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 31, 2014

9:30 a.m.

Frances Perkins Building Auditorium

200 Constitution Avenue, N.W.

Washington, D.C. 20210

	

BEFORE: 	STEPHEN L. PURCELL

	   	Chief Administrative Law Judge

U.S. DEPARTMENT OF LABOR (DOL):

ANNE RYDER

Attorney, Office of the Solicitor

ANNA LAURA BENNETT

Attorney, Office of the Solicitor

OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION (OSHA):

DAVID O'CONNOR

Director, Office of Chemical Hazards - Non-Metals 

PATRICIA DOWNS

Office of Technologic Feasibility

ROBERT BLICKSILVER

Office of Regulatory Analysis - Health

JOANNA GORSE 

Office of Physical Hazards 

DALTON MOORE

Office of Technical Feasibility 

TOM MOCKLER 

Acting Director, Office of Regulatory Analysis 

- Safety

MASON CONTRACTORS ASSOCIATION OF AMERICA (MCAA): 

RASHOD JOHNSON, PE

NATIONAL CONCRETE MASONRY ASSOCIATION (NCMA):

ROBERT D. THOMAS

President

 

CONCRETE SAWING AND DRILLING ASSOCIATION (CSDA):

PATRICK O'BRIEN

Executive Director

MILLER AND LONG COMPANY:

FRANCISCO ANTONIO TRUJILLO, CSP, MSOS 

Safety Director

iQ POWER TOOLS

JOEL GUTH

President 

 

INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTWORKERS (BAC):

TOM WARD 

DALE McNABB

TOMMY TODD

SEAN BARRETT

DENNIS CAHILL

JAMES BOLAND

President

ANNE KEARSE

CARYN HALIFAX

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME):

DIANE MATTHEW BROWN

Health and Safety Specialist

OTHER PARTICIPANTS:

CHRIS TRAHAN

Building and Construction Trades Department, AFL-CIO

SCOTT SCHNEIDER, CIH

Director of Occupational Safety and Health

Laborers' Health and Safety Fund of North America

WALTER JONES

Laborers' Health and Safety Fund 

MARK KEMP

Chairman, Mason Contractors Association of America

BRAD HAMMOCK

Attorney, Jackson Lewis 

Construction Industry Safety Coalition

JEFF BUCZKIEWICZ

President, Mason Contractors Association of America

PEG SEMINARIO

Safety and Health Director, AFL-CIO

ELIZABETH NADEAU

Attorney, International Union of Operating Engineers

INDEX

										PAGE

		

INTRODUCTION

Judge Stephen L. Purcell						  PAGEREF Intro \h  2874 					  	 

MASON CONTRACTORS ASSOCIATION OF AMERICA (MCAA);

NATIONAL CONCRETE MASONRY ASSOCIATION (NCMA);

CONCRETE SAWING AND DRILLING ASSOCIATION (CSDA)

	MCAA - Rashod Johnson, PE				  PAGEREF Johnsontestimony \h  2875 

	NCMA - Robert D. Thomas					  PAGEREF Thomastestimony \h  2889 

	CSDA - Patrick O'Brien					  PAGEREF OBrientestimony \h  2897 

	Questions								  PAGEREF Questions1 \h  2905 

MILLER AND LONG COMPANY, INC.; iQ POWER TOOLS

	

	Miller and Long - 

	Francisco Antonio Trujillo, CSP, MSOS		  PAGEREF Trujillotestimony \h 
2957 

	

	iQ Power - Joel Guth					  PAGEREF guthtestimony \h  2969 

	Questions								  PAGEREF Questions2 \h  2979 

INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTWORKERS (BAC)

	Tom Ward								  PAGEREF Wardtestimony \h  3016 

	Dale McNabb							  PAGEREF McNabbtestimony \h  3022 

	Tommy Todd							  PAGEREF toddtestimony \h  3027 

	Sean Barrett							  PAGEREF Barretttestimony \h  3035 

	Dennis Cahill							  PAGEREF cahilltestimony \h  3040 

	James Boland							  PAGEREF Bolandtestimony \h  3045 

	Questions								  PAGEREF Questions3 \h  3051 

INDEX

										PAGE 

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME)

	Diane Matthew Brown						  PAGEREF Browntestimony \h  3106 

	

	Questions								  PAGEREF Questions4 \h  3118 						

ADJOURNMENT								  PAGEREF adjournment \h  3131 

EXHIBITS

EXHIBITS		DESCRIPTION				 	PAGE

Exhibit 94	Mr. Johnson's testimony			  PAGEREF exh94to96maradm \h  2905 


Exhibit 95	Mr. Thomas' testimony			  PAGEREF exh94to96maradm \h  2905 	

Exhibit 96	Mr. O'Brien's testimony	  		  PAGEREF exh94to96maradm \h 
2905 	   

Exhibit 97	Mr. Trujillo's testimony			  PAGEREF exh97markadm \h  2969 

Exhibit 97A	Mr. Trujillo's supporting data	  PAGEREF exh97Amarkadm \h 
3014 	   

Exhibit 98 	Mr. Guth's PowerPoint/photos 		  PAGEREF exh98to100markadm
\h  2978 	

Exhibit 98A	Mr. Guth's testimony  	   		  PAGEREF exh98Amarkadm \h  3014


Exhibit 99	Mr. Guth's test data			  PAGEREF exh98to100markadm \h  2978 

Exhibit 100	Mr. Guth's test samples	  		  PAGEREF exh98to100markadm \h 
2978 	   

Exhibit 101	BAC video						  PAGEREF exh101and102markadm \h  3050 

Exhibit 102	BAC PowerPoint			  	   	  PAGEREF exh101and102markadm \h 
3050 

Exhibit 103	Ms. Brown's testimony			  PAGEREF exh103to107markadm \h 
3117 

Exhibit 104	AFSCME submission				  PAGEREF exh103to107markadm \h  3117 

Exhibit 105	"Silicosis in Dental Laboratory 					Technicians"					 
PAGEREF exh103to107markadm \h  3117 

Exhibit 106 	"Highway Repair: a New Silicosis 					Threat"						 
PAGEREF exh103to107markadm \h  3117 

Exhibit 107	"Dangerous Dust: Exposure to 						Crystalline Silica in
Alberta	  	  PAGEREF exh103to107markadm \h  3117 	   				  

	

	

P R O C E E D I N G S

(9:31 a.m.)

		JUDGE PURCELL:  Good morning, ladies and gentlemen.  My name is
Stephen Purcell, and I'm the Chief Administrative Law Judge for the U.S.
Department of Labor.  Today is Monday, March 31st, and this is the 10th
day of the OSHA hearing on exposure to respirable crystalline silica.  

		The first item on the agenda this morning is Rashod Johnson who
represents the Mason Contractors Association of America.  Mr. Johnson,
if you'd come forward, we'll begin with your testimony.

		MS. RYDER:  And, Your Honor, we'd also like Robert Thomas from the
National Concrete Masonry Association to come at the same time so both
can appear.

		JUDGE PURCELL:  All right.  Mr. Thomas, are you here?  

		MS. RYDER:  Okay.  And also Patrick O'Brien from the Concrete Sawing
and Drilling Association if he's here.

		JUDGE PURCELL:  Anybody else you'd like   to --

		MS. RYDER:  Not the --

		JUDGE PURCELL:  Okay.

		MS. RYDER:  Just those three.

		JUDGE PURCELL:  Mr. O'Brien, are you here as well?  

		MR. JOHNSON:  Hmm?  Go ahead.

		JUDGE PURCELL:  All right.  Gentlemen, if you would introduce
yourselves with your full name and the parties you represent, and then
you can begin your presentations going down in the order we just
described.

		MR. JOHNSON:  Rashod Roderick Johnson representing the Mason
Contractors Association of America.

		MR. THOMAS:  And good morning.  My name is Robert Thomas.  I'm with
the National Concrete Masonry Association.

		MR. O'BRIEN:  And good morning also --  Patrick O'Brien, the Executive
Director with the Concrete Sawing and Drilling Association.

		JUDGE PURCELL:  Okay.  Mr. Johnson?

		MR. JOHNSON:  	Thank you.  Thank you for the opportunity to testify in
front of you.  My name is Rashod Johnson.  I'm here today representing
the Mason Contractors Association of America.  

		Before I begin with my comments, allow me to give a brief biography. 
I'm an entrepreneur from Chicago that owns two engineering firms.  The
first is a construction materials testing laboratory.  We test
everything from concrete to asphalt, soils, steel.  The second is a
full-service civil engineering design and consulting firm.

		Earned a bachelor's and master's degree in civil and structural
engineering, emphasis in materials, and a master's in business.  I hold
professional engineering licenses in four states including Illinois,
which is my home base of operations.

		Previously I served as the Director of Engineering for the Mason
Contractors Association of America where I was an integral part in
Occupational Health and Safety of MCAA and all of our members.  It was
here, 13 years ago, that I was a member of the Silica Task Force and
began my research in respirable crystalline silica.  I served as the
committee -- Subcommittee Chairman of ASTM E3430 on construction  -- I'm
sorry -- on construction in silica from its inception in 2003 until 2013
when the subcommittee was reorganized.

		That subcommittee oversaw and maintained the development of the first
ever standard practice for controlling occupational exposure to
respirable crystalline silica for construction and demolition
activities.  It was published in 2006 and was tweaked and re-published
in 2009.  I remain an active member of this committee to this day on
behalf of the MCAA.

		Let's talk a little bit about that ASTM standard.  ASTM standard
E2625-09, standard practice for controlling occupational exposure to
respirable crystalline silica for construction and demolition
activities.  After OSHA's 2003 proposed silica rule stalled, the masonry
industry and in particular the Mason Contractors Association of America
realized that our association had missed the boat.  We'd missed the boat
pertaining to protecting our workers and our workforce from exposure to
respirable crystalline silica.  As such, the MCAA encouraged our local
and regional chapters to begin using OSHA's consultative program and
consultative services under the Special Emphasis Program all across the
country so that we can better ascertain what was our real exposure to
respirable crystalline silica.

		This information gathering occurred for the better part of four years.
 In that same four years, from roughly 2003 to 2007 the U.S. saw its
greatest economic upswing in construction industry after World War II. 
This allowed us to gather a good amount of information and data
concerning construction exposure to respirable crystalline silica.

