, at least in the
construction industry.

		Okay.  Finally, as a general matter, and I have alluded to this
before, OSHA's analysis includes no finding whatsoever that it is
technologically feasible to reach the action level of 25 µg/m3, with
the exception I will say of working with drywall compound that is
silica-free.  In that situation, OSHA has concluded that it is feasible
to reach an action level of 25.

		Now, everyone is probably saying that's fine, Brad, why does that
matter; the obligation is to reach a PEL of 50.  Except what we have
heard here last week and I think it continues to develop over the course
of these hearings, that in order to be in compliance with the PEL in
construction, because of the variability of conditions that exist, you
actually have to be at a 25 µg/m3 level.  

		Given that as the case, it is incumbent upon the Agency, in our view,
to demonstrate that it is actually technologically feasible to get down
to that level.  OSHA has made no finding of that.  And if you have
looked at the ERG report, we certainly did not see, again with the
exception of drywall finishing with silica-free joint compound, any
evidence that you can get to 25 µg/m3 in any of the tasks defined.

		We think basically OSHA is reaching here.  We do not believe
fundamentally that a PEL of 50 µg/m3 is technologically feasible right
now in the construction industry.  And even if and given, yes, OSHA can
be technology forcing, we don't think that there is any evidence out
there that we can get to that level based upon all of these, as well as
other individual reasons.

		In our written comments, we talk about each individual activity that
OSHA looks at in its tech feas analysis, and we're not going to belittle
that -- I mean belabor that here.  I did want to bring one example,
though, actually a couple of examples about some of the questions and
concerns we have about the individual tasks that OSHA has identified
here in its tech feas analysis.

		What I want to talk a little bit about is rock crushing machine
operators and tenders.  And one thing I want to talk about is
tuckpointers and grinders, because I think it shows a little bit of a
difference of approach that the Agency has taken with respect to tech
feas that is useful to highlight.

		Let's talk a little bit about what OSHA has done with rock crushing
machine operators and tenders, okay.  That's one of the tasks that OSHA
has looked at.  And, essentially, OSHA concluded that for these
particular -- this particular task, operators and tenders, that it is
technologically feasible for folks to get to the proposed PEL of 50 with
a combination of three things.  And I say folks, I really mean
operators, because with tenders, which we'll talk about later, OSHA
really has no data to support that finding.

		But, essentially, it says for operators, you can get to the 50 µg
level if you do three things.  If you use a climate-controlled
protective enclosure, okay, that's number one; if you use an effectively
designed and maintained water spray system, that's number two; and,
number three, the operator is able to spend at least 85 percent of his
or her shift in the enclosure.  So if all three of those things take
place -- if all three of those things take place, OSHA says you can
reach a PEL of 50, okay.

		Let me just say, though, parenthetically, OSHA does say in its tech
feas analysis even with that, there are some instances where respiratory
protection is needed in the form of a haz mask.  This is what
essentially, in our view and our take, OSHA has relied upon to come up
with this finding.  And let's talk about what they have done for
operators.

		Okay.  In large measure, OSHA relies on a site visit that it conducted
with a stationary crusher, okay.  They went out to one site, looked at a
stationary crusher, which did the following, it used a fine mist of
water spray with multiple water spray nozzles, and it says in this
particular study that this employer checked the nozzles and the spray
frequently and replaced them as needed.  Okay, so you've got a situation
where OSHA relies on a stationary crusher using wet methods that were
presumable well maintained.   

		OSHA also says that the sampling, itself, was performed on a muddy
day.  Okay, it was wet conditions, so it had been raining.  It was
muddy.  And OSHA says, look, that probably kept the silica exposure
down.  Despite all of that -- despite all of that, for the operators,
OSHA concluded that, and based upon the readings, that the exposures
were above the PEL.  OSHA has got a situation here where you've got wet
methods that are used, okay.  You've got sampling that is performed
under environmental conditions which are going to reduce the amount of
dust.  Everything seemed to be maintained well.  And, yet, OSHA finds
that the exposures were above the PEL.  I think the level was 54 or 56
µg/m3.

		OSHA takes this study and looks at another study from India where it
was concluded that they were unable to determine if similar water spray
systems would be equally effective on equipment used in the United
States.  And concluded based upon this data that it was capable of being
done in these operations of meeting a proposed PEL of below 50.  We
don't think that data fully supports what OSHA's conclusion is.

		Then OSHA goes and talks about tenders.  Now, operators are folks that
are going to spend some time in enclosures, right, maybe they go outside
the enclosure but they are generally going to spend some time in
enclosures.  Tenders are folks who generally operate around the rock
crusher, for example.  OSHA also concludes that tenders, this particular
job category, can reach a PEL of 50.  Except this is the information
that they base that conclusion on, the exposure information available to
OSHA for rock crushers is limited to workers either controlling the
machine or alternatively controlling and tending the equipment to clear
foreign or impacted material.  No construction industry data are
available for workers strictly tending crushing machines without also
spending time operating them.

		There is a category of workers out there that are strictly tenders. 
OSHA has concluded based upon no information whatsoever that this
particular category of workers can reach a proposed PEL of 50 µg in
most of the tasks most of the time.

		In our view, this simply isn't adequate to show technological
feasibility or at least to shift the burden of feasibility and any
particular enforcement action onto the employer.  OSHA simply hasn't
made its case here.

		The final thing I want to talk about relates to tuckpointers and
grinders, because I think this actually shows OSHA getting it right,
okay.  Now, as I said at the outset, OSHA concluded that technological
feasibility had been met in 10 out of 12 particular industries.  One of
those industries where it found that it was not technologically feasible
to reach a PEL of 50 was in tuckpointing and grinding.  Now, the other
one was abrasive blasting.

		The interesting thing was OSHA, it seemed to us, and we're happy to
engage in a discussion on this, that it took a different approach to
tuckpointing and grinding.  And that is in this situation it assumed
non-ideal conditions in the construction environment, exactly what the
CISC thinks OSHA should do for all aspects of the tech feas analysis.  

		Essentially, OSHA had data and had studies that showed that in certain
circumstances you could reach below 50 when you're performing
tuckpointing and grinding.  But then OSHA said something that we
fundamentally believe, and that is that construction sites do not
represent ideal conditions and you cannot take this one study that was
done in ideal conditions and assume that it is going to be applicable in
all other types of tasks and operations. 

		We believe that what OSHA did with tuckpointing and grinding in
concluding that it was not technologically feasible to reach that level
is exactly what OSHA needs to do and should have done with respect to
all of the tasks.  Unfortunately, we don't think that OSHA has
consistently applied that same methodology, and as a result, frankly,
OSHA is being too aggressive in determining that it is technologically
feasible to reach the level of 50 in most operations most of the time.

		Tuckpointing, we believe OSHA got it right.  Now, interestingly, OSHA
did also happen to conclude that it was not technologically feasible to
reach a PEL of 50 in tuckpointing.  But it's key how OSHA did the
analysis there in assuming non-ideal conditions.  That's what the Agency
needs to do throughout.

		That's the tech feas aspect of our presentation.  The second aspect
obviously of OSHA's burden, not just to prove that something is
technologically feasible, but also that it is economically feasible to
comply with the rule and the proposal.  

		The Construction Industry Safety Coalition contracted with Stu
Sessions from Environomics to discuss those issues and analyze those
issues, and so I'm going to turn it over to him to walk us through that.

		MR. SESSIONS:  Thank you, Brent.  

		JUDGE SOLOMON:  How much time are you going to take, Mr. Sessions?

		MR. SESSIONS:  My presentation is quite lengthy.  I'll take an hour.  

		I want to apologize starting out.  I'm getting over a cold, and I'm
not sure that I'm going to be able to speak comfortably for a full hour,
but I'll give it a try.  With some water here, that'll help.  And I
apologize also for the level of detail of this presentation, but OSHA's
analysis, economic analysis is incredibly detailed, and it deserves a
great deal of scrutiny and every effort to make it as good as possible.

		Again, I'm Stuart Sessions.  I'm the President of Environomics,
Incorporated, a consulting firm located in Bethesda, Maryland.  I'm an
economist.  I've got more than 35 years of experience in analyzing the
economic impacts of regulatory and policy issues involving the
environment, occupational health, and energy.  I've worked many years
for both government and private industry.  I have consulted for both
government and private industry on these issues.  I've done previous
analytical work, several years' worth of work on the crystalline silica
regulation.  I have worked previously on hexavalent chromium, and I have
worked also on potential OSHA standards for beryllium and noise.  

		I'm testifying, as Brad said, on behalf of the Construction Industry
Safety Coalition, which has supported my work.  My testimony focuses on
the cost and economic feasibility of the proposed standard for
construction.

		In a sense, my testimony is an interim report on my work.  My work is
not completed.  I have not yet done all the work that the coalition has
asked me to perform.  And so I am reporting on the results to date.  I
will complete the report and complete the work and present a final
report in the post-hearing comments.

		Today, I am specifically going to cover four topics.  Number one, nine
specific changes that I recommend that OSHA implement in the Agency's
analysis in which the Agency estimates the cost of the proposed rule for
the construction industry.  This will be a very detailed critique of
what OSHA has done and how they can improve the analysis.

		Secondly, I am going to report in much less detail on where we stand,
where I stand in re-estimating the cost of the rule.  Essentially, we're
attempting to take OSHA's cost estimates for the rule and rework them so
as to reflect these nine particular changes that we are proposing.  And
that work in particular is not yet complete, so I'm going to give kind
of a partial report on where we stand in re-estimating cost.  So more
detail on what OSHA ought to be doing or what we would like OSHA to be
doing in costing, much less detail on what we have done thus far.

		Expanding a bit, my third and fourth topics are essentially going
beyond cost, what are the economic impacts of this proposed rule on the
construction industry.  And, again, on that topic, I bifurcate into two
subjects, one, some detail on suggestions about how OSHA ought to be
revising their economic impact analysis, how they ought to be revising
their assessment of economic feasibility for the industry, and much less
detail on the results to-date as we attempt to redo and improve OSHA's
analysis and the results we're attempting to find or we are finding.

		So getting into the details of the first issue, improving OSHA's cost
analysis, I have said I'm going to go through nine detailed suggestions.
 And, again, I apologize for the detail, but here we go.

		Number one, OSHA, in our view, omits at least 1½ million construction
workers from the cost analysis.  OSHA's cost analysis is based upon
protecting workers.  In many ways, the cost analysis is a function of
how many workers need to be protected.  And, in our view, OSHA has
missed an awful lot of construction workers who routinely perform tasks
that expose themselves and potentially others to crystalline silica. 
And the tasks these construction workers perform that have been omitted
from the analysis are very, very similar to the tasks that OSHA does
include in the analysis and the workers that OSHA includes in the
analysis.

		So some of the admitted occupations, plumbers and helpers; roofers, I
say actually it should be roofers and helpers; electricians and helpers;
plasterers and stucco masons; tile and marble setters.  Maybe, we
haven't yet in our analysis, in attempting to redo it, included HVAC
installers, mechanical contractors, but I think there is a good case for
potentially including them, also.

		All of these construction trades, if you will, all of these sorts of
workers perform exactly the same sorts of activities as to other
categories of construction workers that OSHA does include in the
analysis.  Basically, these enumerated trades here on the slide work on
a wide variety of silicate-containing materials, brick, block, tile,
plaster, stucco, stone, etc.  And they work on it by drilling into it,
they cut it, they break it, they abrade it, they finish it, they scarify
it, and they generate silica dust. 

		A plumber will do it just as a carpenter, which OSHA does include in
the analysis; a plumber will do it.  In fact, one of the highest
exposure samples that OSHA has in their database is a plumber working in
a building, operating with what's called a stationary, a portable
masonry saw, and that is OSHA's highest single exposure data point for
this activity, operating a masonry saw, and it is a plumber.  And this
is an occupation that OSHA has excluded from the analysis.

		So what is our evidence that these omitted trades in fact conduct
these sorts of activities that generate silica?  Well, the first piece
of evidence is you talk to any of these tradesmen, you talk to a
plumber, you talk to a stucco mason, and they'll say, oh yeah, oh yeah,
yeah, we cut and abrade silica-containing materials.  The plumber says
he cuts into concrete floors to put in drain lines and the stucco mason
says that, yeah, he finishes stucco, and he applies a grinder to it, and
he generates silica dust.  So talk to them.  They do it.

		Number two, OSHA's source for the initial list of tasks that they
analyze that sort of is the starting basis for the entire analysis is a
document called, RSMeans Heavy Construction Cost Data.  And this is a
standard reference in the industry for estimating the cost of performing
various construction jobs.  And OSHA picks out of this RSMeans Heavy
Construction data source a variety of activities, and they use this
source to sort of estimate the fraction of the activity that consists of
labor and the fraction that consists of materials, and they really start
the analysis with this data from the heavy construction book.

		OSHA did not look at the RSMeans Residential Construction book, nor
the RSMeans Repair and Remodeling book.  These two books contain any
number of additional construction tasks that construction workers
perform that generate silica that are rather different in nature from
the ones in the heavy construction book.  And so in the residential
book, you find plumbers drilling into concrete.  You find stucco masons
working on the stucco exterior of houses.  You find tile and marble
setters cutting countertops and grinding countertops, and generating
silica dust in that manner.  So a second point is basically OSHA has
looked at too limited a set of data sources to capture the full range of
activities that construction workers perform that generate silica.

		A third sort of source is OSHA's own -- not OSHA's own, OSHA
participates in the Silica-Safe website.  And this website lists a wide
variety of construction materials and then lists a wide variety of
activities that get performed on these materials that generate silica. 
And then if you drill down into the website, it tells the person
accessing the website how they can control this activity on this
silica-containing material, how they can perform it safely.  Well, so
this is a huge list of construction materials and activities, only a
fraction of which are covered in OSHA's analysis.  And all of these
activities are conducted by a much wider set of trades than OSHA
considers in the analysis.

		A final data source is just plain exposure data that exists on these
omitted trades when performing activities that generate silica.  And if
you do a search of the PEA and you put in the word plumber, you will
find a number of exposure data samples that OSHA has that show plumbers
being exposed to substantial contributions of crystalline silica and, in
fact, as I said, the highest single sample result that has been found
when this plumber was working on multiple floors with a stationary
masonry saw.

		Another data source, there is a list of the reference, it's a set of
Canadian researchers who have assembled the available data worldwide on
construction exposures to silica and have put it into a database.  And
in contrast to OSHA's database of exposure samples, this Quebec database
is searchable.  And so you can search the Quebec database for a plumber,
an electrician, for tile setter, etc., and, yes, you find loads of
samples where they are exposed. 

		So, basically, the first issue is OSHA has missed a lot of activities
and workers that do, in fact, generate silica that will be covered by
the rule.

		How many of these people are there?  Well, I don't want to go through
this chart in total, but the top half of the chart is some of the sorts
of construction occupations that OSHA does include in the analysis and
the bottom half is some that we contend do raise silica dust and whom
OSHA has omitted from the analysis.  And the net result is the omitted
trades add up to when -- let me back up a little bit.  

		A key issue in the analysis is how much time each of these trades
spends doing activities that generate silica.  And the second to the
right column are the estimates of the percentage of time that different
construction trades are key in instigating a task that generates silica.
 So, for example, OSHA estimates that brick masons and block masons
spend 22 percent of their time initiating and performing tasks that
generate silica.  

		Well, the reason that number is important is because ultimately OSHA's
cost analysis depends partly on the number of workers who might, at some
point, do a silica-generating job, but it depends very extensively on
the amount of time that the silica-generating job occurs.  And,
ultimately, much of OSHA's analysis depends upon the full-time
equivalence, the worker full-time equivalence that involved generating
silica.  And so, essentially, in OSHA's analysis, the Agency takes the
percent of time and multiplies it by the number of workers in order to
get the FTE that are involved in doing the job.

		And, kind of interestingly, OSHA has the last row in the OSHA section
of the table, carpenters, in OSHA's assessment, spend one percent of
their time on average doing a job that generates silica, and that job
specifically is drilling holes into concrete or other masonry in order
to affix anchors, in order that you can attach something to the concrete
or the masonry.  And, typically, carpenters are drilling into concrete
so that they can attach wood framing to continue with construction.

		Anyway, carpenters, in OSHA's estimate, spend one percent of their
time doing that sort of thing.  And you get 7,800 FTEs of carpenter time
doing that.

		Well, we have taken a crack at making similar judgments about how much
time the omitted professions spend doing silica-related jobs, and for
some of them, plumbers, they don't spend very much time generating
silica, but they do spend some time.  They not only drill into concrete,
they cut concrete.  And plumbers do some amount of sort of demolition
work on plaster and concrete and other things in prepatory for
remodeling and things like that.

		Anyway, we have estimated that plumbers spend three percent of their
time.  And that result is that OSHA includes in the analysis 636,000
FTEs at risk who do silica-related jobs and we think there is a good
case for adding at least 103,000.  

		And I'll speak to the very last line in our part of the table, which
is carpenters.  We think carpenters do more that generate silica than
drill into masonry for the purpose of affixing anchors.  Carpenters also
drill through masonry for various reasons.  Carpenters also saw masonry.
 

		My next door neighbor just last week, they're doing a remodeling job,
their carpenter was out there on a scaffold, outside their brick kitchen
with a reciprocating saw, and he was sawing through that brick in order
to expand the window opening.  And this is a remodeling task, very
standard, expand the opening for a door or window.  And he's cutting
through brick on the outside, and he's cutting through actually a
plaster wall on the inside with this reciprocating saw.  

		And OSHA doesn't cover the carpenter doing that sort of activity. 
They don't have carpenters doing any sawing that generates silica.  So
we think carpenters do more than drill to affix anchors.  They saw. 
They do additional things.  So we have added -- OSHA has 7,800 FTEs of
carpenters in the analysis.  We have added 3 times as much, 23,000 FTEs
of carpenters.

		So Point 1 one was omitted activities and workers.  Point 2, and this
is a complicated one, OSHA's analysis estimates far too little need for
engineering control equipment.  And I am going to state these couple of
propositions and then I'm going to explain them.  And I don't think
people will understand them when I just state them.

		OSHA essentially provides in the analysis enough control equipment to
exactly match the duration of time that the covered workers spend
generating silica.  So when I said that OSHA gives the carpenter one
percent of his time doing something that generates silica, OSHA provides
an amount of control, the control for this carpenter silica-generating
activity, exactly equal to an amount of time which is one percent of all
carpenter time in the United States.

		So the time that the control is costed out, made available and costed
out in OSHA's analysis, matches the amount of time the worker does the
silica-generating activity.  To the contrary, I think that this issue
needs to be thought about in a different way.

		Yes, the carpenter generates the silica.  But you can think of it also
as his tool generates the silica.  It is his using the drill in OSHA's
case that generates the silica.  And in controlling -- and the
particular controls for this activity involve equipping the drill in a
different way.

		Well, the way you need to cost this out is not think of how much time
the carpenter spends, but think about equipping the tool and the
carpenter has to have that tool equipped to perform the task right any
time he is going to use the tool.  

		The carpenter goes to the worksite in the morning, and he may or may
not drill holes that day.  He's got his saw out in the truck.  He has to
have the saw in the truck otherwise he can't do the range of tasks he's
going to do.  If he has any possibility of doing drilling work on that
day, the drill out in the truck has to have the control available.  He
can't, when he starts to drill a hole, go find the control equipment
somewhere or go borrow it from somebody else.  The control has to be
available with the tool any time you're going to do the job that may
require the tool.  

		So, in a sense, just as the tool is going to sit inactive for a long
time, the carpenter may not drill today, he's not working in the
basement where there is masonry, he's working up on the framing and he
isn't drilling any holes into masonry.  Tomorrow, he is going to be
working in the basement and he is drilling holes in the masonry.  He
needs the tool tomorrow.  In fact, the tool is in the truck every day. 
The control has to be in the truck every day.  And you have to cost the
control to go with the tool.  The control has to be available when the
tool might be used.  The control is not available -- it will not work
if the control is available only specifically when the carpenter drills.

		Sorry to go into a little bit more detail on this.  The particular
control that we are talking about here for the carpenter drilling is
something called dust shroud vacuum system.  Basically, there is a kind
of a housing at the tip of the drill that you can attach to the drill. 
And it attaches to a hose and the hose runs back, and the hose is
attached to a 10 to 15 gallon HEPA vacuum.  

		And, essentially, when the carpenter is going to drill, what he does
is he attaches this dust shroud to the drill.  He then attaches the hose
from the attachment on the drill to the HEPA filter.  And he goes over
and turns on the HEPA vacuum, and then he drills his hole.  And then he
may -- then he turns off the vacuum and then he may go and drill a hole
over in some other part of the house that he's working on, and he drags
the vacuum over there and he reattaches the piece to the drill, etc.

		The way OSHA costs this control out is OSHA figures out the cost per
day for this control, and it turns out to be $4.96 between the dust
extractor and the HEPA vacuum.  And the way OSHA figures that out is
they take the cost of what does it cost to buy these two pieces of
control equipment and then you amortize the cost of purchasing that over
the number of years that this control equipment will still be
functional.  And I think the dust shroud OSHA assumes is good for a
year, wears out after a year.  The HEPA vacuum is good for two years. 
So you amortize the cost over an assumed 150 days of use for each year
for this equipment and it comes out to be $4.96 per day for this control
equipment.  That's the way OSHA costs the control for carpenters
drilling holes.

		Okay.  The charts on the right side of the table are who drills and
how much do they drill.  Well, okay, I have said there are 783,000
carpenters.  Other people to drill are carpenters helpers, according to
OSHA.  And each of them spends one percent on average of their time
drilling.  So the FTE that are involved in hole drilling is a total of
86,111 FTEs, and then OSHA figures the cost for this control is you take
86,111 FTEs, an FTE works on average 250 days a year, you multiply the
FTEs times the 250 days per year, times the $4.96 per day, and OSHA
comes up with a cost per year for controlling hole drilling of $11
million a year. 

		Okay.  That's the way OSHA does it.  Well, okay, does that fit the way
in fact this task is actually done?  Possibility Number 1, who drills
holes?  Well, let's say that Possibility Number 1 is carpenters are
incredibly specialized and 1 percent of them spend all their time
drilling the holes and 99 percent of them spend none of their time
drilling holes.

		In this case, OSHA has got it right.  There are 8,611 carpenter
drills -- there are 86,111 carpenters who do drilling.  Each of them
has a drill.  You need to equip each drill with the controls.  And that
$11 million a year is the right number, if carpenters specialize in hole
drilling and if all the hole drilling is performed by one percent of the
carpenters.

		What happens to the contrary if there is no specialization, every
carpenter in the country at some point in the year drills holes into
masonry, how do you equip them?  Well, the answer is every one of those
carpenters has got a drill.  It is 861,000 carpenters and helpers who
have got a drill.  You need to buy 861,000 dust extraction kits and HEPA
vacuums to equip all of those contractors who, at some point, they have
their drill in the truck.  They may drill 2 holes today, no holes the
next day, no holes the next day, 20 holes the next day.  And they have
to go out to the truck to get their drill.  And that drill has to have
the controls with it.

		So, in this case, which is more like reality I have to say, where most
every carpenter does this silica-generating activity, you need to
control vastly more control equipment than OSHA assumes.  You can't
provide the controls only for the fraction of time that the carpenter
spends drilling.

		This guy drills one hole in the day, two minutes.  You know, you can't
cost that out as two minutes worth of needing the drill control.  His
drill needs to be controlled no matter how much time he is going to
spend drilling.

		So most of these tasks are of the nature that they are not specialized
tasks, you know, every carpenter drills holes.  Almost every carpenter
will saw into masonry.  Almost every plumber will drill holes into
concrete.  Almost every plumber will do some sort of demolition on
plaster in preparing for, in remodeling jobs.  You need to equip a
vastly larger number of tools and workers than what OSHA says and then
what OSHA predicts. 

		And basically the issues that OSHA needs to think about in getting
this aspect of costing right is (a) what fraction of all employees of
this job category do the job we're talking about?  Is it 100 percent of
carpenters who do it or is it 1 percent of carpenters?  And that's a
different issue than what percentage of total carpenter time.  It's does
a carpenter do this or not during the year?  They need to think about
how the work is distributed among the full set of employees.

		Number two, they need to think about what is the size, and OSHA does
think about this, what is the size of the crew that does the job?  Maybe
the crew involves several workers with a single tool.  And, in fact,
many of the tasks do involve several workers with a single tool.  So, by
providing the control for the single tool, you essentially protect all
of the workers who are performing the task.  And that's a crew size
issue and that makes sense.

		Another issue is to what extent can the tools be shared across crews. 
Is it possible for a carpenter crew that is doing hole drilling here to
share the control in some manner with another carpenter crew that is
doing hole drilling?  The answer there is, on that one, no.  It's
probably pretty unlikely to be able to share.  The carpenter that's
drilling in the next house is not, you know, we're doing construction. 
We're making homes in a new subdivision, and there are carpenters
working in a number of houses next to each other.  No, they are not
going to run over to the carpenters in the other houses and borrow their
control drills in order to drill for two minutes and return it.  

		So another issue is sharing.  But, anyway, these are the sorts of
things that OSHA needs to think about to kind of get this issue right.

		Issue Number 3, this is a very complicated one, and I don't want to go
through this in detail.  Basically, the commentators back in 2003 have
taken OSHA to task for using RSMeans that has very high labor rates. 
And I think some of the commentators that raised this issue before sort
of didn't understand exactly how OSHA was doing the analysis.

		My point is entirely different.  The different point is when you use
high labor rates in one stage of the analysis early on in figuring out
the fraction of the job cost that's attributable to labor, as opposed to
the fraction of the job cost that's attributable to tools, when you use
high labor rates, you underestimate or you get a low fraction of job
cost that's attributable to tools.  

		If I figure the carpenter is getting paid $50 an hour, as opposed to
the $25 that arguably he may be getting, the fraction of the job cost
that is labor is high when you use the RSMeans wage rates.  Well,
eventually, and OSHA in the analysis picks up and uses this information
on the fraction of the job that's labor, as opposed to the fraction of
the job that is tool.  And I contend that as OSHA starts this analysis
out, they come up with low fractions attributable to tools because
they've used the high labor rate.

		Well, at the tail end of the analysis, OSHA undoes this and OSHA
essentially uses a different labor rate in figuring out the total value
of the task.  And OSHA switches back to a different data source on labor
rates, which is the Bureau of Labor Statistics, and uses much lower
labor rates.  And the net result is that OSHA's fraction of the job that
is tool and that needs to be controlled as a result of the first step in
the analysis is way too low.  And that gives wrong answers when OSHA
takes the tail end of the analysis and uses that low tool fraction at
the tail end of the analysis.  

		And I won't flip back to the previous page, but I had a number of,
what was it, $10,700 -- $10,700,000 for the carpenter tool job that
OSHA figures.  In fact, OSHA figures only less than $9 million.  OSHA
would figure about this $10.7 million if they did it right, but they
figure only about $9 million per year because of this problem in
shifting with labor rates.  And it is about a 15 percent, 15 to 20
percent error in figuring out the cost of engineering controls.  Enough
said about that.

		Point 4, another aspect of the cost analysis is I've been talking
about equipping tools as part of the engineering control cost, equipping
tools with the controls.  Another part of the analysis is what OSHA
calls productivity penalties.  Essentially, in performing the task, the
task may well take longer because of the controls you are using.  So in
the case of the carpenters with the dust extraction equipment on the
drill and the HEPA vacuum, the carpenter takes a little bit longer to do
his hole-drilling task because he's got to attach the equipment to the
drill.  He's got to attach the hose to the HEPA vacuum.  He's got to
walk over before he drills and he's got to turn on the HEPA vacuum. 
Then after he drills, he's got to turn off the HEPA vacuum.  He's got to
periodically empty the HEPA vacuum.  He's got to worry about the vacuum
hose from the drill to the vacuum getting kinked and all that sort of
thing.  So the job takes a little bit longer.

		And OSHA has thought hard about this issue and has included costs to
reflect this productivity penalty, this in a sense the job taking longer
to some degree when you use controls.  OSHA's productivity penalties
range from -- they are figured out in terms of percent and they range
from zero to five percent depending upon the nature of the job,
depending upon the specific job, and sort of in a sense how onerous the
controls are.

		Okay, that's not an unreasonable approach.  We, in fact, the coalition
did an extensive survey of its membership on a variety of economic and
work practice issues.  And we asked a lot of construction companies
questions about this productivity penalty idea and they came up with two
conclusions which suggest modifying -- which would suggest OSHA
modifying the approach they take in handling productivity penalties.

		A first suggestion is that they think of productivity penalties as
involving both a fixed cost and a variable cost component.  So the fixed
cost is sort of setting up the control equipment at the start of the
day, taking it down at the end of the day, and cleaning up if the
controls have caused a mess that you need to clean up.  And in the case
of wet methods, in particular, there are definitely some cleanups that
are needed when you do cutting and sawing wet as opposed to doing it
dry.

		In some other tasks, in fact, there may be a productivity net gain in
terms of cleanup from using a control.  So it could go either direction.
 But one strong suggestion is think about the penalty as consisting of
two parts, a fixed cost which is setup, takedown, and cleanup, and a
variable cost which reflects the percentage of additional time that the
task takes.  And the variable cost, it is right to think about that as
applied to the FTE that is spent doing the job.  

		So, in a sense, OSHA has I believe done right in applying a percentage
productivity penalty to the FTE that actually is spent drilling holes to
the extent that the penalty is a variable increase in the time that is
spent, that is required to drill the holes, to the extent while drilling
the hole, the carpenter has to go back and turn on and off the vacuum,
and move it around in the basement where he is drilling holes here,
versus things like that, that increases the amount of time that he
spends doing the task and that increases as a percentage the FTEs, the
total duration of FTE that is spent doing the task.  That is correct.

		But setup and takedown is different.  That is, in a sense, a fixed
cost, and you don't apply that to the FTE spent doing a job.  You've got
to think about exactly how much each day is spent on setup and takedown
for each of the different tasks and each of the different controls.  And
that is a fixed cost and that operates in a different manner.  Okay, so
that's Point 1.

