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 25, 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):

KIMBERLY ROBINSON

Attorney, Office of the Solicitor

ALLISON KRAMER

Attorney, Office of the Solicitor

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA):

DAVID O'CONNOR

Director, Office of Chemical Hazards - Non-Metals 

ANNETTE IANNUCCI

Health Scientist, Office of Chemical Hazards 

- Non-Metals 

JOSEPH COBLE, Sc.D., CIH

Director, Office of Technological Feasibility

ROBERT STONE

Director, Office of Regulatory Analysis - Health 

ROBERT BLICKSILVER

Office of Regulatory Analysis - Health

ROBERT BURT

Acting Deputy Director, Directorate of Standards and Guidance	

BUILDING AND CONSTRUCTION TRADES DEPARTMENT, 

AFL-CIO (BCTD):

	

GERARD SCARANO

Executive Vice President, International Union 

of Bricklayers and Allied Craftworkers

CHRIS TRAHAN

Building and Construction Trades Department, AFL-CIO

EILEEN BETIT

Building and Construction Trades Department, AFL-CIO

LAURA WELCH, M.D.

Building and Construction Trades Department, AFL-CIO

CHARLES AUSTIN, CIH

International Association of Sheet Metal, Air, Rail and Transportation

DEVEN JOHNSON

Director of Training, Health and Safety 

Operative Plasterers' and Cement Masons' International Association

DAN SMITH

United Union of Roofers, Waterproofers and 

Allied Workers

LAMONT BYRD

Safety and Health Director

International Brotherhood of Teamsters

	

SARAH COYNE

Health and Safety Director 

International Union of Painters and Allied Trades

VICKY BOR

Attorney

NATIONAL ASSOCIATION OF MANUFACTURERS (NAM):

JOE TRAUGER

Vice President of Human Resources Policy

AMANDA WOOD

Director of Employment and Labor

MANESH RATH

Attorney, Keller & Heckman

National Association of Manufacturers 

CHANGE TO WIN

ERIC FRUMIN

Health and Safety Director

OTHER PARTICIPANTS:

ELIZABETH NADEAU

Attorney, International Union of Operating Engineers

BILL KOJOLA

National Council for Occupational Safety and Health

PEG SEMINARIO

Safety and Health Director, AFL-CIO

ROSEMARY SOKAS, M.D., M.S., MOH

American Public Health Association

SCOTT SCHNEIDER, CIH

Director of Occupational Safety and Health

Laborers' Health and Safety Fund of North America

KAREN HALIFAX

Bricklayers

JAMES FREDERICK

Assistant Director, Health, Safety and Environment  United Steelworkers
Union

REBECCA REINDEL

AFL-CIO

INDEX

										PAGE

		

INTRODUCTION			

Judge Daniel F. Solomon			  			  PAGEREF Intro \h  1553 

BUILDING AND CONSTRUCTION TRADES DEPARTMENT, 

AFL-CIO (BCTD)

	Gerard Scarano						 	  PAGEREF Scarano \h  1556 

	Chris Trahan 							  PAGEREF Trahan \h  1563 

										

	Eileen Betit						 	  PAGEREF Betit \h  1569 

	Laura Welch, M.D. 						  PAGEREF Welch \h  1577 

	Laurie Shadrick (by Chris Trahan)			  PAGEREF Trahan2 \h  1582 

	Charles Austin, CIH						  PAGEREF Austin \h  1585 

	Deven Johnson							  PAGEREF Johnson \h  1590 

	Dan Smith								  PAGEREF Smith \h  1597 

	Lamont Byrd 							  PAGEREF Byrd \h  1604 

	

	Sarah Coyne 							  PAGEREF Coyne \h  1611 

	Questions 							  PAGEREF QAPublic \h  1624 

NATIONAL ASSOCIATION OF MANUFACTURERS (NAM)

	Joe Trauger							  PAGEREF Trauger \h  1712 

	Amanda Wood							  PAGEREF Wood \h  1719 

	Joe Trauger							  PAGEREF Trauger2 \h  1732 

	Questions								  PAGEREF QAPublic2 \h  1743 

	

CHANGE TO WIN

	Eric Frumin							  PAGEREF Frumin \h  1781 

	Questions								  PAGEREF QAPublic3 \h  1795 

ADJOURNMENT								  PAGEREF Adjourn \h  1818 

EXHIBITS

EXHIBITS		DESCRIPTION				 	PAGE 

Exhibit 43	Listing from Silica-Safe.org	   	  PAGEREF E43 \h  1577 			  


Exhibit 44	Mr. Scarano's testimony	   		  PAGEREF E44_45_46 \h  1624 	

Exhibit 45	Mr. Byrd's testimony		  	  PAGEREF E44_45_46 \h  1624 

Exhibit 46	Mr. Austin's testimony		   	  PAGEREF E44_45_46 \h  1624 

	

Exhibit 47	Construction Chart Book		   	  PAGEREF E47 \h  1628 

Exhibit 48	NFRC list of benefits		  	  PAGEREF E48 \h  1657 

Exhibit 49	NAM testimony				  	  PAGEREF E49 \h  1711 

Exhibit 50	Gauley Bridge transcript			  PAGEREF E50 \h  1793 

Exhibit 51	Chapter from Working Lives	  	  PAGEREF E51 \h  1793 

Exhibit 52	Photocopy of Hawk's Nest		  	  PAGEREF E52 \h  1794 		 P R O
C E E D I N G S

(9:34 a.m.)

		JUDGE SOLOMON:  I'm 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 there is 20001-8002.

		The morning program is probably going to last on the equivalent of
direct testimony until about noon.  We'll try to break for noon and --
at noon, and then we probably have so many questions for this panel that
we'll probably come back.  And the question period will last probably an
hour, and then the National Association of Manufacturers program will
probably start around 2:00.  So if there's anybody from the National
Association for Manufacturers, not on until 2:00.

		Okay.  So we have a different cast of characters.  Ms. Robinson, do
you want to enter your appearance for the record please?

		MS. ROBINSON:  My name is Kimberly Robinson, and I am an attorney in
the OSH Division of the Solicitor's Office.

		JUDGE SOLOMON:  Okay.  So who is going to introduce everyone for this
panel?

		MR. SCARANO:  Your Honor, I'll be giving the opening remarks,
introducing our panel, and then turning it over to Chris Trahan who will
be the moderator for our group.

		JUDGE SOLOMON:  Okay.  Do you want to identify everybody first,
please?  Put the names into the record.

		MR. SCARANO:  I'm Gerard Scarano, S -- you want me to spell it?

		JUDGE SOLOMON:  You don't have to.  You're already in the record.  So
what is your affiliation and where do you live?

		MR. SCARANO:  I am Executive Vice President for the International
Union of Bricklayers and Allied Craftworkers, 620 F Street.

		JUDGE SOLOMON:  D.C.?

		MR. SCARANO:  D.C.

		JUDGE SOLOMON:  Okay.  Next?

		MS. TRAHAN:  Chris Trahan with the Building Trades.

		JUDGE SOLOMON:  And you're here in D.C. also?

		MS. TRAHAN:  Yes, sir.

		MS. BOR:  Vicky Bor, counsel to the Building Trades here in D.C.

		MS. BETIT:  Eileen Betit with the Building Trades here in D.C.

		JUDGE SOLOMON:  And then in the back row?

		MS. COYNE:  Why don't you start?  Yeah.

		MR. BYRD:  I'm Lamont Byrd.  I'm with International Brotherhood of
Teamsters here in Washington, D.C.

		MR. SMITH:  Dan Smith.  I'm with the United Union of Roofers,
Waterproofers and Allied Workers.  I'm from Livermore, California.

		MR. JOHNSON:  Deven Johnson.  I'm with the Operative Plasterers' and
Cement Masons' International Association, and we're in Beltsville,
Maryland.

		MR. AUSTIN:  I'm Charles Austin, industrial hygienist with Sheet
Metal, Air, Rail and Transportation.

		JUDGE SOLOMON:  And where are you from?

		MR. AUSTIN:  Washington, D.C.

		DR. WELCH:  Laura Welch, occupational physician with the Building
Trades here in D.C.

		JUDGE SOLOMON:  Okay.  So let's --

		MS. COYNE:  Sarah Coyne with the International Union of Painters and
Allied Trades, Hanover, Maryland.

		JUDGE SOLOMON:  Sorry.

		MS. COYNE:  That's okay.

		JUDGE SOLOMON:  Okay.  So, Mr. Scarano, do you want to begin?

		MR. SCARANO:  Yes.  Good morning.

		My name is Gerry Scarano.  I am Executive Vice President of the
International Union of Bricklayers and Allied Craftworkers.  I oversee
safety and health programs for the union, and I'm also chair of the
Building Construction Trade Silica Subcommittee. 

		Later in these hearings, representatives from my union will testify
about conditions on the job and silica exposures -- experience by
workers we represent in the masonry trades.  Today, I am participating
in this panel in my capacity as chair of the Building Trade Silica
Subcommittee.  

		On behalf of Building Trades Department, I would like to thank OSHA
for providing all stakeholders with the opportunity to discuss this
critical health hazard in an open forum.  We applaud OSHA for taking
steps to regulate silica and for recognizing the needs for a separate
standard for the construction industry, which is both protective of
construction workers and feasible for construction employers to
implement.

		We support this proposed standard, and while we believe that they are
important ways, the proposal should be strengthened to more fully
protect workers.  We appreciate OSHA's effort to promulgate a
comprehensive, feasible rule.  Our proposed changes which we outline in
our written comments will be discussed more fully by some of my fellow
panelists this morning and by other worker representatives later in
these hearings.

		The standard in these hearings have been a long time coming.  Silica
is not a new hazard.  As far back as the 1700s, Dr. Bernardino
Ramazzini identified silicosis in stone cutters.  Two hundred years
later, Dr. Alice Hamilton documented silica-related illnesses among
granite workers.  Vermont granite cutters went on strike to get
ventilation equipment installed in the work sheds, and hundreds of
workers died and more than 1,500 contracted silicosis while working on
just one project, the Hawks Nest Tunnel in Gauley Bridge.

		The position of those that refuse to acknowledge silica as a serious
occupational health hazard back then is not much different than what you
hear from opponents today.  And their positions are still wrong.

		Reportedly, the general manager of the Gauley Bridge project testified
that there was no known documented case of silicosis reported by one of
his workers.  And he never heard his employees complain about conditions
while working in the tunnel.

		Recognizing the seriousness of this occupational health hazard, in
1938, Secretary of Labor Frances Perkins, coincidentally the namesake of
this building, went on the record stating that "Our job is one of
applying techniques and principles to every known silica dust hazard in
American industry.  We know the methods of control.  Let us put them in
practice."

		And in 1990, Secretary of Labor Robert Reich once again attempted to
focus attention on this serious occupational health hazard by initiating
a new campaign, "It's Not Just Dust."

		Around the same time, leading researchers and health organizations,
including the World Health Organization's international agency on cancer
research, determined that exposure to crystalline silica can lead to
other debilitating, even fatal illnesses beyond silicosis, including
lung cancer.

		Acknowledging these findings, both Democratic and Republican
administrations have listed silica as a regulatory priority ever since. 
And some states have implemented their own rules to protect construction
workers instead of waiting for a federal action.

		Despite these efforts, silica remains a serious health hazard.  In
fact, with the introduction of equipment that allows masonry products to
be cut dry, the risk has become greater, a reality that isn't just my
opinion, but one acknowledged by other stakeholders.  

		I'd like to quote from a December 2009 article for Masonry Magazine,
the official publication of the Mason Contractors Association of
America.  The article states, "With the advent and increased use of dry
cutting, drilling, and grinding of concrete masonry materials and
construction, we often see workers operating in a cloud of dust with no
respiratory protection or safety measures to prevent airborne dust,
which poses a significant risk to workers."

		What does this 70-plus-year timeline tell us?  Simply that without a
comprehensive standard, silica will continue to be a seriously, even
deadly, hazard for working men and women in the construction industry. 
We need a standard with a low exposure limit and a comprehensive set of
ancillary provisions to protect workers and to ensure that employers who
take the steps necessary to protect their employees are not put at a
competitive disadvantage in doing so.

		In 1997, my union approached the Building Trade Safety and Health
Committee about taking a more active role in addressing the silica
hazard.  Shortly thereafter, the Silica Subcommittee was established to
raise awareness of the hazard and control methods and to develop a model
silica standard for the construction industry.

		The first chair, who has since died from occupational disease, was
from my union.  And we have chaired this subcommittee ever since.  The
Building Trades has taken an active role in raising awareness of the
hazard, use of controls, and the need for OSHA to promulgate
comprehensive standard for the construction industry.

		We participated in OSHA's stakeholder meeting in 1999 and 2001, as
well as in various meetings with the Advisory Committee on Construction
Safety and Health and other stakeholder groups.

		In September 2001, the Building Trades formally submitted language for
a silica standard to OSHA.  Throughout this time, we have worked to
educate workers and contractors about the hazards of silica and have
supported the development and use of the engineering work practices to
control the dust.  These latter efforts, along with the continued
presence of silica on OSHA's regulatory agenda, have contributed to a
greater availability of improved dust control options.

		In 2009, Masonry Contractors magazine, the article I mentioned earlier
also noted that "The only effective protection against silicosis is the
prevention of silica dust in the air.  Employers must take measures to
ensure that workers are not exposed to silica dust.  There are a number
of simple control measures that can be taken to effectively reduce the
amount of airborne silica.  Tools causing dust, such as grinders and
saws, should be fitted with water attachments and dust extraction
devices."  

		The article went on to point out, "When grinding concrete or other
masonry materials, a shroud with a vacuum attachment should be used. 
Vacuums with HEPA filters are the preferred method for collecting dust. 
If dry grinding is performed, regular vacuuming and wet sweeping of
floors also will help to remove settled dust during these operations."

		The use of respiratory protective equipment should be considered as a
last resort when all other preventative solutions have been put in place
and silica dust exposure continues to be an issue.

		The Contractors Association gave its members this information more
than four years ago.  Since then, the availability and effectiveness of
control options have improved, adding force to OSHA's conclusion that it
is feasible to reduce the dust in most cases down to the proposed
permissible exposure level.

		In closing, on behalf of the current and past members of the Building
and Construction Trades Department and its Silica Subcommittee and the
more than three million skilled construction workers represented by 14
national and international affiliated unions, I would like to thank you
for giving us the opportunity to share the perspectives of those most
affected: the men and women exposed or at risk of exposure on
construction sites every day in every state across our country.  We owe
it to them to see that the standard is implemented without further
delay.

		With that, I turn the floor over to Chris Trahan who will serve as
our moderator.  Thank you.

		MS. TRAHAN:  Thank you, Gerry.  

		Good morning.  My name is Chris Trahan.  I'm a certified industrial
hygienist with over 20 years of experience in occupational safety and
health.  And since -- well, the last 18 years of those have been
entirely on the construction industry.

		I've been working with the Building Trades Union under the leadership
of the Bricklayers and Allied Craftworkers on ways to reduce
construction worker exposure to silica since 1997.  I'm not going to
reiterate the Building Trades comments here.  However, I hope we get
some questions if any of the positions that we've laid out are unclear.

		I've been sitting in these hearings, and I wanted to go over a few
points that I think we've established so far.

		Number one, silica causes cancer.  That's beyond dispute.  Silica also
causes COPD, kidney disease, other diseases, and yes, we still have a
problem with workers getting silicosis here in this country. 

		If a worker is exposed to the current construction PEL, they are
essentially guaranteed to get sick and almost guaranteed to die from
their exposure.  Each year, this standard will save almost as many lives
as are lost from all traumatic injuries in construction each year. 
That's right.  I'm talking about falls, I'm talking about trenches, I'm
talking about back-overs, all of them combined.

		In 2010, we saw 802 construction workers die in fatalities from
traumatic incidents.  This really has the power to save almost 700
workers each year from death.  I don't think we're paying as much
attention to it as we should, and I'm really happy we're here at these
hearings.

		While some in the construction industry would suggest otherwise, the
construction industry is all about change.  The industry changes all the
time, and I see more change coming.  First and foremost, dust controls
have to become the default every time, just like hard hats and
guardrails are now.  No silica dust-generating tasks should be performed
without the use of engineering or work practice controls, period.

		You've heard the testimony from employers who are doing this as a
normal course of business and making a profit.  Once we see the silica
final rule, we'll see a lot more of this.  

		OSHA enforcement personnel will see this and will see that employers
are adhering to this principle.  Most importantly, worker exposure will
be dramatically reduced and workers will stop getting sick and dying.  

		We support the Table 1 approach.  This is one of the main ways we will
get the industry to use the presumptive use of effective controls.  We
really hope that all participants in the rulemaking can give
constructive feedback to OSHA to make the table more workable in our
industry.

		We think OSHA needs to do a better job in clearly articulating what
Table 1 is and isn't.  In our view, the listing of an operation or task
and associated engineering work practice controls on Table 1 indicates
the Agency has a great deal of confidence that the listed combination of
controls will reduce exposure to below the PEL.

		Where the combination of controls for the task or operation includes
the additional requirement for respiratory protection, we believe that
OSHA thinks that the combination of engineering and work practice
controls will reduce exposure to below the PEL most of the time, but
lacks the confidence that it will happen all of the time.

		The presence of a respirator on the table doesn't show infeasibility. 
The combination of tasks and controls on Table 1, in our view,
represents where OSHA's taken a conservative view of the data and
spoon-feeds the controls to our industries so we don't need to think.

		Some of the industry just wanted to be told what to do with
specificity.  I think OSHA does really like to do specification-based
health standards, but they have acquiesced in this case due to the
special requests from the construction industry.  We should thank them
rather than attack them on this.

		OSHA also proposes a performance-based approach to silica where
the -- where they identify the PEL and leave it to the employer to
determine the specifics of how they will get there given job site
conditions.  That OSHA allows employers to use either Table 1
specification-based approach or performance-based approach or a
combination of these for silica; the flexibility is there for
construction employers.  

		I want to expand a little bit on this.  In Table 1, OSHA specifies
that to be in compliance while jackhammering, that specified controls
have to be in place, and if the task is done for just a couple of hours,
less than four hours per day, the employer has met their obligations
under the standard.  If jackhammering is performed more than four hours
each day, the employer must add respirators, therefore, assume the
worker's exposed to an excess of the PEL.

		However, there's nothing to stop an employer from implementing
additional or improved engineering controls or work practice controls
and demonstrating they control exposure below the PEL or proposed action
level and thereby being freed from the obligations of mandatory
protection program -- respiratory protection use in the ancillary parts
of the standard.

		And yes, we want more operations on Table 1, but only if there is
good data that shows the controls work to reduce exposure.  OSHA's got
to have a way to welcome developments in controlling this exposure, and
we have suggested a few ways to do this.  We hope some of these
suggested a few ways to do this.  We hope some of these suggestions will
make it into the final rule.

		You're going to hear about the work being done by some of the Building
Trades members now, the controls used and the resources available and
some of the challenges faced by our industry.  Some of the challenges
are related to medical information, and we will focus somewhat on these
in our oral presentation.

		Some workers represented on this panel have very high exposures while
some do not.  We offer this testimony to help OSHA understand the scope
of the problem and exposures in our industry so that all construction
workers can be protected.  It was really good to hear from two
construction industry employers yesterday because they were able to
build a better record for OSHA to consider. 

		We will talk about operations that OSHA has considered and maybe some
that OSHA has not.  And while we probably won't have all the answers
today, we look forward to hearing and responding to questions this
morning, and we'll do our best to respond to any unanswered questions in
our post-hearing brief.

		And now I'm going to turn it onto -- turn it over to Eileen.

		MS. BETIT:  Okay.  Thank you.

		My name is Eileen Betit, and I'm testifying on behalf of the Building
Trades in response to OSHA's question:  Should employers be required to
develop and implement a written exposure control plan, and if so, what
should be required in the plan?

		Planning is integral to everything that happens in construction from
the initial bidding stage to assembling the right materials, equipment,
and trades, to assigning work to coincide with the order in which a
project needs to be undertaken.

		Just as it is important for employers to put their plans in writing to
guide them through the construction process, it's equally as important
for employers to have written plans to protect their employees from
exposures to silica dust.  The absence of a requirement for a written
exposure control plan in the proposed construction standard is a
departure from OSHA's past practice.

		As the AFL-CIO noted during its testimony, all OSHA health standards
that set a permissible exposure limit include a requirement for a
written compliance plan that, at a minimum, must set out the control
measures that will be used to meet the PEL.

		Written exposure control plans are important for identifying
operations that will result in exposures, the specific control measures,
and how they will be implemented and the procedures for determining if
controls are being properly used and maintained.

		Such plans also facilitate the communication of this information to
other employers on multi-employer worksites so that they, in turn, can
take steps to protect their employees.  Without such plans, there's no
assurance that employers and employees will take a systematic and
comprehensive approach to identifying, controlling, and sharing
information about silica exposures on job sites.  

		Given the prevalence of silica-generating tasks and the potential for
multiple employers and their employees to be on a construction project
at any given time, the Building Trades recommends that OSHA require
every employer engaged in silica-generating tasks to develop a written
exposure control plan for their projects and not to make this an option
only for employers that choose not to implement regulated areas.

		As NIOSH noted in its testimony, such plans would greatly improve
reliability of the protection provided, do not need to be complex or
burdensome, and can be based on the common job hazard analysis approach
used by construction safety and health professionals to address safety
hazards.

		In fact, CPWR, the Center for Construction Research and Training, has
developed an online planning tool that any employer can use to develop a
job-specific written exposure control plan for silica.  The tool can be
found at Silica-Safe.org.

		In developing this planning tool, CPWR solicited input from a variety
of stakeholders, including contractors and their representatives,
through focus groups, meetings, and opportunities to test and comment on
early versions of the tool.  The final design reflects their
recommendations.  

		The planning tool is broken down into three steps and includes
information to help employers identify silica hazards and control
methods, as well as background information and space for other elements
of a comprehensive silica exposure control plan.

		In Step 1 is part of its exposure assessment.  A contractor selects
from a list of common silica-containing building materials or fills in
one of its own and then selects the dust-generating tasks its employees
will perform with each material on a project.  

		In Step 2, for each material-task combination selected in Step 1, the
website generates a list of possible equipment control options, as well
as commercially available examples of each.

		While we have not captured every equipment control option available on
the market, the site currently includes more than 100 examples which are
tagged to specific materials and tasks.  And we'd like to submit the
current listing, which is broken down material and task, for the record.

		This listing is updated regularly based on feedback from users, and
its new control options are identified.  For each material-task
combination, there's also space for the contractor to include specific
details such as where and when the silica-generating tasks will take
place, which workers will be involved directly or indirectly and how the
controls will be used, all information useful to the contractor in
planning its work.

		Step 3 accommodates other important elements of a comprehensive
exposure control plan, including the identity of the competent person
who, as discussed in earlier testimony and in the Building Trades
comments, is key to ensuring that the employer's silica exposure control
plan is properly implemented and workers are protected; a description of
the training that will be provided, including who will be trained, and
where and when such training will take place; housekeeping activities,
such as the methods that will be used for cleaning excess dust off
surfaces and clothing and any medical surveillance activities required
because of exposure levels.  

		The planning tool is designed to provide employers with maximum
flexibility by allowing them to print, e-mail, save and revise their
plans.  Anyone that visits the website can use the planning tool to
create a plan, but those who register can set up a confidential
password-protected account where they can save their plans.  They can
then retrieve their saved plans, revise them for use on subsequent
projects.

		As noted earlier, written exposure control plans are not only
important for an individual employer to ensure that it is properly
assessing and controlling exposures, but also for facilitating the
exchange of information among employers and employees on job sites.

		Given the prevalence of multi-employer worksites in construction,
communicating information about silica-generating tasks and how the dust
will be controlled is critical because uncontrolled dust not only
threatens the health of the employees directly engaged in the work, but
creates ambient exposures that pose risks to others working in the same
area.

		As OSHA noted in support of its proposed standard for confined spaces
in the construction industry, because on multi-employer worksites, an
employer's actions can affect the health and safety of another
employer's employees, it is critical for the safety of all employees on
a worksite that contractors and subcontractors communicate with each
other.

		On most multi-employer construction projects, a general contractor or
other controlling employer has overall responsibility for coordinating
the activities of other contractors and subcontractors on the site and,
as a result of its responsibilities, either possesses or has access to
information about conditions on the site which other employers need to
properly safeguard their employees.

		As such, OSHA frequently assigns the controlling employer a specific
rule for ensuring that other employers coming onto the worksite are as
fully informed as possible about worksite conditions that might not --
might otherwise not be apparent. 

		For example, the asbestos standard requires building owners or
employers to perform initial monitoring for asbestos and to communicate
the presence of asbestos or presumed asbestos-containing materials to
prospective employers whose employees cannot -- can reasonably be
expected to work in exposed areas. 

		The steel erection standard requires controlling contractors to ensure
that site conditions are safe for steel erection.  Similarly, the crane
and derrick standard requires controlling entities to ensure the ground
conditions are adequate to support a crane and to coordinate operations
when one -- when more than one crane is operating in the same swing
area.

		The Building Trades urges OSHA to include in the standard a
requirement that an employer engaged in silica dust-generating
operations, the creating employer provide a copy of its written exposure
control plan to the controlling employer so that it can be shared with
other employers operating on the site.

		The standard should also require the controlling employer to maintain
these plans and provide them to other employers whose employees are
potentially exposed to silica as a result of the creating employer's
work operations.

		While the Building Trades is recommending a rule for the controlling
employer here, unlike in the other standards I just referenced, we are
not recommending that OSHA require the controlling employer to undertake
its own hazard assessment or to create any documents.  Instead, we are
simply recommending that employers that create written exposure control
plans provide them to the controlling employer and that the controlling
employer receive those plans and provide other employers operating on
the job site with access to them.

		Optimally, however, the controlling employer would also use this
information to stage work in a way that eliminates unnecessary exposures
as much as possible.

		In summary, the Building Trades recommends that OSHA require written
exposure control plans in the construction standard so all employers
have the information they need to protect their employees, whether their
employees are directly engaged in silica-generating tasks or exposed to
silica due to the work of others.  Thank you.

		JUDGE SOLOMON:  You referenced a document.  Do you want to pass that
forward so --

		MS. BETIT:  Yes.

		JUDGE SOLOMON:  -- it can be placed into evidence?

		Ms. Robinson, do you want to mark that?

		MS. ROBINSON:  Yes.  I will mark this document as Exhibit 43 for the
record.

		JUDGE SOLOMON:  Okay.  And do you move it into evidence?

		MS. ROBINSON:  I do move it into evidence.  Thank you, Your Honor.

		JUDGE SOLOMON:  Okay.  Without objection, it is hereby entered into
evidence.  

(Whereupon, the document referred to as Hearing Exhibit 43 was marked
and received in evidence.) 

		JUDGE SOLOMON:  Next?

		DR. WELCH:  I'm Laurie Welch.  I'm an occupational physician with the
Building Trades.  I don't want to say how many years of experience I've
had in my field, but I've been working full-time for -- to improve
health and safety for construction workers for the past 10 years.  

		I want to highlight some of the parts of our comments.  I'm going to
talk about medical surveillance generally, but I first want to say, you
know, in our comments, we do say we support the standard, and as Gerry
pointed out, there's a big need for the standard.  And we submitted some
additional references with our comments that we think are also
supportive of the health assessment in the standard.

		But what I mostly wanted to talk today about was confidentiality of
medical information.  The OSHA standard, as proposed, requires the
employer to have an exam conducted and requires the examining medical
provider to provide that information, the results of the exam, to the
employer.  And we think that does not reflect, really, the changes in
the management of medical information that have occurred in the society
around us.

		Particularly when you think about the Americans with Disabilities Act
and HIPAA, the Health Insurance Portability and Privacy Act, both of
which don't directly apply, but I think to reflect the way, outside of
this occupational setting, people would expect their medical records and
private medical information to be handled.

		So, you know, under the Americans with Disabilities Act, if an
employer conducts a medical examination, it has to be closely tied to
the individual's job and their ability to do the job.  It's not focused
on some future risk. 

		Now, medical surveillance has a different role, but the ADA, if it
were applying to the provisions in the law, they would not be permitted
under the ADA.  Employer can't just do exams because they feel like it
and store them away.  That's private medical information under the ADA.

		I also, in over maybe about five or six years ago, I worked with the
American College of Occupational and Environmental Medicine to chair a
committee to develop an update on their statement on medical
confidentiality.

		The American College is a member organization of thousands of
occupational medicine physicians who are often in the position of doing
medical examinations for an employer, either as directly as an employee
of that company but more likely as working for a hospital where an
employer would contract to do any kind of examinations, Department of
Labor examinations, you know, and these kind of OSHA medical
surveillance examinations.

		ACOEM developed the guidelines to provide very clear instruction to
the examining doctors and also to the employers about what information
the employers should be transmitting -- the doctors should be
transmitting to the employer.  And those guidelines say that the
provider should not provide the employer with specific medical details
or a diagnosis without the employee's consent.

		And the reason for that is, I think it was even discussed yesterday,
employers, if they have medical information, can take actions that we
would consider discriminatory based on that.  So that there is an
important balance in medical surveillance to be sure to protect the
worker from any discrimination.

		As I said, the standard as proposed requires the healthcare provider
to disclose whether the employee has a medical condition that puts him
or her at risk of material impairment to health from exposure to silica.
 And as I read that, that would require giving the employer the medical
diagnosis.

		We think that that discussion should be between the employee and the
examining medical provider, and if there's a need for any work
restrictions, that that can be communicated by the medical provider to
the employer after discussion with the exposed worker and with his or
her expressed consent.

		Part of this is also, we, in our comments, said we thought there
should be anti-discrimination -- statements on anti-discrimination in
the standard, again, to remind employers that using medical information
to deny someone employment is discriminatory, and that's not the purpose
of medical surveillance under the standard.  

		The employer will need to know whether the individual is fit to wear a
respirator for certain jobs or certain employers if they're using a
respiratory protection program.  And it was -- that is the kind of
information that our current standards, the ACOEM standards and the ADA
would say the employer has a right to know, but that does not include a
medical diagnosis.

		And you'll hear from some other members of our panel how, in the
construction industry in particular where someone can have multiple
employers in a year and certainly many, many employers over their
lifetime, you're more likely -- the employer is more likely to
discriminate against an individual who is coming to work with them.

		If you think about it, a construction employer has got 50 people to
choose among, and one of them has a diagnosis of silicosis and is going
to work in a silica dust-generating occupation.  Well, why would the
employer choose that person to work for them?  And you will hear from
our -- the rest of our panel, essentially, that person, if that -- if
they have a letter saying oh yes, I have silicosis, well, they're not
working again.

		So that -- and there's a balance that has to be kept between the
employer's need to know to reduce exposures and the employee's privacy. 
And we think the balance should be that the employer can be told about
the individual's ability to use a respirator, but not specific medical
information.

		And then I would -- if there's additional questions people have about
the medical surveillance in our comments, we can -- I can address those
later.

		JUDGE SOLOMON:  Thank you.

