INFORMAL PUBLIC HEARINGS FOR THE PROPOSED RULE

ON OCCUPATIONAL EXPOSURE TO

RESPIRABLE CRYSTALLINE SILICA

+ + +

UNITED STATES DEPARTMENT OF LABOR

OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION 

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March 27, 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

U.S. DEPARTMENT OF LABOR (DOL):

ALLISON KRAMER

Attorney, Office of the Solicitor

ANNE RYDER

Attorney, Office of the Solicitor

OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION (OSHA):

WILLIAM PERRY

Acting Director, Directorate of Standards and Guidance 

JOSEPH COBLE, Sc.D., CIH

Director, Office of Technological Feasibility

GREG KUCZURA

Office of Regulatory Analysis - Health

DAVID O'CONNOR

Director, Office of Chemical Hazards - Non-Metals

ROBERT BLICKSILVER

Office of Regulatory Analysis - Health

ROBERT STONE

Director, Office of Regulatory Analysis - Health

DALTON MOORE

Office of Technical Feasibility

ANNETTE IANNUCCI

Health Scientist, Office of Chemical Hazards 

- Non-Metals

NEIL DAVIS

Office of Chemical Hazards - Non-Metals

NATIONAL ASPHALT PAVEMENT ASSOCIATION (NAPA):

DONALD ELISBURG

Consultant

MIKE ACOTT						   

President

ANTHONY BODWAY

Special Projects Manager, Payne & Dolan, Inc.

Chairman, Silica Asphalt Milling Machine Partnership

JEFF RICHMOND, SR.					  

President, Roadtec, Inc.

GARY FORE							  

Consultant

AMERICAN ROAD AND TRANSPORTATION BUILDERS ASSOCIATION (ARTBA):

UNA CONNOLLY

Vice President of Safety and Environmental Compliance

BRAD SANT

Senior Vice President of Safety and Education

NATIONAL UTILITY CONTRACTORS ASSOCIATION (NUCA):

GEORGE KENNEDY				 

Vice President of Safety

NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION (NRECA):

BRIAN LAZARCHICK, CSP					

INDUSTRIAL MINERALS ASSOCIATION - NORTH AMERICA (IMA-NA):

MARK ELLIS					 

President

 

 

NATIONAL STONE, SAND AND GRAVEL ASSOCIATION (NSSGA):

PAMELA J. WHITTED	

Senior Vice President of Legislative and Regulatory Affairs

DALE DRYSDALE

INDIVIDUAL: 

JUAN RUIZ

INTERNATIONAL UNION OF OPERATING ENGINEERS (IUOE):

ELIZABETH NADEAU		

Attorney

KYLE ZIMMER

Health and Safety Director, Local 478

MARTIN TUREK		

Assistant Coordinator and Safety Administrator, 

Local 150

BARBARA McCABE		

Program Manager, Hazmat Program

KEITH MURPHY

IUOE, Local 478		

DONALD HULK		

Safety Director, Manafort Brothers, Inc.

LARRY HOPKINS		

Training Director, Local 12

MARC POULOS		

Executive Director, Indiana, Illinois, and Iowa Foundation for Fair
Contracting

Board Member, National Alliance for Fair Contracting

NEW LABOR (NEW JERSEY):

MARIEN CASILLAS-PABELLON

Director		

NORLAN TREJO				

Safety Liaison

JONAS MENDOZA			

Safety Liaison

FE Y JUSTICIA (HOUSTON, TEXAS):

	

SANTOS ARMENDARIZ		

JOSE GRANADOS			

SANTIAGO HERNANDEZ	

OTHER PARTICIPANTS:

FRANKLIN MIRER, Ph.D., CIH

CUNY School of Public Health

AFL-CIO

CHRIS TRAHAN

Building and Construction Trades Department, AFL-CIO

TRESSI CORDARO

Attorney, Jackson Lewis

SCOTT SCHNEIDER, CIH

Director of Occupational Safety and Health

Laborers' Health and Safety Fund of North America

FELICIA WATSON

National Association of Home Builders

LAURA WELCH, M.D.

Building and Construction Trades Department, AFL-CIO

REBECCA REINDEL

AFL-CIO

PETER DOOLEY, CIH, CSP

National Council for Occupational Safety and Health 

OTHER PARTICIPANTS (cont.):

PEG SEMINARIO

Safety and Health Director, AFL-CIO

ANNA DUNCAN

Spanish Interpreter

INDEX

										PAGE

		

INTRODUCTION			

Judge Daniel F. Solomon						  PAGEREF a1Solomon \h  2147 	

NATIONAL ASPHALT PAVEMENT ASSOCIATION (NAPA)

	Donald Elisburg						  PAGEREF b0Elisburg \h  2147 

	Mike Acott						   	  PAGEREF b1Acott \h  2149 

	Anthony Bodway						 	  PAGEREF b2Bodway \h  2154 

	Jeff Richmond, Sr.					  	  PAGEREF b3Richmond \h  2159 

	Gary Fore							  	  PAGEREF b4Fore \h  2167 

	Questions							  	  PAGEREF b5questions \h  2174 

AMERICAN ROAD AND TRANSPORTATION BUILDERS 

ASSOCIATION (ARTBA); NATIONAL UTILITY CONTRACTORS

ASSOCIATION (NUCA)

	ARTBA - Una Connolly					  PAGEREF c1Connolly \h  2231 

	NUCA - George Kennedy				 	  PAGEREF c2Kennedy \h  2239 

	

	Questions							 	  PAGEREF c3questions \h  2248 

NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION (NRECA)

	Brian Lazarchick, CSP				 	  PAGEREF d1Lazarchick \h  2274 

	Questions							 	  PAGEREF d2questions \h  2275 

INDUSTRIAL MINERALS ASSOCIATION - NORTH AMERICA (IMA-NA); NATIONAL
STONE, SAND AND GRAVEL 

ASSOCIATION (NSSGA)

	IMA-NA - Mark Ellis					 	  PAGEREF f1Ellis \h  2286 

	NSSGA - Pamela J. Whitted				  PAGEREF f2Whitted \h  2291 

	Questions							 	  PAGEREF f3questions \h  2300 

INDEX

										PAGE

INDIVIDUAL 

	Juan Ruiz							 	  PAGEREF g1ruiz \h  2327 

	Questions							 	  PAGEREF gquestions \h  2329 

INTERNATIONAL UNION OF OPERATING ENGINEERS

	Elizabeth Nadeau					 	  PAGEREF h1Nadeau \h  2336 

	Kyle Zimmer						 	  PAGEREF h2zimmer \h  2339 

	Martin Turek						 	  PAGEREF h3Turek \h  2355 

	Barbara McCabe						 	  PAGEREF h4McCabe \h  2365 

	Keith Murphy						 	  PAGEREF h5Murphy \h  2370 

	Donald Hulk						 	  PAGEREF h6Hulk \h  2377 

	Larry Hopkins						 	  PAGEREF h7Hopkins \h  2390 

	Marc Poulos						 	  PAGEREF h8Poulos \h  2396 

	Questions							 	  PAGEREF h9questions \h  2405 

NEW LABOR (NEW JERSEY)

	Marien Casillas-Pabellon				 	  PAGEREF j1Casillas \h  2448 

	Norlan Trejo						 	  PAGEREF j2Trejo \h  2454 

	Jonas Mendoza						 	  PAGEREF j3Mendoza \h  2458 

	Questions							 	  PAGEREF j4questions \h  2461 

FE Y JUSTICIA (HOUSTON, TEXAS)

	

	Santos Armendariz					 	  PAGEREF k1Armendariz \h  2476 

	Jose Granados						 	  PAGEREF k2Granados \h  2478 

	Santiago Hernandez					 	  PAGEREF k3Hernandez \h  2481 

	

	Questions							 	  PAGEREF k4questions \h  2483 

ADJOURNMENT							 	  PAGEREF L1adjourn \h  2493 

EXHIBITS

EXHIBITS		DESCRIPTION				 	PAGE

Exhibit 65	Reserved - NAPA testimony		  PAGEREF ex65reserve \h  2174 

Exhibit 66	Reserved - NAPA PowerPoint		  PAGEREF ex66reserve \h  2174 

Exhibit 67	Reserved - Mr. Kennedy's 

			testimony 					  PAGEREF ex67and68reserve \h  2248 

Exhibit 68	Reserved - Ms. Connolly's 

			testimony 					  PAGEREF ex67and68reserve \h  2248 

Exhibit 69	Mr. Lazarchick's statement	   	  PAGEREF
ex69markedandreceived \h  2275 

Exhibit 70	Mr. Ellis' testimony, IMA-NA	   	  PAGEREF ex70to72 \h  2291 

Exhibit 71	Alliance with MSHA			   	  PAGEREF ex70to72 \h  2291 

Exhibit 72	Dust Control Handbook		   	  PAGEREF ex70to72 \h  2291 

Exhibit 73	NSSGA testimony			   	  PAGEREF ex73 \h  2325 

Exhibit 74	IUOE PowerPoint		   		  PAGEREF ex74 \h  2334 

 

	

				  

P R O C E E D I N G S

(9:30 a.m.)

		JUDGE SOLOMON:  Let's go on the record.

		I'm Daniel Solomon.  I'm an administrative law judge with the United
States Department of Labor.  My address is 800 K Street, 4th Floor,
Washington, D.C.  The zip code is 20001-8002.

		This is Day 8 of these hearings.  At this time, Ms. Kramer, do you
want to enter your appearance for the day, please?

		MS. KRAMER:  Yes, Your Honor.  My name is Allison Kramer.  I'm with
the Office of the Solicitor here at the Department of Labor.  And we are
looking forward to hearing from the National Asphalt Pavement
Association today.

		JUDGE SOLOMON:  Okay.  So the National Asphalt Pavement Association is
up first.  They have been allocated 45 minutes.  I was just told that
they will probably only take about 35 minutes.  Is that right?  And then
we'll have questions from the public and then OSHA, I'm sure, will have
some questions.

		So would you introduce the panel first?

		MR. ELISBURG:  Hi, my name is Donald Elisburg.  I am a consultant
with NAPA, but I am also the facilitator of this partnership group.  And
my role this morning is to introduce the panel who will make the
presentations.  

		On my right, the first speaker will be Mike Acott.  Mike is the
President of the National Asphalt Pavement Association.  

		On my left is Tony Bodway.  He is the Special Projects Manager for
Payne & Dolan, Inc., which is a large asphalt pavement contractor in
Waukesha, Wisconsin.  And Tony is the Chairman of what we call the
Silica Asphalt Milling Machine Partnership.

		Behind me on my right is Jeff Richmond.  Jeff is the President of
Roadtec, Inc., in Chattanooga, Tennessee, a large manufacturer of
highway paving and construction milling machines, and so forth.  Jeff is
here on behalf of the other milling machine -- himself and the other
milling machine manufacturers.

		And, finally, behind me on my left is Gary Fore.  Gary is a
consultant to NAPA, was retired vice president for environment safety
and health at NAPA, and Gary currently is from Greensboro, North
Carolina.

		And with that, let me pass this to Mike Acott.

		MR. ACOTT:  Thank you very much for allowing us the opportunity to
present our information to the Agency.  I am the President of NAPA. 
I've been in the asphalt industry for about 40 years.  My background is
technical.  I'm a civil engineer.  

		We are an association that represents the asphalt paving industry.  We
have about 850 asphalt pavement production companies, many paving
contractors.  Some of the companies we represent are quite large with
thousands of employees.  We also represent many small family-owned
companies that may have less than 100 employees.  

		The workforce as a whole is very large.  It is estimated to be about a
quarter of a million individuals in our industry, though a very small
fraction of those individuals are engaged in what we call roadway
milling operations.  

		But roadway milling, for us, is a real critical part of our industry's
operations.  It is all part of the rehabilitation process when you rehab
a road.  But much more important for us, it provides a very ready supply
of reclaim material that goes back into asphalt pavement.  We, as an
industry, recycle more than any other industry in the United States in
terms of the amount of recycled material.  So it is a strategic
operation for us, the milling operations.

		Today, NAPA, the contractors and equipment manufacturers, and
representatives of the Silica Asphalt Milling Machine Partnership, and
we're going to discuss with you results of a 10-year effort to protect
workers from exposure to dust and potential silica during asphalt
milling operations.

		We were contacted by NIOSH in 2003.  They approached our industry
about the issue because we had worked with them on several projects over
the past decade.  During this time, the milling machine partnership has
successfully developed engineering controls for asphalt milling machines
using both water spray dust suppression and also ventilation or
evacuation systems.

		Our partners, we have worked closely with NIOSH and also OSHA in
analyzing, designing, and testing these controls systems for their
ability to reduce dust and silica emissions.  Other partner members will
provide detailed information about these controls during their
testimony.

		My purpose here today is to testify, to put this activity in the
context of the much larger 20-year effort at NAPA with these very same
partners and others to address a whole wide range of health and safety
issues affecting the asphalt industry's workers.  We believe that we are
a model partnership.

		Our partnership approach has managed to achieve significant reductions
to asphalt fumes during paving operations.  We have worked with
regulators, labor, academia, and industry to also develop new
technologies and product substitutions.  We introduced a product known
as warm-mix asphalt back in 2002.  It is already a third of our total
tonnage, and it reduces emissions significantly from our product.

		We have also worked cooperatively to develop the most widely vetted
and comprehensive and proactive roadway safety program in the world, a
program that is state of the art for employee safety and health
training.

		In each and every one of these efforts, the model is identical.  We
work in partnership with contractors, labor representatives, academia,
government agencies, including the Federal Highway Administration,
NIOSH, OSHA, and the EPA.

		The Silica Asphalt Milling Machine Partnership effort is based on
lessons learned from our very highly successful asphalt fumes
engineering control partnership, where this technology is now fully
deployed.  It was a voluntary effort initiated in the mid '90s, absent
any regulatory mandate.  The Partnership is to ensure the workers are
protected from potential silica exposure during asphalt milling
operations.

		This partnership includes all major stakeholders, government,
industry, labor, and academia, all six equipment milling machine
manufacturers involved.  They include Caterpillar, Wirtgen, Roadtec,
Volvo, Bomag, and Dynapac, as well as NIOSH.  It also includes the
International Union of Operating Engineers, the Laborers' International
Union of North America, NAPA, and also the Association of Equipment
Manufacturers.  Our partnerships include NIOSH and OSHA.  And we have
spent over 10 years, thousands of man-hours, hundreds of thousands of
dollars to develop effective worker protection systems.  

		Today, you will hear the manufacturers to help you understand how we
have accomplished reductions in dust and potential silica exposure
during asphalt roadway milling operations, and to present our case for
an improved OSHA rule.

		As I have testified this morning, you will hear testimony from the
Partnerships and other attendees.  The industry has and will continue to
be committed to ensuring a safe workplace.  Today, we will demonstrate
to the Agency that by working together and including innovative design
changes and retrofits to milling machines, we can ensure that our
workers are protected from silica exposure.

		You will hear the industry's plans and commitments to provide
innovative engineering controls, the new milling machines that all but
eliminate dust and potential silica exposure, as well as methods we have
developed to retrofit existing milling machines to ensure a safe
workplace.

		As you listen to other members of this labor government industry
partnership testify, you will understand that the asphalt milling
machine engineering controls that have been developed with the help of
NIOSH and OSHA will provide sufficient protection from silica exposure
for workers during asphalt roadway milling operations.

		We believe the use of these controls will negate the need or
requirement for respiratory protection during these activities.  Thank
you very much for the opportunity to present our plan and our
recommended modifications to OSHA's proposed silica rule.  Thank you
very much.

		MR. BODWAY:  Good morning.  As Don said or introduced me, I am Tony
Bodway, Special Projects Manager at Payne & Dolan, Inc.  We are an
asphalt contractor producer in Wisconsin, Illinois, and Michigan.  

		My employment with Payne & Dolan spans 32 years.  Twenty of those
years, I spent managing all of their milling divisions, which consisted
of 34 machines in 2008.  I have been in the Partnership since 2003. 
That is when it was formed.  In 2005, I accepted the Chairman role.  

		We can sit here all day and share with you the last 10 years of the
Silica Asphalt Milling Machine Partnership, but time will not allow. 
But what I can do is share a snapshot of a great group of partners that
poured every ounce of energy and heart into ensuring that workers would
be protected from this terrible disease.

		A little bit on the Partnership background.  NIOSH, realizing the
success of the NAPA fumes partnership and the NAPA commitment to worker
health and safety, NIOSH presented NAPA with a new challenge.  NAPA
accepted that challenge to address potential silica generated by asphalt
milling machines.  

		In 2003, the NAPA Silica Asphalt Milling Machine Partnership was
formed.  Partnership members were selected and the goals were
established.  Part of that team is made up -- partners on that team is
made up with contractors, Payne & Dolan, Incorporated; E&B Paving from
Indiana; manufacturer partners, Roadtec, Wirtgen, Caterpillar, Volvo,
Bomag, Dynapac, and Terex.  

		The associations that are involved in the Partnership, the National
Asphalt Pavement Association, the Association of Equipment
Manufacturers, International Union of Operating Engineers, Laborers'
International Union of North America, NIOSH team members.  

		One of the earlier pictures of one of the teams that worked with us,
again a picture of one of the technicians, NIOSH technicians performing
tests on one of the machines.  

		Partnership goals were set first and foremost.  Number one was to
ensure maximum worker protection while complying with all applicable
standards.  Exhaust all options; leave no stone unturned.  Develop
systems on milling machines that achieve these goals while complying
with applicable standards.  Early testing.  Pre-2006 showed that further
technology, system refinement, development and testing was required.  

		Role of NIOSH in the Partnership.  Establish and develop a teamwork
relationship.  Develop criteria and protocol for each of the systems
that require testing and sampling.  Collection of statistical valid data
and prepare reports for the Partnership.  Share vast knowledge of water
spray systems, which we'll talk about during the presentation.  Publish
best practices guidance for the industry.

		The contractor's role.  Share working knowledge of milling machines
and operation.  Provide access to appropriate milling sites for NIOSH
evaluation.  Coordinate with equipment manufacturers and other partners
to provide prototype machines for evaluation.  Develop and distribute
best practice bulletin, which you will see later on in the presentation.
 Operational guidance for water systems during milling operation.  

		Continuous process of learning and improvement during the Partnership.
 Prior to 2007, we only required test sites to establish baseline
results on water pressure and flow rate changes.  

		In 2007, we had a breakthrough.  The Partnership had the opportunity
to visit the NIOSH facility in Pittsburgh.  It was here that we learned
the similarity of mining dust suppressing and milling machines.  This
showed us that to capture silica, capture the dust.  The need to test
multiple machines was suggested; suggested improvements were apparent.

		In 2008, an abandoned asphalt runway in Marquette, Michigan, became
available and was secured for testing.  Two full rounds of testing
involving four manufacturers was completed by NIOSH on the site. 
Following the testing in Marquette, Michigan, the manufacturers revised
their control systems based upon learning experience and additional
sites were needed.  

		In 2010, a 14-mile project in Shawano, Wisconsin, that met the NIOSH
criteria was secured.  The partners agreed to have five of the major
manufacturers test simultaneously on one project.  This coordination of
all the partners tested our metal.  The success of the Shawano project
allowed us to move to the next phase, significant advances in the water
spray systems and the introduction of ventilation control systems.

		Between 2010 and 2013, NIOSH would conduct tracer gas testing on each
of the manufacturers' ventilation control systems for optimization. 
This was completed at each of their manufacturing facilities.  The
completion of the tracer gas testing now allowed the machines equipped
with ventilation control systems to be field tested.  

		At the completing of the tracer gas testing, NIOSH developed a new
protocol for eight-hour personal hygiene testing.  The protocol required
three days of testing on three different projects or sites, a total of
nine days of milling and personal hygiene testing.  As difficult as this
may sound, we successfully completing the testing on two of the
manufacturers.

		Why respirators will not allow for a safe work zone environment.  As
you can see in the picture here, work sites are often open to traffic. 
Now take this scenario and make it night work.  We all know that the
DOTs are now requiring a lot of night work on projects, so you take this
scenario and basically turn the lights off, and you're working in the
dark.

		Communication with haul trucks and ancillary equipment.  Personnel
performing activities during the operation.  Communication with others
working around the machine.  Congested workplace with other -- I'm
sorry, congested workplace with other operations.  Also, as you can see
in this picture, it certainly is very congested.  You can see the
umbrella above the operator on the one machine.  Weather, extreme
temperature changes certainly play a factor in the use of a respirator. 
Traffic control is constantly changing.  

		Conclusion.  It is our responsibility to ensure that all current and
future employees, friends and family are allowed to work in an
environment that's free of health and safety hazards, and affords them
the opportunity to work safely.

		I'd like to thank you.  It has been a privilege and an honor to appear
and tell you the story of our successful partnership.  In conclusion,
again, for the personnel who operate these machines, failure is not an
option.  Thank you.

		MR. RICHMOND:  One second so we can get the slides changed here.  Got
it.  Good morning.  I'm Jeff Richmond, Sr., President of Roadtec,
Incorporated.  We manufacture milling machines, paving equipment, and
other related construction equipment.  We're based out of Chattanooga,
Tennessee, and we manufacture all of our products in Chattanooga,
Tennessee.

		Today, I am here to represent the six milling machine manufacturers
who are participating in the Silica Asphalt Milling Machine Partnership.
 Upon the screen, well, we'll get it up on the screen, here is a picture
of two asphalt milling machines during the 2008 Marquette field trials. 
I'll make reference to these field trials further into my testimony. 
But if you are not familiar with our product, that's what our machines
look like and that's kind of a typical milling operation.

		In addition to my company, Roadtec, the other milling machine
manufacturers in the Partnership include Wirtgen, Caterpillar, Bomag,
Volvo, and Dynapac.  We've been a part of the Silica Partnership Mike
Acott described to you since its inception in 2003.  Prior to that, my
company and I also participated in the Asphalt Partnership that
developed engineering controls for fume reduction surrounding highway
class paving machines.

		All of us are acutely aware of the potential hazards of silica
exposure, and we welcome the opportunity to work with the other partners
on engineering controls and best practices to ensure that our workers
are protected.  

		The development of engineering controls and best practices over this
10-year period has followed a two-track path, and we believe we have
established effective exposure protection through both of these tracks. 


		First, we evaluated existing water spray systems and identified areas
for improving the suppression of dust, thereby controlling potential
silica exposure.  Second, one of the manufacturers, Terex, also
developed a ventilation control system to minimize dust exposure.  This
system showed great promise of further minimizing silica dust when used
in conjunction with the existing water spray systems.

		In essence, any dust will be wetted, captured, conveyed, and then
deposited into a truck.  The goal was never to be satisfied with just
meeting recommended exposure limits, but to strive for maximum worker
protection through engineering controls and best practices.

		Today, I want to provide you with a brief description of how we have
improved the water spray dust suppression and ventilation control
systems, and why we are satisfied these controls will minimize potential
exposure to below the proposed PEL and provide worker protection.

		In 2007, after three years of testing to understand how water impacts
silica dust, NIOSH arranged for the Partnership to meet with the
researchers at the Pittsburgh research lab who have spent years studying
dust suppression in mining operations.  The premise was very simple: no
dust, no silica.

		In concert with these NIOSH experts, we developed several prototype
configurations involving water nozzle location, spray patterns, and flow
rates.  In a massive prototype trial involving four milling machines and
an abandoned airport runway in Marquette, Michigan, NIOSH found one
water configuration that showed significant promise.  And there again
that slide shows that field test in Marquette, Michigan.

		The water, and I'm going to point for a little bit.  The water -- the
slide you see here is actually a manufacturing or an engineering
drawing.  And what it basically shows is this is what's referred to as a
cutter box in a cold planer.  This is where we actually cut the asphalt.
 And this is the path that that material takes getting out of the
machine.  This tends to be the area where most of the dust is created in
a milling operation.

		You can see spray bars back here, another one here, and another one up
here at the top.  And basically those are the areas that we impact the
dust with water spray.  And this particular configuration showed the
best results in all the testing we did in Marquette, Michigan.  The
configuration you see yielded a statistically significant respirable
dust reduction in the range of 43 to 55 percent, compared to our
standard designs.

		Subsequently, in 2010, OSHA completed full shift sampling on this
configuration and confirmed exposures were significantly below the
proposed PEL.

		As a result of these findings, the Partnership published a best
practice bulletin, it's on the screen now, Operational Guidance for
Water Systems During Milling Operations.  A copy of this document is on
the screen and a copy is appended to this testimony as well.

		As I mentioned earlier, a second prototype or track the Partnership
deployed focused on ventilation controls, which yielded a statistically
significant reduction of 60 percent respirable dust exposure as compared
to a milling machine of original non-modified design.

		On the screen, you can see the early development or prototype of the
ventilation control system, which we recognized at the time as being
operationally cumbersome, but it did prove to be a very valid machine
for testing purposes.  There you can see the ventilation system up on
top and you can see some of the ductwork associated with that.

		As I said, that was an early prototype, not necessarily an operational
machine, but a good machine to provide test results. 

		This prototype was further refined for incorporation into a workable
machine design, as I will now show on the screen.  This is that same
cross-section I showed earlier where we have the cutter box and the
primary conveyor.  This is called the secondary conveyor where the
material goes up and into the haul trucks.  

		And what we've got is the original water system we talked about
earlier, but on top of that we now have a suction fan on top of the
machine.  We have ductwork to suck all the fine material out of the
cutter box and the primary conveyor, and we're taking that material up
and all the way up to the top end of what we call the secondary
conveyor, and we're dumping that material right into the haul truck.  So
that's the second control we referred to.

		Ultimately, the decision was made by the Partnership to deploy the
vacuum base ventilation control system in combination with the improved
water spray dust suppression as a means of ensuring maximum protection
of workers.  

		In late 2011 and early 2012, NIOSH began working with us to test a
prototype ventilation control system using tracer gas methods.  This led
up to extensive personal hygiene field trials on two manufacturers
equipped with the combination improved water spray dust suppression and
ventilation control system.  The result was after 42 full-shift personal
breathing zone samples, collected at 11 different asphalt milling sites,
all respirable silica exposures were significantly below the proposed
PEL.

		This photo shows asphalt road milling machines that are equipped with
both ventilation control systems and the water systems from two
different manufacturers.

		In conclusion, I would like to note that this intensive 10-year effort
has given asphalt milling machine manufacturers confidence that we can
protect workers and meet applicable standards for silica exposure using
improved water spray dust suppression systems and that exposures can be
reduced even further using ventilation systems.

		Based on NIOSH's extensive research with the Silica Asphalt Milling
Machine Partnership, the manufacturers are now designing dust
suppression and ventilation control equipment that will meet our goal
for providing maximum protection to asphalt milling workers.  

		All six manufacturers have now committed to producing new milling
machine, half-lane and larger, that will have effective water spray dust
suppression and ventilation control systems by January 1, 2017.  Letter
of commitment to achieve this goal from all six manufacturers have been
included in the OSHA docket.

		For existing machines, we are also committed to providing access to
retrofit dust suppression water systems that are equivalent to the best
system identified by NIOSH which will meet the proposed silica PEL.  

		Some manufacturers may have systems to market earlier than January 1,
2017, depending upon product development timelines and NIOSH evaluation
processes for each manufacturer's individual design.

		Thank you again for the opportunity to participate in this hearing.

		MR. FORE:  Good morning.  I am Gary Fore, now retired as vice
president for health, safety, and environment, for the National Asphalt
Pavement Association.  I am trained as a chemical engineer and have a
master's in public health administration.

		For about 20 years, I have worked with NAPA as a technical advisor and
also a facilitator of the various government, industry, labor, academia
partnerships that Mike Acott and others described earlier.

		In 2003, I helped organize the first meeting of the Silica Asphalt
Milling Machine Partnership.  That was done at the request of NIOSH and
based upon our success in previous asphalt fume studies and asphalt fume
engineering controls.

		I am pleased to say that we have enjoyed success after success in the
pursuit of worker protection over this 20-year period.  

		The Silica Asphalt Milling Machine Partnership is our latest example. 
Today, I wish to address our specific thoughts and recommendations for
OSHA as it relates to improving the proposed silica rule.  We build upon
the testimony which was placed in the OSHA docket for the proposed rule
earlier this year.

		My first point, the various partners have spent 10 years gathering
data with NIOSH that demonstrates employee exposures in asphalt milling
operations can consistently be maintained below the 50 µg/m3 proposed
PEL without the use of respirators.  

		This conclusion is based, as you have heard, upon 42 personal samples.
 Those were 8-hour time weighted samples, full-shift samples, that
occurred at 11 different asphalt milling sites.  All test protocols, the
actual testing, the design of the protocols, and statistical analyses
were performed by the National Institute for Occupational Safety and
Health.  Please refer to the graphical representation of the data to
bring some cites to this party.

		As you can see, there is a green line in the middle.  That delineates
a regime on the left versus the regime on the right.  On the vertical
axis is the exposure in µg/m3.  On the bottom is the chronology
starting with the Partnership in 2003 and up to the present. 

		Our point here is that in the early years prior to 2007, and I will
speak to 2007 in a moment, prior to 2007, you can see the data was
somewhat variable.  We were experimenting with pressures and flow rates
on the machines of original design just trying to understand how to
influence this dust suppression.  In 2007, at the encouragement of our
labor partners, we had a breakthrough.  At that point, we met with the
NIOSH mining labs in Pittsburgh.  Those folks had done eons of study on
this subject and, in fact, on machines that are not dissimilar from our
machines.  The vertical wall milling machines have a cutter drum, they
have teeth.  It was very, very similar to what we do.  And they had
developed a real-time dust monitor which was all-fired important. 

		That breakthrough, the ability to real-time monitor and see changes as
you made prototype changes and see them quickly was absolutely a
breakthrough, because we can make a change and then see what was
happening.  That led us to intensively focus on further developing water
spray dust suppression systems.  And, in fact, one of those NIOSH found
to be effective, and that has been referred here today, is the B2
system.  OSHA tested that system and, in fact, it was significantly
below the PEL.

		We went onto develop and test -- thank you, Jeff.  Went onto develop
and test ventilation control systems.  And that occurred in this area
here.  As you can see, all data were consistently below the PEL and, in
fact, they are less than half of the PEL.  This gives us confidence to
proceed.  And I might just add that is the operator position.  Here is
the same scenario for the ground man.  We tested at both positions. 
Same scenario, significantly below the PEL.

		My second point, for reasons mentioned above, respirators are not
needed in asphalt milling operations performed by half-lane and larger
operations, those equipped with engineering controls, I might add,
developed by this partnership.  Indeed, as pointed out by Mr. Bodway,
respirator use in asphalt milling environments with temperature
extremes, moving heavy equipment, complex operations, complex
communications, and adjacent live vehicle and equipment traffic
substantially increase worker and pedestrian risk of injury.  As such,
respirators are not an appropriate alternative.

		My third point, there is a need to clarify (d)(8)(ii) of the proposed
rule which would require all operations in which respirator use is
required to presume that exposures exceed the PEL, and then provide
regulated areas and medical surveillance.  As stated above, respirator
use in these operations is not needed or appropriate.  We request that
OSHA clarify for operations where respirators are not required in Table
1, employers are not required to comply with the provisions that are
triggered by exceeding the PEL.

		My fourth point, Table 1 represents a reasonable approach to achieving
the Agency's goals of controlling silica exposures while reducing the
cost potentially associated with compliance.  We strongly encourage OSHA
to retain a revised Table 1 in the final rule.  Further, we recommend
that OSHA make specific changes to Table 1 by including a specific
operation entitled Asphalt Milling Half-Lane or Larger Drivable Milling
Machine.  

		We have offered specific language in our written docket comments to be
included in Table 1 for this operation.  This language is supported by
exposure data as we have seen and engineering evaluations conducted by
our own NIOSH.  In addition, letters of commitment from the milling
machine manufacturers that Mr. Richmond mentioned to provide controls
on all new milling machines by a certain date have also been placed in
the docket.

		Our recommendations are based on proven technology, and are supported
and would recommend a daily visual inspection and annual control system
review conducted by a person qualified by training provided by the
equipment manufacturers.

		Lastly, our recommendations are entirely consistent with
recommendations provided by NIOSH in their current draft document
entitled, "Best Practice Engineering Control Guidelines to Control
Worker Exposure to Respirable Crystalline Silica During Asphalt
Milling," dated February 2014.

		In the executive summary of the draft document -- by the way, NIOSH
approved our making this statement.  In the executive summary, NIOSH
states based on the 10 years of research by the Silica Milling Machine
Partnership, NIOSH researchers recommend a combined engineering control
approach that includes ventilation controls and water spray dust
suppression controls.  

		This combined approach has been shown to control worker exposures to
respirable crystalline silica from coal milling machines during 21 days
of personal breathing zone sampling, at 11 different highway
construction sites.  All 42 personal breathing zone sampling results, 21
days, and 2 workers were below currently published regulatory and
recommended occupational exposure limits for respirable crystalline
silica for the well-designed combined control approach.

		NIOSH and the Silica Milling Machine Partnership recommend these
controls be placed on all new half-lane and larger milling machines to
reduce worker exposure to respirable crystalline silica.  The
ventilation and water spray dust controls described in this document
represent the current knowledge of best practices developed by the
Silica Asphalt Milling Machine Partnership.  

		I conclude our remarks with a note of thanks for the opportunity to
present the Silica Asphalt Milling Machine Partnership along with our
recommendations for improving the proposed silica rule.  We would be
happy to entertain any questions.  And by the way, the shot on the board
is the current design of the cover of this NIOSH Best Practices document
which I just read the executive summary for.

		JUDGE SOLOMON:  All right.  Mr. Elisburg, do you have any documents
you want to have marked as exhibits?

		MR. ELISBURG:  No, I believe we have already introduced into the
record those things that we have.  And the rest is attached to our
testimony.

		MS. KRAMER:  Your Honor, I would like to, if possible, reserve two
exhibits for the record.  I'd like to mark later Exhibit Number 65 when
we can print out a color copy of the document that includes the
statements of Mr. Acott, Mr. Bodway, Mr. Richmond, Sr., and Mr. Fore
as they presented it today.  

		And also for Exhibit Number 66, a joint exhibit that includes all of
the PowerPoint slides that we saw here today, also in color, so we can
get a full picture of everything they have had to say today.

		JUDGE SOLOMON:  Okay, I don't think that's any problem.  I assume you
can get those.

		MR. ELISBURG:  Actually, they have all been submitted to OSHA
presently.

		MS. KRAMER:  We have them, Your Honor.  We just need to print them out
in color.

		JUDGE SOLOMON:  Okay, thank you.  All right, can we have some idea of
how many people are going to ask questions?  Starting with Dr. Mirer at
the lowest level, and would the others please line up?  We probably have
about six people who want to ask questions.  So state and spell your
name, please.

		DR. MIRER:  Franklin Mirer, M-i-r-e-r, CUNY School of Public Health,
and representing I guess the AFL-CIO as well.  First, thank you very
much for the presentation.  It's a pleasure to see real new evidence
placed in the docket here.  I guess it was here before, but real new
evidence being presented.  

		My questions may be kind of geeky, industrial hygienist questions that
might be better referred to NIOSH.  But you're sitting here and they are
not.  So my first question is how long does a milling machine last
before you have to buy a new one?

		MR. RICHMOND:  Typically, 7 to 10 years would be normal.

		DR. MIRER:  Okay.  So if nature took its course without retrofit, we'd
be done with this in that time?

		MR. RICHMOND:  Oh, absolutely.

		JUDGE SOLOMON:  I'm sorry.  I have to identify for the record who
responded.

		MR. RICHMOND:  Jeff Richmond, Sr.

		JUDGE SOLOMON:  Okay.  

		DR. MIRER:  Second, do you have an idea under the old conditions of
how far the dust would travel from the milling machine to other
operations?  It used to be a big cloud of dust.

		MR. BODWAY:  Gary, do you want to answer that?  I can also help with
that.

		MR. FORE:  I don't -- I wouldn't call it a big cloud of dust, but
there was dust around the machines.  I don't know that we have data that
shows how far it actually proceeded.  What we did have, the best shot we
could give you would be the ground man exposure data.  And as evidenced
here, the ground man being very close to the machine because he tends to
guide the machine as it is moving alone, he's the guy closest, and that
guy, his exposures are consistently less than half of the proposed
exposure limit.  So what I can tell you is if there were anybody else in
the vicinity of the machine, they would not be highly exposed.

		DR. MIRER:  Okay.  Can we go back to the chart, the slide with Exhibit
2?  Can you guys get back to that?

		MR. FORE:  Yes, we can do that.  There is the ground man.

		DR. MIRER:  So that would be the --

		MR. FORE:  Yeah, and what I'm referring to, as you can see, these are
the 42 sample points at 11 different milling sites.  And as you can see,
here is the red line which is the proposed PEL.  As you can see, we're
very, very low consistently.

		DR. MIRER:  Right.  And so these, I just wanted to emphasize I saw
this in your pre-hearing submission, these exposures are all below 25
µg/m3, right, the proposed action level?

		MR. FORE:  Yes.  And for the, if you back up another slide, the
operator position is even lower.

		DR. MIRER:  Yeah, I was going to give it the most difficult test.  So
we could go back to Exhibit 2, so NIOSH apparently thinks they are
capable of measuring silica down to those levels?

		MR. FORE:  NIOSH did, in fact, measure, and they did -- they designed
the protocols to be statistically significant at the 95 percent upper
confidence level.  The range on the data, combined data, operator/ground
man is 4.9 µg/m3 to 18 at the 95 percent upper confidence level.

		DR. MIRER:  Very good.  And the last question is what's the silica
content of the material that they are milling?  And this is -- and where
is it coming from?

		MR. FORE:  The silica content varies depending on the region of the
country, the milling -- from milling site to milling site.  Typically,
it would be in the range of say 10 to 30 percent, but it is as low as 0
and maybe as high as 50 in some cases.  What I would further tell you,
though, is one thing we learned is that the silica content and the
respirable dust that's collected is significantly different and lower
than what you see in the bulk material.

		DR. MIRER:  Is the machine getting through the asphalt into the
underlying substrate and that's where the silica is coming from?

		MR. FORE:  Oh, actually, the silica is interstitial silica to the
aggregate.  It's part of the aggregate, you can imagine.

		DR. MIRER:  So the material is asphalt plus aggregate.

		MR. FORE:  Right.

		DR. MIRER:  That's what's going on.

		MR. FORE:  So asphalt is about 5 percent, about 5 percent liquid
asphalt, the glue, and roughly 95 percent stone or aggregate and other
sand type materials, which can often and usually do have a silica
content.  And as you fracture that, as you might expect, you get the
generation of the dust.

		JUDGE SOLOMON:  Thank you, Dr. Mirer.

		MR. FORE:  Thank you.

		MR. ELISBURG:  Don Elisburg.  Frank, the testimony points out that the
last seven, six or seven years of this project we have driven towards
get rid of the dust.  And because of this varying silicon content,
people are going crazy on each job trying to measure the silica.  The
real question is if you reduce the dust, you've done it.  And that came
as a suggestion from our labor partners of if we get rid of the dust, we
get rid of the silica, and it sort of cut to the chase, and that's why
we keep referring to the dust.  

		Because as Gary pointed out, you know, take your shot as to what the
content is from zero to very high.

		DR. MIRER:  Okay, thank you very much.  Thank you, Your Honor, for all
this time, and I'll defer.

		JUDGE SOLOMON:  Thank you.  Ms. Trahan?

		MS. TRAHAN:  Chris Trahan with the Building Trades, T-r-a-h-a-n. 
Thank you, gentlemen.  Your testimony was very informative.  To go back
to some of these data points, has the exposure data been submitted to
the docket?

		MR. FORE:  Yes, it has, by reference, Chris, because NIOSH peer
reviewed and published each of the reports during this partnership. 
They are all EPHB peer-reviewed reports from like 11(a) up through
25(a).  And they are part of the official docket.

		MS. TRAHAN:  Thanks.  And based on these exposure measurements, using
this combination of controls, it appears as though these operations
could actually be within a PEL of 25 versus 50.  Would you agree to
that?

		MR. FORE:  I cannot disagree with that.  The data, as we can see, I'm
going to go to Exhibit 1 first, the data is below 20 on the operator
there.  And let's go to the second slide, it's here, right below 25
generally --

		MS. TRAHAN:  Thanks.

		MR. FORE:  -- at the ground man position.

		MS. KRAMER:  Your Honor, just for the record, I wanted to note that
that is Exhibit 2, the ground man TWA exposures slide.

		MR. FORE:  Yeah.  And my name is Gary Fore, sorry.

		MS. KRAMER:  Thank you.

		MS. TRAHAN:  One question that I think an issue that's come up during
the hearings, you indicated that water is used as an effective control
or in combination with the ventilation.  Since you do asphalt paving
everywhere, all kinds of weather, how do you deal with using water when
the temperatures are at or below freezing?

		MR. FORE:  Mr. Bodway?

		MR. BODWAY:  Very carefully.

		MS. KRAMER:  Exposure monitoring, would you mind identifying yourself
just for the record?

		MR. BODWAY:  Oh, Tony Bodway, Payne and Dolan.

		MS. KRAMER:  Thank you.

		MR. BODWAY:  If we have to go out where the weather is such that
there's potential for freezing, we have sources from some of the
ready-mix plants to get hot water.  And we have also started outfitting
some of our trucks that would go out in inclement weather with heaters
on them to keep the water warm, so it would allow for spray and
potentially reduce freezing in the systems.  And we can add some
additives to keep the water from freezing.

		MS. TRAHAN:  Thank you.  In your comments, your written comments, I
don't think it was mentioned here today you mentioned that -- or they
indicate that you agree with OSHA's application of the proposed standard
to all construction operations because of worker mobility and that OSHA
shouldn't exempt any particular operations.  I don't know if you can
elaborate on that point or maybe explain why it is important.