		Seeing that OSHA's rulemaking process had somewhat stalled around
2004, 2005, the MCAA and other construction associations decided to take
this data that we had all assembled and use some of this data in order
to develop a national consensus standard to control silica, particularly
and specifically in construction.  We recognized that our workforce was
far too important to neglect silica -- to neglect and silica exposure
posed a danger to all of us.  As a result we led the effort to develop a
standard practice within ASTM.

		After years of due diligence, research, data mining and balloting,
ASTM International, formerly known as the American Society for Testing
of Materials, published ASTM E2625 in 2006 and later improved upon in
2009 which is still the current version of the standard.  

		Though ASTM had already developed a silica standard for the general
industry, the committee within ASTM realized and recognized the unique
challenges that construction and demolition activities faced when
dealing with this material.  Therefore, it was best to separate these
documents and focus one document specifically on construction.

		We modeled ASTM E2526 largely after the OSHA proposed rule in 2003. 
For example, we instituted a hierarchy of controls, methods of
compliance, exposure monitoring, training, and even medical
surveillance.  More importantly, ASTM E2526 implemented task-based
control strategies similar to the proposed rule in the infamous Table 1.


		As we were developing this document, there were many members of the
construction industry, including some of our own association members,
that felt as though the standard that we were developing in ASTM was far
too stringent.  However, our goal was to develop a standard that
protected both our workforce as well as our members.  We did this by
including the workforce and the employers on the same ASTM committee. 
Imagine that concept.  Everybody at the same table developing a standard
that's going to protect everyone in that industry.

		This committee ensured that both parties collaborated and compromised
as to what was in the best interest of the industry.  Let's be clear. 
There are many similarities between the proposed rule and ASTM E2526. 
This is proven by the at least 25 citations within the proposed rule of
the ASTM standards.  However, we're not here to discuss the
similarities, but rather the stark differences.  In particular there are
two: the permissible exposure limit and Table 1.  

		The current construction PEL as calculated is roughly somewhere around
250 µg/m3.  The ASTM committee realized that this was probably too high
in terms of effectively protecting our workforce.  After some serious
internal fights, we were able to compromise within our committee on 100
µg/m3 as our limit.  We did this partially from the data that we had
received and partially from the OSHA Special Emphasis Program.

		Some of the reasons for this were as simple as the type of material
used.  Most of our tests, even when using engineered controls and
sometimes respirators, could not get below a PEL of 100.  We couldn't do
it.  And, again, some of it were as simple as materials.  For example,
depending on the type of aggregate you use, depending on the type of
material you use your PEL could change tremendously in a cut if you use
a brick -- I'm sorry -- a brick where it's clay and there's very little
quartz involved in it silica might or might not be a big issue.  If you
use a highly quartz -- a high quality of quartz inside of a concrete
block your PEL might be a little bit different.  Those are some of the
things that no one even considered when looking at the standard, rather
just putting it all as one big blank slate.

		The PEL of 100 will actually force contractors to make some serious
changes in the way they are currently performing their work and even
then could still potentially set contractors up to fail as it was often
an unachievable limit.  This was at 100 µg/m3.  A PEL of 50 or
effectively 25 will undoubtedly make it such that no mason contractor
under any construction circumstance can comply.  It will ensure that
every single contractor cutting masonry will be in violation.  So if
this is your goal, you will succeed.

		Let's talk about Table 1.  Table 1 in ASTM's E2526, yes, we have a
Table 1 in our standard as well, was developed in a manner that was
supposed to mimic the intent of the proposed rule of 2003.  Basically
should a contractor follow these basic steps they should be protected. 
For example, in ASTM E2526, Section 4.4.1 we state, "Where exposure
levels are known from empirical data, a task-based control strategy
shall be applied that matches tasks with controls," and then lists
examples of these tasks and controls.

		One of those examples are cutting clay and concrete masonry units. 
There's a 90-minute window to allow for occasional cuts without having
to implement controls.  This 90-minute limit in one workday is
significant to contractors because the vast majority do not cut all day.
 And the ones that do cut at cutting stations specifically demarcated
off site or away from the population of construction that allows them to
set aside different engineering and administrative controls.  This
allows for much-needed flexibility that the construction industry needs
to have when looking at controlling respirable crystalline silica.

		The MCAA felt as though ASTM was the best place for this document
because ASTM allows for the standard practice to become a living
document, a living, breathing document that can adapt and change as
technologies in our industry evolves.  In addition, the ASTM standard is
a nationally recognized consensus standard unlike any other -- I'm sorry
-- silica document that may have been developed for any particular
segment of our industry.  It's the only one that brings the entire
industry together, both labor, contractors, owners, everybody at the
same table.

		This distinction allows for the ASTM standard to be specified by
architects and engineers as a part of the official construction
documents of any construction project.  This makes it part of the
construction contract.  Secondly, ASTM standards can be referenced by
national and local building codes such as the International Building
Code or the Masonry Standards Joint Committee, hence making it law by
code adoption.

		Officials at OSHA were not only aware of this standard practice but
also attended and participated in many of our meetings.  We very
purposefully held a lot of our ASTM committee meetings in the D.C. area
with invitations to OSHA officials such that they could come, invite --
we -- they could come, participate, listen, add any sort of influence
that they may have wanted to and they did that for a lot of our
meetings.

		The current proposed rule cites ASTM, again, 25 times.  Oftentimes,
however, it's cited out of context without taking into account the
entire standard practice as a whole.  If given the opportunity, the MCAA
feels as though the ASTM E2625 document can more than adequately protect
the construction industry against overexposure to respirable crystalline
silica.  All we need is the opportunity to prove its effectiveness by
allowing it to be specified in the work in the way that it was intended.
 This will allow us to self-regulate our own industry.  At the end of
the day it's in our best interest to protect our workers, and that's
what we plan on doing.

		Let's talk a little bit about technical feasibility.  OSHA defines
engineering controls as the first and best strategy to control the
hazard at its source.  Engineering controls do this, unlike other
controls that generally focus on the employee exposed to the hazard. 
The basic concept behind engineering controls is that to the extent
feasible, to the extent feasible, the work environment and the job
itself should be designed to eliminate hazards or reduce exposure to
hazards.  The key words in this entire definition is, "to the extent
feasible".  

		What is feasible?  What is feasible in construction?  That's the key
question.  Construction, masonry construction in particular, is an
extremely mobile industry whose projects last for two to three weeks in
most cases.  Oftentimes mason contractors employ multiple small crews
simultaneously in order to increase efficiency.  So everyone talks about
wet cutting.  Is wet cutting feasible?  Probably, some cases.  Probably
not in others.  Oftentimes wet cutting causes additional hazards that
are rarely mentioned.  For example, the vast majority of masonry saws
provide water on the blade itself.  Water on the blade.  This is solely
for the purpose of cooling off the blade.  The side effect just happens
to be that the dust is sometimes suppressed.

		Now, manufacturers of these saws are starting to explicitly state that
the water used in this blade -- in this system is used for cooling the
blade only and should not be used to suppress dust.  Interesting.  Wet
cutting.  I live in Chicago.  Even though it's been a great winter, it's
still cold outside, extremely cold outside.  But construction is picking
up.  I can promise you there's not a mason contractor in Chicago that
wants to wet cut today.  Anywhere.  Scaffolding, not scaffolding.  You
introduce water to a system that there's not water in subzero
temperatures, and you will provide yourself with a bigger hazard than
you'll ever find from respirable crystalline silica.

		Another example is in California.  The California Environmental
Protection Agency has deemed that the silica slurry produced from wet
cutting is now classified as a hazardous material.  This means that
contractors in California now have to follow hazmat procedures for a
product that they're not really sure is proven harmful in its wet slurry
form.

		Lastly, to mandate wet cutting in all instances is just flat-out
shortsighted.  It's not feasible in all cases.

		Let's talk a little bit about technology.  The technology that's
necessary to comply with the proposed ruling has multiple problems. 
From a purely technological perspective, most of the technology is
cutting edge and new.  Even though we've recognized in America or
nationally that silica has been an issue for the past 30 plus years no
one has taken the time, effort, energy to make sure that our technology
can actually do what this proposed rule says it can do.

		By default, cutting edge technology and new technology is largely
unproven, extremely cost prohibitive, especially to small firms, small
contractors, and widely -- and not widely available.  The MCAA realized
this when we published the ASTM standard whose PEL was actually four
times higher than the proposed PEL now.  So if technology, today's
technology, isn't widely enough spread to be used to cover at 100 µg/m3
we feel as though 25 is going to set everything up to fail.

		According to the Center for Disease Control, there are currently about
300 B readers in the entire U.S.  Three hundred.  Let's make the
assumption that they're spread all across America evenly.  What is that?
 Six per state?  Six per state, okay?  Yet the proposed rule would
require millions of construction workers to have this test performed. 
In our consultations with OSHA we found that sometimes the B readers
took as long as four months to get results because there are so few.  In
fact, there's only four in all of Texas, for example.  Because there's
so few.

		So if we are doing this on a Special Emphasis Program where we're just
trying to get some small tests performed, imagine what this is going to
look like when millions of workers are going to have to have this test
done.  Four months?  Try four years.  

		Simply put, the engineering controls and medical surveillance portion
of this construction industry is largely unready.  The -- this fact will
set thousands of contractors up to fail miserably.  Get cited, pay
fines, close their businesses due to no fault of their own.  Regardless
of the intent of the proposed rule, this will be the effect.

		Let's be clear.  The MCAA is not opposed to national standards.  Not
opposed to regulation of silica on construction sites.  Hell, we even
developed one of our own because we recognized the need to protect our
workers.  But it was for self-regulation of our own industry and begin
steps to protect our own workforce.  However, we feel that the proposed
standard overreaches in many areas with little to no additional benefit
to worker safety while in the meantime destroying the businesses that
are employing these workers. 

		That's the irony here.  Small business owners, including myself, mason
contractors in particular, are in the business of mitigating risk.  It's
what we do.  This standard practice makes it almost impossible to
mitigate this risk.  Smart contractors will understand that this risk is
too great and will decide to do something else.  What I'm not sure
everyone understands is most contractors are not contractors.  They're
entrepreneurs.  We're going to make money regardless of where it is. 
And if you make it impossible for us to do it in the masonry industry
most entrepreneurs will be okay.  What will happen to the millions of
workers who work for them?