		Point 2 is the other sort of point we heard loud and clear from the
industry in commenting on this productivity penalty issue is that you
not only need to think about the productivity penalties that are
typically involved in typical conditions when you do the job, but you
need to think about essentially OSHA's Table 1 prescribes that you use
these -- if you're going to use Table 1, prescribes that you use these
controls in every instance when you perform this at-risk task.

		So in every instance when you are drilling holes or cutting concrete,
if you're using Table 1, in every instance you have to use these
controls.  Well, in some fraction of these instances, the controls are
hellaciously difficult to use.  You can't use wet methods at all easily
when you are working in building houses where the utilities are not yet
in and the water is not yet in.  You can't hook up a hose to run a wet
masonry hose if there is no water available.  So, in many instances,
situations are not such as to make it easy to go find the water for wet
methods or, in fact, to go find electricity to use the drill with the
shroud and the HEPA vacuum. 

		We had one commenter, who works in parking garages all the time, and
they do a lot of concrete work in parking garages, and they are
refinishing concrete, and cutting slabs out, and things like that.  And
the guy says a major problem is finding places to hook the extension
cords in the parking garages.  You know there aren't many outlets.  And
you don't want to run the extension cord from the outlet, 40 yards over
there across the parking lot where people are going to be driving in and
out of the Safeway parking lot.  

		It's a difficult job to get power to some instances.  It's a difficult
job to get power up to tuckpointers who are doing work on scaffolding,
on the 6th floor of a masonry building.  It's a difficult job to get
power to the upper floors of any number of commercial buildings under
construction before the utilities have been put in.  It is a difficult
job to use wet methods outdoors in the winter, in Colorado or North
Dakota.  

		And, basically, the point is don't think in estimating productivity
penalties just about the typical situations, but you in a sense need to
take consideration of the extreme and more difficult circumstances. 
And, you know, I'm thinking of some kind of decision tree approach where
what percentage of the outdoor construction work is conducted in the
winter, in the north.  Is it 15 percent?  I don't know.  So 15 percent
of the time, there is going to be big problems in using wet methods. 
And factor that in and sort of do an expected value sort of productivity
penalty that reflects the range of circumstances over which -- how am I
doing?

		MR. HAMMOCK:  You're about, I would say about 35 minutes in.

		MR. SESSIONS:  Well, okay.

		JUDGE SOLOMON:  It is 12:01, and I figured from the last time it would
be about 12:20, based on what you had said previously.

		MR. SESSIONS:  Okay.  Well, I'm going to skip a couple of slides about
specifically what we are thinking about productivity penalties, and we
will put this in a full report.  And we'll document it, etc.  And in
many cases we kind of agree with OSHA on productivity penalties.  In
some cases, we think they ought to be different.

		Okay, I'll try to move fast.  Point Number 5, productivity penalties,
to the extent they extend the time that is required to do a job, OSHA
figures them as applying as increasing labor costs only.  Well, to the
extent that the job takes longer to do because using the control makes
it take longer, that increases the equipment cost also.

		Let's say it takes a half-hour longer to do the masonry job because of
the controls.  Well, that means that you need to have the equipment for
another half hour.  You need to have the control equipment available. 
So productivity penalty applies not just to the labor fraction of job
cost, but it applies in all cases to the equipment fraction of job cost,
also.

		Point 6, OSHA assumes that -- basically, OSHA starts out by
estimating costs to apply controls in all instances when the
silica-generating job is done.  That's the way they start out.  And they
calculate the cost in that $11 million figure that I put on the table
earlier is for all instances, all the FTE instances when carpenters
drill holes.

		But then in a subsequent step in the analysis, OSHA says that, well,
some fraction of the times that job was performed, in fact, the worker
was not overexposed relative to the PEL and he wouldn't have needed to
apply controls then.  

		And so what OSHA does technically in the analysis is let's say that 50
percent of the exposure samples when carpenters are drilling holes are
below the proposed PEL and 50 percent are above, OSHA calculates the
cost as if you were going to control things every time that carpenters
drill, and then they drop out 50 percent of those costs because, oh,
well, after the fact, you see, half the time the carpenters did the job,
they did it so infrequently during the course of the day that their 8
hour time weighted average was not above 50, and so those shouldn't have
needed to be controlled.

		Well, that's not the way it works.  Basically, what I have said is
that according to Table 1, if the carpenter is going to drill the hole,
he needs to use that control.  That's one way of looking at it.  He
needs to use it all the time when he performs that job, even when he
performed it infrequently enough during the day so that it was below the
PEL.  He needs to use that control all the time, if you take the Table 1
approach.  

		If you take a different approach, if you think about it in a different
way, think about it as essentially the -- think about it as what the
prudent employer will do.  The employer who is sending this carpenter
out to perform the work, he doesn't know, the employer doesn't know
tomorrow whether the carpenter is going to -- how many holes he is
going to drill.  He doesn't know whether he's going to be working on the
third floor where there is no concrete or in the basement where there is
concrete.  He doesn't know.  

		He sends them out with the saw, with the controls, every day on the
chance, on the likelihood that maybe he is going to drill holes that
day, maybe he isn't.  And all of the controls work this way.  So the
prudent employer is going to equip his employees with the tools and the
controls to do the job the right way every time they do it because the
employer doesn't know whether they are going to do it tomorrow long
enough to exceed the PEL.  

		They don't know -- the employer does not know whether the particular
concrete that's in this home is high silica or low silica, and whether
if the guy spends an hour drilling holes, he is going to be above or
below the PEL, because it's a function of the silica content of the
concrete.  The employer doesn't know if the job is outdoors, whether the
wind is going to be blowing and dispersing the silica or not.  

		Essentially, exposure is almost completely unpredictable in advance. 
Exposure can vary over many orders of magnitude across a range of
factors that are unknowable in advance.  Is the guy going to work for
two minutes on this job or eight hours?  Is he going to do it -- I
don't really know in advance.  Is the silica content of the stuff he's
working on going to be high or low?  I don't know in advance.  What is
the weather going to be?  Is it going to be raining?  Is it going to
keep the silica down?  I don't know in advance.

		The prudent employer and Table 1 both say if this is the right way to
perform the job, this is the way you do it every time.  And you've got
to -- OSHA should cost it as if it will be done every time.  So looking
after the fact and saying, oh, half the time they weren't exposed above
the PEL, so we're going to wipe out the cost that we calculated for
that, I think -- I assert that that's incorrect.  That's not the way
the world works.

		Point 7, I'm going to skip over this one.  This one we're going to
talk about further in the general industry testimony on Wednesday.  I
think OSHA knows what this issue is.  And essentially the question is
whether OSHA counts the costs for protecting workers down to the
existing standard as part of the costs of the regulation that are to be
analyzed.  And, arguably, the existing standard is what requires
protection for all workers who are exposed at above 250 µg/m3.  

		The addition of the revised standard essentially reduces the PEL from
250 down to 50.  And the incremental impact of the PEL is to require
controls for those workers who are exposed at between 250 and 50.  Well,
that's the argument for the position that OSHA has taken.  And, you
know, there are some analytical reasons for assuming a baseline of that
sort and doing the analysis that way.

		I argue that when you are doing economic impact analysis and you are
attempting to determine whether this standard is economically feasible
for the industry to comply with, you have to look at all the costs the
industry is going to bear, whether they are due to additional efforts
needed to comply with the existing standard or the incremental efforts
to comply with the tighter standard.  

		So to really assess what the impacts, whether employers are going to
be able to comply or not, and what the impacts of the compliance cost
will be, I contend for economic impact analysis you need to look at full
cost.

		Very quickly, Point Number 8, I have been talking exclusively about
engineering control costs thus far.  But I think some improvements are
warranted in OSHA's analysis for respirators and ancillary requirements.
 We'll have quite a bit of detail on this in our final report. 

		But a couple of highlights are respirators work somewhat like controls
in that you don't equip FTEs with controls.  You don't equip FTEs with
respirators.  A worker who is going to need a respirator potentially at
some point during the year has to have his own fitted respirator.  And
respirator costs ought to be figured based upon the number of workers
who may do the jobs that require -- that potentially require
respirators.  So cost respirators based upon number of workers, not
number of FTEs.

		OSHA discounts respirator costs because of based upon an old survey. 
I contend the old survey is quite inapplicable to the degree to which
respirators ought to be being assumed to being already provided.  And,
similarly, we've got some other comments on exposure assessment and
other ancillary costs.

		Point Number 9, essentially, OSHA has counted costs for the employers
that are directly covered by the OSH Act and the workers that are in the
employ of the employers that are covered by the Act.  But, in fact,
there are another 2½ million construction workers who are
self-employed, who aren't covered by the OSH Act, who arguably would not
be covered by this regulation.

		But, in point of fact, I believe there will be extremely strong
pressures on self-employed construction workers to do their work exactly
as is specified for construction workers who are covered by the Act in
Table 1.  And there are a variety of rationales that I put up here as to
why self-employed workers will have to end up conducting their
construction tasks consistent with Table 1, and OSHA ought to count the
cost as a cost of the regulation.  The regulation will induce these
workers, self-employed workers to perform their work in this manner. 
They will incur costs.  And those costs ought to be a part of the
analysis also.  

		So on Point 1, I added 1½ million workers, who were employees, who
were excluded from the analysis because they conduct trades and
activities that for some reason OSHA didn't consider.  Well, here is
another 2½ million workers that OSHA hasn't covered in the analysis
that arguably ought to be covered in the analysis.

		If I had more time, I would respond to -- I will take the time to do
it.  There was some discussion in the AFL-CIO testimony last week in
which an economist witness for the AFL-CIO said that OSHA had
over-costed the regulation because OSHA has vastly overestimated the
number of workers to whom the regulation will apply.  And the commenter
was referring to a number of 13 million workers.

		Anyway, OSHA knows that that number, 13 million, is not what they
used actually for the cost analysis.  That is a red herring number. 
And, in fact, OSHA, in my view, has greatly underestimated the number of
workers to whom this regulation will apply, as I have said.

		Okay.  Let me get very quickly to -- how much time do I have left
now?

		JUDGE SOLOMON:  You have six minutes.

		MR. SESSIONS:  Six minutes, okay.  

		MR. HAMMOCK:  Your Honor, also as I have indicated, the folks in the
afternoon will take less time.

		JUDGE SOLOMON:  Yes, I understand that.

		MS. KRAMER:  Your Honor?

		JUDGE SOLOMON:  Yes?

		MS. KRAMER:  We're happy to go to 12:30.  We would prefer to have an
opportunity to hear what they have to say rather than to rush to lunch.

		JUDGE SOLOMON:  Okay.

		MR. SESSIONS:  I appreciate that.  I'll still try to be quick.  Okay,
so this is sort of Topic Number 2 is where do we stand in estimating
what the rule will cost based upon these modifications that we are
suggesting to the cost analysis.  And our bottom line is right now we're
at $3.2 billion a year as the cost of the regulation relative to OSHA's
$511 million.  So we're at about a factor of 6 higher.  And part of that
is because we think you've got to add in a lot more workers.  Part of it
is because we think the productivity penalties are higher.  Part of
it -- a large part of it is because we think that the approach to
costing the engineering controls is inappropriate FTE based, rather than
tool based, etc.  Anyway, we'll provide more detail on that.

		Here is, and this is an eye test for those in the back room, and
everybody fails this, basically, this is more detail on the OSHA's $511
million a year estimate versus our $3.2 billion a year estimate.  And if
I were going to spend some time going through it, this is detail by
industry, and as you might expect, our re-costing increases OSHA's cost
estimates very substantially for the industries that employ a lot of the
omitted workers.  

		So for the industries that employ plumbers and electricians, for
example, we drastically increase OSHA's cost estimate for that industry,
whereas for an industry where OSHA, in fact, captured most of the
workers, we don't increase anywhere near as much estimates for that. 
So, again, there will be more detail on that in the future.

		Okay, let me turn to my topic Number 3 which is, okay, so we spent a
long time on estimating the cost, what do you do with the cost? 
Basically, one is trying to estimate cost in order to assess whether the
regulation is economically feasible.  And the question is in some sense
how affordable are these costs for the industries that are going to have
to bear them?  What are the impacts going to be when the industries
attempt to bear these costs?

		And really the key step in OSHA's analysis in assessing economic
feasibility is what I call these benchmark comparisons where you, on an
industry-by-industry basis, you compare the estimated compliance cost
against the revenues for the industry and against the profits for the
industry.  And OSHA's rule of thumb is that if the costs exceed one
percent of revenues, then there is an issue that is worth looking
further at.  If the costs exceed 10 percent of the industry's profits,
then there is an issue that is worth looking further at.  

		If costs are below both of these two benchmarks, OSHA regards that I
think reasonably as a good case that the regulation is economically
achievable.  If it exceeds these benchmarks, it may not be economically
achievable and a lot further analysis is worth doing.

		So I agree with this fundamental approach.  It makes good sense.  OSHA
has applied it to any number of other regulations.  It's an appropriate
approach.

		Okay, in doing this analysis, well, obviously, we've got some
differences of opinion with OSHA on what the cost numbers are that you
put into this analysis.  We've got some differences of opinion on
whether you put into this analysis the incremental cost that OSHA has
estimated or the full cost, whether you in a sense take off the table
the cost that it will take employers to get to compliance with the
current regulation or not.  But we've got further concerns beyond that.

		And one of our major concerns that I briefly alluded to in an initial
question of the OSHA staff on the first day of the hearings is
essentially OSHA sort of assembles data with which to estimate what the
affected industry's revenues and costs are.  And there is a lot of
judgment and analysis that goes into determining what data to assemble
with which to portray the industries revenues and costs.  And I contend
that OSHA ought to think a lot more about that and that the data on
industries' revenues and costs that OSHA has put on the table absolutely
are not, are not at all representative of the construction industry's
ability to bear these costs in the time frame over which the
construction industry is going to have to comply with this regulation.

		So OSHA's data, the revenue data comes from the construction industry
from the year 2006, so OSHA is saying that construction industry
revenues as of 2006 are representative of the revenues the industry will
have when they need to bear these costs.  And OSHA took profits data
from the years 2000 through 2006, and OSHA contends that that data is
representative.  

		And OSHA has said, rightfully, that in answer to my question the other
day, that they will update this data, as they always do, and that they,
they didn't say this but I believe they were limited to the data that
was available at the time the ERG did the economic feasibility analysis,
which was back in 2008 or so, and only data through 2006 or so was
available, and that's why OSHA used that data.

		Well, that data is wholly inadequate, completely misleading in terms
of representing the current state of affairs for the construction
industry.  And I contend that OSHA will update the data, but that the
new data will be so sufficiently different that the nature and the
results of the analysis will be sufficiently different that OSHA ought
to think very hard about providing this data and the notice of data
availability so that the public can comment on it.

		There are a lot of sophisticated analytical issues in how one measures
the profits of industries.  There are a lot of very sophisticated
questions about what data source one chooses for the profits of
industries.  And there are a lot of tricky questions about what data
source one chooses for estimating the revenues of industries.  And OSHA
will make a number of these choices in updating and/or choosing
different data sources for this data, and those are extremely important
choices in assessing the economic feasibility ultimately of the
regulation.  And I contend that they are sufficiently important to give
the public a crack at them.

		So here is just my single chart on why 2006 is not a representative
year for the construction industry.  And if anybody sees the -- this is
the total national amount that is spent on all forms of construction in
the United States.  And it is in -- it's actually in nominal dollars,
not constant dollars.  If you put it in constant dollars, it would look
a little bit different.  But the peak, the highest level of construction
spending ever in the nation, turns out to be 2006.  So OSHA has chosen
2006 as the representative year for revenues, and a longer time frame,
2000 to 2006, as the representative year for profits.  That is the best
year in history.  

		Not only does 2006 sort of not reflect anything having to do with the
recession, and everybody knows about the housing recession and the
construction recession, but it's just -- it's a non-representative
year.

		A couple of other methodological issues in doing this comparison of
revenues against profits.  First, there is a lot of flexibility in how
you define industry.  And there is no reason that industry, the
industries for which you assess economic feasibility need to be defined
as OSHA did.  OSHA, in particular, for a variety of reasons which I
understand, analyzed a series of four-digit NAICS industries.  I regard
them as being aggregates, large aggregates that OSHA's four-digit
industries include a lot of diverse smaller industries.

		And, in fact, in the analysis for general industry, OSHA used in many
instances six-digit NAICS industries as the industries that are
evaluated.  And if OSHA were to use six-digit industries for
construction, you would get some quite different answers than when you
use four-digit industries.

		One example, one of the particular industries, a four-digit industry
is foundation structure and building exterior contractors.  Now, that is
a lot of different construction trades in which one six-digit industry
is something called masonry contractors.  In the structure and building
contractors are another six-digit industry which is framing contractors.
 These are the guys working with wood.

		Well, the net result is by looking at a four-digit industry, OSHA has
combined the industry that does carpenter framing, which almost has
nothing to do with silica, with the masonry contractors, which has a
huge amount to do with silica.  And in a sense OSHA has diluted the
impact that will occur on the masonry contractors by looking at the
aggregate that includes a lot of non-silica related industries and
tasks.  

		There is no reason that OSHA needs to define it this way.  And I
contend that if OSHA looked at masonry contractors, that particular
six-digit industry, OSHA would get ratios of compliance costs to
revenues and profits much higher than the benchmarks, whereas looking at
the four-digit industry as a whole, you may get answers that are much
lower.

		Now, you can also, there is no reason also that OSHA couldn't define
industries in other ways that don't correspond with the NAICS
definitions.  In fact, arguably, you can say that there is an industry
called demolition contractors.  There is a trade association for them. 
That's an industry.  And OSHA could analyze them by analyzing model
firms in that industry.  EPA does their economic analysis not on four
and six-digit NAICS industries, but they make model plants left and
right.  That is what most of what EPA does in economic impact analysis. 
And you can make model employers among demolition contractors.  

		You can make model employers among segmented pavers.  You can make a
model employer, model firms.  You can make small model firms, large
model firms.  Among concrete sawing and drilling, there is a trade
association for them, also.  Tile roofing, there is a trade association
for them.  Each of these are activities that you can call industries
that will be very significantly affected by this regulation because they
include a concentration of activities that involve working on
silica-containing materials, as opposed to being diluted across an awful
lot of other construction industries that don't have much to do with
silica.

		So work on a much finer grain analysis on industries, and we are going
to provide some of this for the final report.

		I guess the other point in this comparison of cost against revenues,
OSHA does not estimate the costs that the construction industry will
bear because of the general industry regulation.  In fact, the general
industry regulation, most of the affected industries in the general
industry regulation make construction products, bricks, block.  Some
don't; foundries don't make much, but most of them do.  Porcelain,
enameling, plumbing fixtures, most of the revenues, value-added, value
of product from the general industries is construction products.  And
the construction industry will bear costs because those general
industries bear compliance cost because of that part of the regulation.

		And you can make whatever assumptions you want about cost
pass-through, you know; maybe a reasonable assumption might be half the
cost borne by the general industries will get passed through to the
construction industries, but that ought to be a part of the economic
impact analysis for the impact of the regulation on the construction
sector.

		Another, this is going farther afield and I'm not sure whether I would
recommend this, but there is a history of MSHA adopting whatever
standards, whatever PELs OSHA promulgates.  And if MSHA adopts a
crystalline silica standard for the mining industries that matches the
construction and general industry PELs, the mining companies that
provide the raw materials, the clay, the stone, etc., that go into
construction materials that the general industry makes, the mining
industries will incur additional costs.  

		And you might well, if you were to do the analysis consistent with the
presidential executive order that suggests doing sort of comprehensive
regulatory impact analysis, if you were to consider all the regulations
that affect this industry or all the regulatory impacts that will ensue
from this proposed regulation if it were adopted, arguably the MSHA
costs ought to come into it, too.  

		JUDGE SOLOMON:  So that is 12:30.  We're going to go off the record
for an hour, and we'll be back at 1:30.

		(Whereupon, at 12:30 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:  Okay, we are back on the record for the afternoon
session.  We have the Construction Industry Safety Coalition again. 
Mr. Hammock, would you introduce everyone, please?

		MR. HAMMOCK:  Thank you, Your Honor.  To my left is Stu Sessions from
Environomics, Inc., who spoke this morning regarding some of the
economic questions and issues that the coalition has.  And then to my
right, I have Kellie Vazquez, from Holes, Incorporated, who will be
speaking on a variety of issues, and I can introduce her more fully. 
And then Kevin Turner, as well, for the record, from Hunt Construction
Group.

		JUDGE SOLOMON:  Okay.  Ms. Ryder, do you want to enter your
appearance for this afternoon?

		MS. RYDER:  Sure.  My name is Anne Ryder from the Solicitor's office.

		JUDGE SOLOMON:  Okay.  I received two documents.  Do you have these
documents?

		MS. RYDER:  Yes.

		JUDGE SOLOMON:  Mr. Hammock, are you going to move these documents?

		MR. HAMMOCK:  Yes, Your Honor.  I'd ask that they both be moved into
the record of the hearing.

		MS. RYDER:  Okay.  Is Ms. Vazquez testifying first?

		MR. HAMMOCK:  Yes.

		MS. RYDER:  Okay.  I'll mark her testimony, Hearing Exhibit 41, and
Mr. Turner's, Hearing Exhibit 42.

		JUDGE SOLOMON:  Okay.  Both are admitted into evidence.

(Whereupon, the documents referred to as Hearing Exhibits 41 and 42 were
marked and received in evidence.)

		JUDGE SOLOMON:  Okay, proceed.

		MR. HAMMOCK:  Thank you, Your Honor.  And thank you, OSHA, for
allowing us some time in the morning to talk through a couple of areas
of concern that we have with the proposed rule.  

		I wanted to preface the afternoon session by saying a couple of
things.  The first is to reiterate one of the things I said at the very
outset that the construction industry really does pose some significant
challenges I think obviously for employers with respect to controlling
crystalline silica, but also for OSHA.

		And one of the things that I think came out of the testimony that I
did this morning and Stu did was that we understand that OSHA needs to
make certain assumptions.  We understand what OSHA's burden is.  And we
also understand that it is very difficult to try to fulfill that burden
with respect to construction.  

		And we have thrown out some potential different assumptions that can
be made that may be more realistic.  But let me just say that we
understand that there maybe is no right answer here.  It is a very
difficult situation.  And we appreciate you all listening to us and
thinking at least about what we are saying here with respect to some
contrary assumptions that can be made.

		JUDGE SOLOMON:  Now, we had some carryover from this morning.  We have
three hours attributed to this session?

		MR. HAMMOCK:  Correct.

		JUDGE SOLOMON:  Okay.  And then we will have questioning about both
the morning panel and the afternoon panel at the same time.

		MR. HAMMOCK:  And, Your Honor, from our perspective, the actual
testimony in the afternoon will not be a full three hours.  One person
could not attend, so we anticipate being able to hear questions before
then.

		JUDGE SOLOMON:  Okay, thank you.

		MR. HAMMOCK:  Okay.  To start the panel, I will just -- Stu Sessions
would like to discuss one final slide in his PowerPoint.  But before I
turn it over to him, I would like to introduce Kellie and Kevin a little
bit further.  These are folks that are members of two of the
associations that are participants in the Construction Industry Safety
Coalition.  We wanted to have them testify here because, unlike me and
unlike Stu, these are the people that really will have to do this if it
is proposed as finalized.

		Both of these individuals have tremendous experience in construction
safety, as well as with respect to silica.  They are really -- the
amount of experience that they have is really impressive, and so I hope
that what they can give you all is their perspective on folks that
really are going to be implementing this thing come the first day after
this becomes effective in the final rule and hopefully provide you that
sort of immediate feedback.

		But before we get to them, Stu, do you want to just finish up your
final slide on cost.

		MR. SESSIONS:  Yes.  I apologize for taking the stand again here
briefly, but I wanted to go over sort of my bottom line.  I said that
the comparison of compliance cost against the affected industries'
revenues and profits is really a key step in assessing economic
feasibility.  And this final slide actually shows the current state of
our analysis on this comparison of costs against revenues and profits.

		There are several columns here that show the comparison of, in
particular, compliance cost against profits as measured in several ways.
 We have done a little bit of work to redefine profits in a way that I
think more accurately reflects the current construction industry's
financial situation.  We haven't done any redefinition yet on revenues
for the construction industry, so the comparisons that are shown here
are of essentially compliance cost as both we and OSHA measure them
against profits as both we and OSHA measure them.  So there are two sets
of compliance costs, two sets of profit estimates, so four total
comparisons shown out in the right-hand set of columns of the matrix.  

		You can't see the exact numbers, but all you have to look at is the
shaded numbers are instances in which the comparison shows one of OSHA's
aggregated industries exceeding the benchmark of 10 percent of profits. 
So, essentially, if you see a cell in this matrix that is shaded, that
means a potential economic feasibility issue.

		Essentially, the second column of this table shows a comparison
between compliance costs as we estimate them for the affected industries
and profits for those industries as profits have been redefined somewhat
from the estimates that OSHA generated.  And, on that basis, 5 of the 10
affected industries will bear compliance costs that exceed and well
exceed 10 percent of the profits. 

		So, basically, the bottom line is that conclusions with regard to
economic feasibility depend very much on what compliance costs you
measure and how OSHA estimates compliance costs, and they depend very
much on exactly what revenues and profits OSHA estimates.  And we
provided suggestions about that, also.

		The answers in making those comparisons can range anywhere between the
two right-hand columns are OSHA's comparisons in which none of these
industries exceed the benchmarks.  The two left-hand columns are ours,
in which in one of the columns half of the industries exceeded.  

		So there is a lot at stake in getting this part of the analysis done
as accurately and as fairly as possible. 

		JUDGE SOLOMON:  Go ahead.

		MR. HAMMOCK:  Thank you, Your Honor.  So as we discussed, we have sort
of broken up our presentation into different areas.  We have talked
about the process areas, talked about the technological feasibility
areas, talked about the economic feasibility issue, and now we want to
talk a little bit about the provisions as we see them, what makes sense
in the construction environment and what might.

		The first person will be Kellie Vazquez.  As I mentioned, she is Vice
President of Holes, Incorporated.  And she has really been a leader in
the issue of silica in the construction industry for many years, as she
will explain.  

		It's interesting I have gotten to know her through the coalition
process.  I have learned that Holes, they're in the south.  They're in
Texas.  They, as a policy, whenever they can, they always cut wet.  And
so she has a lot of good experience about the effectiveness of that
vis-à-vis the permissible exposure limit.  And she is going to be
spending a lot of time talking about Table 1 and what that might mean to
her.  

		I also will say, Your Honor, that her mom and 13-year-old daughter are
in the audience, so the questions have to be nice to Kellie.  Okay,
Kellie, thanks.

		MS. VAZQUEZ:  Can everyone hear me?  I'm not used to speaking in a
microphone.  Thank you.  Thank you for providing me the opportunity to
testify today.  My name is Kellie Vazquez.  I am the Vice President of
Holes, Incorporated.  And I am a member of the Concrete Sawing and
Drilling Association.

		I am here to testify on OSHA's Notice of Proposed Rulemaking on
Occupational Exposure to Crystalline Silica on behalf of the
Construction Industry Safety Coalition.

		Before I discuss the proposal, I'd like to tell you a little bit about
my company and my experience.  Holes, Incorporated, is a family-owned
business that was started by my parents 42 years ago when they decided
to go into business for themselves.  Our employees perform an array of
concrete cutting, wall sawing, slab sawing, core drilling, concrete
breaking, demolition, and load and haul services.

		We have approximately 44 employees.  The average employee has been
with our company for 14 years.  And we have several employees that have
been with us for over 25 years.  We recognize that our employees are our
number one asset.  We could not do the work without them and they are a
part of my family.

		Holes, Incorporated, has been recognized as an industry leader in
safety, performing jobs internationally, in extremely challenging
environments.  We have been selected for these jobs for our safety
record.

		I want to emphasize all of this because my testimony today is based
not on hypotheticals, but on reality.  As the Vice President of Holes, I
am responsible for supervising our field operators and overseeing our
safety disease.  Over the last 10 years, I have had the honor of being
involved in various initiatives and have addressed exposure to
respirable crystalline silica.  

		I participated in the SBREFA process when our CEO, my mother, Susan
Hollingsworth was a SBREFA panelist.  I was her helper in 2003 for this
rule.  And I was a member of the silica task force from 2003 to 2006.  I
also contributed and provided guidance for the ASTM standard on the
health requirements relating to occupational exposure to respirable
crystalline silica for construction and demolition activities.

		In addition, I have been a board member of the Concrete Sawing and
Drilling Association since 2009, and I have actively participated on
several committees including the safety committee and the training
committee.  As part of my membership with the CSDA, I provided guidance
and feedback with the CISC on the standard.

		Holes, Incorporated, has an aggressive silica exposure program.  To
the extent feasible, we do cut concrete wet.  We train all employees,
field operators, shop personnel, estimators, project managers, and
executives on the dangers of silica, and how to protect against harmful
exposures to this substance.  

		We have learned that due to the ever-changing conditions on job sites,
and from job site to job site, one of the most important aspects of
employee training is comprehensively educating employees on recognizing
changing conditions on worksites and how these can affect silica
exposures.

		This proposed standard imposes a reduced PEL based on a hazard that is
not supported by evidence.  Since the 1970s, silica disease has been
decreasing.  To impose an action level of 25 on construction when
testing at that level is not technically reliable undercuts any attempt
by OSHA to construct a standard which could even be adhered to.

		In conference with OSHA during the SBREFA process, OSHA proposed three
levels to be considered for the PEL, remain at 100, 75, and 50.  At that
time, during that phone conference, OSHA said if the PEL were to be
reduced to 50, there would be no action level citing technical testing
feasibility.

		We have performed exposure monitoring for the tasks that our employees
perform.  We have historical data on all of our operations, and we base
the need for the respiratory protection on that data.  The testing we
have is on the tasks we perform, and the data includes information to
the extent possible on the environment, weather, ventilation, PPE, and
duration.