		MR. FORE:  It doesn't take very long, Chris.  This is a known human
carcinogen we're dealing with.

		JUDGE SOLOMON:  You've got to identify yourself.

		MR. FORE:  I'm Gary Fore.

		MS. TRAHAN:  Okay, thanks.  Also in your written comments, you
mentioned a rule for a competent person.  What are the benefits of
assigning a competent person to deal with the issue of silica exposure?

		MR. FORE:  Well, I think we've suggested that in the process of
ensuring that the best practices are followed.  We have in this process
-- I'm Gary Fore.  We developed best practices for the operation of the
water system surrounding these machines.  And we have suggested that we
would do a daily inspection and then an annual trained inspection.

		These machines aren't exactly as simple as they look, so it does take
training to be able to detect where maintenance might be required,
changing of the teeth, the spray systems, a nozzle that might be plugged
or placed inappropriately.  So, yeah, it takes a level of competence to
operate these complicated machines.  The new machines have a computer
control.  I mean they are very sophisticated machines.  They're not just
a piece of hardware.

		MS. TRAHAN:  Thank you.  I think that your segment of the construction
industry has done a very good job in coming together and sharing
information on exposures and controls.  Do you have any suggestions how
other segments of the construction industry could do that, to come
together to share information on exposure controls and the objective
data, if that ends up in the final rule, how the other parts of the
industry may do that?

		MR. FORE:  Where's Mike?  I'll let Don answer that.  

		MR. ELISBURG:  Don Elisburg.  Let me answer it first, and then I'll
pass it to Mike Acott.  The bedrock of these partnerships, in the very
beginning, with all these diverse groups has been transparency and
trust.  And we basically, as these various from academia and labor,
industry, government, was everything has got to be open, everything has
got to be available, everybody has got to know what's going on.  

		And so to the extent that any group wants to try it out, you know,
it's a very easy kind of process.  But you have to understand that you
have such diverse interest, the only way you bring these interests
together is everybody has to be, as we put it, on the same page, with
the same understanding and the same knowledge.  And that's kind of how
we have talked, as you know, around NIOSH and OSHA and CPWR, and
everybody, this is how these partnerships have been successful for this
group.

		I don't know exactly how you bottle it and sell it, but that's the
process.  Mike?

		MR. ACOTT:  Yeah, sometimes you think you've caught lightning in a
bottle, but we've done it now three times, and it's the same model. 
Probably the most successful model has been the warm-mix.  You know
we've taken a product from 2002, and then by 2007 suddenly it has
exploded.  We're close to 100 million tons of warm-mix, which now
reduces exposures at the source rather than the end of pipe.  And the
only way that you could have done that is to have the Federal Highway
Administration, OSHA, all the labor unions, it would not have been
possible for the industry to get to where it is on warm-mix.  

		So for us, the success is deployment.  And the only way you can deploy
is to have all the partners involved.  And we've done that three times.

		MS. TRAHAN:  Thanks.  And just to clarify, the warm-mix is a change in
the asphalt to reduce asphalt fumes?

		MR. ACOTT:  Yeah, there is a direct connection with the temperature of
the mix with the amount of fume that is given off.  And if you can drop
your temperatures by 50 degrees, you totally reduce exposure.  So the
first, the engineer controls on the paver was to ventilate the fume away
from the worker, which is now fully deployed because that went in place
in 1997.  And all highway class paving machines now have the controls on
them.

		But warm-mix goes a step further.  It deals with the temperature at
the mix, so it's at the source.

		MS. TRAHAN:  Right.

		MR. ACOTT:  So our hope is that warm-mix will completely replace the
hot-mix.  And we're on a trajectory of use is -- it is the amount of
warm-mix and the speed of the deployment has been extremely rapid.

		MS. TRAHAN:  Thank you very much.  I appreciate it.

		JUDGE SOLOMON:  Ms. Nadeau?

		MS. NADEAU:  Liz Nadeau, N-a-d-e-a-u, and I'm with the International
Union of Operating Engineers.  I just have a few questions.  In your
comments, the Silica Partnership stated that concrete milling should be
treated separately from asphalt milling.  And, of course, the IUOE took
the same position.  I just wondered if you could sort of elaborate on
your reasons for wanting to separate the two?

		MR. FORE:  I'm Gary Fore.  Some of our initial testing indicated that
when, in fact, we encountered concrete, the exposures were different. 
They were higher.  If one examines that, the logic says there is more
there to generate dust, more silica in the bulk material to generate
respirable crystalline silica exposure.

		All of our data has been based on asphalt milling.  And given the
understanding that exposures can be higher when milling concrete, we
said, look, we focused for 10 years on asphalt milling and we should
continue to focus on asphalt milling, and make it clear that we are not
misrepresenting what we have done by saying it includes concrete.

		MS. NADEAU:  Do you have an estimate of what percentage of milling
involves asphalt milling versus concrete milling?

		MR. ACOTT:  Well, the way milling evolved was, first of all, it's the
way you now fix roads.  So if you have an old road, rather than
rebuilding the whole road, you just mill off one inch, two inches, maybe
even three inches.  So it's an essential part of road construction.

		And to give you an idea, we recycle about 100 million tons of mix a
year, so that's 100 million tons is milled off of the pavement.  And
close to 90 percent of that goes right back into mix.  We do about 350
million tons of mix a year is placed, so of which 100 million tons of
that 350 is milled out from the pavement.  So it's a pretty sizable part
of our business.

		MS. NADEAU:  You mentioned in your testimony or your responses to
questions actually asked by Ms. Trahan that additives are used to keep
water from freezing.  Could you name some of the additives, and would
calcium chloride be one of them?

		MR. BODWAY:  Tony Bodway.  Calcium chloride would not be one of them.

		MS. NADEAU:  Okay.  

		MR. BODWAY:  At some point, depending on the temperatures, we would
use a recycled antifreeze.  It is diluted down.  We also use an additive
that most people are familiar with as Dawn dish soap that helps
encapsulate and reduce some of that freezing.

		MS. NADEAU:  You mentioned that you went to 11 different sites and
took 42 samples.  During the course of the past week, there was a lot of
testimony and comments about the various environmental variables,
whether it be wind, weather, humidity, regional differences in the
content of silica in the soils.  I just wondered if you could describe
some of the different variables that were present on the 11 sites and
whether any of the variables would make a difference to the conclusions
that you have reached?

		MR. FORE:  This is Gary Fore.  The fact that NIOSH measured respirable
crystalline silica dust during the prototype development phase at 10
locations around these machines, there were 6 low and 4 high.  And they
also had a wind anemometer on top.  Yes, wind is a factor.  But in this
data, the way it was done, what I would tell you is it's statistically
significant at the 95 percent confidence level.

		And that's quite remarkable when you think about full-shift days at 11
different sites.  The reason for the different sites was to compensate
for potential variability in silica content and road construction type
activity, whether it be speed of direction, depth of grind, all of those
things that go into variability.  

		The ideal, it was to design a protocol that was statistically valid
once the sampling was done.  We worked with NIOSH.  They actually had a
statistician who has worked with us for 20 years.  His name is Stan
Shulman.  He helped design the protocols so that you would accommodate
for all these variables.  He was really schooled, after 20 years, in
variables surrounding these machines, whether it be wind direction,
speed, depth of cut, whatever.

		MS. NADEAU:  And other things that may be going on simultaneously such
as traffic that's going by or multi-employer operations, those types of
variables were factored in as well?

		MR. FORE:  Absolutely.  This is Gary Fore, again.  Yeah, we actually,
I recall from my own experience, we had one test where you had live
traffic right next to the machine, and it tended to generate some higher
readings on that side of the machine.  

		And, yeah, all of those things, we were very, very, after 10 years of
studying these things and turning them inside and out, both in the field
and in the design room, we were very -- we were acutely aware of the
variables that were going into the equation.  And for that reason, we
went at it statistically, and we had the best help we could get to do
that.

		MS. NADEAU:  Am I done?

		JUDGE SOLOMON:  How many more questions?

		MS. NADEAU:  Just one.

		JUDGE SOLOMON:  Okay, go ahead.

		MS. NADEAU:  In terms of the NIOSH representatives involved, can you
name some of them and say whether they were actually on the site during
some of these samplings and testings?

		MR. FORE:  Actually, they were the only people on the site doing
testing.  They were the only people that did the analysis.  They were
the only people that did the statistical analysis.  Early on, Alan Echt;
later on, Leo Blade; and later on, Duane Hammond was the project, kind
of the project leader for NIOSH.  We had Stan Shulman, a statistician. 
We had Andy Sichala (ph.) from the Pittsburgh mining labs, Greg Checken
(ph.) from the Pittsburgh mining labs, Jay Collinette (ph.) from the
Pittsburgh mining labs.  All of these people were on site.  And there
were other.  There were technicians that I probably cannot name at this
point.

		MS. NADEAU:  Thank you.

		JUDGE SOLOMON:  Next?

		MS. CORDARO:  Hi, I'm Tressi Cordaro.  The last name is C-o-r-d-a-r-o.
 I'm with Jackson Lewis.  My questions might be more aimed for -- is it
Richmond?  I guess let me start by my basic question is do I understand
correctly that this was a collaboration of six manufacturers and it took
a length of time, of total 10 years to reach the results you're at, that
you're giving today?

		MR. RICHMOND:  That is correct.  We started in 2003.  That's correct.

		MS. CORDARO:  Okay.  Can you clarify for me, if I understood correctly
that it was the combination of controls, the ventilation and the water
spray --

		MR. RICHMOND:  Correct.

		MS. CORDARO:  -- that was able to reduce the exposure.  Can you
explain to me what the results would be if it was just the water spray
alone?

		MR. RICHMOND:  Jeff Richmond, again.  Actually, looking at Gary's
data, the data you see up here, and correct me if I'm wrong, Gary, but
that originally was just the water only.

		MR. FORE:  Yes.

		MR. RICHMOND:  So that data, basically the below 50, below 25 was all
based on strictly water testing only.  

		MS. KRAMER:  Your Honor?

		MR. RICHMOND:  And this came after -- understand that one of the
breakthroughs we had with the NIOSH folks in Pittsburgh was we had
looked at a lot of different water systems, and one of the things we
thought might be the answer is a very high pressure water system.  But
we found out from the NIOSH people in Pittsburgh that was exactly the
wrong way to go.  Their recommendation was more water, less pressure. 
And so we did things like that at their advice.  And those results were
a product of making those changes and doing that testing, again.

		MS. KRAMER:  Your Honor, for the record, the witness was gesturing to
PowerPoint Exhibit 2.

		MS. CORDARO:  And you talked a little bit about retrofitting for the
water spray.  Can you retrofit for the ventilation?

		MR. RICHMOND:  That hasn't been contemplated.  We're focusing on, with
our training schools and our best practices in all of our field training
is encouraging and working with our contractors to improve the water
system up to the referred B2 system.  And we do have retrofit kits
available to upgrade machines to that standard of water. 

		MS. CORDARO:  For the water spray alone.

		MR. RICHMOND:  Water only, correct.

		MS. CORDARO:  Okay.  So you don't have the ability right now to
retrofit for the ventilation?

		MR. RICHMOND:  No, ma'am.

		MS. CORDARO:  Okay.  Can you talk a little bit about the maintenance
intervals for the water spray and the ventilation system on the milling
machines?

		MR. RICHMOND:  Absolutely.  That's one of the things that our
commitment or all the manufacturers' commitment is on the maintenance
side because none of these controls are going to do anybody any good if
they're not maintained properly.  So with our operation and service
manuals, and our training manuals, and the schools we do at the factory
and the field, maintenance of those water systems, maintenance of those
fan systems will be part of that training, as well as the winter
schooling we do at the factory.  

		And, certainly, in the case that Tony referred to, the water systems
and some of the issues with maintenance plugging, we'll prescribe
specific test procedures that the contractors can do on a periodic
basis.  We're thinking probably monthly would be adequate, but basically
testing the water systems to ensure that we are getting the water in all
the right places.  

		With the fan system, it's relatively simple.  It's not a complicated
system.  But, obviously, plugging is one of the things we have to watch
for and so we'll have specific tests, and we'll be able to test airflow
to make sure that we don't have plugging in the system and we are in
fact moving the material properly.

		MS. CORDARO:  Is it contemplated that maintenance can be done by one
individual or multiple individuals?  I mean --

		MR. BODWAY:  Can we take this?

		MR. RICHMOND:  Sure, by all means.  We'll let Tony take it.

		MR. BODWAY:  Tony Bodway.  As a milling contractor and also E&B
Paving, Payne & Dolan and E&B Paving, we have daily maintenance
checklists that all of our operators are required to go through prior to
even turning the key on.  Once you go through those procedures, get the
machine started so that you can operate water spray fan systems, there
are checklists that they have to go through.  

		They have to ensure that every nozzle is cleaned.  Is it pointed in
the direction it is supposed to be.  Nozzles have -- there is 100
different designs for spray nozzles.  They can be fans, circles, direct
jet spray.  Each location may have a specific design.  So those are
cleaned, flow is checked, pressure is checked.  That's part of the
walk-around in the morning by a designated -- a competent person that
has been trained on a milling machine.  They would do that each day.  Or
they do it at the end of the day and then they're ready to go in the
morning.  And if there are any issues during the day, and they'll see it
on the pavement if the nozzle is not spraying or they see something
irregular going on, they will stop and make those adjustments when they
check the bits or the tooth.

		MS. CORDARO:  Okay.  So I mean I understand that the daily visual
check is par on course for keeping maintenance.  But on a more in-depth
level, as far as like monthly maintenance, what kind of --

		MR. BODWAY:  Tony Bodway, again.  That's ongoing.  If it's today or 30
days from now, if the system is operating properly and it meets the
standards that the manufacturers have set for that flow, pressure,
nozzle design, and being in the climate that we live in, in Wisconsin,
our machines are brought in typically the end of December and go through
a complete makeover in our shop during the winter months.  And those
systems again are looked at, evaluated, and checked out.

		MS. CORDARO:  And when you say makeover, like replacement of parts or
I'm just trying to understand the level of maintenance that might be
needed on one of the machines?

		MR. BODWAY:  Tony Bodway, again.  The crews carry, most of the crews,
our crews and I think that E&B's probably do, they carry a spare water
pump with them, with the crew.  They carry nozzles.  They carry the
pieces of that system, if something goes down in the field, to make that
repair.  But, again, yes, I mean our machines at Payne & Dolan, and I
know the same thing with E&B, are basically disassembled and put back
together at our facilities to meet the standard.  

		I mean I designed a checklist a couple of years ago.  When that
machine comes in, a lot of times you have to feel to adjust things or
just repair them to keep them going during the day.  But when that
machines leaves the shop in the spring, when the foreman comes to pick
it up, there will be a checklist that meets all the manufacturer's
standards that this button does exactly what the manufacturer says.  And
everybody signs off on that.  So it's a very rigid program at our
company on daily maintenance.

		MS. CORDARO:  Okay, I appreciate your response.  Can you tell me, and
I haven't taken a look at your written comments, are there cost
estimates included with respect to the maintenance of the milling
machines?

		MR. BODWAY:  Tony Bodway.  Cost of maintenance of a milling machine?

		MS. CORDARO:  Yeah.

		MR. BODWAY:  Typically, I would say minimum yearly is probably
somewhere, including winter maintenance, is somewhere typically between
25 and 45 to 50 thousand dollars.

		MS. CORDARO:  Okay.  Can you tell me how long would these milling
machines be actually in service?  And I'm not talking about, you know,
yearly.  I'm talking about the longevity of the vehicle, itself.

		MR. RICHMOND:  We talked about earlier -- Jeff Richmond, again. 
Typically 7 to 10 years, and I would qualify that to say typically
mainline contractors like an E&B or Payne & Dolan might run that machine
more, in the range of 5 to 7 years.  And then sometimes you'll have an
afterlife, a second life, if you will, up to maybe 3 years and so on. 
I'd say 7 to 10, that's considering probably two lives in that machine's
term. 

		MR. BODWAY:  I would also comment on that.  Tony Bodway.  At Payne and
Dolan, we have traditionally since the '80s have operated our machines
up to 12,000 hours, which based on overall average with the economy and
the workload available, probably averages out to about 1,000 hours a
year.

		JUDGE SOLOMON:  Do you have any further questions?

		MS. CORDARO:  I have two, if you don't mind, please.  Can you just,
and again forgive me if I missed this piece, what is the average cost of
just one of these machines?

		MR. RICHMOND:  A general average, and I'm referring to half-lane
milling machines, you could assume in the range of about $600,000.  That
would be a good average.

		MS. CORDARO:  And that's with the ventilation and the water spray
system?

		MR. RICHMOND:  Yes, ma'am.  Jeff Richmond, I'm sorry.

		MS. CORDARO:  And my last question is do you have cost estimates for
the retrofitting?

		MR. RICHMOND:  For the -- Jeff Richmond again.  For the water system?

		MS. CORDARO:  Yeah.  And I guess if, I mean, if again we're not
talking ventilation because it's not available, so, yes, for the --

		MR. RICHMOND:  Yes.  I don't have a number with me.  It's a
relatively, when you think about retrofitting water systems, you're
talking about basically a spray bar and a group of nozzles and some
flexible plumbing, so it's relatively inexpensive.

		MS. CORDARO:  $500?  I'm joking.

		MR. RICHMOND:  A little more than that, but --

		MS. CORDARO:  Right, that's my point.

		MR. RICHMOND:  Say north of $500, south of $5,000, how's that?

		MS. CORDARO:  Can you give me a little bit more of a ballpark?  I mean
are we thinking more in the $5,000 range?

		MR. RICHMOND:  Probably, let's say $2,500 to $5,000.  And that would
be on the assumption that we had to go in and change everything.  And
that's not always necessarily the case.  It may be just a matter of a
few nozzles.  But worst case, that would be right.

		MR. ELISBURG:  I want to add onto this.  Don Elisburg.  Sort of
sitting here as a layman, listening to these questions about the water,
one point that I would like to sort of clarify as educational for
everybody, every milling machine has to have a water system because they
are also a major design of the water system is to cool the cutters, all
right?  You don't run a milling machine very long dry.  

		Some of the problems we've had in the past with some people taking
measurements has been this crew didn't want to use the fire hydrant or
whatever, and so they're going through the neighborhood with a cloud of
dust and spending a fortune because the cutters, the pieces of the
cutters, the cutting tools, okay, are very, very expensive.  And they're
what, $100 and some odd in a typical --

		MR. RICHMOND:  $160.

		MR. ELISBURG:  $160.  So you are talking about a major expense if your
cutters grind down too soon.  And so in all of the effort when we talk
about retrofitting, we talk about the best practices, there has always
been the fact that no milling machine comes off anybody's assembly line
without water doing something to cool it.

		MS. CORDARO:  Understood.  Thanks.  I have one more question, if you
don't mind.  Just on the --

		JUDGE SOLOMON:  I think you're at the end of your questions.

		MS. CORDARO:  Excuse me?

		JUDGE SOLOMON:  You're at the end of your questions.

		MS. CORDARO:  Okay.  Just one more, thank you.

		JUDGE SOLOMON:  No.  You're at the end of your questions.  

		MS. CORDARO:  I do believe that --

		JUDGE SOLOMON:  You said you had two, now you're on three, and you got
a bonus --

		MS. CORDARO:  I said I had a few more questions.  I don't --

		JUDGE SOLOMON:  You said two.  I'm sorry, ma'am.  You are done.

		MS. CORDARO:  Well, I'm sorry, I misspoke.  I have another question.

		JUDGE SOLOMON:  You are done.

		MS. CORDARO:  Okay.  Well, I'm going to note my objection that I
should at least be allowed to ask one more question, given the --

		JUDGE SOLOMON:  There is the end of the line.  We'll see how long it
will take.  Okay, Mr. Schneider?

		MR. SCHNEIDER:  Scott Schneider, 

S-c-h-n-e-i-d-e-r, with the Laborers' Health and Safety Fund of North
America.  First, I just wanted to compliment you on your presentation
and thank you.  We are really proud to be part of this great
partnership.  It has been a fabulous experience and I think a very
successful one.  And it shows what happens when labor and industry work
together with the government. 

		So I just had a couple of questions.  One of them is you talk about
the daily inspections and the monthly maintenance checks.  And I mean
they're doing these anyway.  I mean when you add in the checks on the
ventilation system and checks on the spray nozzles, does that add
significantly to the monthly and daily checks or is it relatively small?

		MR. BODWAY:  Tony Bodway.  The span of dollars, costs, or time?

		MR. SCHNEIDER:  Just in terms of time, yeah.

		MR. BODWAY:  If it added five minutes, that would probably be a lot. 
You know, typically, the operators are assigned to a machine.  They know
their machine very well.  So they're going to go through the program on
their checklist in the morning.  So it's not going to add very much
time.  It's like I think Jeff had said, it's a relatively simple system.
 It's not that complex.

		MR. SCHNEIDER:  Okay, thank you.  Now, when you're using water, some
people have said, well, when we use water, we may violate some
environmental standards for the runoff or whatever.  Is that an issue
with these machines or with the addition of the water for the control
exposures?

		MR. FORE:  This is Gary Fore.  We're not talking about that much
water, you know.  The practical matter is this is a recycled material,
and the more water we put in, the more we have to take out when we want
to recycle it.  So there is a balance there in terms of not adding water
that's not necessary.  You don't see runoff as such around these
machines.  At most, you might see a dribble here and there.  And most of
what we're talking about goes in the truck and then goes to the holding
facility at the asphalt plants.

		MR. SCHNEIDER:  Okay, thank you.  And, lastly, some people -- we
talked earlier last week about what impact controls may have on
productivity.  And some people say, well, you know, when you add
controls, it really reduces productivity.  There is a decrement in
productivity.  But does this have any impact on productivity?  In some
cases, I know it can have an improved productivity by making the cutter
heads last longer or improve the --

		MR. RICHMOND:  Jeff Richmond.  From a manufacturer's point of view, I
think your last point was exactly right.  If anything, it should improve
productivity.  If we're ensuring that the contractors use the right
amount of water, as Don pointed out earlier, it means your cutter bits
live longer.  And if your cutter bits live longer, you have to stop less
and you're more productive.  So it has the ability to make you more
productive.

		MR. BODWAY:  Yeah, Tony Bodway.  From the contractor's perspective, I
see it's not a detriment.  You know, we try to gear for high production.

		MR. SCHNEIDER:  Right.

		MR. BODWAY:  And it has not changed our focus on that at all.  If
anything, we're probably a little more productive.  We have less things
to have to pay attention to during the course of the day.

		MR. SCHNEIDER:  Okay, thanks very much.  I appreciate your testimony.

		MS. WATSON:  Good morning.  Felicia Watson with the National
Association of Home Builders.  I have a few questions.

		JUDGE SOLOMON:  Spell your last name, please.

		MS. WATSON:  W-a-t-s-o-n.  

		JUDGE SOLOMON:  Go ahead.

		MS. WATSON:  Good morning, gentlemen.  I'm not sure which one of you
mentioned this.  I believe it was in the introductory remarks in your
testimony.  And I have not read your comments, so if it's already in
there, please forgive the question.  You had mentioned that in doing
this joint partnership, it took you a period of 10 years to come up with
the solution.  And you mentioned that it cost hundreds of thousands of
dollars.  Do you have any actual cost figures on how much it cost all of
the parties that were involved and participated in this partnership,
man-hours, costs for time allotments, testing, that type of thing?  Do
you have any cost data that you can submit for the record?

		MR. ACOTT:  As far as I know, I don't think we've done any accounting
on it.  Just, you know, the number of machines, the number of field
trials, the testing by NIOSH, it's just a very rough estimate.  Unless
you guys have done it?

		MR. BODWAY:  Tony Bodway.  We've talked about it.  We don't know what
that number is.  I don't know what the number is for my time at Payne &
Dolan.  I know that the commitment to the Partnership in 2003 by the
family that owns Payne & Dolan, we never talked about dollars.  It's all
about worker health and safety.  We have to protect the people that do
our work.  

		So we never said, you know, Tony you get $10,000 or $100,000 to work
on this partnership.  We just never sat down and put it down.  I know
the manufacturers --

		MS. WATSON:  I was just trying to get -- what I was trying to get from
you folks in your testimony was you had mentioned that it cost hundreds
of thousands of dollars over a 10-year period.  I was just trying to get
a sense of what you expended, time/effort-wise to develop this solution
to address this issue with silica.  But I understand that you don't have
the figures; is that correct?

		MR. FORE:  This is Gary Fore.  I'm sure if we had to, we could put
something to paper.  But just consider this.  The Marquette trials, that
went on for the better part of a week.  We had four machines shipped to
Marquette, Michigan.  Have you ever been there?  It's up near the
Canadian border, about as far north as you --

		JUDGE SOLOMON:  I'll take administrative notice where it is.

		MR. FORE:  Shipping machines from different parts of the country, the
freight is incredibly expensive.  Not only that, Tony and others had to
expend time to operate these machines while all the testing was going
on.  NIOSH, alone, had probably 8 or 10 people on these sites for the
whole duration.  There was Marquette; there was Shawano.  There were
like five or six trials between 2003 and 2006.  Then there was Marquette
and there was Shawano.  The list goes on.  You get my point.  	My time,
I mean, and Don, we were on these sites, you know.

		MS. WATSON:  How many workers -- how many employees of these various
organizations would you estimate were participating in this study?

		MR. FORE:  On a particular occasion?

		MS. WATSON:  I'm just trying to get a sense.

		MR. FORE:  Yeah.  I'm going to -- Tony, maybe you have a better sense?

		MR. BODWAY:  Tony Bodway.  In a normal daily operation or one of our
test sites?

		MS. WATSON:  During this testing procedures.  That's what we're
interested in.

		MR. BODWAY:  At Shawano, we probably have 75 people on site, you know,
including all of the partners, the trucking companies, so on and so on. 
And it varied.  Marquette might have been, we might have had 15, 20 up
there during those trials.  So if this varied by site, what had to be
controlled, what had to be done to complete the work.

		MR. FORE:  Think about this.  You had to line up trucks, truck
drivers.  We had representatives from all partners, Emmitt Russell,
IULE, he was out helping us stripe the runway in Marquette, you know. 
So you get the point.  

		We could add it up, probably, but it doesn't take long to underpin
thousands of man-hours, thousands of dollars.

		MS. WATSON:  Okay.  All right, thank you.

		MR. ACOTT:  I'd just add, for us, recycling is our life blood.  And if
we couldn't recycle, we couldn't be competitive, and there would be an
enormous disposal issue that we would have with all the pavement.  We're
probably a $50 billion a year industry or more.  We've got 250,000
workers.  So those are high investment, you know, by this group, it
benefits a lot of people.  So it was more than justified.

		MS. WATSON:  All right, thank you.  And then one last question based
on the previous person's question.  Just for clarification, is there a
water collection system?  When you use the water as a suppression
mechanism for dust, is there a procedure that is used that collects the
water to prevent that runoff?

		MR. FORE:  There is no runoff, period.  Consider this, what we're
talking about is an aerosol that's designed to impact a particle.  NIOSH
helped us understand that, the speed of the particle, the size of the
particle, the aerodynamics, the pressure of the water, all of that
stuff.  We're not talking about a lot of water.  Tony, how much water do
you actually use in a period of time?

		MR. BODWAY:  Tony Bodway.  Typically, the milling machines hold
anywhere from 15 to 2,000 gallons.  They, in the course of a 12-hour day
or a little bit longer, may go through four fills.  It just depends on
the work.  The trucks that haul the water to us hold 4,000 gallons.  We
might go through three fills, four fills.  It depends on the shift time.
 

		But to the point of when the gentleman was up here and asked the
question about the runoff, on jobs that we refer to as mill-and-fill,
where we have the DOT specs that we have to mill it out, clean it, put
tack down, the bonding agent, and put the new asphalt down in six or
eight hours.  When we go through there, typically, on any milling job,
is there a little -- there is no running moisture.  It might be damp
during the day.  It's going to dry out right away.  So there is no
excess water.  

		It's like Jeff said early on more water is not as good, less water is
better.  So it's using flows and pressures and nozzle location to use
the minimum amount of water to complete -- to suppress the dust.

		MS. WATSON:  So any water that gets down to suppress the dust, for
clarification, does not get recollected by another machine?  I'm just
trying to --

		MR. FORE:  Gary Fore.  It actually goes with the material into the
truck.

		MS. WATSON:  Got you.

		MR. FORE:  And that goes to the holding site.  And there is no runoff.
 No runoff.

		MS. WATSON:  Okay, thank you.

		JUDGE SOLOMON:  Okay, we thank you.  So OSHA is going to ask some
questions.  But I just want to say we have three additional witnesses --
groups, rather, and each of those were allotted about 10 minutes.  So
OSHA is going to ask some questions.  We typically would break for lunch
at around noon.  And we may not make it.  It will probably be about
either 12:15 to about 12:30 before we would break for lunch.  And if
that's the case, then we would set back the afternoon program for a half
an hour.  

		So, Ms. Kramer, you are staring at me.

		MS. KRAMER:  Merely paying close attention, Your Honor.

		JUDGE SOLOMON:  Okay.  So how long do you estimate the OSHA
questioning would take?

		MS. KRAMER:  Approximately 15 minutes, Your Honor.  

		JUDGE SOLOMON:  Okay, let's just go with it right now.  Go ahead.

		MS. KRAMER:  Thank you.  

		JUDGE SOLOMON:  So who is going first?

		DR. COBLE:  I will, Your Honor.  I'm Joe Coble.

		JUDGE SOLOMON:  He's Dr. Coble, actually.

		DR. COBLE:  Yes.  And I very much appreciate you folks being here
today to present some actual measurement data.  You know we've heard a
lot of talk this week, but it's good to see some actual numbers up there
to substantiate your testimony.

		You have brought up Table 1, and that is something that OSHA is very
interested in getting right.  And you have suggested that we put in an
entry called Half-Lane and Larger Asphalt Milling Machines.  Now, are
there milling machines that are smaller than half-lane that are used
commonly?

		MR. RICHMOND:  Yes, there are.  As a manufacturer, we typically
classify equipment half-lane and up, less than half-lane.  That is
correct, there are smaller machines.

		DR. COBLE:  And these smaller machines, has there been any attempt to
look at the control technology applied to them?

		MR. FORE:  The answer is no.  You have to understand, for instance, a
small machine that runs around a manhole, it may be a very short
duration.  It's just a different context for industrial hygiene
purposes, if you understand, in terms of time weighted average
considerations, that sort of thing.

		DR. COBLE:  Right.  So your companies use those machines, but they are
not being requested to be listed on the table?

		MR. FORE:  That is correct.  Our request is half-lane and larger
asphalt -- drivable asphalt milling machines.

		DR. COBLE:  Where the proven technology exists.

		MR. FORE:  Right.  

		DR. COBLE:  And the other ones, it's not that they couldn't get there,
it's just not demonstrated.

		MR. FORE:  Right.  And a lot of them aren't drivable, so the word
"drivable" is kind of important.

		MR. RICHMOND:  Drivable, yeah, to ride it, right.

		DR. COBLE:  And then with respect, we heard about this, you used the
same type of machine on concrete.  It could be used for concrete, the
same machine?

		MR. RICHMOND:  Yes, it can be.  It's a relatively minor percentage of
the work that we would see on a typical machine.  But, yes, contractors
can use that machine on concrete.

		JUDGE SOLOMON:  That was Mr. Richmond, by the way.

		MR. RICHMOND:  I'm sorry, Jeff Richmond.

		DR. COBLE:  And so these controls conceivably could be used on
concrete, but again we just haven't done the measurements in order to
verify that they would get down below the PEL; is that correct?

		MR. FORE:  That is correct.  You have to understand that there is a
different context for concrete and asphalt.  Asphalt it's called
mill-and-fill.  We call it the sustainable pavement because we take off
a couple of inches, one or two inches, we go back with new asphalt, and
you've got a new road.  It's not the same context in asphalt -- in
concrete, I'm sorry.  This is Gary Fore, by the way.

		DR. COBLE:  Okay, I appreciate that.  It gives us a clear rationale as
why we would do it that way.

		MR. FORE:  Right, exactly.  

		DR. COBLE:  Now, with respect to the types of controls that would be
required, it sounds like the manufacturers are developing some sort of
standards or specifications.  Is there ASTM sort of specifications for
this type of thing that you could reference on a table?

		MR. RICHMOND:  At this point, what we did is based on the early
testing of the Terex machine and the results that NIOSH got from -- Jeff
Richmond, I'm sorry -- got on that machine, basically, we used that as
sort of the original footprint.  To say that there is a written spec out
there, I don't know that there is.  But, basically, every manufacturer
is going to design a ventilation system, and we all will be tested by
NIOSH to ensure that we're getting the same level of proficiency
starting with the tracer gas and then the field test out.

		DR. COBLE:  Right.  So, one of the issues is the level of
specification on Table 1.  We don't want to specify an exact flow rate
or air volume in that it might not be applicable to all situations, but
something to the effect that it would follow manufacturer's
specifications?

		MR. FORE:  I think it would follow the engineering, you know, NIOSH
engineering control guidelines.

		DR. COBLE:  And then there have been issues regarding visible dust. 
When this system is operating the way it is intended to operate, is
there visible dust?

		MR. FORE:  Not surrounding the machines.  I've been out there, and you
don't see dust surrounding these machines, not when they are effective
controlled now.

		DR. COBLE:  A question regarding the air monitoring that was done by
NIOSH with respect to what percentage or how many hours in a shift does
the machine actually operate?  So when you get out to a job, how much --
how many hours do you get out of say, for example, an eight-hour shift?

		MR. BODWAY:  I don't know if I understand the question.

		MR. FORE:  He's saying what's the occupancy rate?  If you have an
eight-hour shift, what percentage of that eight hours do you operate?

		MR. BODWAY:  Tony Bodway.  I would say, again, it depends on the job. 
I would probably say somewhere around 80, 85 percent.  You know
sometimes you're waiting for trucks, you're stopping to water up, you're
checking the bits on the cutter and things like that, so I would say 80
to 85 percent.

		DR. COBLE:  And that would be then optimal?  You'd want to utilize it
as much as you could, and so that would be a productive day then if
you're going to do that.

		MR. BODWAY:  Yes, correct.

		DR. COBLE:  And when it's not in operation, is there any source of
silica exposure when the machine is not actually operating that you're
aware of?

		MR. FORE:  No.  The source of silica is during the operation.  You can
understand this cutter, this drum biting into the pavement, that's where
the dust is generated.  When the machine is not running, no dust, no
silica.

		DR. COBLE:  And the dust, it ends up in the trucks slightly dampened. 

		MR. FORE:  Right.

		DR. COBLE:  And so it's not blowing all over the place as soon as you
shut the machine off.

		MR. FORE:  Right, right.  Yeah, our breakthrough was no dust, no
silica, you know.

		DR. COBLE:  And I guess my last, if I could just ask one more
question, you said there was a breakthrough once you realized that the
technology that's used in mines was transferable.

		MR. FORE:  Right.

		DR. COBLE:  And so there was a technology out there that was proven to
work in mines and, in this case, it actually worked on a similar type of
machine, even though it wasn't originally intended.

		MR. FORE:  Absolutely.  There were a couple of breakthroughs,
actually, and a big breakthrough.  One was that whole concept that there
is a science around particle impaction, particle size, velocity of an
aerosol droplet.  The design, you can visualize the design that the
nozzle has and the pressure at which it is operating has an impact on
the aerosol droplet size and speed, and so forth.  There is a science
there.  That was one.

		Second was that NIOSH Pittsburgh had the same problem we had.  Using
traditional industrial hygiene data, personal hygiene, it was difficult
to go make a change on the machine and get the feedback you needed to
see what you had accomplished.  They had developed a real-time
respirable silica dust monitor that we mounted at 10 places around these
machines and we designed the statistical protocol to use those.  And at
the 95 percent confidence level, we could see the change.  That was the
breakthrough.

		DR. COBLE:  Just to follow up, it was a respirable dust or was it --

		MR. FORE:  Respirable silica dust.

		DR. COBLE:  But it didn't specifically identify the silica.  It just
measured dust; isn't that correct?

		MR. FORE:  It measured respirable dust, but the silica content was
measured in the dust.

		DR. COBLE:  Right.  Right, so these real-time monitors, they're
measuring the respirable dust.

		MR. FORE:  Correct.

		DR. COBLE:  And that's really what you were worried about controlling
in the first place.  It may contain 2 percent, 20 percent, whatever.

		MR. FORE:  Right.

		DR. COBLE:  Just control the respirable dust, and these monitors
allowed you to do that.

		MR. FORE:  Right.  And if you can visualize, again this is Gary Fore,
if you can visualize a machine as it is normally designed, we would make
a change.  We would compare the normal design -- we did repetitive
trials.  You do normal design maybe for 10 minutes, and then you go to
the new design for 10, and we do this repetitively, repetitively, to get
statistically valid data.  And that was the breakthrough.  We were able
to see what we had done.  And that's where the B2 configuration fell out
as a winner.

		DR. COBLE:  Right.  Okay, thank you very much.

		MR. KUCZURA:  My name is Greg Kuczura, and I want to ask it was in
response to a question from before, you stated it costs $50,000 a year
for maintenance.  And I wanted to ask if that included or if that was
for the entire machine or just dust maintenance?  From my understanding,
that would be for the entire machine and the dust maintenance.

		MR. BODWAY:  Tony Bodway.  Yes, that would be for the entire machine.

		MR. KUCZURA:  Okay.  Oh, there is -- I have a question about something
that you submitted.  It was in regards to the TWA personal hygiene
survey of the crew and operations cost in the range of $1,500 to $2,000.

		MR. FORE:  Correct.

		MR. KUCZURA:  What do those costs consist of?

		MR. FORE:  That would be for the consultant to come out and do
full-shift sampling.  And typical, you know, full-shift sampling, say an
eight-hour full-shift day would be in that cost range.

		MR. KUCZURA:  So that's per employee then?

		MR. FORE:  No, that's per site.

		MR. KUCZURA:  Per site, okay.  Because I was going through the
submission, and for the total, it says 68.3 million tons of the asphalt
pavement per, in the total for 2012.  And then the average milling job
produces 2,500 tons.  So then dividing that into the 68.3 million, you
came up with 27,000 asphalt milling jobs completed annually.

		MR. FORE:  That was the arithmetic as I recall it, yeah.

		MR. KUCZURA:  And then that was multiplied by the cost --

		MR. FORE:  Right.

		MR. KUCZURA:  -- of the $1,500 to $2,000.

		MR. FORE:  Yeah, exactly.

		MR. KUCZURA:  So were you assuming that each employee would fall under
the standard?

		MR. FORE:  We were assuming that each employee surrounding that
milling machine, there is typical a guy on top and one or two on the
ground, yes, absolutely.  All of our data, as you have seen, operator,
ground person, one or two ground people, yes.

		MR. KUCZURA:  So they're all part of the crew, and they're all exposed
to the silica.

		MR. FORE:  Yes, exactly.

		MR. KUCZURA:  Okay, thank you very much.

		JUDGE SOLOMON:  Anything else?

		MR. PERRY:  I have a couple of questions, if I may?  This is Bill
Perry.  First, just let me commend NAPA and the members of the
Partnership.  This looks like it was really an epic effort and very
successful and fruitful, so we're really happy that you all undertook
this and made it work.

		So I just had a question.  I think if I heard or read the new machines
that will be equipped with both the ventilation and the water systems
will be available in 2017?

		MR. RICHMOND:  Yes.  Our commitment as an industry is all the
half-lane and up machines will be equipped as standard equipment by no
later than January 2017.

		MR. PERRY:  Okay.  Are some available now?

		MR. RICHMOND:  Yes.

		MR. PERRY:  So they are already starting to be sold, okay.

		MR. RICHMOND:  Yes.

		MR. PERRY:  On the retrofit kits, do you have a sense of the machines
that are out there now, what proportion do you think have been
retrofitted with the water system?

		MR. RICHMOND:  Jeff Richmond, again.  Bear in mind what Don talked
about earlier, all the machines out there today have some type of water
system, so that's --

		MR. PERRY:  Understood.

		MR. RICHMOND:  -- a standard feature.  As far as bringing it up to
what we call the standard of the B2, that's a somewhat standard system
on our products, so we would say a very high percentage.  On some of the
older machines, it would probably be a lower percentage.  To tell you
today exactly what percent have that, I couldn't give you a straight
answer on that.

		MR. PERRY:  Okay.  Anyone else want to hazard a guess, educated guess,
of course?

		MR. FORE:  I think we have to look at where we are.  You've seen that
we have the best practices for operation of the water system.  Our whole
thrust, at this point, is to encourage rapid movement toward
retrofitting the optimal water system and to have our audience
understand that ventilation controls in addition to that are
forthcoming.  

		I don't think that we'll ever get to the point where we give you an
exact percentage.  You can understand with how many contractors do we
have out there, Mike?

		MR. PERRY:  Sure.

		MR. ACOTT:  I was going to say I think there would be a clear
incentive for contractors to go the water spray versus putting on
ventilation equipment, you know, masks.  So I think that, in itself,
you'll find contractors will move very quickly to retrofit their
equipment.

		MR. RICHMOND:  Jeff Richmond.  I want to add one other thing.  One of
the things we're doing and I think most manufacturers will do this, we
made the so-called B2 spray configuration, we made that design basically
public record.  We have shared it with the other manufacturers.  We sent
mailers out to our customers and said here is an optimal system. 

		We have some very resourceful customers that do a lot of their own
maintenance.  And they will, in fact, go out and retrofit their machines
without the need of calling the manufacturer, because again it's not
terribly complicated and the design is out there.  It's public.