		This economy is still depressed for many in the masonry industry, and
this proposed rule will be the last straw.  There are no workers to
protect if there are no contractors.  

		Thank you very much.

		JUDGE PURCELL:  Thank you, Mr. Johnson.  I'm going to withhold
questioning, Mr. Johnson, till all three speakers have had an
opportunity.

		Mr. Thomas, you're next.

		MR. THOMAS:  Thank you, sir.  Oh, I get dual microphones?

		UNIDENTIFIED SPEAKER:  There you go.

		MR. THOMAS:  Thank you, Rashod.  I think you did a nice job with
explaining that, and for our sake on the National Concrete Masonry
Association, I hope the contractors are in business for a long time.  We
need the support of contractors to get our products into the field.

		So let me address my statements today from the National Concrete
Masonry Association.  I thank you for the opportunity to appear for you
-- before you today.  My name is Robert Thomas and I'm -- I serve as the
President of the National Concrete Masonry Association.

		Both the Association and its members are committed to ensuring the
occupational health and safety of its employees and appreciates the
opportunity to engage in deliberations on the best approaches to
accomplish these objectives.

		The products manufactured by our member companies are placed into
service by the laborers and craft workers that Rashod just described. 
They're employed across a wide spectrum of contractors ranging from
landscapers to homebuilders to commercial masonry contractors.  

		While we have concerns about the impact of this proposed ruling on the
customers of our products and the resulting feasibility of concrete and
masonry construction, I'll primarily stand in support of organizations
such as that of the Mason Contractors Association of America as well as
the Interlocking Concrete Pavement Institute, which will speak later
this week as it relates to construction concerns for masonry and
hardscapes respectively.  As such, I'll spend my time today a little bit
more focusing my comments on the general industry requirements as they
impact manufacturing within our industry.  

		The concrete masonry industry has undergone consolidation over the
last couple of decades.  As such, we now have a number of larger
vertically integrated companies in addition to small, one-machine,
family-owned companies.  Certainly the nature of safety programs and
accessibility to resources to address safety issues varies considerably
between companies within these two extremes, but it is important to note
that of the 450 or so concrete block manufacturing companies in
operation today, about 90 percent of them employ less than 100 people,
and 70 percent of them employ less than 20 people.  Thus the average is
about 31 employees per company, a number that drops to about 18 per
manufacturing establishment.

		The first concern I will address today is therefore the basis for
assumptions made on the potential impact of the ruling on small
businesses in ours and in other industries.  Many now realize that the
construction economy in 2006 was a temporary illusion.  New
manufacturing capacity was being acquired at that time to meet the
demand, and newly purchased plants and production lines were being
installed even as late as 2011, several years after the bottom dropped
out on construction.  The result is a completely different business
dynamic than existed when cost feasibility studies were conducted in
2006 and completely different than when the last SBREFA panel was
convened in 2003.  

		As evidence of the impact of the recession, please take note that the
industry demographics I articulated represent a decrease of about 25
percent in both the number of companies and establishments as well as a
decrease in payroll and employment of over 30 percent.  

		In today's reset construction economy for concrete products, prices
are lower, margins are lower, and many small family-owned businesses
have used up all of their available resources to maintain payrolls
through a long, protracted recession.  There simply are not available
assets for these companies to invest in engineering controls, and there
is little accessibility to credit for equipment upgrades that will not
generate additional revenue or return on investment.

		I believe that it is not overdramatic to say that implementation of
this ruling at this time could drive a significant number of small block
producers out of business.  However, this is too important of an issue
to leave to conjecture.  To truly assess the impact on small businesses
such as those in our industry it is necessary to convene a new SBREFA
panel to appropriately assess the impact and cost benefit of the
proposed rule relative to today's business environment.

		The nature of a concrete block manufacturing facility naturally
induces exposures to employees across a wide range of tasks:  The
handling of raw materials such as sand and gravel; the transport of
materials and manufactured products across what is often an unpaved
storage yard; the possible proximity in common rural locations for
plants to farms and unpaved county roads; the charging of mixers; the
cleaning of mixers; the packaging of manufactured units; the
post-finishing of manufactured products through grinding, polishing and
sawing; and the general in-plant maintenance and cleaning.  Thus there
are a number of possible unique dust-generating tasks in a concrete
block plant, each requiring its own engineering solution.

		NCMA has roughly estimated an annual additional cost of about $25,000
for a typical plant to comply with the PELs in this ruling.  Consider
the -- considering the small size of most of our manufacturing
companies, there are very few employees over which the benefits of the
additional investments by the company can be distributed.  Thus, we have
concluded that not only are the costs of compliance higher than
estimated by OSHA, so too are the costs per employee.

		Given the magnitude of the possible required investment and the
limited availability of capital to these producers to implement
engineering controls, the time line for compliance may be too
restrictive.  A phased approach to reducing the PEL or implementation of
an action level would be more appropriate to reduce financial burdens if
indeed a reduction was implemented. 

		The task of grinding, polishing, and antiquing in architectural
concrete block creates probably the most challenging task from a silica
control standpoint even if cost were of no object.  Beyond safety
considerations, there are also market expectations for a dust-free
finished product, creating another incentive for the manufacturers of
these products to limit dust.  So while engineering controls appear
feasible in these operations to meet the current 100 PEL, it has proven
difficult, if not impossible, to regularly comply with the proposed PEL
of 50, much less an action level of 25.

		The nature of dry cast concrete manufacturing where material is wetted
only enough to enable it to be compacted into a mold generates waste
material, which must be cleaned from mixers, from around machines, and
throughout the plant.  Vacuum systems for general cleanup are somewhat
impractical given their cost due to the wide range of needed collection
points throughout the plant.  While most plants avoid compressed air to
blow debris when possible, it is often the only viable approach to reach
hard-to-access areas around equipment.  Only a small percentage of block
plants use sweeping compounds as the compound contaminates the material
such that it cannot be recycled for re-use into the mix.

		Wet methods of cleaning and dust suppression, with the possible
exception of wetting unpaved yards and roads, have been demonstrated to
cause more problems than they solve.  As such, the prohibition of dry
sweeping should be removed from the proposed rule.

		As stated in our previously submitted public comments, the National
Concrete Masonry Association supports the positions of other
organizations such as the Crystalline Silica Panel of the American
Chemistry Council, of which we are a member.  And those comments are
that OSHA has not satisfactorily demonstrated the need for significant
revision to the standard relatives to the benefits being provided by the
current standard, nor has OSHA accurately accounted for the cost
associated with the implementation of the new standard in today's
manufacturing business environment.

		We thank OSHA for the efforts to engage industry in forums such as
these hearings, but respectfully submit that the level of engagement has
still not been adequate.  The producers in our industry have not had
adequate time to truly assess the impact of these requirements, nor do
we believe that there is an accurate understanding of those impacts.

		I would like to conclude with a series of specific recommendations and
requests, and that's that we encourage OSHA to reconvene a new SBREFA
panel to assess the impact of the proposed regulation on those small
businesses operating in today's market prior to finalizing the rule. 
And in the event that a revised rule is approved, we recommend that an
extended period of time be permitted for companies to implement
engineering controls and we also request the prohibition of dry sweeping
be removed.

		Thank you.

		JUDGE PURCELL:  Thank you, Mr. Thomas.

		Mr. O'Brien?

		MR. O'BRIEN:  Thank you, Judge Purcell, and thank you for allowing me
to testify this morning.  My name is Patrick O'Brien.  I serve as the
Executive Director of the Concrete Sawing and Drilling Association.  I'm
here to testify on OSHA's Notice of Proposed Rulemaking on occupational
exposure to crystalline silica.

		My tenure as CSDA Executive Director began in 1991.  Prior to that I
worked for a decade with GE Superbraces (ph.), which manufactures a
synthetic diamond that is used in the saw blades, core drills, diamond
wire and polishing heads.  My career before GE was in the aviation
industry conducting flight tests of jet aircraft on and off the aircraft
carriers for the Department of Defense Naval Air Systems Command.  I
hold a B.S. in aeronautical and astronautical engineering and an M.S. in
management.

		CSDA is a nonprofit trade association of contractors, manufacturers,
and affiliated members from the construction and renovation industry. 
The CSDA mission is to promote the use of professional cutting,
polishing, imaging, and selective demolition contractors and their
methods.  In support of this goal, the CSDA Code of Ethics demands that
they pursue the highest quality standards of safety, quality, and
integrity.  

		Sawing and drilling with diamond tools offers the construction
industry many benefits, including lower total project costs, precision
cutting, maintenance of structural integrity, reduced down time, reduced
noise, dust and debris, limited access cutting and the ability to cut
heavily reinforced concrete.  

		Founded in 1972, CSDA has 500 international members, and CSDA is one
of 25 associations making up the Construction Industry Safety Coalition.


		Based on my 30 years of experience in the construction industry, I am
aware of the issues concerning occupational exposure to respirable
crystalline silica.  I fear that what OSHA has proposed is simply
unworkable for the construction industry and in particular for the
sawing and drilling segment of this industry.

		During my brief testimony I would like to focus on three key points
that are both general to the construction industry and specific to
CSDA-type sawing and drilling contractors.  These are the areas I
believe have not been addressed in prior testimony, to try and not
duplicate what has been said before.

		First, I ask how OSHA can state that lowering the PEL from 100 to 50
or even 25 will save 700 lives.  The Centers for Disease Control
analysis of data from the National Institute of Occupational Safety and
Health and the National Occupational Respiratory Mortality System from
1968 to 2002 that I have researched indicate that deaths attributable to
silicosis in construction have decreased from 1,157 in 1968 to 148 in
2002.  In addition, data from the U.S. Bureau of Labor Statistics
indicate that this figure has been further reduced to 102 by 2012.

		It would appear that the PEL established by OSHA over 40 years ago is
working.  The focus should not be on introducing a vastly more
complicated rule but a way to figure to increase compliance with the
current rule.

		CSDA has taken compliance approach with the current rule that is
simple, but effective.  Simple works in the construction industry.  I
would rather have a simple system that is not 100 percent technically
perfect and correct than a system that will not be used, indeed cannot
be used, for the sawing and drilling contractors. 