		As you could imagine, there are a range of task conditions, work
environments, and locations where we perform our work.  That makes
conducting exposure monitoring challenging.  

		Exposure monitoring is also a cost for our company.  Currently, it is
a cost that we can afford.  But, as proposed in the standard, the cost
would greatly increase because the proposed standard requires additional
testing annually, quarterly, weekly; changes in the environment, our
personnel; changes to equipment and/or engineering controls.  This, in
effect, is continuous monitoring which will do very little to protect
the safety and health of construction workers.  Exposure monitoring
should be valid and remain applicable unless there has been a change in
the task equipment or engineering control.

		I will be spending a vast majority of my testimony today focusing on
Table 1 from a very practical perspective.  I have studied Table 1
extensively and discussed it with my fellow participants in the CISC.  

		I understand what OSHA is trying to accomplish with Table 1.  And
while the CISC appreciates OSHA's attempt with Table 1 to correct a
performance-based tool for the use in construction that would in theory
make compliance simpler, we believe that Table 1, as proposed, misses
the mark for several reasons.

		As currently drafted, Table 1 is unworkable for most construction
employers.  And I can tell you with a strong degree of certainty if the
rule were to become final, Holes, Incorporated, would not implement
Table 1.  There are several reasons for this.

		First, employers will not use Table 1 due to the notes included in the
engineering and work practice control methods section of the table. 
From my perspective, as someone who will need to review any final rule
to ensure we are fully in compliant with it, it is not clear from the
NPRM whether OSHA considers these notes to be required as part of
Table 1 and thus mandatory or whether these notes are merely provided
as suggestions.  The notes were not included in the SBREFA draft,
published over a decade ago; were not included in the draft given to
ACCSH a few years ago; and are such that compliance with Table 1 becomes
impossible.  	

		Let's assume for a second that the notes are mandatory.  The primary
obstacle to compliance in the notes relates to the requirement that
there be no visible dust admitted from a process after the introduction
of engineering control methods.  The CISC is concerned that essentially
what OSHA is proposing is a general dust rule rather than regulating
crystalline silica.

		While no visible dust is a lofty goal, it has no basis in reality in
the construction environment.  Rarely, if ever, will there be absolutely
no visible dust emitted from a silica-generating activity, even with the
use of wet methods or other engineering controls, or in the ambient air,
depending on weather on a job site.  I can tell you that from our
experience using wet methods in a variety of environments, it is almost
impossible for an employer to count on there being no visible dust
whatsoever when performing certain operations.

		Also, OSHA is assuming all visible dust contains silica and a
percentage of silica that could be dangerous if inhaled.  OSHA must make
sure that the protection methods included in the proposed standard are
based on verifiable studies that show effective solutions.  For certain
types of tools, such as grinders and other handheld pieces of equipment,
it is impossible to perform the work with the tool flush against the
surface being impacted.  At times, there may be a gap, that this will
mean some visible dust is emitted, even when local exhaust ventilation
or wet methods are utilized.

		For example, while using a portable masonry saw with a dustless
package, visible dust will be emitted during the initial cuts into the
concrete.  The blade guard, which encloses the blade and contains the
local exhaust ventilation system, will not touch the concrete until the
blade is buried to a certain depth into the concrete.  The gap, as
mentioned above, will allow visible dust to be emitted and leave
residual dust on the concrete you are cutting or grinding.  Any employer
that utilizes this piece of equipment or something similar will not be
able to use Table 1.

		For employers using wet methods, even attempting to meet the no
visible dust standard will require a tremendous amount of water.  Many
studies discussed in the technological feasibility analysis certainly
support this notion.  Such large amounts of water run counter to OSHA's
contractor's assessment that minimal water should be used to avoid
environmental contamination issues.  

		The Agency contends that construction employers communicate any
environmental concerns by utilizing as little water as possible to
prevent accumulations from occurring or potentially damaging residential
or commercial buildings.  Even if utilizing only a little water will
effectively reduce exposures to below the proposed PEL, the CISC has
significant concerns that it will prevent all visible dust from being
emitted.

		Compliance with the specification is also made very difficult on a
multi-employer worksite where other employers are performing
silica-generating activities.  If one employer is conducting operations
where visible dust is being emitted perhaps because the employer has
opted not to follow Table 1, it will be a significant challenge for an
employer conducting operations alongside to demonstrate its dust control
methods did not emit any visible dust.  

		I can also tell you from personal experience that performing
operations indoors makes it particularly challenging to perform a task
with no visible dust.  In addition, for those employees working indoors,
Table 1 requires sufficient ventilation be provided to prevent buildup
of visible airborne dust.  If one contractor has opted not to follow
Table 1 and is emitting visible dust, it would be extremely difficult
for a contractor using Table 1 to design and implement ventilation that
would prevent the buildup of visible dust.

		Even if there were times where a process could be controlled so that
no visible dust would be emitted, the requirement is so stringent that
CISC does not believe any construction employer will run the risk of
relying on Table 1 for compliance.  There are so many variables involved
in controlling silica-generating activities on any given day, an
employer could not guarantee that an activity will not generate at least
a little visible dust.  

		There are other ambiguities and vague terms used throughout the table
that the CISC respectively asserts will eliminate Table 1 as a realistic
compliance option.  

		Change water frequently to avoid silt buildup in water.  This
specification provides no guidance on how frequently water should be
changed or at what level silt buildup is acceptable. 

		Ensure saw blade is not excessive worn.  This specification provides
no guidance on what excessively means.

		Cab is maintained as free as practicable from settled dust.  This
specification provides no guidance regarding the term as free as
practicable.

		Cab is air-conditioned and positive pressure is maintained.  This
specification does not account for the fact that few machines are
equipped with cabs with these specifications and enclosed cabs could
create problems with verbal communication and visible obstructions.

		Commercially available shrouds and dust collection systems.  This
specification eliminates specially manufactured products that may be
equally effective.

		Prevent wet slurry from accumulating.  This specification does not
define what it means by accumulation.

		With the specifications included in Table 1 and the ambiguity that
goes along with it, OSHA has unfortunately created a compliance option
that no construction employer will follow.  If an employer, for example,
developed a protocol for replacing blades with excessive wear, it could
still be subject to a citation from a compliance officer if the
compliance officer happened to hold a different view of the definition
of the word excessive.  And this reality applies to all the ambiguous
terms included in the specification in Table 1 of the proposal.  

		Much of Table 1 requires employers to implement either wet methods or
local exhaust ventilations to be in compliance with its provisions. 
There are times, however, where the nature of the work or the
environmental conditions make use of these control measures impossible.

		There are difficulties associated with cold temperatures and
introducing water into the construction environment.  OSHA recognizes
that water may not be able to be used in certain interior work. 
Introducing water can also create other hazards, such as cutting tile on
roofs.

		CISC participating association members have identified other
situations where the use of wet methods or LEVs will not work.  

		Selected demolition around or near operating electrical or other
sensitive equipment such as clean rooms for computer operations.  

		Specifications for cleaning and sealing concrete joints often require
that no water be introduced to control the dust.  When water is
introduced to the cut line, compressed air must be used to blow the
water out and clean out the joint prior to sealing.  

		Work when compacting pavers prevents the use of wet methods or vacuum
systems.

		Grinding existing striping to be repainted on roadways.

		Drilling anchor bolts into the vertical face of a concrete structure,
and removal of fireproofing on columns and refineries. 

		When a problem with complying with Table 1 arises, the CISC questions
precisely how the standard will apply.  The proposed standard seems
designed to have employers pick their compliance option up front, then
presumably stick with that option.  So an employer would not conduct
exposure monitoring if the employer made a decision to choose Table 1;
but if a few months down the road the employer counters a worksite where
Table 1 is not capable of being used, what is that employer's
responsibility with respect to exposure monitoring?  

		There is also concern regarding the practical implementation of the
four-hour specification in the table.  While the CISC appreciates what
OSHA is trying to do by dividing the table by time spent on an activity,
the reality is that contractors will be unable to keep precise track of
the amount of time each worker has spent performing a particular task or
tasks such that compliance with Table 1 becomes an unrealistic option.

		Contractors currently do not and the CISC believes will not embark on
complicated time tracking of tasks to device when a respirator is needed
or when a respirator is not needed, particularly for those workers who
perform multiple different tasks included in Table 1 throughout the day.
 This just will not happen.

		From a compliance standpoint, I suspect if a contractor is using Table
1, the contractor will feel the need to err on the side of respiratory
protection.  Perhaps this is OSHA's intent with Table 1.

		I know that my employees would express concerns about a
significant -- about such significant respirator use, particularly if
the task has already been addressed through engineering and work
practices controls.

		In addition to the above, OSHA has decided to propose an extremely
narrow use for Table 1.  Table 1 is not a safe harbor for construction
employers by any stretch.  Table 1 should be an outline describing how
employers can perform work and stay below the PEL within an eight-hour
TWA.  All construction tasks should be listed, corresponding equipment,
tools, engineering controls, work practices, and PPE when necessary. 
The table should be amendable by employers when testing for compliance
with the PEL and exposure monitoring should not expire.  As written,
Table 1 is confusing, hard to understand, and not a workable solution
for construction.

		Table 1 must be simple and user friendly or it will not be used.  In
the CISC's view, the more notes that are included in a table, the few
contractors will utilize it.  Having a table that no one can or will use
does little to protect the safety and health of construction workers. 
Moreover, Table 1 must be a safe harbor for employers in order for
Table 1 to be a viable option for those of us in the construction
industry.

		Because of the numerous issues discussed above and in the CISC's
comments to the proposed rules, we urge OSHA to re-evaluate Table 1 as
currently proposed.  Thank you.

		MR. HAMMOCK:  Thank you, Kellie.  Thank you, Your Honor.  I would echo
what I said at the outset.  We appreciate -- the coalition appreciates
very much Table 1, the concept, what OSHA is trying to do.  I would ask
that OSHA consider what Kellie is saying.  This is someone who has a
very aggressive silica exposure control program, and this is someone who
is a small employer, 40 employees, longstanding employees, and this is
someone who would not use Table 1 as currently configured.  And I think
and OSHA has said if it can make compliance easy, it wants to, and Table
1 is that vehicle.  Unfortunately, as it is currently proposed, what we
hear and I think Kellie expresses this, it is not something that is
really workable and, therefore, it won't be, in fact, used by the
construction industry.

		Kellie speaks from the standpoint of sort of a small employer, 40
employees, concrete cutting work, sawing, and drilling.  Kevin is here
to testify on a much sort of different -- much different background as
a large general contractor who is responsible for overseeing oftentimes
very large projects with multiple trades.  

		As we were having coffee this morning before the hearing, he was
talking about a somewhat recent project that they did in Florida where
they were building a convention center with two attached major hotels,
and any one day you're going to have probably 2,200 construction
employees performing a variety of silica-generating tasks on one
worksite, on that day.  And that can give you a sense about the scope of
what a construction employer is going to be dealing with day in and day
out, whether it's a small project that Kellie is doing or literally
2,200 employees.  He said his normal jobs are about 1,000 employees on
site any given day, all generating a decent amount of silica dust.  

		And so we wanted him to come down to talk about some of the other
aspects of this, some of the other ancillary provisions, and give his
perspective as well.  Kevin?

		MR. TURNER:  Thank you, Brad.  Thank you for allowing me the
opportunity to testify.  My name is Kevin Turner.  I am the Director of
Safety for the East Division of Hunt Construction Group and a member of
the Associated General Contractors of America.

		I am here to testify on OSHA's Notice of Proposed Rulemaking on
Occupational Exposure to Crystalline Silica on behalf of the
Construction Industry Safety Coalition.  Before I discuss the proposal,
I want to tell you a little bit about Hunt Construction Group and my
experience.

		Hunt Construction Group is a 70-year-old construction management firm
based in Indianapolis, Indiana, that handles many large and complex
construction projects throughout the United States including sports
arenas, government and education buildings, aviation complexes, and
healthcare facilities.

		As a construction management firm, we work with a number of
construction trades and employers who will be affected by this rule, and
we know firsthand the challenges that employers face in this competitive
market.  I have more than 16 years' experience in the construction
industry and have been a longstanding member of the AGC and AGC's
national health and safety committee.  

		As the Director of Safety, I am responsible for the environmental
safety and health programs and training initiatives for the East
Division of Hunt Construction Group.  I am a certified safety
professional and have numerous certifications related to safety and
health, including construction health and safety technician and OSHA 500
construction outreach trainer.  

		Based on my numerous years of experience in the construction industry,
I have become aware of the issues concerning occupational exposure to
respirable crystalline silica, and I recently provided guidance and
feedback on OSHA's proposed rule as part of the CISC.

		I fear that what OSHA has proposed here is simply too complex and
overly burdensome for the construction industry.  The CISC comments
explain this further, but I want to just highlight a few issues from my
perspective.  

		First, the exposure monitoring provisions which require an employer to
determine the eight-hour TWA exposures of employees representative of
each shift, for each job classification, in each work area are
unworkable given the range of exposure conditions, environments,
operations, materials, and so on that are present in the construction
environment.  

		Employees in the construction industry perform work on multiple
locations and job sites every couple of days or weeks, and some even
perform work on multiple job sites per day.  The materials used and the
silica content of said materials are different on almost every project. 
Exposure monitoring in construction will need to be an ongoing exercise
given the constantly changing conditions, environments, and work
activities performed by construction workers. 

		I have taken a look at just some of the job functions at my company. 
As a management firm, we use subcontractors to a large extent.  However,
we have a number of managers, supervision, engineers, safety
professionals, consultants, and so on that work for Hunt and may have
some exposure to crystalline silica throughout the course of the day. 
It is possible that the exposure of these individuals would be below the
proposed action level and, thus, we would not have to take specific
action under the proposed rule with respect to these employees.  But I
cannot sit here and say for certain that that is the case and, thus, we
will need to perform monitoring of these workers at the outset to ensure
negative exposure to termination.  

		The difficulty of ascertaining a representative exposure of these
workers is significant.  One day, on one site, they may move through
areas that contain mass excavation, concrete work on footers and
foundations, demolition and renovation activities that could include
cutting, grinding, coring, drilling, etc., and be at a site with
abrasive blasting another day with core drilling, and another day with
demolition, and so on.  Exposure monitoring under this rule will be a
daunting exercise.  

		Under OSHA's proposal, employers are required to notify each affected
employee within five working days after completing an exposure
assessment of the results of said assessment and if the exposure is
above the PEL.  Employers are also required to describe in the written
notification the corrective action that will be taken to reduce employee
exposures to or below the PEL.  It will be difficult in many
circumstances to determine the corrective action that should be taken to
reduce exposure within five days, as the process of interest may be
completed or changed within the given time frame.

		While I understand why OSHA shortened the timeframe to provide
information to employees, employers may need to perform research, engage
manufacturers, or experts in order to determine how employee exposures
can be further reduced, particularly if they have now moved to a
different job site with different exposures.  

		Given the variability and exposure conditions on a construction site,
an employer may have implemented all feasible controls to protect
employees, but still be over the PEL due to adjacent work over which the
employer may have no control.  In addition, any corrective actions may
not apply to different job sites and different projects, making the
effort and time spent in coming up with corrective measures for a job
site that no longer exists meaningless.

		The CISC also has concerns with respect to OSHA's proposal regarding
observation of exposure monitoring by employees or their designated
representatives.  

		Some of the requirements are misplaced with respect to crystalline
silica.  For example, under proposed Paragraph (d)(7)(ii), the employer
is required to provide the observer with protective clothing and
equipment when observation and monitoring requires entry into an area
where the use of protective clothing or equipment is required. 
Respirators will be required in all circumstances if an employer uses
regulated areas, even if the designated representative is not at risk
for exposures to respirable crystalline silica above the PEL.

		These provisions seem unnecessary given that the observer will not
necessarily be close enough to the silica-generated task to pose a risk
merely because he or she enters a regulated area.  The CISC questions
the utility of requiring respirators and other personal protective
equipment to an observer for a one-time exposure, even a handful of
exposures.  We are not aware of data suggesting short-term exposures to
silica that could occur here posing a risk to employees.  This is
particularly the case given that it is highly unlikely that the
designated individual will need to be right next to the
silica-generating task in order to observe the exposure monitoring even
if the individual is in the regulated area.

		Because of the variable nature of the construction industry and other
reasons addressed above, the CISC cannot support exposure monitoring as
currently proposed.

		Second, the CISC has concerns with respect to the medical surveillance
requirements.  Under proposed Paragraph (h)(1), OSHA requires that
employers provide medical surveillance at no cost to the employee and at
a reasonable time and place for each employee who will be occupationally
exposed to respirable crystalline silica above the PEL for 30 or more
days per year.

		Medical surveillance is difficult, if not impractical, in the
construction industry in light of the transient nature of the workforce
and the turnover rate in the construction industry.  As OSHA
acknowledges, the construction industry has a 64 percent turnover rate. 
Many of those individuals will continue to work in the same trade but
for a different employer within the construction industry where they may
be exposed to respirable crystalline silica above the PEL at least 30 or
more days per year.

		As a result, many employees could be subject to medical surveillance
multiple times a year.  Under the proposed paragraph, the new employer
will be required to pay for medical surveillance unless the employee
happens to have his previous records and supplies them to his new
employer or the new employer is able to get the information for the
previous employer.  Both are entirely unlikely.

		I certainly understand that OSHA has included medical surveillance
provisions like these and other construction health standards.  That is
true.  However, the exposures in those substances are much more limited
on construction worksites than silica.  The broad applicability of this
rule to the construction environment raises concerns that I have rarely
experienced in my safety and health work in construction.  

		As I have been preparing this testimony, I have tried to take stock of
how common silica is on construction worksites and the types of
operations with potential silica exposure.  As an example, I was
reviewing MSDS, looking at welding rods the other day, and realized that
some have coatings containing crystalline silica which when heated helps
with the metal flow.  

		Now, presumably when welding this silica does not become respirable,
but I am not completely sure of that.  And it exemplifies how ubiquitous
crystalline silica is in construction.  To echo what Kellie said,
identifying 12 tasks in Table 1, while well intentioned, will not come
close to covering the number of silica exposure conditions that can
exist on a construction site.

		Third, the CISC has concerns with respect to the proposed regulators
and housekeeping requirements.  OSHA requires the use of regulated areas
or a written access control plan wherever an employee's exposure to
respirable crystalline silica is or can reasonably be expected to be in
excess of the PEL.  It is not clear how the two options are different.  

		Both provisions require work areas be demarked and access to said
areas be limited as essential personnel or designated employee
representatives.  Both provisions also require that employers provide
protective clothing when there is a potential for an employee's work
clothing to become grossly contaminated.  The only difference between
the two appears to be that respirators are not absolutely required under
a written access control plan, but need only be provided and used where
respirable crystalline silica exposures may exceed the PEL.  

		In addition, OSHA has not defined what reasonably expected means or
otherwise provide any clarity on when an employer should reasonably
expect for an employee to be exposed over the PEL.  This type of
language is fraught with compliance problems.  And, as a result, an
employer will feel compelled to set up a regulated area or written
access control plan in nearly all instances.  

		Enforcing regulated areas is incredibly difficult on a multi-employer
construction worksite.  I know this firsthand from the work I do with
Hunt.  Not every individual or employee is under the control of the
contractor putting up the regulated area, and a general contractor may
not be on site at all times during the project.  Moreover, weather and
wind can change silica exposure in many instances, requiring the
employer to continuously evaluate the conditions in order to determine
if the regulated area is properly designated or adjust the area to
account for the changed conditions.

		An employer may need to change the regulated area every time the wind
blows in a different direction because the boundaries of the area have
changed.  Employers simply will not be able to do this effectively due
to site conditions and other employers in the nearby areas.

		Requiring protective work clothing when there is a potential for an
employee's work clothing to become grossly contaminated with finely
divided material containing crystalline silica is confusing, and OSHA
has not adequately described how it will protect workers.  

		OSHA does not provide any clarity on when there is a potential for an
employee's work clothing to become grossly contaminated with crystalline
silica.  The potential that an employee's work clothes will become
grossly contaminated exists for most jobs and worksites.  So, in
practicality, employers will be required to provide protective clothing
in nearly all circumstances.

		OSHA asserts that, quote, "Gross contamination refers to a substantial
accumulation of dust on clothing worn by an employee working in a
regulated area such that movement by the individual results in the
release of dust from the clothing," end quote.  On a construction
worksite, clothes will naturally become dirty and covered in dust to a
certain extent.  Not all dust will be silica dust, and visible dust on
clothing is very unlikely to be respirable.  It would not be finely
divided materials.

		OSHA has simply not explained why such a provision is necessary or
likely to protect workers.  Moreover, there are also circumstances where
an employer may not be able to provide protective clothing, something
that OSHA does not recognize or address in the proposed rule.  For
example, employees are not able to wear anything over fire retardant
clothing.

		OSHA asserts that the purpose of regulated areas is to ensure that the
employer makes employees aware of the presence of respirable crystalline
silica at levels above the PEL.  In CISC's view, providing required
training of all employees potentially exposed to silica would be equally
effective in making employees aware of the presence of respirable
crystalline silica without all the issues associated with regulated
areas.

		The training would cover tasks where employees are likely to be
exposed to silica, as well as good housekeeping instruction to reduce
risks such as staying away from silica-generating tasks unless
absolutely necessary and positioning one's body away from clouds of
dust.  

		The CISC also does not support several of the housekeeping
requirements provided in the proposed rule.  OSHA is prohibiting
employers from using compressed air, dry sweeping, and dry brushing to
clean clothing or surfaces contaminated with crystalline silica where
such activities could contribute to the employee exposure to respirable
crystalline silica above the PEL.  OSHA does not explain or provide any
clarity on when dry sweeping or dry brushing could contribute to
employee exposures to respirable crystalline silica that exceeds the
PEL.  Personally, I have no idea how to make that determination to
ensure full compliance.

		OSHA alternative to dry sweeping appears to be using vacuums equipped
with a HEPA filter.  A HEPA filter vacuum will not be able to pick up
anything beyond small dirt or dust particles and, thus, would be
completely ineffective at picking up electrical wires, pieces of
drywall, and other debris often found throughout a construction
worksite.  Some projects also may not have access to an electrical
source in order to run the vacuum, and the HEPA filters would need to be
changed frequently in order for the vacuum to remain effective. 
Depending upon the size of the project and the location of
silica-generating tasks, an employer may need to provide more than one
vacuum.  

		Finally, I would be remiss if I did not speak on the concerns that we
have with application of the multi-employer worksite doctrine to this
rule.  As a controlling contractor for many large construction projects,
we may be held responsible under certain conditions for the actions of
subcontractors.  We understand this and do not shy away from that
responsibility.  

		With the dynamic nature of construction sites and the prevalence of
crystalline silica on those sites, however, we are very concerned that
despite our best efforts, we will be subject to multiple citations for
conditions outside of our control and even the control of contractors on
our worksites. 

		I appreciate the opportunity to appear here today and know that OSHA
is serious about hearing from all stakeholders.  I hope that OSHA
carefully considers these comments and the comments of the CISC in
determining how to proceed with the proposed rule.  Thank you.

		JUDGE SOLOMON:  Mr. Hammock?

		MR. HAMMOCK:  Thank you, Your Honor.  Thank you, Kevin.  I would like
to echo just a couple of things that you said, one of which is the
coalition recognizes that a lot of the ancillary provisions that are
included in the proposed standard are based on OSHA's historical
approach to health standards in construction and certainly in general
industry.

		I think one of the things that Kevin touched on, though, was that some
of those health standards, lead, asbestos, are sort of a different order
of magnitude from what we would facing with respect to silica on these
construction worksites.  And from what they tell me, Kellie and Kevin,
that those have really become specialized tasks.  And applying some of
those standard, health standard type ancillary provisions to silica is
much more challenging.

		The other thing I would just pick up on as from the multi-employer
worksite perspective, and this touches on something that Stu said, in
terms of whether it would be appropriate for OSHA to include some cost
item for self-employed individuals, those who are not technically
covered under the OSH Act, but may be essentially forced to undertake
actions as a result of this standard.  I think another layer to that for
OSHA's consideration is that multi-employer worksites where Kevin, for
example, is the general contractor and is going to need to take certain
measures to ensure that all employers and even independent contractors
are following X, Y, and Z so that we can all be in compliance with the
standard.

		They are going to be enforcing some of these same requirements on
individuals whether they are technically an employer or not under the
OSH Act.  I think that's even more of a direct situation where you could
see these types of folks being essentially required to comply with the
standard even though they are not employers under the OSH Act.

		Thank you very much, Your Honor.  That concludes our testimony.  And
we look forward to questions from that side of the room on our
testimony.  See.

		JUDGE SOLOMON:  Okay.  How many members of the public have questions? 
Lots.  So we'll start with this row here.  Ms. Nardeau [sic], you're
first.  And then after that, we'll line up behind her by row, if
possible.  So the people in the next row who had raised your hands, if
you would get the -- assume the position, we could say.

		MS. NADEAU:  Hi, I'm Elizabeth Nadeau, N-a-d-e-a-u, and I'm with the
International Union of Operating Engineers.

		JUDGE SOLOMON:  Did I mispronounce your name?

		MS. NADEAU:  I don't know.  I didn't pay attention.  I didn't really
listen to it, sorry.

		What steps does your company take, or you individually, or the
companies that you represent to protect workers when buildings are
sealed off to prevent exposures to the general public as required by
state fugitive emission standards or local ordinances?  What steps would
you take, at that point, to essentially beef up controls to protect the
workers?

		MR. HAMMOCK:  Just so I understand, so when you've got a situation
where due to state and local ordinances what, for dust exposure or
environmental contamination, or those sorts of things?

		MS. NADEAU:  There is a number of them, but there's dust exposures and
there is also other contaminants that state laws regulate in local
ordinances, particularly in populated areas.

		MR. HAMMOCK:  Sure.

		MS. NADEAU:  You may get a lot of complaints about cars getting dusty
or exposures to kids at schools or any of those sorts of things.  So
often there is a sealing off of the building to protect the public,
which would create no ventilation for the employees.  So I was wondering
what additional exposure controls you would use to protect the employees
when you are having to protect the public, so you have a balancing
there.  What would you do in that -- what do you do in those
situations?

		MR. HAMMOCK:  Do you want to start with Kevin and then go to Kellie? 
Is that fair for that?  Kevin?

		MR. TURNER:  Sure.  From the controlling contractor side, I end up
being the idea man, I guess, for lack of better language.  And we
require a site-specific safety plan which addresses the hazards dealt
with in that particular's contractor's scope of work.  As far as the
operators go, we've had a lot of different shots at this simply because
of the different areas we go into.  We're really fortunate when a
contractor can roll on and they have enclosed caps.  That's fantastic
because that allows us to do a whole lot of different things as far as
wetting down materials, etc., etc.  

		Really, it's based on the contractor and how they want to skin the
cat, if you will.  If they want to use water and that does impact their
excavations or their work, they can go about that.  If they have a
different way to handle that then that's up to them.  But, really, as
far as means and methods, it goes to each contract to do that.  All we
require is that they meet the letter of the law.

		MR. HAMMOCK:  And let me just say one other thing because I just had
this thought before we ask Kellie the same question, you know, this is
an area that I hadn't thought about, that's the reason I asked you a
question, because I don't know to what extent OSHA has also thought
about this type of situation.  But this is a situation where you've
essentially got other regulatory agencies that are enforcing situations
upon contractors which could significantly affect exposures.  And if you
can get to the proposed PEL under sunny skies or rainy days outside,
it's much different if you are now forced to do the work for other
reasons in an enclosed environment.  And I don't know to what extent I
would throw that to OSHA, don't know to what extent you have included
that in your tech feas analysis or even your ec feas analysis as well. 
I'm sorry, go ahead.  Kellie?

		MS. VAZQUEZ:  We kind of address it the same way that Kevin has said. 
What we would need to know is -- I'd have to have the job safety
analysis, and I'd have to look at the job because we would have to
identify what task we were doing to identify what piece of equipment we
were going to use.  And then identify what engineering controls are
going to be used.  And then identify the PPE necessary.  So that's the
steps.

		MS. NADEAU:  And then the opposite is, is if you are outside --

		MS. VAZQUEZ:  It's the same.  It's the same thing.

		MS. NADEAU:  -- and you need to comply with these state fugitive
emission laws or local ordinances, the monies that you are already
spending to comply with those, how would that factor into the economic
analysis of what you would need to comply with the OSHA standard since
you are already spending those resources to comply with local ordinances
and state regulations?

		MS. VAZQUEZ:  I've never -- me, personally, and Holes, Incorporated,
I have never been hit with a state ordinance in that effect.  I go by
the job site and what's required to me on that job site.  I think the
state ordinance would be for the hiring contractor.  The general
contractor is probably going to deal with that more than I would.  He
would then tell me what I would need to do or show me the job that I was
there to do.

		MS. NADEAU:  You don't operate in a state where they, for instance,
like Connecticut, both the general and -- the owner and the sub would
get cited.  So there are states where that may be the case, and so you
would have to be aware of your obligations under state law.

		MS. VAZQUEZ:  Right.  Like I said, I don't really -- Holes,
Incorporated, I do not really deal with that, so I don't really know. 
But you got it?  Go ahead.

		MR. HAMMOCK:  I could just add one other thing then to what Kevin
said, I also wonder in that scenario, I think your question is a very
good one and, you know, what was, you know, how is a contractor
otherwise going to deal with that cost and have they already essentially
figured that cost out as a matter of what their job would entail.  And I
think that does underscore a point that Stu made in his testimony which
is when you are focusing on how costs are actually going to be filtered
in, you really essentially have to assume a degree of control measure
vis-à-vis every time you go out on a job.

		You have to essentially account for those situations.  And, of course,
we recommend that OSHA account for those, too, in terms of their control
measures.  Sorry, Kevin.

		MR. TURNER:  It's all right.  I function mainly east of Denver. 
That's about as far west as I go.  And I know we have spent a little
time in Connecticut.  We've spent a whole lot of time in Arizona.  We do
have people trained to do the opacity test and so on, and we expect our
contractors to do the same. 