		MR. PERRY:  Okay.  Has that design been placed -- have you provided
that in our record, do you know, or could you?

		MR. FORE:  We have.  It is referred to as the B2 design.

		MR. PERRY:  Okay.  And you were about to say something?

		MR. FORE:  Yeah.  I think what is important here is that NAPA and
their partners are on an educational plane to explain to those
contractor members who are operating these machines that they're dealing
with a known human carcinogen.  And it is the right thing to do; the
smart thing to do is to move quickly.  We are protecting our workers.

		We have, you know, NAPA grew out of kind of a family-owned kind of
setting.  We're changing as larger companies, international companies
buy some of those up.  But the bottom line is we have a lot of sons and
daughters still working this industry.  Don't we, Tony?

		MR. BODWAY:  We do.

		MR. FORE:  He's got one working.  So there is, I don't know quite how
to say it, but there is this attitude on the part of our contractor
audience in general that listens to a kind of principle that says the
right thing to do and smart thing to do, let me understand it and we'll
take care of it.  I just wanted to interject that.

		MR. BODWAY:  Tony Bodway.  You know early on in my presentation, I
said that in 2008, we had 28 or 34 milling machines, I'm sorry.  As we
prepared for the downturn with the economy and started to move off the
older machines, and then as the economy kind of flattened out and
started to come back, that we're replacing machines.  The 34 is made up
of a combination of the smaller machines, some less than half-lane, some
larger than half-lane.  

		But I can say that out of the 14 milling -- the current newer milling
machines that we have, 12 of them have the ventilation system on them. 
We firmly believe in that.  And that, I mean that comes right from our
owner.

		MR. PERRY:  Okay, very good.  That's all I have.  And, again, thank
you for appearing today for your testimony.

		MS. KRAMER:  Your Honor, I just have a couple of questions.  

		First, I wanted to check and see if you all have any sense of the
average tenure of the workers who work on the road crews?  And I
understand that's a big ask, since you have more than 850 member
companies.  Just any sense of it?

		MR. BODWAY:  Tony Bodway.  I can tell you right now that the people in
our milling division and people that I have put in places, in
supervisory since I've moved beyond that role now, which I did for 20
years, have been with the company anywhere from 35 to 40 years.  And
some of those people have been in the milling division that whole time.

		The infancy of milling was really back in the early '80s, '82, '83,
and as it grew, when I took over the milling division in 1986 or '87, I
mean at that time we owned 7 milling machines.  And when I was put in
charge of it, then it was up to me to make it grow and we grew it.  

		So our company is well positioned for people.  We just had a lady
retire that was there 42 years.  We had a mechanic retire that was there
50 years.  I've been there for 32.  We're very proud of our company. 
And so the tenure for our people is very long.  And like Gary said, we
have our family comes there.  My three sons have passed through Payne &
Dolan doing something.  My daughter is now graduating from college and
works at Payne & Dolan.  She's been there eight years.  So it's a very
family-driven business, and we feel that we get the best from our
employees by doing part of that.  I think our average workers are
probably somewhere, the age would probably be about 46, 48.

		MS. KRAMER:  Would anybody else like to speak to that, the average
tenure at your company or companies that you know of?

		MR. RICHMOND:  Well, again, we're on the manufacturing side, so the
number of people in our company that physically go out and work with the
milling machines is fairly limited.  But, again, like Tony, we are a
family company, and 35, 40 years is not unusual at all.  We take a lot
of pride in that.

		MS. KRAMER:  Thank you.  Another question, you mentioned your training
program a couple of times throughout your testimony.  I'm not sure
whether we have a copy of that or if you would be willing to provide it
to the record?

		MR. RICHMOND:  Jeff Richmond.  We do a variety of training.  We do a
regimented series of training classes at the factory every winter. 
Contractors are invited to come in.  And that's typically a three-day
program.  So I don't know how much of that by way of record you really
want, but certainly part of that program is, of course, the maintenance
of the water system.

		MS. KRAMER:  We would be interested in that, if you wouldn't mind
submitting it.

		MR. BODWAY:  Tony Bodway.  Just on that, I think, you know, now with
the success of the water spray and the ventilation system, and realizing
that we are going to move forward with that, and I made it perfectly
clear in Cincinnati last fall, probably September, that the
manufacturers were going to have to get up to speed on these training
programs, how are they going to deal with it, what is the documentation.
 

		You know there are programs that manufacturers use that they will send
out a whole training packet, DVDs, all the brochures, a quiz, and we do
it at our company where that comes in.  And everybody on the crew has to
go through the training.  They have to take the test.  They have to sign
that they did it.  And that documentation is sent back to the
manufacturer.

		That's what's going to happen with all of these manufacturers. 
They're going to have to come up and relatively quickly because this is,
you know, again we've got to get this thing moving and get their
training programs put together.  

		I will be going home here at the end of the week, and I know that our
training at our facility is going to be taking place.  And I have asked
that I come into those training sessions for our people that work around
milling machines, and I have sat and given these presentations to our
own people.  So I have to make sure that the people who supervise those
road mill people now are fully aware of what's going on, what to expect
from manufacturers.

		MS. KRAMER:  Thank you very much.

		MR. FORE:  This is Gary Fore.  Just one more point.  I think all of
the manufacturers have training centers.  You should see Jeff's training
center.  It is professionally done.  I was just there on two occasions
in the past couple of months to help Jeff out with some of his training.
 I can speak factually that there is a dedicated intense training
program that takes these machines and turns them inside and out, milling
machines included.

		JUDGE SOLOMON:  Okay.  If there is nothing else from this panel, you
will exit stage right.  We will have the American Road and
Transportation Builders Association take your place.  And we'll go off
the record for five minutes.

		(Off the record at 11:22 a.m.)

		(On the record.)

		JUDGE SOLOMON:  We're back on the record.  The American Road and
Transportation Builders Association gets 10 minutes, so would you
introduce yourselves, please?

		MS. CONNOLLY:  Not a problem, Your Honor.  I'm Una Connolly, Vice
President of Safety and Environmental Compliance.

		MR. SANT:  And I'm Brad Sant, Senior Vice President of Safety and
Education. 

		MR. KENNEDY:  I'm George Kennedy.  I'm the Vice President of Safety
for the National Utility Contractors Association.

		JUDGE SOLOMON:  Okay, you were going to have Will Brown with you; is
that right?

		MR. KENNEDY:  I don't -- I didn't know that.  I just saw that on the
schedule today.  So Will is not here.

		JUDGE SOLOMON:  Okay.  So you are going solo.  So who is going to
start?

		MS. CONNOLLY:  I will, Your Honor.

		JUDGE SOLOMON:  Okay, go ahead.

		MS. CONNOLLY:  Thank you, Your Honor.  ARTBA represents more than
6,000 members nationwide, involved in all sectors of the U.S.
transportation design and construction industry.  Our membership
includes private and public sector members that are involved in the
planning, designing, construction, and maintenance of the nation's
roadways, bridges, ports, airports, and transit systems.  The industry
we represent generates more than 300 billion -- 380 billion annually and
sustains more than 3.3 million jobs.  

		I would like to begin by thanking OSHA for the opportunity to speak
today and today's public hearing.  We appreciate OSHA's efforts to
protect the health and welfare of our members and all construction
workers.  

		Let me say at the onset that we are not here to say that OSHA should
not update its silica standard.  Rather, our comments are geared toward
making a standard that is workable in our industry.

		It is important to note that the transportation construction industry
is highly transient with projects changing on a daily or weekly basis in
array of different environmental conditions.  You will most likely see
our construction workers as you drive on the highways and streets
working to build or maintain our nation's roads and bridges.

		It works -- it is work that begins in one location on any given day
and may be found miles away from the initial site the following day. 
Likewise, the materials we are moving, cutting, breaking, constructing,
etc., can also change daily, even hourly, as we transport and deposit
tons of earth, asphalt, concrete, and rock.  Sometimes, these materials
contain crystalline silica and sometimes they don't.

		As has been noted several times during these hearings, silica is
ubiquitous and can be found in nearly all construction materials and
products.  Moreover, respirable crystalline silica can be in the ambient
air and, thus, even when workers are not cutting, drilling, sawing, etc.
the material, they may be potentially exposed above the action level and
potentially even the proposed PEL when they are working at a
construction work site.

		What is significant is that crystalline silica can be found in the
natural environmental workplace.  Thus, the exposure level of employees
on each shift, for each job classification, in each work area could vary
immensely on a given day, location, or project.  By the nature of the
transportation construction industry's work, visible dust will be nearly
impossible to eradicate.

		Some of the challenges we face in complying with the proposed PEL and
action level result from the nature of our business.  We can sample the
air and products we are using one day and learn that silica is not
present.  But the next day we will find ourselves in another location
using different materials where it might be present.  Yet, we will never
know what our exposures on a given site will be until sometime after the
sample is taken, due to the time lag between sending samples to the lab
and getting the results.  By the time the companies in this transient
industry provide air samples to the lab for analysis and receive the
results, workers have moved onto another project or task and are no
longer in the environment where testing occurred.

		Furthermore, under the auspices of the proposed rule, OSHA has stated
that laboratories have two years from the time the rule is finalized to
come into compliance and allow testing procedures to catch up with the
new standard, while employer obligations will begin at about 180 days
after publication.  All of these facts will make compliance to the rule
as proposed very difficult for our industry.  

		ARTBA is also concerned that the current analytical methods and the
capabilities of the labs to complete analyses that are reproducible and
consistent are not good enough to measure the 25 or 50 as required by
the proposed rule.  OSHA has stated that it believes that the good labs
can do it, which may be a comforting reassurance but we do not know how
our members will be able to determine the competency of a lab, who is
good and who is not.  We would urge OSHA to carefully address the issues
of reliability of exposure measurements for silica and laboratory
requirements, especially at these low levels.

		In reviewing OSHA's data contained in the NPRM, along with data
compiled from other sources, we were somewhat perplexed about the timing
for this rulemaking effort.  OSHA's issuance of a proposed rule on
crystalline silica comes at a time when silicosis mortality has
significantly declined.  According to the CDC, the silicosis mortality
in the U.S. has significantly declined by 93 percent from 1968 to 2007. 
And the CDC data indicates that silica mortality is steadily declining
under the current PEL.  

		NIOSH similarly report that there has been a steep decline in silica
mortality rates, noting that one of the main factors for such a decline
is that many deaths in the early part of its study periods occurred
among persons whose main exposure to crystalline silica dust probably
occurred before the introduction of national standards for silica dust
exposure that were established by OSHA and MSHA.

		Moreover, many of the studies OSHA uses for the proposed rule are
based on exposures from the 1930s to the 1960s, before the current PEL
was implemented, and arguably when exposure levels were much greater
than those found today.

		OSHA is also considering promulgating requirements to those employers
that initiate an initial medical examination due to potential silica
exposure.  One of those requirements is the use of the NIOSH certified B
reader.  ARTBA is concerned that should employers determine that medical
surveillance is necessary, the dearth of NIOSH certified B readers in
the United States will potentially cause a gross misinterpretation and
misclassification of x-ray results.

		As OSHA recognizes, there are only 242 certified B readers in the
United States as of February 2013.  NIOSH has noted that if there is
excessive -- sorry, NIOSH has noted that if there is excessive
interpretations between different readers, reader variability can reduce
the quality and quantity, quality and utility of the data.  

		Bias may also occur when a reader has information concerning the
radiograph being classified, including information regarding the worker
such as the type of exposure or the type of job that he does by
consciously or unconsciously influencing their classification.  OSHA
should consider how new and existing B readers are monitored to minimize
bias or misinterpretation of the data.

		On a note regarding job function, OSHA has not raised the specter of a
greater hazard in regards to respirator use.  ARTBA agrees with OSHA
that all possible engineering controls be used and respirator use should
be the last resort method of protection.  But that said, workers in the
transportation construction arena work outdoors during some of the
hottest months of the year.  When coupling the necessity of strenuously
working in high heat, working amongst heat generating materials like
hot-mix asphalt, and the potential necessity of wearing a respirator,
there is a real danger to human health by heat exposure and heat stroke
that will likely exceed the danger caused by possible silica exposure.

		In terms of the economic analysis presented in OSHA's proposed rule,
ARTBA has several concerns.  The economic analysis refers to a number of
sources and materials, source materials and data.  For example, as noted
on Page 56361 of the Federal Register, OSHA is unable to match up cost
data and compliance information at the firm or fit facility level.  As a
result, the true per-company cost of meeting the proposed standards is
unknown.  In averaging the cost of compliance across all workers, this
could potentially understate the cost of compliance for businesses that
could not meet the new standard.

		ARTBA also asks OSHA to revise its analysis to include the most recent
data available to provide a more accurate economic impact assessment. 
For example, OSHA refers to the 2006 U.S. Census Bureau statistics of
U.S. businesses for characteristics of the industries affected by the
proposed standard in the Table 8-3.  The average profit rates for Tables
in 8-14 and 8-15 are based on the Internal Revenue Service Corporation
Source Book for 2000 to 2006.  These are two examples where more current
data is available.

		There have been significant changes in the construction industry,
including the number of businesses and value of construction work since
the economic downturn in 2008.  Factoring in some of these economic
realities would provide a more accurate analysis of the per-industry
cost of OSHA's proposed silica rule.

		We look forward to working with OSHA towards achieving a healthier
workforce through regulatory efforts with harmonized occupational health
and safety and our nation's infrastructure needs.  Thank you for your
time, and we'd happy to answer any questions.

		JUDGE SOLOMON:  Okay, that's exactly 10 minutes.  Mr. Kennedy?

		MR. KENNEDY:  Thank you.  My name is George Kennedy.  I'm a Vice
President of Safety for the National Utility Contractors Association and
have been in that position for 25 years.  I have worked with NUCA and
OSHA for these -- during this period of time.  First I'd like to thank
OSHA for giving us this opportunity to testify and make our opinions
known.

		NUCA members are concerned that this proposed rule is unreasonable,
burdensome, and unnecessary because OSHA has not adjusted -- has not
adequately demonstrated that changes to the standard in the PEL are
needed, reasonable, technologically and economically feasible.  NUCA
believes this rule will not significantly reduce the current number of
reported cases.

		As most of you probably know, the CDC reported the number of reported
cases of silica-related deaths at approximately 1,200 in 1968, and
approximately 150 in 2002, and then dropped it to approximately 100 in
2007.  And the downward trend continues.

		We believe this is because industries have become more aware of the
hazard researched and implemented appropriate controls for their type of
work, and educated workers with the help of NIOSH, OSHA, safety
professionals, and other resources.  

		OSHA predicts that this rule will prevent approximately 600
silica-related deaths per year.  But how is this possible if the CDC is
reporting less than 100?

		We would also like OSHA to identify how many of these deaths are
construction related and what segments of the industry are they being
reported?  Why is OSHA proposing this burdensome regulation without
determining specifically what types of operations or the trades, for
that matter, are causing reported cases and how many workers are
actually exposed?

		I had one contractor from Nebraska approach me recently at our
convention, and he asked me if OSHA has ever tested the ambient air in
states like Nebraska while he reminded me that that's America's dust
bowl.  He pointed out that some days you just cannot keep the dust from
blowing around.  He believes OSHA has not taken into consideration the
varying weather and climate conditions that exist in the various regions
of the country and how ambient air can be affected.  He also pointed out
that earthmoving operations in dry climates are considerably different
than those in damp climates.

		NUCA members are routinely providing safety training and education to
their employees in both English and Spanish.  In most situations where
dust is present, utility excavators are requiring the use of wet methods
and/or in some situations respirators to control the dust exposure, and
these methods of control appear to be working.  OSHA has not
demonstrated otherwise as it relates to utility and excavation
construction.

		The NPRM says that construction employers can use Table 1, and the
employers shall be considered to be in compliance.  Well, let's assume
that a NUCA member decided to use Table 1 in reference to using heavy
equipment during earthmoving.  In order to be in compliance, the
contractor would have to have at least three or four pieces of heavy
equipment including an excavator, front-end loader, dozer, and possibly
compactor that are fully enclosed and sealed with pressurized cabs using
HEPA filters.  Does OSHA realize that the majority of heavy earthmoving
equipment in existence in this country is not set up as required and
that to retrofit this equipment would cost approximately $5,000 to
$15,000?

		In addition, one of the things that concerned us is that OSHA hasn't
defined what they mean by heavy earthmoving operations.  Does that mean
any time we use an excavator, front-end loader, dozer, scraper,
compactor, skid steer, or even a backhoe?  They haven't defined this and
clarified it.  So if we are doing site development, is that heavy
earthmoving?  What about if we're just digging a trench to lay some
pipe?  So we are concerned that this hasn't been clarified and OSHA
hasn't looked at these situations.

		So let's assume that the contractor has the equipment that meets the
requirements of this table.  His company will not be in compliance
without performing air monitoring to see if the silica levels are above
or below the PEL because there are two to four skilled and unskilled
laborers and a foreman working on the same job site near the equipment
performing other tasks.  Therefore, using Table 1 does not place the
contractor in compliance because it falls short of the proposed
requirements to protect workers who are not equipment operators.

		Obviously, the only solution the NPRM provides is air monitoring,
exposure monitoring, to determine the exposure level.  But the results
of exposure monitoring will not be available for at least 5 to 10 days,
and by then our contractor is miles down the road or on another job
where the soil and dust conditions may significantly differ from the day
the air monitoring was performed.  In reality, this air monitoring or
exposure assessment performed that day would be worthless.

		The NPRM frowns on the use of respirators unless all other means of
controlling dust have been exhausted.  We don't have a problem with that
because we believe the use of respirators should be a last resort. 
However, there are times when respirators are going to be the only
answer, because we are in the construction industry, and especially us
utility contractors, similar to my -- to the ARTBA, we are constantly in
motion.  We are mobile.  We are never staying in one place for very long
and it is very hard to keep track of whatever your employee is doing. 
Every worker, especially the laborers, are doing many different tasks.

		I've just got to go to the other side of my notes here.  Now, one of
the things, for example, that we are concerned about is related to heavy
earthmoving equipment.  This equipment, as I said earlier, hasn't been,
you know, they haven't clearly defined what they mean by heavy
earthmoving.  I mean there is all types of equipment out there.  A big
excavator moves a lot of dirt.  A scraper moves a lot of dirt.  What
about a skid steer, do you consider that a lot of dirt?  So once again
we are still concerned about this situation.

		Medical evaluation is another area of concern.  Having to get medical
evaluations, in NUCA, for workers who are exposed to above the PEL for
more than 30 days is a difficult task to determine when it is necessary.
 NUCA members believe and our concern that they will have to provide
medical evaluations for each and every employee that comes to work and
plans to work in the field because we just don't know.  We don't know
what they are doing each day.  And so we are going to have to assume
they are exposed, and we're going to have to have medical evaluations
performed.

		I called around to some of the various different industrial hygienist
testing medical facilities where they test pre-hire employees and such. 
And in talking to them, I found out the cost of what it cost for a
medical evaluation, and it runs between, on average, about $400 to $500
per person.  So a small company, a small NUCA member with maybe 20, 30
employees would have to lay about $15,000 initially right up front.  And
then with a 64 percent turnover, which our industry we don't believe is
that high, but even if you said 30 percent or 40 percent, we're going to
have to continuously provide medical evaluations for our workers as they
start work prior to working, because again we don't know when and where
they are going to be exposed or will they be exposed at all.  So this is
a concern.

		Exposure assessment, another issue.  How can we rely on a table that
does not -- Table 1, when it only addresses the operator.  What about
the laborers?  We are concerned about them, and we are doing everything
we can to protect them now by using wet methods where possible, which
are not always feasible, by the way, because of various different
reasons, for one trucking in water in some situations.  Our workers are
not always near a fire hydrant or a stream or someplace else where they
can get water, so you have to truck it in.  And they do, but it is a
very expensive proposition which we believe that OSHA hasn't considered.
 So, anyway, they're out there, and they are bringing in water to wet
cut.

		Now, what about the mud that is created, which runs into the streams. 
We have to comply with the Clean Water Act.  We are not allowed to let
the water run off into sewers, storm drains, streams, navigable
waterways.  It's an environmental issue that is required that we have to
address.  So that's another issue.

		The other issue with water is I live in the north country.  Right now
you go to my house and you spray water on the ground, you're going to
have an ice skating rink, and that creates not only an issue for
employee safety and health, but it also affects the traffic that's
passing by.

		JUDGE SOLOMON:  How much more do you have?

		MR. KENNEDY:  A couple of minutes.

		JUDGE SOLOMON:  Okay, go ahead.

		MR. KENNEDY:  So, anyway, basically, that's what we are concerned
about.  At this point, we appreciate what OSHA is trying to do.  We know
we are in line with them and we want to protect our workers, also.  And,
lastly, bear with me just one -- that's about it, actually.  With that,
I'll stop.  Thank you.

		JUDGE SOLOMON:  Okay.  So how many people in the audience want to ask
questions?  Okay, Mr. Schneider, you're at the lowest.  And then one
other hand back there? 

		UNIDENTIFIED SPEAKER:  At the lowest?  I don't know how to take that,
Scott. 

		JUDGE SOLOMON:  So the other person, would you please get in line?

		UNIDENTIFIED SPEAKER:  And Dr. Mirer, too.

		JUDGE SOLOMON:  Oh, okay.  Is this a tag team?

		UNIDENTIFIED SPEAKER:  No, no.

		MS. KRAMER:  Your Honor?

		JUDGE SOLOMON:  Yes?

		MS. KRAMER:  Just for the record, I wanted to check to see if either
Ms. Connolly or Mr. Kennedy had a written copy of their statement that
they would like to submit to the record.

		JUDGE SOLOMON:  Right.

		MR. KENNEDY:  I can get it to you, but I have actually submitted
comments to the record, so --

		MS. KRAMER:  Certainly.  We have those.

		MR. KENNEDY:  -- pretty much a summary of that.

		MS. CONNOLLY:  Yes.

		MS. KRAMER:  Okay.  Your Honor, in anticipation of those statements,
I'd like to reserve Hearing Exhibit Numbers 67 and 68, 67 for
Mr. Kennedy's testimony and 68 for Ms. Connolly's.

		JUDGE SOLOMON:  Okay, the Judge is nodding for the record.

		MS. KRAMER:  Thank you.

		JUDGE SOLOMON:  Okay, Mr. Schneider, state your name.

		MR. SCHNEIDER:  Scott Schneider, 

S-c-h-n-e-i-d-e-r, with Laborers' Health and Safety Fund of North
America.  Thank you very much.  And thanks to you guys for coming.  I
appreciate it.

		First of all, I wanted to know, I mean there was a lot of discussion
about how many people are covered and what the exposures might be.  Do
you have any exposure data that you can submit to the record?  Have you
collected any so you know like what the laborers are exposed to versus
the operators on highway jobs?  Do you have any?

		MR. SANT:  We've gathered some data through surveys with our members. 
It's not probably scientific, but it's more anecdotal, but we do have
some who are doing some monitoring, and we'll try to gather that
together.

		MR. SCHNEIDER:  Okay, yeah, if you could submit that to the record,
that would helpful.  Have you identified like particular tasks that you
find that produce higher exposures?  I know for your operations tend to
be outdoors, you know, they are outdoors and that tends to be one of the
factors that reduces exposures to silica.  I don't know, do you have any
data, George?

		MR. KENNEDY:  We don't have any data.  We do believe that the weather
and climate conditions do affect it.  And we have basically been relying
on a lot of the information that we've been getting for OSHA about wet
cutting and other means of keeping the dust down, under control.

		MR. SCHNEIDER:  Okay.  

		MR. SANT:  And let me just add to this, Scott.  I'm not sure I'm going
to directly answer your question, but I think from our perspective how
this standard could really work is really the genesis of what we heard
before from the milling machine cooperation and a lot of what we see in
part of Table A, in the sense if we could -- or Table 1, I'm sorry.  We
identify operations.  We figure out ways to control the dust.  And we
eliminate probably 99 percent of the hazard in that type of an
environment.

		I think that is the way it really should operate and how this standard
can be very effective.  When we start getting into the air sampling, the
monitoring, the PEL, that just becomes very, very difficult in the
construction industry and probably the part that gives us the most
heartburn.

		MR. SCHNEIDER:  I would agree with you 100 percent.

		MR. KENNEDY:  Yeah, we at NUCA would agree with that completely,
because it's difficult to keep -- do the data, find the data when you've
got people moving constantly and the conditions changing constantly.

		MR. SCHNEIDER:  Absolutely.

		JUDGE SOLOMON:  Just for the record, the speaker was Mr. Kennedy.

		MR. KENNEDY:  George Kennedy, I'm sorry.

		MR. SCHNEIDER:  Okay, yeah.  George, you mentioned that wet methods
are used.  How often are they used?  Is that most of the time or as much
as possible or --

		MR. KENNEDY:  I would say most of the time or as much as possible. 
They try to use wet methods whenever they can.

		MR. SCHNEIDER:  For cutting, right.

		MR. KENNEDY:  For cutting.

		MR. SCHNEIDER:  Okay.  Do you have any idea, Brad or Una, about how
often controls are used to reduce silica exposures in your industry?

		MR. SANT:  You know, I don't have data, but I would -- I can honestly
say they are not used enough.  I've been out on enough job sites to see
that there is dust and there are ways to suppress that dust.  It could
be done a whole lot better.

		MR. SCHNEIDER:  Right, okay.

		MS. CONNOLLY:  So, yeah, I would agree.  I think the training and
education is a bigger part of that.

		JUDGE SOLOMON:  Okay, again, I have to tell you every time you speak
--

		MS. CONNOLLY:  I'm sorry.

		JUDGE SOLOMON:  -- please identify yourselves.

		MS. CONNOLLY:  I apologize.  Una Connolly.

		MR. SCHNEIDER:  Yeah, I recognized her voice.

		JUDGE SOLOMON:  It's whether the court reporter recognizes.

		MR. SCHNEIDER:  I understand.  Now, Una, you mentioned training.  I
know you do a lot of training about silica hazards.  And, George, I'm
sure you do, too, as well.

		MR. KENNEDY:  Well, we haven't been doing training as formal training,
but we have been trying to educate our members through our newsletters
and things like that.

		MR. SCHNEIDER:  Right.  And when you do that training, do you
recognize that silica is a carcinogen?

		MR. KENNEDY:  Yes.

		MS. CONNOLLY:  Oh, very much so.

		MR. SCHNEIDER:  Yeah.  I only had one other question.  It really
bothers me when people refer to the decline in silicosis mortality using
that table that NIOSH has.  Do you believe that that table represents
complete ascertainment; in other words, that every silicosis death in
the United States is in that data set?  Because, I mean, previously,
we've heard reports that there is a lot of silicosis that is not
reported on the death certificate, which is all that table is reporting.

		MS. CONNOLLY:  Right.  And I think that the data goes both ways.  I
think people can look at the x-rays and not determine silicosis.  And
then I can see people looking at the x-rays and determining silicosis. 
And I think that the education of the B readers is as important as
educating our workers and just making sure that everybody does catch the
signs and symptoms on pneumoconiosis or silicosis.

		MR. SCHNEIDER:  Right.  No, I agree with that.  But that chart only
shows where silicosis was recorded on the death certificate.

		MS. CONNOLLY:  Yeah.  And I don't have any information as to whether,
you know, I haven't seen any death certificates, personally.

		MR. SCHNEIDER:  Right.  No, I'm just saying there are a lot -- we
argue that there are a lot of death certificates where they don't record
silicosis.  They die of like a heart attack.

		MS. CONNOLLY:  Oh, that's possible.

		MR. SCHNEIDER:  But they actually had silicosis.

		MS. CONNOLLY:  Oh, that's very possible.

		MR. KENNEDY:  This is George Kennedy.  And I know what you're saying,
Scott, but we have to rely on the data that's being reported.

		MR. SCHNEIDER:  Right.

		MR. KENNEDY:  I mean we can assume that they are not getting all the
reports, but this is CDC, and who else can we rely on if we can't rely
on them right now, them and the Bureau of Labor Statistics.

		MR. SCHNEIDER:  Right.  Well, CDC is just looking at the data that
they get from death certificates.  It's the problem -- the problem is
who is writing the death certificates.  And there is data on the record
to show that there is a lot of silicosis that's not being reported.  For
example, there is a study in New Jersey, a study in Holland.  But we can
talk about that later.

		MR. KENNEDY:  I would question is that work related, is it all work
related, too.

		JUDGE SOLOMON:  Okay.  You're --

		MR. SCHNEIDER:  Yeah, okay.  Well, thank you very much. 

		JUDGE SOLOMON:  Okay.  Dr. Mirer?  State and spell your name, please.

		DR. MIRER:  Frank Mirer, M-i-r-e-r, CUNY School of Public Health and
AFL-CIO.  And Mr. Schneider asked all my questions, so I can yield my
time.

		JUDGE SOLOMON:  Ah, thank you very much.

		MS. NADEAU:  Thank you, Scott.

		DR. MIRER:  The Vice President of General Motors said if you had two
people who thought exactly alike, you only needed one.

		JUDGE SOLOMON:  Ms. Nadeau?

		MS. NADEAU:  Liz Nadeau, N-a-d-e-a-u, International Union of Operating
Engineers.  The IUOE, in its comments, made some recommendations to OSHA
about the treatment of earthmoving that is to divide earthmoving into
the dustiest types of earthmoving that fracture or abrade
silica-containing materials.  Can you name some of the earthmoving
activities that you would perceive to be the most likely to expose
employees to respirable silica?

		MR. KENNEDY:  I would say jackhammering probably is one, when we're
jackhammering rock or something.

		JUDGE SOLOMON:  That was Mr. Kennedy.

		MR. KENNEDY:  I'm sorry.

		MS. NADEAU:  Are there any other operations?

		MR. SANT:  This is Brad Sant.  I think more than the operation is the
material that's being moved.  You can be moving huge amounts of material
in an earthmoving operation where there is very little silica content
and have very little exposures.  Where on the opposite end, you could be
moving crushed granite or something like that that has a very high
content and it's not moving a whole of that where exposures can be high.

		I think the assessment early on, you know, in a general sense, that if
you know you're in this type of a soil environment, you should be much
more careful and, you know, maybe trigger that, not in every situation,
but when you're dealing with types of materials that are known to carry
high levels of silica and that's the type of earth you are moving, maybe
that's when those types of things kick in.  And I think we would agree
very much with the Operating Engineers on that idea of somehow
segregating this into high hazard areas versus low hazard areas.

		MS. NADEAU:  So you're talking about the content of the material, as
opposed to the construction task or activity that might be involved. 
For instance, like rock ripping, is that something that you would
perceive?

		UNIDENTIFIED SPEAKER:  Right, right.

		MS. NADEAU:  Hoe ramming would be another one that would be, okay, are
there any other activities that you think that could possibly be
separated out and identified separately on Table 1, as opposed to
earthmoving across the board.

		JUDGE SOLOMON:  Okay.  You actually asked a compound question, and
they all nodded their head yes to the first question.  Now, the second
question, is that directed to somebody?

		MS. NADEAU:  Anybody, right, anybody who wants to answer the question
can answer.

		MR. KENNEDY:  To identify specific operations right now I probably
couldn't do that, but there are operations that are being dealt with,
with water trucks, water spray trucks and things like that, especially
when they are doing site clearing or something like that, and we see
that happening more and more.  

		I had the opportunity to go to John Deere's training center and
watched them in action with their water trucks and everything, and it
does keep down the dust considerably.  And we were in Arizona at the
time.

		JUDGE SOLOMON:  Okay.  That was Mr. Kennedy again.

		MS. CONNOLLY:  And this is Una Connolly.  And I think where your
question is going is I think that Table 1 does need to be expanded.  It
does need to contain all those different types of tasks that need to be
done and the different levels of protection that needs to be done with
them, and what you can do as a worker.

		MS. NADEAU:  So that you would -- oh, go ahead, I'm sorry.

		MR. SANT:  I was just going to comment, you know, what I can almost
envision, this is Brad Sant, is almost a matrix where you have types of
operations versus types of soils or materials that are being moved.  So
if you're doing blasting or something where you know you're breaking up
the material, that's a high hazard area and that's someplace where you
really need to pay attention.  

		If you're moving dirt that's clay, that's not likely to have a lot of
silica, that's something we could just set aside.  And so you're really
going to focus on the hazardous areas that are known hazards and deal
with it in a little more thoughtful way.

		MS. NADEAU:  So it sounds as though from what you said that where
there is fracturing or abrading or high levels of visible dust, you were
already using water and you're already controlling it in those
situations, at least the visible dust anyway.

		MR. KENNEDY:  Well, that's what we would like to see more of,
actually, do need to do it.  This is George Kennedy.  So, you know, I
can see that being done.  And I agree with Brad is that it would be nice
if we had -- if OSHA or NIOSH would take it upon themselves to develop a
table that does breakdown the various types of operations so that a
contractor would know.  

		Because I know a lot of the associations and even the contractors,
themselves, don't have the funding to do the studies like the previous
speakers have done on their equipment and things like that, so it would
be nice if OSHA and NIOSH would step up to the plate and either give
grants or do studies in those areas and reach out to the contractors and
the excavation community, representing I guess both of us, so we could
see more about where we really do have issues that need to be dealt
with. 

		MS. NADEAU:  So something like a regional database where you could see
silica content matched up with tasks so that you would be able to better
target your compliance resources?

		MR. KENNEDY:  That would be helpful.

		MR. SANT:  Absolutely.

		MR. KENNEDY:  Rather than just a one-size-fits-all regulation right
now that we feel is going to be extremely burdensome.

		JUDGE SOLOMON:  Okay.  That was Mr. Kennedy.  Mr. Sant is the one
who said absolutely.  And he nodded his head, for the record.  Do you
have any further questions?

		MS. NADEAU:  If that's okay?  There was testimony earlier in the week
and some questioning regarding fugitive emission dust laws that are
either state regulations, for instance in the state of Connecticut and
in the state of Massachusetts, and in some localities have fugitive
emission laws.  And I know that with roadwork, for instance, you
oftentimes might be on a public thoroughfare near a school or near a
hospital or near a residence with cars, and people don't want to have
the dust on their cars.

		How do you address working in highly populated areas in terms of
compliance with fugitive dust emission laws?

		MR. KENNEDY:  This is George Kennedy.  I'm not familiar with the
fugitive dust laws, but I know we are dealing with environmental
regulations, and the contractors are having to keep the dust down
because of environmental reasons, and that could be anywhere actually,
and wet methods for the most part.

		MS. CONNOLLY:  And I would have to agree with the wet methods.

		JUDGE SOLOMON:  Okay.  You're on this afternoon, so --

		MS. NADEAU:  So, okay, all right.  Thank you.

		JUDGE SOLOMON:  Okay.  How much time do you think you're going to
take?

		MS. KRAMER:  One moment, Your Honor.  Approximately 10 minutes or
less.

		JUDGE SOLOMON:  Okay, all right.  Go ahead, Ms. Kramer, or whoever is
going to ask the questions.

		MR. O'CONNOR:  This is Dave O'Connor.  I have just a couple of
questions for the Road and Transportation Builders Association with
regard to your written comments.  

		On Page 3, you had indicated some concerns about the introduction of a
greater hazard and referred to employment of engineering controls in
some operations as being difficult at best, and also reducing workers'
ability to avoid hazards such as the movement of heavy equipment, and
issues with communication and dangers from high-speed traffic.

		And I was just wondering what type of engineering controls you were
referring to there, if you had examples?

		MR. SANT:  I have to go back and look at the testimony.

		MS. CONNOLLY:  Yeah, I have to go back and look at the comments.  But
I think there was a few comments all rolled up in one.  One of the
things that we do, because we are in an industry where our workers are
in the traffic, that's one of the things that we talk about the high
dangers.  And we have a lot of times of people coming and intruding into
our work zones.  I think that's --

		MR. SANT:  Yeah.  And I was going to try to remember back to the
comments.  I think part of what some of our concerns would be in those
situations is when you're using, say you're doing cutting and you're
using wet methods, and it does create a slurry, it can create a slippery
environment.  And, again, when we're doing that, we don't necessarily
have the vacuums and everything in place, as is commonly done now.

		So the concern is have you created a slippery walking surface
environment that seems to be dangerous for the workers to trip and fall
when they are very close to large pieces of equipment.  Or, likewise,
slip into traffic, could it create a hazard for the traffic.  These are
the kinds of things that we have to deal with that are concerns.

		We think that ultimately we can resolve those, but we're not -- we
haven't figured out how to do that yet.

		MR. O'CONNOR:  Okay, thanks.  That actually got into my next question,
which was with regard to that creation of a wet slurry, what types of
operations were you envisioning would involve a volume of water such
that it would create a slurry?

		MR. SANT:  I have seen that when you're doing cutting, you know, with
saws.  Breaking up concrete, jackhammers, you need some suppression
methods there.  I guess those are the two that primarily come to mind. 
We are using a smaller piece of equipment that is, you know, putting out
water and there is not a retrieval system tied to that.

		JUDGE SOLOMON:  Okay, that was Mr. Sant.

		MR. SANT:  Thank you.  I'm Brad.

		MS. CONNOLLY:  Sorry, Your Honor.

		MR. O'CONNOR:  And one question for Mr. Kennedy.  In your written
comments, on Page 4, you indicate some issues with regard to the various
types of control measures and then say that NUCA believes the
contractor's safety management team is best equipped to determine the
appropriate control method for specific job site conditions.  And I was
just wondering how the contractor's safety management team would
determine appropriate control methods?

		MR. KENNEDY:  Well, most of our employers do have safety programs and
some kind of a safety department, so they either have one or more safety
directors.  Basically, they go out and they evaluate the sites.  And if
they notice they're in a situation where there is dust involved, or
they're cutting concrete and they see that they are not using the wet
saw or wet cut method, or wearing their respirators, they will enforce
that and make sure that that is done for the most part.

		You know, we have to rely on the people that are on site.  Again, we
feel that the varied regions -- various regions of the country, the
weather conditions, the climate, everything affects that.  So a
construction safety person should be out there evaluating the situation,
and they often do.  So that's the way they feel about it.

		MR. O'CONNOR:  Okay.  And what would the basis be for determining
whether a control such as wet methods would be appropriate or when
respiratory protection would be needed?

		MR. KENNEDY:  Well, like I said earlier, sometimes the wet methods
aren't possible for various, for different reasons, whether it be, as
Brad brought up or you mentioned a minute ago, the slurries could be a
problem if they are working close to the road and the slurry is running
out into the road, or the workers are working near the equipment and
they could slip and fall.  Or if it's cold weather, that's always a big
problem when you're dealing with wet cutting.  

		I have not come across any of our companies that are using any kind of
vacuum systems yet.  I have asked around, and nobody seems to be using
vacuums.  So that would be what we'd be concerned about, so the wet
cutting is an issue in that respect.

		Now, the safety person would have to look and say, okay, well, we
can't use wet cut, it's too cold.  We've got, you know, it's 30 degrees
out or it's 25 degrees, so we're going to have use -- everybody is going
to have to wear their respirators today.  It would be up to the safety
-- and it's not just the safety guys, because the safety guys are
obviously training and educating the foremen and the supervisors who are
out there, so they're going to make that call, too.

		MR. O'CONNOR:  Okay, so it's not typically that they are doing
exposure monitoring and basing their actions on the results of that
monitoring, but looking at the activity, and drawing on their experience
and knowledge of that activity, and saying this is the appropriate
control, this is the appropriate action for that activity; is that
correct?

		MR. KENNEDY:  Yes.  This is George Kennedy.  And, yes, that is the
situation.  They have to evaluate the situation in the field as it is,
as it stands.

		MR. O'CONNOR:  Okay, thank you.  That's all I have.

		DR. COBLE:  This is Joe Coble.  Oh, excuse me.  I wanted to ask a
little bit about making the standard workable; there is concerns about
the regulated area versus written access control plan.  And what you
currently do now to restrict access to the work area; you mentioned
sometimes you are in proximity to passersby or whatever.  What
procedures are in place now to restrict access, and how do you see that
changing in response to what the requirements of the standard are?

		MS. CONNOLLY:  Well, currently, our contractors do something called
internal traffic control plan, which basically maps out exactly where
the people on foot should be and where all the mechanized machinery
should be.  And so, usually, utilizing that plan, you would also be able
to figure out if there is a hazardous event going on, you'd be able to
put that into your plan to keep your workers away from it.  But,
currently, that plan is utilized to make sure our people on foot don't
get run over, which is one of our big worries.

		DR. COBLE:  Yep, okay.  Thank you.

		MS. KRAMER:  I just have a quick follow-up on that.  My name is
Allison Kramer.  It's awfully difficult to get used to saying that,
isn't it.  

		You mentioned the traffic control plan.  I assume that's on paper or
something, but how do you notify the folks that are walking around on
your work site?  Do you use cones or tape?  How does that work in
practice?

		MR. SANT:  There are two different controls that we're talking about. 
There is the control for keeping the public out and that is generally
covered, it's a temporary traffic control plan, and it's going to
control pedestrians and motorists, etc., and that's governed by a
federal highway regulation called the Manual on Uniform Traffic Control
Devices.  So that is all the people outside the work area that are not
supposed to be there.

		For the people inside the work area, we are working hard, as Una
mentioned, to get this concept of internal traffic control, which has
kind of separated workers from equipment at this point, it has never
really been used to create a controlled access, but it could be.  And
that's part of, you know, a big part of our efforts right now that we're
working in our labor, government, contractor, cooperative efforts to get
that education out to the public.

		JUDGE SOLOMON:  That was Mr. Sant.

		MR. SANT:  This was Brad.  I'll just let you do it, Your Honor.

		MS. KRAMER:  If you have anything on that that you would like to
submit to the record, I understand it is in development now, we'd
appreciate it.