		MS. TRAHAN:  Thanks.

		Now, I'd like to carry a message while the next person comes up, from
one of our panelists who was unable to attend today due to scheduling.

		So Laurie Shadrick, the health and safety national coordinator for the
United Association of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States, Canada and Australia could
not be here today, but asked me to convey a few things about her trade.

		United Association has 370,000 members in the pipe trades.  Of these,
60 percent are pipe fitters, 25 percent are plumbers, and 15 percent are
in HVAC and welders.  

		UA members, particularly pipe fitters and plumbers, do overhead
drilling to install hangers for pipelines in many different types of
construction projects.  Project types typically include new construction
and renovation work in hospitals, powerhouses, nuclear plants,
bioscience buildings, and commercial construction.  We also core drill
through walls, ceilings, floors, and rooftops for the installation of
piping services.  The work is not evenly distributed across the entire
population of fitters and plumbers though.

		In thinking about the percentage of time these trades spent in
silica-generating tasks, it's very difficult to estimate.  Overhead
drilling happens pretty routinely to install hangers for piping systems.
 That being said, not all plumbers and pipe fitters do this work. 
Often, one person on a crew drills the holes and installs the hangers. 
On a lot of crews, this is done by the apprentice.

		Even if the apprentice is installing the hangers all day, the drilling
portion of their time may only be in the three to five percent range.

		The industry is seeing an increase in the use of local exhaust
ventilation for overhead drilling, including integral dust collectors
and add-on controls.

		As you heard yesterday, drilling penetration holes for piping and
mechanical systems and some projects is contracted out to specialty
contractors like Holes, Incorporated.  However, if a project calls for
just a few penetrations for plumbing and pipe fitting work, United
Association members do it.

		Core drills are used, and these are always used with wet methods.  The
number of penetrations varies, but core drilling probably comprises much
less than one percent of a plumber's and pipe fitter's time.  HVAC
members and welders typically do not perform silica-generating tasks.  

		And while I cannot answer specific questions related to the United
Association and the pipe trades, I'll make sure that comments you pose
are answered in our post-hearing comments after consulting with
Ms. Shadrick.

		And with that, our next speaker is Charles Austin.

		MR. AUSTIN:  Good morning.  My name is Charles Austin.  I'm an
industrial hygienist representing 216,000 men and women represented by
the International Association of Sheet Metal, Air, Rail and
Transportation, SMART.

		The International Association of Sheet Metal, Air, Rail and
Transportation welcomes the opportunity to comment on OSHA's proposed
rulemaking on occupational exposure to respirable crystalline silica.

		Sheet Metal Workers Union has very important concern about the health
and safety of our membership.  We collaborated with the Building Trades
Department of the AFL-CIO and AFL-CIO Safety and Health Department to
address the issues in the standard concerning the proposed permissible
exposure limits, assessing exposure and determining controls, regulated
areas and access control plans, competent persons, methods of
compliance, respiratory protection, communication training, medical
surveillance, and recordkeeping.

		SMART fully supports the Building Trades and AFL comments.  Today, I
will provide testimony on issues that are specifically relevant to the
unique nature of our membership in our industry where silica exposure is
a concern.

		The SMART Union represents construction workers who perform tasks in
different types of work environments, including new construction, large
retrofit construction, and small contracted work.  Sheet metal workers
are concerned to exposure to silica from activities such as chip-in,
hammer-in, masonry saw cut-in, and drilling into content and brick and
mortar while installing mechanical equipment for ductwork, installing
anchoring and clamp systems, and installing seismic restraint systems.

		Typically installing ductwork involves a crew of three to four sheet
metal workers, two of whom would do the drill-in or cut-in.  Each of the
steps to complete these tasks, projects varies in time depending on the
environmental conditions, scheduling, and project specifications.  The
step that exposes our workers to drilling into and cutting concrete or
brick is only a very small proportion of the overall project.  The time
spent drilling into or cutting concrete is no more than five percent of
the entire installation task and a crew's total work time.

		Sheet metal workers use various tools to complete job tasks.  Many
times these tasks require overhead work, which increases the chance of
exposure because the dust passes through the worker's breathing zone. 
In addition, much of this work is done indoors.  Working indoors can
increase dust exposure compared to working outdoors because decreased
general ventilation in indoor environments can trap dust.

		Drill into concrete or brick is done with handheld hammer drills. 
Cutting is done with handheld circular masonry saws.  When using
handheld hammer drill tools without controls, their exposures can be
intense.  When drilling into concrete with handheld hammer drills, the
worker's face is close to the source of the dust because the task
requires accurate hole penetration.  When sawing into concrete, there's
slightly more distance between the worker and the dust generated than
when sawing, but the dispersion of dust generated is larger.  

		While conducting these tasks, workers performing drilling and cut-in
are exposed.  Other members of the crew are exposed, and other trades
who typically perform tasks near sheet metal workers are exposed,
including iron workers, drywall finishers, electricians, cement masons,
and plumbers.

		Controlling dust exposure can be achieved in many ways.  One way sheet
metal workers control exposure is with the use of commercially available
control devices from both handheld hammer drills and masonry saws.  They
are commercially available hammer drills with built-in dust collection
systems, as well as ones that can be attached to vacuums. 

		There are commercially available handheld masonry saws that come with
vacuum and/or water attachments.  Tool manufacturers have developed
commercially available hammer drills and dust control systems.  The
first dust control system contained a built-in vacuum dust extraction
attachment on the hammer drill that controls dust generation at the
source.  The use of a collection chamber on the hammer drill can be
changed in less than one minute to maintain work productivity.

		The second dust control uses a vacuum hose connected to a hammer
drill, removing dust at the source and storing extracted dust in a
vacuum storage container with dustless exposure when emptying. 
Extracted dust can be emptied in two minutes.

		The type of filtering system uses a high efficiency particulate air
HEPA filter.  The use of engineering controls dust at the source with
the vacuum system minimizes cleanup after the job completion.  The
prevention of tripping over hoses was accomplished by keeping close --
containers close to the worker and warning signals.

		Tool manufacturers have developed commercially available masonry saws
and dust collection systems.  The handheld masonry saw built-in
attachment controls dust generation at the source either by using vacuum
systems or water attachments.  The vacuum system has a vacuum hose
connected to the masonry saw that removes dust at the source and stores
it in a vacuum storage container with dustless exposure when emptying.

		The second method uses a 12-foot water line feed attachment that feeds
water to the source of the dust generation.  The water line is supplied
from a compact, easy to use, four-gallon tank that is efficient.  It has
an electric pump so there is no manual pumping required.  It's powered
by a lithium-ion battery that can power a unit for a continuous
45-minute run time.

		Preventing slips and falls from wet surface using masonry saw requires
sheet metal workers implementing a maintenance system using a wet/dry
vac to remove excess water.  Tripping hazards are removed by keeping the
water tank close to the worker and warning signals.

		The use of these control measures not only control dust at the source,
but also prevent exposure to other trades.  If all trades use
engineering controls measures, the dust can be controlled at the source,
and workers and bystanders are protected.

		In closing, the International Association of Sheet Metal, Air and Rail
Transportation is in support of OSHA for conducting rulemaking on
silica, recognize the exposure to silica to all construction workers; we
support OSHA's proposal to reduce exposure to silica and comments
submitted by the Building Trades Department.

		Thank you.

		JUDGE SOLOMON:  Okay.  Who's next?

		MS. TRAHAN:  Next up is Deven Johnson.

		MR. JOHNSON:  Good morning.  My name's Deven Johnson.  I'm the
Director of Training, Health and Safety for the Operative Plasterers'
and Cement Masons' International Association.  We represent about 38,000
plasterers and cement masons who make their living in our industry.

		I've been a cement mason for 31 years, and I worked over 15 of those
years with the tools of my trade, and I have many, many thousands of
hours working in silica dust-generating environments.  I don't have a
big credential behind my name.  I'm not an industrial hygienist or a
Ph.D.  I'm a cement finisher with a sore back and a couple bad knees,
but I think I bring a unique perspective to what we're talking about
here today.

		I want you to think for a minute and look around this room and imagine
that the room we're in right now, that the walls and the ceiling and
those columns are all concrete.  And then imagine that this room is
inside a hydroelectric powerhouse, deep inside that powerhouse.

		Now, I want you to envision that your task as a cement finisher is to
grind every surface of this room in preparation of finishing the
concrete in this room.  And in order to do that, you're going to use a
diamond grinder.  Now, these diamond grinders are electric or pneumatic
in nature.  They come with masonry cups or with abrasive diamond discs
on them.

		But in order to prepare the concrete surfaces in this room, you're
going to have to grind every square foot of the surfaces in here and
to -- order to prepare it properly, you're going to have to remove the
entire surface layer of every surface in this room.  And in doing so,
you're going to create respirable silica dust.

		Now, think about a couple cement finishers running grinders eight
hours a day in this room with no outside exposure.  What has to happen
is -- and I did that for many years, and many tens of thousands of
cement finishers have worked in that environment day after day, year
after year.  And there's many, many tools on the market nowadays that
can help alleviate that, and Charles, who spoke just before me, did a
very good job of articulating a lot of those tools.  We use many of the
same tools.

		We don't have to reinvent the wheel here.  Those tools are available
to industry right now.  Industry will tell us that it's cost prohibitive
to use those tools.  That's BS.  They'll say that, and they have said,
that the setup time of using those tools is prohibitive.  Those tools
come integral with all the things you need to collect the dust built
into them.  There's nothing more complicated or timing consuming than
plugging the device into a wall and turning it on and using the tool.

		They'll tell us that wet methods of cutting or grinding concrete are
prohibitive on cold weather construction sites.  That's also BS.  If
it's so cold that you can't use water control methods on a construction
site, the construction site's going to be shut down.  I guarantee you
that if a contractor is looking at receiving a bonus for completing a
job ahead of schedule, he will find a way to keep the job going.  It
happens every day.

		Construction workers all across the country are great at improvising,
adapting, and overcoming challenges because we work in an environment
that's constantly changing.  There are -- all the tools that we need to
protect workers are already out there.  They're available.  They're not
prohibitively expensive, and they need to be implemented.  So we
encourage OSHA to utilize those -- recommend the utilization of those
tools in the standard.

		Another thing that -- utilizing these dust collection tools and
concrete dust-generating and silica-generating operations, another
reason for it is the other workers that are working in the area.  If we
were in here doing work in this particular room, there may be other
construction workers -- carpenters, electricians, plumbers -- working in
the same area.  You can protect those workers just by using the proper
tool the first time when the cement finisher is utilizing his tool.  It
protects all the workers.

		One of the other things that collecting the dust from these operations
on the front end does, it saves time on cleanup.  Some of the industry
people have said that it's prohibitive to do that because it takes more
time to collect the dust.  That's also not true.  If you're collecting
the dust as it's generated and it's going into a HEPA-filtered
container, it's not being blown all over the job site, you don't need
anybody else to clean it up.  It's already contained.

		Another thing is, an individual who is working in an environment where
he's -- he or she is constantly bombarded with concrete dust all day
long, your productivity drops as you get more and more miserable as the
day goes on.  Commonsense would dictate, if you're not blasting me in
the face with dust and sand and silica for eight hours a day, that I'm
going to feel physically better and I'm not going to be as tired and
exhausted and pissed off as I normally would be at the end of the day.  

		Your productivity goes up, so the argument that these engineering
controls cause productivity to go down are just wrong on the face of it.
 And I guarantee the people that are making those statements have never
earned a living running a concrete grinder.

		Another issue that is important to our people in our industry is when
you generate all that concrete dust, whether it's through sawing,
grinding, chipping, or bushing, at the end of the day, you're covered
with that material.  You do the best you can to blow that dust off you
and shake it off you, and then you get in your truck and you drive home.
 You're taking all that material home with you.

		When my daughter was 10 years old, she got eczema on her hands, on her
fingers, and to this day, if she's around any dry concrete, if I do a
project at home that involves concrete, if she's around me, she's
sensitized to the cement because I've brought so much concrete dust
home.

		Excuse me.  I just want to make another comment on medical
surveillance.  There's a saying in construction that every
superintendent and every guy running a construction job out there wants
a 25-year-old construction worker with 25 years experience.  And,
obviously, there's some problems with that scenario.

		As construction workers age, they all have concerns about their
viability in the marketplace.  And as was said earlier, any standard
that OSHA puts forth, we would hope would have protections for those
workers.  I've seen over the years, workers do everything they can to
avoid reporting injuries or reporting an illness that they might have
because the construction industry is a very small environment even
across the entire country.  If word gets out that you're suffering from
some ailment or you've got a bad back or a bad knee, you suddenly find
yourself not employed anymore.  And that shouldn't happen.  And we
should do everything we can to make sure that workers' medical records
remain private so that that would encourage workers to participate in
medical surveillance programs so that we have better information to
protect workers going forward.

		I'd just like to end by saying that the Plasterers' and Cement Masons'
International Association fully supports the Building Trades position on
the silica standard.  And we thank OSHA for the opportunity to be here. 
Thank you.

		JUDGE SOLOMON:  Who's next?

		MS. TRAHAN:  Dan Smith.

		MR. SMITH:  Good morning.  My name is Dan Smith.  I'm the director of
training for the Bay Area Roofers and Waterproofers Training Center in
Livermore, California.  I'm also on the National Curriculum Development
Committee of the United Union of Roofers, Waterproofers and Allied
Workers, representing roughly 25,000 workers.

		I've been in the roofing trade since 1975.  I was business manager of
Local 95 for 28 years in San Jose, California, and I've been an
instructor in the apprenticeship program for 32 years.  Our work
involves a variety of roofing, some of which includes silica, that being
concrete roofing pavers and concrete roofing tiles.

		We agree with the statement that the National Roofing Contractors
Association said in their comments that exposure to crystalline silica
during the vast majority of roofing processes and systems is the
exception, not the norm.

		Concrete tile, concrete pavers are a very small portion of our
industry.  Concrete tile, less than 50 percent -- far less than 50
percent of the residential.  Concrete tile, probably single digits, and
commercial pavers, probably still in the single digits.

		However, when we are doing that type of work, it is a vast exposure,
despite the fact that when we are cutting the tile, it's probably only 6
to 10 percent of the day.  We usually only cut for about a half an hour
to 45 minutes out of a given day.

		So what does that mean?  Let me give you a tangible example, and I'll
use my own home.  My house is a three-bedroom, one-bath house.  It's got
2100 square feet of roofing.  It was built in 1955, nowhere near as many
cuts as elaborate as a modern home would be today.

		If my house was to be roofed with concrete tile, I have two valleys
and six hips.  If you think of a valley as an inside corner and a hip as
an outside corner, the total length of those is 190 feet.  Both sides
would have to be cut.  So we're talking about 380 feet of cutting with a
1-inch -- 1/8th-inch tile blade, diamond blade, that would generate 570
cubic inches of dust in that short period of time I was just talking
about.

		To give you another perspective, there are 228 cubic inches in a
gallon, so 2½ gallons of dust over a very short period of time.  And
it's not just the roofer.  It's everybody on the job.

		NIOSH did health hazard evaluations in 2003 and 2005, and they're
referenced in the written materials that the International Union
submitted.  And to monitor exposures over an eight-hour day, they did a
time-weighted average; 74 percent of the workers on the job site
exceeded the general industry standard, and 33 percent exceeded the
construction industry.  So it's not just the worker doing the cutting.

		What does that mean in real terms, something that we can identify
with?  Some years back, one of my members walked into my office with a
very unusual object: a plumbing trap.  Handed it to me.  First thing I
noticed, it was pretty heavy, two to three pounds.  He said that's from
my shower at home. 

		At the time, he had been in the tile industry, cutting tile for about
10 years.  He said, my drain kept getting clogged.  No matter what I put
in there, I couldn't get it unclogged.  I called the plumber.  He
couldn't get it unclogged.  He took it off.  I looked inside.  It was
filled with one-eighth -- one-quarter of an inch of being completely
closed with what I would call reconstituted cement.  This came off of
his body.

		And I think it's important to note, he didn't do his laundry in the
shower.  He only washed the exposed areas of his body: his hands, his
arms in the summertime if he was wearing a short-sleeve shirt, his face,
and his hair.  Fifty percent of those examples I gave are his breathing
zone.  Not in his breathing zone; they are his breathing zone.

		When he came in, he didn't mention the PEL to me.  He simply stated
the obvious, and he asked if he could have training to get into some
other aspect of the trade, which he did, and he got out of the tile
portion of it.

		This massive release of dust over a short period of time does create a
challenge for equipment to deal with it; HEPA filters, wet methods,
they're all a challenge, but they can be met.  In California, this was
mentioned yesterday under Code of -- California Code of Regulations,
Title 8, Section 1530.1. 

		The roofing industry is exempt from cutting roof tiles and roof
pavers.  Despite this, the roofing industry has voluntarily started and
exclusively cuts roof pavers wet.  Why?  Because of what I think the big
reason is, the nuisance that was talked about by the previous speaker. 
It was simply, it's really hard to work and avoid dust at the same time.

		In the U.K., it is absolutely prohibited to cut roofing tiles dry. 
The National Federation of Roofing Contractors, their contractors
association, provides guidance and training.  They use wet saws on
scaffolding at the roof level at the eaves.  They use a mister on the
tile saw.  They use wet saws on the ground, or they use a system like
the hytile, 

h-y-t-i-l-e, which is a tile breaking tool.

		But the two big things that they stress are training and project
planning.  We heard yesterday about freezing conditions and all this
stuff.  We know what's going to happen tomorrow.  I fly out tomorrow. 
They're not going to decide tomorrow morning whether or not their plane
needs to be deiced.  They're thinking about it today, and they're
preparing for it today.  We do the same thing.  It's project planning.

		And I talked about this nuisance factor.  One of the other things that
I want to -- and the cost, is there a cost to this?  Of course there
is.  We heard that yesterday.  I'm not an economist, but I know about
cost curving.  I know in the beginning, it costs this much, and as time
goes by, the curve goes down.  And it may even cross the line to where
it's more efficient.

		Fall protection.  Everybody complained about fall protection.  It's
going to cost so much, until they realized, people who are confident
that they will not fall are much more productive.  Very simple.

		Several years ago, I was on a committee.  I was the head of the
Building Trades in Stockton.  We had a PLA for a five-year project with
some dams and tunnels, and we had what was called that time a CSIP, a
Cooperative Self-Inspection Program.

		We invited the workers to give comments, and we invited them to our
meetings.  At one meeting, a worker stood up with his suggestion, and
his suggestion was that they run a water truck down the dirt roads.  The
vice president, who was at the meeting stood up, threw his papers,
pushed his chair back, it fell down, and said, I knew what this was
leading to.  This is what you want.  You want my money.  You want my
profits.

		To his credit, the person who stood up said -- didn't say a thing
until he was done.  Then he simply asked a question.  He said, sir, if
you're walking down a dirt road and a car passes you creating a lot of
dust, what do you do?  He said, I turn and walk away from the dust.  He
said, exactly, but we're on a mountainside.

		Now, that wasn't the end of it.  We met every other month.  Two
meetings later, the same VP came back and apologized.  He said, I didn't
realize that you had to stop working to avoid dust.  At the end of the
project, Sierra Constructors took out full-page ads in every town where
the workers came from thanking them for the job and especially
highlighting their addressing safety and health and how it led to a
successful and profitable job.

		So the arguments we heard yesterday, I can agree with them.  It's
going to cost money in the beginning, but we won't know until we
implement how much it will save in the long run.

		And for the final argument that the NRCA is making about a trip hazard
for having hose up -- hoses up there, first of all, on a sloped roof,
everybody's in fall protection to begin with.  It's no different than an
air hose or an electrical cord that would be on the job site.  Then I
would add to that, how is that more of a trip or fall hazard than the
near zero visibility that is created cutting roofing tiles dry?

		We support this standard, and we are really hopeful that this brings
together all of the industry and all of the manufacturers to develop
economic and healthful ways with tool innovations and whatever it takes
to make our workplace safer.

		Thank you.

		JUDGE SOLOMON:  Okay.  Who's next?

		MS. TRAHAN:  Lamont Byrd.

		MR. BYRD:  Good morning.  I'm Lamont Byrd.  I'm the Safety and Health
Director at the International Brotherhood of Teamsters.  The Teamsters
Union, we welcome the opportunity to comment to the OSHA proposed
rulemaking on occupational exposure to respirable crystalline silica.  

		We collaborated with the Building Trades and the AFL-CIO Safety and
Health Department to address issues in the proposed rule concerning the
PEL, medical surveillance, and other issues that are relevant to our
membership.

		We fully support the BCTD and AFL-CIO comments and testimony, and I'll
provide testimony on issues that are specifically relevant to some of
the issues concerning our membership.

		The Teamsters Union represents approximately 47,000 workers who were
exposed to silica, including 12,000 ready-mix drivers, 35,000 railroad
maintenance of way workers, and roughly 500 or so pipeline drivers who
were involved in hydraulic fracking activities.

		In the Preliminary Economic Analysis, OSHA identified truck drivers in
the ready-mix concrete industry as one group of potentially exposed
workers and identified one job task, chipping barrels or chipping drums,
as the only task that results in silica exposure.

		As we took a look at, you know, our membership, we identified
additional job tasks and additional driver jobs that may result in
exposure to silica on construction sites.  These drivers'
responsibilities include loading, mixing, and delivering of concrete,
concrete block delivery, bulk and bag concrete delivery, and general
yard maintenance at the batch plant. 

		A more detailed description of these drivers' work activities are --
is provided in our written comments.

		This morning, I'll focus on what's going on with our mixer drivers. 
In addition to chipping the drum, mixer drivers are exposed to silica
when they perform tasks such as loading the mixer drum with dry product,
such as sand, concrete, fly ash, and pigments.  At facilities that have
several loading areas and trucks are being loaded simultaneously, dust
levels can get quite high.

		We had an opportunity to take a look at an industrial hygiene report
from one of our ready-mix employers, and the industrial hygiene report
indicated that there were levels of respirable dust for drivers and yard
workers approaching 60 µg/m3.  And although in this case, the
percentage of crystalline silica was pretty low, there is that
suggestion that respirable dust levels do get quite high on the yards of
these batch plants, and there could be a real risk of having some silica
exposure there.

		On the construction site, when mixer drivers deliver concrete, they're
on site for 20 to 30 minutes per a delivery, and they may experience
exposures to silica as a result of activities that are happening
adjacent to where they are delivering the concrete.

		For example, at many high-rise job sites, drivers are required to load
and -- required to unload concrete materials near dumpsters and trash
chutes where waste materials from the job site are collected.  These
materials are dropped down a chute from an elevated floor into
dumpsters, and we've seen significant dust generation occur.

		An additional factor that contributes to drivers' exposure is the
number of hours drivers work both on a daily and weekly basis.  In the
PEA, OSHA estimated that drivers worked eight hours a day, and of that
workday, drivers spend about six hours making deliveries away from the
batch plant, and during this period, exposure to silica is minimal.

		Although some drivers may spend six hours per day driving to and from
delivery sites, nearly all Teamster ready-mix drivers work at least 12
hours a day, and they typically have 60-hour work weeks.

		As I shift gears and talk about our rail members, the Brotherhood of
Maintenance of Way Employees Division of the Teamsters Rail Conference,
that's BMWED, represents approximately 35,000 maintenance of way workers
employed on Class 1 commuter and short line railroads throughout the
U.S.  Railroad maintenance of way workers are exposed to silica dust
during various track maintenance activities.  These workers are
classified as laborers, machine operators, heavy equipment operators,
on-track roadway machine/maintenance machine operators, welders, and
foremen.  They are responsible for building, maintaining, inspecting,
and repairing the railroad roadbed, including rails, ties, ballast,
bridges, tunnels, and other components associated with the railroad
track right of way.

		The work crews range from 2 workers to over 200 workers just depending
on the magnitude of the project.  

		As discussed in the PEA, a railroad track is usually supported by a
bed of material called ballast.  Ballast transmits and distributes load
of the track, the load of the track and the rolling equipment evenly
across the roadbed.  It controls the movement of the track.  It also
maintains proper track cross-level surface and alignment, and it
provides drainage to the tracks.

		Virtually all railroads use crushed granite or slag for ballast, and
ballast may contain upwards of 40 percent silica.

		Maintenance of way workers experience significant exposure to silica
whenever silica-containing ballast is disturbed during track maintenance
activities.  Workers who operate the on-track roadway maintenance
machines, such as ballast regulators, tampers, and mechanical brooms,
often create visible clouds of ballast dust. 

		Workers who are performing job tasks adjacent to where these machines
are operating are exposed to significant dust levels.  Other job tasks
such as ballast dumping also create high potential for exposure to
silica.

		In response to a petition for rulemaking filed by the BMWED, the
Federal Railroad Administration published a final rule in 2003
prescribing minimum safety standards for railroad on-track roadway
maintenance machines.  These standards are designed to protect track
workers and operators from hazards associated with operating equipment.

		Significantly, the standard requires the use of engineering controls
in newly manufactured -- now this rule was promulgated back in '04, so
this is post-2004 manufactured machines, to protect the operator from
airborne contaminant such as silica dust.

		However, the FRA regulation neither provides protection to workers
outside the cabs of such equipment, nor does it provide protection for
operators of pre-2004 equipment.  The FRA standard incorporates, by
reference, the provisions of OSHA standard 1910.134 and 1910.1000 for
the protection of operators inside of cabs of post-2004 machines in the
event the engineering controls fail.  And for grandfathered machines
that don't have engineering controls and for track workers, the
provisions of 1910.134 and 1910.1000 apply.

		So we believe that OSHA's proposed rule on silica will substantially
reduce exposure to railroad track workers.

		The BMWED Teamsters believes that engineering controls required for
certain roadway maintenance machines, in addition to controls such as
wetting down ballast cars prior to unloading and using remote operation
dump doors on ballast cars, are feasible controls to reduce silica
exposure for all workers in the railroad industry.

		With respect to our hydraulic fracking operations, we represent
approximately 500 drivers who deliver materials, equipment, and fracking
sand to hydraulic fracturing sites.  According to Union representatives
that I talk with at various sites, materials and equipment are
oftentimes delivered in track vehicles that have open cabs.  So the
drivers of these vehicles are exposed to the elements and are
potentially exposed to dust containing silica.

		In addition to operating onsite vehicles, Teamsters are involved in
removing spoils and installing gathering lines.  Both job activities
have been identified as being dusty jobs because the jobs either
generate dust, so they're occurring in close proximity to other dusty
operations.

		In conclusion, the Teamsters Union commends OSHA for conducting this
rulemaking.  As noted in my comments, we think that you should consider
taking another look at the driver jobs and possibly expanding those jobs
to include some other jobs.  

		For railroad workers, NIOSH did some studies.  They determined that
railroad track maintenance workers were exposed to silica dust, and in
light of this determination and the availability and feasibility of
engineering controls to protect workers both inside and outside the cabs
of modified machines, the Teamsters and BMWED encourages OSHA to
promulgate a protective rule.

		Thank you.

		JUDGE SOLOMON:  Okay.  And last, I assume?

		MS. TRAHAN:  Sarah Coyne.

		MS. COYNE:  Good morning.  On behalf of General President Rigmaiden
and myself, we'd like to thank everybody for the opportunity to be here
today to share our thoughts on this very important issue.

		As stated, my name is Sarah Coyne.  I'm with the International Union
of Painters and Allied Trades.  We represent over 95,000 members across
United States and Canada, and I am a painter by trade.

		When I was posed the question and the opportunity to speak in front of
you today, I thought about all the different options.  You know, I could
talk all day about sandblasting, grinding, spray, sweeping, et cetera,
et cetera, but I think the panel has done just an outstanding job on
presenting everything that needed to be presented on the technical
aspects and the economic aspects of it, medical surveillance, et cetera,
et cetera.

		What I decided to do as the Health and Safety Director for my
International was to get personal to get you to think about why we're
here and what we want for our membership.

		I want you to think about all the people that you see when you're
driving around, building America.  And I want you to think about your
wife, your husband, your brother, your sister, your children, your
grandchildren.  Would you be all right with them being exposed?  Would
you be in this meeting today if there was silica dust coming through the
ventilation system?  Would you go to work every day if it was a
permissible exposure limit?

		Some people might say that, well, you chose to be in construction, and
you know what?  You're absolutely right.  I didn't have to be a painter.
 I chose to be a painter, and I'm very proud of my successes as I can
drive around California and I can show you what I was a part of.

		But I'm not expendable.  And I don't think that anybody should be
subjected or exposed to anything that can kill them.  

		This is a difficult topic for me because the testimony that I have to
provide today is difficult because it's pertaining to a friend of mine,
a dear friend who got up and went to work every day and did a good job. 
And because of that, he has a death sentence.  He has silicosis.

		And as I was looking into coming here today, I spoke to a lot of
people in my union who also have silicosis, but you know what?  They
can't come here today.  One can't travel, but the majority of them are
in fear of losing their job.  Yes, they still work out in the field.

		And you know what?  We can't really change what happened yesterday,
but collectively, morally and ethically, I think that together, we can
change what happens tomorrow.  So with that, I'd like to share this
testimony about my friend.

		He began his apprenticeship back in 1974, and he was fortunate to have
some excellent mentors who shared their skills, knowledge, and
experience of being an industrial painter.  They stressed the importance
of safety in the workplace and how to protect himself and coworkers from
the dangers ever present in our trade.  "I knew that construction work
could be dangerous, but it's a life that I chose to take on."

		In 1970, the OSHA Act became -- was brought into law and became
effective in 1971.  However, the laws, regulations, and warnings were
not sufficiently communicated to the workers on the job site.  There
were no education sessions held or health warnings posted about the
tools and materials they were using.  No one was offered health
screening or consistently provided PPE -- I'm sorry -- personal
protective equipment, nor was the use of personal protective equipment
enforced on the job by the contractor.

		At that time, no one really realized just how hazardous everything was
to the health -- to their health.  

		From apprenticeship to journeyman, he became a professional craftsman
with expert skills and vast knowledge of the trade that he enjoyed and
looked forward to performing every day.

		Typically when people think about painting, they see application of
coatings on a substrate rather than the steps necessary prior to the
actual application.  Aside from the looks of a finished application of
paint, one of the most important steps to ensuring a quality finish is
the proper preparation of the substrate surface before painting.

		As it turns out, surface preparation is also one of the most dangerous
tasks of the job, a task that he performed countless times over the
course of many years.

		Different substrates, different coatings all require specific methods
of preparation.  Sometimes the prep work required simple scraping and
sanding with hand tools.  Other times, more aggressive methods such as
grinding, power tooling, or abrasive blasting was required.

		Each of these methods could generate a considerable amount of nuisance
dust, the kind of dust we would typically blow off with compressed air
immediately prior to the coating.  

		To protect himself, he would wear a dust mask, but at the end of the
day when cleaning up, he would blow his nose and could see the dust in
the tissue despite wearing a dust mask.

		They still weren't aware of the toxicity of that dust, so they just
brushed it off or washed it away after a day's work.  None of them gave
it much thought.  It was just part of the job, like dirt under their
fingernails.