		I think where we are talking apples and oranges here is that's a
visual assessment that is done and there are certain cues there, whereas
as far as silica goes you may not see it, and there needs to be testing
done, sampling by an appropriate qualified IH in the labs, and so on and
so forth.  There is not necessarily all of those materials done as far
as what you're talking about, the fugitive dust, at least that's been my
experience. 

		MS. NADEAU:  I have another question, and it goes to rock crushing
operations, which we represent employees who perform that.  And I'm
asking about the production -- the protections that you already have in
place and the persons, the competent persons that you would have on the
site already during rock crushing to prevent traumatic injuries such as
getting an arm caught in a conveyor belt when somebody is reaching in to
remove debris, or a fall protection, or anything that you have in place
already, any personnel that are already required to be on site to deal
with the prevention of acute safety hazards.

		MR. HAMMOCK:  And maybe, Kellie, you can take that because I think you
do have some experience with that type of equipment.  And also you might
be interested to reiterate your testimony about how you approach the
training issue with respect to all your folks.

		MS. VAZQUEZ:  Okay, not a problem.  I don't do any rock crushing in
the manner that you're saying, but how we treat our employees, my guys
are one-man crews.  So I will have one operator in a truck and that
truck is loaded with his equipment to go do his multiple jobs per day. 
He is his own operator, his own equipment operator, his own supervisor,
his own foreman.  He has the right to shut down any job he feels that is
not safe.

		I don't have a second man, or a competent person, or a supervisor go
with him on site to look at the job and verify if it is safe or not. 
That's his responsibility.  That's what he is trained to do.  My
operators have 30-hour OSHA.  They are trained in trenching and
excavation.  They are competent people in trenching and excavation. 
They are scaffold builders.  They get aerial lift trained.  They are
their own foreman, their own supervisor.

		I believe and Holes, Incorporated, believes that under general duty,
every employee has a right to work under a safe environment.  Therefore,
it's his -- he need to be trained to be aware of what a safe
environment is.  And so that's how we go with silica training.  That's
why we are all trained.  My operators are trained.  My mechanics are
trained.  My project managers are trained.  My estimators are trained. 
I'm trained.  The president of the company is trained, all on the
hazards of silica and how to protect ourselves from it. 

		So I don't have that second person, that second supervisor.  My own
personal operator, he takes on that responsibility. 

		MR. HAMMOCK:  Kevin, do you have anything to add to that, and Stu?

		MR. SESSIONS:  Yeah.  I'd like to add one comment on how analytically
in the cost analysis it is appropriate to take a count of protective
measures that are already being implemented.  And I think OSHA has
recognized this issue and deals with it appropriately.

		OSHA has expended a substantial effort in trying to portray the degree
to -- the manner in which tasks are currently conducted.  For example,
to what extent is wet cutting already used indoors versus outdoors?  And
OSHA makes a determination about that and determines as part of the
baseline that outdoors it is masonry is usually cut wet and does not
count in the cost analysis any additional cost for cutting it wet,
because it is already part of the baseline.  And that's entirely
appropriate.  

		So I agree that safety measures that are already undertaken are in a
sense part of the baseline and should not be incremental costs that are
charged to, if you will, the regulation.

		MS. NADEAU:  And you have an answer that's different, I assume, since
you have more than one-person crews?

		MR. TURNER:  Well, again, we're construction professionals.  We don't
have trades performing work.  Rock crushing is a rarity.  I've seen it
on one project in my time with Hunt.  And we treat it as most of the
other jobs in the fact that you have to have a safe-to-work plan.  You
have to have all the appropriate checklists and sign-offs.

		I have safety professionals that I staff; however, they have to know
safe work practices literally from the time we strip off the topsoil
till the time we top out that 40-story building.  So they have a very
broad, expansive knowledge, not that they won't go through a checklist
with someone.  But it's approached in a safe work practice manner and,
obviously, there's a lot of difference in equipment and we would expect
the contractor to sit down with us and walk through their process with
us, so that way we can learn and make sure they're doing it right.

		JUDGE SOLOMON:  How much more do you have?

		MS. NADEAU:  Just a couple more.

		JUDGE SOLOMON:  Okay. 

		MS. NADEAU:  In your comments, you talked about variability quite a
bit in terms of exposure controls, and I was wondering what other
aspects of your construction activities during the course of the day
would be affected by changing wind conditions?  For instance, operation
of a crane would be significantly affected by changing wind conditions. 
So I was wondering besides silica and cranes, what else do you have to
sort of adjust to the variability of wind conditions, other activities?

		MR. HAMMOCK:  Outside of silica and cranes?

		MS. NADEAU:  Right.  You're on the worksite.  You have to react to the
fact that there is a change in wind conditions.  Are there any other
operations that you perform during the course of the day that would need
to be changed because of wind or rain or mist, or how you perform the
functions?

		MR. HAMMOCK:  Well, I can certainly -- we can certainly brainstorm
here, and I don't know if Kevin or Kellie have ideas off the top.  I
mean I think, obviously, construction is a dynamic environment.  I mean
I don't think that we are suggesting that the dynamic nature of the
environment is only related to silica and cranes even.  I mean I think
there are others, and we can certainly, you know, think about some more.
 

		I think that, though, with respect to silica, those considerations are
particularly acute.  And our position, at least one of our points in the
testimony is that OSHA needs to account for that.  

		I am amazed, and I said this to them as I've met with folks, I am
amazed at the ability of employers, employees, safety professionals to
adjust to whether it's a new regulatory scheme or whatever else they
have to deal with, so I think there probably are a number of instances
where that's the case.

		Irrespective of those instances, I believe that OSHA needs to account
for those here and I question the extent to which they have done so. 
Now, I don't know if you guys have some other examples with that?

		MR. TURNER:  I'll just take a real quick swipe.  You hit cranes. 
That's a huge one for us, especially when you're talking 400 for the
stick in the air, you know, 25 mile an hour wind, you're done for the
day.  When we go in our high-rise buildings, there are instances where
we may have scissor lifts or swing stages, stuff like that.  Those kinds
of things get shut down.  

		But, again, we're talking 15, 20, 30 mile an hour winds, whereas when
you've got dust in the air, it may be 2, 3, 4, 5 mile an hour.  So I
think that's the serious consideration here as to your atmospheric
conditions.  And that goes to humidity and all the other stuff, you
know, a good rain is a really good thing as far as dust goes and my
concern, Mother Nature taking care of the dust for us.

		It's something that needs to be looked at and considered, because when
you're dealing with engineering pieces of equipment versus dust and how
Mother Nature carries that around, I think are kind of two different
things there.

		MS. NADEAU:  And I have one final question for Kellie.  You said that
you have a training program that trains all your individual workers on
all the broad scope of whatever might confront them in the workplace. 
What specifically do you have in place and how many hours would you have
involving invisible contaminants or hazards?

		MS. VAZQUEZ:  Well, I'm just going to -- I'll base it on crystalline
silica.  What we do on our crystalline silica training is that when they
are hired on, they get it on their training when they are hired on.  And
then we do it annually, so everyone gets hit on it every year.

		MS. NADEAU:  But how comprehensive is the program?

		MS. VAZQUEZ:  What we do, I would say they watch a video.  They go
over a booklet with us.  And then a little test.  But then we go over
all of our operations with like the required, you know, engineering
controls, so I don't know, maybe an hour, two hours, and that's just the
verbal, new hire training.  And then at an annual safety meeting, maybe
an hour there, 30 minutes to an hour there.

		MS. NADEAU:  So you do the video, the interactive, and then the test
within an hour or two on silica training?

		MS. VAZQUEZ:  Something like that, yes.

		MS. NADEAU:  Thank you.

		MR. HAMMOCK:  One of the things, if I may, Your Honor, just if you
could stay, if that's okay?

		MS. NADEAU:  Sure, that's fine.

		MR. HAMMOCK:  One of the things that we have learned talking to a
number of different members of the associations who make up our
coalition is that there is a tremendous variety in the scope of silica
training obviously based upon the diversity of the work that the
contractor may do.  So Kellie's example might be X that she gave, but
she's got maybe a more, you know, concrete -- jeez, sorry, long day.

		JUDGE SOLOMON:  Actually, that's a remarkable pun.

		MR. HAMMOCK:  A set of exposures.  And so it may be that what she laid
out is appropriate, but there may be many different circumstances out
there.  So what we found talking to folks is it really varies.  I think
the coalition is a very, I think our testimony says, a very strong
proponent of safety training with respect to silica.

		MS. NADEAU:  So it's engineering control specific that you would be
doing the training on.

		MR. HAMMOCK:  Well, that one aspect of obviously what would be
comprehensive.  And I did, I also wanted to put a plug in, by the way,
for the Operating Engineers' comments.  We have started to review those.
 And I wanted to highlight one point that you all make that I think is
interesting, I won't put words in your mouth so take it for what it's
worth.  But one of the points that we understood it to mean is that with
respect to work with certain types of excavating equipment and millers
and the like, there needs to be a more granular analysis that OSHA has
in terms of the intended affects and the application of Table 1.  I
think that's consistent with what we're saying to really dive into all
the different exposure circumstances.

		MS. NADEAU:  Well, I think I'm not on the answering end.  You're going
to have our testimony.

		MR. HAMMOCK:  I know, I didn't mean --

		MS. NADEAU:  Okay, thanks.

		JUDGE SOLOMON:  You get to testify next week, I believe.  Looks like
Mr. Lundegren?

		MR. LUNDEGREN:  Yes, thank you.  My name is Bruce Lundegren,
L-u-n-d-e-g-r-e-n.  Stu, in your experience as a regulatory economist
over many years, do you find that federal regulations tend to have a
disproportionate burden on small businesses versus large business?

		MR. SESSIONS:  Yes, measured as in terms of impact on revenues or
profits, yes.

		MR. LUNDEGREN:  Okay.  And you talked a lot in your presentation about
the cost of the rule and provided a critique of OSHA's analysis.  Have
you looked at the regulatory flexibility analysis and whether there are
disproportionate impacts on small businesses that haven't been accounted
for?

		MR. SESSIONS:  I think this is one of the substantial shortcomings in
OSHA's current analysis is, in many respects, they treat small
businesses as proportionately scaled down large businesses.  And
don't -- let me expand on that.  On the cost side, for example, there
are any number of respects in which OSHA does not recognize the greater
existence of fixed compliance costs that are fixed per business that
have a much greater impact on small business than a large.  

		For example, I talked about this issue of OSHA's assumption about 56
percent of employers currently have regulatory protection programs --
sorry, respiratory.  You know, my guess would be that would be close to
zero percent of small businesses would have existing respiratory
protection programs, and the large fraction of large construction
businesses would have it, so that this cost, which has been treated in
OSHA's analysis, it's a cost per employee, in fact is a very
differential cost for small versus large businesses and will be a much
greater proportional cost on small businesses.  So that's an issue of
how far along is the business towards compliance right now.  

		Another sort of issue in that vein is the question of we talked about
this question about whether you do full or incremental compliance
costing and whether you essentially don't count the cost that will need
to be incurred to come into compliance with the current PEL.  Well, my
guess is that small businesses are substantially more likely to be
noncompliant currently than large businesses.  

		So this issue about full versus incremental cost is really a small
versus large business issue.  And to do a really good small entity
analysis, you ought to handle the differential compliance rates between
small and large business.

		On another dimension of this, which is the ability to pay these costs,
OSHA makes the assumption, for example, that the profitability or the
profit rate is exactly identical between small and large businesses. 
And that isn't the case at all.  The sort of data source that OSHA
chooses to use in looking at profits is graded by size of business.  And
one could do a small versus large business profitability analysis, and I
would highly recommend that.  

		In most such analysis I've looked at, small businesses typically have
lower profitability rates than large businesses and that needs to be
reflected in the analysis, also. 

		So it's a whole set of things like this where sort of a more intensive
and a more really good faith effort to capture the small business impact
would look in much more detail than the Agency currently has.

		MR. LUNDEGREN:  Okay.  And you said that OSHA's analysis looks at
costs from coming into compliance from the existing PEL to the proposed
PEL, rather than from actual current exposures to the PEL.  Do you think
that this masks a lot of small business noncompliance and that will make
it more difficult for small businesses to come into compliance with any
new PEL?

		MR. SESSIONS:  Yes.  I think that the way OSHA has handled that issue
substantially underestimates the burden on small businesses, and it
underestimates the burden on small businesses to a greater extent than
it underestimates the burden on large businesses.  So the way OSHA has
handled that issue sort of torques the analysis in a way that doesn't
accurately reflect the position that small businesses find themselves
in.

		MR. LUNDEGREN:  And small businesses make up a very substantial
segment of the construction industry?

		MR. SESSIONS:  Yeah.  Yeah.

		MR. LUNDEGREN:  Do you know what percent?

		MR. SESSIONS:  No, I don't.

		MR. LUNDEGREN:  It depends on the sector?

		MR. SESSIONS:  Yeah.  I mean, you know, among specialty trade
contractors and the various trade contractor-defined industries, small
businesses are an extremely high percentage, well over 90 percent. 
Among some of the other industries like commercial construction, small
businesses are a smaller percentage.  So it's an industry-specific.

		MR. LUNDEGREN:  And you mentioned in your analysis or your
presentation that OSHA went down to a four-digit NAICS code, rather than
the six-digit NAICS code that we use, the Small Business Administration
has adopted for purposes of the Regulatory Flexibility Act.  Do you
think that that tends to shield a lot of small businesses from being
captured in the analysis?

		MR. SESSIONS:  Yes, very definitely.  The example that I raised on
masonry contractors, which is a six-digit NAICS industry, will be very,
very substantially affected by this regulation.  And they are not
analyzed because they are lumped in with another six -- many others,
but at least one other six-digit industry, which is framing contractors,
who are guys who work with wood.  And they aren't affected by this
regulation at all.  So the analysis at the six-digit level would show
substantial impacts for masonry contractors who are small business,
heavily small business, which the analysis currently doesn't show.

		MR. LUNDEGREN:  And OSHA did, in fairness, they ran their analysis
with a dual baseline where they used the NAICS code and then they used a
standard of 20 employees or less.  But do you think that that still hid
a lot of the small business impacts?

		MR. SESSIONS:  Yes, I do.  I do.  That's right.  OSHA did, they ran
essentially three economic impact analyses, if you will, one for the
industry as a whole and all participants in it; one for all small
businesses in it, which is typically businesses with less than 500
employees; and another analysis for all very small businesses which have
less than 20 employees.  So OSHA did do these three different analyses,
but OSHA did not, in my view, spend a sufficient amount of time to
accurately characterize, to make an effort to characterize the
differences among these segments of the industries.

		MR. LUNDEGREN:  Okay, thank you very much.  Kellie, on behalf of the
chief counsel for advocacy, I'd like to thank you for your participation
in the SBREFA panel.  I know as an actual small business, that takes a
lot of time and effort, so thank you very much for assisting with that. 


		When you were part of the SBREFA panel, although your mother was
actually the SER, you were the helper, what did that panel process
entail?

		MS. VAZQUEZ:  Oh, we did -- sorry, that's when I first got involved
in silica and started learning about it.  And so it was a very intense
learning process for many months for pairing our paperwork and getting
our numbers together and brainstorming on how the standard, the proposed
standard was going to affect Holes, Incorporated.  And then not only us,
but also other concrete sawing and drilling companies across the United
States.

		We reached out to many of our partners across the United States
through the Concrete Sawing and Drilling Association and asked them
questions, and had them help us come up with our comments and how it was
going to affect our businesses.  So it was a lot of research, a lot of
brainstorming, and just to see how our business would change and what
changes we would need to make to comply, and if we could make those
changes and stay in business.  That's really what it taught us, and
that's really what I remember from it.

		MR. LUNDEGREN:  And OSHA provided documents for all of the small
entity representatives.

		MS. VAZQUEZ:  Yes.

		MR. LUNDEGREN:  I think there were about 60 small business
representatives from maritime construction and general industry.

		MS. VAZQUEZ:  Yes.

		MR. LUNDEGREN:  And what were the documents that you reviewed?

		MS. VAZQUEZ:  Oh, wow.

		MR. LUNDEGREN:  The draft proposed rule? 

		MS. VAZQUEZ:  Yeah, the draft -- we had the ERG and the draft
proposal.  And it was just as complex as, you know, 757-page document
that we received in August here recently, so it was a lot of reading and
a lot of late nights.

		MR. LUNDEGREN:  And it was very technical and comprehensive.

		MS. VAZQUEZ:  Yes.

		JUDGE SOLOMON:  How much more do you have, Mr. Lundegren?

		MR. LUNDEGREN:  Just two questions.  Did the SERs, the small entity
representatives, have a broad-based opinion about what OSHA should do
with respect to the permissible exposure limit and the issue of
noncompliance?

		MS. VAZQUEZ:  Yes.  We all asked OSHA to keep the PEL the same, to
enforce the current PEL.  There was a widespread of overexposure 10
years ago and OSHA had released that in their documents.  And so we
asked OSHA for education for outreach and to enforce the current PEL.

		MR. LUNDEGREN:  Okay.  And as a small business person who will have to
implement any new rule, is there any advice you would give to OSHA on
how they should proceed?

		MS. VAZQUEZ:  Yes.  I would say I believe, my belief is that the
current PEL works.  And I believe that the special emphasis program that
was implemented a few years back worked.  And education and outreach on
the hazards of silica is what needs to continue and then but keeping the
PEL the same.  I see that construction, current construction data, 75
percent of it has come back at the PEL or below, but we still have that
25 percent that is over the PEL; therefore, I say get that 25 percent
and let's bring them under the PEL, and let's enforce our current PEL,
and let's bring those numbers down, and let's get to that 95 percent,
100 percent of compliance.  That's what I would like to see, education
and outreach.

		MR. LUNDEGREN:  Thank you, Your Honor.  And thank you, again,
Kellie --

		MS. VAZQUEZ:  Thanks.

		MR. LUNDEGREN:  -- for participating on the panel.

		JUDGE SOLOMON:  Ms. Trahan?

		MS. TRAHAN:  Hi, Chris Trahan with the building trades department. 
It's T-r-a-h-a-n.  I've got a few questions.  And I think,
Mr. Sessions, this one might be aimed at you.  You mentioned an
extensive membership survey that you undertook on behalf of the
coalition.  How many respondents were there?

		MR. SESSIONS:  Between 75 and 85.

		MS. TRAHAN:  So between 75 and 85 out of more than a quarter million
employers represented by the coalition.  Is that a statistically valid
sample?

		MR. SESSIONS:  No.  We asked each of our members to provide a couple
of respondent couplings.

		MS. TRAHAN:  Okay.  And would you be willing to share the survey
instrument with OSHA so we can see what questions were asked?

		MR. HAMMOCK:  A couple of things I want to add to that.  We're
certainly open to consider that.  This is one of the things that with
respect to the survey and when we met with OSHA a few months ago, we are
worried and are still concerned that what we had intended to do with the
survey, which is to get as broad a response as possible to as many
members as possible, to be able to integrate it fully into the analysis,
we did not have enough time to do given the amount of time allotted for
the public comment period.

		So what we have been able to do is to the best of our ability take
what we were able to discern in the amount of time allotted and
integrate that into our thinking.  I will be the first to admit that
it's not fully integrated, and we will try to do that in post-hearing
submissions.  And we will look to see if we could make it available,
certainly, to the extent it would benefit OSHA.  But I'm worried that
given the time constraints, it wouldn't necessarily be fully
represented.  So I just wanted to add that caveat.

		MS. TRAHAN:  Thank you.  Did the survey include respiratory protection
practices in place, in the construction industry, because you have
suggested the level of respiratory protection programs that are
implemented in the construction industry?  I was wondering if that was
based on the survey.

		MR. SESSIONS:  No.  My comments earlier were not based on the survey. 
My comments earlier are based upon what I understand to be OSHA's
interpretation of the data that underlies a survey that they have looked
at.

		MS. TRAHAN:  So it's a review of what is in the docket is what you
base your levels at?

		MR. SESSIONS:  Yes, yes, of what's the economic analysis.

		MS. TRAHAN:  Okay.  

		MR. SESSIONS:  Basically, we did have a couple of questions in the
survey with regard to respiratory protection.  And among other
responses, we asked if companies had experience in providing respirators
to the workers, what was the typical cost per worker to be covered with
a certain sort of respirator and typical cost per worker covered with
another sort of respirator.  We got some number of responses on that,
and that will inform some of my comments on the unit cost assumptions
that OSHA made in their respirator comments, respiratory costing.

		MS. TRAHAN:  Thank you.  One thing, Judge, this is not a question for
the panel, but I noticed that there were several people who raised their
hand who are not testifying at this hearing.  And I was wondering if --

		JUDGE SOLOMON:  We were provided a list of people who had submitted
requests or comments.  So I have a list of the participants.

		MS. TRAHAN:  Who filed a notice of intention to appear?

		JUDGE SOLOMON:  Right.  That's how I have learned all these last names
over the last several days.

		MS. TRAHAN:  Okay.  

		JUDGE SOLOMON:  So are you objecting to some of the people asking
questions who are not on the list?

		MS. TRAHAN:  Well, that haven't filed a notice of intention to appear.
 I noticed some folks who are --

		JUDGE SOLOMON:  Who are not on the list?

		MS. TRAHAN:  Well, on the list of notice of intention to appear.

		JUDGE SOLOMON:  Right.

		MS. TRAHAN:  May I ask another question of the panel now?

		JUDGE SOLOMON:  Sure.

		MS. TRAHAN:  Okay, thank you.  So a quarter million employers, you're
up here representing.  The question that I have next is California, any
of those employers do work in California?

		MR. HAMMOCK:  In our membership?

		MS. TRAHAN:  Yes.

		MR. HAMMOCK:  In the membership of the -- the members of the members
of the coalition?

		MS. TRAHAN:  The quarter million employers you are representing.

		MR. HAMMOCK:  I suspect that there are, yes.

		MS. TRAHAN:  And do you have any information as to their experience
with the California law on dust control?

		MR. HAMMOCK:  No.  It's interesting, though, there are some states
that have taken some other current approaches.  There is a lot of other
things out there.  We have not directly looked at that.  That's
something that we can think to do.  I will say this that one of the
things, and I say this not knowing for certain, but I will throw it out
there anyway, that some folks in our coalition who do roofing said that
there has been an exception for wet cutting for roofing out there
because of the hazards that exist with introducing water when you're up
on a roof. 

		And I would say that that's something that maybe OSHA should consider
as well.  I flag that not because I'm an expert in it, but I know that
is one source of feedback that we have gotten.

		MS. TRAHAN:  We actually have a roofer from California who is on our
panel.

		MR. HAMMOCK:  Oh, interesting.  That's great.  And you guys are
testifying tomorrow, right?

		MS. TRAHAN:  Yes, sir.

		MR. HAMMOCK:  Okay.  

		MS. TRAHAN:  The question, well, Ms. Vazquez, you are here
representing as a small employer, and I think it has been very helpful
to hear what you have to say.  Are there other small employers amongst
the quarter million employers that you are representing?

		MR. HAMMOCK:  Well, I would think most of them are.

		MS. TRAHAN:  Okay, thank you.  Actually, this is a question for you,
Ms. Vazquez.  You talk about your silica exposure control program and I
was wondering if that is a program that Holes, Incorporated, maintains
in writing?

		MS. VAZQUEZ:  Yes.  We have a silica policy.

		MS. TRAHAN:  Would you be willing to share that with the record so it
can be part of the rulemaking?

		MS. VAZQUEZ:  I can look into that.

		MS. TRAHAN:  Okay.  And, likewise, you've expressed that you have done
exposure monitoring for the tasks your workers perform.

		MS. VAZQUEZ:  Yes.

		MS. TRAHAN:  Can you share that exposure monitoring in whatever detail
you can with the rulemaking?  And just to inform the question, I think
it's really important that OSHA build what I hope is a great Table 1 on
really good data.  And I think that it sounds like you have some really
good data, and it would be helpful, I think, for the record to share it.

		MR. TURNER:  If I might real quick?  Kellie and I co-chair the silica
task force for the AGC, America's national health and safety committee,
and we actually have a form that is filled out by our member contractors
for their monitoring.  And so we have a database inside the AGC that we
are currently compiling. 

		MS. TRAHAN:  Wow, that's great.

		MR. TURNER:  It is nowhere near done, but that's what we are hoping to
do is get a well-informed Table 1 out there for all contractors.

		MS. TRAHAN:  So just to follow up on that, Mr. Turner, will you be
submitting that data to the record in this rulemaking?

		MR. TURNER:  It's AGC's data, so we would have to --

		MS. TRAHAN:  Will you ask AGC to submit that data?

		MR. TURNER:  I'd be more than happy to ask.

		MR. HAMMOCK:  And let me say, because I think you raise a great point,
which is the more data that OSHA has, the better.  When we met with OSHA
again, we made that and frankly the amount of time that we had available
to gather, look at, analyze, make it meaningful to everyone simply
wasn't there.  So we spent our time doing the best we can analyzing what
OSHA has done, preparing these comments.  We have presumably an extra 45
days to try to get additional data into the record.  We will do what we
can, but we did ask OSHA on numerous occasions for more time to enhance
that record, because you are absolutely right, the more data they have
the better.

		MS. TRAHAN:  And I would venture to suggest that they would take data
in any form you have it without it having to be shiny and polished.

		MR. HAMMOCK:  Right, well, true, that is true.  But one of the things
that we have learned is that simply having a data point that says this
particular exposure was at .05 milligrams doesn't do you any good if you
don't know what the exposure conditions were, what the control measures
that were being used, what the control measures that were not being
used, was it dry, what kind of -- what percentage of silica was in it,
otherwise, it's just a data point that provides very little value, in
our view.  So to get that information is another gargantuan task, in our
view.

		MS. TRAHAN:  Thank you.  And, Ms. Vazquez, when you plan a job, do
you typically plan for having engineering controls or wet methods in
place in your operations?

		MS. VAZQUEZ:  Yes.  Let me see how I can explain our work. 
Seventy-five percent of our work is called in over the phone, so I'll
get a phone call, I need two 8-inch holes drilled into a wall.  And then
the next day we'll go do it.  But my equipment, yes, has the engineering
controls on it.  We cut wet, so my equipment comes with the engineering
controls in it to cut wet.

		MS. TRAHAN:  Okay, thank you.  And, Mr. Turner, you mentioned safe
work plans.  What did you mean by that?  It's a term you used I think in
describing how contractors who you hire as the construction manager
perform their work, they follow their safe work plans.

		MR. TURNER:  It's just another terminology for a task hazard analysis,
job hazard analysis, something like that that identifies the risks and
how they are going to mitigate those risks on our projects.

		MS. TRAHAN:  So JHAs, task hazard, that's a routine part of the
business of the contractors you hire to do work?

		MR. TURNER:  Absolutely.

		MS. TRAHAN:  And how do you, as a construction manager or general
contractor, how do you ensure that the contractors or subcontractors
that you hire are arriving at the job site at the right time?

		MR. TURNER:  We put together --

		MS. TRAHAN:  Well, let me follow up that by my understanding is that
Hunt is an incredible company, and we believe that your job sites are
run very tightly.  So I was wondering if you could explain how you do
that.

		MR. TURNER:  Thank you.  We think we're a good company, too.  

		JUDGE SOLOMON:  That's called bolstering testimony.

		MS. TRAHAN:  I apologize, Your Honor.

		JUDGE SOLOMON:  Go ahead.

		MR. TURNER:  I haven't closed the deal yet; hold on.  We go through
quite a long process.  We have a subcontractor prequalification that
starts out just by going through our website so we can review a
contractor's ability to perform the work.  We have pre-bid meetings
which are regularly scheduled depending on the project and kind of the
phases of work that need to go through.  Our team, obviously, dissects
the project in the various phases.  

		We have a post-bid meeting with the contractor that may be awarded to
really dive into what they plan on doing on our project and how they are
going to meet the intended phases of work.  All that being said, there
is a master schedule that says mass excavation will happen for 60 days,
just to give an example, and each job as the project moves through, each
task as the project moves through is scheduled for an allotted amount of
time.  And that is so we can phase workflow.

		MS. TRAHAN:  That's interesting.  That's a lot of pre-job planning
that happens.  Now, once the job gets started, how do you monitor and
ensure that the overall project plan stays?  How does that continued
communication happen?

		MR. TURNER:  A lot of meetings.  

		MS. TRAHAN:  And amongst whom?

		MR. TURNER:  The project team which includes our professional staff
and those key individuals from all of our subcontractors.  And there's
daily observations performed by our staff and those people to make sure
they are achieving what they need to achieve in the way of whether it's
safety production, schedule, whatever.

		MS. TRAHAN:  So, for example, you've got a floor poured and you're
ready to put some holes through it, and so you know when Holes,
Incorporated is scheduled to come in and perhaps the Holes,
Incorporated, if you were to work on the same project, would -- you'd
know that she was coming in.

		MS. VAZQUEZ:  Do you know 100 percent of the time, the 100 percent of
people that are on your project, I think is what she's trying to ask.  I
would think that would be hard.

		MR. TURNER:  Well, first things first.  If everything goes according
to the project documents which have been engineered, and architect, and
all that other stuff, the appropriate holes are sleeved and left out. 
So when Kellie comes in --

		MS. VAZQUEZ:  We know why that happens.  It's called prevention
through design.

		MR. TURNER:  It could put you out of work.  So, yes, we know when
Kellie needs to come in, because that impacts the engineering on our
building and we need to ensure that we're not going to create a
structural issue with that.  So we absolutely know when something is
going to be altered on our buildings.

		JUDGE SOLOMON:  How much more do you have?

		MS. TRAHAN:  Well, I think I'll -- if there is time afterwards, I
might come back for a couple.  Thank you, Judge.  Thank you.

		JUDGE SOLOMON:  Next?

		MR. HAMMOCK:  Your Honor, while the next questioner is coming up, can
I just make, underscore a couple of things just for OSHA's
consideration?  One of the things that Kellie was saying was that 75
percent, I think you said, of her business is call-in, which is calling
up and saying I need you to cut a hole in this concrete wall of mine
tomorrow.  And what that means is despite the planning that she does,
she doesn't know necessarily what the silica percent, silica content is
of that or ever, doesn't know if there is going to be someone else right
next to her that's sandblasting.