		MR. SANT:  Sure, yes.  We actually have quite a bit of information
thanks to a Harwood grant on that.

		MS. KRAMER:  Great.  

		MR. KUCZURA:  My name is Greg Kuczura.  I have a question for NUCA. 
It is in regards to the exposure assessment.  It says that it would cost
approximately $1,000 to $2,500 in consulting charges as per 5 samples. 
And my question is, are those samples done on one day or multiple days?

		MR. KENNEDY:  The answer to that is they're done on that same day,
usually, for example, I have a couple of contractors tell me how they
have had consultants come out when they were cutting concrete or
concrete pipe and do assessment monitoring.  And, basically, the cost
was between $1,000 and $1,500 for the consultant.  And then about
approximately $100, depending on what lab you went to, per sample.  

		And basically what they would do is put a pump and a cyclone on the
worker, and then test the four points of the compass around to get a
feel for what the exposure levels were in that area.  And from what I've
been told, those exposure levels were below the current PEL.  I don't
know where they were, because this was told to me about a year ago
before we got into this.

		MR. KUCZURA:  Okay, thank you.  My other question is for ARTBA.  And
it's actually in regards to the IRS Source Book.  Are you aware that we
will be updating the Source Book data when we do the FEA?

		MS. CONNOLLY:  This is Una Connolly.  Thank you.

		MR. KUCZURA:  Sorry?

		MS. CONNOLLY:  Thank you, that would be great.  That would be good.

		MR. KUCZURA:  I wasn't sure if you were aware.  I just wanted to ask.

		MS. CONNOLLY:  Thanks.

		MR. KUCZURA:  That's it.  Thank you.

		MR. BLICKSILVER:  Mr. Kennedy, on the exposure assessment -- Bob
Blicksilver, OSHA.  On the exposure assessment, do you always need to
bring in a consultant, or are you able to train your workers, your
supervisors, or competent persons to be able to oversee the exposure
assessment on site?

		MR. KENNEDY:  This is George Kennedy.  From what I've found is very
few of our members have industrial hygienists on board or industrial
hygienist type technicians.  So basically could we train them?  I guess
we could.  But would it really be appropriate to do that, because when
you're talking about assessment monitoring, I mean there is a lot that
goes into that in terms of like calibrating the pumps and preparing the
samples and making sure they're handled properly and everything.

		So at this point, I'm not finding that anybody has people on board to
do that and they are reaching out to consultants.

		MR. BLICKSILVER:  Okay.  And, Ms. Connolly, you expressed concerns
about in the OSHA's economic analysis, the methodology of estimating
costs per exposed worker.  And you requested that or you suggested that
if there were a way to match these data at the firm level that might be
a more appropriate way.

		In your survey, will you be able to provide any data on current
programs at the firm level, or is that something you can request of your
members for post-hearing comments?

		MS. CONNOLLY:  We have surveyed and we have some anecdotal
information.  But I think we can probably put together something for
you.

		MR. BLICKSILVER:  Okay.  And in that information, will you be able to
identify what the additional or incremental burden or expense or time
will be associated with the silica rule and not just across all safety
and health programs?  That would be very important for our analysis.

		MS. CONNOLLY:  Okay.  Yeah, I think we can do that, as I'm looking at
Brad.  This is Una Connolly.

		MR. BLICKSILVER:  Sure.  And one further request.  Can you associate
those programs, if possible, with your exposure data, as well?  I think
you indicated that you would be able to provide exposure data.  Can you
match up exposure data controls and programs, even anecdotally, please?

		MS. CONNOLLY:  Well, we'll do the best that we can.  But as I said,
you know, most of our data for that is anecdotal, so it probably won't
be drilled down as far as you would like it to be.

		MR. SANT:  This is Brad Sant.  We would be very happy to work with
OSHA.  Perhaps, there is someone on staff that would, you know, could
assist us in developing a survey that would get to the type of
information that you're wanting and so we could do that together,
because we regularly go out to the members with these types of surveys.

		MR. BLICKSILVER:  Okay, thank you.

		MR. O'CONNOR:  That concludes OSHA's question.  Ms. Connolly,
Mr. Sant, Mr. Kennedy, thank you for appearing and testifying here
today.

		MS. CONNOLLY:  Thank you.

		JUDGE SOLOMON:  Okay, thank you very much.  It's 12:17.  And
Mr. Lazarchick, is he here?

		MR. LAZARCHICK:  Thank you for letting me join you.

		JUDGE SOLOMON:  Okay, now the question I have is should we take your
testimony now, or shall we take your testimony after lunch. 
Ms. Kramer?

		MS. KRAMER:  Your Honor, OSHA's preference is that we take his
testimony now.  He's been waiting here very patiently.

		JUDGE SOLOMON:  Right, okay.  Does anybody have a health problem?  Any
reason why -- it's not really that funny; I mean what can I say?  I mean
I get this all the time.  We get lots of people with diabetes, for
example.

		MR. LAZARCHICK:  For time management, I could forego the testimony and
there would just be the questions.

		JUDGE SOLOMON:  Have a seat.  Okay, we're going to remain on the
record.  Just state your name, please.

		MR. LAZARCHICK:  Yes, so Brian Lazarchick.  I'm a certified safety
professional with a neighboring electric cooperative in Maryland, and
I'm speaking on behalf of National Rural Electric Cooperative
Association.

		JUDGE SOLOMON:  Okay.  So do you have a statement that you want to
proffer at this time?

		MR. LAZARCHICK:  Again, for time management, I could forego and just
field questions.

		JUDGE SOLOMON:  I mean a written statement.  Do you have anything in
writing, reduced to writing you want to give me?

		MR. LAZARCHICK:  Yes.  And just go from that?

		JUDGE SOLOMON:  Well, I'd put it into evidence.

		MR. LAZARCHICK:  Okay.

		JUDGE SOLOMON:  If that's what you want us to do.  Ms. Kramer?

		MS. KRAMER:  Thank you, Your Honor.  I would like to mark this
statement as Hearing Exhibit 69 and have it admitted to the record.

		JUDGE SOLOMON:  Okay. 

(Whereupon, the document referred to as Hearing Exhibit 69 was marked
and	 received in evidence.)

		JUDGE SOLOMON:  Are there members of the public who wish to ask
questions?  I don't believe it.  Oh, one person.  Come forward,
Dr. Mirer.

		DR. MIRER:  Franklin Mirer, CUNY School of Public Health, AFL-CIO.

		JUDGE SOLOMON:  Spell --

		DR. MIRER:  M-i-r-e-r.

		JUDGE SOLOMON:  Yeah, thank you.

		DR. MIRER:  Okay.  So it's hard to ask questions about a statement you
haven't seen, but my question is do you or your members have any
exposure data that are relevant to this process?

		MR. LAZARCHICK:  Again, from the Electric Cooperative standpoint, we
generally split our cooperatives into the generation and just the
distribution.  We have zero data for distribution, in fact, that we
likely feel we have no exposure.  We're just auguring holes in the
ground for poles.  And for the generation standpoint data, I do believe
it was included in the initial submittal.

		DR. MIRER:  Okay, thank you.  

		MS. KRAMER:  Your Honor, in case it helps anyone in the audience that
would like to ask questions, it appears that the statement that was just
submitted is either identical to or very similar to --

		MR. LAZARCHICK:  Yes.

		MS. KRAMER:  -- the testimony that was submitted to the record
previously.

		MR. LAZARCHICK:  Yes.  From the NRECA.

		JUDGE SOLOMON:  Come forward, please.  State your name again.

		MS. CORDARO:  Tressi Cordaro with Jackson Lewis.

		JUDGE SOLOMON:  You have to spell your name again.

		MS. CORDARO:  The first name is Tressi, T-r-e-s-s-i.  The last name is
Cordaro, 

C-o-r-d-a-r-o.  I actually would just like to hear what your position
is, so if you don't mind kind of summarizing to some extent --

		MR. LAZARCHICK:  Okay.

		MS. CORDARO:  -- what your oral testimony would be, that would be
great.

		MR. LAZARCHICK:  Okay, absolutely.  So as I was mentioning, for the
cooperative world, we provide the electric power services for 47 percent
of the country.  We are not-for-profit.  We are not investor-owned
utilities.  We are member owned, so we keep our operating costs very,
very low.  

		And for the distribution cooperatives, in that we don't actually
generate any electricity, we just buy it off the wholesale market, the
only exposures we have are from auguring holes into the ground for
utility poles and also putting in underground lines.  And for the
underground lines, we feel through the wet boring methods, plus through
the mini enclosed-cab excavators that there would be zero dust,
respirable size crystalline silica dust for our employees of that
nature.

		For the generation side, the only thing that we were really asking for
is obviously there is more of an exposure for the generation side, and
we were just asking for a year exempt or a year time lapse for the
actual proposed comment hearing.

		MS. CORDARO:  Can I ask -- so maybe a couple of questions.  Can I ask
what tasks in the generation?  I'm not completely clear what this
industry --

		MR. LAZARCHICK:  So within the -- anything dealing with the coal ash,
fly ash, and the combustion processes and the dust associated with that.
 So during outage work for the fly ash.  And then for the coal dust,
either before incineration, transporting it to the actual incineration
sites, or actually the waste as well after.

		MS. CORDARO:  Can you compare and contrast just so that I -- so I
understand, generation versus distribution, auguring poles, length of
time, short duration, and what your experience is with respect to
exposure monitoring?  I understand a little bit about this well enough
to maybe suggest that generation, it's a little bit easier because the
times may be a little bit longer for tasks than they are to some extent
in distribution.

		MR. LAZARCHICK:  Absolutely.  So auguring poles literally with the new
equipment could potentially take a minute to actually put the drill head
into the ground to expel, and then lastly is just shoveling the ground
back into around the pole.

		MR. LAZARCHICK:  Okay.  So with respect to what's being proposed by
OSHA, what is -- is there concerns with respect to compliance for
auguring holes for poles and actual compliance with the standard?

		MR. LAZARCHICK:  Yeah, so what we had submitted for the distribution
cooperatives was just exemption for the distribution cooperatives,
electric cooperatives from the standard for crystalline silica.

		MS. CORDARO:  And is the exemption due to the fact that it is short
duration?

		MR. LAZARCHICK:  Short duration.  You're not actually pulverizing the
soils.  It's more of a total dust regulum (ph.).  And, yeah.

		MS. CORDARO:  Okay, I think that does it.  Thank you.

		JUDGE SOLOMON:  Okay, thank you.  Ms. Kramer?  Mr. O'Connor?  Who
wants to speak?

		MR. O'CONNOR:  I just have I think one question here.  In your written
comments, you indicate that with regard to the distribution cooperative
workers, that their tasks are generally short in duration with regard to
silica exposure lasting from only a few minutes to, in general, no more
than an hour or two.

		MR. LAZARCHICK:  Yes.

		MR. O'CONNOR:  And then on Page 14, there is a small table that
presents some daily time frames.  And I was just trying to understand
this table.  Is this a typical worker for one of these cooperatives or
--

		MR. LAZARCHICK:  Yeah, so the table that you're referring to on Page
14, the auguring soil is traditional for one crew, one workday,
representative over the year.  So for the auguring soil, for one pole --
I'm sorry, for the entire day's job, you might augur soil for 30 minutes
for the day.  For trenching soil, again, same story.

		MR. O'CONNOR:  Okay.  So just so I understand the frequency and
duration of these activities that involve silica exposure for the
typical distribution cooperative, how many days per year would workers
typically perform these activities?  Is it every day, or is it just a
few days, or does it depend?

		MR. LAZARCHICK:  It would be your typical business week, so every day,
Monday through Friday.  But the auguring soil, again, that would be --
that's compacting, not doing just 30 minutes continuously.  You might do
a minute here, move down the road, do a minute at your next site where
you're going to augur, move down the road, do another minute.

		MR. O'CONNOR:  Okay.  But then these would be different employees or
different crews?

		MR. LAZARCHICK:  No, the same crew.

		MR. O'CONNOR:  Okay.  So would it then be one crew that was shoveling
soil for one hour per day and then operating the backhoe for two hours,
and then trenching soil for 45 minutes, and then auguring soil for 30
minutes so that it --

		MR. LAZARCHICK:  Absolutely, yes.  It's the same crew.  Literally,
when you become, like for the local electric cooperatives, you could
start auguring the pole, get in the backhoe, cover it up, then climb up
the pole and start performing the electrical work.  So it's literally a
universal workforce.

		MR. O'CONNOR:  Okay, thank you.  That's all I have.

		DR. COBLE:  I have just a -- this is Joe Coble.  Interested in on the
generating side, it appears your primary concern is with the potential
exposure due to the fly ash from the --

		MR. LAZARCHICK:  Well, the crystalline silica within the fly ash.

		DR. COBLE:  Right.  Do you have any information on what the percentage
of silica, crystalline silica in the fly ash is?

		MR. LAZARCHICK:  No, I do not.

		DR. COBLE:  Have you ever assessed exposures?  Are any of your members
ever monitored for it that you're aware of?

		MR. LAZARCHICK:  The local electric utility that I work for is just
distribution.  It's not generation.

		DR. COBLE:  Okay.

		MR. LAZARCHICK:  And the NRECA, during the last couple of months of
going through this, I don't believe that there was actually quantifiable
data to submit for the generation side.

		DR. COBLE:  Okay, thank you.

		MR. KUCZURA:  My name is Greg Kuczura, and I have a question in
regards to we have an estimated cost of $378 to $397 for the health
screening.  And in your comments, you claim that that's a low estimate
because of your distance from the doctor or a potential health expert. 
Do you have an average distance or any type of data or information that
OSHA could use to determine an estimate?

		MR. LAZARCHICK:  We do not have that data now.  I'm sure we can
definitely compile it, though, and submit it.

		MR. KUCZURA:  Okay, thank you.

		MR. STONE:  This is Robert Stone.  And I think I only had one
question.  It had to do with the fly ash again.  Do you engage in
procedures now to deal with fly ash?  There are problems with fly ash
well beyond the silica, I would think.

		MR. LAZARCHICK:  Oh, I'm sorry.  Again, I can't really answer.  I'm
not with the generation cooperative.

		MR. STONE:  Oh, I see.

		MR. LAZARCHICK:  Anything outside of the initial submittal, we would
have to get back to you, the NRECA would have to get back to you.

		MR. STONE:  Okay, thank you.

		MR. LAZARCHICK:  You're welcome.

		JUDGE SOLOMON:  Mr. O'Connor?

		MR. O'CONNOR:  That's all we have.  Thank you very much.  We
appreciate you coming in.

		JUDGE SOLOMON:  Thank you for coming.  So it's almost 12:30.  We're
going to break until 1:30.  We'll start again at 1:30, and at that time,
the Industrial Minerals Association of North America will be up.  

		Now, there are a number of organizations that are only getting 10
minutes each, so maybe you want to talk to each other about
consolidating the time.  All right, it's now 12:29, and we're going off
the record.

		(Whereupon, at 12:29 a.m., a lunch recess was taken.)

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

		JUDGE SOLOMON:  Off the record, after we closed this morning, I asked
if there was some way that we could accommodate the type of translation
that would be summarized rather than have word for word verbatim
translation, and we'll cross that bridge when we get to it, I think.  

		Okay, so we have with us Mr. Ellis again.  How are you?

		MR. ELLIS:  Fine.  Thank you, sir.

		JUDGE SOLOMON:  Okay, so you get 10 minutes.  Everybody ready?  So
you're with the second panel?

		MS. WHITTED:  Second.  Stone, Sand, and Gravel.

		JUDGE SOLOMON:  Okay.  So on the fly, I guess, we could, if you want
to do it this way, we could do all of you at the same time and then have
questioning.  Mr. Ellis is a pro.  He's been through this before. 
Okay.  All right, would you introduce yourselves, please, and then
Mr. Ellis will make his presentation.

		MR. ELLIS:  I'm Mark Ellis with the Industrial Minerals Association -
North America.

		MS. WHITTED:  Pam Whitted with the National Stone, Sand and Gravel
Association.

		MR. DRYSDALE:  And Dale Drysdale with the National Stone, Sand, and
Gravel Association.  Your Honor and members of the OSHA panel,
Dr. David Weill had a schedule conflict and could not be here with us
today.  

		MR. ELLIS:  Okay, Your Honor, with your permission?

		JUDGE SOLOMON:  Sure.

		MR. ELLIS:  Good afternoon.  I'm Mark Ellis, and I'm President of the
Industrial Minerals Association - North America or IMA-NA.  IMA-NA is a
nonprofit, 501(c)(6) trade association, representing North American
producers and processors of industrial minerals and associate members
that support the industrial minerals industry.

		Industrial minerals are feed stock for the manufacturing and
agricultural sectors.  The value of industrial minerals is derived from
their unique chemical or physical properties.  Crystalline silica-based
industrial mineral products include glass, ceramics, specialty
additives, and building products.  They also are used in chemical
production to make foundry cores and molds used for metal castings, in
paints and coatings, filtration, metallurgical applications,
refractories products, oil and gas recovery, and recreational uses.

		IMA-NA is an umbrella organization, and nested under that umbrella are
producers of various industrial minerals, including industrial sand and
diatomaceous earth.  The National Industrial Sand Association, or NISA,
and the International Diatomite Producers Association, or IDPA,
represent the IMA industrial sand section and the IMA diatomite section,
respectively.  Both associations are founding members of the American
Chemistry Council's Crystalline Silica Panel, and have endorsed and
incorporated by reference the Panel's comments as their own.  IMA-NA,
likewise, has endorsed and incorporated by reference the NISA, IDPA, and
Panel comments in this rulemaking.

		Some IMA producer member sections produce or process essential pure
crystalline silica, while for others crystalline silica is at most a
trace contaminant.  IMA producer members' workplaces are predominantly
mining operations and, thus, they typically are regulated by MSHA, not
OSHA, for purposes of occupational safety and health.  However, the
crystalline silica-containing mine products they produce find their way
into OSHA-regulated workplaces, and the experience gained in their
production can be instructive for protecting workers in the OSHA
context.

		Regardless of their individual circumstances where the potential for
worker overexposure to crystalline silica exist, IMA-NA member companies
take serious leader obligations that contribute to a safe and healthful
workplace.

		To summarize IMA-NA's position, IMA-NA supports an OSHA comprehensive
crystalline silica standard that includes protective measures and does
not lower the existing exposure limit for general industry.  

		To this end, we endorse (1) an OSHA permissible exposure limit, or
PEL, of 100 µg/m3 for all forms of crystalline silica, quartz,
cristobalite, and tridymite; and (2) establishing exposure assessment
and medical surveillance for workplaces where crystalline silica
exposures exceed an action level, or AL, of 50 µg/m3.  

		IMA-NA believes that an OSHA comprehensive silica standard should
mandate the general industry employers whose workers are exposed to
respirable crystalline silica above the action level of 50 µg/m3 must
conduct dust monitoring of the air their workers breathe and must retain
records of that monitoring.

		In addition, the new standard should require that when workers are
exposed above the action level of 50 µg/m3, employers must provide
periodic medical surveillance that includes a chest x-ray and keep
records of that surveillance.

		IMA-NA also specifically wishes to draw OSHA's attention to two
documents it placed in the administrative record.  The first document
titled, The Practical Guide to an Occupational Health Program for
Respirable Crystalline Silica, and it's instruction guide MSHA 3108 from
2008, is the result of a cooperative partnership between IMA-NA and the
Mine Safety and Health Administration under MSHA's Alliance Program.

		The document provides guidance in the development and maintenance of
an occupational health program for exposure to respirable crystalline
silica and was prepared to assist those potentially exposed to
respirable crystalline silica in work environments.

		The second document titled Dust Control Handbook for Industrial
Minerals, Mining, and Processing, and this is NIOSH Report of
Investigation 9689 from 2012, is the result of a collaborative
partnership between IMA-NA and the National Institute for Occupational
Safety and Health to provide information on proven and effective control
technologies that lower workers' exposures during all stages of mineral
processing.

		While these two documents primarily were intended for application in
the mining industry, they nevertheless are applicable to OSHA-regulated
industries.  The two documents support the premise that silica-related
disease occasioned by occupational exposure is preventable and that the
comprehensive crystalline silica standard that IMA-NA recommends is
pragmatic, worker protective, and cost effective.

		IMA-NA and its member companies stand ready to share the knowledge we
have gained through many years of responsible work with crystalline
silica to help craft an OSHA rule that will effectively protect American
workers from silica-related disease.  IMA-NA appreciates the opportunity
to put these comments before OSHA for consideration, and I'd be pleased
to answer any questions.

		JUDGE SOLOMON:  Are you entering those documents as a proffer?

		MR. ELLIS:  Yes, Your Honor.  I'd like to offer in evidence a copy of
my written remarks, as well as the two documents I cited.

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

		MS. RYDER:  Yes.  My name is Anne Ryder from the Solicitor's Office.

		JUDGE SOLOMON:  Okay.  

		MS. RYDER:  I'll mark Mr. Ellis' testimony as Hearing Exhibit 70. 
The Alliance with MSHA is Hearing Exhibit 71.  And the NIOSH Dust
Control Handbook is Hearing Exhibit 72.

		JUDGE SOLOMON:  Okay, without objection, they are hereby admitted into
evidence.

(Whereupon, the documents referred to as Hearing Exhibits 70 through 72
were marked and received in evidence.)

		JUDGE SOLOMON:  Now we will hear from the National Stone, Sand, and
Gravel Association.  And you have 30 minutes, if you want to take it.

		MS. WHITTED:  I'm not going to take 30 minutes.

		JUDGE SOLOMON:  Great.

		MS. WHITTED:  Thank you, Your Honor, OSHA representatives, and members
of the public.  My name is Pam Whitted.  I am Senior Vice President of
Legislative and Regulatory Affairs for the National Stone, Sand, and
Gravel Association, or NSSGA.  On behalf of our members, with whom I
have had the privilege to work for the last 13 years, I appreciate the
opportunity to participate in this public forum.  We deeply honor the
systems and traditions that enable and encourage the inclusion of
diverse points of view in these important matters.

		I'll briefly describe NSSGA and its members in a moment.  But, first,
I urge everyone to consider our comments not solely as those of
employers and businesses, but also as members of the communities that we
serve, and frequently as employees of our own small businesses.

		Virtually, everything we do affects our families, and those of our
employees and neighbors alike.  NSSGA is a diverse association with
members that produce critical building materials, crushed stone, sand,
and gravel.  These basic materials are literally the foundation of our
modern society.  

		For example, stone, sand, and gravel mixed with portland cement or
asphalt cement yields concrete for roads, bridges, schools, and office
buildings.  Its hundred other uses combine to form the basic
infrastructure that facilitates modern travel, provides us shelter at
home, work at leisure, protects our hospitals, and strengthens our
airport runways.  Our products are also used in pharmaceuticals and
cosmetics, paint, and many other consumer products.  

		It is almost impossible to imagine our lives without countless
structures and products largely composed of stone, sand, and gravel that
we almost always take for granted.  Just look around here today, this
huge building and those that surround it.  But our industry is vastly
greater than the inanimate products.  In the U.S., our industry employs
more than 110,000 skilled workers, engineers, geologists, and many other
trades and professions.  

		It is precisely the protection in the livelihood of our members'
employees and their families that bring us here today.  We completely
support OSHA's important mission and are grateful for the Agency's
countless positive contributions over many decades to improve employee
safety and health.  Many of us here are old enough to have worked in
days before OSHA existed.  We certainly don't want to turn the clock
back.  

		In fact, OSHA directly regulates many of our members' workplaces from
the ready-mix concrete and asphalt plants of our vertically integrated
members, to the facilities of those who design and manufacture complex
construction equipment and other devices that process stone, sand, and
gravel.

		However, it is OSHA's sister agency, MSHA, that regulates our members
that directly produce the stone, sand, and gravel that build America. 
MSHA has stated that it will propose a crystalline silica standard later
this year and it will use OSHA's regulatory analysis as a basis.  Thus
our comments today have relevance to the OSHA rulemaking and to future
MSHA rulemaking efforts alike,

		NSSGA and its members are proud of our long and positive relationship
with MSHA, whose mission and efforts have helped transform the mining
industry in the U.S.  Its safety standards have saved the lives and
protected the health of innumerable employees over many years.  Every
single year, MSHA inspects every stone, sand, and gravel operation at
least twice, and underground operations four times.  Our members'
highest values concern the safety and health of those who they employ.  

		As just one example, the injury and illness incident rates for our
sector have declined for each of the last dozen years to half of its
2002 value.  Preliminary results indicate that the rate declined again
last year.  Today, it is safer to work in our industry than it is in
many big box retail stores, restaurants, and hospitals. 

		Crystalline silica is an issue of long-standing interest and concern
to NSSGA, one in which we have been involved for many years.  Silicosis
has plagued the world for centuries.  Yet, as you have heard many times
over the last two weeks, since the current OSHA limit took effect,
silicosis-related deaths in the U.S. have dropped by more than 93
percent.  And there is no reason to suspect that under-reporting occurs
more today than 40 years ago.

		The rate of decline is a public health success that should not be
discounted.  Still, that's not good enough.  In 1996, NSSGA publicly and
formally committed with then Labor Secretary Robert Reich to completely
eliminate silicosis from our industry.  Toward fulfillment of this
pledge, NSSGA years ago adopted a comprehensive occupational health
program for its members that is focused on measuring, reducing workplace
-- measuring and reducing workplace silica exposures by emphasizing
engineering controls.  The elements of that program have, for decades,
been used successfully to reduce exposures in aggregate operations.  It
is available to every stone, sand, and gravel producer.

		NSSGA also partnered with MSHA in 1997 and has since hosted dozens of
dust and noise workshops.  These multi-day, hands-on, intensive
classroom and field training events led by the MSHA instructors enable
our members to measure and reduce silica exposures in their own
operations.  The combination of these and many other exposure controls,
including respirators, are in part responsible for the low levels of
silica overexposures in U.S. stone, sand, and gravel operations
according to MSHA's own air-monitoring data.  

		We have watched OSHA struggle with the silica standard for the last 10
years.  We participated in the SBREFA process a decade ago, participated
in Small Business Administration roundtables and discussions, and joined
in numerous other forums to explore a reasonable rulemaking approach. 
Then we read the Agency's proposed rule.  We have participated in the
crystalline silica panel of the American Chemistry Council for many
years and fully support the comments and statements it has provided in
these proceedings.

		We believe that a balanced view of silica research indicates that the
current PEL is adequate to prevent silica-related disease, but that all
employers must comply with the current limit and OSHA must enforce it. 
Accordingly, NSSGA supports reasonable requirements for exposure
monitoring and medical surveillance when silica exposures exceed the
current PEL.  

		A significant concern we have relates to the ability of laboratories
to measure workplace silica levels.  You have already heard evidence
that many commercial laboratories may not be able to measure silica
exposures at or below the current PEL on a reliable and consistent
basis.  

		To the extent that our concern is warranted and we believe it is, the
situation will be exacerbated with the influx of samples that labs will
receive if the standard is issued as proposed.  This tsunami of samples
will not encourage labs to fulfill the painstaking intricate
requirements that the methods demand, particularly at the proposed PEL
and action level.  

		OSHA clearly anticipates this problem given its proposed two-year
delay for commercial labs.  Yet, the Agency intends to move ahead, and
we have no reason to believe that OSHA would not hold employers
responsible for the compliance during this two-year period. 
Accordingly, we believe that the measurability question is sufficient
reason alone for OSHA to withdraw the proposed rule until all affected
labs demonstrate the necessary levels of proficiency that regulated
employers need and deserve.

		Also of concern to our members is OSHA's proposed action level.  We
believe that a compliance-based action level will rarely benefit
employees and will afford many employers the illusion of relief at best.
 

		Finally, as you have heard -- also heard in this room, OSHA's proposal
is estimated by independent analysts to cost large and small employers
alike billions of dollars every year.  OSHA claims that the standard
will have a net positive economic effect on the U.S. economy, but that's
largely because it will increase the ranks of industrial hygienist
consultants, laboratories, various and sundry contractors, and lawyers
to which many employers will turn if the proposal is published as
written.

		Many of our members have already experienced a 20, 30, and even 40
percent reduction in their workforce during the recent economic
downturn, and few have managed to replace all the skilled workers they
lost.  OSHA's proposal will do nothing to increase direct hire
employment in the aggregate sector. 

		In summary, while NSSGA fully supports and actually espouses the vital
mission of OSHA and MSHA, we cannot support a proposal that will do
little, if anything, to improve workplace health and safety, but will
instead lead to further layoffs and business closures, particularly
among members of the small business community. 

		Your Honor, I'm out of time.  Again, I appreciate the opportunity to
address this group.  My colleague and I will be happy to respond to any
questions.

		JUDGE SOLOMON:  Actually, you beat the clock, one of the few people in
the last eight days who has actually beat the clock.  Okay.  Are there
people who have questions for this group?  There aren't that many hands,
and they are all on my right.  So, Ms. Trahan, I think you are first,
so if you want to come forward?  And would everyone else who has
questions line up after her.

		MS. TRAHAN:  Good afternoon.  Chris Trahan with the Building Trades,
T-r-a-h-a-n.  My questions I think are focused on National Stone, Sand,
and Gravel Association and based on your written comments.

		You mentioned several silica-generating tasks that are outsourced, in
your comments, drilling, blasting, sweeping, baghouse maintenance,
ready-mix concrete, truck drum cleaning.  Are these all outsources from
your member companies?

		MR. DRYSDALE:  This is Dale Drysdale.  Not all of them.  Some of our
vertically integrated members have both the quarry operations and
ready-mix operations in asphalt plants.  Some even have construction
departments and so forth; it just depends.  But I would say that the
average one probably does not have operations beyond the quarries.  

		MS. TRAHAN:  So if the members that have these operations, are they
outsourcing them?  Is that what your comments --

		MR. DRYSDALE:  The feedback we have from our members who participated
with me on this said that a lot of it is outsources, yes.  I don't know
that I can quantify that for you, but it's significant enough to comment
on.

		MS. TRAHAN:  Did the feedback you received indicate the types of
controls that were used for those tasks I listed?

		MR. DRYSDALE:  I believe that most of that would have to do with the
sweeping, some of the sweeping is contracted, and the automatic
sweepers, some of which have dust controls and some of which do not.  I
think there is some cost information in there from one or two of our
members.

		MS. TRAHAN:  Ready-mix truck cleaning.

		MR. DRYSDALE:  Oh, I'm sorry.  I thought you were --

		MS. TRAHAN:  There are several tasks that were listed as being
outsourced.

		MR. DRYSDALE:  I don't have information on the ready-mix truck
cleaning.

		MS. TRAHAN:  Do you know if there is any exposure monitoring done of
those firms that are contracted with to complete those activities?

		MR. DRYSDALE:  I don't have that information.

		MS. TRAHAN:  Do you have any information about the types of firms that
are contracted with for those activities?

		MR. DRYSDALE:  No, I'm afraid not.

		MS. TRAHAN:  You also mentioned that you are performing a lot of air
monitoring or exposure monitoring, your member companies are.  Is there
-- has that been submitted to the docket with your comments?

		MR. DRYSDALE:  Many or most of our member companies do their own
exposure monitoring or have consultants that do it for them.  We do not
have access to that information, so that would reside and remain with
the members themselves.

		MS. TRAHAN:  So there is no way the association can provide that
information; is that what you're saying?

		MR. DRYSDALE:  No, I'm afraid not.

		MS. TRAHAN:  The employers who contract out the hazardous list of
tasks that I mentioned, do you know the type of -- the method of
communication they have with their contracting firms who perform those
tasks?

		MR. DRYSDALE:  I would say that those are potentially hazardous, and I
don't know the answer to your question.

		MS. TRAHAN:  That's all.  Thank you.

		JUDGE SOLOMON:  Thank you.  Next?

		DR. WELCH:  Hi, Laura Welch, W-e-l-c-h, with the Building Trades.  Are
you doing any medical surveillance or do member companies do medical
surveillance on their workers?

		MR. DRYSDALE:  The answer is yes.

		DR. WELCH:  And do you have any aggregate data on the x-ray results? 
Do you know anything about that?

		MR. DRYSDALE:  No, we do not collect that information from the
members.

		DR. WELCH:  Okay, thanks.

		JUDGE SOLOMON:  Thank you.  

		MR. SCHNEIDER:  Okay, Scott Schneider with the Laborers' Health and
Safety Fund.  It's 

S-c-h-n-e-i-d-e-r.  

		Thanks for your testimony.  You said you are asking OSHA basically to
put out a standard with a 100 µg PEL and a 50 µg action level.  But in
your testimony, you were complaining about the action level, saying that
you thought the action level was not going to be helpful.  Yet, last
week, we heard from the National Industrial Sand Association that said
that they were very strongly in support of an action level.  Can you
explain why you felt like an action level would not be useful?

		MR. DRYSDALE:  This is Dale Drysdale with NSSGA.  Yeah, we do not
recommend an action level as a compliance endpoint.  And this, excuse
me, if you'll remember the discussion a couple of days ago about Table
1, I think this is kind of in the same realm where it's a good thing
perhaps for an internal guidance issue for some organizations.  But as a
compliance endpoint, no.  We believe that it confuses the standard and
that it can have a pernicious effect from a couple of different
standpoints.  

		One, it is easy to, in a random series of numbers, of samples,
particularly given the lack of -- potential lack of precision from some
of the commercial labs, it's easy to get numbers that can be below an
action level and are truly not.  And that is an opportunity for an
employer to stop sampling for that particular employee until the
environment changes; yet, there can still be exposures that are above
the action level.  So we think it provides, in many cases, a false sense
of security.

		MR. SCHNEIDER:  So you're saying that the action level may not be low
enough?

		MR. DRYSDALE:  No.  I'm saying that it presents -- it is the wrong
approach, in my opinion.

		MR. SCHNEIDER:  Well, when should an employer stop sampling?

		MR. DRYSDALE:  I think that should be depending -- that the individual
employer should make that determination, but that they should do enough
sampling to ensure that their exposures are below the PEL.  How they
manage that is up to them.  My concern is from a compliance standpoint. 
The action level, I believe, is not helpful.

		MR. SCHNEIDER:  And, Mark, is the National Industrial Sand Association
a member of yours?

		MR. ELLIS:  Yeah.  We're an umbrella organization --

		MR. SCHNEIDER:  Right.

		MR. ELLIS:  -- and National Industrial Sand is a member, as is the
International Diatomite Producers Association.

		MR. SCHNEIDER:  Okay.  And now you both said that you thought the PEL
should be 100 µg.  Is that based on your sampling data that you have
saying that you don't have -- wouldn't have a problem complying with a
100 µg standard or just based on your --

		MR. DRYSDALE:  I can answer for NSSGA.  We support the work that's
been done by the American Chemistry Council's Crystalline Silica Panel
and their experts have -- their interpretation of the literature informs
us that the current PEL is protective if it's complied with and if it's
enforced.

		MR. SCHNEIDER:  Okay.

		MR. ELLIS:  Mr. Schneider, I don't know --

		MR. SCHNEIDER:  Yeah, sorry.  I'm sorry.

		MR. ELLIS:  This is a difficult thing here, Your Honor, just because
we are not really related organizations.  But we do work together an
awful lot.

		MR. SCHNEIDER:  Right, right.  I apologize, yeah.

		MR. ELLIS:  But I'll just offer our perspective --

		MR. SCHNEIDER:  Sure.

		MR. ELLIS:  -- just to set the record straight.  We, on the contrary,
support an action level set at 50 µg/m3 and we actually think that it
is a great motivating force in an OSHA comprehensive standard because it
offers an outlet for people that can come into compliance with a
practical action level to remove themselves from the operation of the
rule.  And that's a challenge for industries to try to get to a lower
level, one that would get them out of the rule entirely.  And by doing
so, they would be at levels that would be protective of their workers. 
So we favor the action level.

		But like our colleagues here at National Stone, Sand, and Gravel, we
also believe that the current PEL is protective, and we find that based
on our actual experience over decades, as opposed to a hypothetical.

		MR. SCHNEIDER:  Experience in terms of do you do medical exams and you
have some results that show that it's protective, is that what you're --

		MR. ELLIS:  Yes.

		MR. SCHNEIDER:  Okay.  So you have some aggregate data, medical data
on your member companies?

		MR. ELLIS:  Our members report data to us on an annual basis in terms
of incidents of silicosis.

		MR. SCHNEIDER:  And those are all with B readers, right?

		MR. ELLIS:  They had been read by B readers, yes.

		MR. SCHNEIDER:  And when you talk about silicosis, you're talking
about 1/1 x-rays or 1/0 x-rays?

		MR. ELLIS:  1/1 is what we use to categorize reportable silicosis
under the program.

		MR. SCHNEIDER:  Right, okay.  And have you provided the data on --

		MR. ELLIS:  That question was asked of me in an earlier appearance
where I was representing the National Industrial Sand Association.

		MR. SCHNEIDER:  Right, right.

		MR. ELLIS:  And what I told the panel and told the participants here
was that that information is the companies' proprietary information. 
They share that with us in an aggregate form.  And it is blinded so that
the communication can really take place within the association.  But in
terms of making that information available to OSHA or to anybody else,
that's a matter that we'll have to consult with our members on.

		MR. SCHNEIDER:  And how long back -- how far back does this
information go?  Is it 20 years or --

		MR. ELLIS:  We've been keeping the silicosis prevention program that
we have at NISA has been operating since 1994.

		MR. SCHNEIDER:  '94, right, right.

		MR. ELLIS:  And many of the companies have been doing chest x-rays,
pulmonary function tests, TB tests for longer than that, 30, 40, 50
years.  

		MR. SCHNEIDER:  Right, right.  Now, do you guys, I mean I know there
is some controversy about this, but are you -- do you treat silica as a
lung carcinogen?  Do you believe that it is, based on the evidence from
the International Agency of Research?  Do you tell your employees that
it could cause cancer?

		MR. ELLIS:  I'm assuming you're directing that at me.

		MR. SCHNEIDER:  Yes, let's start with you.

		MR. ELLIS:  Okay.  I can't speak for the member companies.  I can give
you anecdotally what they do, because the association does not weigh in
on those --

		MR. SCHNEIDER:  Right.

		MR. ELLIS:  -- particular issues.  But I know that most of the
companies that are members, the producer member companies produce MSDSs
or --

		MR. SCHNEIDER:  Right, SDSs, yeah.

		MR. ELLIS:  -- safety data sheets, I guess they're now called.  And
then they report hazards in there.  And typically there is a
pronouncement relative to findings by the International Agency for
Research on Cancer or for the National Toxicology Program.  And that
information is, you know, included in their SDSs and on their labels as
part of commerce.

		MR. SCHNEIDER:  Right.  Okay, thank you.  Do you want to respond to
that?

		MR. DRYSDALE:  Sure.  This is Dale Drysdale, again.  Yes, the same
answer.  We don't collect the information from our members.  But the
material safety data sheets that I have seen, I can say without a doubt
I haven't seen one that doesn't mention IARC, NTP, and OSHA, listing
crystalline silica as a carcinogen.

		MR. SCHNEIDER:  Okay, thanks very much.

		JUDGE SOLOMON:  Okay.  Ms. Ryder?

		MS. RYDER:  Sure.  Dave?

		MR. O'CONNOR:  Yes, this is Dave O'Connor.  I have just one question
for the NSSGA.  It's a two-part question, thought.  In your written
comments, you indicate that regulated areas and written access control
plans are not feasible in many aggregates facilities.  First, are you
referring to facilities that would be under OSHA jurisdiction?  And if
so, could you elaborate on why you don't think those regulated areas or
access control plans are feasible?

		MR. DRYSDALE:  This is Dale Drysdale.  Our comments relate to -- I
think we mentioned OSHA facilities, but we really are speaking to MSHA
facilities.

		MR. O'CONNOR:  Okay, thank you.

		MR. MOORE:  Dalton Moore.  My question is for the National Sand,
Stone, and Gravel Association.  In the comments that you submitted, you
talk about a comprehensive occupational health program that the
association has adopted.  And I was just hoping that you could describe
the program and how it has reduced silica exposures?  And you also talk
about some engineering controls, and if you could talk about how
effective they have been?

		MR. DRYSDALE:  I can answer part of your question.  This is Dale
Drysdale, again.  Our occupational health program is largely, stems from
the same source as the NISA program 20-plus years ago.  Bob Glenn, who
was then with NISA, and some of our member companies helped put that
together, and it has been supplemented since then.  

		It has seven primary components.  The first component is driving a
management commitment to reducing silica exposures.  In addition to
silica, it also covers welding fumes, solvents, noise, and other
occupational hazards or potential hazards.

		The second component is communication and training of the employees.  

		The third component is air sampling.  You heard Pam a moment ago
discuss how we have a partnership with MSHA, and the MSHA instructors
come in and train in three-day workshops, train member technicians to do
the sampling in their own facilities.  And, again, that goes to not just
silica, but welding fumes and solvents and noise and other potential
hazards.

		The fourth segment is exposure control programs.  And that supports
the industrial hygiene hierarchy of controls that we have heard a lot
about.

		The fifth part is medical surveillance.  And that recommends a
baseline medical exam, an occupational and work and social history,
pulmonary function test, x-rays with B readers, and audiometric testing
at 85 dBA.

		The sixth part is a smoking cessation program which encourages
employees to quit smoking, and in some cases discussed compensation for
quitting.

		The seventh component is a program evaluation and auditing mechanism
to ensure that the program is kept up to date.  

		I would like to stress that this is a program that we make available
to all of our members.  And we have -- we continue to encourage them to
adopt it.  And from the feedback that we get, which would be anecdotal,
I can't quantify it, it is in place in most of the operations that I'm
familiar with.