		When abrasive blasting, the blaster wears an air-supplied hood and a
cape, along with other personal protective equipment.  Quite often
during his apprenticeship and my own, and even as a journeyman, he
worked as a blaster -- he worked with a blaster as a pot tender.

		A pot tender is someone who would ensure that the pot for the blaster
was filled with abrasive materials and running properly for the blaster.
 He constantly monitored the abrasives and made adjustments just as the
blaster for the surface preparation, and in doing so, this consisted of
carrying 75-pound bags on your shoulders, running up to the hopper,
cutting it open and then pouring the sand into the blasting machine,
which created a ton of dust which usually went right into the face of
the pot tender.

		Since he was usually a distance from the actual blasting operations,
back then, there was no need for him to wear PPE.  And aside from the
standard safety glasses, boots, there were no requirements to wear any
type of respiratory protective equipment.

		Dust was an ever-present nuisance when acting as a pot tender.  The
blaster's required hood and cap shield him from the dust, but the pot
tender however, depending on the direction of the wind, would breathe
unprotected and considerable amounts of that nuisance dust.	 Other
workers on the job site as well who were not performing either of these
tasks were also exposed to the dust.

		When preparing steel for coatings, dust was generated with the
abrasive, would fracture and release fine particulates, sending it
airborne into his airways through unprotected nose and mouth.  The
preparation of concrete was probably the worst.  Prepping concrete
requires opening what's referred to as bug holes and removing latent --
excuse me -- generating a huge amount of dust, dust that was like a
fine powder, dust that would coat everything in close proximity and dust
that unsuspectedly weighed heavy on his lungs.

		By 1995, my friend was experiencing breathing problems.  Painters were
now required to wear respirators when spraying.  Also required by OSHA
of the painters' jobs were annual medical evaluations, fit testing, and
pulmonary function testing.  And over the years, he noticed that his
lung function was getting worse and was borderline unacceptable
according to these tests.

		And if the results of the medical testing determined that he was not
able to safely wear a respirator, then his career and his health would
be in jeopardy.

		In the year 2000, he was offered medical screening for -- actually,
everybody on the job was offered medical screening, and he participated
and was diagnosed with an associated lung disease.  The doctors at the
screening told him to go to his physician for additional help with
dealing with it, and it was a very difficult time of his life.

		His wife -- he and his wife divorced, and he was trying to raise his
children himself, which left him little time for anything other than
taking care of them and working.  Like anyone in his situation, he put
his health on the back burner and tried to take care of life
necessities.  There were no resources for him that were available at
that time to assist financially for someone with job-related lung
disease.  And he did the best that he could to work to support himself
and his kids.

		As time passed, it became very difficult for him to do his job.  He
lost his breath very easily, and a common cold would often turn into
pneumonia.  Excuse me.  He wheezes, and shortness of breath is a
constant occurrence, and he could no longer wear a respirator,
therefore, could no longer work.

		As time -- excuse me.  He was blessed in his personal life to be able
to remarry to a caring woman, and while she was supportive and patient,
the things that they enjoyed were now limited due to his health
conditions.  It was embarrassing for him when a group of them and his
kids would go biking and they had to wait for him because he couldn't
breathe.

		His private life, his intimate life with his wife was greatly affected
because he could not breathe.  Their time with their grandchildren was
strained because of his health.  And one day, it dawned on him that
there was not a single aspect of his life that was not affected by the
disease in his lungs.

		My friend went for a second screening in 2007, and the doctor
recognized that the lung disease had progressed and referred to him for
additional pulmonary testing.  At the end of those examinations, the
doctors explained to him that not only did he have this original
disease, but that the scarring in his lungs was actually silicosis, and
it wasn't diagnosed back when he had his first exam, so he lost a lot of
time.

		In 2008, DOL and OSHA recognized that his health conditions were a
result of his job, and he was presented with a medical card recognizing
that he does have silicosis and COPD.  The DOL card provides him with
much-needed financial assistance to purchase the doctor-prescribed
inhalers that weren't covered by his health insurance.  And he relies on
the aid of three inhalers every day to help him perform the simplest
tasks.

		The life that he had -- the life that he thought he would have has
changed in ways that cannot be corrected.  He lives in fear because his
grandfather was a coal miner who developed black lung, and as a result
of working in the lung -- or working in the mines, he died at 58 years
old.  He came home one day and died of a massive heart attack related to
lung disease.  He wonders, will this be his demise?

		One thing he can do is to pass on some very important knowledge about
best practices to prevent harm or illness related to job -- to the job
and to the job site to others in the construction trades.  He intends to
let others know how dangerous and toxic this dust is and let them know
that a dust mask will not adequately protect them from his fate.

		He will refer them to OSHA so that every worker knows and understands
their rights and their right to have a safe and health environment on
the job site.  It is his sincere hope that changes will occur as they
have in lead and asbestos.  It is also his sincere hope that others will
learn of the serious hazards of silica and become more aware of how to
protect themselves from developing silicosis.

		He says, "Working with my hands have been a rewarding career, and I
wish I could continue to work in the field, but the mistakes of my
life," he says, "at the hands of my job as a painter" will keep him from
it.  The unforeseen consequences of the invisible dangers of silica have
been a hard lesson for him to learn, and he thanks everybody for the
opportunity to share his story and for listening.

		JUDGE SOLOMON:  Thank you.

		MS. COYNE:  Um-hum.

		MS. TRAHAN:  That's the conclusion of our prepared remarks, Judge.

		JUDGE SOLOMON:  Well, it's 11:05, so we had expected that they would
go a little longer. 

		Ms. Robinson, I see nodding of heads.  So do you want to start with
the questioning now, or do you want to take a break?  How do you want to
handle this?

		All right.  We'll take a -- I overheard that.  We'll take a
five-minute break, so that means we'll be back here at 11:10, and then
I'll start with some questions from the public.

		(Off the record at 11:05 a.m.)

		(On the record at 11:10 a.m.)

		JUDGE SOLOMON:  Okay.  Let's go back on the record.  And at this time,
do you have any documents you want to proffer?  The statements that you
have given, are they reduced to writing?

		MS. TRAHAN:  Not unless individual panelists would like to since most
of ours are -- consist of handwritten notes and whatnot.

		JUDGE SOLOMON:  You want to go around the panel?

		MS. TRAHAN:  Gerry?

		JUDGE SOLOMON:  Is there anyone who has a written statement you want
to proffer?

		MR. SCARANO:  I can hand mine in.

		MS. TRAHAN:  That was Gerry Scarano.  So enter --

		JUDGE SOLOMON:  Anybody else?  Mr. Byrd?

		MS. ROBINSON:  Sir?  Mr. Austin?  May I read these into the record
and just --

		JUDGE SOLOMON:  Number them first --

		MS. ROBINSON:  Yes.  I'll --

		JUDGE SOLOMON:  -- please.

		MS. ROBINSON:  -- number them first.

		So Gerry Scarano's testimony will be numbered as Exhibit 44, and if I
may enter it into the record, Your Honor.  

		The second testimony --

		MR. BYRD:  Lamont Byrd.

		MS. ROBINSON:  Oh, Mr. Byrd's testimony, and Mr. Lamont Byrd's
testimony will be labeled as Exhibit Number 45.  I'd like to offer that
for the record.  

		And, finally, Charles Austin's testimony will be labeled as Exhibit
Number 46, and I would likewise like to enter that into the record.

		JUDGE SOLOMON:  Okay.  As there is no objection, all are entered into
evidence.

(Whereupon, the documents referred to as Hearing Exhibits 44, 45, and 46
were marked and received in evidence.) 

		JUDGE SOLOMON:  Give me some idea from the public, how many people
want to ask questions.

		Okay.  We're going to do this until noon and then we'll break at none.
 Ms. Nadeau, you want to come forward?  You're first.

		And then, in the next sequence, any of the people in the rows that had
their -- had your hands up, you want to line -- start lining up behind
her.

		Okay.  State your name for the record and spell your last name again,
please.

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

		We've heard testimony in the past week criticizing OSHA's use of a
45-year work life as the basis for evaluating risk in the construction
industry due to the high turnover in the industry.  Do you think OSHA's
reliance on 45 years of exposure is appropriate?

		MS. TRAHAN:  Does anyone want to -- at all?

		MR. JOHNSON:  I'm sorry.  Could you state the question again, please?

		MS. NADEAU:  Yeah.  We've heard testimony over the past week
criticizing OSHA's use of a 45-year work life as the basis for
evaluating risk in the construction industry due to the high turnover in
the industry.  Do you think OSHA's reliance on 45 years of exposure is
appropriate?

		MR. JOHNSON:  I believe it is.  We've got many members in our
particular union, the Plasterers' and Cement Masons' --

		MS. TRAHAN:  Can -- is he being picked up by the mic?

		JUDGE SOLOMON:  Yes.

		MS. TRAHAN:  Okay.

		MR. JOHNSON:  We have several members, many members in our union of
Plasterers' and Cement Masons' Union who receive gold cards for their
longevity in the trades.  We've given out gold cards all across the
country for 50-year members, 60-year members.  My own local, we had a
75-year plasterer member.  So I think 45 years is relevant.

		MS. COYNE:  This is Sarah Coyne with the International Union of
Painters and Allied Trades.  I think the 45 years is -- is this
working?

		MS. TRAHAN:  It's not going out to the --

		MS. COYNE:  Is an adequate time frame as we have many, many members
who continue to work out in the field with the 45 years.

		MS. NADEAU:  OSHA's also -- unless somebody else has -- somebody
else -- 

		MS. TRAHAN:  Was there any other?  

		I wanted to add to that actually.  The assumption of a 45-year of work
life has been used to estimate exposure and risk for U.S. industries,
including construction, by OSHA and others since 1990s.  The assumption
was rational in 1990 and is probably even more so today. 

		We've got a trend of aging workers in the construction industry.  The
average age of construction workers has jumped by five years in the last
two decades.  In 2010, the average age was over 41 years old, very close
to, of all workers, at most 42 years old.

		This trend is going to continue, and it's predicted that workers over
65 years old and older will increase from 5 percent in 2012 to 8.3
percent in 2020 for the overall workforce.  In 1992, just 11½ percent
of the population age 65 and older participated in the workforce.  By
2020 -- 2022, the proportion is expected to jump to 23 percent.

		We wanted to supplement that by some -- we have actually it footnoted
and written up if it would be helpful, but in the Construction Chart
Book, we have an entry on the aging of the workforce, in particular in
construction and how it is probably more appropriate now than in the
past to use that and --

		JUDGE SOLOMON:  Do you want to enter the whole book, or do you want to
enter that page?  How do you want to do that?

		MS. TRAHAN:  I think I would like to enter a little bit of explanation
about it, some references and the whole book, but for now, I will enter
the whole book and call out Page 14 that discusses the aging workforce,
and also, we will follow up with more substantial evidence in our
post-hearing.

		MS. ROBINSON:  Okay.  Then, if I may, I'm going to enter the
Construction Chart Book, 5th Edition, from April 2013, into the record
as Exhibit Number 47, and you noted specifically Page 14 of that book.

		JUDGE SOLOMON:  Okay.  And that is entered into evidence.

(Whereupon, the document referred to as Hearing Exhibit 47 was marked
and received in evidence.) 

		MR. SMITH:  I have a comment on the question.  I find it interesting
that in the question, you use the word "fair."  Every industry has
turnover.  In fact, for high school kids graduating today, they estimate
they'll have seven different careers before they retire.

		So the question, I would turn it back around and say maybe
construction turnover is a little higher than some industries, but is it
fair that the health and safety of someone who makes it an entire career
is diluted by those who have left?

		MR. AUSTIN:  Also in the Sheet Metal Workers, we have a screening
program that we've had for over 25 years where we screen members for
exposure to dust, and the minimum requirement to enter into our
screening program is 20 years.  And we do screenings every year to
different locals around the country.  So we know thousands of workers
that we screen every year that has been in the field for 20 to 30 years.

		JUDGE SOLOMON:  Do you have any more questions?

		MS. NADEAU:  Yes.  OSHA's been -- also has been criticized for
relying on exposure data that does not take into account employee's
entire work shifts.  Do you have site -- do you have worksite studies
that document the time members of various trade spent on
silica-generating tasks during an entire work shift?

		MS. TRAHAN:  And I'll answer that question.  The -- back in 2000, it
was described in the literature, a method of characterizing construction
worker exposure called TB, a more task-based exposure assessment
modeling.

		In 2000 -- in 1999, 2000, and 2008, CPWR conducted field studies
related to silica exposures using this model.  While those studies have
been reported in the literature, it has not been reported, a certain key
exposure variable within those studies, and that exposure variable is
task duration.

		On each of these worksite studies, the researcher not only conducted
air monitoring, but through observing the work, they were able to
document the actual minutes per day that the workers were engaged in
silica-generating tasks.  And while I don't have the results for those
studies ready to present today, we will present them in post-hearing
comments.  We're actually collecting them from paper files right now
from those worksite studies.

		Given that, I didn't know if there was anyone else who wanted to
comment on the question as far as the duration of tasks in a day.

		That's it.  Thank you.

		JUDGE SOLOMON:  Okay.  Maybe one more, and we'll give the other people
a chance to ask some questions.

		MS. NADEAU:  Great.  Why do the Building Trades think it's important
that OSHA develop a mechanism for updating Table 1?

		MS. TRAHAN:  Well, I think that the importance -- what we see in the
industry is we see the use of exposure controls increasing very rapidly.
 We see that individual employers and employers' associations are
measuring exposure with the use of engineering controls.  They are
compiling that information.  And we're going to just see an increase in
the body of evidence as to what controls work and what controls are
really slam dunks for controlling exposures in -- associated with
specific tasks.

		And why the table needs to be updated over time is to capture this
information and to give employers a very good basis for implementing
controls and also assessing where they are in that exposure spectrum
without the need to contract out and conduct industrial hygiene sampling
on a frequent basis.  

		We think that the more tasks that actually end up on Table 1 will help
employers comply with the standard, but will also really drive that
presumptive use of engineering controls in our industry, which is
the -- of course, the end result being reduced exposure, which is, I
think, what everybody here wants.  So --

		MS. NADEAU:  Thank you.

		JUDGE SOLOMON:  Sure.

		MR. KOJOLA:  Good morning.  My name is Bill Kojola, K-o-j-o-l-a, and
I am here representing the National Council for Occupational Safety and
Health.

		I've got a couple of questions.  The first, the Construction Industry
Safety Coalition has criticized the inclusion of notes in Table 1,
arguing that OSHA should just say, you know, for example, quote, "cut
wet," close quote, without any further specifications or information.

		Do you think that kind of general direction would ensure adequate
protection for construction workers who are exposed to silica?

		MS. TRAHAN:  I don't think that, without the specificity in Table 1, I
think it would be very hard to ascertain whether or not the controls
were working.  The notes seem to add to the reasonable -- what a
reasonable person -- not an industrial hygienist, but what a reasonable
person can do to assess whether controls that are in place are actually
working.

		So I think the notes actually serve a very useful purpose and should
be expanded with specificity where the data supports it.  If there
are -- if there is data and studies that, for example, show that
there's a minimum flow rate for water on a wet saw or there's a minimum
ventilation rate for a local exhaust system based on blade diameter, I
think those should be included with as much specificity as possible.

		MR. KOJOLA:  In your view, has OSHA's technological feasibility
assessment captured most of the silica-generating tasks in the
construction industry?

		MS. TRAHAN:  Yes.

		MR. KOJOLA:  Okay.  Thank you very much.

		JUDGE SOLOMON:  Thank you.  Seminario.

		MS. SEMINARIO:  Good morning.  Peg Seminario, Safety and Health
Director from the AFL-CIO.

		A number of the industry groups have argued that the current OSHA
silica standard is sufficiently protective and that OSHA should focus
its efforts on enhanced enforcement of that standard.  Do you believe
that enhanced enforcement is sufficient to protect workers from
significant risk of disease from exposure to silica, particularly in the
construction industry?

		DR. WELCH:  I can address partly that, and I think the issue about
overexposures, I think Chris may have some comments on that.

		I've listened to that argument that the current PEL is sufficiently
protective.  I haven't actually heard any information that would support
that, and I think OSHA's rulemaking includes a lot of very good studies
that say it's not, that there's a risk at the proposed PEL.  

		And in addition to which, there have three or four really good studies
that have come out since the -- that were -- not necessarily, I don't
think, were included in the OSHA risk assessment that continue to
support it.  I think we talked earlier last week about the Chinese miner
study that included over 70,000 workers, about 50,000 exposed to silica,
but those really strongly support a risk of silicosis, COPD, and lung
cancer.  

		And that the general industry PEL of 100 or the construction
permissible in that which is so high, I can't even remember the number,
they're definitely not protective.  And I think OSHA has well
demonstrated that, and it will even get stronger when they're able to
include additional information.

		JUDGE SOLOMON:  Just for the record, you're talking about the Liu
study, L-i-u?

		DR. WELCH:  Yeah.  Well, there are a couple.  There was one -- also,
Chen was the first author, depending on which outcome, where they're
looking at lung cancer or silicosis, but there's -- it's the same
population we're talking about.  Yes, correct.

		MS. TRAHAN:  And actually I did want to respond to that because I've
been thinking a lot about -- there's been claims from -- I think it's
on somebody's talking points list, probably everybody's, that OSHA
should just enforce the current PEL because 30 percent of exposure
measurements are shown to be above it.

		Now, I'm thinking that that is data from OSHA's enforcement database. 
And my actual first industrial hygiene job was enforcing OSHA standards
as an industrial hygienist.  And what I was taught, when you go out to a
job site, you first look for visual clues.  You do screening samples. 
You talk to the workers, and you try to determine who on that job
site -- well, if there seems to be a problem, first of all.  You don't
waste money taking samples as a compliance officer, but you try to
determine who on that job site is probably at the highest exposure
level.  You don't pick everybody on that job site to sample.

		OSHA compliance officers, they don't go out to do, you know,
representational surveys.  They look for exceedances of the OSHA PEL. 
So when the argument is made that if 30 -- if it's only 30 -- you
know, well, if 30 percent of the samples are not in compliance, to me,
that's actually pretty good.  That means that, you know, some in our
industry are really taking this seriously.  

		And we've got 70 percent of the worst-case scenarios that OSHA sees on
the job as being controlled to the current PEL, not stating whether --
anything about the construction PEL and how hard it is to enforce.

		But I think it's a false argument, and I think it's a poor talking
point and it -- but it, you know, resonates well with people who don't
maybe understand how OSHA actually enforces health standards.

		MS. SEMINARIO:  Staying with the enforcement issue, but turning to the
proposed standard which you've indicated in your testimony includes a
new approach with the inclusion of Table 1 and specific control measures
in addition to the permissible exposure limit, from an enforcement
standpoint, what benefits do the Building Trades see in the inclusion of
Table 1 in the proposed silica standard for the construction industry?

		MS. TRAHAN:  Well, I think in a really plain way to look at it is that
it will be easy to determine base level compliance without the need to
demonstrate that a PEL is exceeded.  And I think that's important
because, you know, we've heard that this is a hazard that's on every job
site.  It's ubiquitous.  Therefore, we can't control it, but it's on
every job site, and it's causing cancer and people are dying.  So we
have to control it.

		So how do we determine whether things are in control or not?  And when
you look at the Table 1 option and the notes, it makes it not only easy
for an employer or a worker to see if this is being controlled to the
level that we think is appropriate, but we also makes it easy for a
compliance officer to do it.

		We have something like six or seven percent of the inspections on
construction worksites are industrial hygiene inspections.  So 95
percent of the inspections you see on job sites are from safety
compliance officers, and safety compliance officers could very easily
take a look at what's going on on the job site and see if employers were
fully and adequately implementing Table 1.

		MS. SEMINARIO:  Do I have time for one more?

		JUDGE SOLOMON:  Sure.

		MS. SEMINARIO:  Thank you very much.  

		Staying with the issue of regulation, Mr. Smith spoke about the
adoption of a standard in California that unfortunately exempted the
roofing industry, but just a question of the presence of that standard. 
Did it, nonetheless, have any impact on changing practices in the
industry, particularly dealing with roofing pavers in California?

		MS. TRAHAN:  Dan?

		MR. SMITH:  It did have a big impact with -- well, it didn't have an
impact with roofing pavers.  In the exemption in California, I think it
came about because it flew under the radar.  Contractors were already
using wet methods for cutting pavers, so they didn't see a point of
showing up.  I think the ones that showed up were the ones who had a
vested interest in continuing to cut roofing tiles and pavers dry that
did not want to comply.

		So -- and I honestly cannot remember on a commercial job site where
pavers are being used on the roof.  I cannot remember when I last saw
one cut wet.  It's become a standard practice as for -- 

		MS. SEMINARIO:  Cut dry or --

		MR. SMITH:  Cut dry.  I'm sorry.  Cut dry.  Thank you.  I want to get
that in the record.

		As far as roofing tiles, they are still routinely cut dry in
California consistently.  I -- in fact, I can't remember when I have
seen them cut wet.

		MS. SEMINARIO:  So having a regulation in place at the federal level
that would also then apply in the state of California, would that help
change the practice in this industry dealing with the cutting of roofing
tiles dry?

		MR. SMITH:  I certainly hope so.

		MS. SEMINARIO:  Thank you.

		JUDGE SOLOMON:  Okay.  Next?

		MR. FRUMIN:  Eric Frumin, Change to Win.  I've got a few questions,
Judge Solomon.

		JUDGE SOLOMON:  Spell your last name.

		MR. FRUMIN:  Sure.  Frumin, F, like in Frank, r-u-m-i-n.

		JUDGE SOLOMON:  And who do you represent?

		MR. FRUMIN:  Change to Win.  It's a labor federation.

		JUDGE SOLOMON:  Okay.  Sorry.  I missed that.  Go ahead.

		MR. FRUMIN:  Okay.  Hi, folks.  So the competent person requirement in
the construction standards obviously is, you know, very important to
employer practices, employer safety, and health programs, you know, all
over the -- all -- across the whole range of hazards.  How do you see
that requirement in 1926.20 applying in terms of implementing a silica
standard?  How important is it?  How are they related specifically to
the silica issue?

		MS. TRAHAN:  Thanks.  The competent person is important in the
construction industry in particular.  You know, we hear about how
different job sites are, how maybe work crews are mobile or small.  OSHA
coined this competent person concept in the construction regs.  

		I'm not sure what the year was of the first standard including it.  It
could have been 1970, but what it does is it requires the employer to
identify somebody on the job site who has the education or training and
knowledge to recognize safety and health standards and the authority to
change what's going on in the job site.  I'm paraphrasing it.

		We see the term used in expanded health standards in the construction
industry, and it's used throughout safety standards in the construction
industry and is a well-accepted industry practice, to have somebody
designated who will evaluate the job site and implement the necessary
controls.  

		In the scheme of things that the Building Trades kind of devised, as
far as how a standard should work, there should be somebody who is
responsible for implementing the hazard assessments, the exposure
control plan, and making sure that the engineering controls are working
on the job site since it's not something you just fix once in
construction.  It's something you have to attend to every day.

		And we think there should be specific duties assigned to that
individual that are pretty well laid out in our comments.  I won't get
into all the duties right now, but it's central to making sure that
controls are in place in the construction site.

		MR. FRUMIN:  So is it fair to say that simply relying on the existing
general competent person rules will not be sufficient to assure that the
silica -- that the requirements of a silica standard would be
understood by whoever is hanging around as the competent person, but
as -- but rather, as you said for the other health standards as well,
having a competent person specifically required by this standard would
assure that the people doing that oversight would know what they were
talking about and able to be, able to have the authority to assure
compliance regarding the silica hazards?

		MS. TRAHAN:  Well, you know, I think if you -- like, look at
trenching.  Trenching is a pretty well-recognized hazard, but at the
same time, the trenching standards require a competent person to be
there, to keep an eye on the site, to make sure the controls are
implemented.

		And part of it is probably a learning curve because the hazards
associated with trenching weren't as well recognized prior to the
implementation of a standard on trenching.  So in that regard, yes, I
think that a designated competent person with designated duties would
benefit the industry.  I mean, I think there's clear evidence through
the comments submitted in response to this proposed rule that people
just don't believe this is an issue, silicosis is going away.

		Look at this curve behind me on my PowerPoint; this is not a problem,
but it really is a problem.  There are people who are calling it an
alleged carcinogen.  It's not an alleged carcinogen.  It causes cancer,
and people are dying.

		So when you think about the learning curve that our industry has to
hurdle to get to the point where they're -- we're recognizing this
hazard and we're controlling it.  You're not going to get it on small
jobs, on small job sites without somebody in charge of making sure the
controls are in place.

		MR. FRUMIN:  Okay.  One other question.  So you've proposed this
planning tool, and we're wondering, to what extent were you able to get
useful information about that proposal from your employer counterparts?

		MS. TRAHAN:  The planning tool is a product of CPWR, the Center for
Construction Research and Training.  I'd like Eileen Betit to respond to
that question.

		MR. FRUMIN:  Okay.

		MS. BETIT:  We actually had very good input from contractors.  We did
focus groups before we even started programming and received a lot of
very good input from contractors on what would be useful.  In fact, one
of the things they said is they wanted something that they could take
away and actually use.

		After we began developing it, we reached out to individual employers
or employer groups through presentations asking them for input on what
tasks should be included, how it could be used, different ways.  In
fact, the feature that allows a person to -- a contractor to register
and save their plans came out of feedback that we've received since it
was made live.  So we were very fortunate in the input that we received.

		MR. FRUMIN:  Okay.  Thank you.

		JUDGE SOLOMON:  Thank you, Mr. Frumin.

		Next?

		DR. SOKAS:  Rosemary Sokas, S-o-k-a-s, representing the American
Public Health Association. 

		And I just wanted to ask the panel if people have had experience using
alternatives to silica sand for abrasive blasting and whether you think
it's feasible to just ban that substance for blasting -- sandblasting
purposes.

		MS. COYNE:  Am I on?

		MS. TRAHAN:  Sarah Coyne.

		MS. COYNE:  Yes, there is.  One of the most popular one is Black
Beauty.  It has a 0.01 percent of silica and has low dust and is one of
the most preferred alternates to sand.

		Prior to testifying today, I checked, and I don't know any of our
signatory contractors that use sand, and the reason for that is because
it kills their workers.

		JUDGE SOLOMON:  Thank you.

		MR. SCHNEIDER:  Okay.  Scott Schneider with the Laborers' Health and
Safety Fund of North America.  It's S-c-h-n-e-i-d-e-r, and we're here in
Washington, D.C.

		I had a couple questions.  One of them is, there's been a lot of
discussion about how there are worksites where water is not available or
we don't have electricity.  How common is that and how is -- how do the
controls -- how are they implemented, and how do you get around that
basically?

		MS. TRAHAN:  Deven Johnson.

		MR. JOHNSON:  Yeah.  In all my years of experience as a cement
finisher, I can honestly say I've never been on a construction site that
didn't have access to water or electricity.  I mean, I think that's kind
of fundamental to construction.  

		There's an old joke about, you're going to get turned into the humane
society if you don't start watering the stock, talking about the
employees.  And electricity is, whether it's generated with an
electric -- a gas generator or temporary power, it's fundamental to
construction.

		MR. SCHNEIDER:  Okay.  Anybody else?  Dan or -- okay.

		MR. SMITH:  In construction, when you look at, what is the alternative
if you don't have power and you don't have water on the job?  Battery
operated tools; they even need to be recharged.  I don't know a single
tool that lasts eight hours.  So I think the statement that there's not
power is not representative of what's going on out there.  

		There's temporary power brought in.  There's a generator brought in. 
There's water supplies brought in.  And as we discussed earlier, you
know, if -- when we're out on the job site and if we need to use water
and we've got some heat source, the water we're using is in the heat
source, not the workers.  We're out in the field doing the work, so
we're protecting that water that we need.  We deal with it.

		MR. SCARANO:  Okay.  Just a comment.

		MR. SCHNEIDER:  Oh, go ahead --

		MS. TRAHAN:  Gerry.

		MR. SCHNEIDER:  -- Gerry.

		MR. SCARANO:  Yes.  In a masonry field, you cannot work during the day
unless you mix cement.  If you don't have water there to mix cement,
you're not working.  And even with the job trailer that's there, you
need power just to even have an office on the job site.

		MR. SCHNEIDER:  You have to have water to wash up also.

		MR. SCARANO:  Yes.

		MR. SCHNEIDER:  Right.  Okay.  Question for Dan Smith.  The NRCA said
that cutting roof tiles with wet methods would be burdensome because
you'd have to interrupt your work and climb down to the ground level to
cut tiles on a flat surface.  How would you respond to that?

		MR. SMITH:  I'd respond to that by saying that in the U.K., it is
prohibited.  So they have figured out how to do it.  They build
scaffolding up to the eave of the roof where they can set up a tile saw
there.  There are misting methods that can be put on the existing saws
that we use now, which would virtually be cut the same way.  And I've
heard the deal with staining and all the other stuff.  I think it's
exaggerated a little bit.

		And as far as going down to the ground and cutting them, first of all,
they say that someone would have to go up and down a ladder 80, 90 times
a day.  We would hoist them up and down if they did go to the ground. 
We would lower them and raise them back up.

		And, in addition, there are methods that break tile.  The hytile,
h-y-t-i-l-e, is a tool that's been designed that's like slate.  We don't
cut slate.  We usually break slate.  

		So in the U.K., they have proved that it's doable.  I think if it's
doable there, it's doable here.  It may take the tool manufacturers
working with us a little bit to refine some of the tools they have or
just simply stepping back and taking a look at what they're doing over
there.

		MR. SCHNEIDER:  Okay.  Thank you.  We've heard testimony before
that -- you know, about how -- for short tasks, for example, people
can just use respirators.  And why is that not a problem?  And I guess
the question is, is respiratory protection equally effective in
preventing silicosis to the workers that are doing the task. and what
about the bystanders?

		MS. TRAHAN:  Laurie?  Laurie?  I think we have a few answers for that.

		DR. WELCH:  Well, just -- you know, well, when you look at the
protection factor on respirators, respiratory protection obviously would
not reduce the exposure significantly from some of these very dusty
tasks, and that's well described in the OSHA proposal.

		You know, my experience over the years, people who use personal
protective equipment, it's not clear they're any better off than if they
use nothing.  Hearing protection doesn't prevent people from getting
hearing loss, and respiratory protection doesn't prevent people from
getting lung disease. 

		I mean just from a clinical perspective, we examine people over years.
 It may slow it down, maybe, I don't know, but what really works is
engineering controls.  That's where that -- the data is.  That's where
the health studies are.  Respirators are -- to a great degree, it's
pretend.  Seems simple, but because it's hard to implement, people don't
wear them correctly, sometimes don't have them.  It's -- and then
they're not sufficiently protective for some tasks.  

		So there's a lot of reasons that respirators -- we don't really expect
respirators to work, and in my experience, they often don't.

		MR. SCHNEIDER:  Sarah?