		And all those affect whether, when she shows up at that job, she's got
to be below 50, because if a compliance officer also shows up, she's got
to be below that.  So the level that she needs to reach is much lower
than 50.

		The other thing that I would just underscore is the coordination that
Kevin spoke of, and I don't know, I have not focused on the economic
analysis, but what he was describing for certainly larger jobs is quite
extensive in terms of costs to do the kind of coordination that a Hunt
would do in that kind of situation, significant time from what I'm
hearing from you.

		MR. TURNER:  Yes.  We have full departments that do nothing but
schedule our projects and continue almost on a daily basis contact with
our projects to make sure everything is phased appropriately. 
Obviously, you can't put a ceiling in until you have the structure below
it, so everything goes in an orderly manner if we have our way.

		MS. VAZQUEZ:  And then if I can just reiterate that his schedule
is -- my work is a lot of time emergency based, therefore, it's like I
needed you yesterday, and so the holes that he's saying that should have
been sleeved that now need to be cored, they need us to get in there and
move in there as soon as possible to core those holes so they can run
their electrical, their plumbing, or whatever they're going to do, you
know, cutting the slab.  So there is not a lot of time for us to be able
to go in there and plan.  

		We go in with the same factor.  We look at the job and we have the
equipment to do our type of work and to protect our workers.  But
there's not a lot of time.  We can't spend a week planning a concrete
cutting job.  It can't be done.

		JUDGE SOLOMON:  State your name and spell your last name.

		MR. MATUGA:  Sure.  It's Robert Matuga, M-a-t-u-g-a.  I'm not sure,
Your Honor, if my name is actually on that list or not, but NAHB is who
I work for, the National Association of Home Builders.  We did request
time to speak, and we are going to speak I believe on April 2nd.  A
homebuilder from Kansas, Anthony Zimbelman, will be coming in to
testify.  And, unfortunately, he is in Kansas building homes right now,
so I am the representative.  And, hopefully, you will be allowing me to
ask --

		JUDGE SOLOMON:  Go ahead.

		MR. MATUGA:  -- questions.  Thank you.

		JUDGE SOLOMON:  Go ahead.

		MR. MATUGA:  This question is for Ms. Vazquez and Mr. Turner.  It
seems like you all have spent quite a bit of time reviewing I'm assuming
the Federal Register notice, probably in particular the actual rule,
proposed silica rule itself.  Can you guys give us a sense as to, and
the OSHA staff and the audience, how much time and effort you have
actually put in so far just taking a look at the silica proposed rule?

		MS. VAZQUEZ:  I've been looking -- oh, again, sorry.  I guess since
August of 2013, September, that first weekend that it came out, I went
to Kinko's and I made several copies of it, and I carried it around with
me everywhere.  And read it, read a big proportion of it that first
week, and have continued studying it and going through all the medical
studies, and the coming to D.C. often to have the meetings.  I would say
for the past five months, probably three out of the four weekends of
every month I've been working on it at my house.

		So a lot of time has been spent going through the documents.  And I
still have questions.  I still have questions on how it's going to work
and how Holes can comply, because I'm still very confused by some of the
aspects of the document, but I have spent a lot of time going through
it.

		MR. TURNER:  I actually asked for a code to bill this to, and they
wouldn't let me do that.  I have to commiserate with Kelly in the fact
that since the day this came out, I've spent time every week looking at
this.  I spent a lot of time speaking to IH folks, other folks that
we're associate members with, and how they plan on dealing with this.

		Obviously, luckily, safety isn't trademarked, and so my peers in the
industry and I get together from time to time, and basically we talk
about our best approach to handle whatever is coming down the pike and
whatever may be the hot topic.  And this is obviously a hot topic.  So
if I had to put an hour time frame to it, it would easily be hundreds of
hours. 

		MR. MATUGA:  Thank you.  As a follow-up to that, with the time that
you all have spent looking at this, do you have a good sense as to what
your compliance obligations would be under the proposed rule?  I know
that in your testimony you were talking about some of the difficulties
in understanding what the rule was actually saying, what it would
require.  Can you comment on what you believe whether or not you
actually have a good handle on how you would go about complying with
this?

		MS. VAZQUEZ:  I see for Holes, Incorporated to be able to comply, I
would think that we would have to continuous monitor.  So that would be
monitoring each one of my employees every single day for an eight-hour
time weighted average.  So I would think an industrial -- hiring an
industrial hygienist I would think the daily, for my 24 operators, doing
daily monitoring of their activities.  

		And then I would also have to hire additional manpower -- if
regulated areas or the written control plans were required, I would have
to hire additional manpower to go to the jobs ahead of time, look at the
jobs, see what needs to be done, see how the regulated areas, how work
with the general contractors or the subcontractors that we're working
for to see how they could be built or where they would be built.  

		I guess I see a lot of costs involved in enforcing it, but at the same
time I don't see any exposure less to my employees.  The equipment has
not changed.  My engineering controls are not changing, because I do cut
wet.  I do supply respirators when necessary.  So I don't see their
exposure changing, but I do see a lot of cost going out the door to set
up these other ancillary provisions.

		MR. HAMMOCK:  And I just want to add one thing, if I could.  I do
think that OSHA has recognized historically with this standard the need
to try to make the standard as simple as possible for construction
employers out there, particularly small construction employers.  And
that was one, I think, one of the driving forces behind Table 1. 

		I do think, though, as this is currently proposed, it is pretty
complicated.  And as I have been looking through some of the other
comments, I know I think one labor union who also commented, in the
construction industry, recommended a flowchart to try to make it easier
to understand. 

		I do think that those types of things would be welcome.  I think what
Kellie and Kevin reflect is however it turns out, it will take employers
a lot of time, and I guess this is a cost of compliance, a lot of time
to sit down with it, figure it out, and then ultimately implement it in
their facilities.  I don't know what the cost, the digit is for that,
but I would think it's going to be quite extensive given the
effectiveness in the construction industry.

		MS. VAZQUEZ:  I think the protective clothing in Houston, Texas, when
our summers are over 100 degrees, the heat stress factors of that, I
don't see how I can have my employees wear those.  And also trying to
convince my operators that respiratory protection will be necessary
every single day to comply with the PEL, I don't see them wanting to
wear respiratory protection every single day, either.  

		It's very cumbersome.  I do have two employees that are medically
unfit not to wear respirators.  Therefore, I don't know what I would
have to tell them.  And they are long-term employees.  So it's a lot
to -- if this were to go into effect, it would affect our company a lot
on how we do our day-to-day activities and the cost involved with
enforcing this and complying with it.

		MR. MATUGA:  This question is probably for Mr. Sessions.  Speaking of
small businesses, do you believe has there been enough consideration
given to the economic impact of small businesses that could be I guess
inadvertently blamed for exposures that occurred previously from another
employer?  

		As I think you stated in your testimony, there is a lot of turnover in
the construction industry.  Is this a concern that OSHA should take a
look at?

		MR. SESSIONS:  Boy, you're talking about sort of employer liability
and compensation, and that sort of thing for illnesses that may show up,
that may be due to previous exposures, previously under previous
employers.  But that's potentially a difficult issue.  And probably the
attorneys would have more to say about that that the economist.  The
economist would like not to have to deal with that question.

		MR. HAMMOCK:  I will also -- it's a good question.  I will also dodge
it.  But I think it is a good question.  It does underscore the
transient nature of the industry, and it is a significant consideration
that is there.  It is not something that OSHA has historically
considered or is probably required to consider in any way.  But it is a
real consideration for Holes and Hunt and the folks that will have to
deal with that.  It is a very, very real issue.

		MR. MATUGA:  Okay, thanks.  Sort of switching gears, Mr. Hammock, you
had mentioned in this session a little bit of sort of comparing and
contrasting the lead standard, the asbestos standard that OSHA has.  Can
you talk a little bit about the differences between what OSHA has
proposed here for the silica regulation versus the asbestos and lead
standard you sort of mentioned?  Can you expand on that just a little
bit?

		You mentioned that much of the asbestos abatement, much of the lead
abatement has become really specialized and that could be problematic
for silica because it is everywhere on construction sites.

		MR. HAMMOCK:  Yeah, I would.  You know, OSHA's historical perspective
on health standards has been something that has sort of been relatively
consistent over the last 40 years.  Their ancillary provisions have, for
the most part, been upheld by the courts of appeals.  And it is
certainly natural for them to want to continue that and they have had
success.

		I think as I said in the silica world, I think it's just quite
different.  It's an order of magnitude different.  And when I have
spoken with Kellie, and I'll also turn the microphone over to her, she
described it as the lead and asbestos, those were so contained, so small
now on construction sites for a number of reasons, the workers that do
that work are sort of very specialized.  And it's just a very different
thing.

		It does also bring an interesting analytical point that OSHA has made
in the preamble to the proposed rule which is also probably worth
discussing a little bit and that is OSHA has speculated that as this
rule becomes final, you will actually see the same type of
specialization happen in the construction industry.

		OSHA has looked at its past patterns with respect to lead and asbestos
and said, well, the number -- the percentage of workers that are
actually doing those tasks are shrinking because the industry is
reacting and becoming more specialized.  OSHA has suggested that the
same thing might occur here.  In other words, rather than having a
number of different folks exposed to a little bit of silica, you're
going to have fewer folks exposed to a lot of silica.  That would be
what they are suggesting could be a natural reaction.

		Whether or not that takes place with respect to silica, I'm not sure. 
But I do think for the Agency's consideration, it does have an impact on
how they are calculating costs and particular technological feasibility.
 And it gets back to the assumption that they make with respect to
whether in an un-sampled portion of a shift, there is going to be zero
or full exposure.  

		OSHA is saying on the one hand in the preamble that as this rule goes
final, more folks will be getting more silica exposure for longer
periods of time.  That should be something that they recognize in their
tech feas analysis and certainly their underlying assumption with
respect to an un-sampled portion of a shift in their underlying
analysis.

		I would like to get your perspective, though, Kellie, on the asbestos
and lead piece.

		MS. VAZQUEZ:  Yeah, I do agree that those portions of construction
have gotten smaller and they are more technical.  Asbestos and lead,
they are not the building blocks of construction like concrete is, or a
cement block, or brick or mortar.  So we're dealing with an element that
is the building blocks, or the buildings that we are cutting into, or
that we are building.  And it is everywhere.  And so due to that, it
affects a widespread of construction, not just a specialized part of it.

		JUDGE SOLOMON:  Okay.  Mr. Schneider has been waiting for quite some
time.

		MR. MATUGA:  Can I just ask one quick follow-up question to this?

		JUDGE SOLOMON:  No.  No, you can't.  What can I say?  You're an
interloper.  We may have time later on, but Mr. Schneider has been
standing there for some time, and we have to get back to the --

		MR. MATUGA:  If I can just also thank Mr. Turner, Ms. Vazquez.  I
recognize you all spent an awful lot of time and effort on this.  One of
NHB's members, Bob Masterson, was supposed to testify today, and
unfortunately his schedule couldn't make, you know, accommodate that. 
So I appreciate your time.

		MS. VAZQUEZ:  Thanks, Rob.

		JUDGE SOLOMON:  Okay.  It looks like there is somebody behind you,
too, Mr. Schneider.  There wasn't anybody there previously, so --

		MR. SCHNEIDER:  Okay, my name is --

		JUDGE SOLOMON:  It's 3:21, and we'd like to get some time for OSHA.

		MR. SCHNEIDER:  Yeah, of course.  Thank you.

		MR. HAMMOCK:  We're happy to give them their time, Your Honor.

		MR. SCHNEIDER:  My name is Scott Schneider with the Laborers' Health
and Safety Fund.  That's 

S-c-h-n-e-i-d-e-r.  And that's here in Washington, D.C.  So I have
questions for each of the panel members.  

		The first one I wanted to go to Mr. Hammock.  You said that most of
the operations, most of the time, it was not feasible to control.  Is
that based on your survey data, or is it based on a tally from Table 1
as to how many of those operations --

		MR. HAMMOCK:  It's not necessarily.  I would say, a little bit of
everything, okay, and I'll explain.  My -- our analysis of
technological feasibility is based upon our review of the PEA, looking
at 10 of the 12 tasks that OSHA did and the data that they relied upon. 
And based upon the time that we had and looking at their underlying
studies and data, we do not believe that they have been able to make
that finding.

		Now, there is, in my view, and I'm happy to hear differently from
OSHA, there is in my view some overlap between Table 1 and the tech feas
analysis.  And I think if you read the preamble description to Table 1,
they do reference some of the studies in the tech feas analysis to make
the decision about how to handle respiratory protection.  So I think
Table 1 can be used as some barometer as to whether the rule, in and of
itself, its technological feasibility.

		MR. SCHNEIDER:  Okay.  So you haven't like weighted that table by how
common those tasks are?  Because it could be that ones where you have to
use respirators are very uncommon tasks, I don't know.

		MR. HAMMOCK:  Yeah, that's a terrific point.  And our assessment is
not at this point based upon any weighting.  But I would also, and
you're absolutely right, we'll try to do something like that in the
post-hearing comments.  

		I would also encourage OSHA to the extent that is the case to also
take us through that analysis in the preamble, because you might be very
right, it may be that these tasks are so rare that it doesn't make any
difference from a tech feas perspective.  It's certainly not readily
apparent from my read of the tech feas analysis or the preamble that
OSHA has done that.  And, again, I might be wrong, but that's my take.

		MR. SCHNEIDER:  Okay.  You listed a number of tasks that you said that
OSHA should have considered.  And do you have any independent exposure
data on those tasks to show what the levels are and are you going to
submit that to the record?

		MR. HAMMOCK:  Yeah, I hope so.  As I said earlier to questioning, we
have asked folks for data.  We have gotten some data.  To the extent we
can get it together, submit it to the record on time, we will absolutely
try to do that.  From the very beginning, we have said to OSHA the more
time the better because getting this data together and making it
meaningful takes a long time.

		MR. SCHNEIDER:  I'm talking about specifically on those tasks that --

		MR. HAMMOCK:  No, I know, I know, yeah.  And the answer to your
question is, yes, we'll do whatever we can to submit that kind of
information to the record.

		MR. SCHNEIDER:  Okay.  Mr. Sessions, you mentioned in your testimony
that there are in many cases productivity benefits from use of controls.
 And like, for example, I know when Ms. Vazquez uses, you know, cuts
concrete, the saw blades wear out and that use of water can help prolong
the life of a saw blade.  Have you calculated any of the benefits of
controls?

		MR. SESSIONS:  No.  And I think OSHA's analysis appropriately
recognizes that there are sometimes productivity benefits of the sort
that you mentioned.  Also, for example, enclosed cabs for heavy
equipment have some benefits in terms of increased operator comfort and
functionality, as well as potentially some dis-benefits in terms of more
frequent need to check jammed HEPA filters and things like that.  But,
yes, conceptually, that's right, there can be productivity benefits, as
well as dis-benefits.

		MR. SCHNEIDER:  But you haven't considered those in your analysis?

		MR. SESSIONS:  We asked respondents to the survey to comment on OSHA's
estimates, positive or negative.  And, in fact, we got a few responses
to the effect that OSHA had missed some benefits that did exist with
control equipment, yes.  So our characterization of the survey responses
was on balance.  They thought that on the whole OSHA had underestimated
the productivity costs, and I cited a couple of dimensions in particular
in which there was consistent thematic observation in that direction.

		MR. HAMMOCK:  That's also something that we can look at, you know.  As
Stu mentioned, he's going to look to produce a final report.  I know I
sound like a broken record.  There is only so much stuff you can do in a
limited amount of time, particularly when it comes to generating data,
looking at data, and doing your own type of analysis.  There is only so
much time you have available.

		MR. SCHNEIDER:  Ms. Vazquez, I have a question.  You say that you cut
wet, but there are some times when you can't cut wet.  What do you do to
protect workers when you can't cut wet?

		MS. VAZQUEZ:  Well, I don't ever, sorry, I don't ever not cut wet.  So
we cut -- when we're cutting concrete, so wall sawing, slab sawing,
core drilling, we cut wet.

		MR. SCHNEIDER:  Okay.  Now, you had talked about your problems with
compliance with the proposal.  And it sounds like you have a lot of data
that you've collected under a variety of conditions.  And OSHA has a
provision for what's called historical monitoring data.  Are you
familiar with that?

		MS. VAZQUEZ:  No.  Explain it, please?

		MR. SCHNEIDER:  What they are saying basically is if you have data to
show that under certain conditions, you know, under certain tasks that
you know what your exposures are, then you don't have to do air
monitoring.

		MS. VAZQUEZ:  Okay.

		MR. SCHNEIDER:  I mean you had said that you expected under those
parameters, you'd have to do air monitoring every day, on every
employee.  But, in fact, you could use the data you've already collected
to try to avoid the requirement for air monitoring.  Right?

		MS. VAZQUEZ:  I guess I would have to re-read that section.  I don't
know if you want to identify the section that you're speaking on? 
Because it was my understanding that the testing had to be within a
12-month period.  And then if you did have an overexposure, then you had
to re-test within seven days and so on.  So that's my varied
recollection.  So if you have a section that you would like me to go
over, I'll write it down and I'll review it.

		MR. SCHNEIDER:  I don't have it in front of me, but you can look at it
and maybe in post-hearing comments submit something.

		Now, when you cut concrete, how do you protect bystanders from getting
exposed to silica?  I know obviously the operators are protected, etc.,
but how do you prevent bystanders from exposure?  I mean if there is
somebody else working nearby --

		MS. VAZQUEZ:  I guess it matters what we are doing, the tasks that we
are performing.  I believe there is a difference between a personal
exposure and an area exposure to silica, to respirable silica;
therefore, the personal exposure that my employee is getting is going to
be different than an area exposure that someone 10 or 20 feet away from
me --

		MR. SCHNEIDER:  Right.

		MS. VAZQUEZ:  -- will get, so it's going to depend on the job site,
the environment, the ventilation, the tasks that we are performing.  So
all that is taken in consideration.  

		MR. SCHNEIDER:  Okay.  But how, I mean how do you prevent other people
from getting into the area to potentially get exposed?  Maybe you don't,
I don't know.

		MS. VAZQUEZ:  Yeah, I -- well, I can't prevent anyone from coming
into the area.  It's not my job site.  So, you know, we work by
yourselves on jobs.  We work on multi-employer sites.  So I don't set up
areas in which no one can come into.

		MR. SCHNEIDER:  Maybe that's a question for Mr. Turner then.  How do
you prevent other people from getting potentially exposed as bystanders?

		MR. TURNER:  We rely on Kellie.  In all seriousness, we do rely on the
contractors to tell us what areas they need to work.  To a certain
extent, this is no different than steeler action; when you're swinging
steel in an area, you don't want other people exposed.

		MR. SCHNEIDER:  Right.

		MR. TURNER:  And so we rely on the contractors creating the hazard to
identify their work areas for us.

		MR. SCHNEIDER:  And then what do you do to -- do you mark those off
in any way, or warn people, or let people know, hey, we're cutting
concrete in this area, you shouldn't be in this area?

		MR. TURNER:  Right, that's actually in a coordination meeting, believe
it, it's called the -- we identify that, and if the contractor feels
that people are encroaching, they have the power to put up caution tape,
danger tape, whatever they feel fit to keep their areas free from
personnel and objects, and so on.

		MR. SCHNEIDER:  Okay.  

		MS. VAZQUEZ:  But I will tell you that my experience on the job site
is that our equipment is loud and, therefore, no one really wants to get
next to us when we are cutting concrete.  So I don't feel there is a
need to set up, you know, unless there is a more immediate hazard, for
example, like if we're coring floor to floor and dropping and catching
the cores, or different aspects like that.  But saw cutting or, you
know, something else, due to the noise that our equipment makes, people
tend to stay away from us on the job.

		And, also, I also believe that area exposure, just because sometime
working 10 feet away from us doing something, he's not going to be
exposed to the level if you're right up on the machine.

		MR. HAMMOCK:  One of the things we have recommended, too, and I'm not
trying to take your questioning period, but some of this speaks to and I
think good questions related to regulated areas, how you -- how things
actually work.  And one of the things the coalition has talked about is
the effectiveness of communication and training, accomplishing the same
types of things in a regulated area.

		MR. SCHNEIDER:  Very well, that's all.  Thank you.  Maybe when OSHA
starts working on a noise standard for construction, we'll meet again.

		MR. HAMMOCK:  The Construction Industry Safety Coalition will be
there, too.

		MR. SCHNEIDER:  Okay, great.  Great, I can't wait.  So, Kellie, you
had mentioned in the notes that they were ambiguous and vague, and like
for example they say when the blade is excessively worn, you should
change it.  When do you change blades?  How do you make that
determination?

		MS. VAZQUEZ:  I've never heard that -- I was really surprised to see
that in silica standard, the excessively worn blade.  We actually, in
Houston, Texas, have the hardest concrete in the world.  And we do. 
There is only one bridge in London that has harder concrete than us, and
that's just one bridge.  And we're just, you know, the whole Houston. 
So we actually look at our blades often throughout the day, checking the
blade to see if there are cracks in the blade, to see, you know, look at
the segments of our blades, the diamonds, because our blades get changed
out throughout the day.  That's how often we look at them and that's how
often we change them.  A 20-inch blade, you know, we could use it one
day; we're turning it in at the end of the day and getting another one. 
So we actually have this, but it's for different reasons other than
silica monitoring or silica exposure.

		MR. SCHNEIDER:  Okay, well, thank you.  I know you have long-term
employees.  You really are very protective of them in terms of their
health.  Do you provide medical exams for your employees?

		MS. VAZQUEZ:  Yes, well, we do.  When someone is hired on, they will
get a physical and then they will also get like, for example, a DOT
physical, Department of Transportation physical, and then they also go
through a function test to make sure that, you know, our equipment is
cumbersome and make sure they are able to lift it and everything.  So
they will do that.

		And then like for a DOT physical, it can either be for one year or for
two years, and then so they'll re-up that whenever it expires and keep
that going.  But we do not do medical surveillance in the views like of
chest x-rays or anything like that.

		MR. SCHNEIDER:  Okay.  So you do PFT tests, but not x-ray tests.

		MS. VAZQUEZ:  Yes, we do pulmonary function tests.  We do a pulmonary
function test and fit testing.

		MR. SCHNEIDER:  But not x-rays.

		MS. VAZQUEZ:  No x-rays.

		MR. SCHNEIDER:  Okay.  Now, I mean I know you're a small business and
you are doing a lot of the stuff that the standard already requires, it
seems, but I guess your business is still profitable?

		MS. VAZQUEZ:  Yes, we are profitable.

		MR. SCHNEIDER:  Okay, good.  I had one -- I think I had one more
question.

		JUDGE SOLOMON:  How much more do you have, Mr. Schneider?

		MR. SCHNEIDER:  I'll let --

		MS. VAZQUEZ:  But if I could just say one thing?  I'm doing this under
the current PEL, under the current standard from the 1970s.  I don't
need a new standard to do this.

		MR. SCHNEIDER:  Right, okay, that's what I was going to ask you. 
Thank you for reminding me.  Okay.  So based on your exposure data,
you're keeping exposures below 100, right?

		MS. VAZQUEZ:  Yes, in most of our operations, yes.

		MR. SCHNEIDER:  Okay.  And Mr. Hammock had said earlier that
exposures have to be kept below 50 to make sure you're always below 100.
 I that --

		MS. VAZQUEZ:  Or at 50, yes.

		MR. SCHNEIDER:  At 50.  So is your goal to keep exposures below 50? 
Is that what your goal is?

		MS. VAZQUEZ:  No.  My goal is to keep our exposures under the PEL, but
it's not always achievable.  And so how I've always been taught is that
you have your PEL and then you have the REL, the recommended, and you
want to keep your exposures in between there so you have a cushion, just
in case there are environmental factors or weather factors or job site
factors or secondary tertiary exposures, you have a cushion that your
employees can work in. 

		Now, if it were to go down to the REL and the REL be the new PEL,
there is no cushion.  It would be very difficult to stay at .025, at 25,
and to have it down there, to have a cushion.  It would be very, very
difficult.  And that's when the continuous respiratory protection would
be required.

		MR. SCHNEIDER:  So when do you put your employees in respirators, if
they find an exposure of 100?

		MS. VAZQUEZ:  Yes.

		MR. SCHNEIDER:  Okay, okay.

		JUDGE SOLOMON:  Okay, thank you.

		MR. SCHNEIDER:  Thank you very much.

		MR. GILLEN:  Good afternoon.  I'm Matt Gillen with NIOSH and I just
had a couple of questions.

		JUDGE SOLOMON:  Spell your last name, please.

		MR. GILLEN:  My last name is spelled G-i-l-l-e-n.  I have a question
for Mr. Sessions.  I wanted to ask you, you used a hypothetical example
several times in your testimony and it, as I recall, involved a plumber
or a carpenter needing to drill like a single hole in a day and needed
to bring along controls with him to use according to Table 1.  And your
point was related to the economic costs there.

		So I wanted to ask you if you take that same hypothetical case of
drilling one hole in a day, but this time the employer has knowledge of
objective data under OSHA's proposed rule and which meets OSHA's
definition of objective data, which shows that the permissible exposure
limit or even the action level is only exceeded when you drill more than
five holes in a day.  In that case, the employer would have no
compliance obligation to bring along the controls; isn't that correct?

		MR. SESSIONS:  If the objective data were sufficiently definitive to
show that, yes.  My view is, though, that many employers, for many, many
work situations will not have much of an idea how many holes their
employee is going to drill the next day.  The duration of time
performing the task can vary by more than two orders of magnitude. 
Other factors that affect exposure can similarly vary by an order of
magnitude or more, such as the silica content of the material you are
working with, whether you're in an enclosed space in which there is no
air circulation, or whether you are getting dispersion.  And the net
result is that one has very little idea in advance when an employee --
(a) whether the employee is going to be doing much of the task and, (b)
whether if he does it, he will in fact be exposed above or below the
proposed PEL.

		MR. GILLEN:  It was your hypothetical.  So I was just, you know, using
it.  So is it your position that the variation is random?  Because I
think as an industrial hygienist, we would say that it's not random.

		MR. SESSIONS:  No, it's not random.  Actually, and maybe I'm going to
wander off the reservation a little bit here, but --

		MR. HAMMOCK:  That's what I love about you, Stu.

		MR. SESSIONS:  Yeah, well, okay.  I think the idea of characterizing
an employee's exposure with a single or a few samples is not sensible
for the construction industry.  The variation can be so great and so
unpredictable that virtually any employee has some possibility, some
likelihood of, in fact, being exposed above the proposed PEL on some day
during the year when he's proposing the task.

		Joe Plumber, I bet, on a day a year will be exposed above 50.  And I
think that the answer to this is some, you know, with my policy hat on,
the answer would be some very extensive objective data studies, if you
will, that puts together all the sources of variation and determine the
circumstances under which one is fairly likely to be exposed above the
PEL and circumstances under which one isn't, and have that set of
studies and conduct consistent with that set of studies be the basis for
the standard, as opposed to exposure monitoring which single exposure
samples, in my view, are close to meaningless.

		MR. HAMMOCK:  And can I also just have or to get it away from the pile
of wherever we are into the more real life, maybe have Kellie address
that question, because, again, I think it is a very good one.  Are you
going to go in and you're doing to drill five holes, or you're going to
drill seven holes, or you're going to drill nine holes, or you're going
to drill two holes, or you're going to drill 200 holes on any day, and I
wanted you to address that because you get the call today, let's say you
pick up the phone and someone says come to my site and drill, I want you
to drill four holes.  Is it could you show up and drill 200 holes?

		MS. VAZQUEZ:  Yes, that happens often.  I work in the dispatching
office, and so we'll get called out for, like I said, two 8-inch holes,
and we get there, and there will end up being sixteen 2-inch holes,
three 8-inch holes, and so, yes the jobs vary.  But one thing about like
the engineering controls that you were mentioning, those don't come off
the equipment.  We don't -- my company doesn't, the engineering
controls are incorporated within the equipment, and so they are used on
the job site that we take the equipment on.

		But our jobs do, you get called out for one hole, you end you doing
three.  And my operator will call in and say, hey, instead of 8 holes,
they have 16, you know, what do you want me to do?  I'm like get them
done.  I'll call your next job and tell them you'll be a little bit
late.  But it does happen very often.  Or he'll be on that same job site
and another contractor has holes, and so then you finish one job and you
move over to the next job.  So that's another factor that we run into
all the time.

		MR. GILLEN:  I appreciate that.  Although I do think that an
industrial hygienist would be able to extrapolate if you have
information on how much exposures are associated with drilling holes and
then you have the number of holes, you can make some reasonable
estimations there on exposure.

		MR. HAMMOCK:  I think you can.  Let me just say, you know, maybe there
is hygienists that can do some trending and do some extrapolation and
figure that out.  If I were representing and putting on my lawyer hat,
if I were representing Kellie in any particular case, I would say I
don't care what type of objective data you have or historical data you
have.  The reality is if you go in that building and OSHA also happens
to be there, you better have yourself underneath the PEL.  I don't care
what you have done.

		MR. GILLEN:  Don't you agree, though, that given the cost issues that
employers will have an economic incentive to use, to seek out objective
data?  For example, your coalition could provide data to small employers
that they could actually use to meet their obligations; isn't that true?

		MR. HAMMOCK:  Do you want to go first?

		MS. VAZQUEZ:  Well, I'll just say, you know, we've done testing. 
Holes, Incorporated, has done testing for years.  But I don't know many
others in my industry that performs testing.  It's not very common.  But
we do share our data with our industry.  And then the few contractors
within our industry, you know, we all share our data.  We all share
experiences.  And we use our conventions and our quarterly meetings that
we have with the CISC to talk and to share our knowledge.  But I do
believe that very few contractors currently perform silica monitoring,
not just cutting contractors, but contractors in general.