		MR. MOORE:  Thank you.  Also, you talked about how the NSSGA has
hosted dust workshops.  And there are three-day, hands-on intensive
classroom and field training events that help enable members to measure
and reduce silica exposures at their own operations.  And I was hoping
you could talk about that and give us some insight on how your members
have been able to take what they have learned back to their specific job
sites?

		MR. DRYSDALE:  That's what I was referring to a few moments ago. 
These are the three-day classes that are put on by MSHA instructors. 
One of our members will offer up a workplace, typically a quarry, either
an open pit or an underground mine, and the MSHA instructor goes there. 
The folks who sign up for the class from the different member
organizations will collect, there and they spend three days on the
ground doing these training exercises where they stress the industrial
hygiene sampling method.  They also discuss exposure controls and other
issues.  That has been going on for at least 15 or 20 years.  I don't
have the exact date.  

		The feedback that I'm aware of would again be anecdotal, that many of
the members now do their own air sampling as a result of being able to
spend the time in this class and with the MSHA instructors.

		MR. MOORE:  Okay, thank you.

		MR. KUCZURA:  My name is Greg Kuczura.  I have a question in regards
to the wet vac sweepers that you submitted in your comments.  You stated
wet vac sweepers are typically 50 percent to 75 percent more costly than
the dry sweepers on facility roadways.  And I wanted to ask if it's
possible to submit your sources for that information?

		MR. DRYSDALE:  I'll be happy to get back to the source of that
information and ask if they can provide something that we can supply to
the record.

		MR. KUCZURA:  That's it.  Thank you.

		MS. IANNUCCI:  Good afternoon.  This is Annette Iannucci.  I just had
a couple of questions for NSSGA.  Going back to your occupational health
program, have you submitted that to the record?

		MR. ELLIS:  We have not, but we'd be happy to.

		MS. IANNUCCI:  Okay, great.  Thank you.  And in your written comments,
you say that in the report, in the medical provider's report to the
employer, it should only include fitness for duty statements and
restrictions such as on the use of respiratory protection.  Can you
elaborate on why it's appropriate to only include that type of
information?

		MR. DRYSDALE:  I guess an easier way for me to answer that would be to
tell you what I meant or what the group meant who wrote it.  I
ultimately provided the document.  What we are trying to avoid -- I
don't think that we're in disagreement with OSHA on providing the
information to employees, to the contrary.  

		What some of our members are concerned with is that they receive from
a physician, typically an outside physician because most of our members
don't have a medical staff, but they receive a medical file.  And they
are then in a position to have to lock it up.  And this is less of a
problem nowadays with HIPAA, but in days gone by it was a huge problem
because they had all these medical records and didn't know what to do
with them.  They were afraid to destroy them because of the access to
records rule.  And they really didn't want to peek through them because
we didn't typically have medical people on staff.

		So this is an attempt to say that what our members don't want is a
bunch of confidential medical records.  What they do want is something
from the physician saying we did an examination on this particular
employee, he or she is or is not able to do the following work tasks.  

		If there is, for example, if there is respiratory protection, they can
do it with X number of hours, or whatever, just the job-related
specifics and not get into the person's extracurricular activities or
whatever shows up in medical records.

		MS. IANNUCCI:  Okay, thank you.  And just one more quick question.  In
your written comments, you also state that it might be difficult to
schedule an initial medical exam within 30 days in remote areas.  And I
was just wondering why that might be such a problem in remote areas?

		MR. DRYSDALE:  Well, in real remote areas, there are not too many
medical clinics, so they have to get a testing van.  And sometimes those
testing vans are not just right around the corner.  So it may be, you
know, we'll be in Montana in March or in June and we'll get to when we
can, otherwise it becomes a logistics issue.  But it's primarily the
logistics of getting a testing van to it.

		MS. IANNUCCI:  Okay, thank you.

		MR. STONE:  Robert Stone.  I had a couple of questions mainly for
NSSGA, but IMA-NA might find it applicable, too.  You provided a fair
discussion of all your training programs.  And I was wondering if you
pretty much support the requirements for training in OSHA's proposal?  I
know you're covered by MSHA, but --

		MR. DRYSDALE:  I'd want to go back and take a look at the language
again and get back to you on that.  I can't think of an example right
now where we are opposed to it.

		MR. STONE:  Okay.  

		MR. ELLIS:  IMA, and NISA, and IDPA all support the training
provisions.

		MR. STONE:  Thank you.  My last question I wanted to go back to the
issue of regulated areas.

		JUDGE SOLOMON:  Mr. Stone, let me just say that the last speaker was
Mr. Ellis, and Mr. Drysdale was the speaker before that, so that we
straighten this out on the transcript.

		MR. STONE:  Thank you.  My last question concerned regulated areas and
written access control plans.  And you indicated that you think they are
not feasible in large part because of the dynamic workplaces.  But you
currently operate under circumstances where I believe there are
substantial safety hazards, possibly collisions of vehicles, but more
likely running over pedestrians or other workers.  And I was wondering
what steps you have taken to reduce those types of risks?

		MR. DRYSDALE:  This is Dale Drysdale.  I'm not sure I'm the best
person to answer that question for you in terms of the safety issues,
injuries, direct injuries, and things of that nature.  I'm probably not
the best person to answer that question.

		MR. STONE:  Okay.  Well, I didn't want information on injuries, but
basically procedures to prevent them.

		MR. DRYSDALE:  I know that certainly the members that I talk to have
internal procedures on avoiding accidents.  Specifically what they are,
I'm not prepared to --

		MR. STONE:  Okay, thank you.

		MR. DRYSDALE:  I just don't know the answer to that.

		MR. STONE:  All right.  

		MR. ELLIS:  I know from the operations that I have worked in the past,
I mean they range from backup cameras on haul trucks, you know, to
putting lines down on the parking lot so that pedestrians have to move
within a certain frame so the drivers are aware where they operate.  But
it's a diverse industry, and I'm sure that they have many different
programs and different intervention activities to prevent those kind of
accidents.

		MR. STONE:  Okay.  But I'm wondering if some of those might be
something similar to, if not regulated areas, then perhaps having a
plan, a written access control plan, whether that might not be too far
afield from what's being done now.

		MR. ELLIS:  I can't speak to that directly, but there may be something
that we can come in, in terms of additional evidence for the record in
this post-hearing comment period.

		MR. STONE:  That would be great.  We'd appreciate it, thank you.

		MR. DAVIS:  These questions are principally for Dr. Ellis.  I guess
your organization is the co-author of the Dust Control Handbook with
NIOSH?

		MR. ELLIS:  Yes.

		MR. DAVIS:  And I'm focusing basically on Chapter 8, which focuses on
secondary control of air -- in terms of you talk about clothes cleaning
booth, vacuum sweepers, other secondary controls.  Could you comment on
that, their applicability to industrial settings?

		MR. ELLIS:  I'm doing this from memory and not from having the
document in front of me, but I think I can address it.  Let me speak
specifically about the vacuuming and clothes cleaning booth as it
applies to soiled work clothes.  This was a collaborative research
project between one of our member companies and the National Institute
for Occupational Safety and Health.  And there was an effort to try to
improve upon reducing the amount of dust or silica type material that
might find its way onto workers' clothes.  

		Vacuuming can only get so much out, and it's difficult to move that
vacuum head around to get as much as you possibly can.  And what these
researchers were about to do was to develop a negative pressure
enclosure that uses controlled compressed air to lift the dust off of
clothing, and then suck it out and remove it through a filtration system
so that it doesn't contaminate workplace air. 

		And in the matter of donning goggles and hearing protection, and
turning around once in the booth, they basically end up with clean work
clothes so that you don't have people that are slapping themselves and
entraining dust into their breathing zone.  So it's really effective
technology.  There is a video available on the NIOSH website that
details it and it is referenced in the material that we made available.

		MR. DAVIS:  A follow-up question.  What are your lessons learned in
terms of housekeeping procedures, continuous dust control, responding to
spills?

		MR. ELLIS:  I don't believe I'm competent to answer that question.

		MR. DAVIS:  Okay.  That's all my questions.

		DR. COBLE:  Joe Coble.  I want to ask you about the Dust Control
Handbook and the technologies that are presented in there that were
originally developed for mining are being put out under the idea that
these could be applied to other operations that have similar types of
equipment.  Is that --

		MR. ELLIS:  That's our position.  We feel it can, yes.

		DR. COBLE:  And where they have been proven to be effective, does that
include getting levels down below 50, at these operations where they
have been installed?

		MR. ELLIS:  I don't think that there was a quantitative measure that
was the driving force for identifying the different technologies that
are in that control handbook.  Essentially, what we're looking at was
what range of control technologies were out there and trying to document
them so that it could serve as a reference for people in mining or in
other industries that have essentially static dust exposure situations. 
We think that it probably has more applicability to general industry
than it does to construction, for instance.

		DR. COBLE:  And so based on your review of members' reports, are they
down below 50 at most of your operations?

		MR. ELLIS:  You know, again, I wear many different hats.  And one of
the hats I wear is president of the National Industrial Sand
Association.  And so the reports that come in from the membership
indicate that, by and large, the members have to control below 50 µg to
reliably be below 100 µg where the existing PEL is.  And that's one
reason that we argue for maintaining the current PEL.

		DR. COBLE:  Okay, thank you.

		MR. ELLIS:  You're welcome.

		MS. RYDER:  I just have a couple of questions for the NSSGA. 
Following up on what Annette Iannucci was asking you about with your
occupational health program, I think you mentioned that you do medical,
you recommend medical surveillance as part of that.  What is the trigger
for that in terms of how many days workers would be exposed above 100 or
50, whatever the exposure level is?

		MR. DRYSDALE:  I'm going to have to go back and look at it, but I
think the answer is that the recommendation is if you have people
exposed over the 100 µg/m3 level.

		MS. RYDER:  Do you know for how many days out of the year?  Is it if
workers are exposed one day out the year?

		MR. DRYSDALE:  I apologize for not knowing the answer.  I doubt if it
would be 1 day, probably 30 days, if it's a recommendation, if there is
a time limit.

		MS. RYDER:  Okay.  I'm going to follow up.  You might not know the
answer, but do you know how your member companies are keeping track of
the workers who are exposed at that level?

		MR. DRYSDALE:  I do not.

		MS. RYDER:  Okay.  One other question.  I think you mentioned that air
sampling is part of that program, also?

		MR. DRYSDALE:  That's correct.

		MS. RYDER:  Do you know what type of -- do you recommend a certain
type of sampler be used to do that monitoring?

		MR. DRYSDALE:  We recommend that they follow the NIOSH 7500 method,
which is the Dorr-Oliver cyclone for a full shift.

		MS. RYDER:  Okay, great.  Thank you.  That's it for me.

		MR. O'CONNOR:  That's all the questions we have.  Thank you very much
for testifying here today.

		JUDGE SOLOMON:  Before you leave, are there any documents that you
want to proffer from either group?

		MS. RYDER:  If you have a copy of your written remarks, I can mark
that.  I'm going to mark NSSGA's written remarks as Hearing Exhibit 73
and ask that be admitted into the record.

(Whereupon, the document referred to as Hearing Exhibit 73 was marked
and 	 received in evidence.)

		JUDGE SOLOMON:  Okay, thank you very much.  The Operating Engineers
have granted one of the other speakers to take their first part of their
presentation; in other words, we're going to move their presentation
back.  

		So is Juan Ruiz here?  Okay, you have 10 minutes.  And you are la
trotasera (ph.)?

		THE INTERPRETER:  Yes.

		JUDGE SOLOMON:  Si, okay.  So why do we need translation?

		THE INTERPRETER:  Mr. Ruiz is going to be presenting his testimony in
Spanish.

		JUDGE SOLOMON:  Okay.  Will you state your name, please?

		THE INTERPRETER:  Me or Mr. Ruiz.

		JUDGE SOLOMON:  You.

		THE INTERPRETER:  Anna Duncan.

		JUDGE SOLOMON:  Okay.  Normally, what I would do is swear in the
interpreter.  But under the rules -- we're operating under very benign
rules.  So I would ask, Ms. Ryder, if I should swear in the
interpreter?

		MS. RYDER:  No, I don't think --

		JUDGE SOLOMON:  Okay.  So, briefly, ma'am, I would ask you, if you're
the interpreter, I want to ask you, okay, what experience do you have as
an interpreter?

		THE INTERPRETER:  I've been working as a simultaneous and consecutive
interpreter since approximately 2006.

		JUDGE SOLOMON:  Okay.  So we do not need a word for word translation
into the record.  So what the record should show is only the English.

		THE INTERPRETER:  I'm not sure I understand what you're instructing me
then.

		JUDGE SOLOMON:  Have you ever done translation for the Social Security
Administration?

		THE INTERPRETER:  No.  I have done translation for hearings in the
Congress and for D.C. government hearings, so similar.

		JUDGE SOLOMON:  Right.  They don't do them that way, okay.  The way
they do them is word for word, so you would have to put the exact
language that he would give you into the record.  The other way of doing
it would be that you would just listen to what he has to say and
translate to me whatever it is.

		Now, my experience is that there are -- for full disclosure, I speak
Spanish.  So it could very well be there are a number of idioms that do
not translate directly word for word.  So I don't want -- modismos, I
don't want to give you any examples, but there are lots of them.  So
we'll have to try to get the complete gist of his testimony.  Okay, so
state your name for the record, please.

		THE INTERPRETER:  Again, are you speaking to me or are you speaking to
Mr. Ruiz?

		JUDGE SOLOMON:  No, his name.

		MR. RUIZ:  Good afternoon, my name is Juan Ruiz.  

		JUDGE SOLOMON:  Okay.  And where do you live, sir?

		MR. RUIZ:  And I live in Racine, Wisconsin.

		JUDGE SOLOMON:  Okay.  So what do you have to say?

		MR. RUIZ:  I worked for 14 years in a foundry called Racine Steel
Casting.  

		JUDGE SOLOMON:  In the city of Racine, yes.  Go ahead.

		MR. RUIZ:  And in that foundry, we dealt with very bad conditions,
particularly because the dust that was created by the sand.  With this
dust, we couldn't even see 10 feet in front of us.  And I worked in the
foundry for 14 years, and the only thing that we had as protection here
was a fan that was behind us, that was several feet behind us.

		But in front of where we were working, there was a drill that was
making the molds that we were working on.  And so all of that dust was
coming back at us.

		And so after working for several hours in this condition, we would
come down from the area that we were working in and we would be very
dizzy.  And our supervisor would just give us packet of like flavored
water or flavored drink and say, oh, that'll take care of it for you.

		And it was very difficult because there were no extractors.  There was
no ventilation to take the dust out of the air.  They also refused to
open the windows because the supervisor didn't want the iron that we
were molding, that we were putting into the molds to get cold.

		And during that time, 80 percent of the workers were Hispanic and 10
percent were African American.  And I also know that a lot of our
colleagues died from lung cancer.

		And also the cars that were parked around the foundry would often get
dust would fall on it and these dust particles would stick to the cars. 
And even though people would wash their cars, the dust was still stuck
to it.

		And it's very sad because even today the workers who work in foundries
in cities like Racine, Kenosha, Waukesha, Beloit, Wisconsin are still
suffering from these conditions.  And this is what I have heard from
based on my own experience and from the contact that I have had with
them and where they have told me about their experience in these cities.

		And that's why I think that it is very important to find a solution,
so that we don't continue have more and more workers killed as a result
of silica.  Thank you.

		JUDGE SOLOMON:  Do any of the public have questions for Mr. Ruiz? 
Okay, you're number one, and you may be the only person who has
questions.

		MS. REINDEL:  Thank you very much for coming here today.  I was
wondering, you said you worked in a foundry for 14 years and that you
knew other workers -- you know other workers who work in foundries
today.  What do you hear from those workers about the conditions in
foundries today?

		MR. RUIZ:  I can say that the conditions that workers face today are
actually worse than the conditions that I faced, myself.  And this is
because many of the bosses don't provide personal protective equipment. 
And when workers ask for them, oftentimes the boss will say, well, if
you don't like it here, then you can go.

		And the other answer that workers often hear is, all right, I'll give
you what you're asking for, but then I am going to deduct it from your
paycheck.  And I don't think that that's right.

		MS. REINDEL:  Okay, thank you.  What happens when workers bring other
safety concerns to their boss, in your experience?

		MR. RUIZ:  Another concern that we see is that when workers go to the
doctor, often the doctor doesn't give them their medical tests, the
results of their medical exams.  They give it to the boss, and so the
worker doesn't know what the conditions are that they are suffering
from.

		MS. REINDEL:  Okay, thank you.  And I don't think I introduced myself,
but Rebecca Reindel, R-e-i-n-d-e-l, with AFL-CIO.

		JUDGE SOLOMON:  Yeah, I appreciate that.  I was about to -- okay,
there is one other person in line, two other people in line, I guess. 
State your name and spell your name.

		MR. DOOLEY:  My name is Peter Dooley, D-o-o-l-e-y.  And I am
representing National COSH Network.

		JUDGE SOLOMON:  What is COSH?

		MR. DOOLEY:  The Coalition on Occupational Safety and Health.

		JUDGE SOLOMON:  Okay.

		MR. DOOLEY:  Mr. Ruiz, you've described some situations that you've
heard from other workers.  What is your role in getting to know that
information in terms of how do you hear these stories from other
workers?

		MR. RUIZ:  The reason that I know these stories of other workers that
I am a health and safety trainer, and so I give a lot of workshops in
the cities that I mentioned to workers.

		MR. DOOLEY:  And in your time in the foundries, working in the
foundries, was there -- did you ever see air sampling be taken that
workers wore sampling equipment?

		MR. RUIZ:  There was a time when OSHA was doing these studies, but I
don't think that they were enough because the conditions continue the
same as they were.

		MR. DOOLEY:  Thank you.

		JUDGE SOLOMON:  Thank you.  You have somebody else?  You were in line?

		UNIDENTIFIED SPEAKER:  He asked my questions.

		JUDGE SOLOMON:  Okay, thank you.  Okay, Ms. Ryder?

		MS. RYDER:  I think Dave O'Connor had a question?

		MR. O'CONNOR:  Yes.  I have a question.  Did you or do workers in the
foundry receive any training about the hazards associated with silica
exposure and what measures can be taken to protect yourselves?

		MR. RUIZ:  No.

		MS. IANNUCCI:  Good afternoon.  This is Annette Iannucci.  I'd like to
follow up on the question about the employer receiving your medical
exams.  Besides not being able to find out about any medical condition
you might have, do you or any of the other workers have any fears that
the employer might retaliate against you if he finds out you have an
illness?

		MR. RUIZ:  Yes, that's correct.  And I have known several workers who
needed to know this information, who needed to get this information,
because they had been suffering for not one week, but three weeks from
coughs.  And so they went to the doctor and the doctor said, no, you
need to ask your employer for this record.

		MS. IANNUCCI:  Okay.  Do these workers have any fear that they might
lose their job if their employer finds out they are ill?

		MR. RUIZ:  And one thing from the previous statement, that these
workers were fired in some cases.  And the fear, there is a constant
fear of being fired, that the employer will actually follow through with
these threats.

		MS. IANNUCCI:  Okay, thank you, Mr. Ruiz.

		MR. RUIZ:  Gracias.

		JUDGE SOLOMON:  Ms. Ryder?

		MS. RYDER:  I don't think we have any more questions. 

		MR. O'CONNOR:  On behalf of OSHA, I'd like to thank you very much for
appearing here and testifying today.

		MR. RUIZ:  And thank you to all of you for the work that you are doing
for this effort, not just on behalf of myself, but on behalf of all
workers.

		JUDGE SOLOMON:  Okay.  Thank you very much.  Ms. Nadeau, your panel
is up.  Okay, we're off the record for a second.

		(Off the record at 2:38 p.m.)

		(On the record.)

		JUDGE SOLOMON:  We're back on the record.  Ms. Nadeau gave me a copy
of the PowerPoint presentation, and I have passed that over to
Ms. Ryder.

		MS. RYDER:  Yes.

		JUDGE SOLOMON:  Do you want that entered into the record?

		MS. NADEAU:  As an exhibit, yes.

		MS. RYDER:  Okay.  I will mark this PowerPoint presentation Hearing
Exhibit 73.

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

		MS. RYDER:  I'm sorry.  Actually, it's 74.

		JUDGE SOLOMON:  I'm sorry, 73 is not entered, I guess.  Number 74 is
entered into evidence.

(Whereupon, the document referred to as Hearing 		 Exhibit 74 was marked
and	 received in evidence.)

		JUDGE SOLOMON:  Okay.  Ms. Nadeau, are you going to introduce
everybody?

		MS. NADEAU:  I was going to introduce myself and have them all state
their names, if that's appropriate.

		JUDGE SOLOMON:  Okay.  You gave me a docket that's available for the
public.  What is the document?

		MS. NADEAU:  In the interest of time, we put together a listing of all
the credentials of the group of seven subject matter experts, and I have
a copy for OSHA.  And on that table over there, if anyone wants to pick
up a copy of the description of their credentials, it's available for
anyone in the audience.  And if you want that as an exhibit, we can have
that marked as well.

		MS. RYDER:  Okay.  

		JUDGE SOLOMON:  Okay.  So you get 90 minutes.

		MS. NADEAU:  Yes.

		JUDGE SOLOMON:  And then we'll have a question period from the public
and then from OSHA.  Go ahead.

		MS. NADEAU:  My name is Liz Nadeau, and I'm with the International
Union of Operating Engineers headquarters in D.C.  And we have a panel
of seven witnesses who will introduce themselves.

		MR. ZIMMER:  Kyle Zimmer, Health and Safety Director, Local 478,
Hamden, Connecticut.

		MR. TUREK:  Martin Turek, Assistant Coordinator and Safety
Administrator, Local 150, Operating Engineers, in Chicago.

		MS. McCABE:  Barbara McCabe, Program Manager with the Operating
Engineers hazmat program in Beckley, West Virginia.

		MR. MURPHY:  Keith Murphy, IUOE, Local 478.

		MR. HOPKINS:  Larry Hopkins, IUOE, Training Director, Local 12, in
Whittier, California.

		MR. HULK:  Donald Hulk, Safety Director, for Manafort Brothers, Inc.,
Plainville, Connecticut.

		MR. POULOS:  Marc Poulos, Executive Director of the Indiana, Illinois,
and Iowa Foundation for Fair Contracting and Board Member of the
National Alliance for Fair Contracting.

		MS. NADEAU:  The IUOE strongly supports the proposed rule as a
necessary measure to protect the safety and health of operating
engineers.  The IUOE also supports the testimony and comments of the
Building and Construction Trades Department and of the AFL-CIO.

		The IUOE's goals in advocating for changes to the proposed rule are to
protect its members to the fullest extent feasible and to ensure that
compliance resources of its signatory directors are best utilized.  

		Of the 1.85 million construction workers affected by the proposed
standard, a great many are heavy equipment operators.  Indeed, about
half the Table 1 tasks are performed by operating engineers.

		Since operating engineers typically perform Table 1 tasks such as
working in rock crushing operations or milling for full shifts, the
impact of the rule on our members is tremendous.  The IUOE's
presentation focuses on the silica-generating tasks performed by
operating engineers.  

		Our witnesses provide a detailed description of the Table 1 activities
involving the operation of heavy equipment and the critical importance
of safety training the competent person to the dangerous activities that
our members perform.

		The IUOE applauds proposed Table 1 as a proactive means to the
protection of workers before exposures occur, during activities that
fracture or abrade silica-containing materials.  This novel approach
will facilitate immediate implementation of engineering controls to
protect intermittent workers from exposures.  

		The IUOE has assembled a team of witnesses from Connecticut, Illinois,
California, and West Virginia.  Our team includes individuals who have
worked at the trade, safety and health directors, directors of training
funds that are jointly trusteed with labor-management, a hazmat program
director, a corporation safety director, and an executive director of a
fair contracting group.

		In responding to the proposed silica standard, the IUOE has engaged
management from the very start.  Since OSHA issued this Notice of
Proposed Rulemaking, Locals 12, 150, and 478 have convened meetings with
contractors, manufacturer representatives, industrial hygienists, a
health professional who specializes in respirator use, and safety and
health consultants to obtain input in the development of recommended
changes to the standard.

		The IUOE also met with a team of seven scientists and engineers in
Pittsburgh NIOSH for assistance in developing the IUOE's recommendations
concerning enclosed cabs, the competent person, and environmental
conditions that may affect silica exposures.

		Finally, I would like to point out that we listened carefully to the
testimony of the Silica Partnership of which the IUOE was a part, and we
wholeheartedly endorse their testimony and recommendations.

		MR. ZIMMER:  Good afternoon.  My name is Kyle Zimmer.  And as I
stated, I am the Director of Health and Safety of the IUOE Local 478, a
local union in Hamden, Connecticut, that represents 3,000 men and women
in our trade.  

		I'd like to start with telling you that I have been a volunteer
firefighter over the past 40 years.  Many of the firefighters, brother
firefighters I have fought fires with, died prematurely as a result of
unprotected exposures as we fought fires without respiratory protection.
 We were not afforded any protection of any type of laws in the '70s and
'80s pertaining to firefighting.  They died of a variety of cancers.  I
have diminished lung capacity as a result of exposure to toxins and
contaminants.

		It's too late for workers of my generation who have already been
chronically exposed to other contaminants and also silica in the
construction industry to benefit from this proposed standard.  We are
suffering the consequences of irreparable damage.  Our goal is to save
younger workers from developing similar health problems in the future.

		Since OSHA issued its Notice of Proposed Rulemaking in September of
'13, Local 478 has convened monthly meetings with Local 478 contractors,
manufacturer reps, a health and safety professional who specializes in
respirator use, and health and safety consultants to make recommended
changes to the standard.  

		Based on the IUOE's experience in implementing the hazwoper standard,
the IUOE understands the importance of joint labor-management
cooperation to educate workers about invisible hazards on construction
sites.  The hazmat program is an example of the success that can be
achieved when management and labor work together to address serious
health hazards in the workplace.

		During each of our meetings on the silica standard, it came through
loud and clear that our signatory contractors want to fully protect
their employees from health hazards while running a profitable business.
 They agree that greater precision in delineating construction tasks
will enable contractors to better plan for implementation of controls to
comply with the new standard and will enable them to better target their
compliance resources.

		We have put our heads together to promote recommendations to OSHA that
will achieve these goals.  All the contractors expressed the desire for
greater guidance from OSHA, particularly regarding the use of objective
data, reliance on prior employee monitoring, engineering controls for
earthmoving demolition and milling, and respirator use for Table 1
activities. 

		At the meetings, the contractors discussed the controls that the
currently use to control exposure to silica on the job site.  These
controls include use of water systems to suppress dust such as water
trucks and handheld hoses.  When performing the Table 1 tasks involving
the use of heavy equipment, contractors report that they are using
portable crusher control booths with air conditioning to operate the
plant remotely and dust collectors with baghouses at some crushing
operations.

		The contractors further advise that when working in close proximity to
traffic and the general public, their companies installed engineering
controls to mitigate the dust and minor debris generated by potential
silica-generating activities.

		The majority of Local 478's contractors have respirator programs
already in place to supplement engineering controls when the latter are
insufficient to control exposure to dust and other respirable
contaminants.  

		The participants in the meetings addressed the issue of engineering
controls used during the winter, when the temperatures are below
freezing in New England.  The contractors stated that calcium chloride
is regularly used as a dust suppressant during site work.  According to
OSHA's 2009 publication, Controlling Exposures to Silica, chloride
compounds have lowered the freezing point of water, making them useful
in cold temperatures.

		OSHA's publication further states that chloride compounds work as dust
suppressants by attracting moisture from the air, they resist
evaporation.  A Quebec study cites the 2009 OSHA publication and
reporting that the addition of surface active agents to water increases
its capacity through the wetting of dust.

		In an industry in which workers are constantly exposed to hazards that
could result in traumatic injuries to themselves and their co-workers,
education and outreach is essential to make workers understand that yet
another hazard exists on the work site.  

		All of the Table 1 activities performed by operating engineers are
dangerous.  Fatalities in excavation, for example, are 112 percent
higher than in general construction.  The heavy equipment used by
operators to crush, drill, fracture, and abrade rock and concrete
products expose workers to acute hazards, produces contaminants and
exposes workers to acute hazards.

		Inadequate training or monetary lapses in judgment or attention during
these operations can result in severe injury or death of the operator or
another member of the crew.  During many of the Table 1 operations
performed by operating engineers, the chronic hazard targeted by the
proposed standard is far more deadly than the risk sometimes resulting
in sudden fatalities on the job site.  The four major causes of
traumatic injuries resulting in fatalities account for nearly three out
of the five deaths.

		In 2012, falls accounted for 36 percent or 278 of the 770 fatalities
in construction.  Getting struck by an object caused 10 percent of the
fatalities.  Electrocution caused nine percent of the deaths.  And 12
workers were killed when they were caught in between 2 objects or
structures.  

		If exposure to silica caused immediate death in the same way falls
from significant heights or electrocutions do, the public's outcry for
support of the proposed rule would be overwhelming.  The fact that
workers die at home, in hospices, and in hospitals decade after the
chronic exposure desensitizes the regulated community and the general
public to the flight of those who suffer from the effects of such
exposures.

		Operators who work in environments such as trenches that present acute
hazards are also exposed to chronic hazards.  In my experience,
employers who do not have adequate training and safety programs for the
prevention of traumatic injuries also have very marginal training and
safety programs addressing industrial hygiene.  Some employers often
have no program at all.

		Employers who do not train workers to consistently de-energize the
rock crushing machine before retrieving debris are the same employers
who do not train employees to understand the benefits of using water to
suppress dust.  If a contractor runs a rock crushing operation without a
competent person on-site, the contractor is jeopardizing the health and
safety of the workers.

		Deaths and injuries during rock crushing contribute to OSHA's
statistics on fatalities caused by falls and caught in in-between
statistics.  The details from OSHA accident reports are gruesome but
necessary to illustrate the overwhelming need for a competent person to
be on site during the entire time that a crushing machine is in
operation.  

		The competent person has numerous responsibilities on any construction
site.  Responsibility for exposure assessment for respirable silica
falls well within the scope of the competent person's responsibility.  

		Industry representatives encourage OSHA to view the costs of safety
and training programs to prevent traumatic injuries as separate from the
cost of programs to prevent diseases caused by workplace exposure. 
These costs cannot, however, be separated.

		During Table 1 activities performed by operating engineers, the
competent person should be well educated on all dangers presented by an
activity so that he or she can be proactive in the preventing of
injuries, both acute and chronic.

		Training to control silica exposure would supplement training that
most employers are already undertaking to ensure compliance with
fugitive dust emission standards.  The competent persons required to
prevent acute accidents are available to address the chronic problems
caused by dust.  Contractors would not, as a general matter, incur the
cost of hiring additional onsite personnel.  Silica specific training of
competent persons requires only the addition of this topic to a
contractor's training and safety curriculum.

		The IUOE recommends the expansion of the definition of competent
person in 1926.1053(b) and the role of the competent person.  The role
of the competent person is essential since the factors that impact
silica exposures change during the course of a workday based upon local
geography and environmental conditions, such as wind and humidity, for
the reasons detailed in the IUOE's written comments.

		The IUOE endorses the BCTD's recommendations on the role of the
competent person.  The definition of competent person in the proposed
standard adopts the basic competent person language in 1926.32, and
includes a limited role for the competent person.  The IUOE submits that
in light of both the gravity of the harm caused by the exposure to
silica and the variables affecting exposure, the basic definition of
limited role of the competent person are inadequate.  

		The IUOE endorses NIOSH recommendations concerning the competent
person.  As NIOSH stated in its written comments, the need for expanding
the duties of the silica competent person is especially important when
employers plan to rely on Table 1 because it is less likely that an
industrial hygienist will visit the project to evaluate the job, collect
samples, or check the effectiveness of engineering controls.

		NIOSH further states that the effectiveness deteriorates when the
controls or personal protective equipment are not maintained and that
this degradation may not be obvious to the workers using the devices. 
The engineering controls needed for the protection of operating
engineers require ongoing diligence about the operator and the competent
person.

		The IUOE further endorses NIOSH's recommendation that OSHA include
explicit duties for a silica competent person.  In the interest of time,
the IUOE will not repeat these recommendations but refer OSHA to Page 9
of NIOSH's written comments.

		In addition to supporting NIOSH's recommendations, the IUOE also
supports the American Industrial Hygiene Association's recommended
skills and capabilities for silica competent persons.  The IUOE notes
that OSHA recognizes demolition and trenching as hazardous construction
operations in developing separate standards for each activity with more
stringent competent person requirements than those set forth in 1926.32.
 

		The competent standard for demolition and trenching requires
continuing inspection throughout the shift.  The variables affecting
exposures demonstrate the need for a well-trained person who is able to
address changes in environmental conditions during the workday.  

		During this hearing, participants asked NIOSH to comment on the
variables that impact silica exposures and the fact that a construction
project may be over before the results of the exposure monitoring are
available.  NIOSH stated that in light of the fact that there will often
be an absence of quantitative data, training of the competent person to
recognize visually the hazards created by silica-generating activities
is critical in construction.

		One such variable is adjacent silica-generating activities.  The IUOE
agrees with OSHA's view as expressed in the 2009 OSHA publication
Controlling Exposures to Silica, concerning the role of competent person
and the protection of standbyers from secondary exposure.  According to
OSHA, the competent person should have the ability to know when other
employers -- other employees in close proximity to the work operations
where silica dust is generated may also need respiratory protection if
effective controls are not implemented.

		OSHA further states that the level of respiratory protection is
dependent on the employee's silica exposure which varies depending on
factors in the work environment, such as semi-enclosed or open spaces
and/or multiple operations generating silica dust; environment
conditions, such as wind direction and speed; and the percentage of
silica found in the material.

		Opponents of the silica standard assert that exposure to respirable
crystalline silica is so ubiquitous and so varied in the construction
industry that it is virtually impossible to conclude that a particular
control measure can feasibly be implemented.  

		In construction, adjustments and reaction to unexpected circumstances
are commonplace.  A pre-construction analysis of an excavation site may,
for example, show a cross-section of different types of soil.  But
during excavation, the contractor may encounter a large rock formation
or an underground spring or water table.  Contractors are accustomed to
adjusting to both foreseen and unforeseen variables on the work site.

		Operation of a safe and profitable construction company takes planning
and skillful management.  To run a profitable operation, a prime
contractor must be adept in scheduling of activities -- must be adept in
scheduling activities to ensure that qualified personnel and equipment
are available.  

		NIOSH testified that the following variables could affect silica
exposure, wind and environment conditions, tools and work practices,
training and techniques, nearby activities, and a percentage of silica
in the materials.

		A number of these variables are within the control of the contractor
and/or are known before the project or workday begins.  Training, tools,
and techniques are known in advance and are within the control of the
contractor.  Some variables are major and require the work to be shut
down to allow time for a safety risk analysis or an engineering study. 
Other major variables may call for the use of the equipment that is not
onsite because the construction plan did not call for the use of the
equipment.

		The variables that affect silica concentrations are often highly
predictable.  A competent person is easily able to address highly
predictable variables since these variables such as a change in the wind
speed or direction occur regularly.  It is common sense that if the wind
conditions change, the equipment should be positioned so the operators
and others can work upwind from dust emissions when possible.  With
relative minimal training, a competent person and the workers will be
able to adjust easily to changes in wind conditions.

		The IUOE notes that wind conditions affect other operations that
result in acute hazards.  An example is the operation of a crane.  When
it is misty or humid, lower volumes of water can be used to achieve the
same results in dust suppression.  Since exposures can be measured
objectively, it is not unpredictable that on a warm, windy day in
Nevada, dust-producing operations will produce higher quantities of dust
than on a humid day in Seattle.

		The contractors can train a competent person on environmental factors
pertinent to the area in which the competent persons work.  Regional
differences in the environment are predictable.  Industry
representatives are well aware of the fact that environmental conditions
have a profound impact on the construction as a whole.  

		The potential for hypothermia and acute injuries such as slipping and
falling on ice or wet surfaces shuts down many jobs in the winter.  Some
work, such as laying asphalt, can't be performed in cold weather because
the asphalt must be applied when it is hot.  Silica exposure is not even
a consideration.  

		An asphalt miller, for example, may grind through asphalt and then
unexpectedly encounter a concrete sub-base with higher silica
concentration.  While the concrete sub-base may be unexpected on a
particular job, it is expected that millers will occasionally come
across concrete sub-base.  The competent person would know how to
address this situation if properly trained.  If a competent person in
milling detects visible dust, he or she may adjust the flow rates of the
water suppression, check the inline water filters, or ensure that the
nozzles are maintained per the manufacturer's recommendations.

		As I noted, the word "ubiquitous" repeatedly appears in the comments
of the opponents of the proposed hazard.  Opponents claim that, unlike
other health hazards regulated by OSHA such as asbestos and lead, silica
cannot be separated out from day to day job activities or avoided at the
job site.  

		The IUOE notes that the contractor associations suggest no alternative
solutions.  Their response to the problem is, in effect, throw up their
hands with the complaint that the problem is too difficult to fix. 
Again, I return to my initial point, if 700 additional workers die
immediately on the job sites instead of after years of literally
suffocating to death out of the public eye, the public would understand
that a failure to understand silica exposures causes premature death. 
The dangers on the construction site both visible and invisible are
ubiquitous.  

		The fact that silica, particularly respirable silica, is ubiquitous on
job sites is what makes it a grave threat to the health of the workers. 
The invisible hazard makes it difficult to educate workers and to
convince the regulated community to take the threat seriously. 

		In conclusion, I have learned firsthand the value of training a
competent person and site awareness through my work both in the
construction industry and with the emergency services.  Highly trained
and experienced safety personnel must take time to consider all the
potential hazards associated with an activity.  An invisible risk
initially unseen -- an invisible risk or a risk initially unseen may be
deadly.

		A competent person or a rescue crew cannot focus on the obvious
hazards, but the crew must be aware of other hazards present onsite.  In
February of this year, a friend of mine, an owner of a construction
company in South Windsor, Connecticut, which is my hometown, was killed
instantly when he rushed to assist an operator who was immobile on the
ground.  The owner did not take the few seconds needed to assess all the
hazards present and was electrocuted when he touched the charged truck
as he approached the operator.  

		The rescuers arrived on the scene and saw the co-workers trying to
help revive the victims.  The rescuers immediately tried to revive the
two men, but nobody noticed that the dump-bed of the truck was still in
contact with a live wire.  Fortunately, there were not additional
deaths, as high as five as easily could have been since the electricity
was not off until after rescuers began efforts to revive the men.

		The first electrocution was a terrible accident.  The operator was
unaware of the fact that the truck was energized as he exited the
vehicle and made contact with the ground.  The second fatality was a far
more preventable incident, if the owner had taken the time to evaluate
all the hazards present.  

		We will never know whether additional training on awareness of site
safety would have saved the lives of these two men.  Training and
retraining are crucial when operators perform dangerous activities. 
Thank you for the opportunity to address.

		MR. TUREK:  Good afternoon.  My name is Martin Turek.  My testimony
describes the Table 1 activities performed by operating engineers and
recommends revisions to the proposed standard as it relates to
earthmoving for reasons stated in the IUOE's written comments.

		The Table 1 activities performed by operating engineers include the
use of heavy equipment during earthmoving activities using
vehicle-mounted drill rigs for rock, operating vehicle-mounted drill
rigs for concrete, rock crushing, and operating drivable masonry saws
and milling. 

		The IUOE proposes that OSHA (1) list in Table 1 the specific
earthmoving tasks that fracture or abrade silica-containing materials in
such a manner as to generate appreciable airborne concentrations of
respirable silica, namely rock ripping, breaking, or hoe-ramming; and/or
(2) to add the following definition of earthmoving to the standard:
Earthmoving means an activity that fracture or abrades materials
silica-containing such as in a manner to generate airborne
concentrations of respirable silica at or above the action levels. 
Earthmoving does not include demolition.

		Earthmoving describes the use of heavy equipment to excavate, trench,
or stockpile soil, clay, rock, or sand.  Earthmoving can be summarized
as breaking, moving, or laying the earth.  During earthmoving, the earth
is broken into small pieces.  The term breaking may also be thought of
as cracking, scraping, ripping, or auguring into the ground.

		The equipment used to break up the earth depends on the contractor's
preference, the material, example if it is clay, rock, or sand, etc.  In
the state of Illinois, for example, it is common to use a scraper, as
you see up there on the picture, for earthmoving due to the composition
or consistency of the soil.  The scraper breaks up the top foot or less
of the earth with a blade as wide as the machine, making it very
effecting for massive earthmoving.  Other parts of the country are more
likely to use an excavator or backhoe to break up the earth and load it
into off-road dump trucks or dump trucks, as seen in the picture above.

		Where earthmoving involves rock, the process of breaking or fracturing
rock requires more force.  For example, a breaker or a hoe-ram can be
attached to an excavator to break up the earth by applying more pounds
per square inch than the bucket alone.  An example is up there on the
screen in the photo.  The breaker is essentially a cylinder that ends
with a dull point, a giant jackhammer on a machine.  

		Also, a drop hammer may also be used to fracture the earth.  A drop
hammer, as seen in this picture, is typically attached to a truck, and
is wide and flat, sort of like a door.  Similar to a guillotine, the
hammer drops and hits the ground, and breaks it into smaller pieces to
be moved later.

		In the western part of the United States, rock ripping is commonly
used to fracture the earth.  During this process, as you see in the
picture, a shank is attached to the back of a bulldozer and pulled
through the ground.  This process tears the ground open.  Picture the
earth being ripped open like a zipper or using a butter knife to cut
through a thick steak, as compared to cutting that same steak with a
sharp steak knife.  

		These three processes, rock ripping, rock drilling, breaking or
hoe-ramming, are used to fracture rock that is more likely to contain
significant amounts of silica.  As a result, the respirable silica
generated during these processes may exceed the permissible exposure
limit. 