		CSDA has worked with NIOSH and contractors to collect data of all the
sawing and drilling operations over the last decade to produce a best
practice document, CSDA BP-016, which is this document here.  This is an
effective but simple guide for the contractors to look at the chart and
easily determine if there is respiratory protection as required and what
type of protection is needed.  No cumbersome sampling is needed nor
could even be done.  I believe this approach is simple and would be
utilized by contractors to a much higher degree and thus protect workers
from any possible exposure to airborne silica.

		Second, the proposed silica rule would be laborious and costly in
addition to being overly complicated.  The majority of CSDA-type sawing
and drilling contractors perform work on multiple locations and job
sites each day.  This is the main business for these contractors and an
average operator will be on four to five jobs in a single day.  Many
contractors have had operators on seven to eight jobs in a single day. 
To have someone monitor on each of these and take air samples is just
not economically feasible or practical.  In addition, taking an air
sample reading would require meaningless data five days from then as the
operator would never be on that job site again.  

		In addition to the impracticality of the logistics, there is the cost.
 There are over 2,000 sawing and drilling companies in the U.S. with an
average revenue of less than $2 million.  This translates into 8 to 10
operators working on four to five job sites per day or up to 100,000 job
sites per day across the country.

		OSHA has estimated that the cost to implement this proposed rule would
be 637 million.  One of our contractors on the Small Business Regulatory
Enforcement Fairness Act Panel in 2003 estimated that the cost for a
sawing and drilling company would be $3 million.  The contractor was
larger than average, but if we assume that the cost of only a quarter of
those 2,000 sawing and drilling contractors was three million, to
implement this proposed rule, then, the cost would be over $1 billion. 
This far exceeds the estimate of 637 million for the construction
industry as a whole and sawing and drilling contractors represent less
than one half of one percent of the construction activity.

		Finally I'd like to point out the differences between professional
sawing and drilling contractors and the rest of the construction
industry who utilize diamond tools.  When I see any discussion about
silica, there inevitably is a photo of a saw generating a large plume of
dust.  I believe that the general consensus is that sawing with these
tools can only be done with the resulting dust.  Nothing could be
further from the truth for professional sawing and drilling contractors.
 Nearly 100 percent of the contractors use water on each and every job,
and this has to do with extending the life of the expensive diamond
tools.

		The reason for this is that the diamond will begin to back-convert to
carbon at temperatures above 800 degrees centigrade.  So water is used
to keep the diamond blade cool so that the diamond will not back-convert
and the life will be maximized.

		The use of water has the additional benefit of containing silica
particles that would be -- silica particles that would become airborne. 
CSDA invited NIOSH to visit our National Training Center at St.
Petersburg College in Clearwater, Florida to observe our operations. 
The NIOSH representative indicated that there was very little chance of
airborne particles using such water systems.  The only time there is any
possibility of exceeding the current PEL would be indoors, and the CSDA
Best Practice addresses those instances.

		I appreciate the opportunity to appear here today, and I know that
OSHA is serious about hearing from stakeholders.  CSDA members are small
family members.  Each and every one cares about their family. 
Oftentimes it's husband and wife that run the business with 5 to 6 to 10
to 15 operators, and they do everything possible to ensure their safety
and well-being of their family.

		I hope that OSHA will carefully consider these comments on behalf of
CSDA in determining how best to protect workers in the construction
industry.  I hope they will agree that the best way to protect workers'
health in the construction industry is simple rather than complicated
methods.  

		Thank you for your consideration of this testimony.

		JUDGE PURCELL:  Thank you, Mr. O'Brien.  During your presentation you
held up a document.  I'm not sure you identified that on the record, and
I want to make sure the record's clear.  Could you state the caption of
that document?

		MR. O'BRIEN:  This is CSDA Best Practice, CSDA-BP-016, Silica Data
Analysis Chart and I provided a electronic copy of this to --
beforehand.

		JUDGE PURCELL:  To OSHA?  Okay.  Also, I asked Mr. Johnson before we
started, but I haven't asked either you or Mr. Thomas; do you wish to
offer copies of your written testimony into the record as exhibits?

		MR. THOMAS:  I -- we do.

		JUDGE PURCELL:  Okay.  Mr. Thomas [sic], I'll mark yours as Hearing
Exhibit 94.  And if you want to hand that over?

		MR. JOHNSON:  Give you a couple copies.

		JUDGE PURCELL:  Thank you.  And, Mr. Thomas?  If you want to hand me
a copy of yours I'll mark that as Hearing Exhibit --

		MR. THOMAS:  Want to pass that up?

		JUDGE PURCELL:  -- 95.

		MR. THOMAS:  Mr. O'Brien for 95.

		JUDGE PURCELL:  Oh, I'm sorry, Mr. O'Brien.  Thank you.

		MR. O'BRIEN:  And I provided a electronic version of that as well.

		JUDGE PURCELL:  Sorry.  Good.

		Did you want to offer the printed-out copy of the document you --
yeah, fine.  I'll mark that as Hearing Exhibit 96.  Okay.  And all three
exhibits are admitted in the record.

(Whereupon, the documents referred to as Hearing Exhibits 94 through 96
were marked and received in evidence.)

		JUDGE PURCELL:  Now, if I could see a show of hands of individuals who
have questions for any of the three individuals?  Okay.  Looks like
three on this side.  

		If you want to start first?  Please approach the lectern, state your
full name, spell your last name, and your affiliation.

		MS. TRAHAN:  Good morning.  Chris Trahan, T-r-a-h-a-n, with the
Building Trades.

		JUDGE PURCELL:  Thank you, Ms. Trahan.  And when you ask questions,
if it's for a particular panel member, just identify who you're asking
to respond.

		MS. TRAHAN:  Yes, sir.  

		The first questions I have are for Mr. O'Brien.  Your best practices
guide, I'm happy you submitted it to the record.  Is that a document
that CSDA continues to build on and expand?

		MR. O'BRIEN:  It is.  It -- it's been developed over the last 10
years, and there's a lot of data in there, and it states the specific
test cases that were provided, and we just feel that it's a better
alternative to use in the industry so we promote the use of that to our
members, so in the absence of any other.

		MS. TRAHAN:  And I do know it's available to the public because I
requested and received a copy of it --

		MR. O'BRIEN:  Okay.

		MS. TRAHAN:  -- thank you, as we were preparing for the hearings.  I
think it's a good example of objective data, or could be.

		MR. O'BRIEN:  And it is on the --

		MS. TRAHAN:  With more guidance from OSHA.

		MR. O'BRIEN:  And it is on the website as well, so anybody could
access it.

		MS. TRAHAN:  Okay.  Thanks.

		JUDGE PURCELL:  Mr. O'Brien, can you pull the mic a little closer
when you're responding?

		MR. O'BRIEN:  Okay.

		JUDGE PURCELL:  Thanks.

		MS. TRAHAN:  Does that document encompass all of the data you've
collected regarding silica?

		MR. O'BRIEN:  It does.  It looks at each of the different operations,
whether it's slap sawing, core drilling, wire sawing, hand sawing.  So
it encompasses each of those and also whether it's indoors/outdoors, so
in almost every one of these instances the data that's presented is a
result of a specific test, many of them done by NIOSH.

		MS. TRAHAN:  Does it include member-generated data?

		MR. O'BRIEN:  It does, members that had data contracted with to have
done, so --

		MS. TRAHAN:  Okay.  Thank --

		MR. O'BRIEN:  And it explains it all in there too.

		JUDGE PURCELL:  Mr. O'Brien, I'm not sure the microphone's picking up
--

		MR. O'BRIEN:  Oh.  Okay.

		JUDGE PURCELL:  -- your comments.

		MS. TRAHAN:  Thank you.  The next questions I have are for
Mr. Thomas.  In your written comments you mentioned that local exhaust
ventilation was originally installed to reduce the plume of nuisance
dust associated with charging the mixer in dry cement.  And was that --
did you indicate that was a cost-effective way of collecting the dust?

		MR. THOMAS:  Yes.  That has been a cost-effective approach to handling
that plume of dust during the charging of the mixer.

		MS. TRAHAN:  And that your typical exposures you're seeing in that
activity for employees range from 25 to 125 µg/m3?

		MR. THOMAS:  Yes.  There is a wide range of that depending on some of
the plant configurations.  Some of them are open air, some of them are
closed, some of them have different availabilities for venting, and so
some have been able to get down to those levels of 25, and some have not
yet been able to get down to those levels.

		MS. TRAHAN:  And that's inside your plants?

		MR. THOMAS:  Correct.

		MS. TRAHAN:  Okay.  Other -- another thing in your comments you
indicated exposure ranges from 15 to 75 µg/m3 on cleanup.  Is that --
does that encompass most of the exposure data that you're able to share,
and can you share additional exposure points with the record?

		MR. THOMAS:  Well, we did a -- an informal survey of our members here
during the comment period and got a wide range of results coming back,
and so from that cleaning aspect, I think you're referring to the
cleaning of the mixer at that time?  That sound correct?

		MS. TRAHAN:  I --

		MR. THOMAS:  Or is it general cleanup?  It may --

		MS. TRAHAN:  It was general cleaning.

		MR. THOMAS:  -- be the general cleanup.  Yeah, so general cleanup
obviously, there's, you know, there's dust on the floor, there's dust
that comes off of the conveyors.  There's material throughout the plant.
 And so that process of cleaning generates dust by itself and so, yes,
we saw ranges in that neighborhood of 15 to 75.

		MS. TRAHAN:  Thank you.  And did you have anything to offer as far as
cost effectiveness of using local exhaust ventilation versus not having
to clean up?

		MR. THOMAS:  Well, there's -- using the local exhaust ventilation
systems does not preclude the need for cleanup.  It will certainly
remove a lot of the dust that is generated right around that initial
charging statement.  And generally what -- the plant has other
incentives for controlling that as well because a cement plume creates a
lot of wasted cement into the plant and so to control costs they want to
collect that as well.  So that's an added incentive for them to be able
to do that, but certainly they've been looking at the well-being of the
employees that are in that process as well.  But yes, it has been an
effective approach.

		MR. TRAHAN:  Okay.  Thank you.

		And, Mr. Johnson, I have a few questions.  You -- I believe you had
some exposure data that's been collected through your members, and I
wonder if that is part of the OSHA record or could be provided to OSHA
as part of the rulemaking record?