		MR. HAMMOCK:  And you're right.  Obviously, I mean once the rule
becomes final as proposed, I mean there will be rich sources of data.  I
mean there is always going to be -- people are always going to look to
share data.  Certainly, coalition members will.  And all that, sure, all
that is very helpful.  But it's only in our view helpful to a certain
degree, because you can have great objective data that says when you're
jackhammering using a wet method on a dry day, you're probably at 40,
right?  That's what this tells you.

		Okay.  Well, then you show up to work and you're jackhammering right
next to another contractor, and all of a sudden that objective data is
not nearly as meaningful as it would have been.

		Now, you are right, you can then have exposure, objective data
presumably with the jackhammer op, so you have two jackhammer operators
and you can distribute that.  But then you are faced with the question,
well, what if there is a sandblaster down the road.  And you say, okay,
so then you can create objective data for that.  

		But it's almost an endless series of objective data.  And if you're a
prudent employer, it would be very difficult to rely on that in terms of
setting out your business and overall compliance.

		MR. GILLEN:  Again, it's not the purpose of this to have a dialogue,
so I think I disagree on the predictability of it.

		MR. HAMMOCK:  Understood.

		MR. GILLEN:  I'll just finish by just a good natured tease to
Mr. Sessions saying on behalf of industrial hygienists who feel like we
have a lot of information in the docket about variability, we'd love to
see more on the cost and economic, because that seems like where there
isn't much data in the record.  So right back atcha on the variability. 
So thank you.

		MR. TURNER:  Hey, Matt, before you go, over the years I've gotten to
work a lot with you, and I understand you are retiring next week.  I
want to thank you for your professionalism, years of experience, and
helping us.

		JUDGE SOLOMON:  Okay, that's more bolstering.  State your name.

		MR. THURMAN:  I'm Sean Thurman, 

T-h-u-r-m-a-n.  I'm with Associated Builders and Contractors, and I just
have one short question directed to Ms. Vazquez.  You indicated in your
written testimony that you were involved in development of the ASTM
standard.  And as a contractor, I was just hoping to get a few brief
points from you regarding the differences between the ASTM standard and
what OSHA is currently proposing.

		MS. VAZQUEZ:  Okay.  During the -- sorry, on the ASTM standard, when
I worked on this guidance document, that's what I always saw it as.  I
saw it as a very good guidance document that contractors could use to
help build their silica programs and help guide their employers --
employers help guide their employees on protecting themselves.  So I
think that's the first difference is that it's a guidance document and
not something that someone can be cited under.

		Also, medical surveillance in that document, medical surveillance is
required after 120 days of exposure over the PEL.  And this was debated
greatly during the discussions on the ASTM document, because if you're
in respiratory protection, you're not really exposed over the PEL.  But
we discussed that it needed -- that it was needed to make sure that
that respiratory protection was working, therefore, there was a great
debate between 120 days and 180 days, and 90 days, and so we agreed to
make it 120, thinking, you know, a 1/4 of the year and everything, but
we didn't think it needed to be less than 90 days.

		We thought that having it less than 90 days, it would put too much
pressure on the employer, and it would be too much of a cost due to the
transient nature of employment within the construction industry.

		Also, the table that was created, it was based on like a task-based
approach.  And the task was there, the engineering controls were there,
and the respiratory protection if necessary was there.  And so it was
very easy to use.  And the tasks were actually tasks that the silica
task force had come up with and that we had data for.

		So those are -- oh, one other one, one other difference was I think a
90-minute, if you were cutting less than 90 minutes, then -- there is a
90-minute section in there that if you're cutting under 90 minutes, the
medical survey lens or the different types of engineering controls are
not necessary.  So those were the big differences I see between this one
and the OSHA doc.

		MR. GILLEN:  Thank you.  Thank you, Your Honor.

		JUDGE SOLOMON:  Ms. Ryder, how much time will OSHA need?

		MS. RYDER:  I think a lot, 45 minutes to an hour, think.  Okay.  State
your name, please.

		MR. CHANEY:  My name is Pete Chaney, last name is C-h-a-n-e-y.  

		JUDGE SOLOMON:  And who do you represent?

		MR. CHANEY:  The Mechanical Contractors Association of America.

		JUDGE SOLOMON:  Go ahead.

		MR. CHANEY:  Thank you.  Mr. Turner, does Hunt Construction
perform -- do you have your own employees at the job site, or are you
more of a construction manager, or a little bit of both?

		MR. TURNER:  We don't employ trades is how we term is, so we are not
performing the work.  Yes, we're construction managers, professionals
such as engineers, project managers, coordinators.

		MR. CHANEY:  Okay, thanks.  So this question is more for Ms. Vazquez
then.  How often do you find yourself working while you are generating
silica where there are other contractors on the site who are also
performing silica-generating operations?  Is that a frequent occurrence
for you all?

		MS. VAZQUEZ:  Yes, it is.  It does happen often.  There are some times
that we will be called out to a job and there will be, you know, we're
always working for somebody, so there is always a second contractor
there.  But most of the time, it is a multi-employer site with several
different trades.

		MR. CHANEY:  Okay.  So with regard to your business, most of your jobs
are multi-employer worksites, or what percentage would you say?

		MS. VAZQUEZ:  Oh, I would almost say I would want -- I would say 90
percent.

		MR. CHANEY:  All right, great.  Thank you.  This question is for both
of you also.  This is the last question I have.  There has been a lot of
discussion about how the environmental conditions can affect exposure
out there.  Have you seen how wind, for example, can actually increase
exposures on your job sites?

		MS. VAZQUEZ:  I've never accounted for, like never had testing done to
look at wind effects, but our training does state that when feasible to
stand upwind from the silica-generating activity.  So we do train to
stay upwind from it.  We do try to position ourselves to stay that way
and just to keep it away from us.

		MR. CHANEY:  Mr. Turner?

		MR. TURNER:  I actually have a great example of this.  Brad alluded to
the large project we had in Florida a few years ago.  We had 40-some-
odd acres, it was a resort with a golf course, and basically all the
topsoil had been stripped.  We had contractors on the outside of the
building doing some grinding, and a wonderful drive-by happened.  And
OSHA's industrial hygienist showed up at the gate and said we'd like to
run a few samples.  We obviously encouraged them to come on and put them
through our safety training --

		UNIDENTIFIED SPEAKER:  Who's your lawyer?

		MR. TURNER:  Yeah.  We actually go out of our way to establish
partnerships as much as we possibly can, and we're involved in the BPP
program, so I hate to say this, but OSHA doesn't scare us. 

		In any case, the samples were run.  And believe it or not, the ambient
samples came up loaded with more silica than the personal samples did. 
A lot of that had to do with just the wind and the area, because we had
stripped the area and were essentially working on a beach.

		MR. CHANEY:  That's not surprising.  Okay, thanks very much, I
appreciate it.

		JUDGE SOLOMON:  Okay.  We're going to break at 4:00, so you have about
seven minutes.  Come forward.

		MR. CREASAP:  Thank you, Your Honor.  Good afternoon.  My name is
Wayne Creasap.  I'm the Director of Safety and Health with the
Association of Union Constructors.  The last name is spelled
C-r-e-a-s-a-p.  And my question is for Mr. Turner, just a real quick
follow-up.  There was a lot of discussion on wet methods.  And I'm just
wondering with your experience all over the country, if you've had
situations that have come up where you have not been able to cut wet or
other quality concerns or other issues that have come up in working for
different customers.

		MR. TURNER:  All of the above.  I'm sure you were part of the winter
we just went through or are coming out of according to the calendar. 
Minus 10, static temperature with minus 40 wind chills isn't conducive
to putting water or other fluids on the job site.  Beyond that, we do
run into a lot of high end finishes, four and five star hotels, even
government buildings, believe it or not, where the architects prefer we
not wet cut because they don't want water standing on their materials
that they are finishing out.  And that could be everything from
countertops to cornerstone of the buildings.

		MR. CREASAP:  Any issues with mold or anything like that that have
come up?

		MR. TURNER:  Yes, that's an additional issue.  Luckily, not with
Kellie's group.  We do have some core drilling that happens, and if it
happens to be in an established area where we already have sheetrock
hung, we have to use extra diligence.  Sometimes we even just remove the
sheetrock to prevent the mold from growing.

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

		JUDGE SOLOMON:  Thank you.  We're going to take five minutes, and then
at 4:00, we'll begin with the OSHA questioning.  Let's go off the
record.

		(Off the record at 3:55 p.m.)

		(On the record.)

		JUDGE SOLOMON:  Okay, let's go back on the record.  Ms. Ryder?

		MS. RYDER:  Yes, OSHA has some questions.  I'll turn it over to David.

		MR. O'CONNOR:  Thank you.  In the coalition's written comments, you
express some pretty extensive concerns about the exposure assessment
provisions that we proposed, some of which were touched on in the
testimony today.  And in particular you are pointing to a number of
factors that affect exposures, including different levels of exposure
depending on the location of the project, materials used, and the silica
content of said materials; whether the activities are performed indoors
or outdoors; whether the activities are performed during summer, winter,
or on a rainy day; whether the wind is blowing and in what direction;
and whether the employees are working on a multi-employer worksite.  

		It seems that those are the challenges that the industry is faced with
right now in assessing exposures.  And I was just wondering how do you
approach that now?  How does the industry typically assess exposures
now?

		MR. HAMMOCK:  Let me first say a couple of things, and then I think it
would be good to hear from Kellie, in particular, given the way that she
has done exposure monitoring.  I think that clearly we know now that
there is a permissible exposure limit and, for example, companies like
Kellie and many other companies are assessing to the extent they can
their compliance with those PELs, and they do factor in some of those
conditions.

		I think one of the interesting things is and from my perspective at
least talking to folks who will be affected by this is the reduction in
the PEL from a feasibility standpoint is at such a level where those
types -- that type of variability is much more significant from an
overall compliance standpoint.  So as Kellie was saying, you know, she
right now -- let's say she is targeting, this isn't even the PEL, this
is for general industry, she's targeting 100.  She is giving herself a
cushion with the NIOSH REL, but that cushion absolutely goes away.

		So when you are trying to monitor and make sure you're in compliance,
all those variables are much more meaningful with the reduced PEL.  It's
purely from a technological feasibility standpoint.  And I would get
back to what NIOSH said in response to one of my questions, and that is
the prudent employer has got to be factoring in a much lower exposure
because of that variability.  

		I would just say that to preface, but I'd welcome Kellie's perspective
on what you currently do to factor in some of those considerations and
those variables.

		MS. VAZQUEZ:  Well, it all comes down to our employee training.  And
when we do the employee training, we do discuss with them worksite
conditions and we do talk to them about secondary and tertiary
exposures, other people on site, what they are doing next to them. 
They're required to do a JHA every time they show up on site, so they're
supposed to identify all the hazards and then identify ways to mitigate
those hazards.  That's part of their daily routine.  And silica is one
of the hazards that we deal with on every single job we go to.  

		So our exposure monitoring, we give them the bases on what they need
to do to protect themselves for each task that they go to do.  We give
them the equipment, engineering controls, training, and then respiratory
protection when necessary to stay below the PEL.  But all that plays
into the factor.  If their job is inside, if it's outside, who is
working next to them, all that plays in the factor, and it plays in that
cushion that we work with to stay below the PEL.

		MR. HAMMOCK:  Let me also say, obviously, one significant difference
with this proposed rule, if it were to go final, is you are tying civil
penalties and citations with specific exposure monitoring provisions,
whereas under the current system exposure monitoring is used as a tool
to understand where you are vis-à-vis the permissible exposure limit,
but in and of itself does not necessarily drive a particular citation or
notification penalty.

		MR. O'CONNOR:  Ms. Vazquez, you indicated that in some circumstances
you receive a call and your workers are sent out to a job site, and
really find out when they are at the job site what the conditions are
going to be.

		MS. VAZQUEZ:  Yes.

		MR. O'CONNOR:  How do you approach that when you are determining
whether respiratory protection is necessary and what type of respiratory
protection would be necessary?  How do you assess exposures in that
situation?

		MS. VAZQUEZ:  Well, I don't.  It would be my operator's
responsibility.  And they have -- they'll have respirators on their
truck to use when necessary.

		MR. O'CONNOR:  And how do they decide when it's necessary?  Is there
some criteria that they apply to --

		MS. VAZQUEZ:  Yes.  We use a task-based approach.  So for example,
I'll just, you know, slab sawing, if they're going to be slab sawing
inside of a building, for example, so with an electric saw, we tell them
what PPE is necessary, including respiratory protection.  

		MR. O'CONNOR:  Okay, thank you.  With regard to respiratory
protection, the coalition has some written comments that indicate that
for short duration tasks that are performed intermittently on a job
site, OSHA may wish to consider placing respiratory protection at the
same level as engineering and work practice controls with respect to the
hierarchy of controls.  

		I was just wondering if you could clarify that.  I'm assuming because
we're talking about respiratory protection that we're talking about
situations where the exposure would exceed the eight-hour TWA PEL.  If
that's correct, are you referring to short duration tasks meaning a few
days of exposure above the PEL?

		MR. HAMMOCK:  I'll go ahead and take that.  You know I don't know the
answer to your question, to tell you the truth, because I think it is
complicated.  From what we are told from the folks that we have talked
to, the contractors that we have talked to is that there are very short
duration tasks and likely just sort of focused on the day to day, as
opposed to a multiple stretch of days, and maybe that's the best answer
to your question, where it may be as effective to simply use a
respirator for that period of time.

		The difficult is, though, and I think it's a difficulty for OSHA, is
that we are trying to balance what we believe is generally an employee
dislike for respiratory protection, which is one of the fundamental
underpinnings of the hierarchy of controls.  So it's a very difficult
thing.  

		We think it's worthy of consideration.  We understand OSHA would be
reluctant to deviate from the hierarchy of controls, but it's something
to think about.

		MR. O'CONNOR:  Thank you.  The coalition also indicates that medical
surveillance is impractical in the construction industry as it relates
to crystalline silica for a number of reasons that you lay out in your
written comments.  And I know there has been some discussion earlier of
how other standards compare to crystalline silica, our existing
standards, for example, for lead or chromium that have medical
surveillance provisions.  Is this something where it's simply a matter
of the number of employees who are affected that makes it impractical
from your perspective?

		MR. HAMMOCK:  Certainly, we believe the number of employees that would
be affected is much greater than is the case with other health
standards.  I think there are some others concerns, though, that we have
with respect to medical surveillance, with respect to silica, that maybe
doesn't exist with those other agents.  

		And let me give one example of that.  What you're talking about with
silica is a long-term disease outcome, for the most part.  It is not a
short-term disease outcome.  And you are having a number of -- you're
having presumably a significant degree of surveillance, which we
understand why OSHA would want to do that.  But we believe there is
going to be a great reluctance by employees to participate in that
surveillance because this really gets to the fundamental aspect of their
job.  

		This is not something where, for example, with lead exposure, you
could be taken out of exposure for a short amount of time, the lead
might go through your system.  I mean this is something that, we think
that there are significant concerns about how employees will approach
this for fear of essentially being blackballed or losing their jobs. 

		I mean this is a -- silica is so pervasive in construction, it is
everywhere, that it just doesn't fit neatly into those other health
standards in our view.

		MR. O'CONNOR:  Thanks.  That leads nicely into my next question.  You
mentioned a fear that employees might have of being blackballed.  Some
other participants in this proceeding have mentioned concerns about
that.

		And in your written comments, you indicate that the coalition
understands the overall need for a written opinion to be provided with
regard to the written medical opinion and that OSHA has historically
included this requirement in its health standards, although it,
referring to the coalition, questions the employer's role in providing
such information to an employee.

		And I was just wondering from the coalition's perspective did you see
any value in the employer being involved in that transmission of
information, or is this something that you don't see any value in?

		MR. HAMMOCK:  Just let me make sure I understand, the transmission of
the information from the HCP to the employer?

		MR. O'CONNOR:  Yes, in the traditional scenario such as we proposed
where the employer would see that the healthcare provider was offering a
medical exam to the employee, would receive a written medical opinion,
and would transmit that information to the employee.

		MR. HAMMOCK:  Right.  You know, I mean I think is there a value, I
mean, certainly.  Part of it just depends on the overall context.  I
mean, look, if you've got a regulatory environment and OSHA is going to
be holding folks accountable for making decisions, not employment
decisions, but placement decisions or whatnot based upon exposure and
health outcomes that are determined from surveillance, well, absolutely
there is value in that.

		If it becomes a situation where the purpose of the surveillance is
simply to educate the employee on what their health situation is, then
there is arguably very little value.  

		Now, you can question whether that is an appropriate role for OSHA in
that situation or is OSHA stepping over into a comp situation.  But if
the outcome is going to be similar to the way OSHA has done other health
standards, where there is an expectation that the employer will make
some move to the employee to get them out of a silica-based exposure
situation, then I think you could certainly argue that there is some
value to it.

		MR. O'CONNOR:  Thank you.  You also, during the discussion here,
alluded to high rates of noncompliance with the current standards, which
is something that a number of other participants in this proceeding have
mentioned.  And I was just wondering if you had any sense as to why that
would be, to the extent that there is noncompliance with the current
PELs in construction, why are employers not complying?  Is it a matter
of them not understanding that there are overexposures occurring?  Is it
an inability to control the exposures or other factors?

		MR. HAMMOCK:  Yeah, I mean that's a great -- I think that's an
excellent question.  And I'd like to, first, I'm curious as to what
Kellie and Kevin's perspective might be on that.  I mean we talked about
they are sort of leaders in this area.  I don't know to what extent they
have, in their conversations, can weigh in on that.  I'm interested.

		MS. VAZQUEZ:  Go ahead.

		MR. HAMMOCK:  Let's start with Kevin.

		MR. TURNER:  From my experience, it's just a -- I don't even know if
it's a misunderstanding, it's just lack of knowledge.  Because of the
size of our projects, a lot of them are public-private partnerships,
P3's.  We're required to work with smaller businesses, various entities.
 A lot of those are literally a few folks and a pickup truck, and their
knowledge of OSHA is minimal.  Quite frankly, they're lucky to make 30
to 45 days payroll, so a $1,000 HEPA vacuum means 1 or 2 people, 2
weeks' worth of work.  

		We spend a ton of time mentoring, partnering with these folks and
bringing them up to the standards, quite frankly, on our job sites.  We
offer routinely 10- and 30-hour trainings.  But, really, the big factor
for us is sitting down in what we call a pre-construction meeting with
this contractor that's been awarded a piece of our project, and walking
through with them their hazards and risks and how they are going to
mitigate those.

		This is one of those things that typically it's just dust.  Silica is
not seen typically.  You don't taste it.  It doesn't have an odor.  So
in their minds, it doesn't exist; it's not an issue.  It's not like
falling 30 stories.  So, first, we have to get people beyond the
physical hazards and then we work the through the health hazards.  And
it really is a handholding. 

		MR. HAMMOCK:  And one of the things I think that is out there, I mean
I think there has been some historical confusion within the construction
industry as to exactly what the PEL is in construction.  I mean I think,
you know, even when the proposal comes out and everyone says, oh, the
PEL in construction is actually 250 µg, well, a lot of people who have
been operating construction have been thinking it's 100 µg all this
time.  So I think there is some historical confusion as well with
respect to construction about what their underlying obligations are.  Do
you have anything else to add to that, Kellie?

		MS. VAZQUEZ:  No, I concur with what Kevin just said.  I think it is a
lack of knowledge.  I do think people think it is just dust.  I was
recently doing some safety audits, going out and seeing my employees,
and we were working in a residence.  And as we were driving by a
different residence, I saw two guys polishing inside of a garage dry,
and they just had handkerchiefs wrapped around their face.  I stopped
and took a picture.

		I was like this is the problem.  It's not those of us that are working
under the current PEL and doing what we're supposed to be doing.  My
belief is the disease happens there, the disease happens inside that
garage, that constant overexposure.  How do we stop that?  

		And I believe the special emphasis program from a few years ago, I
believe that that helped many of us move past and become more educated,
and I do believe doing that in the future and getting out more
information to our contracting, you know, our trade associations and
sharing that information will help promote the education of other
contractors.

		MR. HAMMOCK:  Boy, does the -- I mean a big question, analytical, I
guess, you know, sort of a theoretical question is when this final rule
comes out, is that more effective at reaching that example that Kellie
just did.  You know there is a smart person at OSHA by the name of Bob
Burt who told me once that one of the most effective techniques OSHA has
to further compliance is to issue a proposed rule, not necessarily a
final rule.  So I believe everything Bob Burt says.

		MS. VAZQUEZ:  And can I say something on the medical surveillance?  

		MR. O'CONNOR:  Sure, yeah.

		MS. VAZQUEZ:  Do you mind?  One of my issues with medical surveillance
is what I have learned is that the average age of onset of silicosis is
around like 55 years old.  And so I believe it would be many chest
x-rays and chest x-rays of nothing going on if anything ever happens. 
And then also with the B reader issue, in Houston, Texas, you know, the
fourth largest city in the United States, we have five B readers, five. 
How is that going to be sufficient if this rule were to go into effect? 
And so those are two of my issues with medical surveillance.

		MR. O'CONNOR:  Thank you.  I'll turn it over to Joe Coble. 

		DR. COBLE:  Hello.  I'm interested in Table 1.  I think we've --
does this represent an innovative approach, and I think there is a
genuine desire to make this work.  And one of your statements was Table
1 is unworkable.  And I presume that's due to the notes, since those are
what we more or less heard about today.  So what recommendations could
you make regarding how would you assess the effectiveness of the
controls, because the notes essentially give guidance on how you tell
whether those controls are working or not.  That's the main reason for
them being there.

		How is it currently done?  When you go out there and look, how do you
tell whether or not your piece of equipment is operating the way you
think it is supposed to be operating?

		MR. HAMMOCK:  You know, I'm going to first turn that to Kellie, I
think, unless you need me to give you a chance to think about that and I
can say my take.  But I think, and this is helpful, because one of the
questions that our folks had was what do these notes mean.  You sort of,
you know, what do they mean?  Are they a requirement?  Is it a situation
where the compliance officer is going to come out and if he finds out
from an employee interview that there actually was visible dust when
this masonry saw was being cut, then therefore it's a violation of that
provision of the table so that you chose that outcome.

		It sounds like maybe that's not it.  It's just that those are just
indicators of what might be effective controls.  There is no doubt that
the notes, themselves, caused folks a great deal of concern and I will
say the two broad concerns.  And then turn it to Kellie to give you
information you actually care about.  

		The other thing is I think there is a thought that Table 1 in a sense
is not comprehensive enough.  It doesn't deal with enough tasks.  So, as
a result, an employer is likely not to use it because in the end they're
still going to have to be doing exposure monitoring as well.  And it
doesn't get you much else besides maybe an out with respect to exposure
monitoring.  

		So if you're an employer, you're going to say to yourself, okay, yeah,
maybe I can use this stationary mason saw, but I do X, Y, and Z, as
well, I've got to be doing exposure monitoring anyway, because that's
not covered in the table, and as a result you get nothing out of it. 
You get no added benefit.

		I think the third thing is there are going to be situations where
Table 1 doesn't work.  Let's just take the example of the minus 10
degrees in North Dakota.  You use wet methods, right?  Maybe you use it
90 percent of the time.  But on some days, and maybe it's not -- maybe
it's just one percent of the time, some days you cannot cut wet, and
then at that point what does your obligation become?  And you are
probably going to have to say to yourself, well, I must have had to do
exposure monitoring at that point.  

		So what is -- should I have done initial monitoring, should I have
otherwise categories, or if not, if I can't use Table 1 on that day,
then do I have to stop the job, do exposure monitoring or some sort of
exposure characterization, and therefore go forward.  And as a result, I
just don't see anyone actually embracing it and doing it.  There are too
many obstacles to it.  

		Now, that's the sort of the lawyer answer.  But let me get Kellie's
perspective from the actual person who would do this.

		MS. VAZQUEZ:  Right.  Well, a lot of what I do, and I would think
being a concrete cutter, a lot of my operations would be in here, but a
lot of my tasks that I do every single day aren't even listed.  

		So at first, when I first saw this, I was like, oh, I don't have
anything to worry about.  We're not even in here.  And then I spoke to
an attorney, and he said, no, you've got to worry.  No, so that's one
thing.

		The tasks that I perform aren't listed.  That was one of my concerns. 
And then it made me question now how is OSHA going to amend this?  How
are they going to add this?  How are we going to make this table larger
and bigger?  Is it going to be the employer's responsibility, therefore,
I would need to do exposure monitoring to add to my table, or is that
something OSHA is going to do, are they going to amend the table and
make it larger and larger, and keep it going?  So those were a couple of
my questions.

		On the engineering and work practices, I got very confused and lost. 
And a lot of it, some of it just went over my head, you know, when we
were talking about the HEPA filter and it must be operated at 25 ft3/min
or greater airflow per inch of blade diameter, I'm not an engineer.  I
got totally confused on that.  

		Then prevent wet slurry from accumulating and drying, you know, I did
not like that at all.  And the no visible dust.  Now, I understood that
on the wet methods and not allowing no visible dust to be emitted, I'd
say, you know, I can't say for 100 percent of the time that that's going
to happen.  And I never like to say never.  I never like to say don't
allow this to happen.  I don't like to ever say that.

		Now, I never knew from on the LEV side, because we don't use local
exhaust ventilation systems.  But when I was at World of Concrete in
January, I had a couple of my manufacturer friends show me how the LEVs
work.  And even using an LEV, you cannot prevent visible dust due to
that gap that is before the blade gets into the concrete to a certain
depth, you will have a gap, and then there will be visible dust.  And
then also while you're cutting on the concrete block that you are
cutting, there will be dust left on the block that can easily be blown
or be emitted.  So that's another issue that we have.  And I never
understood that --

		MR. STONE:  I think you've done a good job of explaining what the
issues are.

		MS. VAZQUEZ:  -- until that.

		MR. STONE:  But what we're wondering about --

		UNIDENTIFIED SPEAKER:  Was the solutions.

		MR. STONE:  Yeah.  So if we remove the notes, you're saying remove the
notes and the table would be a lot more workable?

		MS. VAZQUEZ:  How I think my perception of Table 1 would be to list
the tasks, the engineering control associated with that task or that
piece of equipment that you're going to use, and then have the
respiratory protection if necessary.

		MR. STONE:  And those would be the default controls under most
circumstances.  Most of the time we would anticipate that these controls
are available, feasible, although recognizing there are exceptions, cold
weather, so forth.

		MS. VAZQUEZ:  And then if it could be like as a guidance document to
guide contractors on using it instead of being something that this has
to be done in this way.

		MR. STONE:  The ASTM standard is a guidance document and that has a
provision in there about having no visible dust.  Now, do you recall
that being a point of discussion?  I mean you voted for that standard, I
assume.  You were on the committee.  It was approved.

		MS. VAZQUEZ:  Yeah, no, I do not recall that being in there.

		MR. STONE:  Well, that's a provision in the ASTM standard.  It calls
for no visible dust.

		MR. HAMMOCK:  Right.  And I think that -- I mean that raises a great
point, two points, really.  One is it underscores that maybe what the
intent, OSHA's intent was, because that may be an indicator of when the
controls are operating well.  But it's a much different issue when
you're talking about a compliance end point and the potential for a
citation.

		MR. STONE:  Right.

		MR. HAMMOCK:  And I think, you know, it's one thing to include it in a
non-mandatory standard where you say, yeah, sure, no visible dust. 
That's an indicator of the effectiveness of the control.  We are very
concerned about including that as part of a provision that you could be
cited on.  And I don't know the answer, but I think that's a significant
difference.

		I also think that when we talk to folks, there is a lot of discussion
about what the ASTM approach was.  And I think the folks' understanding
of the ASTM standard is more in line with what the construction industry
would like to see with the Table 1.  But, you know, in a sense, though,
it's really just guiding folks onto what to do.

		So Kellie's would be you know what, she cuts wet.  If you just said if
you cut wet, you're good to go, I think she would be pretty comfortable
with that.  I'm not necessarily saying the coalition would support that
because we have other considerations, but that's kind of simplicity. 
This is drafted more as a compliance document as opposed to a guidance
document for obvious reasons.

		MR. STONE:  Okay.  So I guess we'll go to Patti then.  I'll leave it
at that.

		MS. DOWNS:  Are you done?

		MR. STONE:  Yeah.

		MS. DOWNS:  Do you want to introduce me?  I can introduce myself.

		UNIDENTIFIED SPEAKER:  David, do you want to --

		MR. O'CONNOR:  Patti Downs has a few questions.

		MS. DOWNS:  I probably have more than a few questions, but I'll limit
myself today in the interest of time.  

		One of the things that was submitted in the written comments talked
about how stationary and mobile crushers are different, and how those
differences can affect exposures and the control effectiveness.  I think
you specifically mentioned LEV and wet methods.  And I'm just wondering
what makes those two pieces of equipment so dissimilar as far as the way
controls are applied?

		MR. HAMMOCK:  I'll go ahead and start.  I actually think two things. 
One is I don't remember the exact phraseology.  I don't know if we
actually said that.  But even so, OSHA makes the point of emphasis that
they don't look at any mobile crushers.  I don't know, frankly, the
extent to which there is a difference.  

		But I can tell you this:  There are a lot of mobile crushers in
construction.  And it is incumbent upon OSHA, in my view, to analyze
those.  To make an assumption in terms of technological feasibility that
they are the same, I don't think OSHA has met that burden.  Remember, in
effect, it's a burden shifting exercise.  So you're putting the burden
now on the employer essentially to prove that something is not
technologically feasible.  

		We understand that OSHA has data limitations.  But given the fact that
mobile crushers are used extensively in construction, from what I
understand, to make that assumption on the contrary perspective is
inappropriate.  It's OSHA's burden in the first instance to make that
case.

		MS. DOWNS:  Anybody else on the panel care to comment?