		In comparison, it is unlikely that moving soil or clay will generate
respirable silica in concentrations that listed above the PEL.  With
this in mind, OSHA could move earthmoving but add -- excuse me, could
remove earthmoving but could add rock ripping, rock drilling, breaking
and/or hoe-ramming to the operations listed on Table 1.

		Once the ground is broken up, it is picked up and placed into the
location that will be used on a project or moved to a stockpile for
later use.  As with breaking up the earth, this method of picking up
depends on the location of the project and the contractor's preference,
depending on experience and available equipment.

		The amount of dust generated during earthmoving depends on a variety
of factors, including the soil composition; the climate, such as
temperature, humidity; and engineering controls that are being applied. 
The amount of dust also depends on the construction method and the
distance the material is being moved.  For example, an excavator digging
a trench may dig into the earth and lay the material next to the trench,
as seen in this photo above.

		During this process, the earth may fall a few feet, if the excavator
bucket is laying the material next to the trench no closer than two feet
away from that trench.  The photo above, you can see the angle of the
bucket is very similar to the angle of the bucket as that machine is
digging.  So if this machine is using to dig earth out of the ground,
it's going to lay the ground very closely next to the trench, two feet
or more away, but the angle of the bucket is not going to change, thus
not creating an excessive amount of dust.

		However, if the material is dumped from the bucket, from an excavator,
into a dump truck, the bucket is going to be opened wider; being opened
wider, it's going to drop more quickly and pour from a greater fall
distance.  A higher drop distance will also cause a higher amount of
dust.

		After the ground is broken up and moved, the final steps of
earthmoving is to lay the material down on a permanent place on the job
site or in a stockpile, the material can be used later on the site. 
This material may be spread with a scraper, a bulldozer, or an
end-loader, or a dump truck.  A bulldozer is pictured up there.

		MS. RYDER:  Sorry to interrupt, Mr. Turek.  This I think is 11, Slide
11.  When we move onto the slides, will you mention the numbers?

		MR. TUREK:  Yes.

		MS. RYDER:  Okay, thanks.

		MR. TUREK:  A bulldozer is pictured in Photo 11.  For example, when
Local 150 constructed their 300-acre training site, the ground for the
building location was at least 11 feet lower than the engineer's
specifications.  To build up this area, fill material was moved from one
area of our site and laid into the building pad.  The soil was moved
with a scraper, leveled with a bulldozer, and compacted with a
compactor.  The area where the fill material was removed was created or
used to make a lake for runoff.  

		If an exposure assessment was required at the time of this project,
the competent person for the job site would have had the knowledge and
experience to identify whether the soil being moved would likely
generate respirable silica in concentrations at or above the permissible
exposure limit.  

		Rock drilling is another process to move mass amounts of composed of
rock.  Rock drilling involves a vertical drill attached to a truck or a
track-mounted machine that drills into the face of the rock, seen here
on Photo 12. 

		Once the hole is drilled, explosives are inserted to blow away the
face of the material.  If you have ever driven through the Rocky
Mountains, through the hills of Minnesota, or through the hills of
Pennsylvania, you have probably noticed long walls of rock along either
side of the highway.  Rock drilling and explosives were probably used to
clear this path.  Rock drilling is a very hands-on process.

		A drill may be truck-mounted or track-mounted.  Reaching the depth
that is needed to accomplish the task is done by adding drill stems
throughout the process.  A motor at the top of the drill stem rotates an
augur of the drill into the ground.  Once the length of the drill stem
is in the ground, the operator unthreads, lifts up the motor, and
threads a new drill stem into the ground.  They continually add more
drill stems and continue to augur into the ground.  The operator
continues to add these stems until they reach a desired depth.

		The operator typically stands on a platform with a control panel
adjacent to where the drill stem enters the ground, approximately arm's
length away from the drill stem and the point of entry into the ground. 
 

		If everybody could observe on this photo right here, Photo 12, you can
see a control panel on the left-hand side back of that machine.  This is
where the operator would stand and be positioned, directly within
distance -- arm's distance of that drill stem.  On the right-hand side
back of that truck where you see there is a ball, looks like a hook or a
coupler, this is where the helper stands next to the operator.  So both
the operator and the helper for this drill rig are standing within arm's
reach of the drill stem and the point of entry into the ground.

		So compared to other heavy equipment operators sitting in a cab above
the ground in the machine, operating drill equipment places the operator
in much closer proximity to the activity that may generate silica dust. 


		Operating engineers also work with rock crushers, which may be
portable or set up in a permanent location, seen here on Photo 13. 
During this process, rocks up to two foot in diameter are dumped into
the tub and crushed.  The broken material is then moved along a conveyor
belt system until it falls into a stockpile, dump truck, or an off-road
truck.  The conveyor belt carries a substantial amount of weight and
vibrates constantly.

		As material is loaded into the rock crusher, the operator sits at a
control panel overlooking the hopper.  From this position, the operator
can monitor the amount of material going into the crusher.  If too much
material is added, the material will jam.  If not enough material is
added, the crushing process will be too slow and inefficient.

		Once the operator has set up the appropriate rate of material going
into this machine, he will walk around the monitor the rest of the
process.  Once the rock is crushed, it moves upward along the conveyor
belt at approximately a 45-degree angle where the material is dumped to
the top of a pile.  

		Walkways are usually adjacent to the conveyor belt and along the
ground where the material is falling from the crusher onto the belt. 
This work is particularly dangerous.  And as the operator maneuvers
around the machine on the catwalk, quite a bit of shaking could occur on
this catwalk.  

		Moving around outside of the machine, the operator has the best view
of the process to ensure efficient production and is better able to
minimize hazards to other workers in the area.  While it is possible for
a rock crusher to be operated remotely in a positive pressure cab, this
does not give the operator a good view of the process and increases
hazards to other workers who might walk into the area they are not
supposed to be present.

		Operating engineers also operate drivable masonry saws, seen here in
Photo 14.  This equipment is used to make precision cuts, as compared to
fracturing or ripping the ground.  One example on a road project would
be to utilize a masonry saw to separate one lane of road from another,
the one lane of road being demolished and keeping the other lanes
intact.  This saw may also be used to cut up squares.  An example would
be a six by six foot square of roadway which can be lifted and moved
away with substantially less dust than other forms or road demolition,
including grinding.

		However, this process is more costly as it requires an extra operator,
one to operate the saw and another one to move the material, versus
operating an excavator, where a single operator demolishes and moves the
material.  Thank you very much.

		MS. McCABE:  Good afternoon.  Again for the record, my name is Barbara
McCabe.  I will take this opportunity to respond to industry
representatives who assert that OSHA's inclusion of respirator use on
Table 1 demonstrates that the PEL is not achievable and that
implementation of a respirator program would be cost prohibitive.  My
testimony also addresses the IUOE's recommendations concerning silica
training.

		The IUOE supports the Building Construction Trade Department's
statements refuting the arguments that OSHA's inclusion of respirator
use on Table 1 demonstrates that the PEL is infeasible.  Proponents of
this argument ignore OSHA's explanation in the preamble that Table 1 is
a worst-case scenario approach.

		With regard to milling, for example, OSHA's states that respirator use
is included on Table 1 because it cannot rule out the possibility that
silica exposures will occasionally exceed the PEL under certain
circumstances.  

		To be clear, the IUOE encourages OSHA to exhaust all alternatives
before adopting a standard that would permit employers to require
respirator use by operators for full shifts when other regulatory
alternatives are available.  

		The division of asphalt milling and concrete milling into separate
tasks on Table 1 would, for example, eliminate the requirement that
asphalt millers wear a respirator all day when they engage in milling
operations for four hours or more in a workday.

		We encourage OSHA to re-examine the exposure data for Table 1
activities performed by operating engineers with the goal of creating
subcategories of work.  In so doing, OSHA will be better able to tailor
controls based upon relative exposure levels generated by the activity
and, thereby, avoid the use of respirators when no health benefits will
be advanced.

		In any event, the vast majority of construction contractors who employ
heavy equipment operators in highway, building, and heavy construction
also perform demolition and remediation.  These employers already have
respirator programs.  And employer would not have the ability to bid on
work which could expose their workers to other contaminants, such as
lead and asbestos, if they did not have a respirator program.

		The IUOE agrees with OSHA that the hazard communication standard is a
good starting point for training employees on a job site about the
silica hazards they may be exposed to during a specific job.  However,
the IUOE contends that the information covered in hazard communication
training is not sufficient for those engaged in silica-generating
operations.

		The IUOE urges OSHA to require additional training elements for
employees who will be engaged in operations that may generate silica
exposures above the action level.

		These employees should be able to identify all operations on the job
site that may potentially generate silica exposures, identify
engineering controls, and the state of controls, work practices, and
personal protective equipment used to control silica exposure, the
employer's silica exposure assessment, and exposure control plan,
including the identification of the competent person.

		The IUOE local unions conduct this type of awareness training as part
of their extensive safety and health training programs for members on a
regular basis.  When the operator reports to the job site, he or she
only needs then site specific training.

		The inclusion of silica in hazard communication training, which is
purportedly already being done to be in compliance with 1926.59, does
not add any additional burden or hardship to the contractor.  Likewise,
the curriculum and training materials for additional training elements
for employees who will be engaged in operations that may generate silica
exposures above the action level do not have to be developed from
scratch because they are readily available from a number of reliable
sources.  

		These sources include OSHA, who has a slide presentation, pocket
cards, and an e-tool; NIOSH, who has publications that are available by
industry, health hazard evaluations, case studies, and work place
solutions; CPWR, that has presentations and PowerPoints, videos, toolbox
talks, handouts, training materials, and podcasts; MSHA, who has a
manual, A Guide to Working Safely With Silica; the Washington State
Department of Labor and Industries, that has a PowerPoint presentation
with script, Silica in Construction; Cal/OSHA that has silica hazard
alerts; the National Institute of Environmental Health Sciences, that
has a Hurricane Katrina related response initiative that is a PowerPoint
module on silica awareness; and the IUOE National Training Fund.  We
have a silica module with a PowerPoint presentation.  And these all are
available free of charge to anyone who is interested.

		To assure that employees always have the opportunity to have all of
their questions answered in a timely manner, the IUOE recommends that
OSHA require an interactive training in issuing the final rule.  In
adopting requirements for asbestos training, OSHA stated that while a
training course may use written materials and electronic media, such as
videotapes or computer-based training, a knowledgeable person, such as a
person who qualifies as a competent person for the particular type of
asbestos work addressed in the training, must be available to answer
questions during the training.

		OSHA further stated that modern communication techniques permit
effective questioning of a person who is not physically present in the
room where the training is taking place and the standards do not
preclude reliance on such methods.

		OSHA emphasized that regardless of whether an instructor is physically
present during the training, the employer must assure that the employees
have a full opportunity to have questions answered in a timely manner. 
And this should be pertinent to silica training, also.  	Thank you for
the opportunity to testify.

		MR. MURPHY:  Hello.  My name is Keith Murphy.  I have been an
operating engineer since 2005 when I joined the International Union of
Operating Engineers, Local 478.  During the nine years that I have been
an operating engineer, I have worked on hundreds of construction jobs
and have operated all types of heavy equipment, including equipment used
in earthmoving, demolition, and hoisting.  

		When I began my career as an operating engineer in 2005, I operated
excavators, loaders, bulldozers, and backhoes in earthmoving.  The
process of earthmoving typically does not fracture or abrade earth. 
Operating engineers use the term earthmoving to describe the use of
heavy equipment to excavate trench, or stockpile soil, clay, rock, or
sand.  Demolition of buildings and other structures is a separate task
and operators do not use the term earthmoving to describe demolition.

		In the spring of 2006, IUOE Local 478 referred me to a 10-month
demolition job at an old factory in Stamford, Connecticut, owned by
Pitney Bowes.  The assignment involved the demolition of 300,000 square
feet of concrete floor containing PCBs.  When the Pitney Bowes
assignment began, I was performing a number of tasks that did not
generate visible dust.  I knew that once we began the demolition of the
floor, dust containing PCBs and other respirable contaminants such as
silica would be released.

		The crew on my job assignment was working in close proximity to other
trades in the building and we experienced secondary exposure to
contaminants generated by their work.  A crew located about 100 feet
away was using a cutting torch to cut pipes covered with lead paint. 
Since I was concerned about primary exposure and bystander exposure to
respirable contaminants, I called a representative at the union hall to
request protection.

		Following a meeting between Local 478 and my employer, I was
fit-tested for a power air-purifying respirator.  I wore the respirator
for the rest of the 10-month assignment.  The respirator provided to
control my exposure to lead and PCBs also protected me from silica
exposure. 

		I had a physical exam for base line exposures to PCBs and a number of
other contaminants at that time and another exam after the Pitney Bowes
assignment was completed.  There was no difference in my blood levels
for PCBs and other contaminants based on exams administered at the
beginning and after the Piney Bowes assignment.  The respirator
successfully prevented exposures, but wearing the respirator was
physically draining and caused heat stress that resulted in dehydration
and fatigue.

		Since the grinding work on the demolition job released dust containing
PCBs, the building was sealed to prevent the release of the PCBs outside
the building.  The employer took the necessary steps to protect the
general public from exposure to PCBs, however, enclosing the job
increased the dust levels for workers inside the building.  Controls
used to protect the general public created more of a hazardous
atmosphere for workers by exposing us to greater concentrations of
respirable contaminants.

		Our assignment was to grind the top two inches of concrete floor,
sweep the debris into piles, and load the piles.  The other operators
and I operated skid-steers with a concrete scarifier attachment to the
machines.  Scarifiers are typically used to remove concrete surfaces. 
The scarifier attachment has diamond teeth cutter used to grind the
concrete.

		We also operated loaders and three-wheeled walk-behind machines with
scarifiers which are known as trimmers.  In addition to grinding the
concrete floor with a scarifier attached to the skid-steer, the
operators also used a sweeper and bucket attachments to sweep and pile
the debris near the loading dock.  

		The same pieces of equipment performed different functions depending
on the attachment.  When the scarifier on the skid-steer was changed out
and a sweeper was attached, the machine was used to sweep the debris. 
Mechanical sweeping produces far more dust than grinding and loading
piles of debris.

		While operating the sweeper, the dust was very thick.  The reduced
visibility presented additional hazards.  We were concerned about the
safety of other workers.  Since laborers were also employed on the
demolition job, the operators would have to jeopardize their safety if
we had continued to operate the sweepers through the clouds of dust. 
Productivity was decreased because we often stopped sweeping debris and
waited 10 minutes to allow the dust to settle until visibly -- before
the dust visibly improved.

		I was proactive in obtaining a new filter on my respirator daily.  I
knew that it needed to be changed daily, on a daily basis because the
respirator would fill up with dust.  I tapped on the respirator every
couple of hours to remove caked up dust.  I could hear the motor on the
respirator was laboring as the filter clogged up with dust.  The caking
would occur more quickly in tight areas.

		I was 31 years old at the time of this demolition assignment, and I
was healthy enough to endure the physical hardship of wearing a
full-face respirator.  Operating engineers on the crew, on the Pitney
Bowes job, were cooperative in wearing respirators at all times, because
we knew there was significant threat to our health without personal
protective equipment.  

		My local informed me that Table 1 of the proposed rule permits an
employer to require respirator use for full shifts when there is a
possibility that workers may occasionally be exposed to silica over the
permissible exposure limit.  

		In my opinion, operators will not consistently wear respirators if
their employers inform them that there is only a possibility that silica
exposure will occasionally exceed safe levels.  If there is no clearly
communicated and definite danger to the health and safety of workers,
operators will not endure the physical discomfort of wearing a
respirator on a daily basis particularly on warm days.

		I do not intend to imply that respirators should not be used by
employees working in dust-producing operations with no ventilation or
other circumstances when engineering controls cannot reduce silica
exposure below the permissible exposure limit.  The use of a respirator
at the Pitney Bowes job prevented exposures that could have cut years
off my life.  I believe that with education and aggressive outreach,
employees will cooperate when they are informed of a true danger of
exposure to unhealthy concentrations of respirable silica.  However,
since respirable silica is invisible, employers would need to present
credible evidence of the impact on health from a reliable source to
convince them of the serious health consequences of failing to wear
respirators when needed.

		While working on the Pitney Bowes job, I trained to become a crane
operator.  Since 2007, I have been a crane operator employed by the same
crane rental company.  During the seven years that I have manned a crane
rented for use on construction sites, I have been assigned to hundreds
of sites.  My job is varied.  I am assigned to residential houses to
take down a tree, to shopping centers to remove an air conditioner unit,
or to hospitals to remove a generator, and also to the construction of
commercial buildings, to name a few examples of my work.

		As a crane operator, I am positioned above the other crafts and am
able to see their work.  I regularly see visible dust surrounding other
crafts.  My assignments are mostly for one day.  I regularly see workers
performing dust-generating tasks without taking advantage of the
engineering controls available.  Workers cut concrete with handheld saws
standing in clouds of dust.  The saws have a water spray option, but the
option is often not used.  I see dry cutting more often than cutting
with water suppression, even though the engineering controls are
available. 

		There is a need for employee education so that workers understand the
importance of taking the time to at least grab a garden hose or use
other available water sources to sufficiently suppress dust.  With
education and training, workers not only -- without education and
training, workers not only endanger themselves but also jeopardize the
health of bystanders.  Rank and file workers have no authority to direct
other workers to use available engineering controls and are reluctant to
report unsafe practices of other workers to management.

		I can avoid secondhand exposure to dust generated by other crafts by
closing the windows of my enclosed cab.  There is weather-stripping
around the door which creates a good seal.  And I am typically located
farther from the dust-generating source than other crafts.  Thank you
for the opportunity to testify.

		MR. HULK:  My name is Donald Hulk, and I have been the corporate
Safety Director for Manafort Brothers for 14 years.  Prior to my current
position, I was a safety and health consultant for six years.

		Manafort is a contractor that performs all types of construction.  Our
work runs the gamut and includes demolition, remediation, construction
of buildings, roads, bridges, airports, tunnels, infrastructure, and
other heavy construction.  Our work is centered in Massachusetts, Rhode
Island, New York, and Connecticut, with selected projects throughout New
England.

		Manafort is one of the top demolition and excavation companies in the
country based on revenue generated performing these activities.  We have
been in business for 90 years.  

		Manafort's operating engineers routinely perform the following Table 1
operations, concrete drilling, rock drilling, use of heavy equipment
during earthmoving, rock crushing, and operation of drivable masonry
saws.  

		Contractors need specific guidance from OSHA so that we are able to
factor into our budgets the cost of compliance with Table 1 controls. 
Our operating engineers perform operations listed on Table 1 about 90
percent of the time.  There is, however, no reasonable explanation that
these workers will be exposed to respirable silica in concentrations at
or above the proposed PEL or even the proposed action level.  Silica is
generated in significant amounts only 5 to 10 percent of the time the
operators perform Table 1 functions.

		Manafort strongly encourages OSHA to clarify which operations within
earthmoving involved a reasonable expectation of exposure to respirable
silica at or about the PEL.  Manafort urges OSHA to develop and publish
a list of tasks and the expected exposure for earthmovers.  For tasks
not included on that list, a contractor would be responsible for
assessing the exposure.  Emphasis should be placed on equipment
manufacturers to develop technology to reduce exposure inside the cab.

		Our company employs up to 700 employees, 120 and 150 are operating
engineers.  The number of operating engineers and other workers employed
by Manafort Brothers varies depending on the season.  Construction
workers experience extended periods of unemployment in the winter when
weather forces many of our operations to shut down.

		Manafort employs seven full-time safety managers who work under my
direction.  The staff consists of three certified safety professionals,
one associate safety manager, and three certified health safety
technicians.  All seven safety managers train competent persons and
workers on safety.

		Manafort empowers all employees to be knowledgeable about safety and
to stop operation and evaluate any potential hazards before proceeding
with the work.  A competent person or persons on each project
communicates with a designated safety manager.  We use a system of
in-house audits to evaluate the safety performance in the field.  A
safety manager conducts at least one site audit on each of our 50
projects monthly.  On projects with more than 25 Manafort employees, a
designated safety manager is assigned to the project full-time.

		Manafort supports issuance of the regulation that would require
training of the competent person.  At all Manafort construction sites,
there is a highly trained person who is aware of the best practices in
the industry and has the authority to ensure that these practices are
implemented.  Compliance with OSHA regulations is a vital concern.  The
contractor's safety and health obligations, however, extend far beyond
OSHA's purview.  

		In accordance with federal and state regulations and local ordinances,
contractors are required to spend the necessary resources to ensure that
their operations do not produce fugitive emissions or create other
hazards to the public and the environment.  State regulations also
address control of onsite emissions of a nuisance dust or other
particulates for the protection of workers.

		Contractors are required to suppress dust.  Manafort and other
responsible contractors already absorb the relatively negligible cost of
water suppression as compared with the overall construction cost.  The
proposed standard will be another vehicle to force irresponsible
contractors to implement dust controls.

		Protection of workers, the public, and the environment requires
planning and management.  The timing of operations is vital to
compliance with all the regulations applicable to construction.  Timing
of operations is also key to dealing with cold, heat, wind, and other
environmental conditions that impact engineering controls.  

		With regard to environmental conditions, frigid weather shuts down
some dust-producing activities for weeks since water suppression is
ineffective control when there are freezing temperatures.  As a
demolition contractor that operates solely in states with severe winter
conditions, we often delay a demolition job for weeks during persistent
cold spells.  It is a management challenge to effectively schedule all
the work that does not require use of water suppression, such as
salvaging steel or segregating a debris pile.  

		Manafort clients understand that operations will shut down when water
suppression cannot be used to control dust.  In accordance with the
regulations of the Connecticut Department of Energy and Environmental
Protection, dust emissions on construction projects must be controlled
to ensure that they do not cross the construction owner's property line.
 

		The use of crushing or other processing equipment on a site may
trigger certain air-permitting requirements.  Owners are required to
obtain permits from the Connecticut Department of Energy and
Environmental Protection before performing operations that may release
dust beyond the project's boundaries.  Both the owner and the contractor
are subject to fines for failure to comply with applicable standards. 
When DEEP issues a citation, construction work must cease immediately.

		DEEP's enforcement of its fugitive emissions standards varies
depending on the population of the area.  Enforcement is complaint
driven.  A complaint from a resident in a densely populated area would
typically initiate action by the DEEP.  The same dust exposure in a
rural area will be far less likely to generate a complaint.  DEEP's
enforcement of the standard is based upon subjective, visual evaluation
of plumes of dust.

		Some contractors use more effective controls when working in areas in
which there is likely to be a complaint from a resident or a business
concerning uncontrolled dust.  Manafort uses effective controls to
protect workers regardless of the population of the area in which the
work is being performed.  

		Compliance with environmental regulations and public safety while
simultaneously ensuring the highest level protection of workers often
presents a challenge to management or places a burden on workers. 
Controls used to protect the public's exposure to dust often places
additional burdens on the workers.  

		Once a contractor puts up a barrier in a building or other structure
to reduce the public's exposure to the dust, the use of natural
ventilation as an engineering control is eliminated.  Workers need to
wear respirators with a higher protection factor and other personal
protective equipment because the loss of ventilation increases the
concentration of the contaminants.

		On road construction, the contractor must comply with the environment
regulations, protect the public and workers from dust exposure, and make
sure that no vehicular accidents occur as a result of controls. 
Industry representatives assert that roadway construction is subject to
strict water runoff restrictions mandated by the U.S. Environmental
Protection Agency and that the introduction of liquefied debris into
streams and waterways will create significant environmental concerns.

		Runoff is a manageable issue.  Manafort's operations achieve a balance
between using sufficient water to suppress dust for the protection of
workers without creating a runoff problem.  Competent contractors
understand the need to avoid pooling of water to prevent runoff.  

		Much of the water is absorbed into demolition debris or it evaporates.
 Water evaporates more rapidly in warm weather, so the danger of
creating runoff is far lower during the months in which construction
activity is at its height.

		The contractor association maintains the use of water to suppress dust
on road construction will introduce a greater hazard than the hazard
created by silica exposure.  According to the association, wet methods
may create a slippery slurry which would become a hazard to the motoring
public.  Industry representatives further maintain that if an automobile
slides on a wet slippery surface, it may cross into the workspace and
strike a worker.

		At multi-employer sites, advance planning is required to avoid
secondary exposure to other workers.  In scheduling activities of
subcontractors, responsible prime contractors manage the hazard exposure
assessment and access control plan to limit secondary exposure.  If, for
example, one subcontractor is scarifying a concrete structure, the work
of another subcontractor should not, in accordance with industry best
practice, occur in the regulated area while the scarifing work is going.

		Timing of operations is critical to the safety and health of workers. 
The competent person must have sufficient training to enable him or her
to recognize when secondary exposure may occur.  Depending upon the
start and completion of activities, subcontractors may reschedule to
avoid exposure to bystanders.

		The primary engineering control used by Manafort to protect workers
from exposure to dust and silica is water suppression with the use of
respirators as needed in particularly dusty operations.  Manafort has
been conducting exposure assessments for years to test the effectiveness
of our controls under the current OSHA standard.  This proactive
approach established that the engineering and work practice controls and
the use of personal protective equipment protects employees below the
current PEL.

		Manafort has a respirator program with at least 80 employees
participating in the program.  Our program includes annual physicals
with B-read chest x-rays.  Our employees wear respirators during
activities such as grinding concrete walls that produce the highest
exposure to silica.  Employees performing this work wear appropriate
respirators.  Operators of walk-behind machines are closer to a
silica-generating source and will regularly need to wear respirators.

		OSHA's issuance of the proposed rule has already caused changes in
practices in the construction industry.  In meetings sponsored by the
IUOE with other safety and health professionals, and at other joint
labor-management meetings held since issuance of the proposed rule, I
have learned that the contractors are proactive in determining actions
needed to ensure compliance with the proposed silica standard.  In my
experience, proposed standards become best practice before the final
rules are promulgated. 

		Manafort has already begun the process of monitoring workers under the
new proposed PEL.  We anticipate implementing exposure monitoring for
activities with potential exposure.  Half of our exposure monitoring
will involve the work of operating engineers.  We are monitoring
operators engaged in demolition of masonry buildings and hoe-ramming
concrete structures.  Both activities produce high exposure.

		Hoe-ramming involves breaking up a solid material such as rock and
concrete with a jackhammer.  The hammer varies in size from walk-behind
units to large excavators weighing more than 70 tons.  The exposure is
greater the closer the operator is to the contact point.  

		We recently conducted an exposure assessment of operating engineers
while hoe-ramming a concrete foundation.  The operator was using a John
Deere 290 equipped with a jackhammer to break up and remove concrete
foundations.  Samples were taken from inside the cab of the machine and
from the worker supporting the operation.  The result shows exposure at
190 µg/m3 of respiratory dust and 10 µg/m3 of silica in the cab.  The
other worker was exposed to 60 µg/m3 of respirable dust and 8 µg/m3 of
silica.  The IUOE has submitted these and other sample results along
with my written testimony.

		We have also conducted an exposure assessment at a public school in
Providence.  The crew that we chose to monitor was using a bobcat with a
scarifier attachment to remove two-inches of concrete off the existing
floor.  The engineering controls used were water suppression, natural
ventilation, and work area containment.  The crew consisted of five
workers, one bobcat operator, a carpenter foreman, one laborer providing
support to the operator, and two laborers who were applying water the
entire time.  

		The general contractor became concerned when Manafort Brothers began
taking samples.  The general contractor issued a stop work order. 
Manafort was not permitted to proceed with monitoring until the crew --
monitoring for the crew for exposures until they were fitted with
respirators.  

		The five employees on the crew of the public school assignment were
not in Manafort's respirator program.  We anticipated that the results
of the monitoring will establish that the engineering controls used to
protect the workers from exposures are adequate.  However, Manafort had
to have the five workers fit-tested for respirators.  The results showed
2.2 µg/m3 of total dust for the bobcat operator and .067 µg/m3 for an
area sampled 40 feet away from the operation.  Manafort is awaiting the
results of the silica exposures.

		While operating engineers are involved in silica-generating tasks,
they tend to perform the task far in excess of four hours in a day.  An
operator with a drivable saw used to cut concrete will regularly perform
this task for an entire shift.  An operating engineer performing
hoe-ramming of a concrete foundation may do the same function for eight
hours a day for weeks.

		In Table 1, if Table 1 is used, Manafort is concerned a number of
experienced operators will not pass the medical fitness portion of the
proposed program or refuse to wear a respirator for eight hours a day.  

		Some contractors are concerned about being put in a competitive
disadvantage by contractors who fail to implement appropriate controls. 
An OSHA standard that requires all employers to protect their workers
from silica exposure will level the playing field so that responsible
contractors are not at a competitive disadvantage.

		Manafort is not concerned about competition from contractors who do
not take the necessary steps to protect workers.  General contractors
will select Manafort because they are aware of the safety program and
want to avoid liability.  Thank you.

		MS. NADEAU:  Two more.

		JUDGE SOLOMON:  Well, it's 3:53.

		MS. NADEAU:  Okay.  We've got 17 minutes.

		JUDGE SOLOMON:  You have about 17 minutes.

		MS. NADEAU:  Okay.

		UNIDENTIFIED SPEAKER:  Talk fast.

		MR. HOPKINS:  Good afternoon.  My name is Larry Hopkins, and I am the
Training Director for the IUOE Local 12's Operating Engineers Training
Trust out of Whittier, California.  

		The IUOE recommends that OSHA separately analyze data of demolition
work to determine which, if any, types of demolition performed with
heavy equipment might be included as separate operations on Table 1.  At
this hearing, OSHA responded to an inquiry about the reason that the
Agency decided not to include demolition on Table 1 activity.  OSHA
responded that the Table 1 approach is task specific and that demolition
encompasses a number of tasks.  Although some of the Table 1 tasks may
occur in conjunction with demolition, demolition is a distinct activity.

		Demolition of an existing road occurs before construction of a new
road, but the two activities are different.  Likewise, concrete and
brick are crushed or broken into pieces during demolition, but
demolition and rock crushing are not the same activity.  Demolition of
buildings or other structures and the removal of debris such as
concrete, asphalt, brick, wood, metals, wallboard, or roofing shingles
is not earthmoving.

		Mr. Murphy's testimony illustrates that the tasks performed by
workers on demolition jobs are not the same as earthmoving work for many
reasons.  The most obvious are that the materials moved are not the
same.  Another obvious difference is that demolition always fractures
silica-producing materials.  By contrast, most earthmoving does not
fracture or abrade materials.  And that even when earthmoving does
fracture or abrade materials, the materials may not release silica in
appreciable quantities.  Furthermore, demolition is often performed in
an enclosed space.  With the exception of tunneling and trenching,
issues related to confined space do not arise during earthmoving.  

		The IUOE agrees that some of the tasks performed during a demolition
project are similar to those included on Table 1.  However, Table 1 does
not provide notice to the regulated community that demolition is covered
by Table 1.

		Additionally, since Table 1 engineering controls vary by task, Table 1
provides no guidance on the engineering controls applicable to
demolition.  The IUOE's post-hearing comments will include recommended
engineering controls for demolition.

		Clear guidance on demolition is particularly important since a number
of major studies that separately analyze demolition identify it as an
activity that generates high concentrations of respirable silica.

		An Alberta study identifies five industries with the highest
potentials for over-exposure to respirable silica.  Those industries are
demolition, new construction, building construction, aggregate mining
and crushing, and abrasive blasting.  I note that the Alberta study
analyzes earthmoving and road building separately from demolition.  

		A German study describes demolition work, quote, "to be amongst the
most dust-intensive of tasks."  The study draws a distinction between
mechanized and manual demolition, and describes mechanical demolition as
including a broad range of methods such as the use of tongs, grapplers,
and hydraulic hammers.  The process includes loading of the demolition
material for transport.  

		With regard to mechanized demolition, the German study states that
very high quartz concentrations occur during demolition of concrete and
reinforced concrete components.  During demolition with no additional
measures to combat emissions, for example, quartz concentrations of
several times the value of .15 mg/m3 were measured in working areas up
to the level of the 90 percentile value.

		Additionally, the California Division of Occupational Safety and
Health guidelines on crystalline silica inspection describes demolition
of concrete structures or components involving cutting with powered
equipment as operations subject to California's silica standard.

		The assertions of industry representatives that under the proposed
standard employers who choose not to implement Table 1 will have to
absorb exorbitant costs of exposure monitoring are unfounded.  These
assertions are based on false assumption that the employer associations
cannot develop regional databases to include the amount of exposure
monitoring. 

		The IUOE was encouraged to learn the CISC's testimony that the AGC has
established a silica task force and is developing a database for
affiliated contractors to use.  The CISC's response to the proposed
standard demonstrates that it has the necessary resources to quickly
mobilize its membership and to effectively communicate and share
information with its membership.

		The IUOE urges OSHA to develop a mechanism for collecting, evaluating,
and disseminating objective data developed by employers, researchers,
and other stakeholders, and for sharing this information with the entire
industry so that others can use it as an objective data to avoid the
requirement for monitoring.

		During labor-management meetings, the contractors stated that OSHA's
proposed definition is not sufficient to give employers guidance on what
data may be used.  The IUOE agrees with the signatory contractors and
endorses NIOSH's recommended changes to proposed objective data
definition.  This definition is cited on Page 11 of NIOSH's written
comments.

		Based on contractor input, the IUOE also urges OSHA to clarify the
words "closely resemble," as described in Paragraph (d)(2)(ii)(A) of the
standard.

		A publication of the Air Resources Board states that fugitive dust --
I'm sorry, that's California's Air Resources Board states that fugitive
dust composed of soils materials are more than just a nuisance and are a
serious threat to safety and health.  According to the Resources Board,
the problem is created when particulate matter 10 microns or smaller are
widespread and severe.  The soil minerals include oxides of silicon,
aluminum, calcium, and iron.  People in California are exposed to
unhealthful levels of particulate matter more frequently than any other
air pollutant measured.  

		The Resources Board further states that inhalation of fugitive dust in
large amounts may have major health effects if the dust contains
crystalline silica, asbestos fiber, heavy metals, or disease spores.  

		The Resources Board cites building construction and demolition
activities as major contributors to fugitive dust in urban areas.  The
only greater source of fugitive dust in urban areas is vehicle traffic
on streets and highways.  The Resources Board also cites rock crushing
operators, and conversation and asphalt plants that mix portland and
asphalt cement with sand and gravel to make paving materials as another
major source of fugitive dust.  Thank you for the opportunity to
testify.

		JUDGE SOLOMON:  You have 10 minutes.

		MS. NADEAU:  Oh, good.  

		MR. POULOS:  What do I have?

		MS. NADEAU:  Ten minutes.

		MR. POULOS:  Good afternoon, Judge, distinguished committee members,
members of the public.  I'm Marc Poulos, Executive Director and Counsel
for the Indiana, Illinois, and Iowa Foundation for Fair Contracting, a
labor-management cooperative committee funded solely by contractors and
jointly trusteed in equal numbers by officers of IUOE Local 150 and
signatory contractors.

		The FFC represents hundreds of contractors in northern Illinois,
northwest Indiana, and eastern Iowa, as well as 23,000 members of IUOE
Local 150.  I am also a Board Member of the National Alliance for Fair
Contracting, a group of fair contracting organizations, labor unions,
and contractors nationwide that promotes fairness in public contracting.
 

		Fair contracting organizations encourage public bodies to contract
with responsible contractors to ensure projects are completed by a
skilled workforce safely, on time, and on budget.

		Industry representatives argue that there are so many variables
affecting the generation of respirable silica on a job site that
contractors cannot effectively implement engineering or administrative
controls to protect workers.  

		Based on my participation in a joint labor-management meeting
sponsored by Local 150 to discuss the silica standard and subsequent
discussions with contractors, we find this statement to be disingenuous.
 

		Planning for compliance with environmental and safety regulations, and
implementing appropriate controls such as water to suppress dust is just
one aspect of planning and management that goes into every single
construction project.  From the beginning of the season to the end of
the season, running a profitable construction company requires detailed
project management.  

		In fact, when bidding on each project during the season, contractors
must estimate and coordinate dozens of items.  For example, a bid
tabulation for a recent bridge project estimated to cost $300,000 in
Indiana required contractors to give estimates for 44 items ranging from
major components such as removal of the present structure, to smaller
items such as temporary concrete barriers.  Other items included
mobilization and demobilization of equipment, temporary silt fences,
mobilization and demobilization for seeding, barricades and road
closures signs for assembly, material costs such as top soil, asphalt,
concrete, and surface seal, and a record of compliance with EPA
standards, with the entire project subject to multiple environmental and
safety regulations at both the state and federal level.

		In fact, timely and profitable performance of a construction project
requires detailed planning.  Contractors must factor numerous variables
at all stages of a project including compliance with EPA and OSHA
standards.  And they must effectively coordinate their equipment,
workforce, and resources to coordinate completion of multiple projects
in one single season.

		For example, contractors must coordinate mobilization of equipment to
be available when needed on a job site.  A delay at one site may affect
work on another job site if the equipment is not moved in a timely
manner.  Delays also impact cost, if equipment is rented and not
returned on time.  Similarly, materials must be onsite and material
inspections coordinated to keep projects moving forward.  

		And contractors must appropriately staff projects with project
managers, superintendents, and foremen to ensure work is completed on
time and on budget, all of which includes coordination to be compliant
with environmental and safety regulations. 

		Further, various stages of a project require workers with specific
skills.  For example, a contractor must ascertain that a crane operator
is available with the qualifications and experience to operate the type
of crane for that particular project.  

		On other projects, an operator may move around multiple job sites
during the same day at the direction of the contractor.  For example, an
operator on a milling machine may complete work on a project in the
morning and move to another job site in the afternoon, but this is not
done without preplanning and coordination to ensure timely and
profitable completion of that project.

		In addition, project owners value a record of on-time performance and
contractors may be required to provide this information when bidding on
projects.  For example, the University of California's prequalification
form requires contractors to provide construction experience on
comparable projects in recent years, along with the project manager's
and superintendent's experience on similar projects.

		Similarly, the prequalification form for state projects financed by
the Illinois Capital Development Board requires contractors to list
their business volume for the past three years and the number of
full-time employees.  It also seeks five references that must provide
information whether the contract had any unwarranted change-order
requests, whether the project was completed on time, and whether the
project coordination was satisfactory throughout the project.

		Project owners are well aware that poorly scheduled projects result in
cost overruns and delays.  Compliance with safety regulations are part
and parcel of project coordination.  But every safety issue may not be
identified in advance.  For example, on a building demolition project,
unknown factors include deviations from structure designs, materials
hidden within the structures, as well as unknown strengths and
weaknesses of construction materials. 

		Similarly, while activities such as trenching and excavating are
localized and certain risks may be identified in advance, unknowns such
as water content of the soil, changes in the weather or climate, and the
operation of heavy equipment in the vicinity are all variables that
require contractors to assess safety, compliance, and employ controls on
a continuing basis.

		Interestingly enough, we keep getting examples of why engineering
controls cannot be implemented because of the dangers of imminent death
to employees because of slick lanes or icy conditions which could cause
an employee to be struck.  This is because many employers still look at
safety based solely on immediate dangers, but choose not to look at the
long-term health effects of things like exposure to carcinogens such as
respirable crystalline silica.

		Responding to variables and implementing appropriate control measures
to protect workers from both short-term, as well as long-term health
hazards are part of a successful contractor's daily operations. 

		While we would agree that the proposed rule may be problematic in
limited circumstances, labor and management support the proposed rule
and believe it could be drafted in a way to protect workers, while
ensuring the resources of contractors are best utilized.  Thank you.

		JUDGE SOLOMON:  Ms. Nadeau?

		MS. NADEAU:  If we have a few minutes left, we were going to show the
remaining slides.

		JUDGE SOLOMON:  You have three minutes.

		MS. NADEAU:  Great, okay.  Well, come on, ready?

		MR. TUREK:  A quick slide show.  This is me on vacation.

		JUDGE SOLOMON:  Make sure you say what they are.

		MR. TUREK:  Martin Turek, Slide 15, excavator removing pavement that
was cut out by a saw.  This is an example of the six by six chunks of
concrete or roadway being removed by an excavator.  

		Photo 17, this is a milling machine, milling down pavement.

		UNIDENTIFIED SPEAKER:  Correction, that's 16.

		MR. TUREK:  Sixteen?

		UNIDENTIFIED SPEAKER:  Yeah.

		MR. TUREK:  Photo 16?

		UNIDENTIFIED SPEAKER:  Photo 16.

		MR. TUREK:  Photo 17, asphalt grinder milling asphalt, dumping it into
the bed of a truck, similar to the photos that were shown earlier today
with the reduced amount of dust.

		Photo 18, dust being generated from a hoe-ram or a breaker during a
demolition construction process.

		Photo 19, there is a water buffalo and that's a misting device in the
lower right-hand corner suppressing the dust that's being generated by
the demolition process.

		Photo 20, same type of example.

		Photo 21, same type of example, different view.

		Photo 21 -- excuse me, Photo 22, construction material inspector. 
This would be another example of a worker that would be working in the
vicinity of an earthmoving operation.  This individual tests the
compaction, density, and moisture content of soil.  This individual
would be working next to bulldozers, scrapers, and off-road trucks on a
job site.

		Another example, this is Photo 23, this would be an example of a
construction material inspector testing or burning a nuclear density
gauge test on an asphalt project looking at the sub-base, working on
conjunction with or near a grinder.

		Photo 24 is an example of a surveyor working in conjunction of a road
project and a dirt project working with bulldozers alongside of a road
project.  This example shows somebody working on a total station.  