		MR. JOHNSON:  We do have quite a bit of data.  It is not part of the
OSHA record, and we are able to provide some of it but not all of it. 
Part of the reason is because contractors have a very inherent distrust
of OSHA and OSHA-related things because they've all been violated at
some point or gotten some citation at some point.  So when they provide
data for certain things that they've been written up or cited for in the
past, a little hesitant to sign a piece of paper saying that we can use
it with those contractors.  We've told them we'll redact it, et cetera,
but we still need to get their permission in order to do that and that's
not been very easy to get.

		MS. TRAHAN:  I appreciate that.  When -- you talked a lot about the
ASTM standard and one of the things in the ASTM standard is a 90-minute
exemption.  If an activity is being conducted for less than 90 minutes
in a day, the Table 1 in the ASTM standard does not apply, and that's
been the position of a lot of the construction employers, that there
should be some kind of short-term exemption.  How do you know or how do
your members know prior to the work getting started that they will only
be conducting an activity for 90 minutes or less in a day?

		MR. JOHNSON:  Well, for mason contractors in particular, 90 minutes is
actually a really long time to be cutting something.  The vast majority
of them are under 15 minutes in any given day.  We don't cut all the
time, and when we do, we have a cutting station, and that person has a
different set of engineering controls at a cutting station.  The average
cut that's cut on a scaffold at the end of a door, et cetera, add it up
and in an entire day it is going to be significantly less than even 90
minutes.

		MS. TRAHAN:  So, but that --

		MR. JOHNSON:  And --

		MS. TRAHAN:  -- that is predictable?

		MR. JOHNSON:  It's not -- well, it's not predictable, because we don't
really know whether or not the architect has designed something with
four- or eight-inch increments that would help us to determine whether
or not we need to cut or not until we get there.  So in most cases we
don't know what we have to cut until we get on the job site and get to
the doorframe or get to the end of the wall or get to wherever it is.  A
lot of those cuts are made in order to fit what's there, not necessarily
can be planned out.

		MS. TRAHAN:  The other -- oh, another thing you said is that the tools
come with water to cool the blades.  Do you see water-equipped tools for
blade cooling being used often among your members?

		MR. JOHNSON:  Similar to what Mr. O'Brien said, all of our blades are
diamond-tip blades as well except they're in hand saws or portable saws,
et cetera, so the manufacturers of those saws want to preserve their
blades as well so the vast majority of the water systems are there to
cool the blade.  And we've seen instances where some of the
manufacturers are putting all types of warnings in their blade systems
saying the water for this system is only for water -- for cooling the
blade and not for dust suppression, which makes us a little bit scared
of it as well.

		MS. TRAHAN:  The -- again, with water-cooled blades and the creation
of a slurry, how do contractors now deal with the water that -- the
slurry that's being created as they're using water-equipped tools?

		MR. JOHNSON:  Just like they would any other material that's on the
job site.  In most cases it's dried up and then it's swept up and put
out -- put away as waste and anything else.  Unless you're in
California, in which case it's hazmat material in which case you have to
put it in a five-gallon drum and spend a inordinate amount of money to
have it disposed of.

		MS. TRAHAN:  So can you describe a little bit more about how your
contractors in California deal with the slurry?  Put it in a five-gallon
drum?

		MR. JOHNSON:  You know, they do it per the hazmat rules and the
California EPA which is onerous from what I understand, but I do not
know the specifics of how a contractor would do that.

		MS. TRAHAN:  You don't?  Okay.  Do you see the use of any local
exhaust ventilation systems on the tools that your contractors use?

		MR. JOHNSON:  On the tools that my contractors use?

		MS. TRAHAN:  Well, you're speaking for --

		MR. JOHNSON:  Very few.

		MR. TRAHAN:  -- your contractors.

		MR. JOHNSON:  Yes.  Very few.  I've seen these that exist, but very
few that I've seen that contractors actually have them.

		MS. TRAHAN:  Okay.  Okay.  That's it.  Thank you.

		JUDGE PURCELL:  Thank you, Ms. Trahan.

		Next individual?  Please state your full name, spell your last name
and your affiliation, sir.

		MR. SCHNEIDER:  Scott Schneider, 

S-c-h-n-e-i-d-e-r.  I'm with the Laborers' Health and Safety Fund of
North America.

		JUDGE PURCELL:  Thank you, Mr. Schneider, and identify the individual
you're asking the question of.

		MR. SCHNEIDER:  Okay.

		JUDGE PURCELL:  If it's for the panel generally, then I'm going to ask
the individuals to identify themselves when they respond.

		MR. SCHNEIDER:  Okay.  Thank you. 

		Mr. Rashod, I had a couple of questions about the ASTM Center, and I
think it's a very admirable effort and I'm -- I appreciate that.  First
of all, I wanted to ask in terms of setting the 100 µg exposure level
for the ASTM Center, did you guys do any risk assessment or look at the
epidemiological data?

		MR. JOHNSON:  No, we did not.  We actually looked at what we felt our
contractors could and couldn't do, and the vast majority of them could
not do 100, which our goal was to stretch them into it.

		MR. SCHNEIDER:  Okay.  So it wasn't based on the risk that --

		MR. JOHNSON:  It was not based on the --

		MR. SCHNEIDER:  And --

		MR. JOHNSON:  -- risk --

		MR. SCHNEIDER:  And --

		MR. JOHNSON:  -- assessment epidemiology.

		MR. SCHNEIDER:  And the other two panel members where your
recommendation is that they not change the PEL, was that based on a risk
assessment or was it based on just technological -- your estimate of the
technological feasibility?

		MR. THOMAS:  Robert Thomas from National Concrete Masonry Association.
 No.  Ours was not a separate risk assessment.  We were relying more on
the risk assessments that are being done elsewhere.

		MR. O'BRIEN:  And Patrick O'Brien, Concrete Sawing and Drilling.  Ours
was not a risk assessment either.

		MR. SCHNEIDER:  Okay.  Thank you very much.

		Mr. Johnson, in the ASTM standard you have a table, Table 1, where
you recommend, you know, respiratory protection or controls based on the
task and that's based on full-shift exposures, right?

		MR. JOHNSON:  Yes.

		MR. SCHNEIDER:  Is that correct?  Okay.  So you're assuming that
people are working full -- all day doing that at that task?

		MR. JOHNSON:  Yes.

		MR. SCHNEIDER:  Okay.  So --

		MR. JOHNSON:  However, there is the 90-minute exemption for occasional
tasks that's not in that, but --

		MR. SCHNEIDER:  Right.

		MR. JOHNSON:  -- invokes it.

		MR. SCHNEIDER:  All right.  Okay.  And you say the vast majority of
your workers are not being exposed for more than 90 minutes or in some
-- many cases more than 15 minutes per day?

		MR. JOHNSON:  I would say not more than 90 minutes, no.

		MR. SCHNEIDER:  Okay.  And so you -- your contention is that their
exposures are over 100 µg/m3 even though they're only exposed for, say,
15 minutes a day?

		MR. JOHNSON:  I'm sorry, can you repeat the question, Scott?

		MR. SCHNEIDER:  Okay.  Well, you were -- you are -- you were saying
that most of your members are only making cuts, and their total
exposure's about 15 minutes a day.

		MR. JOHNSON:  Yes.

		MR. SCHNEIDER:  In general.

		MR. JOHNSON:  Yes.

		MR. SCHNEIDER:  Okay.  And you're saying that even if they're only
exposed for 15 minutes a day, that it's not feasible for them to be
below 100 µg for an entire day if they're averaged over an eight-hour
day exposure?

		MR. JOHNSON:  Depends on what they're cutting, it depends on where
they're cutting it, depends on what it is.  I mean, there's so many
other factors that go into that where they could have some exposure that
maybe on an eight-hour time-weighted average day may or may not be.

		MR. SCHNEIDER:  But based on the data that you have that you've
collected --

		MR. JOHNSON:  Uh-huh.

		MR. SCHNEIDER:  -- you're saying that if somebody's only cutting for
less than 15 minutes a day their exposure's -- it's not technically
feasible for them to get below 100 µg averaged over an eight-hour day.

		MR. JOHNSON:  No, we don't say that at all.

		MR. SCHNEIDER:  Oh.  Okay.  Well, I'm confused then.  Because you -- I
mean, you said that it's not technologically feasible, and yet most of
your members are only exposed, you said, for less than 15 minutes a day.
 And less than 90 minutes certainly, but --

		MR. JOHNSON:  Right.  But our Table 1 is different than the Table 1
that's in OSHA in that we don't actually -- for our eight-hour
time-weighted average, we don't force you to bump into all of the extra
medical, et cetera.  We make the assumption that you very well may be
over the 100 µg/m3 in the hour and a half that you're doing the cuts,
but without quantifying it for our eight-hour time-weighted average.

		MR. SCHNEIDER:  Oh, okay.  So you're saying it's not feasible for them
to be over -- to get below eight -- 100 µg during that 90 minutes that
they're cutting.

		MR. JOHNSON:  It may or may not be.

		MR. SCHNEIDER:  But averaged over an eight-hour day, that exposure
would be below 100 µg?

		MR. JOHNSON:  It may or may not be.

		MR. SCHNEIDER:  Okay.  That's -- okay.  That's a little confusing. 
Okay.  The other question I had was on medical surveillance.  In the
ASTM standard, you said that 120 days of exposure per year you get
kicked into having a medical exam?

		MR. JOHNSON:  Right.

		MR. SCHNEIDER:  Now, we've had complaints from other contractor
associations that they can't comply with the OSHA proposal which is 30
days because people are not counting how many days of exposure that
they're actually having or you can't predict that so how does the ASTM
standard work in that respect?

		MR. JOHNSON:  That's a good question.  So when we were debating some
of those times in our ASTM standard, what we realized is the vast
majority of if someone was going to hire someone for a season, most
construction seasons, if you keep someone longer than six months
chances, are they're going to be on your roll full time.  If you're
picking someone up for a project here or there, they're not going to
last six months on the average payroll.  So we use that six months
number as if someone's going to be on your staff, and you know that
they're going to be a full-time member of your team, the six months is
kind of that time frame to do it.  

		Otherwise there'll be transient workers that could go for four or five
or six different contractors, every job, every two or three weeks, and
could be on five different companies in any given construction season. 
So that was a negotiation that the committee made, and we felt the six
months was that appropriate number.

		MR. SCHNEIDER:  You meant four months, right?  Hundred and twenty
days, right?

		MR. JOHNSON:  Hundred-twenty work days.