		MR. TURNER:  I'll just give something very brief on my experience of
one time on our job sites; however, I have visited the quarries and
suppliers where we get some of the aggregate that goes into the
concrete, etc.  My experience with the stationary crushers that I have
seen from 100 yards away is they are huge machines.  And I would sooner
phrase this as almost a general industry versus a construction type of
item.  Stationary equipment, by the very name, has the ability of it is
not moving, it's not going down the 10-foot road and onto a job site. 
It doesn't have wheels underneath of it, etc.  That's my experience with
it.  And the fact that what has rolled onto our job site previously
doesn't have all the cabs and bells and whistles that I've seen in a
much larger operation.

		MR. HAMMOCK:  And let me say one other thing I think with respect to
OSHA's burden here.  One of the striking things about the stationary
crusher example, and this is based upon my recollection so I could be
wrong, but we talked a little bit about the rock crushing example
earlier in the testimony.  

		OSHA's feasibility conclusion is based in that example on really just
a handful of data point; some foreign studies which OSHA concludes are
not necessarily indicative of exposures in the United States; and, in
addition, relying heavily on this one stationary rock crusher and this
is the one that I talked about.  

		You've got a situation where the exposure monitoring that took place
with the stationary rock crusher on a muddy day, which was conducive to
low silica exposures, where they used wet methods, where they maintained
those wet methods, and the exposures that they got from that were 54
µg/m3, just above the PEL.  To then take that assumption and say it
should be applicable to all mobile crushers when you're already at that
level anyway, I don't think it qualifies as meeting that burden, again
to shift it onto the employer to prove technological infeasibility.  

		MS. DOWNS:  Okay.  So kind of along the same line of thinking is my
last question.  You also state in your submitted comments how
differences in drill type can affect the exposures or the effectiveness
of controls.  Can you just expand on that a little?

		MR. HAMMOCK:  Yeah, no, that's great.  And I would also, and I'll
refer to Kellie on this, too, because I think she's got a lot of
experience, but I would also highlight one of the interesting things I
thought about NIOSH's testimony on Tuesday was their discussion of the
different types of exposure conditions that really could affect
exposures.  And they gave an example of different drill bits in their
testimony that could have a tremendous effect on silica exposures.  And
so I think that's another place to look.

		And I remember also OSHA made the same point when looking at tunnel
boring equipment, that various types of bits that are on those types of
equipment can have a significant effect on exposure.  But let me turn to
Kellie to see from her experience, because I think that would be
consistent with your experience as well.

		MS. VAZQUEZ:  Yeah, because I was actually talking to Brad about this.
 You know a rotary hammer bit is very different than a -- I keep on
hitting this -- very different than a core drill bit, a diamond bit. 
Therefore, a diamond bit is going to drill differently than a rotary
bit, and they will have different silica exposures.

		Now, I have never put the testing side by side, but this is just what
I think from my experience.  So whenever, for example, you know, using
rotary hammers or drills except overhead, I can drill with a diamond bit
overhead using water and not run into a high silica exposure, which
maybe using a rotary hammer dry overhead, for example, would have, and
this is something I'm assuming, but might have a different exposure. 

		So that's what I think what you cut the concrete with does make a
difference on what silica exposure you get and how much of it you do
receive.

		MR. HAMMOCK:  And I'm hopeful that NIOSH follows up some of those.  I
mean I don't know what they are doing from a post-hearing perspective,
but if anyone is out there, I'd love to get their testimony on that as a
follow-up because I think it's a very meaningful point that they made of
the differences that that can have on exposures.

		MS. DOWNS:  Okay.  And, Kellie, a follow-up on that question for you. 
How difficult is it to implement those changes then to change the drill
bits or the blades, or the equipment to lower the exposures?

		MS. VAZQUEZ:  Well, we cut concrete using diamond bits and blades. 
That's what we use, so --

		MS. DOWNS:  And then kind of an obscure question to one of your
obscure comments.  You mentioned in the drywall finishing session --
you mentioned in the drywall finishing section that some of your members
have encountered joint compound labeled as silica-free that actually
contained silica.  How often have they encountered that?  Do you think
it's fairly common?

		MR. HAMMOCK:  No.  And just to clarify, I'm not certain how common it
is.  Our comments were actually not reflecting feedback that we received
from members.  We were actually just reviewing the PEA and the ERG
analysis, and it was striking to us that a number of samples that were
there, maybe not a number, I don't remember how many, were supposedly
done with, quote/unquote, "silica-free joint compound."  But when you
actually got the monitoring data back, they were showing relatively high
elevated exposure levels.

		So, to us, that raised an issue.  Frankly, I think we can all say that
there is silica-free joint compound.  But the point is apparently you
can't necessarily, if you're an employer, simply rely on that unless
there may be some sort of carve-out that OSHA says if you're using,
quote/unquote, "silica-free joint compound."  But that was a reflection
of our reading of the PEA and the ERG report as opposed to our member
feedback. 

		MS. DOWNS:  Two more questions.  On Page 19 of your written comments,
you say that OSHA determinations are not supported by the best available
evidence.  Can you give me an idea of what evidence is out there that
you think OSHA should have included?

		MR. HAMMOCK:  Well, that's a great question.  I will start on the tech
feas side, but we could also go to the ec feas side as well.  And I
guess I will start with my understanding of what OSHA's ultimate
responsibility is here.  And as you point out, it's to rely on the best
available evidence.

		That is somewhat historically, my understanding has been an undefined
term, but, you know, obviously, OSHA doesn't necessarily have a
responsibility to go out and conduct three billion samples of what's out
there.  But we believe when you look at all of the tasks that it has
looked at from a tech feas perspective that it hasn't factored in the
variety of circumstances that can exist.

		Maybe that is an impossible task.  But it seems to me that you cannot
make the sort of definitive tech feas finding that you've made based
upon the range of samples that you have.  

		Now, does that mean you need to go out and get three billion samples? 
No.  I don't think the coalition is saying that.  But there needs to be
some reflection in the analysis that you do not have data that factors
in all the different exposure situations.

		Now, I'll let Stu talk a little bit from the ec feas perspective.

		MR. SESSIONS:  Well, actually, it's not an economic comment.  It's on
the sort of best available evidence.  One sort of sideline I did is
attempt to run down in excruciating detail the exposure data supporting
one particular task.  And I ran down mobile masonry saws.  And I looked
in great detail at all the exposure data as best was possible that
supported the technological feasibility judgment on that task.

		And with respect to the question that Brad raised about what happens
during the rest, the unassessed remainder of the operator's shift, in
about half of those samples for wet cutting -- sorry, for using
masons --

		MR. HAMMOCK:  Masonry saws.

		MR. SESSIONS:  Masonry saws, in about half of those examples, the
original study provided enough evidence to surmise fairly confidently
whether the operator was or was not going to continue doing that task
during the rest of his shift.  So the best available evidence in at
least half of those exposure studies was sufficient to make a judgment
about whether exposure continued or not.

		And I remember explicitly one study, it was a NIOSH study of concrete
coring in which guys are tearing up a bridge and cutting the concrete,
and the NIOSH report said we stopped monitoring after five hours and we
went home because it started raining.  

		And the clear implication is these guys were going to keep cutting
that bridge for the rest of their eight hours.  And it was entirely
inappropriate of OSHA to assume that the exposure continued for only
five hours and to, in effect, dilute that exposure by an additional
three hours of presumed non-exposure to silica.  

		So, in that instance, that study and a couple of data points were
crystal clear about what the assumption should have been about the rest
of the shift.  

		Similarly, other sorts of studies had titles that implied very clearly
that the monitoring was conducted under unusual circumstances only while
the at-risk task was being conducted.  In fact, they turned the monitor
on when the saw started cutting and they turned it off when the saw
stopped cutting.  And that, clearly, you have no idea what was going on
the rest of the shift and, presumably, the rest of the shift is not 100
percent of the time cutting as occurred during the sample.  So OSHA's
assumption there is more reasonable.

		But here is an example where sort of the best available evidence would
allow more inference than OSHA has drawn.  And I want to sort of expand
on that by mentioning again this Canadian Quebec database on
construction sampling which is an immense database.  And they have
explicitly turned it into a database, as opposed to leaving it as
individual samples.  

		So you can query the database about show me all the samples where
masonry saws were used with controls and where they were used without
controls.  And you can query the database about how long the sample was
conducted relative to the sampled workers' full shift, etc.  

		So there is another instance where the sort of available evidence is
on a key question, you know, a step better than what OSHA has been able
to do thus far.  So that's part of what we meant with those comments.

		MS. DOWNS:  Okay, well, thank you, gentlemen, and madam.  I'm going to
defer my last question.  I'll let everybody else on the panel ask
theirs, since my last question is rather lengthy and we can come back to
it at the end.

		MR. O'CONNOR:  Bill Perry has a question or two.

		MR. PERRY:  Really, just one.  First of all, thank you all for
appearing here today.  It has been very helpful.  Brad, long time, no
see.

		MR. HAMMOCK:  Yes, thank you.

		MR. PERRY:  Nice to see you again.  Ms. Vazquez, I just have a
question about a statement in your written testimony where you say the
table should be amendable by employers when testing proves compliance
with the PEL and exposure monitoring should not expire.  Could you
elaborate or explain that?  I'm not -- I want to be sure I'm clear of
your meaning.

		MS. VAZQUEZ:  Okay.  That's kind of what I was referring to a little
bit earlier.  I didn't know how Table 1 was going to be able to be
expanded.  How are we going to expand Table 1 to bring in the additional
tasks that need to be listed, and the controls, and, you know, just help
guide contractors under the PEL.  

		So in my head, I was like is it going to be the employer's
responsibility to amend this table and perform silica monitoring, and
add in their task and their monitoring, and what they need to do to get
underneath the PEL.  And so in my head, that's what I was thinking.  

		And then about the testing and having it not expire, that goes back
to, and I don't remember what section it was, but the testing and it
needed to be within a 12-month period, you know, the date of the
testing.  So does the test expire after 12 months?  So I don't think it
should expire.  If my equipment hasn't changed, the task hasn't changed,
the engineering control hasn't changed, then why should it expire?  

		And so those were kind of I guess questions that I put in there.

		MR. PERRY:  Okay.  That actually is very helpful.  I appreciate it.

		MS. VAZQUEZ:  Okay.  

		MR. O'CONNOR:  We'll switch over to our economist, Robert Stone.

		MR. STONE:  Thank you.  Good afternoon.  Most of my questions are
geared toward Stuart Sessions.  Let me begin with an administrative
question.  I didn't see any workbooks attached in your submissions.  And
I don't know, have you submitted anything yet in terms of like Excel
workbooks, anything like that?

		MR. SESSIONS:  No, no.  We, as I say, I apologize that we are partway
along on the work that the coalition has asked to be done and we will
submit documentation.

		MR. STONE:  Okay, thank you.  That would be very helpful to us.  To
some extent, some of my questions may, would be answered with the
workbooks, so I'm going to go through a couple of things just to clear
up some of your numbers.

		The first thing is the number of affected workers that you estimated. 
You include pretty much all the workers in all the occupations we
identified, which is about 3.25 million workers I believe.  And then you
added another about 1.5 million workers and nine occupations.  Is that
right?

		MR. SESSIONS:  Something like nine, if you count --

		MR. STONE:  Right, some of them are helpers.

		MR. SESSIONS:  Yeah, if you count the helpers, yes.

		MR. STONE:  And so I mean the main occupations were roofers,
plasterers, plumbers, electricians, and the fifth one was tile and
marble setters.  I just wanted to point out that that, in fact, is an
occupation we did have covered.  And if you look on Page 148 and 149, in
Chapter 5 of our PEA, you'll find that they are included there.

		MR. SESSIONS:  For at least one of those, either plasterers or tile
and marble setters, you've covered helpers, but not the occupation,
itself.

		MR. STONE:  I see, okay.  I'll check that.

		Have you considered the possibility that some of -- all the workers
in these occupations may not, in fact, engage in silica tasks?

		UNIDENTIFIED SPEAKER:  You got a nod.  You've got say yes.

		MR. SESSIONS:  Yes.

		MR. STONE:  But you didn't make adjustments for that possibility, did
you?

		MR. SESSIONS:  I think we were following OSHA's methodology of
attempting to estimate the fraction of the total workforce in these
occupations who, which is spent in doing silica related tasks.  So, for
example, plumbers we said -- we say three percent.

		MR. STONE:  Right, I'm going to get, yeah, okay, so I mean many of
these are -- the ones you've added are fairly rare exposures.  Like you
had three of them are two percent, three percent, and four percent, for
example.

		MR. SESSIONS:  Yeah.

		MR. STONE:  And but some of the workers, like roofers, for example,
may not work with tile and may work with asphalt shingle, for example,
and they wouldn't expect to have exposure.  So then maybe a fair number
may be a majority of them might not have any silica exposure.

		MR. SESSIONS:  That's right.  And we tried and actually the roofing
trade association has some data on the fraction of roofs that are
conventional asphalt shingle versus clay tile, versus slate --

		MR. STONE:  Right.

		MR. SESSIONS:  -- and other things.  And we attempted to roughly use
that information in coming up with the fraction of total roofer FTE that
is involved in silica related tasks.  So at least 80 percent of the
roofs have relatively little silica in them.

		MR. STONE:  So you're telling me that the number of roofers and
helpers, 205,000 were not all roofers, just the percentage you estimated
would be exposed to --

		MR. SESSIONS:  No.  I'm saying the 205,000 was the number of roofers. 
But the two percent estimate that we gave to those 200,000 roofers --

		MR. STONE:  I see.

		MR. SESSIONS:  We said two percent of their time in total on average
is spent doing silica related tasks.

		MR. STONE:  Right.  But, for example, did you estimate that all of
these roofers would be, therefore, affected by this rule, and would
therefore have to do training and possibly use the controls?  From your
numbers, that's what I looked like to me.

		MR. SESSIONS:  In terms of the controls, we made some assumptions
about how many tools there were per affected trade.  And we assumed that
each of the tools would need to be controlled in order to do the job
properly.

		MR. STONE:  For all, for every roofer, for example?

		MR. SESSIONS:  We also made some assumptions which I apologize for the
details not being available in front of you, but we made some
assumptions about the degree of sharing of tools and the size of the
roofing crew.  And so if there is one tile saw per roofing crew, there
may be four roofers that are sharing that one saw.  And we made some
assumptions about the potential for sharing across crews.  And the net
result might be sort of one controlled roofing saw per eight workers.

		MR. STONE:  Right, so we got the amount of equipment used.  But the
problem is the number of workers that are going to be subject to the
ancillary provision is all of them, according to your estimates.

		MR. SESSIONS:  We do not have that part of the analysis yet and it
shouldn't be all of them.

		MR. STONE:  Okay.  Just as a related point, now you certainly
mentioned a couple of times today other rulemakings, lead and asbestos
being prominent, confined space is another one, where in response to the
rule there has been a fair amount of specialization of labor.  And you
argued that it really couldn't apply here.  I would suggest that perhaps
not to the extent of specialization as these other regulations, but
perhaps some.

		So let me get your opinion on this.  Suppose a profit-maxing but
careful, but responsible employer said, you know, I have on this crew an
electrician and an electrician's helper.  I don't want the electrician
to be doing this work, only the helper.  So you've already cut out a
fair percentage.  You can do the same thing for plumbers.  It would also
save you money because you're going to use a less expensive worker to do
that task, which is generally a less expensive task.  You can use the
electrician and the plumber to do the more expensive tasks and earn
their wage.

		So I'm going to suggest that these numbers might be reduced somewhat
to reflect that degree of specialization.

		MR. HAMMOCK:  Yeah, I think that -- I'll jump in on that, Stu.  I
think there is no doubt that to the extent that does occur, it may have
both -- it may have effects on cost and benefits and the economic
feasibility.  Of course, I would also say if you make that assumption,
you are assuming greater full-shift exposures of those employees.  They
are going to get more silica than they would otherwise get, which would,
in my view, affect your assumptions in the tech feas side as well.

		MR. STONE:  Okay.  Well --

		JUDGE SOLOMON:  Let me just say that when Mr. Stone asked the
question, Mr. Sessions nodded his head yes and is the one that
responded so --

		MR. SESSIONS:  I will refrain from my nonverbal.

		JUDGE SOLOMON:  Ask another question, Mr. Stone.

		MR. STONE:  All right, thank you.  Let's turn to the cost that you
estimated.  And I want to turn to the cost for controls.  I'm just going
to briefly summarize what I understand your analysis to say and I want
an understanding that's your presentation.

		You estimate for workers that have exposures on average less than 10
percent, which pretty much covers almost all of the 1.5 million workers
you added, at least 1.4 of them.  Those workers would have less than 10
percent exposure on average; a 2 percent, 3 percent, 4 percent for I
think plumbers, electricians, and roofers.  

		And you said for those workers, they would be able to share the
controls with three crews, correct?

		JUDGE SOLOMON:  Nodding his head again, for the record.

		MR. SESSIONS:  Yes.

		MR. STONE:  Okay.  How did you price the use of the controls for these
workers?

		MR. SESSIONS:  We used exactly OSHA's prices for unit prices for the
controls and assumed that the particular dust extractor, HEPA vacuum
combination would be usable for quite a variety of sawing and drilling,
and sort of minor demolition tasks.

		MR. STONE:  Okay.  

		MR. SESSIONS:  So, for example, for plumbers who we thought, you know,
they do some concrete sawing, they do some drilling, they do some minor
demolition work in plaster and things like that, in total, each of those
we thought was maybe one percent of the plumber's time to come up
with --

		MR. STONE:  You actually said, I think, three.

		MR. SESSIONS:  Okay, come up with a total of three percent.  Between
each of these three tasks are one percent each.

		MR. STONE:  Oh, I'm sorry, yes.

		MR. SESSIONS:  And we assumed that the nature of the control would be
similar in the sawing versus the minor demolition, versus the drilling. 
And we used that, whatever it was, $4.69 --

		MR. STONE:  All right, so you used our price.  And then you --

		MR. BURT:  Could I ask one follow-up while we're there?  When you made
earlier many criticisms of the tech feas analysis and ways that controls
might be improved.  But the costs you estimated don't change the
controls we're using or do they?  I just wasn't clear on that.

		MR. SESSIONS:  Actually, no, they don't change, because, you know, I
apologize for not being a construction practitioner and I have not spent
the time to --

		MR. BURT:  Okay, no, I just wanted to be sure about that.

		MR. HAMMOCK:  Your point, Bob, is if we're sitting on the tech feas
side, you'll need to do more, something like the controls aren't
adequate as laid out.

		MR. BURT:  Yeah, I was just curious if it was included.

		MR. HAMMOCK:  Whether that has been incorporated, right.

		MR. BURT:  Okay.  

		MR. STONE:  So returning to the methodology for costing, you pretty
much used our numbers and you used our, presumably, like you mentioned
the dust shroud that has a one-year life and, therefore, after one year,
you take the cost again the second year, is that right?  And the third
year, and so on?  Okay.  

		I think this is perhaps a problem with the way you've done your
analysis.  We used basically FTEs, full-time equivalents.  You're using
three percent of the time let's say for plumbers, as an example, you're
applying it to three crews, all right?  At the end of one year, you're
having them buy another dust shroud.

		And my view is, and I wonder what your view is, they will have used
nine percent of the economic life of the dust shroud.  Now, you can
argue I'd make an adjustment because we estimate 150-year use of it, for
full-time use.  This would suggest, though, that after one year, you
will have used one-sixth of the life of that dust shroud and an employer
is not going to throw it out.  It's still functional.  He'll use it for
the next five years.  He'll use it for six years.  Any views on that?

		JUDGE SOLOMON:  Nodding his head again, for the record.

		MR. SESSIONS:  Yes.  That's a good point, and I hadn't thought about
that.

		MR. STONE:  Okay, thank you.  A related point is actually the same
issue.  It would be operating in maintenance costs.  You're -- it's
going to be one-sixth of our original estimate, but I don't think you've
made that adjustment.

		MR. SESSIONS:  Correct.

		MR. STONE:  Okay, that's all I have for now.  Bob Burt is going to
inquire next.  Thank you.

		MR. BURT:  I have a few more questions.  Let's see, I think we
mentioned earlier that you mentioned that you did a survey, but there
was a time problem in putting it into the record, okay.  I just want to
reiterate on the spreadsheets that nothing is more frustrating when,
having been through many of these, six months from now we're going to be
sitting there studying your comment and the clearer it is, spreadsheets
are a huge help in going, instead of looking at each other what do you
think he did now, being able to tell for sure.  That will really
strengthen your comments about that.

		MR. HAMMOCK:  Right.  And our intent is to provide as much detail to
make it easier for you all on that front.  We're dealing with time
constraints.  And as Stu has pointed out, we're still trying to refine
our analysis, so --

		MR. BURT:  Okay.  Now, I just want to be sure I understand a couple of
things.  For this preliminary analysis, you used profit data in 2000 to
2012 inclusive -- 2010, inclusive?

		MR. SESSIONS:  Yes.

		MR. BURT:  Okay.  But for the cost and employment, we're relying on
the same base year as OSHA did?

		MR. SESSIONS:  Yes.

		MR. BURT:  And your cost estimate that you gave today on Page 38 and
39, that includes an adjustment?  I just want to be sure that you got
everything in that you would have liked to.  Does that include the
adjustment for non-contract employees?

		MR. SESSIONS:  Yes, it does include the adjustment for non-contract
employees.  It doesn't include several adjustments I would like to make
including many -- a number of changes on the costing to the ancillary
provisions.

		MR. BURT:  So it doesn't yet have all the ancillary provisions.  Does
it include -- did you attempt here to include the cost of reaching a
compliant, existing compliance in the cost estimate that's here?

		MR. SESSIONS:  Yes.  In our terminology, this is full compliance cost,
meaning including the cost to reach the existing PEL.

		MR. BURT:  A number of your suggestions concerning OSHA
underestimating cost, additional employees, different additional
occupations, additional employees that aren't under OSHA jurisdiction. 
Wouldn't these also potentially increase benefits as well as cost?

		MR. SESSIONS:  Yes.

		MR. BURT:  And with respect to the persons not currently in
compliance --

		MR. HAMMOCK:  Let me just say assuming, to put the obvious caveat,
assuming that the benefits analysis is as currently put forth by OSHA is
adequate with all of its bells and whistles, then, yes.  In other words,
there is -- we agree that there is a relationship between the two.  As
costs go up, benefits will go up.  But that assumes that the benefits
analysis is sound in the first instance.

		MR. STONE:  You wanted to make clear that you weren't buying our
benefit -- you agree --

		MR. HAMMOCK:  No, I didn't say that one way or another.  I just wanted
to make sure, that's all.  But the purpose of the question is absolutely
if you include more, you get more benefits under that, right.

		MR. BURT:  With respect to what you call the full cost rather than the
incremental cost of the rule, which include the cost of getting to 250,
would you consider it reasonable for OSHA to include as a benefit of
this regulation coming into compliance with the existing regulation?  

		You know if we're doing a benefit cost analysis and taking cost for
getting into compliance with the existing regulation, that would
normally mean you use the same baseline for both and would include
benefits for getting there.

		MR. SESSIONS:  Yeah.  Yes, I agree with that.  And my point on using
full cost is specifically with reference to the economic impact
analysis.

		MR. HAMMOCK:  And let me say --

		MR. BURT:  And let me follow up with that.  Why do you think it's
relevant there?  Because what you ended up saying was I would argue you
should have done that.  Well, argue, if you want.

		MR. SESSIONS:  Because the full costs are the burden, if you will,
that employers in this business will need to bear in order to achieve
compliance with the proposed rule.  And it really doesn't matter if in
theory this fraction of the cost to achieve the current rule were
affordable and this fraction of the cost, this is a hypothetical, to
achieve the increment from the current rule to the proposed rule were to
be affordable, if the sum total of the two is not affordable, then the
rule is not affordable.  

		And the sort of economic impacts are a function of the total costs
from here to there the affected industry is going to have to bear.

		MR. BURT:  Now, if we're actually thinking from here to there, would
it be the case that in actuality many people will not be in compliance
by the time we're done?  We've talked an enormous amount about the
importance that people may -- everyone is going to strive to be in full
compliance.  But if we're going to look at the real world, we're also
going to look at the fact people aren't going to be in compliance with
this rule either, wouldn't we?

		MR. HAMMOCK:  I mean we assume, and you can probably look at
historical data, but I would assume we can probably safely say that in
10 years not everyone will be in compliance with this rule.  I would
assume based upon the theory that if costs and benefits, if there is a
relationship with cost and benefits, then presumably OSHA's benefits
would go down as well.

		JUDGE SOLOMON:  Again, I have to address the fact that Mr. Session
has nodded his head yes and Mr. Hammock answered.

		MR. HAMMOCK:  That's the way we like to roll, particularly at 5:00.

		MR. BURT:  I have been in enough of these hearings to have lost the
bad habit of nodding my head.  Okay.  I wanted to look specifically at
the respirator costs a few minutes.  One thing you mentioned you did was
you changed the baseline and that is based on what exactly, the baseline
respirator use?

		MR. SESSIONS:  I apologize again; we have not yet re-estimated
respirator costs.  I offered some preliminary opinions about the
direction in which I would try to reconsider them.  And one respect in
particular was OSHA's assumption based upon the survey which was, if I
remember it correctly, something like 56 percent of -- I think the
survey found that 56 percent of construction employers had respirator
programs as of a particular date.  

		And to the extent I understand the Agency's respirator analysis, that
was extended to imply that 56 percent of the workers that would require
respirators under the proposed standard in effect already have them
provided for them and, thus, costs for all of that respirator use should
be taken off the table as, in effect, currently being provided and not
due to the regulation.

		MR. BURT:  When you said you have not yet made those adjustments, I'd
call your attention to Page 38 of your presentation today, which
contrasts an OSHA estimate of $84 million for respirators with your
estimate of $489.8 million for respirators.  So there would certainly
appear to be something happening there.

		MR. SESSIONS:  There is an adjustment there.  I mean there is --
there are two adjustments for more covered employees, you know, (a) more
covered trades and (b) the self-employed workers.  And I believe that we
assigned to them something like the respirator cost per person that OSHA
had.

		MR. BURT:  Even for persons who would only use a respirator one
percent of the time or two?

		MR. HAMMOCK:  What do you mean by -- before he is accused of nodding
his head, could you repeat the, what is it?  What is the exact question?
 Is it for --

		MR. BURT:  My question is many of these occupations are expected to be
doing dusty tasks only two, three, four percent of the time.

		MR. HAMMOCK:  Right.

		MR. BURT:  Now, the full cost of OSHA's respirator use was involving
much heavier, either two to four percent or much heavier respirator use.
 So I'm just curious.  I mean this is an enormous multiple.  And even if
I said you're right, the baseline is zero, I don't get this number.  And
that's what I'm trying to figure out is how we get this number.

		MR. HAMMOCK:  Are you suggesting -- are you suggesting that the cost
of a full respiratory protection program would be somehow less if you
were just doing a dusty task one percent of the time?

		MR. BURT:  Yes.

		MR. HAMMOCK:  The whole cost is going to be the same.

		MR. BURT:  The cost of the program is, but the cost of the respirators
won't.

		MR. HAMMOCK:  Yes, okay.  I thought you were suggesting that the cost
of the program would be different.  

		MR. BURT:  No, but if you -- if you, and we'll return to that in a
minute, if you assume that every single person will do this task and don
a respirator whenever he does it.

		MR. HAMMOCK:  Right.  But some of the costs are going to be the same
because a lot of the cost of having a written respiratory protection
program are going to apply whether you have one employee use a
respirator --

		MR. BURT:  Yeah, that's true, also.

		MR. HAMMOCK:  -- or whether you have a million employees.  I mean the
amount of respirators you have and the fit testing and that sort of
thing may differ.  But, certainly, some of the costs are going to be
consistent regardless of who --

		MR. BURT:  So other costs will be there, but remember this is a factor
of six or seven we're looking at here, not, oh, there is a little bit of
difference here.

		MR. HAMMOCK:  Right.

		MR. BURT:  And that's why I'm just trying to figure out how frequently
do you think these respirators were used, how does that work in, just I
wanted to explore this one as one example, simple example of a cost
change.

		MR. SESSIONS:  Okay.  Well, the bottom line is I am not fully certain
on this one, and we will, in short order, provide you with the
spreadsheets that we actually used to calculate this.  And I will
implement in this reanalysis all the changes to the respirator costing
that I think might be suggestible and, you know, we'll fully document
where we come out on it.  And I apologize for not being fully ready to
talk about this portion of it in the moment.

		MR. BURT:  Okay, thank you.  Changing the topic a little bit, we've
talked a little bit about specialization.  And Mr. Hammock has raised
the point and some others have raised the point that silica is
ubiquitous enough that some things won't specialize.

		On the other hand, there are some of these occupations that are doing
silica related tasks, one, two percent of the time.  These would
certainly seem to me to be potential nominees for specialization, but
I'm open to suggestions.  

		I realize specialization raises its own issues on the tech feas and,
for that matter, on the benefits side.

		MR. SESSIONS:  I think I tend to think of it to the contrary as the
occupations in which the silica task is done for a low fraction of the
time involve infrequent activities that virtually everybody in that
occupation needs to do.  

		The plumber who comes to my house and he had to knock out a bunch of
plaster to fit in the dishwasher -- and I am not going to get a plumber
who specializes in silica-containing activities.  This is a plumber who
does a variety of things in a variety of homes.  And in mine he happened
to knock out plaster that generated silica.  When he goes to the
neighbors', he may be putting a new, down in the basement, you know, he
may be going into the slab to -- the concrete slab to put in a new drain
tube for the new toilet he's putting in.  Or he has gone through the
concrete block wall to put in a new vent out from the water heater.

		And this is a very relatively infrequent task that virtually every
plumber will need to do in order to do his job.  And he's got -- he
ought to have -- he's got the saw to drill through that block.  He
ought to, he and every other plumber who has got that saw, ought to have
the controls for drilling through that block appropriately.  

		And my contention is that OSHA ought to think about costs for at least
some of these tasks in that manner related to the tool.  You've got to
equip the tool appropriately for whenever you may perform the task.