		MS. COYNE:  I just wanted to add onto that.  Respirators should be the
last line of defense.  We should take every administrative and
engineering control that we possibly can to lower the exposure, I mean
period.  A respirator is a luxury that assists us in protecting
ourselves from additional exposure, but it doesn't take way the dust
that I'm going to have on my clothes or the dust that I'm going to find
in my sink or what I bring home to my kids, whether it's in my car or in
my laundry.

		So, again, I'd like to reiterate that administrative and engineering
controls is the first line of defense.

		MR. JOHNSON:  I just want to reiterate too that all too often, it's
left up to the worker.  It's used as a first line of defense.  The
contractor says here's a dust mask.  Go grind that wall, taking no
responsibility whatsoever for the job site safety.  Oftentimes, the
individual has to provide his own respirator.  

		It's -- it should be the last line of defense, and it is in the
hierarchy of safety controls, engineering controls, but all to often,
it's the first line, and I think there just needs to be a sea change in
the entire thought process with that.

		MR. SMITH:  And I just want to add that going to respirators first
completely ignores the other trades and the other people working in the
same environment.

		MS. TRAHAN:  And --

		JUDGE SOLOMON:  Okay.  We --

		MS. TRAHAN:  -- to add --

		JUDGE SOLOMON:  Go ahead.

		MS. TRAHAN:  I just would like to wrap that around.  The idea of just
controlling exposure with respirators, to build on what Dan said, if we
can engineer out the hazard, we don't have to worry about bystander
exposure.  We don't have to worry about regulated areas.  We don't have
to worry about exceeding the PEL.  We don't have to worry about medical
surveillance.  We don't have to worry about air monitoring if we do it
right.  I mean we can just knock out these exposures and comply with the
standard, but get that eradicated for everyone.

		JUDGE SOLOMON:  We have about 10 minutes until --

		MR. SCHNEIDER:  Okay.

		JUDGE SOLOMON:  -- noon, and there's one other person behind you.

		MR. SCHNEIDER:  Okay.  Well, I'll end there then.  Thank you.

		JUDGE SOLOMON:  Come forward, please.

		MS. HALIFAX:  Thanks.  I'm Karen Halifax from the Bricklayers.

		JUDGE SOLOMON:  You want to spell your last name, please?

		MS. HALIFAX:  Sure.  It's H-a-l-i-f-a-x.

		And I have just a couple of questions.  We heard a lot yesterday in
the testimony about productivity penalties related to engineering
controls and work practice controls, but are there productivity gains as
well from using these engineering controls and other methods?

		MS. TRAHAN:  Deven?

		MR. JOHNSON:  As I said earlier, grinding concrete as a cement
finisher, if you -- if you're using an engineering control that --
such as a HEPA vacuum filter suction system on a grinder, you're much
more productive longer into the workday than you are if you're not using
that.  And I think that's true for the other workers that are -- have
ancillary exposure.  

		If I'm running a grinder, especially if I'm grinding a ceiling
overhead, holding a grinder up and I've got dust and sand and everything
else blasting me for six or seven hours, at the end of the day, you're
physically exhausted.  You've been assaulted by this material that
you're generating.  There's productivity gains to be had by having this
material collected at the source of generation where you're not exposed
to it.  You feel much better.  You're not as tired.  There's
productivity gains to be had. 

		Like was said earlier as far as, is there a cost to purchasing this
equipment?  Of course there is, but there's a cost curve where that cost
is gained back with increased productivity.  And, again, it goes back to
a contractor just simply throwing a respirator or a dust mask at a
worker and saying, you know, here, go take care of this task, instead of
putting a little thought into it and doing what's right on the front
end.

		MS. COYNE:  In addition to that, productivity gains is the amount of
man-hours that it would take to get the job completed.  As the person
who's using a HEPA vac or any other engineering controls, one, I don't
have to change my respirator cartridges a whole lot, but I don't have to
go back and back again to make sure that the levels are lowered and that
everything's cleaned up.

		MR. SMITH:  In the National Federation of Roofing Contractors
publication, they list benefits.  That's the contractors association. 
I'm not going to read them all, but they include that the diamond blades
last longer, the cuts are better, they break less tiles, there's -- and
you don't have to redo as much work.  

		So there eventually is a cost saving.  Once, as I said in my
testimony, you get over the initial training period, the buying and
purchasing of whatever you have to do, it does become, if not cost
diminishing, I believe at least cost neutral.

		MS. TRAHAN:  And we're -- we'd like to respond more to that in our
post-hearing because we're learning about new things all the time that
potentially are timesaving.

		JUDGE SOLOMON:  Do you have anything else?

		MS. HALIFAX:  Yes.  I have one other question, but it's a two-parter. 
What is the Building Trades' experience with worker concerns or fears
about being blackballed for being diagnosed with a health condition that
may be work-related?

		MS. TRAHAN:  Sarah?

		MS. COYNE:  What's the level of fear?

		MS. HALIFAX:  Well, really, what's the experience with workers'
concerns or fears?

		MS. COYNE:  Extreme.  I have multiple friends who are diagnosed with
silica, back injuries, you name it.  And the concern is, because we've
seen it, is that if you come forward with that, well, now I'm a high
risk.  Just today, not having those here present testifying on their own
behalf, I think, says it all.

		MR. BYRD:  With respect to drivers on construction sites, commercial
drivers have to have a medical certificate.  They have to pass a
comprehensive physical exam.  If they were to report that they had a
debilitating condition such as silicosis, they would more than likely
not pass the respiratory criteria, and they'd be disqualified from
working anywhere.  So, you know -- and so it'd be really
disadvantageous for them -- for a driver to report to an employer that
they have a medical condition.

		MS. TRAHAN:  Deven?

		MR. JOHNSON:  In the construction industry, there's a term called the
bloody hand in the pocket syndrome, and that is, if you're injured,
don't tell anybody about it because you don't want to be blacklisted. 
You don't want to be reported as having been injured.  

		I've seen guys go around the corner on a job.  They're pouring
concrete and will twist their knee or hurt their shoulder or strain a
back and will quickly put themselves out of view of everyone else while
they recover because they don't want the foreman or superintendent or
somebody see that they tweaked their back or they did something.  

		The same is true with occupational illnesses, that the last thing that
a worker wants is to have any information that he's somehow compromised
because, even though we want to think the best of the employer, that
somebody wouldn't take action against that individual, we know for a
fact that it happens.  It's happened to our membership.

		MS. COYNE:  I have one more thing.

		MS. TRAHAN:  Sarah?

		MS. COYNE:  The last thing I'd like to add is let me decide.  I might
have silicosis.  I might have asbestosis.  I know if I can work or not. 
Let me decide.

		MS. TRAHAN:  I just -- as an observation from someone who's not a
construction worker, this is the organized construction industry
talking.  I can only imagine what it's like without the protection of a
union contract.

		MS. HALIFAX:  With all this in mind, without strict confidentiality
provisions for medical information and anti-retaliation protections, do
you think that workers will participate in the medical surveillance
scheme set up under this standard?

		MR. JOHNSON:  Could you repeat the question please?

		MS. HALIFAX:  Sure.  With all of this in mind, without strict
confidentiality protections for medical information and anti-retaliation
protections, do you think workers will participate in medical
surveillance?

		MR. JOHNSON:  One hundred percent, absolutely not.

		MS. COYNE:  Absolutely not.  I wouldn't.

		MS. TRAHAN:  I think we're --

		MS. HALIFAX:  All right.

		MS. TRAHAN:  -- in agreement on that.

		MS. HALIFAX:  Thank you very much.

		JUDGE SOLOMON:  Thank you very much. 

		Mr. Smith, you referred to a document.  Do you want to proffer that
document for the record?

		MR. SMITH:  Yes, I can.

		MS. ROBINSON:  I'd like to enter this document into evidence as
Exhibit Number 48.

		JUDGE SOLOMON:  Okay.  So entered.

(Whereupon, the document referred to as Hearing Exhibit 48 was marked
and received in evidence.) 

		JUDGE SOLOMON:  All right.  The time is now 11:58.  We're going to
pick it up at 1:00, and at that time, OSHA will begin its questioning.  

		And then I had already said that the National Association of
Manufacturers will start approximately an hour after, but if the OSHA
questioning is less, then we'll try to get the ball rolling a little
earlier.  

		Okay.  We are now off the record.

		(Whereupon, at 11:58 a.m., a lunch recess was taken.)

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

(1:00 p.m.)

		JUDGE SOLOMON:  We're back on the record and when we were last on the
record, the public had asked the last questions.  So, Ms. Robinson?

		MS. ROBINSON:  I believe OSHA has some questions.

		MR. O'CONNOR:  Yes.  Thank you, Your Honor.

		Annette Iannucci will begin our questioning.

		MS. IANNUCCI:  Okay.  Thank you, David, and good afternoon, everyone.

		I just had a few questions on medical surveillance for the panel. 
First of all, could you please clarify what you believe the triggers
should be for medical surveillance in construction if Table 1 is not
being used?

		MS. TRAHAN:  The proposed bill.

		MS. IANNUCCI:  Okay.  Thank you.

		Okay.  In your written comments, you request that medical surveillance
be triggered by symptoms.  Are there any symptoms related to silica
exposure that can be distinguished from symptoms commonly associated
with an acute infection such as respiratory tract infection?

		DR. WELCH:  Well, the symptoms related to silica exposure will be
symptoms predominantly from the respiratory system.  You know, the
silica-related ones would be a chronic -- more of a chronic condition
as opposed to an acute upper respiratory infection, but it's not like
the cough is in any way unique if it's caused by silica.

		MS. IANNUCCI:  Okay.  And you mentioned onact (ph.), so does that mean
that maybe they should have a time limit on there like, if you're
experiencing symptoms for a certain time period or --

		DR. WELCH:  You know, some of it is what's the experience been in
standards where workers can ask for a medical exam based on symptoms. 
In my experience, it's -- people don't exercise that option unless
they're really concerned, so they would probably put their own time
limit on this.  It's like, I've had this cough for two years, and I
think I should go get an exam.  

		I don't -- I think it would be -- one could make a time limit, but
let's say if it was a week, then that's not really going to constrain
the requests all that much more than it would if the worker were making
his or her own decision.

		MS. IANNUCCI:  Okay.  Thank you.

		Okay.  I'd just like to clarify that for the medical exam to the
employer, you believe the information that should be included on there
is limitations on use of respirators if referral to a specialist is
needed and if further medical exams are also needed.  Is that correct?

		DR. WELCH:  Yes, that's correct, absent any medical diagnosis.  So the
provider could say this person needs a referral, but without any more
information on the rationale for the referral.  That's correct.

		MS. IANNUCCI:  Okay.  And in light of testimony and comments that
we've heard earlier about all the fears of being blackballed or
discriminated against, do you have any concern that just this
information here is enough for that to happen?

		DR. WELCH:  You know, I think that the -- we heard testimony that
under the Mine Safety Act, under the Part 90 where workers have --
it's -- what we're proposing is similar, that about 30 percent of the
miners opt to get the surveillance exam.

		JUDGE SOLOMON:  I don't believe that --

		DR. WELCH:  Is that incorrect?

		JUDGE SOLOMON:  -- was the question.

		DR. WELCH:  No, but just -- well, in terms of --

		MS. IANNUCCI:  Okay.  Are you concerned that providing this type of
information would clue the employee in that -- the employer that the
employee might be unfit and therefore still lead to discrimination
against the employee?

		DR. WELCH:  Yeah, I think that's a concern, but the issue about
whether a worker can or can't wear a respirator is important, obviously,
because it -- and there will be jobs where that's required and we don't
want to -- don't want the worker to be at, you know, risk of sudden
incapacitation or death because they try to wear it and they can't.

		So I think that -- you know, that -- I think as Sarah had said
earlier, people will probably avoid trying to get an exam at all if they
can because they don't want the employer to hear that they're not fit to
wear a respirator.  So -- but I think there's a kind of a -- there's a
legitimate concern about that particular question, and so it makes sense
that the employer should get that information.

		In terms of whether they need additional medical testing, that is some
kind of a flag, but it's less than giving him a specific diagnosis.  So
I -- and then the results of that further medical testing would be
shared only with the employee unless the employee, for some reason,
wanted it transmitted to the employer with expressed consent.

		MS. TRAHAN:  And to add to that, that concern is part of the reason
why we feel that anti-discrimination language is essential within the
standard.

		MS. IANNUCCI:  Okay.  Thanks.

		And, Dr. Welch, if one of your patients is a worker who's just been
diagnosed with silicosis, what kind of counseling would you give him or
her?

		DR. WELCH:  Well, it would depend on -- I mean there's lots of
things, like smoking cessation and respiratory health, say influenza
vaccine or a pneumonia vaccine which you'd give to anybody with any
occupational lung disease.

		But in terms of his work ability and what to look at at work, you
know, I would want to be sure that that person was working in a
circumstance where exposures were controlled to or below the permissible
exposure limit as we're talking about now.  And then, if the -- if I
felt they needed a respirator for additional protection, to discuss that
with them.  

		Does that answer your question?

		MS. IANNUCCI:  Yeah.  Would there be any discussion of possible risks
if they choose to continue to be exposed to silica?

		DR. WELCH:  Yeah.  I think that's an appropriate thing to discuss.  I
think that when you're looking at exposures that are controlled to the
PEL, it's a judgment whether those exposures are going to worsen a
pre-existing condition.

		I mean, you know, in the best of all worlds, if there was no
discrimination and there was lifetime medical removal protection, and I
think most physicians would say yes we would -- we don't want to take a
chance that this might make it worse.  But in the real world, that may
be a trade-off between working and not working for an individual in the
construction industry.

		So I think it's important to discuss that in great detail with the
individual person so they can make a decision, you know, given the
certainty of what we know and what kind of exposures cause disease and
what we know about progression of disease in the absence of ongoing
exposure so that the worker can say well, you know, I don't -- even if
you think it's a tiny chance, I don't want to take chances of making it
worse and they could make that decision.

		MS. IANNUCCI:  Okay.  Thank you.  Okay.  I think that's it.  Thank
you.

		MR. O'CONNOR:  Following up on medical surveillance, we heard
testimony yesterday with regard to medical surveillance in construction
indicating that as it relates to crystalline silica, medical
surveillance is impractical in light of the transient nature of the
workforce, the turnover rate in the construction industry, and the
extent to which employees are exposed to at least some level of silica
in the construction environment on a regular basis.  And I was just
wondering what your perspective was on that.

		DR. WELCH:  Well, I think it's our thought that, you know, there are a
lot of people who would be exposed to silica during work in
construction, and OSHA's done an estimate of how many people would be
required to be on medical surveillance based on the PEL.

		It's certainly practical.  The exams, the tests are readily available.
 The exam is easy to do.  I think the thing that makes it difficult in
construction is whether every employer has to do an exam every time they
hire someone.  And it would be -- there are different ways to avoid
that.  

		We don't want a worker to have to have five exams a year and get five
chest x-rays to get a baseline exam or, you know, a three-year
surveillance exam.  But if there were a permitted system under the
standard that allowed an employer to accept an exam done within three
years by a prior employer and something that would accept that that the
worker could carry a card, a medical card, that, I think, would prevent
that problem of unnecessary exams.

		And then if you're the person -- if you're the employer who has that
person working for you when they're due for the exam, it would be your
responsibility to have the exam done.  And people move between employers
within the same industry, so it's reasonable to think that that would
end up being evenly distributed.

		MS. TRAHAN:  I wanted to add to that.  You know, we thought about this
and it -- the next employer should recognize that the baseline medical
has been done in that individual.

		There's also different ways amongst populations of workers to manage
portability of training records, portability of respirator
certification.  We see it in the construction industry in some areas
that work, and there's guidelines on how to do that.  And we'll probably
comment a little bit further on that in our post-hearing comments.

		MR. O'CONNOR:  Okay.  Thank you.

		It has also been suggested that should OSHA have a medical
surveillance provision, that we should have some consideration for the
length of time that an employee is exposed or the age of that employee,
in terms of how frequently they're offered medical surveillance.  

		Do you have any thoughts on that, as to whether there should be less
frequent medical surveillance for younger workers or workers who have
not been exposed to silica for a particular duration of time?

		DR. WELCH:  Yes.  You know, we're looking at different disease
outcomes.  If we were only concerned about silicosis, you could
probably -- you could make that argument, but silica exposure also
causes COPD, and that has an earlier onset and you -- it's good to have
a baseline of a couple of tests before someone develops disease so you
can more clearly see an early decline.

		So starting surveillance early, when someone has normal lung function,
ideally, is great, if you want to follow them longitudinally with their
lung function test.  And in a couple -- I'm trying to remember which
one of the studies, but some of the recent studies, the one -- there
was actually one done in Germany looking at people in the uranium mining
industry.

		They were finding lung function decline in people under the age of 30.
 So I think that -- I think it's important, when we're caring about the
COPD indicator, the obstructive lung disease indicator, to start the
exams early and frequently.

		MR. O'CONNOR:  Thanks.

		In BCTD's written comments, you indicated that OSHA should consider
including a provision that would allow workers to select powered
air-purifying respirators when they're required to use respiratory
protection.

		In these proceedings, we've heard testimony indicating that PAPRs
should be viewed as an alternative to engineering controls and treated
on the same level in the hierarchy of controls.  And I was just
wondering if you had any thoughts on that.

		MS. TRAHAN:  Well, there's two things you raised, and that's the
option to request a PAPR.  We're still there.  We think that should
still be an option.  

		Regarding the abandonment of the hierarchy of controls, we don't think
that's an option.  That's not our position.  It does nothing to reduce
bystander exposure and really get people out of respirators is what we
want to do.  We want to control these hazards at the source for all
workers.

		MR. O'CONNOR:  Okay.  With regard to the hierarchy of controls, it has
also been suggested that, for short duration tests that are performed
intermittently on a job site, OSHA should consider allowing use of
respiratory protection.  And I was just wondering if you had any
thoughts on those short-term, intermittent tasks if a job involved
exposure above the PEL for just a few days over the course of a year,
whether it would be appropriate to allow use of respiratory protection
for those tasks or whether there should be a blanket requirement for
adherence to the hierarchy.

		MS. TRAHAN:  There should be a blanket requirement.

		MR. O'CONNOR:  Okay.  Thank you.

		Ms. Betit, you described a website, the Silica-Safe website.  And I
was just wondering if you could elaborate on that.  And you had
mentioned the guidance that's provided for selection of tools and
development of exposure control plans.  And I was just wondering how
that came to be and what was the process for developing it, whether it's
continuing to be developed and who's able to use that tool?

		MS. BETIT:  I'll answer your last two questions.

		JUDGE SOLOMON:  The microphone.

		MS. TRAHAN:  Just get it closer to your mouth, I think.

		MS. BETIT:  Okay.  Can everyone hear me?

		JUDGE SOLOMON:  No.

		MS. TRAHAN:  It's turned on.

		JUDGE SOLOMON:  Why don't you -- yeah.  Why don't you just trade
places?

		MS. TRAHAN:  Or you can come up here.

		MS. BETIT:  I'm sorry.  I'll answer the first two questions last. 
First of all, it's still under -- it's continuously being updated and
refined.  So, because we recognize that things are changing the industry
and want it to be as up to date as possible, so it was developed -- the
original idea of it came out of -- we have a research to practice
initiative which is trying to get the findings of -- from the research
community to be -- have a practical application on construction sites. 


		So we put -- we realized there was a great deal of information out
there on silica, and there were an increasing number of control options
out there, but that it was very -- it would be very difficult for
anyone to find them quickly because they're scattered all over the
internet.  It's -- they weren't all in one place.

		So the thought was, we would bring together all of the information on
silica, and we also saw a need because California had passed a standard
for silica, so you have contractors and workers out there that need this
information.  You have collective bargaining agreements in place that
have prohibitions on dry cutting.  So you have contractors that need
this information to be in compliance with their collective bargaining
agreements.  And then you just a have a pool of very good employers out
there who are trying to do the right thing.

		So we wanted to give them a place where they could go and very easily
find information they needed to control silica hazards, and also a place
where workers could go and learn more about the hazard.

		When we started putting together the website, we did focus groups both
on the East Coast and in California, East Coast because there isn't a
standard currently in place here, but -- and in California because
those people have been working under a standard now for several years,
to get their thoughts on how this website would be structured, how the
planning tool part of it would -- would it be useful how it would be
structured and what should be included in it.  So that was the origin of
it.

		We then knew that we probably couldn't put every single control that's
out there on the market, but we wanted to guide people through
identifying what materials they'd be working with, the kind of tasks
that they'd performing, and then if they identified those two things,
which they can identify at one time, as many as, you know, they want
from there from that first step. 

		Then in step two, they would be automatically told, generically, the
different kinds of equipment and control options that are currently
available.  And then, within that step two, they can look and see what
commercially available options there are.  If they click on looking at
the commercially available options, we try to make it as easy to
possible.  

		They can go directly to a manufacturer's website.  If there's a video
showing the control and operation, they can look on it.  If there's been
some additional research done by either OSHA or another third party on
that type of equipment control, they can see it there.

		The whole idea was to make it as easy as possible for people to find
information on how to control hazards.  And so, we're -- we keep
updating it.

		At World of Concrete, there are -- you know, each year, there seem to
be more and more types of tools coming out that control silica.  You
know, one manufacturer just came out with a hollow drill bit that, you
know, suctions in the dust right there as you're going in -- as the
hole is being drilled.  So new innovations keep happening.

		There's an overhead drill press that was developed which addresses
both the ergonomic issues and the silica hazard.  That's included in our
database.

		So I hope that answered your question.

		MR. O'CONNOR:  Yes.  And is that generally available for public use?

		MS. BETIT:  It is.  It's available free of charge to anyone.  If you
go there, you're using it confidentially.  If you -- about a year ago,
maybe nine months ago, we had -- we received some input from a
contractor saying, you know, it would be really great if I could go back
and edit some of my plans because for the whole point that they had jobs
that were similar, so instead of starting from scratch each time.

		So we added a feature where someone can go in and register, and it's
confidential, their own, you know, little area of the site where they
register and they can save their plans and go back in and revise them to
accommodate future projects.

		MR. O'CONNOR:  And you mentioned new developments.  When a new tool is
developed, how does that get incorporated in the website?

		MS. BETIT:  Well, information on the new tools comes from a variety of
sources.  One, you know, I personally look for different things that are
out there.  People call.  People e-mail to CPWR, to different staff, to
myself, to the Building Trades, to other unions about things that
they've seen out in the marketplace.  You have something like World of
Concrete, their press releases about new types of controls.  I have
manufacturers that contact us about new innovations.

		So if things look promising, we try to add them to the site, so it's a
continuous process.

		MR. O'CONNOR:  Thank you. 

		Mr. Byrd, I just wanted to clarify something that came up in
questioning previously.  You had, I think, made reference to drivers
potentially being disqualified from some type of medical certificate,
and I just wasn't quite sure what you were referring to there.  Is that
something that is a requirement from the Department of Transportation,
or is that something different?

		MR. BYRD:  Yes, that's correct.  For drivers who operate vehicles that
weigh 10,001 pounds or greater, they have to have a medical certificate.
 So they go through a fairly comprehensive physical examination, and one
of the criteria is, does a -- it focuses on respiratory health.  So
that would be something that would be potentially disqualifying for the
driver.

		MR. O'CONNOR:  Thank you.  I'll turn it over to Joe Coble.

		DR. COBLE:  Yes.  Good afternoon.

		I'd like to begin again with Table 1 because I think that's an area
where I'm -- there is some common ground here in the comments.  I think
a lot of people support it, but we have to work out the details.  

		And there's a balance between having very specific things,
specifications that, on one hand, give clear guidance but may stifle
innovation or prevent people from doing things that would even be
considered more effective because they're trying to comply precisely
with what the table says.  And there's been comments about, you know,
would it be updated and how would that work and what constitutes
objective data. 

		You've put in a flowchart, so with respect to Table 1, could you walk
us through what you're envisioning it with respect to what would
constitute full compliance, and if, in the event that employer is deemed
to be fully compliant with Table 1, in your flowchart, does that
indicate they would be considered in full compliance with the entire
silica standard and -- including compliance with the PEL?

		MS. TRAHAN:  Thanks.  The flowchart that we developed as part of our
written comments is on Page 9 of the written comments submitted from
the Building Trades.

		We tried to think about, you know, how somebody might go about trying
to comply with a health standard, and we tried to do it from the
perspective of a population that doesn't have to comply with a lot of
health standards or doesn't routinely.  

		So we thought some kind of guidance would be helpful and viewed it
as -- viewed that there are three options in the proposed rule that
allow or -- that allow employers to determine which controls they need
to put in place for their silica hazard.

		And if an employer were to choose the option of fully and properly
implementing the requirements on Table 1 and there were no respirator
required for that particular operation and duration, we viewed that the
employer should be considered fully in compliance with the standard as
long as they delivered the OSHA training, the -- I'm sorry -- the
training.

		So as part of the way that the proposed rule is laid out, this is how
we understand it and, you know, think that this is what OSHA meant or
maybe should have meant by giving the option of following Table 1.  And
really it's a way that an employer can demonstrate that they're in
compliance with the proposed PEL if they're fully and properly
implementing the controls listed and there's no respirator required. 
Really, we see it as their obligations are very much met the way the
rule's proposed.

		DR. COBLE:  And there would be no need for OSHA to do compliance
monitoring for that?  If OSHA did collect a sample that was over the
PEL, yet at the same time, they were fully implementing those controls,
what would you see happening in that situation?

		MS. TRAHAN:  That's a hypothetical enforcement --

		DR. COBLE:  Okay.

		MS. TRAHAN:  -- situation, but what I think should happen -- and we
talked about if the operation and the combination of controls didn't
include a respirator on the table.

		DR. COBLE:  Right.

		MS. TRAHAN:  And if OSHA came out and pulled an air sample that showed
that the employer was exposing employees over the PEL, then that should
be a big wake-up call for all of us, saying that maybe we made a mistake
with this particular box in Table 1, but I don't think the employer
should receive a citation for exceeding the PEL in that case because, in
good faith, they followed what OSHA has done in the specification-based
approach of Table 1.

		DR. COBLE:  Yeah.

		MS. TRAHAN:  And it is -- it's an unfair gotcha to a good faith
employer --

		DR. COBLE:  Yeah.

		MS. TRAHAN:  -- in my view --

		DR. COBLE:  Right.

		MS. TRAHAN:  -- to --

		DR. COBLE:  We've heard a lot of -- 

		MS. TRAHAN:  -- issue a citation.

		DR. COBLE:  -- variability associated with some of these tasks, and
it's sometimes difficult to protect in that OSHA is sometimes
recommending respirators for tasks in which the majority of samples are
in fact, below the PEL, but in lieu of conducting monitoring, you just
decide to wear a respirator.  

		Do you think OSHA's gone too far in requiring respirators for tasks
that we've otherwise deemed could be controlled below the PEL, but not
all the time in all places?

		MS. TRAHAN:  No.  I think that OSHA's approached this from a
conservative standpoint while recognizing that this particular set of
circumstances in that box, we don't have the level of assurance that all
workers will be under the PEL all of the time.

		And I think I stated in my prepared statement, that even if your
operation fits within that box, there's nothing stopping an employer
from demonstrating that these controls actually do, in fact, reliably
reduce exposure to below the proposed PEL and, therefore, stepping away
from Table 1.  But because we're not verifying the controls, the --
this option doesn't require that the employer verify the controls
through air sampling, which is the traditional way industrial hygienists
do business and we control health hazards.

		We have to be conservative in assigning this prescriptive method of
compliance, I think.

		DR. COBLE:  But you don't think that will lead to overuse of
respirators when they're really not necessary?

		MS. TRAHAN:  Not if you put in place a good method to update Table 1
as we see the science advancing in control technology.  It's moving
fast, a lot faster than OSHA regulations do.

		DR. COBLE:  Now, what about the feature of the less than four hours
versus more than four hours?  There's been some discussion about the
difficulty it is predicting how long a job will last, or say he starts a
job and it turns out to be a lot harder than they initially anticipated,
it's going to run more than four hours.  

		You know, they should have been -- if they knew it was going to be
more than four hours, then the table's set up to require that from the
beginning, and you don't wait until four hours and then put it on.

		MS. TRAHAN:  Well, actually, you raised an interesting point there
that's not really -- I think, the question you're asking, but I think
that there's confusion about this --

		DR. COBLE:  Right.

		MS. TRAHAN:  -- and that folks thought that I can do this for four
hours, but when I hit four hours and one minute, I've got to put a mask
on then.  And that's another thing I think we need to make sure is
clarified in the final rule, but back to your question?

		DR. COBLE:  Is that a workable provision to have this less than four
hours, no respirator, more than four hours, a respirator?  Because those
tend to be the borderline cases where it's -- where we've sort of think
that most cases, it can get below the PEL, but if you're going to do it
for more than four hours, it's better to wear a respirator just to be
sure you don't inadvertently exceed the PEL, I think, is the thinking
behind that.

		MS. TRAHAN:  Well, are you asking if we think that breaking the table
into these hour increments is an appropriate thing --

		DR. COBLE:  And --

		MS. TRAHAN:  -- to be doing?

		DR. COBLE:  -- is that workable?  Is that -- can you, more or less,
watch -- you know, are you going to know ahead of time or, you know,
what complications do you see with the four hours and is can -- is that
a -- is it something you can work with?

		MS. TRAHAN:  I think it's -- I think -- well, I think it's something
that can be worked with.  I think it's what the industry asked for, and
actually, I remember being in those ACCSH meetings when this was
discussed and described and suggested to the Agency to break this table
up.

		And they said we need a table that says two hours, four hours, six
hours, eight hours.  We need to know how long.  So the feedback from the
industry asked for this type of option.  

		Are there going to be cases where somebody thought they were going to
be only doing work for two hours and it turns into five hours and they
made a mistake?  Yeah, but I also think that a compliance officer who
walks onto that job site and sees all these controls in place, and
they're not going to be out there trying to substantiate a violation. 
They're going to see all these controls in place and move on.

		The other thing is kind of more related to work planning and --

		MS. BETIT:  Well, you know, in some of the testimony, people have said
things like intermittent, short-term tasks should only have this
requirement or tasks of 90 minutes should only have this requirement. 
So if they can figure out those tasks and the times, it seems that there
must be, at some level, contractors are planning how much time a task
takes in most cases.  And that those outliers are just that.  They're
outliers, but I don't know if any of the people from the crafts want to
comment on this.  On planning?  No?  Okay.

		MS. TRAHAN:  Did we answer your question?

		DR. COBLE:  Yes, you did.  I just was wondering how often you know in
advance whether a task is going to take more than four hours or not. 
And it sounds like in most cases, you do.  It would be the exception
that something is unpredictable in terms of exactly how long it's going
to take.

		MR. JOHNSON:  Well, can I --

		MS. TRAHAN:  Yeah.  I think it would be good to -- Deven Johnson.

		MR. JOHNSON:  As far as the four hours goes, typically, you know,
you've got some sense of what you're going to be doing that day, but
because the variable nature of any construction site, there's -- it's
not beyond reason to expect, I was going to be in here working on that
wall today, but something came up short.  