		MR. SCHNEIDER:  Hundred-twenty work days.  Okay.  Great.  I had
another question.  In the Building Trades comments, we've made a strong
push for the requirement that a competent person be on the job site to
-- primarily one of their main duties would be to look at the
effectiveness of controls that are being used.  Are they really -- are
they running out of water, are -- is the exhaust working properly, and
make sure that things are using -- used properly.  And, you know, I'm
sure you're familiar that competent persons are required for a number of
OSHA standards.  I think there's 19 of them.  So do you have a position
on the need for or the value of a competent person on a job site?

		MR. JOHNSON:  We currently have competent persons, as you said, on
various entities, various standards, et cetera, but I'd have to consult
with my members before I gave a position on that.

		MR. SCHNEIDER:  Okay.  Now, you said you had a problem -- serious
problems with Table 1.  Could you be more specific in -- as to how the
-- how your position on Table 1 differs from the table that's used in
the ASTM standard?

		MR. JOHNSON:  Thank you for asking that.  Actually, the major
difference between the two is that Table 1 in the OSHA Regulations
states that you can use this standard and these are the controls that
happen.  However, you have to make the assumption that anyone using this
particular table is over-exposed.

		MR. SCHNEIDER:  All right.

		MR. JOHNSON:  And once you make that assumption, all of the extra
medical surveillance kicks in.  That's not in our ASTM standard. 
Frankly, to be very honest, if all you're going to be exempted out of is
the exposure monitoring, the air exposure monitoring, then we might as
well do it.  That's the cheapest part of the standard for us.

		MR. SCHNEIDER:  Uh-huh.

		MR. JOHNSON:  So Table 1 is useless if the only thing that we get out
of it is getting out of air exposure monitoring.

		MR. SCHNEIDER:  Okay.

		MR. JOHNSON:  It's the medical, it's all the extra stuff that's --
that comes after it that you still have to do using OSHA's Table 1 --

		MR. SCHNEIDER:  Uh-huh.

		MR. JOHNSON:  -- that kills us financially.

		MR. SCHNEIDER:  Well, the medical stuff is only kicked in if you're
wearing a respirator.

		MR. JOHNSON:  No.  The medical stuff kicks in in the standard, and it
says, if you know they're overexposed.  And the caveat of Table 1 says
if they're using Table 1, you're making the assumption they're
overexposed.  So you still -- that's what it says.

		MR. SCHNEIDER:  Oh, yeah.  

		MR. JOHNSON:  So you're still making the assumption that they're
overexposed which means that you're going to have to go through all of
the fit.

		MR. SCHNEIDER:  Now, who -- I think --

		MR. JOHNSON:  Now, we do think that you made a good move by doing the
four-hour versus eight-hour.  I agree with that because it makes it such
that some people don't need respirators, which I think we're all in the
same -- we're in agreement with that.  We don't want to have everyone in
respirators.  I couldn't wear a respirator.  Why?  I have a goatee. 
It's that simple.  So now we're forcing people to shave facial hair just
to be able to work on the job sites.

		MR. SCHNEIDER:  That might be helpful in your case, but --

		MR. JOHNSON:  Aw, that's cold, Scott.

		MR. SCHNEIDER:  No, just kidding.  No.  On note 1 on the Table, what
it says is, "The employer must presume that each employee performing an
operation listed in Table 1 that requires a respirator is exposed above
the PEL."  

		MR. JOHNSON:  Right.

		MR. SCHNEIDER:  So, in other words, if you're not requiring a
respirator for an operation on Table 1, then you wouldn't necessarily be
-- you wouldn't presume to -- that you're above the PEL.

		JUDGE PURCELL:  Mr. Schneider, it sounds like you're testifying
rather than asking questions.

		MR. SCHNEIDER:  No, I'm --

		JUDGE PURCELL:  If --

		MR. SCHNEIDER:  -- I'm trying to clarify his --

		JUDGE PURCELL:  Well, you've got Mr. Johnson's response to what he
believes the table provides, so if you have another question, please ask
it.

		MR. SCHNEIDER:  Okay.  Yes, one question.  Some people have complained
about the notes in Table 1.  The notes were put in Table 1 presumably
to try to make sure that the controls are used properly.  And I know --
I notice that you have some notes in your table in ASTM standard and you
can -- and there is concerns about the variability that the need -- you
know, there's so many things that could affect exposure that it's
important to control those, otherwise you can't really predict.  So, I
don't know, do you have an opinion about the notes in Table 1, or is it
just the presumption that you -- that you're overexposed?

		MR. JOHNSON:  I think that the notes in Table 1 go a little further
than we're comfortable with.  The notes in the Table 1 in ASTM standard
are what we compromised to and we felt like covers the exposure
adequately.

		MR. SCHNEIDER:  So you think merely saying that you have to use a
water-fed system is sufficient to control exposures to be able to
predict them adequately?

		MR. JOHNSON:  I believe that the notes that are in Table 1 on the
proposed standard go too far, and I believe that the notes that are in
ASTM 2526 are adequate.

		MR. SCHNEIDER:  Okay.  Thank you very much.

		JUDGE PURCELL:  Thank you, Mr. Schneider.

		I believe there was one more?  Please state your name for the record,
sir, spell your last name, and identify your affiliation.

		MR. JONES:  How you doing?  Walter Jones, J-o-n-e-s.  I'm with the
Laborers' Health and Safety Fund.  I only have one question, and that
was for Rashod.  I don't want to beat you up any more.

		MR. JOHNSON:  Bring it.

		MR. JONES:  You talked about Chicago earlier and how cold it is and
the fact that no one's using water today to control the dust plumes. 
Doesn't Chicago environmental protection rule -- have a rule about the
-- controlling dust plumes associated with silica?  And if they're not
using water because it's too cold, what are they doing to comply with
that rule?

		MR. JOHNSON:  No, Chicago actually uses water, and they're wrong to.

		MR. JONES:  So you are -- so that person that you were talking about
is probably using a wet method today?

		MR. JOHNSON:  Oh, no.  They're not complying with that standard
either.

		MR. JONES:  Oh, okay.  All right.  Is there anything that you guys do
to control dust plumes from falling into the air?  I understand there's
this -- I guess this underlying concept that once the dust plumes go in
the air, they're no one's responsibility, but is there a control when
these dust plumes fall on nearby cars or fall into pedestrians walking
by?  Are there measures done to control that or is it just, oh well?

		MR. JOHNSON:  Well, respirable crystalline silica can't fall on cars
because it's not -- it's in the air.

		MR. JONES:  Or the -- not the -- just say the dust plumes.  No?

		MR. JOHNSON:  Okay, well, dust plumes.

		MR. JONES:  Yeah.

		MR. JOHNSON:  I -- we don't address it.

		MR. JONES:  Okay.  Thank you.

		JUDGE PURCELL:  Thank you, Mr. Jones.

		Any further questions for any of the three individuals?  Okay.  I
don't see any hands.  I'll turn it over to OSHA.

		MR. O'CONNOR:  Yes.  Patti Downs has a few questions.

		MS. DOWNS:  Just got to get the microphone working.  Sorry.  Well,
first of all, I'd like to thank you gentlemen for coming in and talking
with us this morning.  I --

		JUDGE PURCELL:  Please identify yourself for the record.

		MS. DOWNS:  Oh, I'm sorry.  I'm Patti Downs with OSHA.

		JUDGE PURCELL:  Thank you.

		MS. DOWNS:  I have a couple questions I'd like to start with for
Mr. O'Brien, and this is regarding the document you just handed, the
BP-016.

		MR. O'BRIEN:  Uh-huh.

		MS. DOWNS:  I notice on here that you have -- it's essentially samples
that have been taken, and then you list the conditions where the work
was being conducted, the length of the sample time, the sample result
and then the recommended respirator, whether or not there is one.

		MR. O'BRIEN:  Uh-huh.

		MS. DOWNS:  How is an employer supposed to use this document to apply
to different durations of task?  So if somebody's only doing something
for 15 minutes, 20 minutes, an hour, four hours, are they supposed to
just treat it the same as somebody who's working for a full eight hours
or does this document allow for any of that?

		MR. O'BRIEN:  Pat O'Brien with CSDA.  What we try to do is make it
very simple so that if somebody identified an operation in their flat
sawing of concrete outside, they don't need respirator based on the
test.  If they're flat sawing inside, then they need an N100 or whatever
the respiratory --

		MS. DOWNS:  So --

		MR. O'BRIEN:  -- protection, so we tried to take all that test data
and make it simple so that if an operator goes on a job, whether he's
there for five minutes or five hours, and just look at the chart and be
able to determine if respiratory protection is needed and what kind.

		MS. DOWNS:  Okay.  Thank you.  And then at the bottom of the document
you -- it talks about having a fully qualified trained professional
personnel who are competent to evaluate the situation.  What type of
background or training do you think that competent person needs?

		MR. O'BRIEN:  I -- I'm probably not going to answer that because I
don't have an answer for you, so I -- this is developed in our committee
and I don't -- I can't give you an adequate answer, so I'll probably -- 

		MS. DOWNS:  Do you --

		MR. O'BRIEN:  -- I could get back to you on that.

		MS. DOWNS:  Do you have any suggestions just, I mean, in your own
personal opinion?

		MR. O'BRIEN:  I think in general what we're trying to do is that in
the absence of anything else, and sawing and drilling as I said earlier
is less than one half of one percent of the construction industry in
terms of what it represents, so we fall kind of out of the radar of a
lot of different systems that would apply to a lot of other people.

		So what we try and do on our own is to try and work to develop our own
systems, our own methods.  And, you know, are they perfect?  No, but
it's our best effort to try and make that.  And what we do with any of
these documents is to try and constantly update them.  

		And then in addition to that, you know, we -- since we are a small
segment of the construction industry, we have formed with other sawing
and drilling associations around the world, the International
Association of Concrete Drilling and Sawing, and so we work with them so
all the sawing and drilling associations from Australia to Europe work
together to try and develop our own systems and our own methods and
tolerances and different things, so --

		MS. DOWNS:  Okay.

		MR. O'BRIEN:  But I could get an answer for you if you would like.

		MS. DOWNS:  Okay.  That would be great.  Thank you.

		MR. O'BRIEN:  On that specific -- yep.

		MS. DOWNS:  Okay.  And then I just have a couple questions I'm going
to direct at Mr. Johnson.