		Right now, GPS is becoming more prevalent in the work world, as you
can see in Photo 25, a GPS being mounted on a bulldozer reduces the
amount of time that that surveyor is going to be exposed to any possible
dust caused on that job site by that bulldozer.  Engineering control in
place because of the GPS, rather than having the surveyor stand there
doing all the readings or measurements manually.

		MS. NADEAU:  That's it.

		JUDGE SOLOMON:  Thank you.

		MR. TUREK:  Thank you, Judge.

		JUDGE SOLOMON:  So we have one volunteer who didn't even ask whether
there were others.  How many other people are going to ask questions? 
Okay, Ms. Trahan, state your name, spell your last name, ask your
questions.

		MS. TRAHAN:  Thank you.  Chris Trahan with the Building Trades,
T-r-a-h-a-n.  I had a lot of questions.  I think you actually answered a
lot of them in your prepared testimony, but there was a couple that I
wanted to ask.

		Earlier in this hearing, there has been testimony talking about the
production or productivity penalties associated with applying controls
to control silica exposure.  I was wondering if anyone had anything to
say that if there is any productivity benefits, or does it speed up work
or the time it takes to set up controls?

		UNIDENTIFIED SPEAKER:  Marc, do you want to address that?

		MR. POULOS:  Sure, well, we're going to have Don take this one, from
Manafort.

		MR. HULK:  Yes, I do believe there is going to be a financial burden
in the beginning.  The processes are going to change as the new process
is coming out.  There is going to be a training mechanism that's going
to be part of it.  We're prepared to take on that burden because we
believe in the long run that it will speed up production and it will
certainly reduce our overall liability when it comes to worker safety.

		MS. TRAHAN:  Okay, thank you.  The other question I had, well, is a
comment.  I think Barb described the types of training programs that the
Union provides to its members through your training centers.  I was
wondering if it would be possible for the list and the location of those
training resources that are all free, that you provided, that they could
be part of post-hearing comments so the public could find them.  Is that
something --

		MS. McCABE:  Yes, that's possible.  

		MS. TRAHAN:  Okay, thank you.  And I wanted to ask a question about
competent person and the training for competent person.  And I think
this is directed towards Mr. Hulk.  You talked about training provided
to your competent persons in your company.  Is there any specific
information you can give about the training provided to competent
persons both on the prevention of traumatic injuries like falls and
excavation, but also on the health hazards or the industrial hygiene
side of that job, if you could provide a little bit more detail?

		MR. HULK:  That's a tall question.  Yes, based on the hazards
associated with that particular project, the competent person would be
trained in, if it was demolition, what to look for in the demolition
process, look at the building materials, how is the building coming
down, is there any hazards associated with that.  

		A lot of our competent persons are trained as 40-hour hazmat workers
and get an annual refresher, so they're prepared to handle any
contaminants they might find in the ground or any spills that may occur
due to the demolition.  

		And most recently, our competent people are trained to silica, but
they are trained to the current PEL, and we are now in the process of
training them to the proposed PEL.

		MS. TRAHAN:  So are they trained to recognize silica exposure
conditions and what the controls are that need to be in place?

		MR. HULK:  They're required to have controls in place.  They are not
trained to recognize silica exposure.  They are trained to recognize
total dust.  And our mission is no dust, no silica.

		MS. TRAHAN:  Okay.  And I guess one more question for you.  You
mentioned that you had 80 employees in your firm that are in your
respirator program.  And I was wondering if you had an idea of how often
or how long they wear respirators for during the course of their
workday?

		MR. HULK:  Well, it's based on our activity.  We have asbestos workers
who, during remediation and abatement, will wear a respirator for the
full shift.  We also have hazmat workers that would wear the respirator
during that process. 

		In particular for this, this demolition activity, if the process is
creating dust and we can't control that dust because of weather
conditions or location, or for any other reasons, then the operator will
go on a respirator, and he will wear that respirator during the actual
dust-producing operation.  Once that is completed, he will obviously
take the respirator off.

		MS. TRAHAN:  Thanks.  And I think this will be my last question.  I
think it's for Mr. Murphy.  You know you talked a lot about a
particular job that seemed to have very high and hazardous exposures to
silica, in addition to the PCBs.  But in general do you feel like you
can bring safety concerns forward to your employer and your experience
with that?

		MR. MURPHY:  Yes.  That hasn't been an issue.  There is a chain of
command I can go through if there is an issue I need to bring up,
whether it's calling my local union hall or dealing with my union
representative that I work with.  It can be taken care of, as in the
example I gave in my testimony.  There was an issue, I went straight and
called my union hall, and it was resolved.

		MS. TRAHAN:  Yes, thank you.  

		MR. ZIMMER:  Chris, Local 478.  It's pretty prevalent throughout our
union system in North America.  The protocol that we like to follow is
we like to encourage the members to try to resolve the conflict on the
job site with their immediate supervisor, management supervisor first. 
If that's not successful, we recommend that they go to the shop steward
or if there is a master mechanic onsite, address it with them.  If they
feel that the conflict still exists, they either contact myself as the
health and safety director, the business rep in that area, and together
we collectively put our heads together and approach the problem and
solve it.

		MS. TRAHAN:  Thank you very much.

		JUDGE SOLOMON:  Let the record show that that was Mr. Zimmer.

		MR. ZIMMER:  Oh, sorry.

		MS. TRAHAN:  Thank you.

		JUDGE SOLOMON:  Mr. Schneider -- oh, okay.

		MR. SCHNEIDER:  Hi, Scott Schneider, with the Laborers' Health and
Safety Fund, 

S-c-h-n-e-i-d-e-r.  Thank you very much for your testimony.  That was
very interesting.  I just had a couple of questions.  I know in terms of
-- do any of you do work in California?  Are any of you from California?
 Right, okay.  And I know that California has a standard that tries to
prevent silica exposures through cutting and grinding operations.  Can
you tell us about, if that's included in -- if demolition is included in
that standard somehow?

		MR. HOPKINS:  To my knowledge, the silica standard in California --
excuse me, Larry Hopkins.  To my knowledge, in California, the silica
standard kind of broadly covers any silica-producing activity, maybe not
specific to demolition, but anything that would produce that such as
rock crushing, breaking, and so forth.

		Of course, fugitive dust is a huge issue in California because not
only do we have high levels of silica in that geographical area, but we
also have high levels of spores, which is known as the Valley Fever, so
fugitive dust is a big issue in California.

		MR. SCHNEIDER:  So the controls that you use to control silica would
also control these other hazards as well, right?

		MR. HOPKINS:  Correct.  It's a zero tolerance policy on dust control,
whether the job is currently operating or whether it's parked.

		MR. SCHNEIDER:  Okay.  And in terms of demolition operations, I know
OSHA is doing this from a task-based perspective, are there specific
tasks that you would have them cover like use of, you know, I don't
know, how would you divide the tasks up so that they could manage it in
the same manner?

		MR. HOPKINS:  Well, I think the tasks, of course, it depends on what
the demolition is going to be.  There are all types of demolition we do,
whether it be rock structure -- sorry, concrete structures or brick
structures, or maybe wood and metal, and so forth, so there's a lot of
tasks involved with demolition.  It's not necessarily a single item. 
It's several tasks involved.

		I think it should be broken up as to, there again, anything that
produces any sort of inhalation hazard, such as in the past demolition
produced a lot of issues with asbestos from demolition of old buildings
and so forth, so they have approached that.  And now we're onto Round 2,
so to speak, with silica dust, silicosis.  We've dealt with the lead
paint in schools, spent billions of dollars trying to rectify that
problem.  So I think it's any time that it produces a hazardous
environment, in this case containing silica, respirable silica products.

		MR. SCHNEIDER:  And I noticed in some of the photographs that you had
these misters that were used during the demolition process.  How
effective are those in trying to keep the dust down?

		MR. HOPKINS:  I think it's pretty, you know, in agreement with all of
us that are experts in the trade that, you know, no dust, no hazard.  So
we have -- they're very effective.  You'll see individual spray units on
some of the pictures that Marty had posted up with the spray bars on
different crushing units, or the water buffalo that was spraying mist
over the demolition projects that were going on.  So it's very
effective.  It's the first line of defense against any kind of these
harmful respirable products is to keep them wet, keep them on the
ground.

		MR. SCHNEIDER:  And so you would say that's standard practice in the
industry, pretty much?

		MR. HOPKINS:  That's pretty much standard practice in the industry
from my side of the country anyways.

		MR. SCHNEIDER:  Yeah, okay, thank you very much.

		JUDGE SOLOMON:  Ms. Seminario?

		MS. SEMINARIO:  Good afternoon.  I'm Peg Seminario.  I'm Safety and
Health Director for the AFL-CIO here in Washington, D.C.  And I, too,
would like to thank you very much for your testimony.  I learned a lot
today.  And the slide show you brought was really quite helpful in
understanding the different types of work and different operations and
which ones generate the most dust.  So thank you.

		A couple of areas I wanted to talk about and one was the area of
training.  I think Barb McCabe, you spoke to the issue of training in
the standard, both the proposed requirements and how it should be
strengthened.  Could you talk about what kind of silica training that
the IUOE now provides to its members on silica?

		MS. McCABE:  We have the silica module that is available.  And the
majority of the silica training now is normally included for members
taking the OSHA 10-hour construction class.  It is an optional subject
for that training, but it's most often taught during that class.  It is
also used during the 40-hour hazwoper classes and the 8-hour hazwoper
refresher classes.

		Now, if folks are going out to do a job that there is definitely going
to be silica generated on the job, then it can also be used as a
standalone course.  It covers the things that I just testified to, the
things on the job that are going to generate silica, if that is known. 
If not, then that would need to be covered as a site-specific item.  It
covers the health effects.

		Of course, if they have -- if it's a signatory contractor, typically,
we will get their plans, anything we can get that's site specific so
that we can do a very specific training.  It covers, like I said, health
effects; some toxicology, if it's a standalone class; how you can
protect yourself, the PPE that would be applicable to silica exposure,
those types of things.

		MS. SEMINARIO:  And just to clarify, this would be training for your
members who would be --

		MS. McCABE:  Yes, it would be training for the members who --

		MS. SEMINARIO:  Are doing the work.

		MS. McCABE:  At the local, training for members who are going out on a
specific job.

		MR. ZIMMER:  This is Kyle Zimmer.  I'd just like to add to that. 
Marty, myself, and Larry are all instructors at the National Training
Fund, and we teach various courses such as confined space, disaster
site-worker, 40-hour hazmat.  And how we teach is we teach train the
trainers.  Local members from the local unions come to Beckley, West
Virginia, where we are located, and we do the courses to teach the
trainers how to bring it back to the members.

		Over the course of the last three years, when we knew this standard
was going to come up again, I know in all the courses -- Marty and I
co-teach a lot, that we made this part of the program.  So already now
we have members across the country at their local unions teaching the
silica exposures.

		MS. SEMINARIO:  Thank you.

		MR. HOPKINS:  Larry Hopkins, again.  I just wanted to elaborate on
that just a bit.  We have actually been teaching about silica and -- the
dangers of silica and silica exposure in California as a result of the
training that Kyle referred to from Barb's organization back in West
Virginia for about 14, 15 years now.  So it has been known for many,
many years.  And we're kind of ahead of the game and aware of the issues
with silica and have been for quite some time.  So I just wanted to add
that.

		MS. SEMINARIO:  Just to follow up on that, another area related to
training and information, that's a training that's provided to
individuals who are doing the work.  What kind of training and what kind
of information, well, what kind of training should be provided to the
competent person so that they are competent and qualified?

		And what kinds of information should they -- and knowledge should they
possess to be effective and knowledgeable in dealing with the exposures
on a particular job site?

		MR. ZIMMER:  Again, this is Kyle Zimmer.  The competent person
training, you know, we referenced in our comments, in our testimony, the
competent person requirements for trenching and excavation and
demolition.  

		Basically, the difference would be to recognize the variables, the
changes in the environment, changes in conditions.  And when we do
training for competent person with the trenching and shoring, we look at
things such as water conditions, just the weather.  You know when you
start excavating in the morning, as the weather conditions change, so do
the soil conditions.  So it's an in-depth look at the hazards that they
are going to encompass.  

		And it really becomes part of the job.  The more that you train, the
more that you go over that, the more it becomes part of the process. 
And that's what, you know, I know myself, Marty, and Larry really stress
to our people is that make it part of the process.  Don't make it
burdensome to be the competent person on the job.  

		And I really think a lot of contractors get lost in that.  And I know
for a fact Manafort, because they are signatory with us, does that with
their people and it becomes part of the process, rather than part of the
problem.

		MS. SEMINARIO:  And, again, to go back to your testimony on competent
person, just to be clear, I think one of the points that you made, but I
just want to be clear about this, is that the competent person for
silica doesn't have to be a special --

		MR. ZIMMER:  No.

		MS. SEMINARIO:  -- silica competent person.  This can be the competent
person who already has to be on the job site under existing regulations
has got other issues that there is a requirement, and they would then
have the additional training and expertise to bring to this particular
hazard on the job site.  Is that correct?

		MR. ZIMMER:  That is correct.  Again, Kyle Zimmer.  That is correct. 
You can stack, if you will, the responsibilities of competent person
onto people.  I mean let's look at the size of your construction crews. 
They vary so significantly.  

		You may have three people doing a gas main into a house.  One of those
people have to be competent.  So you're not going to have a competent
person for silica, or you might, depending on their training level,
depending on how much the contractor puts into their training programs. 
They may train everybody to be competent people, which personally I
think that's a good idea.  And then, you know, everybody, you know, sets
of eyes pick up hazards, you know.  It makes a difference.

		JUDGE SOLOMON:  How much do you have left?

		MS. SEMINARIO:  I just have one other area, one other question which
I'm not sure who will answer.  It goes to the issue of a feasibility of
the standard.  And I believe it was Mr. Hulk and also Mr. Poulos, that
for responsible contractors, from your testimony, it sounds like a lot
of work is already being done to reduce silica exposures, and to move
forward and look to how to comply with even the proposed standard.  Is
that correct?

		MR. HULK:  This is Don.

		MS. NADEAU:  It's not on.

		MR. HULK:  Can you ask that question again, please?  This is Don Hulk.

		MS. SEMINARIO:  Yes, thank you very much.  Don, I think in your
testimony you said that as a responsible contractor, you have tried to
address various hazardous conditions and exposures over the years.  But
now with there being a proposed standard that you are now looking at the
proposed standard as a guide for what you are doing to assess exposures,
control exposures, and make sure that workers are protected.  Is that
correct?

		MR. HULK:  That is correct.  And as I mentioned in my testimony, it's
already being driven down by the prime contractor.  Because of the news,
because of the awareness of it, they want to make sure that we're
controlling dust and that we are doing the monitoring to ensure that we
are below not only the current PEL, but how are we going to be in the
future with the proposed PEL.  So, yes, that's ongoing right now.  We're
prepared to go forward with that.

		MS. SEMINARIO:  So having a standard then does change practice; is
that correct?

		MR. HULK:  Yes, it does.

		MS. SEMINARIO:  And do you think that with the modifications that
you've suggested and recommendations that the standard would be feasible
for most contractors to comply with?

		MR. HULK:  If we can work out the details on Table 1.  Because our
work is so encompassing and we have so many operators working in
earthmoving, it would just be daunting for me to sample all those
operators doing every type of activity.  If we can narrow it down to
really what is producing dust, what is that dust, and have some
expectation of what those levels are, then contractors can focus on
those areas.

		MS. SEMINARIO:  All right.

		MR. POULOS:  This is Marc Poulos.  So to follow up on that, for the
Midwestern contractors that we talked to, we agree with exactly what
Manafort is saying which is we think there is still some work to be done
on this Table 1.  And even when you look at the pictures that were up on
the monitor, I mean it's kind of striking, you look at the scraper
taking the top soil off and there appears to be no real dust as part of
that operation, right?  There's a lot of those operations.  But then you
get into this hoe-ramming and some of these others, and it seems
striking again, especially in the demolition process, that there is this
big, big plumes of what appears to be uncontrolled dust in some of those
operations, whether it be because there wasn't enough watering done,
there wasn't enough engineering controls, whatever it is.  But even in
those operations, you're still going to have some level of silica or
other exposures to thing.

		But I can tell you in the conversation that we've had with the folks
in the Midwest, you know, they are ready, willing and able, as you said,
that if there is a standard that is implemented in order to protect the
workers in the short-run, rather than waiting long-term and then, as an
employer, being, you know, not just having an employee that was affected
by this, but then the employer also affected by these negative health
effects from the employees that they have employed for the last 30 or 40
years, who go back to the companies or go back to the insurance
companies on these types of things.  You know, they're ready, willing,
and able to abide by the regulation that comes out to make sure that
there is not these long-term health consequences.

		MS. SEMINARIO:  Thank you very much.

		JUDGE SOLOMON:  Okay, Ms. Ryder?

		MS. RYDER:  Yes.  I'm going to turn it over to David.

		JUDGE SOLOMON:  You know, we've been doing this for about over three
hours, maybe closer to four hours.  Does anybody need to take a break?

		UNIDENTIFIED SPEAKER:  Stretch?

		JUDGE SOLOMON:  Okay, well, the public says, so we'll take five
minutes.  

		(Off the record at 4:30 p.m.)

		(On the record.)

		JUDGE SOLOMON:  Let's go back on the record.  Ms. Ryder?

		MS. RYDER:  Dave?

		JUDGE SOLOMON:  Mr. O'Connor?

		MR. O'CONNOR:  Yes, this is Dave O'Connor.  A few questions for the
panel.  Typically, how many hours do operating engineers perform the
activities on Table 1 during any particular shift?

		MR. TUREK:  Martin Turek.  Operating engineers typically perform their
entire shift on Table 1 activities if that's the job they're assigned
to.  If an operator is assigned to do a job that's listed on Table 1, if
it's an eight-hour shift, they'd be performing that activity for the
entire eight hours.

		MR. O'CONNOR:  Okay, so it's not an issue then at the beginning of the
shift to determine whether you are going to exceed the four-hour
threshold that we have in Table 1, you just know it's going to exceed
that four-hour threshold typically?

		MR. TUREK:  Traditionally or typically, operating engineers are
assigned to a specific piece of equipment, doing a certain task.  So if
that task was known at the beginning of the shift, which it should be
due to managerial concerns, they should know what the safety and health
effects would be.

		MR. O'CONNOR:  Okay, thanks.  Mr. Turek, you had talked about a slide
you presented and it was a drilling rig where there was a control panel
that was very near the back of the rig.  I was just wondering if you or
the other panel members could describe for the various operations that
are presented on Table 1, that are performed by operating engineers,
where the operator is located and where other workers are located
relative to the source of the dust generation?

		MR. TUREK:  Majority of operating engineers are located inside a cab,
which have a specific or a designated amount of distance in between the
source of generation of respirable silica dust, if that was present, and
where that operator is situated.  There are some different jobs, such as
the well-drilling operation or drilling operation where that operator is
located and their helper is located directly adjacent to the generation
source.  

		Other types of workers that would be near there that are operators are
those construction building inspectors.  They could be near the source. 
They don't have a cab around them, of course.  And also the surveyors. 
So there are some operating engineers that are closer to the source than
others.

		MR. ZIMMER:  This is Kyle Zimmer.  I'd like to make a comment on that.
 One thing that I think OSHA should really consider as this process
moves forward is the changes in technology.  Equipment, you know, heavy
equipment back in the day came out cookie-cutter.  It was all the same. 
As time progressed, things got more technical.  Different machines were
coming out, like you saw that big trencher.  You know, 25 years ago,
that wasn't around.  

		So as techniques in construction change, especially with the energy
industry, with the gas and the water upgrades that are going around with
the infrastructure improvements, there's new equipment that
manufacturers are developing all the time, which may change the
operations that we currently are doing on Table 1, change the exposure
levels.  

		So for that I would like to suggest some flexibility in that table to
change it as it goes, you know, goes further.  Thank you.

		MR. O'CONNOR:  Does an operating engineer typically know when the
engineering controls that are listed on Table 1 are working or not
working?  Can they tell?

		MR. ZIMMER:  Keith, do you want to talk on that a little bit?

		MR. MURPHY:  Keith Murphy.  Yes, you can tell by the visual clues, by
the engineering controls.  If it's water, obviously, you can see if the
water is coming out, or the mister is emitting the water.  As far as the
respirable amounts, that's not really what I can tell.  But you can tell
whatever engineering controls are working that are visible, it's obvious
when they're not working.

		MR. O'CONNOR:  How about for enclosed cabs, can you tell if the
enclosure is effectively protecting the worker or not?

		MR. ZIMMER:  This is Kyle Zimmer.  One thing that I'd like to add to
Keith's, before I address that, is I'd like to refer back to NAPA's
testimony with the milling machine and how the gentleman referenced the
checklist and how the operator or maybe the mechanic on the site would
check out the machines on a regular basis.  That doesn't just hold true
with the millers.  It holds true with every piece of equipment that we
have.

		Throughout the years, our signatory contractors have realized that the
best ounce of, you know, a good savings, if you will, on your
maintenance program is preventative maintenance, going through the
equipment on a daily basis to make sure that it's okay.  And that's a
shared responsibility between our operators and the company people. 

		Again, as I referenced the newer machines, years ago, the operator
would get on the site, like when Larry first started in the business,
check the oil and jump on the machine and go.  There wasn't a mechanic
out there.  As time progresses and it got more technical, there may be
some computer issues, electronics that the operator is not up on.  So
the companies would have people there to do that type of preventative
maintenance.  

		As far as visuals go, you know, you have your normal breakdowns.  With
enclosed cabs, your filtrations systems, as they're being developed and
becoming commonplace in the market, what you're seeing is filtration
systems in the cabs.  You have to check your filters.   

		And, again, it's like a new car.  You don't check your oil in your new
car anymore.  A light comes on and says, hey, it's time to change your
oil, in a nice little voice.  Same thing with the equipment.  So as the
industry progresses, you're going to see changes in the way that we do
things to alert the operators of a defect in the system, if you will.

		MR. O'CONNOR:  A previous questioner touched up on productivity issues
with regard to the engineering controls that operating engineers would
be using.  Can you tell me if there is any set-up time that would be
involved in implementing those controls?

		MR. ZIMMER:  Marc and I were talking about that yesterday, as a matter
of fact.  Marc, do you want to mention the planning process again on
contractors?

		MR. POULOS:  We need an engineering control on the microphone is what
we need.  Marc Poulos.  Yeah, I mean this just comes down to, right, the
preplanning of the projects.  We were talking about this last night at
dinner.  It's like building a building.  I mean a contractor takes the
building of a structure down to the finest detail of how they order
materials so that the first material they are going to use is on the top
bunk of what's delivered, whether it's wood or whether it's steel
structures.  I mean the same thing is true when you're talking about
this type of a regulation, right?  

		Again, this goes to not just short-term effects to workers, but
long-term effects from things like respirable crystalline silica.  So
the set-up time, and I think it was mentioned in some earlier testimony
today, I mean it's minimal.  It just becomes part of the, you know, part
and parcel of the entire planning of the particular project.  And the
implementation of a competent person on that particular job site, and
also operators that have been trained on a checklist to go through these
things to make sure that they're working.  

		And as Kyle says, as time goes on, then also having changes in design
for equipment so that you know when pressure is down on a particular
piece of equipment for a water spray, or you know when a nozzle is
clogged because you're getting a sensor type of thing.  But, yeah, I
mean the set-up and the planning to this is minimal.

		MR. ZIMMER:  And we could probably give -- again, Kyle Zimmer, I'm
sorry, probably give you an exact example.  If I can ask Don to talk
about, you saw the slide with the mist, Don, could you give an idea how
long it would take to set up that piece of equipment on a construction
site?

		MR. HULK:  Not very long, indeed.  Donald Hulk.  Not very long at all.
 It's a wheel-based machine, much like a wheelbarrow.  You wheel it out
to the project.  You plug it up to a water hose.  It needs power.  It
also has a gas option, too, so you have electricity and gas.

		And that picture doesn't show it, but that's actually controlled,
remote controlled.  And the operator in the cab doing the demolition can
actually turn the nozzle of the machine so he can direct that mist to
where the dust is.  So they don't even have to leave the cab to go and
turn the nozzle.  They can do it remotely.

		MS. NADEAU:  We will address this more, as well, in post-hearing
comments.

		MR. O'CONNOR:  All right, thank you.  You had also indicated that IUOE
signatory contractors would like better guidance on the proposed rule. 
And I was wondering if you could specify which aspects of the rule are
creating confusion, where additional guidance is needed?

		MR. TUREK:  Martin Turek.  The guidance that the operating engineers
are looking for has to do with Table 1.  The three things that we
mentioned in Table 1 that we would like more guidance on or added to
Table 1 is to include rock ripping, breaking and/or hoe-ramming, and
rock crushing.  It's those three items.

		JUDGE SOLOMON:  Sounds like four to me.

		MR. TUREK:  Hoe-ramming and breaking, depending on which geographic
area of the country you are, are the same process, just different
terminology.

		MR. HOPKINS:  Larry Hopkins.  Also, one area that I had mentioned in
my report for clarification was what exactly does closely resemble mean
when it comes to air monitoring that would circumvent the necessity to
do ongoing monitoring.  It's pretty important that we know what closely
related means.

		MR. O'CONNOR:  Okay.  In fact, that was my next question.  And I
really wanted to direct this at Mr. Hulk, being a contractor here. 
When you're looking at how the employer would apply a provision as it is
currently written for exposure assessment and the allowance for an
employer to rely upon monitoring that has been conducted under
conditions that closely resemble those that are currently prevailing,
how would you understand those words as they are currently written?

		MS. NADEAU:  That was to you, Don.

		UNIDENTIFIED SPEAKER:  He knows.

		UNIDENTIFIED SPEAKER:  He's thinking.

		MR. HOPKINS:  I told you it's confusing.

		MR. HULK:  I'll have to admit, I'm confused.  Can you ask that again?

		MR. O'CONNOR:  I was really just trying to get at your understanding
of those words as they are currently presented when we use the term
closely resemble.  And we have an exposure assessment provision that
indicates that an employer can rely upon monitoring that has been
conducted if it is under conditions that closely resemble those
currently prevailing.  How would you interpret that now?

		MR. HULK:  How I feel about it now?  If I do a negative assessment on
a particular project, can I carry that information over to the next
project we're doing or do I have to repeat the sampling because maybe
the concrete has a different psi, or a different height, or a different
configuration.  How do I set up a negative assessment so I can carry it
from project to project, that is my confusion.

		MR. O'CONNOR:  Okay, okay.  

		MR. HOPKINS:  Larry Hopkins.  I wanted to add one thing to that, too. 
If you have an excavator operator, for instance, that's running an
excavator during trenching operations with a bucket, and then usually
these pieces of equipment come with quick change devices where we can go
into a hoe-ram operation, or a grappling operation, or a different
variety of operations, which may produce an entirely different
environment than the bucket did.  

		So would the monitoring that was done during an excavation with a
bucket be considered closely related to the same excavator operating
with a different tool or an implement, because it's going to create a
completely different atmosphere?  So I think that clarification is
necessary so that we don't say the excavator operator was monitored on
such and such a day and found to be below the action level, and of
course today is doing a completely different process with the hoe-ram. 
And even though he is the excavator operator, he has put himself in a
more hazardous environment now.  

		MR. O'CONNOR:  Thank you.  One more question.  In the Operating
Engineers' written comments, you indicate issues that you see with the
use of respiratory protection affecting vision, hearing, and
communication.  

		We have also heard testimony from participants in these proceedings
indicating that those problems are associated with some engineering
controls, particularly enclosed cabs.

		And I was wondering if the Operating Engineers shared that view with
regard to enclosed cabs, that they adversely affect vision, hearing, and
communication, and, if so, if you could compare them to respiratory
protection in terms of the level of effect?

		MR. ZIMMER:  I can address that from past experiences of running
equipment in full respiratory, Level B protection, which is supplied air
at a hazmat site.  When you wear a full-face respirator, whether it's an
air-purifying respirator or supplied air, you have essentially another
visor across your face.  So you're looking through one, and then you're
looking through a windshield, and you could have distortion.  The other
thing is with most respiratory protection, you have a limited field of
vision, so it cuts down your peripheral vision.  

		And in some cases, if you're using a PAPR, or powered air supply
respirator, as was referenced here earlier in the week, you may even
have not an excessive level of noise, but added noise already, you know,
added to the already ambient noise of the machine running, depending on
the age of the machine, the condition of the machine.  You know that's
all variable.

		Again, competent person, before you put somebody into the respiratory
protection, the first thing you do is check to see if that operator is
qualified and trained to wear that respirator.  Make sure the medical
surveillance is in place.  And then go through the hazards of wearing it
with them.

		JUDGE SOLOMON:  Right, that's Mr. Zimmer.

		MR. ZIMMER:  Mr. Zimmer, I'm sorry.

		MR. HOPKINS:  Larry Hopkins.  One more time just to touch on that a
little further, too, is there is also a fogging issue, especially with a
full-face mask.  So if we have much like a scuba diving mask, if you
have fogging in the mask, you're going to have a reduced visibility, not
to mention the limitation of peripheral vision.  So, yeah, it creates a
hazard actually to others on the ground, because it's an operator's only
method, typically, of checking the surrounding area before backing up is
to be able to look around, look behind him, and assure that everybody is
clear.  And that could certainly be hampered by fogging or by peripheral
limitations.

		MR. ZIMMER:  Again, Kyle Zimmer.  Just to give you a little bit of
perspective on operating and visibility, I investigated an accident this
past August one of our operators was involved in.  He was running a
rather large front-end loader in a quarry scenario.  And he ran over a
co-worker, killed him.  

		What happens with that, and this is with no respiratory protection or
nothing, but what happens is that these pieces of equipment are so big,
you have restrictions already on your field of vision.  And when we did
the accident investigation, the local police department reconstructive
team, and myself, and the area office of OSHA, I sat there with a couple
of the investigators.

		And I said let's take a look at this for a minute.  I want to make a
prediction on the blind spot.  And the blind spot I said was going to be
between 25 and 35 feet.  And everybody was kind of in agreement with me.
 And it came in at 32 feet.

		Now, that might not sound a lot, like a lot to you.  But when you're
sitting up 10 feet and you can't see behind you like that, put on
respiratory protection and it just becomes so much more difficult to
understand your surroundings.

		You know we have in-cab cameras now.  We have alarms, proximity
alarms, and everything else.  But those are all good, but then you
restrict yourself even more and the effectiveness of those engineering
controls could go down.

		MR. O'CONNOR:  You've described some of the issues with respiratory
protection, and I was just wondering if you have any sense or can talk
from your experience if in a typical situation there was an option to
have an enclosed cab or respiratory protection, what would be the
comparative effect?  Would the enclosed cab restrict vision and
communication to the same extent as respiratory protection, or more or
less?

		MR. TUREK:  Martin Turek.  From previous experience, an enclosed cab
offers much better visibility, much better hearing capacity, less
restriction on the operating engineer, less stress to their body.  The
option to have an enclosed cab, positive pressure, compared to personal
protective equipment such as a respirator, that enclosed cab will offer
much better engineering controls, it will be safer for the operator and
safer for the rest of the workers on that job site.

		MR. O'CONNOR:  Thank you.  

		MR. MOORE:  Hi, Dalton Moore.  I have a question.  I guess in your
testimony and in your comments, you kind of endorsed the use of the
enclosed cabs.  And I was just wondering how prevalent are they in use? 
Are they an everyday item?  Do you see them all the time?

		MR. TUREK:  Enclosed cabs vary greatly between new equipment and old
equipment, so the quality of their cabs, the quality of their seals, of
course, depending on the age of those machines. 

		An example for you is at our training facility, we have around 200
pieces of equipment.  Only about half of those pieces of equipment have
enclosed cabs.  It's going to be a geographic nuance depending on who
has enclosed cabs, the type of work.  If you're doing roadwork compared
to demolition work, you might have a different percentage of machines in
those different industries that do have cabs.

		MR. MOORE:  As far as like can you retrofit older machines to be
enclosed, you know, with the technology there?

		MR. TUREK:  We have retrofitted two of our pieces of equipment, two D8
dozers, Cat D8 dozers, with retrofit cabs.  Both of those cabs, we have
taken off since we've bought those cabs because of the noise generated
by the retrofit cabs.  Also, those retrofit cabs fit inside the ROPs
(ph.).  Fitting inside the ROPs decreases the visibility that the
operator had with either a standard cab that would have came with the
machine originally or with having that cab removed from the machine.

		MR. MOORE:  And last question.  As far as your using respirators
outside of your, you know, defined hazardous work, your hazmat type
work, how often do you find your members having to wear respirators to
protect for silica, possible silica material?

		MR. ZIMMER:  I'd like to have Don answer that because of his
involvement with his respiratory program that he has.

		MR. HULK:  Not many.  In my testimony, the dust-producing activity is
only 5 to 10 percent of the operator's actual activity, so very few have
to wear a respirator.  And, typically, they don't have to wear it for
the whole day.

		I would like to make a comment on the cab.  Once you put the operator
in an enclosed cab, you're going to have to retrofit the cab to have air
conditioning.  They are not going to be able to survive in the summer
months working in a cab that's closed up like that.  So that's the real
added expense to retrofitting an older machine to new technology.

		MS. NADEAU:  For the record, that's Donald Hulk.

		MR. DAVIS:  It's getting late.  Neil Davis.  I just wanted to ask a
few questions.  In the slides, you showed, and in the different jobs you
do, what's the percentage that has laborers working with you or are you
doing the demolition without the laborers?  And what's their proximity? 
Generally, they are closer to the jobs?

		MR. ZIMMER:  Again, I'd like to use the example of Manafort and what
they do.  So can you reference the slide that you had with the pictures
there, how many?

		MR. HULK:  The slide that you saw with the water buffalo, that's a
typical five-man crew.  The operator is running the machine and all the
supporting crew are laborers.  So you're looking at four laborers to
every operator.  And those laborers are in close proximity to the
excavator and the demolition work, so they are also exposed to that
dust.

		MR. DAVIS:  Okay, thank you.

		MR. HULK:  Mr. Hulk.

		MR. DAVIS:  Now, would that be -- we talked about roadwork and
milling.  Is that like two laborers for every operator, or one to one?

		MR. ZIMMER:  Again, this is Kyle Zimmer.  I think they addressed that
this morning in the milling presentation.  And Marty was here.  I think
it's three to one.  It depends again on the size of the milling machine.
 If you're using a smaller like half-lane or less, it would probably be
two to one.  If you're using a full half-lane, it could go three or
four, maybe even higher depending on the traffic patterns and what has
to be set up.  But, historically, you know, you do have ground people
supporting the operator.

		Getting back to the milling machines, which we run quite a bit, the
operating engineers are involved with that, and I know several operators
personally and I talk to them about this.  And, again, that ground crew
is essential for that machine's operation because, again, of the
decreased visibility.  

		They are massive machines.  They are very cumbersome, and the
communications and the hand signals that they use is very effective.

		MR. DAVIS:  In terms of regulated areas, how do you set them up now? 
I guess that would be to Mr. Hulk.

		MR. HULK:  Right now we use caution tape.  So we have to use a
regulated area for two reasons during a demolition job, obviously the
dust, but also for the debris falling off the building and the machine
working around the building.  So we'll put up caution tape around the
perimeter of the building.  Based on the height of the building would
require how far back we pull that tape from the building base.

		MR. DAVIS:  Based on the safety criteria.

		MR. HULK:  Yes.

		MR. DAVIS:  And have you taken a lot -- has your company taken a lot
of samples on silica at this point?

		MR. HULK:  Compared to other samples, no.  We typically take a silica
sample and based on the levels, we'll try to use the real-time monitors
to control total dust.

		MR. DAVIS:  Well, that got to my next question, which is have you been
using real-time monitors and how has that worked out?  Do you send it in
to get verification on larger jobs?  Do you send like an area sample in?
 How do you use the direct reading instruments now?

		MR. HULK:  Well, initially, we'll have to sample for silica and
respiratory disease.  And then we can compare that to the total dust
that was in the sample, re-engineer a number.  So we can use the
real-time monitors as long as we don't exceed that engineering number,
we know we're below the silica PEL.

		MR. DAVIS:  That's very helpful.

		MS. RYDER:  This is Anne Ryder.  I have one quick question.  We've
heard a lot about how on construction sites employers have to deal with
the wind and cold temperatures, and other factors, have to deal with the
elements.  Can you tell us a little bit about how you are making
adjustments when it's a windy day, or when it's freezing, or when it's
really hot in terms of the controls that you're using, especially wet
methods we've heard a lot about?

		MR. HULK:  Don Hulk.  As I mentioned in my testimony, when it gets
really cold and it has been very cold in Connecticut for the last four
weeks, we can't use the dust suppression, so we can't do the active
demolition.  There is obviously the state guideline.  But we also have
an obligation to the owner that we're working for not to create dust and
have that dust migrate off their property.  So that's one condition.

		And the wind, the wind is difficult.  You try to position the
equipment in the right area so the wind is helping you with keeping the
natural ventilation, keeping the dust away from the operator.  But if
the wind shifts and the piece of equipment is already in the position to
do the work and now the dust is blowing back to the cab, the competent
person has to make the decision if we suspend that operation or move the
equipment to another location and demo somewhere else.

		MR. DAVIS:  I have one last question.  You've mentioned that the
training is really the same person for the competent person.  And you
also mention in your written testimony the extra training that would be
required for operating engineer as well.  Would you be able to provide
estimates of that differential time, like what would be the length of
the training that would be recommended?  And you don't have to do that
now.  You could just submit that with your submittals.

		MR. ZIMMER:  This is Kyle Zimmer.  We'll address that in post
comments.  But I will say that what we did say was that depending on the
competent person, his abilities, he may be a competent person for
another discipline already on a job site, and it wouldn't be difficult
to add the silica requirements to his résumé, if you will.

		But, yeah, along with, you know, in our post comments, we'll include
the National Training Fund silica modules on training and what we do
already.

		MR. DAVIS:  Thank you.

		MR. O'CONNOR:  That's all we have.  We'd like to thank the Operating
Engineers for their testimony this afternoon.

		MR. ZIMMER:  You're welcome.  Thank you very much.

		MS. NADEAU:  Do you want copies?

		MS. RYDER:  If you have your written comments, that would be great.

		MS. NADEAU:  Yeah, I have them.

		MS. RYDER:  Thank you.

		JUDGE SOLOMON:  The next panel that's coming up is Fe y Justicia;
that's Faith and Justice in English.  And we also have New Labor from
New Jersey.  Do you want to make these a single panel?

		MS. RYDER:  Yes, I'll get the interpreter.

		JUDGE SOLOMON:  Okay, so let's go off the record for a minute or two
and get situated here.

		(Off the record at 5:08 p.m.)

		(On the record.)

		JUDGE SOLOMON:  Let's go back on the record.  Although I had said that
we were going to consolidate the two panels, I am now told that they
don't want to do that, so we will have the Houston panel up first.

		MS. CASILLAS-PABELLON:  New Labor, New Jersey.

		JUDGE SOLOMON:  You're New Labor?

		MS. CASILLAS-PABELLON:  Yes.

		JUDGE SOLOMON:  Okay.  So learn something new every second here.  So
if you speak English, why do I need an interpreter?

		MS. CASILLAS-PABELLON:  Because they don't.

		JUDGE SOLOMON:  Okay.  

		MS. CASILLAS-PABELLON:  And it could be -- I'm not an official
translator, but I could translate, but it's up to you.

		JUDGE SOLOMON:  Okay, we have an official translator.

		MS. CASILLAS-PABELLON:  Yes.

		JUDGE SOLOMON:  Would you state your name again, the translator, state
your name again.

		THE INTERPRETER:  Anna Duncan.

		JUDGE SOLOMON:  Right.  And as I had said, we have relaxed rules here.
 Normally, I would swear in the interpreter but I didn't do that.  And
she is an experienced interpreter.  And the way it's going to be done is
there will be some questions asked.  Normally, if there were a lawyer,
if these people had a lawyer, the lawyer would ask direct questions.

		So are you going to ask them questions?  How do you want to do this?

		MS. CASILLAS-PABELLON:  They have prepared, themselves, what they want
to say.  And so that's kind of covered.

		JUDGE SOLOMON:  Okay.  So going down the line here, would you please
state your names and your addresses, please?

		MS. CASILLAS-PABELLON:  My name is Marien Casillas-Pabellon.  I am the
Director of New Labor.

		JUDGE SOLOMON:  And that's in Houston, Texas?

		MS. CASILLAS-PABELLON:  That's in New Jersey.

		JUDGE SOLOMON:  Oh, that's in New Jersey, I'm sorry.

		MS. CASILLAS-PABELLON:  Yes.

		MR. MENDOZA:  Yes, my name is Jonas Mendoza.  And I am also part of
New Labor, in Newark, New Jersey.

		MR. TREJO:  Norlan Trejo from New Labor, in Newark, New Jersey.

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

		MS. CASILLAS-PABELLON:  I will.

		JUDGE SOLOMON:  Okay, I hear some noise out there.  Would somebody
please try to stop that?  Okay.  All right, what do you have to say?

		MS. CASILLAS-PABELLON:  Good afternoon.  My name is Marien Casillas,
as I said before.  New Labor is a workers center that represents workers
from different low wage industries in New Jersey.  Among these workers
are day laborers and construction workers.  New Labor and its members
fight for improving conditions of work in low wage labor markets.  As
part of our work, we do a lot of health and safety trainings, and
encourage our members and members of the community to take action to
make their jobs safe workplaces.

		Since 2005, New Labor staff and members have trained over 5,000
workers in different low wage industries, and has partnered with
employers to deliver training, and made recommendations for the
development of health and safety committees in their companies.