		The pipe fitter has to get in here ahead of me or whatever.  So that
changes what I'm doing, and then there's a domino effect or there can be
where, because I'm not done in here tomorrow, then that sets somebody
else back.  SO there is that variability there.

		DR. COBLE:  Right.

		MS. TRAHAN:  And I think we did hear from a contractor who talked
about how they plan projects and how --

		DR. COBLE:  Right.

		MS. TRAHAN:  -- they know what's going on and they're juggling
multiple subs and/or contractors.  So I think there's, you know, a
reasonable assumption that if -- that somebody can do a general
prediction and follow --

		DR. COBLE:  Yeah.  So it's not unreasonable to have a four-hour cut in
terms of that table?

		MS. TRAHAN:  No.  I think it's responsive to what the industry asked
for, actually.

		MR. JOHNSON:  Maybe I wasn't clear.  The specific task, I know how
long that's going to take me to do that.  Each construction worker knows
how long that's going to take.  Whether or not I got it done today or
tomorrow, you know, is a different issue.

		DR. COBLE:  Yeah.

		MR. JOHNSON:  But if I'm tasked with doing this particular thing, I
can -- I have a reasonable --

		DR. COBLE:  I mean bids are based on that and --

		MR. JOHNSON:  Right.

		DR. COBLE:  Yeah.

		MR. JOHNSON:  Right.  And contractors are often wrong on how long it's
going to take to do something, but no.  I'm just -- but the individuals
doing the task typically are going to know how long that task will take.

		DR. COBLE:  Right.  And then there's also been some discussion about
the notes and the ability to ascertain whether a control is functioning
properly in lieu of air monitoring.  

		When you're looking at a saw that's ventilated, I mean visually, how
well can you assess effectiveness of a ventilation system just by
looking at it?  Do some people have experience with that or --

		MR. JOHNSON:  Well, I certainly -- you know, I wouldn't be able to
tell you how many parts per million are in the air based on what I'm
doing, but I can tell you if it's more than it should be.

		DR. COBLE:  Yeah.

		MR. JOHNSON:  You know, from personal experience, you can see if the
device is working or not.

		DR. COBLE:  Right.  I mean it sounds like there's substantial
quantities of dust being drawn into it that you could visually tell if
the dust is being collected just by observation --

		MR. JOHNSON:  Yes.  Absolutely.

		DR. COBLE:  Yeah.

		MS. TRAHAN:  And if it's collecting the big particles, it's probably
collecting a lot of the small particles too.  But at the same time, if
you go to a Table 1 approach, you're basing it on data that shows that
these controls control exposure.  So you've already established that
controls applied within a certain set of parameters and with certain
specifications are effective. 

		So by adding some visual clues or some other clues that the employer
can see if the control is operating as intended, I think, is important. 
But it doesn't necessarily prove or disprove if the control is being
effective.  In essence, if you put on Table 1, OSHA saying we believe it
is and --

		DR. COBLE:  Yeah.

		MS. TRAHAN:  -- go forward.

		DR. COBLE:  Effect with respect to being able to reduce it less than
the PEL.

		MS. TRAHAN:  Yes.

		DR. COBLE:  And that is -- you know, sometimes it takes a fairly
careful study with measurements and things like that as opposed to in a
work operation, you can personally -- you can monitor personal
exposures and see that they're less than the PEL, but you don't always
know exactly where that exposure's coming from.

		MS. TRAHAN:  That's right.

		DR. COBLE:  We've heard about secondary, tertiary, things --

		MS. TRAHAN:  Yeah.

		DR. COBLE:  -- like that.

		MS. TRAHAN:  And it -- you know, there might be a role for direct
reading instruments that were discussed earlier in the hearing and some
limited verification of the controls in Table 1 with some assumptions
based on that.  There may be a role for it.  It's not something that,
you know, we're advocating today, but obviously there's -- technology
is moving fast, and it's becoming cheaper.  So it's worthy of
consideration.

		DR. COBLE:  Right.  So any recommendations regarding how much
specifics would be optimal on that table would be appreciated because
that's, I think, one of the key decisions we have to make is how
specific to make that table.  Even with respect to -- we have tasks,
and it depends on what material you're using. 

		I noticed that this work safe website goes in there with, you know,
what are you working with, and we don't have specific materials broken
out, although there's some discussion, maybe we do need to specify what
you're cutting as well as what you're cutting it with.

		MS. TRAHAN:  I think that's right, and I think the research supports
that, that I've reviewed.  I don't know if we're there yet to say that
cutting block and cutting brick with that stationary masonry saw has
that much impact.  But I think we're getting there in the research, and
I think that we will find more information out as particularly employers
compile this data and share it and see what's working.  And, again,
that's why we need to be able to update the table, so that employers can
have more options as we get more information.

		DR. COBLE:  If I could, I just wanted to ask a couple of questions
about the multi-employer worksite issue since that's been discussed
several times.  With respect to the written exposure control plan
recommendation versus a written access control plan, yeah, I think I
heard that there was a distinction between those.  You see that there's
a difference.  

		And would there be a trigger?  I mean would it be any task that
generates silica, or would there be only tasks that have potential for
above the PEL?

		MS. BETIT:  What we're recommending is any time someone's going to go
out on a job site and perform a silica-generating tasks, that they have
this plan in place.  And we -- not just whether or not it would be a
regulated area situation.

		And we see a need for this because, if these controls are going to be
effective and if -- people need to know what's going on.  So if I go
out onto a job site and I'm not personally performing that task and I
see someone near me, I should know whether the dust that they're
generating is potentially harmful for me. 

		And also, for other people on the site, who are working around
someone, if they know that this is a silica-generating task and it's
supposed to be controlled, but they're beginning to see some dust, it's
an indication to them that those controls aren't working.  We just see
it as a very easy mechanism of helping to inform everyone on the job
site of a potential hazard, what to be looking for and how it's supposed
to be being controlled.

		DR. COBLE:  Would like a job safety analysis or even some standard
operating procedures suffice in lieu of something, a document called,
you know, written exposure control plan?  Could you achieve that with
other methods other than having a specific plan?

		MS. BETIT:  Yeah.  I think people could call it whatever they'd like
to call it.  We happen to call it a written exposure control plan, but I
think there are certain elements that we'd like to see included in it so
that if there is a competent person assigned, that everyone on the
construction site would know who that competent person is.

		And many of the features that we have in the planning tool that we
developed are things that you have in a job hazard analysis, you know,
what the hazard is, how it's being controlled, who's involved, where
it's happening on the job site.

		MS. TRAHAN:  And we're not talking about a big plan that sits on a
shelf.  I mean it could be a single page of paper that says, you know,
the basic requirements: who's in charge, what the tasks are, how it's
controlled.

		DR. COBLE:  Yeah.  And so what would happen to that piece of paper? 
They would bring it to the job site and give it to other employers or
the controlling employer, or how would that work?

		MS. BETIT:  They would -- if there's a controlling employer, they
would give it to the controlling employer who would then make it
available to everyone else on the job site.  Conceivably, if it --
Chris and I are two contractors, I could hand it to that person so that
they would be aware of it.  It's so that there's some physical mechanism
that they can refer to to know what's happening --

		DR. COBLE:  And --

		MS. BETIT:  -- so they don't have to rely on word of mouth.

		DR. COBLE:  And then it would somehow call for restricting access to
the immediate area where you're going to be performing the work?

		MS. BETIT:  Well, that gets -- the distinction we see between having
everyone do a written exposure control plan versus what's in the
proposed standard, which is just an access control plan as an option to
a regulated area, we don't think it should be optional.  So if you had
your written exposure control plan and if the standard requires a
regulated area, part of your plan would be how you're going to regulate
that area. 

		If you -- but you could have an exposure control plan and you're
never going to be above the PEL so you don't have to have a regulated
area, so your plan would not include a regulated area.

		DR. COBLE:  Okay.  And you had some comments on objective data
regarding what qualifies or what should constitute objective data. 
Presumably, it involves some sort of quantitative measurements.  Would
you extend the definition to include professional judgment that has been
calibrated by measurements over the years, but doesn't necessarily have
a report right in front of them?

		MS. TRAHAN:  I'm not sure I understand your question.

		DR. COBLE:  What's your definition of objective data, and can
objective data include professional judgment?

		MS. TRAHAN:  Well, if it's objective data, it would have to include
exposure determinants.  And I think that also with the exposure
determinants, the conditions under which that exposure level was
measured would have to be defined.

		I'm not -- I think professional judgment does come into it, but I
think objective data is something that OSHA should define well in the
final rule so that employers and employers' associations have good
guidance on how to develop that objective to --

		DR. COBLE:  Sure.  Well, it comes into play in several aspects and one
would -- in lieu of exposure monitoring, you have a performance option
in which you can rely upon objective data which presumably is
interpreted by someone who has some experience and knowledge and has
observed these conditions and then can put that together with the
readings and --

		MS. TRAHAN:  And yeah, I mean, that's the whole idea is to have this
source of data that's available to employers to use instead of exposure
monitoring and objective data could, you know, have a good standing to
be dissimilar from Table 1 if we find that cutting this particular
material using this method and these controls, you know, results in a
very high level of confidence that exposures won't exceed the PEL or
action level; that's the kind of thing we'd want to be developed out of
objective data.  

		I think there's a role in -- for a lot of different parties in
developing objective data.  I think researchers have a role, but I think
employers have a big role, and associations that represent those
employers probably have the expertise to support the development of
objective data for other industries.  And I hear it's happening --

		DR. COBLE:  Then I just have one more question on -- there was some
discussion yesterday about limitations on wet methods due to concerns
about environmental runoff where, if you're using water on a site, it
could end up violating some sort of environmental regulation.  And has
anybody ever encountered a situation in which they've had to limit the
use of water based on concerns about environmental runoff?

		MS. TRAHAN:  We can ask.

		MR. JOHNSON:  I've done a fair amount of saw cutting of concrete slabs
over the years, both in buildings under construction, buildings that are
undergoing renovation and demolition, and I've never seen that.

		The amount of water necessary on a -- say a walk-behind
diamond-bladed saw, if you're cutting control joints or cutting through
thick concrete slabs for demolition services, the amount of water
generated that would create runoff, as you referred to it as, I've never
seen that where it would become an environmental issue.

		Typically, you would have a vacuuming device and suck it up as you go,
clean it up.  That's the easiest, most --

		DR. COBLE:  Right.

		MR. JOHNSON:  -- cost-effective way to do it, and that's the way
it's -- I've always seen it done and done it myself.

		DR. COBLE:  Okay.  I think that's -- thank you.

		MR. O'CONNOR:  Robert Stone has some questions.

		MR. STONE:  Thank you.  Good afternoon.

		I have a few questions mainly having to do with possible effects on
the use of engineering controls on productivity.  And I invite your
comment today, but also, you may feel free to add to the record later if
you have additional data or information that you think would be useful.

		I know you've mentioned some of these things today, but I'm going to
repeat them anyway.  One is, it's been said elsewhere in the hearing
that there -- in certain construction sites, there may be a lack of
electricity or water with which to use controls.  Any view on that?

		MR. JOHNSON:  We've -- Deven Johnson.  As I said earlier, I answered
that question earlier, but I'm happy to address it again.

		In my 30 years in construction, I've never been on a construction site
that didn't have electricity or water available.

		MR. STONE:  Okay.  So my question is this:  So you view this as it
never happening?

		MR. JOHNSON:  Oh, I can't say --

		MR. STONE:  Or almost never.

		MR. JOHNSON:  I can't say never with any degree of certainty,
anything's possible, but in 30 years, I've never seen it.

		MR. STONE:  Okay.  

		MS. TRAHAN:  Is there anyone else who wanted to comment on that?

		MR. STONE:  If there is water available and electricity available, are
there ever situations where it's on the site, but it may be difficult to
get the water or electricity where the construction worker is
performing?

		MR. JOHNSON:  No.  It -- you know, all construction sites have so
many variables, involves that, just by the very nature of construction
workers, we're tasked every day with getting things accomplished.  No
matter what the situation is, you're given a task, and we're very good
at accomplishing that task with whatever resources are available.

		MR. STONE:  Okay.  I'm sorry.

		MR. AUSTIN:  Also -- I'm Charles Austin with Sheet Metal Workers. 
Also, as I mentioned before, on various sites, we've seen portable
four-gallon water tanks that provide its own water, and that can be
right next to where the worker is working, and it's also provided with
its own lithium- ion battery.  So the power is really at the source
also.

		MR. STONE:  All right.  I was also wondering, maybe this is just the
same point, but if someone is generating silica dust, it's probably with
a tool that uses electricity.  So you would probably have electricity as
well for the control.

		MR. JOHNSON:  You can generate silica dust with a carborundum rubbing
stone, but nobody's done that for about 75 years.

		MR. STONE:  Okay.  All right.

		MR. JOHNSON:  And I'm way too old to generate it fast enough to
generate that kind of dust.

		MR. SCARANO:  Or they could use compressed air.

		MR. STONE:  All right.  Another issue that has been raised is that
there might be some substantial setup time in using engineering
controls.  Do you have any view on that, how long that might be and
a -- I appreciate that it depends on the control in the situation, but
any sense of that broadly?

		MR. JOHNSON:  As far as concrete grinding tools, the tools that are on
the market today come integral with the capture device, which is a HEPA
filter in the container that the filter's in.  The hose is attached to
the grinder already.  The electrical cord is attached to the motor
already.  It comes as a monolithic unit.  You simply plug it in and
start using it.  I mean, it's -- there's no setup time. 

		The -- if you're using a walk-behind concrete diamond-bladed saw for
cutting slabs, the setup time is, make sure there's gas in it and a hook
a water hose up to it and turn the water on. 

		There's -- I think that's just a comment that doesn't bear much
merit, that there's excessive setup times for these engineering
controls.

		MR. STONE:  What percentage of the controls -- I'm sorry.  Was
someone else going to answer?  I'm sorry.

		MS. TRAHAN:  Yeah.  We have one more person.

		MR. SMITH:  I'll use another --

		MS. TRAHAN:  Dan Smith.

		MR. SMITH:  I'm Dan Smith.  In fall protection, on new home
development, there was -- you know, we have different trigger heights,
and there was some confusion.  And in California about two years ago,
the whole industry got together and came up with one uniform way to
address it.  And they set up scaffolding at 15 feet.  It works for the
people putting the plywood decking on the roof, works for the roofers,
works for everybody.  It's done in one shot.

		And on multi-sites, we can coordinate that type of work.  And, again,
as I said earlier, initially, as we're learning how to do these things,
it will take a little bit of time and it will cost something.  And then
it becomes part of doing business. 

		When we first started using wet saws to cut roof pavers, where do we
put them, how do we get them up there?  Very short learning curve.  We
figured it out, and we have them on the job all the time now.

		MR. AUSTIN:  Charles Austin, Sheet Metal again.  

		One thing, with some of the manufacturers that we had that produced
the various tools, when they had developed, I guess, draft tools that
they were going to use out in the field, they had provided those tools
to us to test it out on the job site.  So we work with some of the
manufacturers in also producing some of the tools, so -- to make it
very worker-friendly.

		MR. STONE:  So you think actually if -- not putting words in you
mouth, but you think that in fact, over time, if this rule were enacted
and enforced, manufacturers, in fact, would work further to make sure
the controls worked hand in glove with the tools?

		MR. AUSTIN:  Absolutely.

		MS. TRAHAN:  Yes.  I think -- and, but it's already happening.  You
know, that almost all of the good tool manufacturing lines have -- are
creating tools with integral engineering work practice controls built
in.

		I was at a safety show just a couple weeks ago, and I came upon a --
something I hadn't seen before, which was a new catalogue by a very
well-known tool manufacturer, just focused on, this is how we're
controlling dust at the source for a variety of handheld tools used in
different masonry tasks.  It's -- everybody's doing it.

		MR. STONE:  Okay.

		MS. BETIT:  And -- yeah.

		MR. JOHNSON:  I would just add one example of the real-world work
practices driving the marketplace.  Hand trowels that a cement finisher
uses, typically, it used to be wooden-handled.  They're almost all
rubber-handled now, and that was driven by cement finishers contacting
Marshalltown and Kraft Tool and other saying that, here's a problem that
we've got, can you guys come up with something that will help.  And they
manufactured the tools.

		And it wasn't a particular safety issue.  It was just a comfort issue,
and the industry responded in kind.

		MS. BETIT:  You know, I just wanted to bring back to the exhibit that
we -- well, the item that we turned in as an exhibit, the listing of
different kinds of tools, that's an indication of just how far we've
come in terms of different equipment control options that are out there
now.

		MR. STONE:  Okay.  I wanted to follow up something in your comment --
in your response, and that is, what percentage of tools do you think
either come with a control attachment or are used with the control
always attached?

		MS. TRAHAN:  That's a -- just, that's a really big question, and I'm
wondering if that's something, perhaps, we could survey all the Building
Trades about and provide in our post-hearing comments.

		MR. STONE:  That would be great.  I would appreciate it.

		MS. TRAHAN:  And with as much detail as possible, we will --

		MR. STONE:  Thank you.

		MS. TRAHAN:  -- try to do so.

		MR. STONE:  I mean, if you're doing that, one thought that came to
mind was you might want to try to break it up by type of control so
maybe it's always on some types of controls and 20 percent on the other
or whatever.

		MS. TRAHAN:  Yeah.  And I don't know if it would be helpful, but we
were thinking perhaps, of, you know, identifying some of these tools
with controls and their cost and the tools without controls and their
cost.  I don't know if that would help, but --

		MR. STONE:  It --

		MS. TRAHAN:  -- the information is very readily available right now.

		MR. STONE:  The answer would be yes, it would be helpful to us.

		MS. TRAHAN:  Thank you.

		MR. STONE:  We appreciate it.

		And I'm just going to mention one other topic.  I know you've talked
about it a little bit before, but do you -- you talked about the
positive productivity effects of these controls.  

		I'm going to ask you if there's any way you might be able to quantify
the percentage effects, and even if you can't, how those effects might
relate relative to the percentage cost on the use of these controls in
terms of productivity costs versus benefits.  Or -- and you don't have
to answer it today, but you're welcome to.  But if you have any evidence
that you might bring to bear on it.

		MS. TRAHAN:  Unless there's a way to answer it from the panel at this
point, I think, again -- we got one.

		MR. SMITH:  I can't give you a number, but I can say this.  In
California, cutting roof pavers is exempted.  Why would a contractor put
a wet masonry saw on the job site, buy one, supply water to it if it
didn't have a cost benefit?

		MS. TRAHAN:  So we'll try to identify some of the benefits that folks
can tell us and provide them to you with whatever quantifiable
information we can.

		MR. STONE:  All right.  Well, thank you very much.  We would
really -- sorry.

		MS. BETIT:  I just wanted to add that we also have an online return on
investment calculator, and within that, we've started looking at
different controls.  And we have one that's up there now, which is an
overhead drill press, which was originally designed with ergonomics in
mind, but also has a feature that -- a vacuum attachment that controls
the dust and that does show some -- how it impacts productivity.

		MR. STONE:  Okay.

		MS. TRAHAN:  We can provide the URLs in our comments.

		MR. STONE:  All right.  I'm sorry to make work for you but really
appreciate any materials you can provide.  And that's all for me.  I
thank you for your response.

		MR. O'CONNOR:  And Kim Robinson has a couple questions.

		MS. ROBINSON:  I just have one question actually at this point.  This
is for Ms. Coyne, and maybe Mr. Johnson and Mr. Smith want to weigh
in and maybe others as well.

		I realize this is a difficult topic to provide testimony on, but I'm
hoping you can offer some comments about what happens when a person is
diagnosed with silicosis but doesn't display any symptoms.  And I'm
curious specifically about the impact of this diagnosis on the
individual and on the individual's family.

		MS. COYNE:  So to be clear, you want to know the overall effects of an
individual with silicosis, but no specific signs to somebody that
wouldn't know?

		MS. ROBINSON:  Yes.  Thank you.

		MS. COYNE:  Everything.  When your lung capacity begins to diminish,
it affects all aspects of your life, your soul and everything that's
around it.  You're a young woman.  I don't know if you have children or
not, but you wouldn't be able to play with your children.  You wouldn't
be able to push them on a swing.  You wouldn't be able to be intimate
with your husband.  You wouldn't be able to walk to this meeting from
the curb.

		I have watched my friend deteriorate over the years, and I recently
just saw him, and if you had met him 5 or 10 years ago, you would have
wanted to be his friend - full of life, full of energy, full of love,
full of hope.  And he doesn't have that much more time.

		So the overall effects, mentally, physically, spiritually, is
depleted.  He's a young man, and to not be able to do what we sometimes
take for granted has got to be horrible because his mind is still very
young and his heart is still very young, but his body just won't let him
do it anymore.

		And, of course, a domino effect.  His wife, his children, his friends,
you know, we suffer the loss as well because there's absolutely nothing
we can do.  We're all powerless over what this dust has caused to an
individual who just did the right thing, got up every morning and went
to work, and it's heartbreaking.

		MR. JOHNSON:  I worked with an old journeyman that I spent most of my
apprenticeship with, and he had COPD and he wasn't overweight, didn't
smoke.  In fact, he was a very slender guy.  He -- I slowly watched him
lose his ability to work because of his lack of breath.  

		Now, I -- you know, I can't attribute that to silicosis.  I don't
know what it was, but he had a chronic breathing problem that he
developed, I'm assuming, from many, many decades of work in the
construction industry as a cement finisher.

		And over the years, he slowly lost his ability to breathe, lost his
ability to work, and we took up the slack for him in the various crews
that worked with him to try to keep him on the job long enough so that
he could reach his retirement years.  

		And it's just very sad to watch somebody who showed up for work every
day, did the right thing and helped make the company profitable, to
slowly lose their ability to breathe and ultimately their life for no
other reason than they showed up to work and did what they were asked to
do.

		MR. SMITH:  I want to take a little big different approach.  I want to
talk about the family, as Deven did earlier with his daughter and her
sensitivity.  And that really, to me, is the scariest thing, and that's
why I am looking for engineering controls before respirators, because we
don't always have time to change our clothes before we go home.

		And when we're dealing with young children before puberty, and their
cell division is four times faster, you know, the latency period is four
times shorter.  They're four times more susceptible, and this is
something that is unimaginable to me too.  You know, personally, I could
die before I could ever look at my children getting sick or dying
because of something I brought into the house.

		MS. COYNE:  This is Sarah again.  Just to hit on the engineering
controls, if you look at the average worker in construction, you know,
we're -- we don't get it -- into it really for the money.  And more
often than not, especially when I was an apprentice, I had one vehicle. 

		Without engineering controls in place to prevent the dust leaving with
me at work, what I'm doing is I'm getting into my vehicle, which today
from 7:00 to 3:30 is my work truck, but when I get home, it's the family
vehicle as well.  And, again, if you have a car seat in there or you put
young children in there or anybody in there, as well as yourself, now
you're in a confined space, so to speak, with silica dust.

		MR. O'CONNOR:  I think that concludes our questioning.  I'd like to
thank the panel members for coming in today.  We appreciate your time,
and we appreciate the thought and effort you put into your comments and
testimony.

		UNIDENTIFIED SPEAKER:  Thank you.

		UNIDENTIFIED SPEAKER:  Thank you.

		JUDGE SOLOMON:  Okay.  We have two more entities later on this
afternoon, so we have National Association of Manufacturers, and they're
for about 40 to 45 minutes, and then Change to Win for about 15 minutes.

		So let's go off the record while we change positions.

		(Off the record at 2:02 p.m.)

		(On the record.)

		JUDGE SOLOMON:  Okay.  Let's go back on the record.  This program is
the National Association of Manufacturers, and I understand that there
is a document that you have already proffered in this case.

		MS. KRAMER:  That's right, Your Honor.  Thank you.

		I am Allison Kramer.  I'm with the Office of the Solicitor here at
DOL.  

		The National Association of Manufacturers has handed me a copy of
their written testimony, which I'd like to mark as Hearing Exhibit
Number 49 and have admitted to the record.

		JUDGE SOLOMON:  Okay.  Without objection, it is admitted.

(Whereupon, the document referred to as Hearing Exhibit 49 was marked
and received in evidence.) 

		MS. KRAMER:  Thank you.

		JUDGE SOLOMON:  So who is going to make the initial presentation?

		MR. TRAUGER:  We'll share that honor, Your Honor.

		JUDGE SOLOMON:  Okay.  So do you want to introduce yourselves?

		MR. TRAUGER:  Sure.  My name is Joe Trauger.  I'm the Vice President
of Human Resources Policy for the National Association of Manufacturers,
and this is Amanda Wood, my colleague, who is the Director of Employment
and Labor for the National Association of Manufactures.

		So with that, I'll go ahead and get started.  I'm sorry.  And
Manesh --

		MR. RATH:  That's okay.  

		MR. TRAUGER:  -- Rath.

		MR. RATH:  Yes.  Manesh Rath, with --

		MR. TRAUGER:  Sorry.

		MR. RATH:  -- Keller and Heckman on behalf of the National
Association of Manufacturers.

		MR. TRAUGER:  My apologies.

		JUDGE SOLOMON:  Go ahead.

		MR. TRAUGER:  Great.  Thank you.

		Good afternoon.  The National Association of Manufacturers appreciates
the opportunity to testify today regarding the Occupational Safety and
Health Administration's Notice of Proposed Rulemaking on crystalline
silica.  We ask that this oral statement in its entirety be inserted
into the hearing record, which we've already done.

		The NAM is the largest manufacturing association in the United States,
representing small and large manufacturers in every industrial sector
and in all 50 states.  Manufacturing employs nearly 12 million men and
women, contributes more than 1.8 trillion to the U.S. economy and
annually provides the largest economic impact of any major sector and
accounts for two-thirds of private sector research and development.

		Founded in 1895, the NAM is a powerful voice of the manufacturing
community and the leading advocate for a policy agenda that helps
manufacturers compete in the global economy and create jobs across the
United States.

		As I indicated, I am joined here by my colleague, Amanda Wood,
Director of Labor and Employment with the NAM.  I'd like to start our
testimony by sharing NAM's policy with regard to workplace health and
safety, which was recently affirmed by the NAM's board of directors,
which is comprised of over 200 board members.

		Quote, "The NAM believes employers are responsible for providing a
safe and healthful work environment and conducting effective
occupational safety and health programs.  These programs are essential
to good employee relations and sound business practices.  Employers must
be able to maintain and utilize their authority and freedom to fulfill
these responsibilities in the best way possible, given their individual
operation's equipment, workforce, and business circumstances."

		"Manufacturers believe both employers and employees have important
roles in maintaining safe workplaces.  To achieve our shared goals of
maintaining a safe workplace, the Occupational Safety and Health
Administration should be as much of a resource for manufacturers as it
is an enforcement agency.  Improving safety is most effective when all
parties -- employers, employees, and OSHA -- work together to achieve
better results." 

		This policy follows the history and intent of the OSH Act as expressed
by an early leader in this area, the Honorable M. Chain Robbins, the
Deputy Assistant Secretary of the Department of Labor.  Deputy Assistant
Secretary Robbins presented a discussion on the OSH Act to the NAM on
March 22nd, 1972.  That's 42 years ago nearly to the day.  In that
presentation, he indicated that, quote, "Congress presented us with a
great potential and a great challenge.  The essence of the Act is
cooperation."

		We would like to stipulate at the outset that Amanda and I are not
technical experts.  Accordingly, if there are technical questions about
our presentation, we'd be happy to take them to experts within our
membership and hope to address them in our post-hearing comments.

		We seek to offer the perspective of the overwhelming majority of our
members who believe the proposed rule is an unnecessary change that will
be unachievable for many manufacturers and will be more costly than OSHA
estimates for all affected employers.

		If adopted as proposed, based on comments received from our members,
we believe the standard will lead to businesses having to decide whether
they can even continue to operate in the United States.  Employers will
have worked for decades to achieve compliance with the current PEL and,
through these efforts, have adopted the best possible and most
cost-effective ways to keep all of their employees safe.

		Importantly, credit for the success goes to the employers who have
worked over the last 75 years to control exposures to respirable
crystalline silica in their workplaces, often voluntarily.  It is the
efforts of employers and especially those responsible for safety and
health practices in individual workplaces that deserve recognition for
the changes that have resulted in such a dramatic drop in reported cases
over recent decades.

		We acknowledge there are still industries having difficulty achieving
the current standard.  It is important to recognize this, and we believe
manufacturers and the agencies should work together to address these
situations.	 Simply lowering the current standard ignores the reality we
face.

		As OSHA has heard, this rule will have wide-reaching effects on a
large number of manufacturers both directly and indirectly.  Due to the
number of manufacturers impacted by the adoption of this proposed rule,
the breadth and diversity of industries and activities and sheer volume
of material to be analyzed, the NAM made two requests to extend the
comment period.  It was extended twice, as you know.

		While each extension OSHA granted was welcomed and helpful, planning
in this context is necessarily based on what is rather than what might
be.  Furthermore, the extended time period would have been a fraction of
the time the Agency has had to develop this proposed rule.  The NAM
believes that had OSHA provided the additional time requested, comments
and input from industry would have been more informed and helpful to the
Agency.

		In the end, the NAM believes assertions made by the Agency of
conducting an open process for this rule will prove unfounded and that
OSHA's actions will have deprived the Agency and the public of
opportunity to perform a thorough review of the impact of the proposed
rule prior to the Agency's final action on this matter.

		OSHA's statements that these hearings combine with pre- and
post-hearing comment periods will -- quote, "will provide 10 months or
more for stakeholder input on the proposed rule," unquote, is troubling.
 OSHA has had over 10 years since SBREFA panel was conducted to review
the record and prepare the proposal for us.

		This is highlighted by the fact that OSHA provided stakeholders with
only two hours during this process in which to question or clarify
thousands of pages of regulatory text and supporting information from
OSHA, its peer review panel, and NIOSH.

		Notwithstanding, the Department adopted rules for procedure
promulgating modified and revoking OSHA standards codified in 29 C.F.R.
1911, which state, "The presiding officers shall provide an opportunity
for cross-examination on crucial issues."  Surely, this rule, due to its
sheer volume alone, falls into the same category as the ergonomics rule
from the 1990s, as containing, quote, "crucial issues" in which
stakeholders and the Agency alike should have the opportunity to
cross-examine each other on these issues.  

		We note, during that administrative hearing for the ergonomics rule,
17 and a half hours were allotted to ask questions of OSHA over multiple
rounds of questioning.  This is in stark contrast to the process we're
currently engaged in which appears to be resulting in more contention
than cooperation.  Unfortunately, this will result in a rule that is
less informed than it can or should be.

		We are particularly concerned about statements made last week at these
hearings that seem to indicate less weight would be given to those
choosing to testify but not submitted to open-ended questioning or
examination from the Agency and others.  Frankly, this is one of the
difficulties we face as an association in further informing discussions
with direct testimony from manufacturers.  Whether before the Agency
itself or a congressional panel, individual companies are reluctant to
put themselves on record in a forum that too often becomes an
adversarial process rather than an exchange of views on the impact of
existing or new regulations.