		The ASTM standard states that no compressed air can be used on
surfaces or clothing and that HEPA vacuum cleaners, water sprays, wet
floor sweepers shall be used to reduce exposures to dust.  Is it fair to
assume that most of the committee members believed that these were all
kind of feasible alternatives and activities?

		MR. JOHNSON:  It's fair to assume that the ASTM process happened and
allowed for that to be inserted into the standard.  I don't know that --
the ASTM process doesn't necessarily go into majorities.  There's a
whole slew of rules that happened and then the process happened for the
consensus standard and that's what was published.  Your question was the
majority of the members.  I can't speak for the majority of the members.

		MS. DOWNS:  So then is it fair to assume that enough thought it was a
plausible alternative?

		MR. JOHNSON:  The ASTM standard process worked out and that's what
ended up in the standard.

		MS. DOWNS:  Okay.  Thank you.  And now how does the ASTM standard
protect bystanders in the area?  We've had a lot of discussion about
secondary exposure and whatnot.

		MR. JOHNSON:  Well, again, we do a lot of the same -- similar things
from a perspective of having local exhaust systems when necessary and
when needed, wet cutting when necessary and when needed.  So we do most
of the same things that the OSHA regulation does in terms of protecting
bystanders.

		MS. DOWNS:  Okay.  And then I just have a few more questions I'm going
to direct at all three members of the panel, so anybody who has a good
response or wants to answer, feel free.

		We've had a lot of talk about saws using water for cooling the blades
and we've had a lot of discussion about whether or not what methods can
be used in cold and freezing temperatures.  So my question is how do you
use water to cool the blade in cold and freezing temperatures?

		MR. O'BRIEN:  Pat O'Brien, CSDA.  There are a number of methods that
our members use and, you know, and there's a whole variety of additives
and other methods, using dry ice even and other things that are
utilized.  So, I mean, we have members up in Canada and they cut all
year long.  And so there are some methods and techniques, and then we've
done some projects on that in terms of defining all the different
methods, so there are a number of different methods that are used to be
able to use water in cold climates, so --

		MS. DOWNS:  Okay.  And would those same methods be applicable to using
water for dust suppression or --

		MR. O'BRIEN:  Yeah.  I think any time that you're cutting and you're
using water, it's going to, you know, suppress what goes into the air,
so --

		MS. DOWNS:  Okay.  And I know in a lot of the written comments you
suggested that there's usually more than one task going on while your
workers are on the job site, plumbers, electricians.  Can you tell me a
little bit about typically what other activities are going on when you
have workers there cutting or sawing or drilling into silica-containing
materials and what processes you currently have in place to kind of
protect those other employees, if any?  I mean, is it a regulate -- or,
you know, proximity barriers or hazard communication?

		MR. JOHNSON:  So in the masonry industry in particular --

		JUDGE PURCELL:  Mr. Johnson?

		MR. JOHNSON:  I'm sorry.  Rashod Johnson, Mason Contractors
Association of America.  

		In the masonry industry, in particular the OSHA regulation, actually,
1926.702(b) requires us to have a restricted access zone for only people
working for masonry in the masonry industry for fall protection and for
masonry wall-bracing.  So the vast majority of ours are going to be in
our restricted zone anyway so we try not to allow people into that area
that's not actively working on masonry.  However, we don't have final
control over that.  The general contractor does, and if the general
contractor does then we're going to have to force them, through the
general contractor, to do all of the same type of safety things that
we're doing.

		MS. DOWNS:  Anyone else?  And then, Mr. Johnson, you, I believe it
was you, made a comment about how most of your workers don't cut for the
entire period of their work shift.  Sometimes it's as little as 15
minutes a day.  What are the other sources of silica exposure for your
workers when they're not cutting?

		MR. JOHNSON:  Rashod Johnson, Mason Contractors Association.  Well, I
do actually want to go back to the one thing you talked about, about
wet-cutting.

		MS. DOWNS:  Uh-huh.

		MR. JOHNSON:  The vast majority of hand saws and portable saws are not
stationary wet-cut saws.  So even when you force wet cutting on
something that doesn't have something cooling the blade they're just not
-- so you'd have to actually outfit that hand or portable saw with water
and that just doesn't happen in cold climates.

		But to answer your question, the -- similar to I think Mr. Thomas
said and other things in terms of sweeping up, cleaning up, et cetera,
some of the plume, as it was called earlier, that could have an effect
as well as we might not always cut brick or block.  Sometimes we just
chop it or hit it.  So there might be some other ways that it happens as
well.

		Even mixing, mixing some of the mortar.  But most of the mixing is
done not on the wall.  It's done before, and in most cases in large
silos around where the person who's mixing has a different set of
engineering controls than the rest of everyone else.  So we do our best
to try to control those types of high-silica exposure environments so
that it's not all of the masonry workers.

		MS. DOWNS:  And then I just have one question left that I'd like to
ask all three members of the panel and it's kind of a two-part question.
 But if you could very specifically tell me what controls you currently
have in place to reduce silica exposures for your workers and then what
you think the biggest obstacle for complying with the proposed PEL would
be?

		MR. THOMAS:  Sure, I'll start with that one.  This is Robert Thomas
from the National Concrete Masonry Association.  There's a -- as I kind
of articulated in some of my testimony, there's a wide range of
different exposures that are out there, some of which have controls that
are being implemented, some which really do not.  So, you know, for
example we use forklifts out in unpaved yards and really the only option
of control there is either wetting the yard, which has the ability to
bring dust back into the plant which is not advantageous or using
enclosed cabs.  And only a very small percentage of our companies
currently have enclosed cabs that are hermetically sealed, and that cost
would be astronomical in order to get in compliance from those types of
exposures.

		You know, for us we have a lot of wetting  -- wet-saw cutting.  You
know, we primarily in the plant have a little bit more control than what
you do on a construction site so we certainly would use those
opportunities.  Where we have grinding and antiquing and other areas
what -- we usually try to put local vacuum systems on, and those are the
areas where I've said we've had very much difficulty regardless of the
cost of getting into compliance for those types of applications which
would generally require respirators in those environments currently.

		The big difference for us is still the haves and the have-nots.  I
mean, the large producer versus a small producer.  I've been amazed at
the cost that some of the larger producers have invested in a number of
these controls, whether it's local exhaust systems, LEVs, or whether
it's a mobile vacuum system where you can plug in at different locations
throughout the plant, which could be in the hundreds of thousands of
dollars to implement some of those things.

		Some, of course, with success and some without successes.  There's a
lot of experimentation going on with different approaches to try to
achieve those.

		MR. JOHNSON:  Rashod Johnson, Mason Contractors Association of
America.  Some of the controls that we're currently using are very
similar to the controls that are in the proposed standard.  We don't
debate that those are things that work in some areas and we've put a lot
of those into the ASTM standard that we developed because we recognize
that those are useful tools.  And, again, I think that our biggest
issues are much more the PEL and tweaking Table 1.

		As it pertains to the biggest obstacle for the proposed PEL, I think
it's going to be feasibility.  We've done testing that shows that a
hundred is difficult.  And I don't ever remember seeing any data for any
of our guys that were -- that was under 25.  We're worried that this is
going to be an impossible standard to meet because of the transient
environment and the constantly changing environment of construction.

		So I think our biggest obstacle is there's far too many variables. 
It's a one-stop shop for all of construction and it's going to be
difficult, if not impossible, to meet a PEL -- an action level of 25.

		MS. DOWNS:  Can I just interrupt?  I just want to clarify.  So when
you say too many variables, you mean variables in the materials you use,
the environment, the ability of the controls to capture everything, work
practices, all of the above?

		MR. JOHNSON:  Couldn't have said it better myself.

		MR. O'BRIEN:  Pat O'Brien, Concrete Sawing and Drilling Association. 
I think water is obviously our best method to control the silica and, as
I explained before, it isn't the primary reason that it's used but it
has the secondary benefit of doing that.  

		I think in terms of the proposed rule the biggest challenge is that,
you know, CSDA contractors are a little bit different than perhaps a lot
of other industries where, you know, you may be on a job for a week or a
month or six months or whatever and our contractors are generally called
in by a general contractor to come in and fix something that has
happened.  So they come in and they need to core drill two holes and
they may have to cut 10 feet of floor or, you know, take out a wall
opening or whatever.  So they typically are on the job for a very short
period of time just to do that work and then get out.

		And so to try and figure out, you know, what's happening in that
particular time and be able to come up with something other than what we
have proposed, which is very specific to our industry which is you look
at a chart and you figure out what the operation is and it tells you
whether you need protection or not, so --

		MS. DOWNS:  Great.  Thank you so much, gentlemen.

		JUDGE PURCELL:  Further questions from OSHA?

		MR. BLICKSILVER:  Bob Blicksilver.  

		Mr. Thomas, I don't know if you mentioned it in testimony this
morning or in question and answers, but in your written comments you
mentioned a December 2013 survey of your members.  Has that been
submitted into the record or will you be submitting it?  I -- is there
-- also let me ask, please, if there is any further work that you're
doing on that survey.

		MR. THOMAS:  That was a survey of individuals within our industry.  We
had maybe a hundred or so responses that came back to that.  No, we have
not planned on entering that into public record.  What we did find from
that is a wide variety of understanding of the, you know, of the
standard as it's proposed, and it was just a means for us to get a
handle on what people's experiences have been with collecting
information, but it was certainly not a scientific survey, and so we
would feel like we would need something that's much more robust in order
to submit into the record.

		MR. BLICKSILVER:  Well, could we still request -- however you want to
mask, you know, identity or however you want to frame the material, we
probably would -- still would find it helpful if we could put that
request out to you, you know, just in terms of even if it's anecdotal or
certain company case studies or, you know, certain examples, that sort
of material.

		MR. THOMAS:  Yeah.  I'd be glad to work with you on that after the
hearings and discuss a possible means of sharing information.

		MR. BLICKSILVER:  Thank you.  Now, you mention a range of exposures
for some operations, some as low as 25 µg/m3 and could you please
describe what controls have enabled those plants to reach 25?

		MR. THOMAS:  The -- that's where I was trying to get at the point of
wide different approaches and investment in terms of capital equipment. 
So I would say in some of our larger companies that have more than a
hundred employees that have a much more capital-intensive manufacturing
facility have invested in some of these vacuum-base systems that may
have different collection points throughout the plant.  And so those
have assisted in some.