		MR. HAMMOCK:  I would say -- I was going to say just to piggyback, my
understanding of, and I know we can't ask questions, but my
understanding of the issue about where sort of the composition of the
workforce with respect to silica-generating tasks is that's a
consideration, but OSHA didn't actually quantify that either in the
costs or the benefits at this point but simply flagged it as an issue.

		I think that you are right, it does have implications across benefits
costs and tech feas, and I guess my point would be if you do attempt to
quantify that effect in some way, maybe based upon historical patterns
or what not, that it needs to be consistently considered at each phase
of the analysis.

		MR. BURT:  I want to return to the example.  The plumbers you
mentioned and described were what I would call by and large we're
talking about maintenance plumbers, that is people who go from job to
job doing repairs, etc., whereas in a building, you might have, you
know, if you're building a building, you might have a bit different
situation.  I just wanted to note that.

		Similarly for some of this, OSHA, I think -- was OSHA clear, I don't
know.  OSHA certainly intended to say that we had looked at -- that
almost all the equipment that we looked at is rentable.  And as a
result, this was part of our -- OSHA's justification for saying that
some of this equipment could be rented as needed.

		You argue almost the reverse, that everyone would have to have all the
equipment all the time.  Is that correct?

		MR. SESSIONS:  Toward that direction.  I mean I, you know, I do
provide for potentially sharing of equipment --

		MR. BURT:  Oh, yes, right.

		MR. SESSIONS:  -- within the members of a crew and maybe even across
crews.  But particular for episodic, short-term silica exposing
activities, the rental image of how those are conducted is
inappropriate.  

		I mean the plumber who is drilling the hole through the block for the
new vent for the hot water heater can't go rent that.  He can't go rent
it for the hour that he spends doing it.  He's got to have the equipment
control.

		MR. HAMMOCK:  It may be helpful just to have Kellie quickly, from her,
what she does, I mean my understanding of what she does is that she has,
essentially, you have to have the controls on every piece of equipment;
is that --

		MS. VAZQUEZ:  Yes.  Our controls are on the equipment.  We own our
equipment and the controls that -- the engineering controls like for
water and everything, that's incorporated onto the equipment that we
use.

		MR. BURT:  But you are pretty continuously using that equipment,
right?

		MS. VAZQUEZ:  Yes.  I do work with some electrical contractors and
plumbers, and they tell me up to a four-inch hole, they're going to
drill it themselves.  They have bought drills.  They have the equipment,
themselves.  And it is sometimes the larger diameter holes is what
they'll have us do.  Or too many, that's when they'll call us out.  But
they regularly drill holes or cut concrete, you know, a four-inch slab,
not a lot of rebar into it, you know, they'll cut it, themselves, with
the equipment that they have.  But that's just what I'm familiar with.

		MR. BURT:  Let me close by asking about two alternatives.  And you
don't need to respond now, but we'd welcome comment.  One alternative is
OSHA did consider at considerable length both in SBREFA and in the
issues present here, changing construction from 250 to 100, rather than
50.  And comment on that would be welcome.

		Let me add -- let me throw out a little bit of a pie in the sky
alternative, but it may be close to what OSHA costed, and that is Table
1 basically tells people what they have to do.  We know you disagree
with that.  If people follow Table 1, they will not need to monitor. 
They will not need to worry about variability if it is fully in place
the way I think you would prefer it to be done.

		I'd be interested especially for that reason and your comments on how
to improve Table 1 and what effect that would have on the overall
impacts.

		MR. HAMMOCK:  Absolutely.  We will absolutely address those issues.

		MR. BURT:  And let me close.

		JUDGE SOLOMON:  It sounded to me like you did.

		MR. BURT:  Sorry.  I just wanted to give a thank you before I left.  I
wanted to thank everyone for being here.  I want to especially thank
Kellie Vazquez and her firm for their participation in the SBREFA panel
and throughout the process.  And to say that we find particularly
valuable SBREFA panel members who have actually addressed the problem
and struggled with these things and tried to get reasonable degrees of
control.  Thank you all.

		MS. VAZQUEZ:  Thank you.

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

		MS. RYDER:  I think we do have more questions.

		JUDGE SOLOMON:  It's 5:17.

		MS. RYDER:  Do you think people would be available until quarter to
6:00, an extra 15, 20 minutes?

		UNIDENTIFIED SPEAKER:  I think we need it.

		MS. RYDER:  Does that work for you guys?

		MR. HAMMOCK:  Sure, I'm okay with that.

		JUDGE SOLOMON:  Okay, go ahead.

		MR. HAMMOCK:  The bar doesn't open till 5:30, so --

		MR. O'CONNOR:  Bob Blicksilver has a couple of questions.

		MR. BLICKSILVER:  Ms. Vazquez, I have studied your cost analysis and
your written comments.  I just have a few questions about the analysis
there.  In your exposure assessment programs, who conducts the exposure
monitoring?  

		You talked about individual operators going out to sites and sometimes
working with other subcontractors under a general contractor at times. 
How is the exposure monitoring conducted?

		MS. VAZQUEZ:  Currently, well, in the past when we have performed
exposure monitoring, we've had to hire an industrial hygienist and she
would conduct the silica monitoring for our company.

		MR. BLICKSILVER:  Exclusively, has anyone been trained in your
company --

		MS. VAZQUEZ:  No.

		MR. BLICKSILVER:  -- or have you encountered anyone among the general
contractors who have been trained in conducting exposure monitoring?

		MS. VAZQUEZ:  No.  It has only been through this one industrial
hygienist.

		MR. BLICKSILVER:  Do you see the potential for training under this new
silica rule to again to achieve that profit-maximizing resource,
minimizing ideal?

		MS. VAZQUEZ:  I discuss also in my, you know, hiring maybe an
industrial hygienist to come on board, onto Holes, to be able to conduct
the monitoring for our company.  But we've just brainstormed on
different ideas.

		MR. BLICKSILVER:  You seem to be assuming that the monitoring would be
conducted daily.  We talked about, I know I don't want to belabor the
objectives data and historical data, and so forth, but do you see the
potential for reducing exposure monitoring costs there through the use
of objective data as suggested by the questioners earlier?

		MS. VAZQUEZ:  With the action level of 25, I would see that we would
have to do a lot more exposure monitoring than we are currently
performing.

		MR. BLICKSILVER:  And your cost for respiratory protection, what is
not clear are the assumptions underlying the engineering controls that
are the background for these respirator assignments.  The respiratory
protection seems to be heavily weighted towards powered air-purifying
respirators, and filtering systems and filters.  So it's not clear again
what engineering controls were modeled into this assessment of what the
respiratory protection costs would be.

		MS. VAZQUEZ:  This was my assessment using engineering controls, using
water, because we always cut wet, so using engineering controls and then
bringing down the PEL.  This is what I think our respirator protection
cost would be.

		MR. BLICKSILVER:  Okay.  So you believe that a protection factor under
a PAPR would be necessary after wet cutting was applied on your sites?

		MS. VAZQUEZ:  Yes, for one of my operations.

		MR. BLICKSILVER:  Okay, for one operation, okay.  I just, again, I
don't want to belabor this, but of the $27,000, some $17,000 are
assigned to powered air-purifying respirators, and some $8,000 are
assigned to the filtering systems and filters, and for the lower powered
roughly $2,600.  So does that reflect the representative distribution of
respirators that you see for your operations?  I'm sorry.

		MS. VAZQUEZ:  I'm sorry, yeah.  The PAPR, they're very expensive.  And
I didn't realize how expensive they were.  But once you incorporate the
actual mask and everything that goes to it to give every single one of
my operators one of those, and then also for the half facemask for the
filtering and the filters, and then in my head I'm thinking we're going
to be in respirators every single day for all of our tasks.

		MR. BLICKSILVER:  I think it would be very helpful if you could in
post-hearing comments provide the exposure data --

		MS. VAZQUEZ:  How I came up with this?

		MR. BLICKSILVER:  Yeah, how you reach these assignments of
respirators.  Thank you.

		MR. HAMMOCK:  You know one of the things that we hear and I'm not
necessarily suggesting that this would be a cost that OSHA would need to
assume, because I think it would be reasonable for OSHA to assume a cost
based upon the least protective respirator that would be required and
generally those have a lesser cost than, for example, a PAPR.  But I do
think that for some companies they will provide a pretty wide variety of
respirators, including PAPRs because most employees think that they are
more comfortable.  So there is that consideration as well.

		I'm not suggesting that you would be required to cost that, but I do
think it is a consideration that we hear a lot.

		MS. VAZQUEZ:  And we don't currently provide PAPRs.  I'm just thinking
with the reduction of the PEL for one of my tasks and the requirements
that I understood when I read the document, it would be required in the
future.

		MR. BLICKSILVER:  I just remember a comment that you made about being
able to achieve exposure levels near this proposed PEL of 50, 53 I think
or some estimate like that, and I just wonder -- and that's with the
wet cutting, okay, but I'm just wondering why you believe, again I don't
want to belabor this, why a PAPR would be necessary?  If you're that
close to the PEL, wouldn't a lower powered respirator be sufficient?

		MS. VAZQUEZ:  Because I do have operations over the PEL.

		MR. BLICKSILVER:  Thank you.

		JUDGE SOLOMON:  Okay.  If there are going to be some more questions,
let's take a five-minute --

		MR. BLICKSILVER:  Oh, I just had one more.  Sorry.

		JUDGE SOLOMON:  Well, we're going to take a five-minute break and
we'll come back.

		(Off the record at 5:23 p.m.)

		(On the record.)

		JUDGE SOLOMON:  Let's go back on the record.

		MR. BLICKSILVER:  Ms. Vazquez, just one or two more questions,
please.  In the cost estimate for regulated areas in your written
comments, you state here you will need to hire at least four additional
employees to administer this portion of the ancillary provision.  

		If you work with other subs and you work under a general contractor,
and I think you described the personnel that you have trained and that
you've seen available on these sites as supervisors, qualified and
competent people, why do you feel that you would need to hire four
additional employees to supervise regulated areas?

		MS. VAZQUEZ:  I wouldn't think it would be to supervise a regulated
area.  I would think it would be to construct the regulated area.  Like
I said, 75 percent or more of our work is called in over the phone.  And
the first person to see that job site would typically be my operator
going there to perform the concrete cutting.  

		So in my head I'm thinking if a regulated area would need to be set
up, I would need to send someone to the job prior to meet with a general
contractor and the hiring contractor, construct the area so when my
operator gets there, he goes to cutting the concrete.

		MR. BLICKSILVER:  Do you see the potential for learning and
familiarity that over time, as the rule goes into effect, that these
things could be phone ahead, e-mailed, texted ahead of time, we're on
our way, you know, could you put in place a regulated area; we have one
operator who is going to be arriving there in a half an hour, that kind
of scenario?

		MS. VAZQUEZ:  I would love to pass that onto the general contractor.

		MR. HAMMOCK:  There is an app for that.  I just figured out my new --

		MS. VAZQUEZ:  Or the hiring contractor.  I intend -- I would intend
to try to push the envelope to get that to happen, but I do not believe
that I would be able to do that 100 percent of the time or even 50
percent of the time when it's required.

		As I said in my notes, I am seen as a leader in the industry. 
Therefore, a hiring contractor is going to hire me to do the job and to
comply.  And he's going to put it back on me.  Therefore, that's a
reason why I would think I would need to hire someone to go out and
construct these areas when necessary.

		MR. BLICKSILVER:  Final question.  In medical surveillance, in your
cost analysis, you indicate $350 per chest x-ray.  What is the source of
that estimate, please?

		MS. VAZQUEZ:  I called around in Houston to different occupational
health professionals, and that was an average number that I received.

		MR. BLICKSILVER:  $350 for a chest x-ray?

		MS. VAZQUEZ:  Yeah, evaluated by a B reader.

		MR. BLICKSILVER:  Okay, thank you.

		MR. PERRY:  Hi, this is Bill Perry.  Just one follow-up question.  I
was interested to hear the subject of PAPRs come up again.  We've heard
testimony and have comment in the record that suggested OSHA strongly
consider permitting the use of PAPRs as a substitute for engineering and
work practice controls, citing they're accepted by employers, accepted
by employees, they're very comfortable, etc., etc. 

		I'd just like to ask both Ms. Vazquez and Mr. Turner, first of all,
what their views are on this.  Are you eager to go switch to PAPRs? 
And, second, have you noticed or are they currently in fairly widespread
use on construction sites where there are dusty jobs?

		MS. VAZQUEZ:  No and no.  We don't currently use them, and I do not
think my operators would want to use them.

		MR. TURNER:  I'm in agreement with Kellie.  As far as my folks moving
through a job site, they would have to coordinate with whatever
contractor is generating that.  And essentially to have a pocket PAPR to
don to go check the work, it seems rather impractical for a few moments
in time.

		Beyond that, Kellie works in Houston, and we have experienced the heat
in Austin as well.  We have quite a few jobs there.  And for that part,
global warming, I think that's a thing, but it seems to be wherever we
go, we're experiencing more hot and humid days each year to a more
severe degree.  

		And as we gear people up, we need to not just provide them the
protection for the respiratory protection, and Tyvek, or whatever else
we are going to provide them, now we're looking at possibly cooling
vests or at least more breaks.  

		And so we're looking at an exchange of production, which all gets
dealt with in the end typically by the pocketbook of the owner, but it
is all considerations that we need to have.  We can give whatever gear
we want out there to protect people, but we have to do so in a sensible
manner that still accomplishes the goal.

		MR. HAMMOCK:  And let me just also say from a coalition perspective,
we have not provided any written comment on that issue.  We understand,
though, that it has been raised here now, and we'll certainly be looking
at it from a coalition perspective in post-hearing briefs, I guess, not
post-hearing comments, as to whether we would want to take a position on
that, but just for clarity purposes.

		MR. PERRY:  And I would invite the coalition to do so.  So thank you
both very much.

		DR. COBLE:  Just one additional follow-up on something that was raised
earlier regarding the operations covered.  And when we were deciding
what to put on Table 1, those were the tasks that came with the most
frequently mentioned in the literature, and there was a consensus that
these were recognized to be silica-generating tasks.  And then in the
comments submitted by CISC, there is a list of 28 or so additional
operations.  

		And we were wondering, looking at that list, it looks like many of
these are maybe a subtask or a combination of tasks that are on those,
that are covered by the table.  Are any of these present unique
feasibility considerations that controls that aren't already described
wouldn't be applicable?

		MR. HAMMOCK:  Yeah.  And I think that's an excellent point.  And let
me at least partially agree with you.  That list, I think if you look at
that list, which it's something that we asked participant members to
look at Table 1 and come back to us with those things that you do not
believe are incorporated in Table 1, and should or could, or should be
something the Agency considers.  That is the list that we have got.

		I think what it's incumbent upon us to do in the post-hearing period
is look at that list again as sort of a raw list, I mean not just talk
of what, you know, I think Stu and I are in the same boat on some of
this.  It's a raw list.  I think we need to refine it and potentially
expand it, because I think you're right.  Some of those tasks may be
included.

		Now, it does raise an issue as to whether OSHA should be more explicit
with respect to subtasks in Table 1, but that is something I think is
incumbent upon us to kind of flesh out more in a post-hearing period. 
Because I think you raise a good point; some of those may be covered. 
It's just not certain given the time that we had.  

		And I know I sound like a broken record.  We did what we could in the
time that we had, but we still need a lot of work.  We still have a lot
of work to do.

		MR. TURNER:  And if I may interject just one perspective.  When I look
at Table 1, I really try to identify with it through the eyes of the two
folks in a pickup truck in the fact that I run into a lot of
contractors, the small, disadvantaged businesses out there that say,
well, if it doesn't say my trade, it doesn't apply to me.

		So regardless of being redundant, if we're not spelling it out, I'm
afraid it's not going to get adhered to.  So I have identified 90
different tasks and, yes, some of the are redundant, but up to 90
different tasks from start to finish, mass-ex (ph.), etc., all the way
through hanging ceiling tile and some of those items, if we're not
identifying it, you absolutely are going to run the chance of people not
being compliant.

		MR. HAMMOCK:  And I do think that this is a challenge for Table 1 and
will always be a challenge for OSHA as you think about what to do with
Table 1, and that is looking at it from also the viewpoint of the
compliance officer.  Because you all may think here about a stationary
masonry saw and you may have it in your head, you know, a broad scope of
things that would really be there, but that may not necessarily trickle
down to the compliance officer who shows up and says, well, that's not
necessarily a stationary masonry saw, that is a such-and-such-and-such,
and, therefore, you can't rely on Table 1, so you should have had your
exposure monitoring.

		I think there is that perspective as well, not just the contractor,
but the compliance officer who may not necessarily understand the intent
that you all have sitting on this stage.

		DR. COBLE:  Thank you.  That's very helpful.

		MS. RYDER:  I have a few questions for I think most of you.  I'll
start with Ms. Vazquez.  

		Ms. Vazquez, you mentioned that you use wet methods 100 percent of
the time and that when the exposures are above 100 µg/m3, you will put
your employees in respirators.  Is that right?

		MS. VAZQUEZ:  Yes.

		MS. RYDER:  Okay.  And I think you said that you make the
determination of when the employees are over 100 µg based on the task?

		MS. VAZQUEZ:  Uh-huh.

		MS. RYDER:  How do you decide which tasks the employees are going to
be exposed over 100 µg?

		MS. VAZQUEZ:  It's based on my silica monitoring.

		MS. RYDER:  It's based on your --

		MS. VAZQUEZ:  Historical data.

		MS. RYDER:  And I guess given that your job sites are always changing,
how are you deciding what sampling is relevant to whatever job site your
employees are going out to?

		MS. VAZQUEZ:  Well, I guess exactly how it is, you know, we have slab
sawing outside, we have slab sawing inside, we have wall sawing outside,
we have wall sawing inside, we have core drilling.  So it's based on --
the testing is based -- the testing is based on the task at hand and
then we take whatever testing it is and we use it in the future.

		So, you know, if I have inside sawing, for example, that is over the
PEL, then every single time I go sawing inside, for example, just as an
example, I'm going to don respiratory protection.

		MS. RYDER:  Okay.  And when you are making the determination that your
employees would be exposed over 100 µg and they're going into a
respirator, are they wearing the respirator the entire time they are
doing that task, or is it only if they are doing it for the entire day?

		MS. VAZQUEZ:  I think did you say -- I think you said the same thing
twice.  They wear it while they're cutting the concrete.

		MS. RYDER:  No matter how long they're doing it, even if it's for a
short period of time?

		MS. VAZQUEZ:  Yeah, no matter how long they're doing it.

		MS. RYDER:  Okay.  

		MR. TURNER:  And that's with the existing PEL.

		MS. VAZQUEZ:  That's at the current PEL.

		MR. TURNER:  The current PEL.

		MR. HAMMOCK:  Well, actually, not even.  It's with your vision of 100.

		MS. VAZQUEZ:  Yeah, um-hum.

		MR. HAMMOCK:  Right.

		MS. KRAMER:  I have a question about the six situations that you
mentioned in your written comment where wet methods and LEV are
unworkable.

		MS. VAZQUEZ:  That's from, yeah, from the coalition's comments, okay.

		MS. KRAMER:  I think it was in the section marked your testimony.  I
just wondered if those are tasks that Holes, Incorporated, performs?

		MS. VAZQUEZ:  No, that's from the whole coalition.

		MS. KRAMER:  So you don't have any firsthand knowledge about those
tasks?

		MS. VAZQUEZ:  No.

		MR. HAMMOCK:  And to put an example, I mean she's in Houston, which
doesn't get the extremes in cold, for example, and she's doing basically
concrete cutting, which is a certain task that may not involve some of
the electrical issues and the drywall issues that other coalition
members --

		MS. VAZQUEZ:  Are you just asking -- what is your question?

		MS. KRAMER:  I was wondering if the six tasks that you identified on
Pages 6 and 7 of the written testimony as situations where wet methods
and LEV don't work, if those are tasks that you perform.  I was
wondering how you are controlling for them.  But my understanding is
that you don't perform those tasks.

		MS. VAZQUEZ:  No.

		MS. KRAMER:  Okay.  And you also mentioned that you use wet methods
100 percent of the time.

		MS. VAZQUEZ:  When we cut concrete, yes.

		MS. KRAMER:  When you cut concrete.  You also said something about
drilling overhead with diamond bits and blades.  Are you using wet
methods when you are doing that?

		MS. VAZQUEZ:  Yes.

		MS. KRAMER:  Okay.  All right, I think that's -- oh, one other
question I have for you.  You said that you made the determination that
you would need to use PAPRs for one of the tasks that your employees
perform.  Which task is that?

		MS. VAZQUEZ:  If the PEL were to be reduced?

		MS. KRAMER:  Right, if the PEL were for 50.

		MS. VAZQUEZ:  It would be inside sawing.

		MS. KRAMER:  Inside sawing?

		MS. VAZQUEZ:  Um-hum.

		MS. KRAMER:  Okay.  Mr. Turner, I have a couple of questions for you.

		MS. VAZQUEZ:  With current -- with the current engineering controls
that I'm using presently.

		MS. KRAMER:  Using wet methods, okay.  Not ventilation, is that right?

		MS. VAZQUEZ:  Right.

		MS. KRAMER:  Okay.  Mr. Turner, I don't think you mentioned this, but
does Hunt Construction have any type of medical surveillance program?

		MR. TURNER:  We do as necessary, yes.

		MS. KRAMER:  What does "as necessary" mean?

		MR. TURNER:  When our folks would be exposed over the PEL.

		MS. KRAMER:  The PEL of 250, the PEL of 100?

		MR. TURNER:  Yeah, 250.  And we base that off our subcontractor's
documentation.

		MS. KRAMER:  Okay.  And is that for a certain number of days out of
the year?

		MR. TURNER:  Right.

		MS. KRAMER:  How many days?

		MR. TURNER:  Well, as the standard says, over 30.  Right now the
proposed standard is 30, and that's what we work off of, because it kind
of adheres to the existing standards with asbestos and so on.

		MS. KRAMER:  And I guess how are you keeping track of the days that
employees are exposed?

		MR. TURNER:  It's based off our schedules.

		MS. KRAMER:  Okay.  So do you have someone on staff who is keeping
track of that or are employees keeping track of it, themselves?

		MR. TURNER:  We don't have someone specialized to keep track of that. 
That's actually done on the job sites with our safety representative.

		MS. KRAMER:  And what is the medical surveillance comprised of?  Do
you do chest x-ray?

		MR. TURNER:  Chest x-ray and the breathing, I'm sorry, the --

		MS. KRAMER:  FT?

		MR. TURNER:  Yeah, the FT, thank you.

		MS. KRAMER:  All right.  You also mentioned earlier that wet methods
aren't a good control or a feasible control when it's 10 or 20 degrees
below zero.  Are your workers usually working when it's that cold?

		MR. TURNER:  We do have workers that work at that -- our workers,
because they are management, have a little different leeway on how they
can work.  Obviously, our subcontracts that may be exposed to those
elements will change their work patterns accordingly.

		MS. KRAMER:  So when it is 10 or 20 degrees below zero, are there like
laborers or construction workers on the site?

		MR. TURNER:  Yes.

		MS. KRAMER:  There are, okay.  And so what other methods would you use
when equipment is unavailable?

		MR. TURNER:  That's up to the contractors what they have at their
disposal.  If they have HEPA vacs, they can use those, you know, for
their isolation.  But it really depends upon the contractor.

		MS. KRAMER:  Okay.  And you also mentioned that two to five mile an
hour winds could affect respirable crystalline silica exposure.  Do you
have any data that you are relying on to support that?

		MR. TURNER:  No, that was strictly conjecture and further example of
why we need a broad scope of sampling.

		MS. KRAMER:  Have you done that sampling?

		MR. TURNER:  No, we have not.

		MS. KRAMER:  Okay.  

		MR. SESSIONS:  One of the exposure studies that OSHA cites in the PEA
is essentially a regression analysis in which the author is attempting
to predict the exposure concentration that the workers are subjected to.
 And in the explanatory variables, the second highest explanatory power
among the various variables was wind speed.  And it caused exposure to
vary almost as much as the task performed caused the exposure to vary. 
So it is a very significant factor.

		MR. HAMMOCK:  And I think there are also a number of different studies
that have looked at -- they are cited in the PEA that have looked at
multiple samples of the same exposure condition and have suggested that
one of the reasons for the great variability and the same task, the same
exposure is something like wind and other environmental factors.

		MS. KRAMER:  And I think, Ms. Vazquez, you said Holes, Incorporated
owns all of its own equipment, right?

		MS. VAZQUEZ:  Yes.

		MS. KRAMER:  Mr. Turner, does Hunt Construction own all of its own
equipment, or is it renting equipment?

		MR. TURNER:  We don't perform the work, so therefore we don't have the
equipment.  That's why we have subcontractors.

		MS. KRAMER:  Do you know about your subcontractors, whether they own
all of their own equipment or whether they are renting?  Is that
something --

		MR. TURNER:  We have 1,000 subcontractors across the country.  That
can vary greatly.

		MS. KRAMER:  Is that something that's usually part of your contract
where the equipment will come from?

		MR. TURNER:  No.

		MS. VAZQUEZ:  As long as they have insurance to cover the equipment on
site, it doesn't really matter.

		MS. KRAMER:  And, Mr. Sessions, I have a couple of questions for you
also.  I think the PowerPoint earlier today referenced a study by Boudry
(ph.).  Is that something you have already submitted to the record or if
not is that something you can submit?

		MR. SESSIONS:  Be happy to submit it, yes.

		MS. KRAMER:  Okay, great.  Thanks.

		MR. HAMMOCK:  I think maybe the Laborers submitted that.  I think it's
already -- I think they have already submitted at least a hard copy
version.  I don't know if there is more, but, yes, we'll be happy to
submit it.

		MR. SESSIONS:  There is more.  There is a whole database that you can
get, and ask them to get it in English rather than French.

		MS. KRAMER:  That would be useful.  I also wanted to follow up.  Bob
Burt mentioned or asked you a little bit about your estimates about the
use of respirators or respirator protections among employers.  I just
wanted to follow up on I think you said earlier today that you would
guess that zero percent of small businesses use respirators.  I just
wondered what your source is for that.

		MR. SESSIONS:  Okay.  Maybe --

		MS. KRAMER:  So Ms. Vazquez obviously has --

		MR. SESSIONS:  I can't claim as Brad warned me not to do, I can't
claim that I ate too many carbs at lunch.  But, you know, that was an
ill-considered statement.  I would guess that the use of respirators
among small businesses is substantially less than is the use of
respirators among large businesses.

		MS. KRAMER:  And I guess, again, just want is your basis for that?  Is
that -- go ahead.

		MR. SESSIONS:  Just rather nebulous, just talking with various people
who are active in the business.  And one particular question on the
survey had to do with how well you knew the regulation, do you know
about the regulation, and --

		MS. KRAMER:  Which reg, the respiratory protection or --

		MR. SESSIONS:  No, no, no.  The silica proposed regulation.

		MS. KRAMER:  Okay.  

		MR. SESSIONS:  And in general sort of knowledge about silica as an
issue is limited among the smaller, smaller businesses.

		MR. HAMMOCK:  You know, let me just add a couple of things. 
Obviously, from some of the questions that you all have been asking,
there is a lot of interest in respirator use, as well as the existing
baseline.  Respirator use, certainly, we will look to try to get you
whatever information we can, whether it's from a survey perspective or
what not.

		I can tell you from a non-scientific perspective, which is mine,
working with a number of small businesses in the area of respiratory
protection, based upon that dataset which is, as I said, not
statistically significant by any measure, the extent of full compliance
with OSHA's 1910.134 is very, very low.  

		Most small employers that I work with both in general industry as well
as the construction side, they may provide respiratory protection, but
their full compliance with the written respiratory protection program,
fit testing, medical evals is very, very low.

		Now, as I said, that's not statistically significant, but that's at
least my experience working with a wide range of small employers.

		MS. KRAMER:  And I just have another question about the data from the
PowerPoint earlier, Mr. Sessions.  On Page 20 of the PowerPoint or
Slide 20, sorry, you had some data about employees that should be
included.  I just wonder what the data source is.  Is it BLS data and
what year are these numbers from?

		MR. SESSIONS:  The data on the number of employees that might
potentially be included is from exactly the same data source that OSHA
had used for its analysis.

		MS. KRAMER:  Okay, same year -- same source, same year.

		MR. SESSIONS:  Yeah, yeah.

		MS. KRAMER:  Okay, all right.  I'm sorry to go back to Mr. Turner.  I
have one follow-up question about your medical surveillance.  Do you
continue with your employees after they have separated from Hunt
Construction?  Do you do any ongoing medical surveillance?

		MR. TURNER:  We don't.

		MS. KRAMER:  All right, I think that's everything I have.  Anyone
else?  Okay.  

		MS. VAZQUEZ:  Can I add something on the respirator thing?

		MS. KRAMER:  Can you what?

		MS. VAZQUEZ:  Can I add something on the respirator?  

		MS. KRAMER:  I don't think we're taking any questions.  You can maybe
clarify.

		MS. VAZQUEZ:  No, not a question.  I said to add.

		MS. KRAMER:  Add, sure.

		MS. VAZQUEZ:  When I interview people that have worked for other
concrete cutters and they want to come over and work for us, one of my
questions is on silica and if they have used respirator protection in
the past and what is their knowledge.  And none of them have knowledge. 
I have never run into someone that's had the training that we've had at
Holes, Incorporated.  So that might give you all some sort of --

		MR. HAMMOCK:  Can I say one final thing for the record, Your Honor?

		JUDGE SOLOMON:  Sure.

		MR. HAMMOCK:  If OSHA were to finalize this rule, we would appreciate
some shout-out in the preamble that we were here till 6:00 answering
questions.

		MS. KRAMER:  Thank you all very, very much.

		JUDGE SOLOMON:  From what I understand, that's not the all-time
record.  But we can give you an honorable mention for that.  

		Okay, so it's actually 5:55, and the hearing is closed.  Thank you
very much.

		(Whereupon, at 5:55 p.m., the hearing was continued, to resume the
next day, Tuesday, March 25, 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 24, 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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