		Our comments and testimony today are focused primarily on policy
issues consisting of significant risks and reduction in risk
requirements, feasibility to comply with a proposal, the requirement to
use engineering controls over other methods, and some real-world costs
and considerations associated with implementing all the requirements.

		In addition to our policy concerns, the NAM will provide examples of a
proposal's impact we received from our members.  We would also like to
note we support the comments on this proposal filed and discussed in
this proceeding by the U.S. Chamber of Commerce, the American Chemistry
Council's Silica Panel, the Construction Industry Safety Coalition, and
the American Foundry Society.

		Now, I'd like to turn it over to my colleague, Amanda Wood.

		MS. WOOD:  Thank you, Joe.  I'd also like to thank you for the
opportunity to testify here today.  

		I will focus my portion of the NAM's presentation on the significant
risk and reduction of risk requirements, issues with the feasibility of
implementing the rule, and the accuracy of sampling, but I first want to
focus on the Preliminary Economic Analysis where OSHA states there are
at least 24 manufacturing industry subsectors identified by the North
American Industry Classification System, or NAICS Codes, which would be
affected by the proposed standard.  

		Among these are asphalt paving products, asphalt roofing materials,
foundries, concrete products, cut stone, dental equipment and supplies,
flat glass and other glass products, hydraulic fracturing, iron
foundries, jewelry, mineral processing, mineral wool, non-ferrous sand
casting foundries, non-sand casting foundries, ferrous sand casting
foundries, paint and coatings, porcelain enameling, pottery, ready-mix
concrete, refractories, refractory repair, shipyards, and structural
clay.  Collectively, the NAM has members in each of the 24 manufacturing
industry subsectors, and all of them would be affected by this proposed
standard.

		It should be noted that in the limited time we had to review the
volumes of detailed information related to the proposal, we discovered
that several of NAM members have NAICS codes that OSHA did not include
in the 24 subsectors listed, although these manufacturers know their
employees work with silica-containing materials and may be exposed to
silica.

		For example, we identified the following codes that were not included:
332215, 333249, 326191, 331529.  We point this out -- we pointed this
out in our written comments to the Agency and raise them here again
today because it clearly indicates the data and estimates contained in
the Preliminary Economic Analysis are incomplete and, as a result,
underestimate economic impact of this proposed rule.

		Many of the tasks associated with the NAICS codes identified by the
Agency will be performed by employees of the manufacturing facility.  In
circumstances where these tasks are performed by outside contractors,
there are several likely scenarios under which employees of the
manufacturing facility would be exposed to silica.

		First, many contractor activities will be subject to coordination by
employees of the manufacturing facility or the host employer in its role
as the general contractor.  Second, many contractor activities will
require the ongoing support of employees of the manufacturing facility. 
Third, many contractor activities are likely to be performed in the same
area where the host employer's employees are working. 

		We have not been able to identify any recognition, much less
discussion or analysis of these activities in the Preliminary Economic
Analysis, and their impact on the manufacturing employees or the cost
associated with addressing any of these compliance issues.

		Again, based on this fundamental flaw, we believe the data and
estimates contained in the Preliminary Economic Analysis are inadequate.
 Thus, nearly every manufacturing employer will incur costs associated
at least with assessing potential exposure from tasks that are not --
that are nominally covered by the proposed standard, but for which OSHA
has not shown that there is a significant risk of material impairment of
health or functional capacity.

		Next, I would like to turn to the significant risk and reduction of
risk requirements.

		The NAM is skeptical of OSHA's extrapolations of silica exposure from
studies of occupations where substantial exposure has occurred in the
past to those occupations where exposure to silica occurs infrequently
and at low levels.

		As OSHA states, it is cumulative exposure to silica that determines
the degree of risk.  It follows that OSHA should show by scientific
evidence that conditions in manufacturing industries produce silica
exposures of significant magnitude and for a sufficiently long period of
time to warrant the additional steps OSHA proposes to impose wherever
some potential for exposure to silica occurs.

		The NAM does not believe OSHA has validated its assertions on this
point.  Without any justification, OSHA makes the assertion that
surveillance data are insufficient for the analysis of residual risk
associated with exposure to silica and that such an analysis must be
based on exposure- based response data.

		But OSHA does not have any exposure-response data at exposures below
the current PEL that show any risk of harm.  In other words, rather than
relying on real-world evidence of residual risk from a very large
exposed population, OSHA asserts that it should instead utilize
theoretical models to estimate that risk based on extrapolation from the
estimated risk and exposures that are far higher than the PEL.

		Turning to the feasibility issue, manufacturers generally may have
employees with potential silica exposures if maintenance and
modifications to the physical facilities involve tasks where
silica-containing building materials or structures have to be modified
to make necessary changes.  The tasks involved include drilling with
handheld tools, drywall finishing, and using tools like jackhammers and
concrete saws, among others.

		Because manufacturers represented by the NAM will have employees who
are outside contractors performing this work and will only infrequently
and sporadically be involved in projects with potential silica exposure,
adopting the controls OSHA proposes will have minimal benefit because of
the minimal risk such tasks involve.

		Among the manufacturers most concerned with this proposal are our
foundry members.  These foundries are directly affected by every
provision of the proposed standard.  We believe the comments filed by
the American Foundry Society demonstrate the infeasibility of the
proposed PEL for the foundry industry and that OSHA has only
superficially examined the experience of the industry in attempting to
meet the existing PEL.

		Because the foundry industry has been a focus of attention, the fact
that OSHA's feasibility conclusions as to the proposed PEL are unfounded
and so far off the mark with respect to foundries suggests that OSHA's
general conclusion on the feasibility of the proposed PEL are also not
convincing.

		The NAM believes OSHA has not accurately considered the difficulties
in complying with the PEL solely through engineering controls,
especially with the regard to maintenance activities.  

		We received the following comment from one of our members in the glass
industry, and I quote, "Exceedance of the PEL can and do occur in our
facilities, especially involving maintenance and/or cleaning activities.
 There are occasional conditions where maintenance/cleaning is performed
inside conveyor enclosures where the enclosure is ordinarily a part of
the dust control systems.  This is just one example of where a control
would have to be breached in order to properly maintain it, as well as
the operating equipment.  It is simply not technically feasible to
establish the engineering controls for all possible maintenance
activities.  There has to be allowances for offset conditions where
maintenance and cleaning of systems is required.  Respirators must be
allowed for such periods.  Even the engineering controls themselves
require maintenance and cleaning periodically.  It is especially not
feasible to have engineering controls for the engineering controls. 
Maintenance activities in all of our sand batch handling systems have to
be performed quite regularly due to the abrasive and corrosive nature of
the silica itself and other materials in the process," end quote.

		Further, this member explains that the proposed Paragraph (f)(3)(i)
specifically requires HEPA filtered vacuums and that it seems to the
exclusion of any other technology.  Many glass batch houses, for
example, are currently equipped with central vacuum systems that
discharge external to the facility and are EPA permitted as a discharge.
 This would seem to be the equivalent in terms of worker exposure
control to a HEPA vacuum and should be allowed by the new standard.

		Additionally, this member pointed out that the proposed rule would
prohibit the use of compressed air to clean surfaces and equipment. 
Again, there is some equipment in circumstances when other methods are
just not effective.

		While we certainly agree that the use of compressed air in some
instances can contribute to silica exposures, there are many situations
where there are no practical alternative.  This may be due to the
characteristics of the material or the space or where the use of water
would be unacceptable because it would cause property damage or even
create the potential for an explosion, such as near molten metal in a
foundry.

		We believe that employers, rather than OSHA or its contractors, are in
a better position to judge whether, for a particular task, it is better
to use compressed air with appropriate protection or to use other
methods.

		In another case, a member told us he was asked by one of his customers
to certify that his products were silica-free or fully complied with
OSHA's new exposure limit.  Such a certification is difficult to make
under most circumstances and, in some cases, impossible given that
products are used in vastly different ways and silica is so prevalent in
nature.

		For this company, the new exposure limit will force them to use more
refined and vastly more expensive materials, which will in turn make
them less competitive in their key export markets versus their foreign
competition.  Yet, it remains unclear whether the risks of the silica
exposure from incidental quantities of silica in products are the same
as those from historically high silica exposures.

		This same member pointed out several other issues his company will
face with a lower PEL and the materials they use for their products. 
And I quote, "Several key raw materials used are raw materials at risk
because of the naturally occurring crystalline silica content in them. 
These raw materials are all silica-based minerals used in a broad
spectrum of end-use applications ranging from coatings, paints, as
functional fillers for resins and polymers, personal care products,
pottery, and ceramics.  In one case, the product we currently employ has
no viable alternative of lower crystalline silica content.  This
material offers some unique performance properties which are not
available in other types of raw materials.  Other types of materials
have alternatives with lower crystalline silica content that are
commercially available.  However, these grades are high-refined products
targeted to uses in consumer personal care products.  The additional
mineral processing cost associated with producing these highly refined
grades will make them too expensive to be economically viable for the
use in the industrial application areas we serve.  The personal care
grades are frequently three to four times more expensive than the
industrial grades we have to employ to be competitive in our markets,"
end quote.

		The replacement or substitution of raw materials due to the new
proposed standards does not appear to be adequately addressed in OSHA's
cost analysis.

		With respect to the accuracy of sampling, in Question 47 of the
proposed regulation, OSHA asks for comments on an assessment of the
available sampling and analytical techniques for measuring exposure to
silica, especially at the proposed PEL and action level.

		To assess compliance with the proposed PEL of 50 µg and an action
level of 25 µg, OSHA would have employers arrange for sampling and
analysis according with -- in accordance with OSHA method ID-142.

		According to the OSHA website, that method has an overall analytical
error of plus or minus 26 percent and has been validated for a working
range of 50 to 160 µg with a recommended sampling of 1.7 L/min, which
results in a total volume of 816 L over 8 hours.

		In OSHA's preamble discussion of analytical accuracy, OSHA states that
the method has a precision error of plus or minus 23 percent at a
working range of 50 to 160 µg and a sampling and analytical error of
plus or minus 19 percent.

		OSHA adds to the confusion by failing to explain the relationship
between an overall analytical error of plus or minus 26 percent and the
combination of a precision error of plus or minus 23 percent and a
sampling and analytical error of plus or minus 19 percent.

		Although the Agency does not acknowledge the problem, we would like to
point out that a sample of 50 µg, which is the bottom of the working
range that has been validated for method ID-142, yields an exposure
level of 61 µg in a full shift sample.

		In other words, to achieve the PEL, method ID-142 must be applied to a
quantity of silica smaller than the smallest amount for which the method
has been validated when collected according to the specified protocol.

		The Agency then states, without explanation, "OSHA's Salt Lake
Technical Center evaluated the precision of ID-142 at lower filter
loadings and has shown an acceptable level of precision is achieved at
filter loadings of approximately 40 µg and 20 µg corresponding to the
amounts collected from full shift sampling at the proposed PEL and
action level respectively.  This analysis showed that at filter loadings
corresponding to the proposed PEL, the precision and sampling and
analytical error for quartz are plus or minus 17 and plus or minus 14
percent respectively."

		This statement, however, is misleading.  If all error other than
sampling and analytical error were eliminated and the sampling and
analytical error was 14 rather than 19 percent, then a test result of 43
µg would only indicate a possible range of exposures between 36 and 50
µg.  Thus, for an employer to consistently achieve an exposure level of
50 µg, it would have to achieve an actual exposure level of no greater
than 43 µg.  Yet, OSHA has acknowledged that 50 µg is the lowest
feasible PEL.

		Even if it was technically and economically feasible for an employer
to obtain the measurements required to establish this average exposure
level, it would be virtually impossible for OSHA to duplicate that
effort in the course of its enforcement investigations.  Furthermore,
this incredibly burdensome monitoring procedure would not be required
solely for the initial assessment, but for each quarterly or semiannual
periodic monitoring measurement.

		Given the burdens imposed by all of the other ancillary requirements
that would be triggered by the exposure level in excess of the PEL, it
would be unreasonable to have those requirements triggered by a
technically and economically infeasible testing regime.  In other words,
OSHA has demonstrated that measurement of exposures at the proposed PEL
and action limit cannot be reliably performed to demonstrate compliance
with the proposed PEL and action limit and that compliance with the
proposed PEL is technically and economically infeasible.

		OSHA had not discussed other methods NIOSH has reviewed and for which
NIOSH provided statistical analyses of their performance.  OSHA should
demonstrate that these methods are inferior to the proposed method
before requiring laboratories and the regulated community to substitute
what appears to be inadequate technique.

		At this point, I will turn the presentation back over to Joe Trauger,
who will conclude with a discussion on engineering controls and cost
concerns.

		MR. TRAUGER:  Thank you.

		The NAM held its biannual board of directors meeting March 12th
through the 14th, just a couple weeks ago, and I can tell you that
this -- OSHA's proposed silica standard came up a number of time in
conversations I had with our members.

		With respect to the accuracy of sampling, there's a genuine concern
among our members about whether it will even be possible to know for
certain whether or not they're in compliance with the lower permissible
exposure limit.

		With respect to engineering controls, OSHA's primary reliance on
engineering controls means employers will necessarily rely on increasing
the amount of ventilation and air movement to reduce the amount of RCS
in the workplace.  OSHA's analysis suggests that simply increasing
ventilation rates will control exposures, but the law of diminishing
returns means that the increase in the quantities of air to be moved,
cleaned, and replaced will increase costs and decrease effectiveness
exponentially.

		Those changes in volume and the increased number of vents that
exhausts silica particulates into the outdoor environment will likely
require employers to update federal, state, or local environmental air
emission permits.  In addition, they will result in greatly increased
energy costs for the heating and cooling of these huge volumes of
additional air.

		Air quality permits take considerable time and monetary resources to
obtain and modify.  Because of the requirements for public input on
Clean Air Act permits, we can anticipate that OSHA's implementation
timeframe is too short, possibly by three to five years or more.

		Simply obtaining the necessary insulation and operating permits on an
expedited basis can take six months or more.  For example, Ohio has a
air to permit -- Air Permit-to-Install and Operate Program that has a
statutory time frame for issuing the permit of 180 days.  The Agency
review period does not include the time to (1) determine what, if any,
changes are necessary that will require modifications to the air and
operating permits of a facility; (2) design the changes; (3) prepare
the appropriate documents; and (4) submit the application.

		The NAM has not found an analysis in OSHA's PEA in which OSHA accounts
for these requirements, nor does OSHA account for the need and cost to
participate in the public review process for possible extension if there
is any significant public opposition or comment.

		In developing the proposed rule, OSHA has established a hierarchy of
controls familiar to other OSHA standards involving airborne health
hazards.  Specifically, OSHA requires that an employer bring the
exposure levels below the PEL through a range of complex and intensively
expensive engineering controls, such as the use of wet-assisted dust
suppression equipment, vacuum-assisted equipment, and ventilation
systems.

		As discussed below, manufacturers can spend millions of dollars on
ventilation systems only to discover afterwards that these costly
infrastructure expenses resulted in little or no appreciable gains in
controlling silica exposures.

		OSHA proposes that (a) wherever feasible, the employer should use
engineering and work practice controls; and (b) where engineering/work
practice controls do not reduce exposures to or below the PEL, the
employer shall use them to reduce exposures to the extent feasible and
supplement those measures with respiratory protection.

		This provision is based on a policy adopted as a good industrial
hygiene practice before OSHA was created.  And while OSHA attempts to
justify its continued inclusion in every substance-specific health
standard, OSHA's analysis fails for several reasons, which are explained
in the next section of these comments.

		In addition to engineering controls, OSHA permits work practice
controls.  However, it prohibits the use of job rotation that is
implemented strictly for the purposes of reducing exposure to RCS.  This
is without justification, and it ignores the wide body of evidence that
reducing the cumulative exposure in this manner is an effective practice
to achieve the goal of the proposed rule.

		The NAM believes the basis for OSHA's apparent antagonism to
respiratory use as the primary method of exposure management is outdated
and premised upon outdated respirator designs that are no longer in use.
 OSHA believes that respirators are not foolproof because they require
that employees properly select and continuously use respirators and that
employees properly maintain them.

		Astoundingly, OSHA has therefore neglected one of the most
cost-effective methods for managing silica exposure.  This is
unfortunate since intuitively the manufacturing community will most
broadly adopt the compliance method that is quickest to implement,
easiest to manage and monitor, and most cost-effective among equally
effective alternatives.

		We note that the quality and efficacy of respirators has improved
dramatically over the last 40 years.  Respirator manufacturers are
consistently improving the technology to assure better fitting and more
reliable devices.  It does not appear OSHA has taken these improvements
into account.

		One of our members states, quote, "We already employ significant
safety measures to protect our workers, our plants, in terms of having
ventilation systems designed to reduce airborne dust to safe levels and
employment of personal protection equipment such as respirators.  If the
exposure limits are further reduced by the new regulation, we may have
difficulty complying with those exposure limits from a practical,
everyday practice standpoint with our current mineral raw materials. 
This could force us to use more refined, more expensive mineral pigments
that will make us less competitive in our key export markets versus
foreign competition."

		Additionally -- unquote.  Additionally, we also know some of our
members have been investigating in powered air-purifying respirators
attached to helmets or air helmets which provide clean air effectively
and with less potential for inadequate fit or efficacy.

		Members tell us that they have used these air helmets and that their
employees prefer them over other PPEs.  OSHA has not considered
information that's publicly available about these air helmet devices,
among others, and has not, to our knowledge, spoken to the effective and
less costly alternative they provide for employees and employers.

		Several questioners have argued that the helmets can be noisy and
interfere with communication in the workplace, requiring a reliance on
employees to use them properly and require continued maintenance.  As we
noted in our comments, engineering controls suffer from the same
defects.  They can create noise and other obstacles with clear
communication.  They can require employees to use them properly and
require continued maintenance and upkeep.

		Further, the requirement to incorporate all feasible engineering and
administrative controls is an unbounded requirement that OSHA needs to
revise because employers will never know when or if they're in
compliance.  This represents poor public policy and creates unnecessary
confusion and uncertainty.

		OSHA should endeavor to make its requirements clear and base them on
objective criteria so employers know what standard is to be met while
allowing flexibility in achieving compliance.  Moreover, because the
proposed requirements become increasing expensive and provide reduced
benefit as controls are added to the regime, they will become
economically infeasible and will exceed the bounds of what is reasonable
for each affected industrial sector.

		We support the comments refuting OSHA's Preliminary Economic Analysis
and submit the numbers contained in the PEA are inaccurate and based on
data not relevant to 2014.  To give you a snapshot of how underestimated
these costs are, we heard from members who were able to do a quick
analysis of what they believe it would cost to implement the rule.

		One company in particular shared with us that it would cost $1 million
just to purchase and run a new dust collector in one facility.  In
addition, OSHA calculates the cost of ventilation to be $5.33/ft3/min. 
Our member tells us that this is well below the actual cost they
experience of $20/ft3/min, which does not take into account,
engineering, air modeling and permitting costs.

		With respect to training costs, OSHA estimates it will cost $2 to
train each employee under the new proposed rule.  To our membership,
this is simply not a rational or reasonable estimation.  One member
explains that it will take them approximately one hour to cover all the
topics for the new training.  They price their employees' time at $30
per hour, which includes their hourly pay and benefits.  The cost of
lost production on top of that would be several hundred dollars per
employee per hour depending on an employee's position.

		The bottom line here is that OSHA has severely misjudged the costs
industry will face to implement and maintain compliance with this new
regulation.

		I will conclude by respectfully suggesting that OSHA does not appear
to have employed the best available evidence to determine whether this
proposed regulation is feasible and may well force manufacturers to
spend millions of dollars on ventilation systems, new equipment, and
training costs only to discover afterwards these costly infrastructure
and capital expenses resulted in little or no appreciable gains in
controlling silica exposures and have made them less competitive.

		The NAM advocates for policies that make manufacturing in America more
competitively globally.  In many ways, manufacturing is poised for a
comeback in the United States, but if we continue to ignore the
opportunity before us and build barriers and pose burdens or otherwise
hinder the ability of this important sector to succeed, we face
disappointment in the future.

		Manufacturing is not only critical to the health of our economy.  It's
vital to the security of our nation.  Since our country's founding,
American manufacturers have answered the call of our nation in its times
of need.  This regulation will have a direct impact on the
infrastructure we rely upon to answer that call when it comes.

		Few regulations have such profound long-term consequences on how we
provide for our economic and national security.  We cannot get this
wrong.  One member recently shared with me his concern that if the
proposed rule is adopted as written, we may not have -- we may not be
able to manufacture the things we need in order to provide our national
defense.

		Indeed, many manufactured products used in things like aircrafts,
ships, weapons systems are made in factories where the exposure to RCS
may occur.  We cannot afford to lose these defense industry capabilities
because once they're lost, they're extremely difficult to regain.  

		Recent world events demonstrate the dangers that remain and the risk
posed to all Americans.  An over-reliance on foreign sources for key
defense material and capabilities could be an unintended consequence of
an overly aggressive standard.  Again, we cannot get this wrong.

		Accordingly, the NAM submits that the best action for OSHA to take is
to withdraw its proposed rule on occupational exposure to respirable
crystalline silica until the Agency can properly address these issues
using the best available evidence.

		Thank you for your time and consideration.  We'd be pleased to answer
what questions we can today and hope to address others in post-hearing
comments.  Again, thank you for the opportunity.

		JUDGE SOLOMON:  Okay.  It's 2:45.  How many members of the public want
to ask questions?  Okay.  We have one, two, three, four, five people.  

		Starting here, Mr. Frumin, you're first.  Maybe people can line up
after he gets to the podium.  He gets 15 minutes later on, so you can
ask him questions after.

		MR. FRUMIN:  Do we have an approximate time here, Your Honor, for how
much I --

		JUDGE SOLOMON:  Well, it depends on how many other people want to ask
questions.  So how many questions do you think you have?

		MR. FRUMIN:  I don't know, eight or nine roughly.

		JUDGE SOLOMON:  State your name and spell --

		MR. FRUMIN:  Okay.

		JUDGE SOLOMON:  -- your last name.  I know how to spell it, but we
have to make sure that it's in the record.

		MR. FRUMIN:  Eric Frumin, F-R-U-M-I-N, Change to Win, based in New
York.

		Okay.  Well, we'll just start and see where we go.  Hi.  Thank you.

		So your testimony discusses exposure assessment, exposure monitoring,
and the costs of the proposed requirements.  Did I understand you right
that you said that the potential costs from the standards requirements
for exposure monitoring could be potentially large ones for your
members?

		MR. TRAUGER:  I believe that's in our testimony.  Yes.

		MR. FRUMIN:  When did you first become aware that OSHA planned to
include exposure monitoring -- well, when did you first become aware of
OSHA's plan for revising the silica standard?

		MR. TRAUGER:  I don't know that I'd necessarily be able to give you an
exact time frame on that.

		MR. FRUMIN:  Do you know whether any of the members of NAM, for
instance, participated in the SBREFA panel about 10 years ago?

		MR. TRAUGER:  I'm aware of three or four current members that did
participate in the SBREFA --

		MR. FRUMIN:  Okay.

		MR. TRAUGER:  -- panel.

		MR. FRUMIN:  So --

		MR. TRAUGER:  A number of other members that were members are no
longer in business,

		MR. FRUMIN:  So certainly at the time of the SBREFA panel, NAM members
were informed about the possibility that exposure monitoring would be
part of the proposed standard; am I right in that assumption?

		MR. TRAUGER:  I guess you could be, yeah.

		MR. FRUMIN:  Okay.  Do you recall whether, either at the time of the
panel or since then, whether NAM communicated with the members on the
panel or other members about the potential costs or the importance of
the exposure monitoring requirement?

		MR. TRAUGER:  Well, I'm not sure exactly where you're going, but I
mean, as far as communications we have with our members, I'm not going
to share that with you.

		MR. FRUMIN:  Okay.  So you've talked about the importance of exposure
data and the relevance of exposure data from employers who are
potentially covered by the standard to this rulemaking and your need to
be able to get it and so forth.  So do you have a rough idea about when
the importance of that data became evident to you?

		MR. TRAUGER:  Again, I don't know that I can answer any specific time
frame.  I can -- what I can share with you today and something that we
can share in our post-hearing comments because, you know, we did, on a
number of occasions, communicate to our members, the importance of the
proposal that's before us.  We tried to -- we gave our members a
survey.  There were, I believe, 33 questions, 39 subparts of that
question -- of those questions in the survey.  

		We'd be happy to provide those questions that we asked our members in
the post-hearing record.  So, I mean we've been trying to collect the
data, but again, you know, we have to deal with what is, what might be. 
So we have to -- you know, we didn't have enough time to get the data
back from our members, but what data we did get back, we were pleased
with and we were happy to share it.

		MR. FRUMIN:  Okay.  So do you have plans to provide that information
for the -- before the close of the record?

		MR. TRAUGER:  We would be happy to provide the questions.  As far as
the answers are concerned, we provided that in our written testimony
that was submitted today and also in our written comments.

		MR. FRUMIN:  Maybe I missed that.

		MR. TRAUGER:  Based upon our feedback.

		MR. FRUMIN:  Can you just show me where that is in the testimony? 
Because I thought I read it -- that part carefully.  You -- the --

		MR. TRAUGER:  The comments we filed and the statement we made today
are based on the feedback we got from our membership.

		MR. FRUMIN:  Right.  Yes.  I understand that you're reflecting the
feedback you got from the members.  That's very clear.  What I'm
wondering is whether you've provided any of the actual results of the
survey thus far, and if not, whether you'd provide any of the results in
addition to the questions that you've offered to provide for the record.

		MR. TRAUGER:  We will provide the questions.

		MR. FRUMIN:  And the results?

		MR. TRAUGER:  Like I said, we base our comments on the results that we
got back from the input we received from our members.

		MR. FRUMIN:  Okay.  So let me try and make it a yes or no.  Will you
provide the results of the survey regarding the exposure measurement
data that the survey covered?

		MR. TRAUGER:  Are we going to provide the raw data?  No.

		MR. FRUMIN:  I'm not asking you to provide the raw data.  I'm asking
whether you will provide the results --

		MR. TRAUGER:  No.

		MR. FRUMIN:  -- of the survey.

		MR. TRAUGER:  As I indicated in the testimony today, you know, we --
there's a genuine concern among membership and individual companies
about what data they provide.  So they wouldn't want us to release that
information.

		MR. FRUMIN:  Well, would you be willing to provide the data without
identifying the individual employers?

		MR. TRAUGER:  No.  I'm not at liberty to do that.

		MR. FRUMIN:  I see.  So you're collecting data to inform your comments
from a -- based on a survey of 30-something questions and you'll
provide the questions, but you -- you're going to withhold any version
of the results of those data from the rulemaking?  Am I understanding
you correctly?

		MR. RATH:  That's not what Mr. Trauger said.

		MR. FRUMIN:  So I'm trying to clarify it, and it sounded like that. 
So if you --

		JUDGE SOLOMON:  This is --

		MR. FRUMIN:  -- intend something else --

		JUDGE SOLOMON:  Mr. Frumin --

		MR. FRUMIN:  -- I'm trying to --

		JUDGE SOLOMON:  Listen, you got what you need.  It was asked.  It was
answered.  It's argumentative now.

		MR. FRUMIN:  I'm sorry.  The other gentleman, whose name I don't know,
says I misinterpreted his answer.

		JUDGE SOLOMON:  This is why it's argumentative, okay?  Ask another
question.  Do you have another question?

		MR. FRUMIN:  I do, but the --

		JUDGE SOLOMON:  No buts.

		MR. FRUMIN:  -- relevant --

		JUDGE SOLOMON:  Okay.  You're done, Mr. Frumin.  You can come back
later.

		MR. FRUMIN:  Okay.  Do you mean I can ask other questions later when
they're done?

		JUDGE SOLOMON:  Maybe.  

		MR. FRUMIN:  Okay.

		JUDGE SOLOMON:  We'll see how much time we have.

		Let me just say that in a legal proceeding, this is not this kind of
proceeding.  We're operating under administrative rules that were
recently published.  I would force him to answer those questions, but I
am not empowered to do that.

		MR. KOJOLA:  Okay.  Good afternoon.  My name is Bill Kojola,
K-o-j-o-l-a, and I represent the National Council for Occupational
Safety and Health.

		In the written comments that you previously submitted to the record on
Pages 23 and 24, you have some discussion about the effectiveness of
respirators and you state that the, quote, "quality and efficacy of
respirators have improved dramatically over the past 40 years. 
Respirator manufacturers are consistently improving their technology to
assure better fitting and more reliable devices."

		You also go on to state that, quote, "Use of respirators can be as
effective as engineering controls because engineering controls are
subject to the same limitations as respirators," close quote, and that
quote, "employee acceptance of our overall practices and procedures for
compliance would be improved because the required use of respirators
would reinforce the potential risk and emphasize the need for employees
to follow all related procedures", close quote.

		Can the efficacy, the reliability, and the employee acceptance of
respirators be quantitatively determined?  In other words, can you
assign numerical values to these criteria of efficacy, reliability,
employee acceptance of respirators?

		JUDGE SOLOMON:  Is this for Mr. Trauger or Ms. Wood?

		MR. KOJOLA:  It's for whoever can answer the question.  I'm not sure
who --

		MR. TRAUGER:  Well, I don't think we'd necessarily be able to answer
the question on the spot, but we can certainly look at any studies that
might have been done and provide that information in our post-hearing
comments.

		MR. KOJOLA:  So are you aware of any such evaluations of these
respirator qualities?

		MR. RATH:  The comment is in response to an assertion in the preamble
that addresses respirators and OSHA's concern with the use of
respirators.

		JUDGE SOLOMON:  So that's really not an answer to the question.  It's
an objection.

		MR. RATH:  No.  It's an attempt at an answer, Judge.

		JUDGE SOLOMON:  You're just telling him you're not going to answer the
question is basically it.  Go ahead.  Ask another question.

		MR. KOJOLA:  So are you aware of any such evaluations of these
respirator qualities?

		MR. TRAUGER:  Not off the top of my head, no.

		MR. KOJOLA:  Okay.  Have any NAM members who either manufacture
respirators or who are required to evaluate respirators for use on their
own employees, have they provided NAM with any of these such
evaluations?

		MS. WOOD:  Not to our knowledge, but we can certainly go and ask them.

		MR. KOJOLA:  Have you requested in the past any such evaluations from
your members?

		MS. WOOD:  Not to my knowledge.

		MR. KOJOLA:  So what evaluations of these respirator qualities have
you relied on to support the statements that you've submitted in these
written comments?

		MS. WOOD:  Again, echoing Mr. Rath's statement, this comment was made
in response to what was stated in the preamble of the NPRM.

		MR. KOJOLA:  So is it NAM's position that respirators should be used
instead of engineering controls, feasible engineering controls?

		MR. TRAUGER:  I don't think that that's a fair characterization of
what our comments are or have been.  I think that our position has been
that there's a -- there are certain circumstances where engineering
controls may not be available or realistic or effective, and so in those
situations, respirators would be most suitable --

		MR. KOJOLA:  But you're not opposed to the --

		MR. TRAUGER:  -- approach.