		OSHA's proposal to improve worker protections from silica dust are
extremely important for construction workers in general, but especially
for workers in the low wage sector of this industry.  Day laborers and
other construction workers are working in an environment full of
intermediaries and subcontractors that could care less for the
well-being of their workers.  

		Major construction companies hire these subcontractors to place the
responsibility of worker safety and other conditions on these
subcontractors, detaching themselves from any responsibility, in theory,
and making it hard to track who is ultimately responsible for that
construction project.  This makes it harder -- I'm sorry, this makes it
easier for them to shield worker from their wages and to have them
working in really poor conditions.

		A lot of day laborers work in residential construction where it is
harder for governmental agencies to track employers that are not
complying with safety standards or other basic labor and employment
regulations.  Often, these contractors do not even give workers the
correct company names, phone numbers, or they are giving workers fake
names.

		The work is performed in neighborhoods far from where the workers
live, or the workers don't speak the language, which becomes a challenge
for workers to demand personal protective equipment or the right tools
to perform their jobs.  Workers are often left to their own devices and
creativity to try to protect themselves or to perform daily job tasks.

		We have heard stories of workers that out of desperation have used wet
handkerchiefs or wet T-shirts as respirators.  This is a sector of the
industry where the worker is lucky if they got a hardhat or a set of
gloves, and where training and enforcement is scarce.

		This is important because when we are all talking about the standard,
we have to put it in the context of how the work is being performed on
the ground.  In an environment in which there is a blatant disregard for
worker safety, it is imperative that we have strict standards that
provide workers with stronger tools to demand from employers the
required tools and equipment to do their jobs safely.

		It is important to reduce the permissible exposure limit from 150 µg
to 50 µg.  Many of the workers that New Labor represents do not have
access to healthcare or the social networks to deal with lung-related
diseases.  They cannot afford to get preventive care, either. 
Controlling and/or limiting their exposure becomes extremely important
given this scenario. 

		The construction industry has a very weak culture of safety.  OSHA
needs to provide guidance in regards to what it means to work safe. 
Contractors should utilize mandatory dust controls and understand that
respirators are not the first line of defense against silica dust, which
perpetrates workers' assumption that if they are using respirators, they
are immune from illnesses related to exposure of silica dust.

		In cases in which respirators are required, workers must be provided
with training.  They should have medical exams.  And the workers must
have fitting test to ensure protection.

		As mentioned in the OSHA proposal, the employers should provide
training under requirements of the regulation and give a copy to the
workers of said regulations.  Both the training and the materials should
be done in the language that the worker speaks or understands.  Workers
should know what is the employer's plan to control dust for each task
that is exposing them to the hazard.  

		Throughout the years, we have trained many construction workers who
had no or very little knowledge of the effects of silica dust.  Seventy
percent of these workers were not able to say what silica even was or if
they were even exposed to any kind of long-term illnesses.  

		When they learned about the long-term effects to their health, many
were alarmed.  Training has been key in getting workers to demand for
the right equipment and tools to complete their tasks safely.

		Always after trainings we follow up with members to make sure the
impact of these trainings, and 55 percent of the workers that receive
training around these issues express that they have demanded PPE and
other tools to do their work safely after the training was done.

		Two years ago, New Labor held a 10-hour OSHA training in which we
discussed PPE and also discussed silica exposure with the workers and
how to control it.  A group of eight workers of the same company were at
the training.  After the training, workers refused to cut concrete and
marble without -- doing it dry or without the right respirators.

		The employer can try to convince them that they don't have to worry
about it, everything is going to be fine, you just cut it, we need to
get this over with, and they resisted.  But this is not always the case.
 This was a case where there were eight of them.  

		Usually, when there are smaller crews of workers, you don't feel that
safe to demand these things.  And the workers who are with me today are
kind of like the exception.  There is a lot of fear to confront
employers, even knowing your rights.

		So after they requested and demanded this equipment, the employer said
he didn't have another chance because he had to finish the job, so he
actually went and bought the right saw which will allow them to cut it
wet, and at the same time he brought the respirators.  

		So the worker training portion of OSHA's proposed standard is
extremely important for us, for workers, and employers must be made
accountable for providing this training to their workers. 

		The community is ready to make their part in making this work, and I
think it is just having this standard will help us do that job.  So I
really appreciate you giving us the time to be here today.

		JUDGE SOLOMON:  Okay, thank you.  So, Mr. Trejo, you're next.  You're
going to translate that?

		MR. TREJO:  Good afternoon.  My name is Norlan Trejo.  I am a
construction worker, and I am a safety liaison for New Labor.  As a
safety liaison, I am trained to identify and eliminate risk dangers in
our workplaces.  We also provide OSHA 10 trainings to construction
workers and we do other types of trainings related to worker health and
safety.

		In the majority of the jobs that I have carried out as a construction
worker, I have noticed that there is a high presence of silica.  I have
worked cutting ceramic and granite, and I have used machinery that uses
the wet cutting system.  And when I compared the experience of cutting
with the wet cutting system and from the times that I have cut it with
dry cutting, I can see that the wet cutting system is much better
because there is not as much dust and there is greater visibility.

		When I have used the dry cutting system, I notice myself getting tired
quicker.  I have to drink more water.  I can feel the dust in my throat
and in my lungs.  My eyes get really red and I get a lot of burning in
my eyes.  And so, in my experience, it's better when the wet cutting
system is used.  But, unfortunately, a lot of employers don't provide
this system.

		However, the wet cutting system is also a good system because it
doesn't only protect you, it also protects your other co-workers as
well.  A lot of times when I have used the wet cutting system, it is not
because the boss is worrying about his workers.  It is because, you
know, maybe we are doing the final stages of the work.  We're putting on
a new ceiling.  It's because with all of the dust, the dust sometimes
will stain the new ceiling.  And so it's not because he's concerned
about the workers' safety, it's because he doesn't want to stain the new
ceiling.

		I have also cut marble using an N95 respirator.  And although this
respirator meets all of the standards, the required standards, it still
lets too many particles in, even when it's being utilized in the correct
way.  And aside from the fact that the protection for myself is limited,
it also does not offer any protection for my co-workers.  And so that's
why I continue to prefer the wet cutting system as the best method for
controlling silica dust.

		On another occasion, I worked in the construction of a hotel and we
did all of the work related to all of the ceramic work for the
bathrooms, the kitchens, the walls, etc.  There were some of the work
sites where the space was very small, and we used respirators as the
only protection system when we were cutting ceramic or mixing cement.  

		And our boss would only give us a respirator, but he didn't even give
us an N95 respirator.  So the dust was getting through.  It wasn't
enough protection.  We would have had a higher level of protection if we
had used a wet cutting system or if we had connected a vacuum hose to
the saw or to the grinder.

		So we should be using the respirator as an additional protection, not
by itself.  At the same time, a reduction in the permissible limits
proposed by OSHA would also have been useful in that instance.  That's
why OSHA's proposal to use engineering and design controls in order to
control dust is also important.  

		The bosses, often the only thing that they will give workers is a
simple respirator that doesn't even meet the requirements, because the
only thing that they are interested in is getting the job done, not in
your safety and security as a worker.  And this is especially for the
small companies, which is where the majority of us work.

		Some of the contractors that I have worked for don't even know what
OSHA is, and much less know and understand what is a hierarchy of safety
controls.  These employers take very lightly their responsibility to
maintain their workers in a safe environment.  

		One of the problems that those of us who are constantly exposed to
silica and one of the problems that we suffer from is that we don't feel
the damage immediately, the damage that this is doing, and that's
because our bodies are so used to constantly breathing contaminated air.

		And so that's why over time with so many years of being exposed to
this every day, 8 to 10 hours a day of constant work, the effect of this
has accumulated, producing illnesses over the years.  So when one goes
back to their home country to supposedly enjoy the results of why we
came here, to be able to have a better life, you realize that you have
to use what you've earned to be able to cover your medical bills.

		I, personally, believe I agree that workers who are doing work where
they are often exposed to silica should have to do medical exams. 
However, I don't agree that the results of my medical exams should be
handed over to my employer.  

		First, the results should be given to me.  Second, this could open the
door to discrimination or to unjust firing without me even knowing that
this is happening because I'm sick.

		JUDGE SOLOMON:  Maybe we can go to Senor Mendoza, because we have a
time problem here.  Okay.  Mr. Mendoza, do you have -- what do you want
to say?

		MR. MENDOZA:  Good afternoon.  My name is Jonas Mendoza, and I am a
construction worker, also a member of the safety liaison of New Labor. 
As part -- as a safety liaison and also as a construction worker, I
primarily do renovations, interior renovations.  Part of my job duties
include sanding, demolition, painting, and cutting.  And of these tasks,
the one in which I am most exposed to silica are sanding and painting.

		Also, when I am cutting concrete floors or cutting block and brick,
and the employer doesn't provide adequate protection respirator systems.
 It is important when one is cutting cement or doing any kind of cement
work to use a wet saw in order to reduce the amount of dust.  

		And anything that is -- all of this work produces dust and produces
silica.  And this includes doing drywall, dealing with old insulation,
sheet rock.  It really creates a cloud of dust.  And this is something
that surrounds the workers who aren't using protection and who they end
up inhaling it when they are working sometimes for 8 to 10 hours a day.

		And in my personal experience, I have been exposed a lot to silica
working in demolition, in the 10 years that I have been working here. 
And my boss didn't provide me with adequate medical exams.  I had to
take care of getting those exams, myself, because I was suffering from a
lot of -- from coughing.

		And this is what happens when you take the risk of working in an area
where -- a work area where you are going to be exposed to dust and there
isn't adequate safety and security measures.  I think I did the right
thing here when I went to the doctor to get a checkup.  They found a
dark shadow in my lung and this is evidence of all of the material, all
of the dust that I have been inhaling.  And thanks to God I'm okay.  I
recovered.  And now thanks to the training and information that I have
received, I don't put myself at this risk anymore, and I train others in
how to be safer.  

		I also have friends who work with companies that are doing sanding the
outside of houses before painting them.  And they use dust extractors
that avoid air contamination that impacts both the workers and people
who are passing by.  

		When miners suffer from some sort of a health problem in their lungs
related to working in the mines, they are offered an alternative job
that doesn't continue to put them in danger and health risk.  And I
think that all workers should have the right to -- should have the same
right to be able to do jobs where we are not exposed to these harmful
dusts and where we are not putting ourselves at risk of getting lung or
respiratory illnesses.

		In demolition, we often work in work sites that are not adequate for
doing this work.  They are not hygienic.  We often don't have access to
water to be able to wash our hands before eating and we are eating
surrounded by dust.  I think that OSHA needs to have regulations to
protect workers from silica dust.  

		But even more important than this is that OSHA should be proactive in
ensuring that employers are complying with these regulations.  There are
workers who are scared to speak up and complain to their bosses about
these instances because they are afraid of losing their jobs.  They're
afraid of being fired.  However, I believe that all workers have a right
to work in a safe workplace and that's why I am here, because I believe
that working together we can accomplish this.  Thank you.

		JUDGE SOLOMON:  Okay.  Are there members of the public who have
questions for this panel?  Okay, would you come forward?  This time,
you're going to say your name first and then you are going to spell it.

		MS. REINDEL:  Rebecca Reindel, 

R-e-i-n-d-e-l.  I am with AFL-CIO.  First of all, thank you very much
for coming.

		JUDGE SOLOMON:  Do you want to translate that for them?

		THE INTERPRETER:  They have the equipment actually.  The other
interpreter is interpreting for them.

		JUDGE SOLOMON:  Oh, I didn't know that.  Had I known, we would have
done this another way.  But go ahead.

		MS. REINDEL:  First of all, thank you very much for coming here today.
 I really enjoyed your testimony.  I have a few questions for you.  One
is that can you tell me what types of jobs you see the most silica dust?

		MR. MENDOZA:  Really, in New Jersey, we see that everyone who is
working in this industry is doing their jobs without adequate
protections.  The bosses don't comply with the OSHA -- the conditions
that OSHA has set to require a safe workspace.  They are often working
without the respirators and necessary personal protection equipment. 
But I think primarily in demolition work and in cement cutting work.

		MS. REINDEL:  Thank you.  

		MS. CASILLAS-PABELLON:  There is a lot of -- this is Marien.  There is
a lot of issues also when they are cutting ceramic and at the same time
with marble and granite.

		MS. REINDEL:  If a worker today is concerned about silica dust, what
actions do they currently take to protect themselves from the silica
dust?

		MR. TREJO:  So, firstly, since we have already been trained in this,
when we're going to go to a job site, we know what we are going to need.
 We know what we are going to be doing and so we bring our own personal
protection safety equipment.

		But sometimes if we go to a job site where we don't know what we're
going to be doing and so we don't have the correct equipment with us,
since we have been trained in this, we'll talk with our other co-workers
and we'll demand to the boss that they provide us with the protection
equipment or that they provide us with the wet cutting equipment.  And
if they don't do this, then we say we are not going to do the job.

		JUDGE SOLOMON:  Was that an objection to the translation? 

		THE INTERPRETER:  No.  

		MS. RYDER:  I just want to note for the record that that was
Mr. Trejo who was responding.

		JUDGE SOLOMON:  Right.

		MS. CASILLAS-PABELLON:  Can I add something?

		JUDGE SOLOMON:  Well, you just spoke to one of the witnesses.  So what
did you say to him?

		MS. CASILLAS-PABELLON:  So one of the things I said is that I just
want him to clarify what happens when you are not trained.  He has
gotten the training, so he knows what to do.  But we only have 12 safety
liaisons in New Jersey that we have trained to do these work
interventions.  What happens when the worker has not received prior
training, that's kind of like what I was trying to see if he could
answer.

		MR. TREJO:  A lot of times, the worker is scared.  The workers are
scared and especially because the first answer that the boss often will
give is, okay, fine, then you can go home now.  And so a lot of them
will continue to do the work without the equipment.  

		So if one of us is there then we will speak on behalf of all of the
workers.  We'll speak with the boss, and we'll insist that they provide
either the wet cutting machinery or the protection equipment.

		JUDGE SOLOMON:  Anything else?

		MS. REINDEL:  Thank you.  Oh, I do have another other question.  When
you -- some of you mentioned some health effects from, you think from
being at work.  When you are not at work, do you feel better?  Like if
you take a day off of work or you are away from work for a little period
of time, do you -- do your symptoms go away or lessen?

		MR. MENDOZA:  So in my personal experience, I worked for a long time
in construction.  Since I came here, I worked for about two to three
years and then I was exposed to dust.  And, again, often the employer
won't provide masks, so if you don't know how to protect yourself, you
don't know the risks, then you don't notice when these problems start to
arise.

		And so I think in my own case, if I hadn't started to notice that I
was having these problems, if I hadn't gone to the doctor, I don't know
what would have happened to me.  But I, personally, don't think that if
somebody who has these issues stops working for six months that those
issues are just going to go away.

		And I just wanted to say also I have friends who have worked for a
long time, who have been exposed to these risks, who go home to their
countries and then they are not able to enjoy all of what they worked
for because they pass away from this.  They die from this.  And so
that's why I think that we really need this change.  We need the new
OSHA protections because we are a huge part of the labor force here. 
And we are people, just like anyone else, and we deserve to have good
health just like anybody else.

		MS. REINDEL:  Okay, thank you very much.

		MS. RYDER:  For the record, I just want to note that was Mr. Mendoza
speaking on the last two responses.

		JUDGE SOLOMON:  That's correct.  Okay.

		MS. RYDER:  Sure.  Dave?

		JUDGE SOLOMON:  Mr. O'Connor?

		MR. O'CONNOR:  Yes, I have a few questions.  Could you tell me about
your, from your experience and your knowledge, the construction projects
that you have been involved in where dry cutting is performed without
proper respiratory protection, are these small isolated operations, or
are these larger operations involving a lot of people in big cities or
is it a combination?

		MR. TREJO:  The experience that I've had doing dry cutting, there were
a lot of companies involved and a lot of workers.  It was in the
construction of a hotel in New York.  And so, again, the supervisor, the
boss at this site made us use dry cutting.  

		My experience using wet cutting has been more in construction, like I
said, when we have just put in a new ceiling and so the boss doesn't
want us to get the ceiling dirty.  But in the case of the hotel, since
what we were cutting was in the ceramics, so they weren't worried about
there being any issue with getting things dirty.

		I have also done work dry cutting where we were outdoors in open air
and the only people who were affected were ourselves. 

		MS. CASILLAS-PABELLON:  This is Marien.  One of the, especially in New
Jersey, there is a combination of residential construction and a lot of
commercial as well.  Workers move between the two states of New York and
New Jersey.  Especially now, after the storm, there is a lot -- after
Sandy storm, there is a lot of need to rebuild really fast.  So a lot of
these controls will be really helpful and also makes the combination of
the places they are working at, because there is a lot of residential
areas, there is a lot of neighborhoods that are not isolated.  And then
you're going to have commercial spaces, as well.

		MR. O'CONNOR:  From your experience when you have been performing dry
cutting and other dry operations, has there been some compelling reason
that wet methods could not have been used?  Would it have been possible
to use wet methods?  

		I know we've heard people in these proceedings say in some instances
they can't use wet methods in very cold weather because the water will
freeze.  Is that your experience?  Has there been some reason that you
have been prevented or could water have been used in those cutting
operations?

		MR. TREJO:  No.  In the instances that I am talking about where we
used dry cutting, the boss didn't do it because he didn't buy the
machinery, but we could have done wet cutting.

		MR. O'CONNOR:  Thank you.  And I just wanted to get a sense as well of
the duration of time that workers are typically spending with a
particular employer.  Is this a matter of days, weeks, a longer period
of time, or does it vary?

		MS. CASILLAS-PABELLON:  It depends.  There are going to be workers are
going to be with the same, a single employer for just that day or two to
three days.  And then you're going to have construction workers that
usually are going to have long-term employment with a specific
contractor.  It could be argued that then the jobs are -- the exposure
is going to be less because they are going to change from employer to
employer, but at the same time they are doing the same task every day
most of the times.  Just what is changing is the employer who hired you.

		MR. O'CONNOR:  Okay.  And one more question.  I understand through New
Labor you are providing training to workers.  But absent the training
provided by New Labor, are the employers, themselves, providing any
training to workers on the hazards of silica?

		MR. TREJO:  No.  

		MS. CASILLAS-PABELLON:  In our experience -- this is Marien -- I'm
sorry.

		MR. TREJO:  No.  New Labor sometimes gets funding to be able to pay us
to do these trainings.  Other times, we do it for free.  But in my
experience, I have never seen an employer pay for these trainings.

		MS. CASILLAS-PABELLON:  This is Marien Casillas.  One of the things
that is going to depend, we have done outreach to employers in the past,
so we do the training for their workforce, for their crews.  Also, in
times where they have been cited for any violations of health and
safety, we do the trainings because we have a good relationship with our
regions, so we are able to provide that.

		But, at the same time, there is very few employers who will provide
this training to the workers.  So I think if they -- there is a standard
that force them to do so, then our members and the workers that we talk
to will be in a better position to demand this training and at the same
time replicated it.  It's really scarce.  There is not much training
provided by employers.

		We do have had employers that have requested training, but it is when
they need the OSHA 10 card to do the job in New York, because if they
don't have the OSHA 10 card for their workers, they cannot do the job.

		MR. O'CONNOR:  Thank you.

		MS. CASILLAS-PABELLON:  You're welcome.

		MS. IANNUCCI:  Good afternoon.  This is Annette Iannucci.  I think it
was Mr. Montrejo earlier who started talking about concerns about
results of medical exams going to his employer.  Is that correct?  Is it
Montrejo?

		THE INTERPRETER:  Trejo.

		MR. TREJO:  Yes.

		MS. IANNUCCI:  Could you please give us some more information of what
your concerns are?

		MR. TREJO:  My concerns, well, firstly, I don't think that the boss
has any reason to know what's going on with your health.  If you're
sick, he knows that this illness is something that could get worse and
so you are likely to be fired.  And the boss also knows that if this
happens that you could sue him.  And so then he is going to try and
protect himself against being sued.  And so at the end of the day, it's
the worker who ends up being negatively impacted by this.

		MS. IANNUCCI:  Okay, thank you.  One more question and this is
probably difficult and you may not have an answer to this right now, but
if maybe you could think about it and let us know when you submit post
hearing comments.  This has to do with the short-term assignments.  As
you said earlier, sometimes you're only with a certain employer for
days.  And we've gotten comments that it would be very difficult to
administer medical surveillance under those circumstances.  So I was
wondering if you agree or any ideas you might have for being able to
make sure that all these workers get medical surveillance.

		MS. CASILLAS-PABELLON:  This is Marien Casillas-Pabellon.  You are
right, that is a hard question.  But I think something that we have been
able to do and probably community organizations could help out is in
terms of keeping track of who the employers are.  That's something that
we have been doing for the purposes of other regulations like wage and
hour and stuff like that, in the past.  And it has been effective for us
to then get the workers to identify who the employer is.

		Even though sometimes you are hired, the workers are hired for a short
period of time, the employers will visit the same places to hire the
workers over and over again, and you may have the chance to be rehired
by that employer at some point.

		I know it's really hard to keep track.  But at the same time, there
could be also some suggestions in terms of mapping who are hiring in
those places and kind if figure it out from that way.  

		I think also the way when the workers go to look for jobs, which are
different corners, a lot of worker centers and community organizations
have mapped where these corners or shape-ups are located at.  That could
help also to offer an idea of where the workers are located and who is
hiring there, and in that way being able to track it.

		If I could have another suggestion, I would like to talk to other
worker centers and networks that we work in terms of suggestions, and we
will love to submit it in the next couple of days.

		MS. IANNUCCI:  Thank you very much.  We'd really appreciate that. 
Thank you.  And that's it for me.

		MR. O'CONNOR:  OSHA would like to than the panel for testifying this
afternoon.

		JUDGE SOLOMON:  Let me ask, I want to ask a couple of questions.  I
think the interest of justice requires that I ask these questions.  So
just to expedite things, Ms. Casillas, do you know whether these
workers are paid through a labor pool or a hiring hall?

		MS. CASILLAS-PABELLON:  No, they are not being hired through a hiring
hall.  There is just shape-ups on the corner of the street.

		JUDGE SOLOMON:  What about a labor pool?

		MS. CASILLAS-PABELLON:  A labor pool?  I don't know that.

		JUDGE SOLOMON:  When they get paid, were they actually paid by the
contractor or do they get, you know, like a 1099 from some other entity
other than the contractor?

		MS. CASILLAS-PABELLON:  No, they don't get all that stuff.  They are
going to get -- oh, I'm sorry, I didn't mean to sound funny.  But they
will actually either get paid in cash or they are going to get a check
that might bounce or personal checks that are not necessarily companies.
 

		JUDGE SOLOMON:  Okay. 

		MS. CASILLAS-PABELLON:  There are companies that do pay --

		JUDGE SOLOMON:  The technical term for this, at least in Miami, is
catching a break.

		MS. CASILLAS-PABELLON:  Catching a break.

		JUDGE SOLOMON:  Catching a break.  They go to a corner and somebody
picks them up.  So it's all under the table.  There are no records being
kept?

		MS. CASILLAS-PABELLON:  No, there is not a contract.  It's really
difficult, yeah.

		JUDGE SOLOMON:  Okay.  Do you know whether any of these jobs are in
public buildings?

		MS. CASILLAS-PABELLON:  Yes, they are.  A lot of -- one of the issues
that we are trying to deal with is how to make sure that workers are
paid prevailing wage, yeah.

		JUDGE SOLOMON:  What I mean by public buildings are government
buildings, especially the federal government.  Do you know what --

		MS. CASILLAS-PABELLON:  Yes.

		JUDGE SOLOMON:  Okay.  Are you able -- do you have a list of these
buildings that you could provide to OSHA?

		MS. CASILLAS-PABELLON:  Well, not right now, but we are able to talk
to our members and produce it.

		JUDGE SOLOMON:  Okay.  I don't have any questions.  Does anybody have
any questions based on what I asked?

		MS. RYDER:  No, I don't think so.

		JUDGE SOLOMON:  Okay, muchas gracias.

		MS. RYDER:  Thank you very much.  And if you want to submit, I know we
didn't get through your whole testimony, Mr. Trejo, but if you have
written remarks that you want to submit, we definitely encourage you to
do that.

		MS. CASILLAS-PABELLON:  We would like to translate it, if that is
okay.

		MS. RYDER:  Yeah, that would be great.

		MS. CASILLAS-PABELLON:  And then have it to you.

		MS. RYDER:  Okay, thank you.

		MS. CASILLAS-PABELLON:  Gracias.  Thank you.

		JUDGE SOLOMON:  Okay, so let's go off the record for a second.

		(Off the record at 6:04 p.m.)

		(On the record.)

		JUDGE SOLOMON:  We're back on the record.  So one at a time, would you
please state your names?

		MR. ARMENDARIZ:  My name is Santos Armendariz.  I am from Houston. 
And I have seven years working on construction.

		JUDGE SOLOMON:  Just your names for the time being.

		MR. GRANADOS:  My name is Jose Granados from Houston, and I work in
construction.

		MR. HERNANDEZ:  Good afternoon.  My name is Santiago Hernandez.  I am
from Mexico, and I live in Philadelphia.

		JUDGE SOLOMON:  Okay.  So who wants to go first?  Okay, so what do you
have to say?

		MR. ARMENDARIZ:  My name is Santos Armendariz, and I've been working
in construction for seven years.  And what I'm going to share with you
today is basically what I think is the reality for us as workers.

		So the reality, my experience in terms of what happens on the job
sites, I worked for five years in concrete, sheet rock.  Last year, I
was working on carpentry.  I have also worked with granite and in
building kitchens.

		And in the last year when I was working for this company that builds
kitchens, we all worked in the same building.  And this is similar to
how it is done, I think, with most small companies.  So we are the
workers who were doing the carpentry, the assembly pieces.  We were
working close to those workers who were working with granite.

		And so all of the workers here, really nobody ever told us that we had
to use adequate safety measures.  We would use small face masks, but the
boss never told us about any of the problems that we could encounter
from working either with or next to granite.

		We constantly had to be cleaning off our safety glasses.  Our masks
would actually change color because of all of the dust that was
accumulating, the granite dust.  And at the end of the workday, when we
would blow our nose, it was really just an exaggerated amount of dust
that we had.

		In January of this year, I went to the organization Fe y Justicia,
Faith and Justice, in Houston, and I received a training about silica. 
And there was a question that came up there, which is why were we not
informed about this previously.  The company never did any kind of exam
when I started, while I was working there, or when I left.  And the
consequences of this can be felt over 5 or 10 or more years.  And I am
speaking about my own experience, but this is the case of an infinite
number of workers, at least in the state of Texas.

		And I know a lot of workers who work for small subcontractors, and
basically they're told you have to get the job done and so cut the
granite or cut whatever material however you can.  

		And so what I think the solution here is that I think it's really
important that workers need to be educated about this.  And I think that
the boss or the subcontractor needs to -- is responsible for and needs
to be required to educate their workers about this.  And that's it.

		JUDGE SOLOMON:  Okay, thank you.  And next?

		MR. GRANADOS:  My name is Jose Granados.  I am from El Salvador, and I
came to the United States 15 years ago.  I have been working in
construction for about 12 years.  I came here with the idea of seeking a
better life.  And I think despite all of the risks that I have faced
working in construction that I have really come to give myself over to
this work.

		And so I started going to the workers' center and I received classes,
trainings about OSHA regulations.  And so the company will require that
we use hardhats and safety glasses, but they don't require using masks
or respirators.

		And so through these classes, you know, I have learned what all things
we're supposed to be doing.  I've seen sometimes what I'll do is I'll
use a wet handkerchief.  I'll wet a handkerchief, and I'll tie it onto
my face over my nose and my mouth, especially, you know, sometimes when
I'm working cutting brick.  There will be just lots and lots of dust, a
cloud of dust, brick dust around us.  And it's not just affecting those
of us who are cutting brick.  It's affecting everybody around.  It's
affecting those people who are working in sheet rock, who are working in
cement, all different materials.

		When my co-workers are mixing cement, you know, they will be pouring
the sand in and then they'll pour in a whole bag of cement, but they are
doing this and it's dry.  And so then there will be a bunch of air or
wind, and all of that dust comes up and we are breathing that dust.  And
it's really poisonous.  

		And I'll tell them put water on it, you know, based on what I've
learned what we should do, also, you should put water on that.  And
they'll say, no, you be quiet, because if the boss hears us, then he's
just going to fire all of us.

		And I think that there needs to be a punishment for employers who
don't do this and that this is something that they should have this
information as well.  They should have to take OSHA classes, not just us
as workers.  And when they have this information, then they should be
required to pass the information onto their workers, make sure their
workers know about the protections and so that we're not being poisoned
by this.

		And so like a month ago, you know, it was really cold.  And so what
the boss did is he wanted us to speed up the work that we were doing,
and so he gave us a bunch of tubes of caulking to seal the bricks
outside, the exterior of the bricks.  And since it was freezing cold
outside, what we had to do was actually melt the caulking.  And so we
were breathing all of the fumes from doing that.  And when I got home
that day, I had a fever.

		And so I told my boss that maybe that's why I had gotten sick.  And I
went to the clinic and I haven't gotten the results yet from the tests
that I did at the clinic.  They're going to give them to me on the 7th. 
But my boss said, oh, no, you know, how is that going to make you sick,
of course not, because all he cares about is getting the job done.  He
doesn't care about the health and safety of his workers.

		And that's the reason that I am here today to ask you all, since you
all are the ones who pass the laws or who sign off, to make sure that
OSHA protects us because I believe that OSHA can protect us.  Thank you.

		JUDGE SOLOMON:  And next?

		MR. HERNANDEZ:  My name is Santiago.  I am from Mexico.  And I'm going
to talk to you a little bit about my experience working here in America.
 I have worked for a very long time in construction.  I worked in
construction when I lived in Mexico, and I did a lot of training about
construction, about safety.  And I thought, oh, for sure in America
there is going to be a lot better safety and security than there is here
in Mexico.  And the reality that I found was that that actually was not
true, that there wasn't enough safety and security here.

		So I started -- when I came here, I started to work with a lot of
different contractors.  I worked with a lot of American contractors.  I
worked with a lot of African American contractors.  And, really, nobody
gave me the safety training that I thought I should be getting.

		And no one, in my experience, no one gives us the property safety
equipment that we need.  I have a brother who got really sick from
working in construction.  He was bedridden for eight days.  He was
working on a site in a basement and he didn't have any kind of
protection equipment.  He went home from work sick that day.  He had to
come back the next day.  He was still sick.  And he had a lot of -- his
throat was very irritated after that.

		And I think that all employers really should be conscious of the fact
of how they treat their workers, that they need to provide the necessary
safety equipment so that we can do our work and then they can do their
work, and everyone will be better. 

		And so a little while ago today I was listening to some of the
engineers talking about safety and security for the big machines.  And
so they talked about the cabins of these big machines.  But I think that
those of us who work for small companies are really being forgotten
here.  And I didn't hear anyone talk about those of us who are working
every day, day in and day out, directly with the dust and surrounded by
dust.

		And so, for the most part, I work in what would be considered general
construction.  And so dust is always a problem.  This isn't a problem
that we can get rid of altogether, but it is something that we can
protect ourselves against if we have the proper equipment, proper
protection.

		And in closing, I just want to say that I wish that employers would be
more conscientious in terms of how they treat their employees.  They
need us, just like we need them.  They depend on us, just like we depend
on them.  And they should really take better care of their employees. 
Thank you.

		JUDGE SOLOMON:  Okay.  You're on your way down.  Anybody else?  Are
there any other questions?

		MS. REINDEL:  Hi, Rebecca Reindel, 

R-e-i-n-d-e-l, from the AFL-CIO.  I have just a couple of questions. 
Thank you for coming today.  One is in your experience what happens when
workers -- you touched on this a little bit, but what happens when
workers bring safety concerns to their bosses?  Maybe workers who are
not trained in safety, what happens when they bring their safety
concerns to their employers?

		MR. ARMENDARIZ:  I think for the most part there is a lot of fear. 
People are afraid of losing their jobs because especially, you know,
nowadays it's hard to get work that pays well.  The work doesn't pay
well and so people are afraid of losing their job.

		You know in a lot of the small companies, it's very common that you
see, you know, there will be a group of workers here one day and then
it's a different group the next day.  And that's because the boss
doesn't want to spend money.  They don't want to spend money on their
employees.  They don't want to spend money on security protections. 
Only if they think that someone is going to come and look into them and
investigate them, then, sure, they'll do it.

		MS. RYDER:  And for the record, that was Mr. Armendariz.  Is that
your last name?

		MR. ARMENDARIZ:  Santos Armendariz.

		MS. REINDEL:  Okay.  And so, in your opinion, why is an OSHA
regulation on silica necessary?  Anybody answer?

		MR. GRANADOS:  I think that this regulation is necessary because if we
can reduce or get rid of the dust, then we'll have much better health. 
Also, in terms of your previous question about what would happen if we
bring these issues to the boss, I have done this in the past.  I have
brought these issues to his attention and the boss told me that I was
crazy.  And he told my co-workers not to listen to me because he said
that I was crazy.  And then he basically told me that I had to take more
days off or sent me home for more days.

		MS. REINDEL:  Okay, thank you very much.  

		MS. RYDER:  And, for the record, that was Mr. Granados.

		JUDGE SOLOMON:  Right.  Okay, Ms. Ryder?

		MS. RYDER:  Mr. O'Connor?

		JUDGE SOLOMON:  Mr. O'Connor?

		MR. O'CONNOR:  Our proposed rule would require many dusty operations
to implement some type of control, generally either wet methods or
ventilation, vacuum dust collection.  And I was just wondering from your
experience how frequently the work operations you've been involved in,
the dusty work operations have used some measure to lower the dust
levels?

		MR. ARMENDARIZ:  In the company that I mentioned previously that makes
kitchens, things really changed dramatically in terms of the way things
are done there in January of this year, and we were told it's because
OSHA showed up.  OSHA arrived.  And so then they stopped doing the dry
cutting, and they started doing wet cutting.  And so then that really
eliminated a lot of the dust that we were having before.

		MR. O'CONNOR:  Could any of the other panel members speak to that
question as well, what proportion of the time have you seen some
controls used to lower dust levels?

		MR. GRANADOS:  For myself, personally, since I have been here, at
least where I work, I haven't seen them do anything to reduce the amount
of dust on the construction site.  

		MR. HERNANDEZ:  And, generally, I am working in small sites.  I'm
working on houses.  And so there is really no way to eliminate the dust.
 Again, I do general construction and so there is, you know, dust here,
dust there, there is dust everywhere, so we can't eliminate it.  But I
think if we have proper protection equipment, proper protection systems,
then we can reduce the harm.

		MR. O'CONNOR:  Okay.  And with regard to that personal protection,
respirators, from your experience, have these generally been provided? 
Can you give some sense of how often respirators have been provided or
is it simply a matter of using the wet handkerchief or wet T-shirt?

		MR. HERNANDEZ:  Sometimes, the boss will buy the equipment, but a lot
of times we have to buy it for ourselves, in order to protect ourselves.
 You know, the boss will act like he didn't hear us asking for it and so
we have to get it for ourselves.

		MR. GRANADOS:  So where I work, again, I work with painting, sheet
rock, and sanding, and in our case, the boss is -- he's a little bit
worried now, but it's really just because he wants to protect his own
work, his own job.  So he'll give us -- so he'll give us cheap masks. 
He'll give us like the 99 cent masks.  And I am working next to people
who are like spraying and doing all this, and just with the 99 cent
masks.

		MS. RYDER:  For the record, the second speaker was Mr. Granados.  The
first speaker was Santiago -- what is your last name?

		MR. HERNANDEZ:  Hernandez.

		MS. RYDER:  Hernandez, okay.

		MR. DAVIS:  I just want to clarify -- my name is Neil Davis.  I want
to clarify what type of construction everybody is in.  I thought it was
residential, but I'm not -- the first speaker may have gone to a
specialty contract with the granite.  Is that correct?

		MR. ARMENDARIZ:  So I work for a company that produces kitchens,
things for kitchens.  And so there is the raw material that comes in,
the wood.  We make the cabinets.  We make the granite.  But it's we are
producing those things.

		JUDGE SOLOMON:  I shouldn't stick -- I shouldn't be a buttinski, but
fabrica is a factory.  He works in a factory.

		MR. DAVIS:  And the two other gentlemen?

		MR. GRANADOS:  I work for a company that builds houses, that does
construction on houses.  And so there is a lot.  So there is a lot of
different ones, you know, Highland, for example.  There's a lot.  And
there one of the things we do is cutting brick.  And there's like --
it's not even dust, it's smoke.  You get lost in the smoke.

		MS. RYDER:  And for the record, sorry, the first response was from
Mr. Armendariz, the second was from Mr. Granados.

		MR. DAVIS:  And, Mr. Hernandez, are you working in residential when
you say general?

		MS. RYDER:  I think maybe you need to change the battery?  Or plug it
in, maybe the -- 

		JUDGE SOLOMON:  Okay, let's go off the record till they fix it.  We
got screwed up here a little bit, so we're going to have to straighten
this out.  So he lost his feed.

		(Off the record at 6:35 p.m.)

		(On the record.)

		JUDGE SOLOMON:  Back on the record.  Do it again.  Say it again so
that we have it on the record.

		MR. HERNANDEZ:  I work in general construction.  I work mostly in
residential, in houses.  Previously, I did work for larger construction
companies.

		MR. DAVIS:  Thank you.

		MR. MOORE:  This is Dalton Moore.  I was just wondering of the
contractors and the companies that you have worked for, how many of them
have provided you any type of health and safety training?

		MR. ARMENDARIZ:  In the company that I worked for during the last
year, we were never told about the risks associated with dust.  They did
tell us, oh, you know, use the masks or use the safety glasses, but they
didn't ever tell us anything about the risks related to dust, or dust or
silica.

		MS. RYDER:  And that response was from Mr. Armendariz.

		MR. MOORE:  Thank you.

		MS. IANNUCCI:  Good afternoon.  This is Annette Iannucci.  I have a
question for Mr. Granados.  You spoke about a recent clinic visit after
you got a fever, after you worked with the caulk.  And I was wondering
who paid for that doctor's visit, was it you or your employer?

		MR. GRANADOS:  I paid for it.

		MS. IANNUCCI:  You paid for it, okay.  And any of our panel members,
have any of you ever been offered any kind of medical exams by your
employer?

		MR. HERNANDEZ:  In my case, just one.  Of all of the employers that
I've had, only one has shown any interest in my safety and health.

		MS. RYDER:  And that was Mr. Hernandez.

		MS. IANNUCCI:  Okay, thank you.  That's it for me.

		MS. RYDER:  I have a couple of questions.  I want to thank you all for
coming here today and testifying, telling your story to us.  I wanted to
ask all three of you if you are fearful that if your employer found out
that you were here today testifying that you would be discriminated
against in any way or retaliated against.

		MR. ARMENDARIZ:  I can say for myself I am not scared anymore. 
Speaking generally for other workers, I think that they are scared.  A
lot of them are scared.  Me, personally, I don't have a family, so I
have less to be afraid of.  But I have seen organizations come to speak
with workers and the workers, all of the workers are too scared to talk
to them.

		MR. GRANADOS:  I am not scared, speaking for myself.  You know I am
here alone, but I'm not scared.  And I think that, you know, if I show,
if I'm putting myself on the line, putting my body on the line here to
see what we can do, what can happen, then my colleagues, my co-workers
will see it, and they'll say if he's not scared, then we shouldn't be
scared either.

		MR. HERNANDEZ:  So I guess you're asking are we afraid.  And I would
say, no, we're not afraid.  We have to have courage to be able to speak,
to talk about our experiences and to talk about what we are feeling. 
And there always needs to be someone who goes out in front, who shows
the -- who forces the employers to do what they should be doing.

		MS. RYDER:  Just a couple of follow-up questions for you all, thank
you.  And obviously you all are here and not fearful.  Do you know of
any of your friends or co-workers who would be too scared to come here
or to raise health safety issues with their employers?

		MR. ARMENDARIZ:  Yeah, personally, you know, I speak a lot with a lot
of my co-workers, and I know that a lot of them are scared.

		MR. GRANADOS:  I also speak with a lot of workers, and I have also
heard that they are scared, you know, and I'll tell them we have to
speak up, we have to do this.  And they'll say, no, you know, I'm just
here to earn money, I have to work, I have to support my family, and if
I do this I'm going to lose my job, I'm going to get fired, and then my
boss is going to tell the next boss, who is going to tell the next boss,
and then I won't be hired ever again, you know, I'll never get another
job.

		And so that's why I'm here, because I want to show people that there
is support; that we don't need to be afraid to speak up.  And I also
think that it's really important that OSHA needs to go and do trainings
for employers, not just for us as workers, but OSHA needs to train
employers, because they're the big fish.  We're the little fish here. 
They're the big fish, and they have the power to make these changes.

		MR. HERNANDEZ:  I think a lot of people are scared.  And that's why
I'm here, again, for all of the people who are scared.  That's why I'm
here in front of you all today.  And I'm going to continue.  I'm going
to invite my friends to come to meetings, to talk about their problems,
to not be scared, because we're always facing problems.  Every job site,
we're always dealing with problems.  And we can't be scared to speak up.

		JUDGE SOLOMON:  Anything else?

		MR. O'CONNOR:  No.  We're very grateful that you took the time to come
in and speak with us this afternoon.

		MS. RYDER:  And evening.

		JUDGE SOLOMON:  Okay.  So if there is nothing else, it's 6:46, and the
hearing is closed.

		(Whereupon, at 6:46 p.m., the hearing was continued, to resume the
next day, Friday, March 28, 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 27, 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

 PAGE   2494 

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