		MR. KOJOLA:  -- use and implementation of feasible effective
engineering controls to control silica exposures?

		MR. TRAUGER:  I don't think we're necessarily opposed to it, but I
think it gets to a question of what's feasible and cost-effective.

		MR. KOJOLA:  No, but the question was if the engineering controls were
feasible and effective, would you be opposed to using those to control
worker exposure to silica?

		MR. TRAUGER:  I don't think so.  No.

		MR. KOJOLA:  Okay.  I have no further questions.  Thank you.

		JUDGE SOLOMON:  Thank you.

		Hi, Doctor.

		DR. SOKAS:  Thank you.  Dr. Rosemary Sokas.  I am here -- S-o-k-a-s,
here representing the American Public Health Association.

		I just wanted to ask a couple of questions.  One is what proportion of
your foundry members are still using silica sand molds as opposed to
alternatives that don't contain silica?

		MR. TRAUGER:  That's something we'd have to determine and can -- we
can --

		DR. SOKAS:  And you'd be able to determine --

		MR. TRAUGER:  Yeah.

		DR. SOKAS:  -- that?  That would be helpful.

		Do you have an estimate of the total cost of respiratory protection
programs that your members are currently employing?

		MR. TRAUGER:  That's data we just don't have.

		DR. SOKAS:  Okay.  Does your organization have an acceptable -- have
an opinion on the level of acceptable risk for lung cancer or for other
material impairments of health for a working lifetime exposure?  The
ones that have been established through court cases are 1 person in
1,000 developing a material impairment to health.  And I was just
wondering if your organization has an opinion on that level.

		MR. TRAUGER:  I can tell you I've never had a conversation like that.

		DR. SOKAS:  Okay.  So it's not a -- and then my final question is,
whether any members of your organization had the opportunity to meet at
the Office of Management and Budget during the period of time that they
were considering the -- you know, the OSHA silica standard.

		MR. TRAUGER:  Were we able to -- I don't recall.  I'll have to look
through the schedule to see if we attended those meetings.

		DR. SOKAS:  All right.  Thank you.

		JUDGE SOLOMON:  Mr. Frederick.

		MR. FREDERICK:  Good afternoon.  I'm Jim Frederick with the United
Steelworkers Union and it's F-r-e-d-e-r-i-c-k, for the record.  I do
have a few questions for the National Association of Manufacturers
panel.

		Just to make sure I understood the clarification that the panel made
about the survey, it's 33 questions; is that correct?

		MR. TRAUGER:  Yes.

		MS. WOOD:  Yes.  It's 33, and then there were 39 subparts to -- so
in -- within the 33, there were an additional 39 subparts within those
questions.

		MR. FREDERICK:  Okay.  That was my follow-up.  So I -- when you said
it earlier, I thought there were 33 questions, each of which having 39
additional --

		MR. TRAUGER:  No, no.

		MR. FREDERICK:  Okay.

		MS. WOOD:  No, no, no.

		MR. TRAUGER:  Sorry about that.

		MS. WOOD:  Yeah.  A total.

		MR. FREDERICK:  Okay.

		MR. TRAUGER:  That would be quite a survey.

		MR. FREDERICK:  That would be quite a survey.  And this was available
to all of the NAM members?

		MR. TRAUGER:  No.  We focused the survey, given the fact that it was,
you know, fairly extensive in nature in terms of the question and
technical, we limited it to a number of members that had self-identified
as being interested in the issue.

		MR. FREDERICK:  And are you at least able to share the number of
respondents that you had?

		MR. TRAUGER:  I honestly, I don't recall.

		MR. FREDERICK:  Okay.  Do you agree -- you started your statement out
with a good explanation of NAM's policy on health and safety or position
on health and safety.

		So from that, do you agree that workers and their representatives have
access to information like exposure data at the workplaces where they
work or represent?

		MR. TRAUGER:  I'm sorry.  Restate the question.

		MR. FREDERICK:  So let me try -- in a workplace setting that has
silica or other occupational health exposures, do workers have the right
to access that information?

		MR. TRAUGER:  I'm not an attorney, but I believe they -- there is a
right to have some access of that information.

		MR. FREDERICK:  So, counsel, is that fair from NAM's perspective?

		MR. RATH:  Well, yes.  The employees have access to that kind of data.

		MR. FREDERICK:  And their representatives as well?

		MR. RATH:  Yes.

		MR. FREDERICK:  Okay.  Are there other items pertaining to workplace
health issues such as silica that workers should have access to from
their employers, from NAM's position on health and safety?

		MR. RATH:  Can you repeat that?

		MR. FREDERICK:  In a workplace with a silica exposure issue, are there
other pieces of information about controls that employers have put in
place that workers or their representatives should have access to?

		MR. TRAUGER:  Well, I think that's sort of an open-ended question.  I
thought we were talking about silica today, but --

		MR. FREDERICK:  Well, I specified.  In silica -- in the
silica-exposed workplace, information about silica exposure.

		MR. TRAUGER:  Is there other information that should be made available
to employees?

		MR. FREDERICK:  To employees.

		MR. TRAUGER:  Is that what you're --

		MR. FREDERICK:  To workers that work around silica.

		MR. RATH:  About controls?

		MR. FREDERICK:  About controls, about --

		MR. RATH:  Yes.

		MR. FREDERICK:  Okay.  Okay.  

		MR. TRAUGER:  Sorry.  I was misunderstanding the question.

		MR. FREDERICK:  No problem.  It's no problem.

		In your comments, in your written comments, you refer to the written,
to the large number of National Manufacturers Association workplaces
kind of as the scope of workplaces that your comments were representing.
 Do you have information about those -- that large number of workplaces
that might already be doing medical monitoring with silica exposure?

		MR. TRAUGER:  I don't.

		MR. FREDERICK:  Switching gears slightly to -- you talked about
compressed air as a means of controlling contamination with silica.  And
the example you provided was around molten metal, I believe, and not
being allowed to -- potentially not being allowed to use compressed air
to clean around molten metal where water or other means might cause
additional problems.

		Are there any other work-- types of work that compressed air would be
necessary?  Because around molten metal, it would seem to odd me,
representing a fair number of workers that work around molten metal,
that an employer would want compressed air to be used because it would
blow contaminants into the metal.  So I just wondered if there were any
other examples that you could cite?

		MS. WOOD:  We'd have to go back and get you other examples.  That was
one example we used in our oral testimony today.

		MR. FREDERICK:  Right.  And I think I'm close to the end of my
questions.

		In referring to ventilation controls and you talked about the cost of
heating and cooling make-up air before it's provided into the workplace.
 Having been to a lot of workplaces where the employers are members of
the National Association of Manufacturers, I've not seen very many
examples of an employer that cools make-up air.  Do you have examples,
specific examples of workplaces that cool make-up air before putting it
into the workplace?

		MR. TRAUGER:  I mean I don't know that I would necessarily be able to
give you anything definitive, but I -- you know, in some workplaces,
it's very conceivable that you would want to control the climate within
that space.  And if you are controlling the climate in the summer
months, you would probably --

		MR. FREDERICK:  Like a foundry or a glass plant?

		MR. TRAUGER:  Well, obviously we represent more than just foundries
and glass manufacturers.

		MR. FREDERICK:  Right.  I was trying to limit it to silica type --

		MR. TRAUGER:  Right.

		MR. FREDERICK:  -- workplaces.

		MR. TRAUGER:  Well, I mean, but there are a number of different types
of industries and --

		MR. FREDERICK:  Sure.

		MR. TRAUGER:  -- you know, factories that would use silica in their
processes.  So --

		MR. FREDERICK:  So perhaps not in all of the workplaces that would use
an industrial exhaust ventilation?

		MR. TRAUGER:  I -- yeah.  I mean I don't think I said all.

		MR. FREDERICK:  Right.  And one other question about engineering
controls.  You referred to engineering controls that workers use
improperly.  I -- certainly not the correct quote of your words, but
could you provide an example of an engineering control that employers
cite as workers using improperly?

		MR. RATH:  Yeah.  I don't think that was an accurate quote, but you
may be referring to the fact that engineering controls like personal
protective equipment also need maintenance, and maintenance is something
that has to be done properly.

		MR. FREDERICK:  I'm sorry.  Now, I'm not understanding your response. 
You mean -- you're lumping respirators into -- personal protective
equipment into engineering controls?

		MR. RATH:  No.  I'm trying to understand what portion of the testimony
you're referring to, and it may be that you're referring to the National
Association of Manufacturers' position that engineering controls, like
any personal protective equipment, also requires maintenance, and
maintenance is something that has to be done properly.  The risks
attendant to improper maintenance are ones that are inherent in both the
maintenance of engineering controls as well as the maintenance of
personal protective equipment.

		MR. FREDERICK:  Okay.  So I guess I misunderstood that to say that the
engineering controls could be used improperly.  Thank you.

		And my final question just is pertaining to training in workplaces
that use silica or have silica exposure currently.  Do you have examples
of training programs that your member companies utilize for workers that
are exposed to silica?

		MR. TRAUGER:  Not that I can share today, but we can look for that.

		MR. FREDERICK:  Okay.  Well, that would be good if we could get that
into the final record.  That would be greatly appreciated.  So, thank
you.

		MR. TRAUGER:  Thank you.

		MR. FREDERICK:  Thank you, Your Honor.

		JUDGE SOLOMON:  Thank you.

		Okay.  Ms. Kramer?

		MS. KRAMER:  I believe Mr. Frumin is standing back up, and I was
wondering if he could ask further questions.

		JUDGE SOLOMON:  Come forward, Mr. Frumin.

		MR. FRUMIN:  Was that the introduction?  We're almost done here.

		JUDGE SOLOMON:  How many questions do you have?

		MR. FRUMIN:  About three.

		JUDGE SOLOMON:  Well, three is actually a real number?

		MR. FRUMIN:  It's a real number.  Yeah.

		JUDGE SOLOMON:  So that's about it.  That's all you're going to get is
three.

		MR. FRUMIN:  Okay.  So the first of my three is to clarify the
confusion about -- that was left on the table from my last question.

		So I'd like to know what your intention is with regard to the
information I asked about.

		MR. TRAUGER:  I don't understand the question.

		MR. FRUMIN:  Okay.  So I had asked --

		JUDGE SOLOMON:  There's no real predicate to your question.

		MR. FRUMIN:  Sorry.  We'll go back.  Then I'll state the predicate. 
That's fine.

		So I was asking whether the results of the survey regarding exposure
monitoring information, whether you would make it available in some form
in addition to your offer to make the questions available, I mean making
them available for the record of this proceeding.  

		And on the one hand, it sounded like Mr. Trauger was saying no, he
was not going to make the results available in some form, and then, I'm
sorry, I don't recall the gentleman's name here.

		MR. TRAUGER:  Manesh.  Manesh.

		MR. FRUMIN:  Manesh.  I -- and it sounded like Mr. Manesh said no,
that's not what he meant.  So I would just like to get one clear answer
about whether you're going to provide, in some form, the results of the
survey questions regarding the exposure monitoring information from your
members.

		JUDGE SOLOMON:  Okay.  Before you answer, let me introduce you to
Mr. Rath.

		MR. RATH:  Thank you.

		JUDGE SOLOMON:  Okay.  Now you can answer.  Go ahead.

		MR. RATH:  Judge, this is a question that has been asked and answered,
and your direction before was that it was asked and answered.  The
answer is no, and I would ask that you make a similar instruction at
this stage.

		JUDGE SOLOMON:  Well, you already -- you got the answer.

		MR. FRUMIN:  Thank you.  That's fine.  I just wanted to make sure I
understood it.

		Can you tell us which -- your testimony describes a long list of
manufacturing industry subsectors that are covered by the standard and
who are NAM members listed and NAICS codes and so forth.  Within that
list, presumably, are the subsectors of the companies to whom you
address the survey.  I'm assuming that -- that's my assumption, that
that list includes the companies to whom you sent the survey.  You
didn't send it to people not covered by the standard.

		So could you tell us which of the subsectors accounted for the largest
number of companies to whom you sent the survey?  I wouldn't expect you
to remember the full distribution, but you could tell us that foundries
was the largest and something was next after that or so forth.

		MS. WOOD:  I think in a previous question that was answered,
Mr. Trauger said we didn't -- we don't remember how many responses we
got.  So I'm going to answer it the same way.  We'd have to go back and
check on those responses to answer that question properly.

		MR. FRUMIN:  Okay.  I apologize if my question wasn't clear.  I didn't
ask how many responses you got from them.

		MS. WOOD:  I understand that.

		MR. FRUMIN:  I asked which --

		JUDGE SOLOMON:  That -- the answer is she doesn't know.

		MS. WOOD:  Right.  I'm happy to go --

		MR. FRUMIN:  Well, I'm --

		MS. WOOD:  -- back and look to see which of these codes --

		JUDGE SOLOMON:  You don't have to respond.  Ask another question. 
You're down to your last question here.

		MR. FRUMIN:  Yeah.  Could you tell us, of the total number to whom you
addressed the survey, what proportion have responded thus far?

		MS. WOOD:  Again, we've already answered that question.

		MR. FRUMIN:  Okay.  I didn't hear the answer.  I apologize.

		MS. WOOD:  Mr. Trauger said he didn't remember how many responses we
got.  We'd have to go back and look at that.  So we don't know the
percentage if we don't know the total number.

		MR. FRUMIN:  Okay.  Thank you very much.

		JUDGE SOLOMON:  Okay.  You'll be back in a few minutes.

		MR. FRUMIN:  Yes.  Thank you, Your Honor.

		JUDGE SOLOMON:  Okay.  Ms. Kramer?

		MS. KRAMER:  Yes, Your Honor.  I'm going to turn it over to David
O'Connor, who I believe will introduce the folks who will be asking
questions.

		MR. O'CONNOR:  Yes.  Joe Coble will begin questioning for OSHA.

		DR. COBLE:  Good afternoon.  I'd like to go back to the list of
industries you read off that had been included in OSHA's feasibility
analysis.  I think there was 23 industry sectors that you identified. 
And you've focused in on foundries where you're saying there's some
question regarding the case for feasibility.  Are there any of the other
sectors that you feel there's also some question regarding feasibility
that -- among that list, or is it just foundries?

		MS. WOOD:  I'm sorry.  I don't know if I understand the question and
what -- if you're referring to our actual comments or referring to
the --

		DR. COBLE:  Yeah.  In --

		MS. WOOD:  -- testimony.

		DR. COBLE:  In your comments, you draw into question the feasibility
and you mention foundries and you go into the idea that foundries,
there's some question about the feasibility.

		MS. WOOD:  Yes.

		DR. COBLE:  And I'm wondering, were there any other sectors you
analyzed in the same depth as foundries and had similar concerns about?

		MS. WOOD:  We would have to go back and look at the analysis based on
our survey, and we can -- hope to provide that to you at a later time.

		DR. COBLE:  Okay.  Thank you.

		MR. O'CONNOR:  And Bob Blicksilver has a few questions.

		MR. BLICKSILVER:  In your testimony, you provided a list of NAICS
codes that OSHA had apparently overlooked in its Preliminary Economic
Analysis.  Will you be providing that list in post-hearing comments?  I
didn't quite get them all down when you --

		MS. WOOD:  Sure.  Yeah.  And they are listed in the oral testimony
that we have as Exhibit Number 49.

		MR. BLICKSILVER:  Oh, good.  Thank you.

		MS. WOOD:  And to the extent that we go back and find more, we can
provide those.

		MR. BLICKSILVER:  Okay.  Thank you.

		In addition, do you think you could provide the reasons why you
believe those NAICS codes would be affected?  Could you give us perhaps
details on affected operations, tasks, worker categories, whatever would
characterize or create the qualifications for why those NAICS codes
would be affected by the silica rule, please?

		MS. WOOD:  We're happy to provide that.

		MR. BLICKSILVER:  Okay.  Thank you.

		MR. RATH:  Let's be clear.  I believe that the statement is that they
may affected by the rule and what's -- what we had stated was that
these are processes that involve silica in the workplace.

		MR. BLICKSILVER:  These are processes that involve silica in the
workplace; is that what you said?

		MR. RATH:  Right.

		MR. BLICKSILVER:  Okay.  And you may have details on the worker --
workers who would be affected as well, the different tasks, the -- you
may or may not?  I'm sorry?

		MR. RATH:  No.  I believe the statement was that there are at least
four NAICS codes that were not included in the Preliminary Economic
Analysis where employers know that there are silica-containing materials
in the workplace.

		MR. BLICKSILVER:  Okay.  And with regard to the survey, you'll be
providing the questions and the subparts that were part of the survey,
but you -- you provided some anecdotes, or I don't know if these were
case studies.  Were these drawn from the survey, the results of the
survey or -- because I'm going to be mentioning some of your cost
estimates in a future question, an upcoming question.  I'm just
wondering what will be forthcoming from the survey that you conducted of
your members.

		MR. RATH:  The survey questions are the ones that Joe's offered to
submit into the record, but the comments that you're referring to, some
of them may have been derived from the survey itself and others from
conversations with specific members.

		MR. BLICKSILVER:  Okay.  Will you be providing more detail in
post-hearing comments involving some of those, what appear to be
conversations, or I don't know if these were sorts of case studies where
employers provided -- sort of framed the exposures that they were
facing, the controls they were applying, the programs they had in place.
 Will you be providing that type of information?

		It would help us to be able to understand your cost estimates if you
could provide as much detail as possible concerning what programs they
have in place.

		MR. TRAUGER:  Sure.  I mean we can clarify some of that, but you know,
I think the way I presented the -- my comments today and Ms. Wood did
as well was based upon not only the information that we were able to get
in terms of the survey data and just, you know, input from our members,
but also, as I referenced, you know, we did just have our board of
directors meeting a couple weeks ago, and obviously, given my
responsibilities, I did have a number of conversations.  And I wanted to
make sure that those were reflected in today's testimony as well because
it is something that manufacturers are genuinely concerned about and
want to be -- make sure that you all understood that this is something
that manufacturers are talking about.

		MR. BLICKSILVER:  Thank you.  You mentioned the challenges of applying
or reapplying for air quality permits in association with introduction
of local exhaust ventilation as an engineering control.  Do any of your
members -- have they achieved the proposed PEL with the use of LEV?

		MS. WOOD:  The current PEL?

		MR. BLICKSILVER:  No.  Our -- the --

		MS. WOOD:  The proposed --

		MR. BLICKSILVER:  -- OSHA proposed --

		MS. WOOD:  -- PEL?

		MR. BLICKSILVER:  -- PEL.  Yeah.

		MS. WOOD:  I can't answer to whether or not they've achieved the 50
µg PEL or not.  I can say that we're aware of the specific example that
was given in terms of the process in Ohio, but I can't speak to whether
or not -- you know, what levels they achieved.

		MR. BLICKSILVER:  Okay.  Will you be able to go back to that employer
and ask them the circumstances that involved --

		MS. WOOD:  I can try --

		MR. BLICKSILVER:  -- apparent difficulties --

		MS. WOOD:  -- but I don't want to say I can and -- or would be able
to provide that information, but we'll certainly try.

		MR. BLICKSILVER:  Okay.  And with regard to some of your other cost
estimates, I'm not sure whether those recognized current practices --
training was mentioned in a question earlier, and I don't know -- I
think you mentioned that OSHA's cost estimate -- well, it differs from
NAM's, and I wonder whether NAM's estimate of training costs recognized
current safety and health programs and the training involved in other
toxic substances.

		In other words, what methodological assumptions went into those
estimates?

		MS. WOOD:  Well, I can say that the estimates, in terms of the
training figures, I believe we mentioned $2 was the estimate that was
provided by OSHA.  And we did get input from our members that it was
significantly higher.

		So, you know, I'm not sure that we'd be able to break it down
necessarily to the granular level that you might prefer, but that's,
again, the input we've received from our members, that is -- that it's
a significantly higher number.

		MR. BLICKSILVER:  Sure.  If you could, if it's possible to get any
broad assessments of current programs -- I understand the difficulty of
getting into the details with particular, but again, it would help us to
be able to interpret your estimates, compare with our --

		MR. TRAUGER:  Sure.

		MR. BLICKSILVER:  -- preliminary estimates, if you could help us to
characterize what the current programs are.  Very good.

		And with regard to energy costs as well, you drew distinctions,
comparisons of the OSHA estimate with NAM's, and again, it would help us
to be able to, again, interpret what those distinctions -- what's
underlying them. 

		Okay.  Good.  I think that's all I have then.  Thank you.

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

		MS. KRAMER:  Thanks, Dave.

		I'm afraid some of my questions might fall into the technical category
as well, and if they do, I ask that you just let me know and I'll take
you up on your kind offer to submit information --

		MR. TRAUGER:  Sure.

		MS. KRAMER:  -- later.

		I wanted to follow up on a couple of the questions that were asked by
the participants.  Dr. Sokas, I believe, asked you about the cost of
your members' respiratory protection programs, and you indicated that,
of course, you don't have that with you today.  That'd be really
technical.

		Is there a way that you could submit that sort of information later to
the record?

		MR. RATH:  The best we can say at this stage is that we can look into
it and determine based on the data we get what we're going to put in
post-hearing comments.

		MS. KRAMER:  We would appreciate that.  You, of course, have no way of
knowing what we're going to ask you about today.

		So my second question, Mr. Frederick asked about medical monitoring
programs.  I'd have pretty much the same question on that.  If you do
find out that any of your member companies currently have medical
monitoring programs, if you could just submit information to the record
about those programs, approximate cost, things like that, that would be
helpful to us.

		MR. RATH:  Um-hum.

		MS. KRAMER:  Along the same vein, Mr. Frederick also asked about your
facility's air-conditioning systems.  We'd be interested in knowing --
and if you know now, that'd be great -- whether many or most of the
facilities -- your member facilities are heated and air-conditioned. 
Do you know by any chance?

		MR. TRAUGER:  I don't know off the top of my head.

		MS. KRAMER:  Would you be willing to look into that and get back to
us --

		MR. TRAUGER:  Yes.

		MS. KRAMER:  -- if you can?

		Also, we were wondering how your members assess whether they're in
compliance with the current PEL.

		MR. RATH:  Are you asking by what method they make those assessments?

		MS. KRAMER:  Yes.  Is that something you'll need to look into or are
you --

		MR. RATH:  That's something we can inquire of members.

		MS. KRAMER:  Great.  Let's see.  Do you know by any chance what kind
of PPE or protective clothing your member companies' employees currently
wear typically?

		MR. RATH:  Allison, I think at the outset, we should state that
because it's the National Association of Manufacturers, there is a --

		MS. KRAMER:  Oh, sure.  There's a --

		MR. RATH:  -- massive --

		MS. KRAMER:  -- wide variety.

		MR. RATH:  -- variety.  Right.

		MS. KRAMER:  But, for instance, you mentioned that many of your member
companies like using PAPRs.  So what we understand from earlier
testimony is that often, they can be rather cumbersome.  So I was
interested in what kind of PPE and clothing and things like that the
employees might be wearing in addition to the PAPRs, especially if
they're in facilities that are not heated or cooled.

		MR. RATH:  Okay.

		MS. KRAMER:  And just a couple other things.  Do you have any data or
information regarding the rate of silicosis or lung cancer among your
members, your members' employees more specifically?

		MR. TRAUGER:  No.

		MS. KRAMER:  Okay.  If you were to find that out, would you mind
submitting that?

		MR. TRAUGER:  So rate of silicosis and what?

		MS. KRAMER:  Lung cancer, if you --

		MR. TRAUGER:  Lung cancer.

		MS. KRAMER:  -- have any information about that.

		And along the same lines, whether your membership keeps track of any
silicosis or lung cancer cases that might occur among their employees
after they leave their employment.

		MR. TRAUGER:  We can check into it.

		MS. KRAMER:  Thank you.

		MR. O'CONNOR:  I think that concludes our questioning today.  I'd like
to thank the panel for their --

		JUDGE SOLOMON:  I -- in the interest of justice, I have a couple of
questions. 

		Mr. Trauger, you said -- and I'm quoting -- "We are particularly
concerned about statements made last week at the hearings that seemed to
indicate less weight would be given to those choosing to testify but not
submitted to open-ended examination from the Agency and others."  Did
you say that?

		MR. TRAUGER:  Did I say that?

		JUDGE SOLOMON:  Yes.

		MR. TRAUGER:  Yes.

		JUDGE SOLOMON:  Did you write that?

		MR. TRAUGER:  I don't recall if I wrote that or not.  I probably did.

		JUDGE SOLOMON:  Were you here last week?

		MR. TRAUGER:  I was not here.

		JUDGE SOLOMON:  Do you have a copy of the transcript of what occurred
last week?

		MR. RATH:  Judge, if I may, the National Association of Manufacturers
was present at proceedings last week.

		JUDGE SOLOMON:  Who was here?

		MR. RATH:  Amanda Wood was here as well, and I was here as well, and
other members of Keller and Heckman were here.

		JUDGE SOLOMON:  Okay.  So that's what you got from the proceedings
last week?

		MR. RATH:  Yes.

		JUDGE SOLOMON:  And you're a lawyer?

		MR. RATH:  Yes.

		JUDGE SOLOMON:  Did you write this?

		MR. RATH:  No, I don't think I did.

		JUDGE SOLOMON:  Okay.  And the last question that I have, and this
again, is in the interest of justice, how many of -- are there members
of NAM who are in the engineering control manufacturing business?

		MR. TRAUGER:  I'm certain there are.

		JUDGE SOLOMON:  So are there any questions that you would ask based on
what I would ask?

		MS. KRAMER:  No, Your Honor.  Thank you.

		JUDGE SOLOMON:  Okay.  Thank you very much.

		MR. TRAUGER:  Thank you.

		MR. RATH:  Thank you, Judge.

		MS. WOOD:  Thank you.

		MS. KRAMER:  Your Honor, could we go off the record momentarily to
allow the panel a chance to kind of --

		JUDGE SOLOMON:  Sure.

		MS. KRAMER:  -- switch?

		JUDGE SOLOMON:  Sure.  Let's -- it's 3:26, so at 3:31, we'll come
back.

		(Off the record at 3:26 p.m.)

		(On the record at 3:31 p.m.)

		JUDGE SOLOMON:  Okay.  We're back on the record.  Mr. Frumin, you
have 15 minutes.

		MR. FRUMIN:  Yeah.

		JUDGE SOLOMON:  You're going to take the whole 15 minutes?

		MR. FRUMIN:  About that.  Yeah.

		JUDGE SOLOMON:  Okay.

		MR. FRUMIN:  So I just want to mention, I have some additional
documents to present after I say my statement.

		JUDGE SOLOMON:  If you want to give them to me now, that's fine.  If
you want to give them --

		MR. FRUMIN:  I'll do it after.

		JUDGE SOLOMON:  Do them later?  Okay.

		MR. FRUMIN:  I just didn't want to forget to mention that.

		JUDGE SOLOMON:  Go ahead.

		MR. FRUMIN:  Good afternoon.  My name is Eric Frumin.  I'm the Health
and Safety Director for Change to Win.  We appreciate this opportunity
to testify.  Our written statement is in the record.  I'm just going to
read a few brief highlights from it just for emphasis purposes and then
provide some additional information that was not part of the written
submission prior.

		First we want to say we strongly support the proposal.  We have some
concerns about it, and we agree with the concerns that have been
expressed by the AFL-CIO and its testimony, but we're very pleased that
OSHA has finally seen fit to make this proposal.

		I'm addressing largely the question of OSHA's use of the value of
statistical life to estimate the monetary value of life for workers'
lives.  OSHA has, in recent years, undertaken detailed economic analyses
to estimate the monetary so-called value of the benefits of its safety
and health standards following an explicit directive from OMB in 2003,
Circular A-4.

		These actions by OMB and OSHA raise several important questions. 
First, how does the conduct of such analyses affect the already severely
limited resources available to OSHA to identify unregulated hazards and
propose new rules to stop injuries and illnesses that these hazards
inflict on workers and their family?

		Second, does the conduct of such analyses create either the appearance
or the reality of the actual balancing of the cost to employers against
the so-called monetized value of the benefits to workers and their
families and communities?

		And, third, is OMB forcing the Secretary of Labor to rely on
theoretical approaches which are rife with uncertainty and for which
mainstream economic analyses have repeatedly found alternative and
contradictory evidence?

		Well, with regard to the first question, OSHA's failure to promptly
implement its own regulatory agenda results in part from inadequate
resources.  A recent example is that of OSHA's failure to deal with
highly explosive so-called reactive chemicals.  

		This has been going on for 18 years.  It has drawn repeated criticism
from the Chemical Safety Board, from the Congress, from the media, and
it was only with this massive disaster at West Texas last year and the
horrific loss of life and property that the White House and/or the
Office of Management and Budget finally relented and allowed OSHA and
EPA to begin working on closing this loophole on an expedited basis,
naturally, now that the town of West Texas was blown up and we lost a
horrible -- in a horrible incident, lost a dozen firefighters.

		However, as regrettable as that record has been on reactive hazards,
the Administration continues to fail to take affirmative action on the
other major hazard -- industrial explosions that stalks the American
workplace, which is combustible dusts.  We still have no standard, not
even the convening of an employer panel under SBREFA on combustible dust
issues.  So we have not been provided with any reasonable explanation
for these incessant and unacceptable delays.

		I've already raised the question about the inappropriate and illegal
balancing of costs versus benefits as a result of doing the analyses. 
It's very troublesome.  We know the Agency says that they don't use
these analyses for making decisions about their -- the proposal and the
alternative provisions that it might have included.  Nonetheless, the
appearance certainly is there.

		One issue that has been in the background of the whole question of
monetizing benefits of assigning a dollar value to human life is the
question of involuntary work.  So I want to talk about that for a
minute -- a few minutes.

		Involuntary work has been a feature of American society and politics
ever since the first slave landed on our shores and actually since the
first indentured servants did as well.  It had a major role in the
development of American industry in the Industrial Age after the Civil
War.  And a Pulitzer Prize-winning book Slavery by Another Name, has
identified that -- the importance of involuntary labor, what the author
calls neo-slavery in the emergence of the metal and mining industries in
the South.

		One might easily ignore this history and say, well, that's all in the
past, but actually, it's quite relevant today because involuntary labor
is still rampant in parts of the U.S. economy.

		Indeed, as evident from the BLS data that I submitted with my
testimony, there are starkly disproportionate death rates among Hispanic
workers and especially foreign-born Hispanics.  One recent example in
the metalworking industry, an industry of some importance to this
rulemaking, shows that the industries that were in the grip of
neo-slavery 80 years ago are still suffering from it in the modern era.

		Ten years ago, the New York Times and PBS Frontline won a Pulitzer
Prize for their revelations about a huge iron pipe company founded in
Birmingham, Alabama in 1921.  This company, the McWane Company, had
accumulated the worst record of death, injury, and OSHA violations in
the nation.

		The most severe of those crimes, at least as measured by the resulting
prosecutions, were not even in the South, not in Texas, not in Alabama,
but in New Jersey.  The five managers of McWane's subsidiary in
Phillipsburg, New Jersey, Atlantic States Cast Iron Pipe, were recently
convicted of conspiring to violate the OSHA law and various
environmental laws and other federal criminal statutes.

		The plant manager is now serving a five-year sentence, the longest --
one of the longest ever meted out to a corporate manager for
OSHA-related crimes in U.S. history.

		The record evidence, including the multiple indictments, testimony,
and verdicts at McWane, is riddled with fear and intimidation.  In what
the Grand Jury termed a, quote, "conspiracy" over an eight-year period
among the plant manager and other managers, they conspired to, quote,
"obstruct the administration of the law" by OSHA and to violate multiple
environmental laws, quote, "for the purpose of maximizing the production
of cast iron pipe at the Phillipsburg facility without concern to
environmental pollution or worker safety," unquote.

		Count Number 1 of the indictment says that they conspired to enrich
themselves by, quote, "utilizing tactics of intimidation and retaliation
to coerce employees into committing," unquote, multiple felony
violations of environmental laws.

		And then the conspiracy indictment has an entire section with a
subheading Atmosphere of Fear, Intimidation, and Retaliation.  I'm just
going to read through a few sections of that to show the current
relevance of this question of involuntary labor.

		From 1999 to 2003 -- this is Counts Number 75 through 78 of the
indictment.  From 1999 through 2003, on a routine and regular basis, the
defendants took steps to deter employees from telling OSHA inspectors
about unsafe conditions, instructed employees to provide misleading
descriptions and accounts to OSHA inspectors to conceal the unsafe
conditions at the plant.

		From 1997 to 1999, they threatened to fire employees if they pursued
workers' compensation claims against McWane following injuries suffered
at work.  And from 1999 to 2003, in order to intimidate employees into
committing and to prevent them from revealing the company's violations,
the managers instructed midlevel supervisors to instill fear in the
employees by using retaliation tactics and utilize coercive measures
which included: (a) assigning employees to work on the casting machine,
the hottest machine in the plant as punishment; (b) assigning
Spanish-speaking workers to work in the most dangerous parts of the
plant; (c) forcing employees to douse themselves with water and realign
pipes in the 2000 degree Fahrenheit annealing oven.

		These are not temporary or exceptional practices of a minor,
incidental employer in an industry of no consequence or in a rural or
isolated region.  They were the repeated practices by one of the leading
employers in a well-known industry in a highly populated region with a
relatively diverse economy, a long history of worker and union activism
and worker access to the media and government services.

		However, these facts appear to offer little discomfort to the Office
of Management and Budget, to Professor Viscusi, their leading theorist
on the value of life or on others advocating the so-called compensating
wage differentials to estimate the value of life.

		Viscusi and his colleagues appear to believe that even these workers
at McWane were (a) aware of the conditions and management practices at
the time they signed up; (b) made fully informed, rational choices to
work under these conditions; (c) freely continued to subject themselves
to these conditions; and, last of all, were fully compensated for the
abuses they endured, including amputations, broken limbs, and death.	 In
Viscusi's world, there is simply no possibility of non-consensual work
arrangements.

		Dr. Peter Dorman, who unfortunately is not able to testify today,
submitted testimony regarding the work of Viscusi and other theorists
regarding evaluation of life.  And as he points out, he and other
mainstream labor economists have long since concluded that this theory
is simply nonsense.  It is not supported by the evidence.

		My testimony also discusses the involuntary work that was well
identified at the Massey Coal Company, an industry of some consequence
in the world of worker health and safety.

		Why is involuntary work relevant to this proceeding?  Well, not only
because it is addressed or not addressed, as the case may be, by the
authors of this fanciful method, but also because the Office of
Management and Budget specifically raises the question of
involuntariness of work in Circular A-3, which is the operative
instruction to OSHA and MSHA and other health and safety agencies.

		And it says, quote, "There is a continuing debate within the economic
and public policy analysis community on the merits of using a single
value of statistical life.  A variety of factors have been identified,
including whether the mortality risk includes sudden death, fear of
cancer, and the extent to which the risk is voluntarily incurred."

		Footnote 18, let's look at Footnote 18.  Distinctions between, quote,
"voluntary" and, unquote, involuntary should be treated with care. 
Risks are best considered to fall within a continuum from voluntary to
involuntary with very few risks being at either end of the range.  These
risks are also related to the differences in the cost of avoiding risk.

		So the evidence at McWane and elsewhere makes clear that involuntary,
coerced, and impotent labor is a vibrant and corrosive component of the
American labor market generally and within key sectors as well,
including, thank you, construction and other sectors affected by the
proposed standard on silica.

		Given the long history of involuntary work, it's vital that OMB and
the agencies that govern acknowledge the role of involuntariness in the
U.S. labor market and reject regulatory approaches which assume
otherwise.

		So the theory of compensating wage differentials as it applies to
occupational safety and health simply does not deserve the uncritical
praise it receives in OMB's directives, much less the force of law in
executive agency rulemaking.  It is long since time for OMB to stop
accepting Viscusi's flawed methods and conclusions and to stop forcing
them down the proverbial throats of the economists, policymakers,
epidemiologists, and scientists at OSHA and elsewhere.

		Indeed, OMB and OIRA should facilitate efficient rulemaking at the
Department of Labor and elsewhere in order to finally close the
decades-long gap in critical safety and health standards consistent with
a congressional intent to place primary value on the lives and health of
workers.

		JUDGE SOLOMON:  Right on time.

		MR. FRUMIN:  Yeah.  So now, I'd like to put into the record a few
additional materials I was not able to include in my comments.

		JUDGE SOLOMON:  Okay.

		MR. FRUMIN:  First is -- and they all relate to the incident which is
mentioned in the Preliminary Impact Analysis -- Economic Analysis and
the Quantitative Risk Assessment, the incident at the Gauley -- at
Gauley Bridge in West Virginia in 1929.  That incident is also mentioned
prominently in the film that OSHA has on its website of Secretary
Perkins discussing the terrible fear of silicosis that was alive and
well, including the national conference that she convened in 1937-38.

		So one thing I have is a -- what -- I have to say, what appears to
me to be the transcript of the hearing that the U.S. House Education and
Labor Committee held on January 16th-17th, 1936 in Washington, D.C.
investigating the conditions at the Gauley Bridge disaster.

		It's a little difficult to find that hearing online, but I was able to
find it at an archive of the University of Illinois devoted to the poet,
Muriel Rukeyser, who wrote about that incident.

		MS. KRAMER:  Your Honor --

		MR. FRUMIN:  I have three documents all together.

		MS. KRAMER:  -- just to make sure that I don't get out of order
here --

		MR. FRUMIN:  Yeah.  

		MS. KRAMER:  -- Your Honor, I'd like to mark this transcript as
Hearing Exhibit Number 50 and have it admitted to the record.

		JUDGE SOLOMON:  Okay.  As there's no objection, so admitted.

(Whereupon, the document referred to as Hearing Exhibit 50 was marked
and received in evidence.) 

		MR. FRUMIN:  Okay.  The second is a chapter in a book that I wrote
that was published in 1980 concerning the Gauley Bridge disaster.  The
book is called Working Lives published by the Institute for Southern
Studies.  And so I just realized I don't -- I did not -- I failed to
include the notes for the chapter.  I can submit those later in the
post-hearing comments, but the text itself is there.

		MS. KRAMER:  Your Honor, we'd like to mark this as Hearing Exhibit
Number 51 and have it admitted into the record.

		JUDGE SOLOMON:  So admitted.

(Whereupon, the document referred to as Hearing Exhibit 51 was marked
and received in evidence.) 

		MR. FRUMIN:  And then the last is a photocopy of a novel that was
based on the events at Gauley Bridge by Hubert Skidmore, who was a West
Virginia historian.  It's called Hawk's Nest, which was the name of the
region where the tunnel was built.  This was published by the West
Virginia Heritage Foundation.  The novel has since been republished by
the University of Tennessee.  So that's one version of it.  It's a
photocopy version.

		MS. KRAMER:  Your Honor, rather predictably, we're up to Hearing
Exhibit Number 52.  I'd like to have this marked and admitted to the
record.

		JUDGE SOLOMON:  So admitted.

(Whereupon, the document referred to as Hearing Exhibit 52 was marked
and received in evidence.) 

		MR. FRUMIN:  And to save you all a lot of work, here's a CD with all
of those three documents on it.

		MS. KRAMER:  Thank you.

		JUDGE SOLOMON:  Okay.  So how many people are going to ask questions
this round?  Okay.  Three people.  Come on down.  Okay.  State your name
and --

		MR. KOJOLA:  Sure.  My name is --

		JUDGE SOLOMON:  -- spell your last.

		MR. KOJOLA:  -- Bill Kojola, K-o-j-o-l-a, and I'm representing the
National Council for Occupational Safety and Health.  And I have several
questions about involuntary labor.

		Your testimony discusses the involuntary nature of labor in various
industry sectors.  Among the sectors in which you have some personal
experience, have you seen evidence of workers suffering coercion,
intimidation, or other forms of involuntary labor at the hands of
employers?

		MR. FRUMIN:  Well, I've worked for roughly four decades in industries
in which low wage work predominates.  This is the garment and textile
industry, industrial laundries, warehousing.  So not industries with a
big stake in the silica question, but industries which I think bear a
lot of resemblance in their industrial relations, human resource
practices to those that I discussed in my testimony.

		And I've observed employer coercive behavior up close many, many
times.  I spent a lot of time in small towns where the mill was the only
job in town.  Often in rural regions, often in the South, but in other
parts of the country as well.  And it's truly a frightening thing to see
people so dehumanized that they are afraid to even talk to you or look
you in the eye when they're describing what are often pretty horrendous
conditions because they can't face the fact that they are submitting
themselves to these conditions on a daily basis.

		I've also had a lot of experience with trying to convince workers,
often workers not in any union setting, but workers who were lacking any
other form of protection, to talk to OSHA about their problems and
literally seen people shaking with fear at the thought of talking to the
inspector on the other end of the line.

		So that's from my personal experience and that's -- that hasn't gone
away.  I mean I'm -- this is still going on daily in industries where
workers are struggling to be heard, to be freed from the kinds of
coercive conditions they're dealing with.  

		We've seen some very important recent examples, for instances, in the
warehousing industry in California and other places around the country
where the use of retaliation to stop workers from speaking out about
their abusive conditions is still a frequent practice and practiced by
very large, sophisticated employers advised by large, sophisticated law
firms, and so this problem is rampant and alive and well.

		MR. KOJOLA:  Thank you.  Your testimony and then your comments this
afternoon discuss the BLS Census of Fatal Occupational Injuries, or
CFOI, including the evidence experience of increased risk among Hispanic
workers for, you know, fatal, acute injuries at work.  How important is
that evidence in any evaluation of statistical estimates of wage
differentials imposed by OMB on executive agencies like OSHA and MSHA?

		MR. FRUMIN:  Well, in May, there was a conference by the BLS
celebrating the 40th anniversary of the BLS data -- injury illness data
system.  And Dr. Viscusi, the prime author of this methodology of
assigning values to human life, was a speaker there.  And he went on at
some length about the incredible importance of the BLS data, their
fatality data in deriving what he thought were the reliable estimates of
wage differentials and therefore his ability to somehow magically assign
a dollar value to human lives.

		So on the one hand, the very author of this method himself says that
it's very important.  If we're looking at using fatality data rather
than other measures of danger at work, there's no question that the BLS
census is the most valuable source of information we could work off of. 
No one else comes close to it.  So just as a baseline, it's extremely
important.  And my testimony does include a study they published showing
the differential risk to Hispanic workers.

		What was really interesting -- including foreign-born.  What was
interesting at that conference was that there was a poster session which
apparently has not yet been converted to a published paper, so I hope
that happens before this rulemaking is over, where the same author,
Christen Byler, one of the staff economists at BLS, looked in greater
detail at the BLS fatality data.

		And she was able to find statistically significant hazard ratios for
foreign-born Hispanic workers compared to not, for foreign-born workers
in general compared to native-born workers, and was able to find
statistically significant differences in the risk of death depending
upon which countries -- from which countries the workers immigrated.  

		So big surprise, Latino workers from Mexico, Central American, and
non-Latino but immigrant workers from Africa had the highest risks, all
statistically significant.  And workers from Europe somehow didn't,
which probably says a lot about racism being as alive and well in
America as involuntary work.

		I've requested that study from BLS.  I was hoping it would be ready
for prime time for this -- for today.  I didn't get a response yet. 
Perhaps OSHA can get it, but it's a remarkable study with its precision
in which it teases out the extra risk assigned to immigrant workers.

		Well, anyone who, you know, reads the papers has got to understand
that immigrant workers face special risks of intimidation at work.  I
think that -- we take -- we need to take that as a tautology in modern
American life.  So she didn't have the I-9 status of all those dead
people, but she certainly was able to know the difference between the
foreign-born and not.

		MR. KOJOLA:  And my last question, how recent is the evidence of
severe coercion in American workplaces?  Is this a -- largely a problem
over the past or is this a -- is there recent evidence that this is
going on?

		MR. FRUMIN:  Well, I've addressed some of that.  I -- yeah, I think
I've -- I don't think I can add to what I said before.

		MR. KOJOLA:  Okay.  All right.

		MR. FRUMIN:  Yeah.  Sorry.

		MR. KOJOLA:  That's okay.  Thank you.

		JUDGE SOLOMON:  Next. 

		MS. REINDEL:  Hi.  I'm Rebecca Reindel, R-e-i-n-d-e-l.  I'm here
representing AFL-CIO.

		Mr. Frumin, your testimony states that the estimates required by
OSHA -- required to OSHA by OMB have been rejected by other economists,
at least in part because of results found by Viscusi and others, used by
Viscusi, are contradicted by other economists.  How strong is the
contrary evidence?

		MR. FRUMIN:  Well, apparently, it's pretty strong.  I mean I'm not a
professional economist.  I've looked at some length at the work of those
economists who have studied it and are not big believers in it. 
Dr. Dorman, unfortunately, is not here today.  So his testimony will
have to speak for itself.

		But he cites quite a few studies to -- including his own empirical
evaluations of basically the same dataset that Viscusi had, and shows
that the results come out very, very differently.  

		In fact, what he identifies is basically sort of a cherry-picking
phenomenon by the economists who support this theory.  They are
willing -- they're happy to look at some variables, but not other
variables.  When they look at the other variables, like they took
industry into account, all of the sudden, their wage differentials
evaporate and their results just, you know, become meaningless.

		So I think the critique is very strong.  It's certainly strong enough
that one wonders how it is that this singular source of guidance upon
which OMB relies could be -- remain unchallenged in any significant way
at OMB for all of these years.

		Now, fortunately, it's a matter of record in this proceeding and in
prior proceedings at both -- at OSHA and also at MSHA that there are
concerns about the reliability of Viscusi's methods.  OMB barely
discusses them.  OSHA discusses them some more.  MSHA discusses them
more, but I think we've seen a very unbalanced review of the evidence. 
Dr. Dorman's testimony will help rectify that, but it remains to be
seen whether the contrary evidence is going to get the consideration to
which it's entitled.

		We have an extensive analysis of the so-called benefits of this
standard and other standards based upon this theory, which does not
have, in my view and many others, adequate empirical support.  So
there's quite a disconnect here, and I think it's long since time for
OSHA to request guidance from OMB regarding the legitimacy of the
methods that OMB imposes.

		I might have asked that question to OSHA on opening day.  I'm not sure
I got that far in my questions.  We'll have to take a look at the
transcript, but I think it is important to determine, as part of this
rulemaking, whether or not OMB provides adequate guidance to OSHA
regarding the limitations of the very method which OMB imposes, because
if OMB is not doing that, then it's a very one-sided proposition and not
worthy of the scientific legitimacy of this proceeding.

		MS. REINDEL:  Okay.  Thank you.

		JUDGE SOLOMON:  Mr. Frederick?

		MR. FREDERICK:  I'm Jim Frederick with the United Steelworkers.  It's
F-r-e-d-e-r-i-c-k.

		And, Mr. Frumin, just a couple of follow-up questions from an earlier
set of questions regarding coercion in the workplace.  And kind of
specifically taking into account your experience of 40 years in working
in the labor movement with workers in various workplaces, to understand
a workplace that might have a medical monitoring program like those with
silica exposure in the future.

		Would the practices around coercion be a problem of ensuring fair and
equal participation by those workers on a voluntary basis in a medical
monitoring program?

		MR. FRUMIN:  Well, this is certainly not the first time that question
has arisen.  First, we heard the answers from the workers who were here
today from the construction industry talking about their fears of
revealing private medical information to an employer if it would
indicate doubts about their ability to work.  So I think that's a very
natural reaction.

		Anybody who -- on whom others rely to feed them and clothe them and
house them, you know, has got to be concerned about that in any rational
way, never mind in an economy with, you know, permanent eight percent
unemployment or something.

		However, it's worth noting that this question has come up historically
in standard setting proceedings under the OSHA Act.  And in 1977, OSHA
proposed a standard on limiting a different kind of dust from the
processing of cotton fiber.  

		And at that time, we raised this question as well because the vast
majority of textile workers (a) are not represented by labor unions; (b)
are poor; (c) work in company -- in large mills in small towns, often
live in company housing.  You know, this is -- the question of coercion
is not a theoretical one to them at all.

		We, at that time, pointed out to the Secretary of Labor the urgency of
replicating in OSHA's standard on cotton dust the arrangement that was
adopted in the Coal Mine Health and Safety Act for regular monitoring of
coal miners for coal worker's pneumoconiosis, which is that the employer
pays but doesn't get the results.  It's up to the worker to get the
results and bring it to the employer.

		And OSHA did not see fit to adopt that model.  They gave a fairly
lame -- that's not too much a term of art -- a lame excuse as to why
they simply said we're going to rely on company doctors to do a good
job.

		Well, fortunately that standard had a good exposure limit.  The
textile industry was modernizing and needed to reduce the dust in its
machinery, and thanks to the standard, the incident of byssinosis, as
it's called, was dropping dramatically by the mid-'80s.  

		But I did observe workers who refused to participate in the medical
surveillance even in union mills where they had pretty -- where we
negotiated contract language to offer them jobs with maintenance of pay.
 And that was in a setting where people were pretty well informed, where
the employers were trying to, you know, supposedly cooperate.

		So I think this is a serious policy problem for OSHA.  There is a lot
to learn from the coal mining example and I think applies well in an
industry like construction where people are often likely to move from
employer to employer, notwithstanding the fact that other people are
going to stay for decades, as we heard this morning.  

		And I would encourage the Secretary to take very seriously the
opportunity to break with what has been an inadequate protection for
worker privacy and move us into a modern era for worker privacy for
medical records.

		MR. FREDERICK:  Thank you.

		JUDGE SOLOMON:  Okay.  Thank you.

		Ms. Kramer?

		MS. KRAMER:  Your Honor, I'm going to hand it over to David O'Connor.

		MR. O'CONNOR:  Bob Burt has a few questions for OSHA.

		MR. BURT:  Hi.  Just wanted to ask a few questions about your
testimony.  One issue, before I turn to the value of statistical life
issue, I wanted to ask about a couple other things that influenced
calculations of benefits.

		One, for example, is the choice of a discount rate.  The -- one of
the prescribed discount rates by OIRA is seven percent.  This is very
important because it means a life lost 20 years from now is worth
one-tenth what one is today.  Is this an area you have any further
thoughts on, this use of discounting procedures for --

		MR. FRUMIN:  No, I'm not in a position to comment on it for a couple
of different reasons, but I'll save time and just say I can't comment on
it.  No.

		MR. BURT:  Another issue for the analysis is precisely because of this
discounting, OSHA needs to make estimates of the exact timeframe of --
in which lives will be lost, taking account of things like legs and
amount -- portion of a life someone exposed.  Again, do you have any
thoughts on that aspect of benefits analysis?

		MR. FRUMIN:  Yes.  I have strong opinions on that aspect and even a
few facts.

		It appears that OSHA's efforts to accommodate these uncertainties
regarding the epidemiology of a disease, you know, require something
more than incidental efforts.  They require some number of OSHA
economists and health scientists to wrestle with the very questions
you've posed.

		Those -- that time, however long it is, would be better spent trying
to figure out what else is killing and injuring American workers and how
to protect them.  So I'm very concerned that the application of the OMB
directive and the fact that it ties up the very limited resources of
staff time at OSHA to answer these insane questions for which there are
no ethical answers, that this needs to stop and OMB needs to let you go
on and do your job to deal with the other things that are unregulated.

		MR. BURT:  We're -- let me ask a real broad question.  You don't
propose any alternative values of statistical life.  Is this because you
think we shouldn't be monetizing at all or that there are not good
alternatives, or what is your view on what OSHA should do, on what OIRA
should do in that --

		MR. FRUMIN:  Right.

		MR. BURT:  -- respect?

		MR. FRUMIN:  Well, I think it's very important that OSHA have a -- as
firm a grip as it can reasonably get on the benefits of its proposed and
final standards.  The courts have held and common sense tells us that we
want the agencies to -- regulatory agencies in general, and OSHA
obviously in particular, to adopt the most cost-effective standards that
it can.

		And to do that, you need to have an idea of what your goal is.  What
is it we're trying to achieve?  So we -- it's very important to be able
to make a comparison of the cost to the benefits, but not to balance
them.

		If you don't need to balance them, if you don't need to compare apples
to apples, dollars to dollars, then you don't need to monetize at all,
and you can do a cost effectiveness analysis consistent with your
mandate as you've described it, with the way the Supreme Court described
it, and ignore the entire debate about monetization.

		So that would be my proposal as an alternative.  Drop monetization
entirely.  Go do something useful and still fulfill your commonsense and
legal requirement to do a cost effectiveness analysis.

		MR. BURT:  Thank you.  In the VSL, value of statistical life -- sorry
for the -- all the jargon -- you talk about the involuntary work.  And
I just want to link up two halves there.

		In the model that I would say Viscusi always follows -- but the core
picture of that model is these persons in these jobs should have simply
quit and gotten another job.  Why didn't that happen?

		MR. FRUMIN:  Well, behavior in the labor market is a really
interesting subject, and there are a lot of economists who study it.  I
can give, you know, a personal opinion based upon observations.  I'm not
a labor market economist.  

		Dorman's testimony goes into some length about it, so I'd be happy to
convey your question to Dr. Dorman and see if he has an additional
answer beyond that which is in his testimony.  

		But I think what he finds, what he reports, I mean, in his testimony,
is that there are economic models for the labor market, one called the
search theory which takes into account such matters as choice of job,
internal dynamics within the firm after people work -- start working
there.  And when one looks at those models for evaluating wages and
compensation, they provide results that are contradictory to both the
theory and the underlying methodology that Viscusi and the others that
believe in compensating wage differentials come up with. 

		But I can -- I think that's a fairly short question.  I can try to
convey it to Dorman.

		My personal experience is, from talking to many workers who've -- you
know, who are working on lousy jobs is, you know, they don't see an
alternative.  If it's a one-horse town, you know, where the hell are you
going to go?  If you're 50 years old and you're trained to do a certain
thing, you don't have much of a choice.

		MSHA has specifically critiqued the value -- the use of the -- this
theory because of its concern about monopsony labor markets where
there's only one employer, which is not an uncommon issue with rural
employment in mining or other industries.  So I think there are a lot of
answers to that question.  Some of them are pretty obvious.

		MR. BURT:  Thank you.  You mentioned you'd be willing to ask a
question or two about Professor Dorman's article.

		MR. FRUMIN:  Sure.

		MR. BURT:  Two -- one, just a request.  On Page 3, there are
references to a Lang and Majumdar article, 2004; Dorman, 1998.  I think
these address the -- what you were just saying.

		MR. FRUMIN:  Right.

		MR. BURT:  Be very valuable to be sure these are in the record.  We'll
try to pull them, but if it's -- if you have them available, that would
be great.

		MR. FRUMIN:  I do have them.  I can submit them, but my impression was
that he had submitted them as attachments to his testimony.

		MR. BURT:  Okay.  I'll check.

		MR. FRUMIN:  Yeah.  So if -- so I -- I'm sorry.  Go ahead.

		MR. BURT:  Yeah.  That was Page 3 of Professor Dorman's statement I
was referring to.

		MR. FRUMIN:  So if -- we can figure this out here.  So that's Lang
and Majumdar and the other was?

		MR. BURT:  The Dorman --

		MR. FRUMIN:  Dorman, '98?

		MR. BURT:  -- 1998.

		MR. FRUMIN:  Well actually, I think the Dorman, '98, article is the
one that you referenced in the Preliminary Economic Analysis, so I think
you have that already.  And I'll check on Lang and Majumdar, but it's
that second --

		MR. BURT:  Yeah, if you would check.  I have Dorman -- the Dorman,
1998, in front of me and we'll see if --

		MR. FRUMIN:  Okay.

		MR. BURT:  -- put it -- try to put it into the post-hearing record.

		MR. FRUMIN:  Okay.  But I think it's already --

		MR. BURT:  Yeah.

		MR. FRUMIN:  -- in the supporting materials in the docket, is what
I'm saying, but I'll check on the other --

		MR. BURT:  We have a couple of Dorman 1998s, so --

		MR. FRUMIN:  Okay.  Well, we'll make sure that all the Dorman, '98,
articles are --

		MR. BURT:  Yes.

		MR. FRUMIN:  -- in there.

		MR. BURT:  There are at least two.

		MR. FRUMIN:  Okay.

		MR. BURT:  Okay.  Do you know -- I believe Professor Viscusi's
articles are almost entirely -- try to infer wage differentials by
looking at differential wages between occupation.  Do you know if that's
true or if he ever used other methodologies?

		MR. FRUMIN:  I think the articles that he published did -- were
restricted to occupation.  What -- as I understand it, one of the
critiques of his method is that he failed to apply inter-industry
comparisons, and that when others did that, the differentials were
reduced or eliminated.

		So I think that's part of the serious problem that Viscusi's results
entail.

		MR. BURT:  Do you or Professor Dorman know of any article in which he
examined differences in wage rate -- between actual places of
employment, as they differ greatly, is it -- do you know of anyone
who's tried to study that issue?

		MR. FRUMIN:  Well, I don't believe he has.  I don't -- but I couldn't
say whether there are others, but I could try to find out.  So you're
talking about looking at the micro data by firm to compare --

		MR. BURT:  Right.

		MR. FRUMIN:  -- the --

		MR. BURT:  I don't know of such an article, but if either of you do,
that would be helpful.

		MR. FRUMIN:  But I just wanted to restate the question.  You're
talking about firm-specific data, not industry-wide --

		MR. BURT:  Right.

		MR. FRUMIN:  -- data?

		MR. BURT:  Right.

		MR. FRUMIN:  Okay.

		MR. BURT:  The issue would be that if a person is to make good
decisions, they would need to know firm-specific data.

		MR. FRUMIN:  Yeah.

		MR. BURT:  Do people, in your experience, before they're employed,
know the relative safety of different workplaces?  Actually, they need
to know the absolute safety, as well --

		MR. FRUMIN:  Yeah.

		MR. BURT:  -- as relative, but --

		MR. FRUMIN:  Well, I think sadly, people think they do.  We heard from
a witness this morning who said yeah, you know, I know there are some
dangers in -- forget whether she said painting or construction.  But,
you know, you signed on for it. 

		So it's a little scary to consider that we're in the process of
setting rules to, among other things, compel a training program about a
highly dispersed, very common hazard based upon a theory which assumes
workers well already know about that hazard.  And yet we know that that
training has been, at best, sporadic and actually not happened for many
of the workers covered by this rule.

		So it's totally putting the cart before the horse to say we're going
to base a theory for establishing this rule on an assumption that
workers already know about the hazards.  So that's one problem with that
assumption.  

		I'd say the worker knowledge about hazard varies some, but there's a
lot of ignorance out there, and we still do not have an injury illness
prevention program standard which requires employers to do training in
general.  We have a HazCom standard that requires training about
chemical hazards once in your career unless the chemical hazards change.


		There's so many gaps in OSHA's training requirements that it's more a
gap than not.  The hole is pretty big.  The donut's pretty small.

		MR. BURT:  That's all the questions I have.  Thank you.

		MR. O'CONNOR:  That concludes the questioning from the OSHA panel,
Mr. Frumin.  Thank you for your testimony this afternoon.

		JUDGE SOLOMON:  Let -- again, I'm going to interject myself here.  I
shouldn't really do this, but I will.

		Are you familiar with the Department of Labor Longshore and Harbor
Workers' Act program?

		MR. FRUMIN:  No, I'm not, actually.  I know it's a workers' comp
program, but I'm --

		JUDGE SOLOMON:  Right.

		MR. FRUMIN:  -- not familiar with it.

		JUDGE SOLOMON:  Okay.  So it has extensions in things like the Defense
Base Act.  There are a number of other extensions.  So I just wondered
whether that had -- that you had factored any of that into your
testimony.

		Do you know whether either Viscusi or Dorman relied on any of the
statistics, either taken from that or from state workers' compensation
programs about the value of --

		MR. FRUMIN:  Yeah.

		JUDGE SOLOMON:  -- life value?

		MR. FRUMIN:  So there's a -- there is some reference to the workers'
comp data in some of the studies about labor market behavior.  Dorman
discusses it in his book, his 1996 bookmark, it's Immortality. 
Generally, the workers' comp data is found to be pretty unreliable for
research purposes.  So I think --

		JUDGE SOLOMON:  That's because they settle probably.

		MR. FRUMIN:  Well, there are a lot of different types of workers' comp
data.  If you were just looking at the incidents themselves, you know,
one of the reasons they are -- it's not reliable is often, there are
pretty high thresholds for an incident even being reported.  So there's
a lot of problems with workers' comp data.  It's not national. 
There's -- there are many problems with it.

		But, in general, the point being that the fatality data is -- has
been used.  Most frequently, the BLS --

		JUDGE SOLOMON:  Right.  That was --

		MR. FRUMIN:  -- census is the only one that's really a census.

		JUDGE SOLOMON:  Right.  That's the --

		MR. FRUMIN:  That's the --

		JUDGE SOLOMON:  The question I --

		MR. FRUMIN:  -- gold standard.

		JUDGE SOLOMON:  It isn't out yet, as you said.  The report isn't out
yet.  I just wondered if they would have factored in any of that
information.

		Okay.  Is there anybody who has questions based on what I asked?  I
hope not?

		MS. KRAMER:  No, Your Honor.

		MR. BURT:  I would just say there actually is one study by Viscusi
that tries to correlate worker compensation levels.

		JUDGE SOLOMON:  Yeah.  I -- you know, we get an economist -- I
shouldn't testify, but we get economists, and they estimate the life
expectancy and the wage expectancy and all of that.  And I assume that
all over the -- in every state, they have a system like that, so I
assume that data is available someplace.

		Okay.  If there is nothing else, the time is now 4:20, and the hearing
is closed.

		MR. FRUMIN:  Thank you, Your Honor.

		(Whereupon, at 4:20 p.m., the hearing was continued, to resume the
next day, Wednesday, March 26, 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 25, 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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