		I think the others are some of the very abilities that Rashod has
mentioned in terms of whether it's open air issues, you know, types of
materials that we may be working with at the time.  So it's -- it has
been difficult at this point to really assess the reasons for the range.
 So in my testimony where I reported the range, it was just a range of
what people had reported that they had observed for some of these
different tasks.

		So to get a much better understanding into why would take a much more
costly survey to get   into --

		MR. BLICKSILVER:  Sure.

		MR. THOMAS:  -- ascertaining the reasons for those.

		MR. BLICKSILVER:  Now, you described that the average company size, if
I got this right, is something like 31 employees.  And then you said
something like 18 for manufacturing firms.  Could you --

		MR. THOMAS:  Yeah, there's a different --

		MR. BLICKSILVER:  -- further clarify that for me, please?

		MR. THOMAS:  Yeah.  Some -- most of the plants in our -- or companies
in our industry are one-plant companies, and so there are a number of
companies that certainly have multiple plants and so that is based on
the average per company versus average per plant.

		MR. BLICKSILVER:  I see.  Okay.  Now, these LEV systems you described
that the larger companies have invested in; have -- do you -- are those
conceivably able to be scaled down so that the smaller plants could
install those types of systems or have they already?  Have you observed
smaller plants installing those types of systems?

		MR. THOMAS:  Yes.  Again, I think the experimentation has occurred at
multiple levels in that case so some were using much less costly
approaches to some of those, again with varying degrees of success I
think.  Some may be just, you know, positive pressure and ventilation
fans.  Others are using much more complex LEV systems.

		MR. BLICKSILVER:  And presumably all these plants continue to operate,
continue to turn a profit, continue to maintain employment?

		MR. THOMAS:  Well, the profit is the -- is a point that I was trying
to make in my testimony.  The profit is really not there for most of
these 70 percent of our manufacturers over the last five years.  The
margins are still low as a result of the protracted recession and many
people are hanging on at this point waiting for a construction rebound
but, so they've been continually operating, but profit is a completely
different issue in the environment that we've had.

		MR. BLICKSILVER:  All right.  In response to a question earlier you
mentioned -- well, I don't want to put words in your mouth or restate
it, but a type of productivity benefit through the use of LEV.  I think
--

		MR. THOMAS:  Uh-huh.

		MR. BLICKSILVER:  -- you described how in controlling waste, excess
dust and so on that the LEV systems prove to be cost effective.  Could
you clarify or expand upon that, please?

		MR. THOMAS:  Yeah.  And, you know, certainly the use of cement, cement
is probably one of the most expensive raw materials that we would use in
concrete systems and so there is an advantage to collecting the cement
dust, if you will, and re-introducing that back into the mix.

		MR. BLICKSILVER:  Thank you.  Mr. Johnson, you -- I think you
volunteered to provide some exposure data into the record?  Did I
understand you -- I understand that there's some hesitancy on the part
of certain company data, but did I understand you to say that you may be
able to provide some data to the record?

		MR. JOHNSON:  Absolutely, and we'll --

		MR. BLICKSILVER:  Okay.

		MR. JOHNSON:  -- we'll work with you as well to get some data to you.

		MR. BLICKSILVER:  Good.  Thank you.  Are there data on controls
associated with those exposures as well?  Do you have a way to sort of
profile the controls connected with those exposures?

		MR. JOHNSON:  Yes.

		MR. BLICKSILVER:  Good.  Thank you.  

		Mr. O'Brien, with the CSDA best practices standard, it sounds like
you've been able to collect some data, some exposure data.  Have you
made use of objective data?  It sounds like that has helped to guide
various types of task-based approaches or best practices, so you have a
body of exposure data that you've collected?

		MR. O'BRIEN:  That's correct.  Basically -- Pat O'Brien, CSDA.  We had
gone in and for each of the different types of operations, different
materials, different tools we've tried to do testing and collect testing
on all of those particular instances.

		MR. BLICKSILVER:  Okay.  And so you have data on the -- on control
strategy, the controls that are associated with the objective data?

		MR. O'BRIEN:  Uh-huh.

		MR. BLICKSILVER:  Do you have a set of data that relate the controls
to the exposures themselves?

		MR. O'BRIEN:  Yes.

		MR. BLICKSILVER:  Okay.  Can you provide that for the record, or have
you or --

		MR. O'BRIEN:  We have supporting data for all of this and I'm -- I
will have to find out how we want to, as an association, to provide
that, but we do have supporting data, and I think we could probably
provide that.  And actually I think this information is not new to OSHA
because I think we've provided this to OSHA more than 10 years ago, so
--

		MR. BLICKSILVER:  Good.  Thank you.  

		Also I guess I heard testimony from maybe all three with regard to the
challenges of the ancillary provisions.  I wonder if in post-hearing
comments you can provide any material, any information on current
practices.  I don't know -- if from any informal surveys, anecdotal
information on currently what your membership are conducting in terms of
medical surveillance.  That in particular.  I -- exposure monitoring as
well.  Okay.

		Thank you.  I think that's all I have.

		MS. RYDER:  And did all of you say yes, for the record?

		UNIDENTIFIED SPEAKER:  Oh.

		MR. BLICKSILVER:  I'm sorry.

		JUDGE PURCELL:  I didn't hear any response either.  

		MR. BLICKSILVER:  It looked like they were jotting down the --

		JUDGE PURCELL:  If any of the panel has a comment or wish to put their
position on the record please go ahead and do so --  Identify yourself.

		MR. O'BRIEN:  I mean, I -- Pat O'Brien, CSDA.  I mean, if we have some
information we'd be glad to share it, so --

		JUDGE PURCELL:  All right.  Mr. Thomas?

		MR. THOMAS:  Yeah.  Mr. Thomas.  I -- same.  If -- whatever we have
that we can share we'd be glad to talk with you about that.

		MR. BLICKSILVER:  Thank you.

		JUDGE PURCELL:  And, Mr. Johnson, you were nodding your head.

		MR. JOHNSON:  Rashod Johnson, MCAA, ditto.

		JUDGE PURCELL:  Thank you.  Okay.

		MR. BLICKSILVER:  Thank you.

		JUDGE PURCELL:  Further questions from OSHA?

		MR. O'CONNOR:  Yes.  This is Dave O'Connor.  Mr. Johnson, in your
written comments you had indicated that the ASTM standard is a
nationally recognized consensus standard and that this distinction
allows the ASTM standard to be specified by architects and engineers as
part of the official construction documents and therefore it becomes
part of the construction contract, and I was just wondering if, from
your experience, or from the experience of any of the other panel
members, the ASTM standard is incorporated in construction contracts.

		MR. JOHNSON:  Well, because it's an ASTM standard, the only way that
it's incorporated is if it's referenced or if someone specifies it as a
specifier.  So all we've been doing at our association is trying to get
the word out to as many specifiers that we know that we have access to
who specify masonry to specify ASTM 2526 when doing their projects. 
It's the same thing with any materials specification, any standard
practices for any other things.  It's all about getting the market to
understand, recognize it, and then specify it.

		MR. O'CONNOR:  From your experience, has anyone been specifying it up
to this point?

		MR. JOHNSON:  I do know of a few cases, but it's not widely spread at
all, which is why we've been trying to get the word out as well.

		MR. O'CONNOR:  Okay.  Thanks.  You also mentioned that it could be
referenced by national and local building codes.  Are you aware of any
national or local building codes that reference the ASTM standard at
this point?

		MR. JOHNSON:  No.  So the national building codes happen every five
years, and typically it happens four years before that before it's
published, so if it were to get installed today, we still wouldn't see
it before 2016, maybe 2018.  That process is so onerous, and the
standard frankly is extremely new.  And I know that sounds weird
considering it's been 2006 and 2009, but it's an extremely new standard,
and it takes a significant amount of time to usually get them in the
building codes.

		MR. O'CONNOR:  Okay.  Thanks.  Also there was some earlier discussion
about the 90-minute limit in the ASTM standard, if I can get that out,
with regard to Table 1 and how that is applied.  And I just didn't quite
understand how a contractor's approaching this with regard to masonry
when you said that it really depends and is somewhat unpredictable how
much cutting was going to be going on during the course of a day.  So at
the beginning of a day, is it typical for the contractor to make some
estimate as to whether that 90-minute time limit would be exceeded or
not in determining whether Table 1 and the ASTM standard would be
followed, or how is that handled?

		MR. JOHNSON:  Well, I think that the best way to do that is probably
to just make sure that no one cuts for more than 90 minutes and then
it's no issue.  So once someone has done a certain amount of cuts, then
they're no longer doing those cuts anymore for the remainder of the day
if they get close to the 90 minutes.

		MR. O'CONNOR:  Okay.  So it's really then a matter of not following
Table 1 in the ASTM -- I -- I'm having so much trouble with this this
morning, with the ASTM standard but rather looking at alternatives to
that?

		MR. JOHNSON:  So the way it's currently written is that as long as
you're doing a sum total of cutting of less than 90 minutes, then you do
not have to comply with Table 1.

		MR. O'CONNOR:  Okay.  So contractors are making it a point then of
cutting at a duration that would avoid putting them in a situation where
they needed to follow Table 1?

		MR. JOHNSON:  When the standard is specified, that would probably be
what a smart contractor would do, yeah.

		MR. O'CONNOR:  Okay.  Thank you.  Also you had mentioned a couple of
differences that you saw between the OSHA proposed rule and the ASTM
standard that you considered significant, one being the PEL.  Do I
gather from this that you are supportive of the 100 µg/m3 limit that's
laid out in the ASTM standard?

		MR. JOHNSON:  That was the limit that was agreed upon in the ASTM
process.  However, yes, I personally and MCAA supports 100.

		MR. O'CONNOR:  Okay.  Thank you.  And another question; I was just
wondering when applying that standard, how you're making a determination
as to when medical surveillance would be required.  You had indicated
Table 1 and its relationship to medical surveillance in the OSHA
proposal as being something you took issue with.  I was just wondering
how contractors made a determination with regard to Table 1 and the
ASTM standard.

		MR. JOHNSON:  We do not require medical surveillance for use of Table
1, and it only kicks in when you have an employee over 120 days.

		MR. O'CONNOR:  Yes, but how is an evaluation made that an employee is
over 100 µg/m3, then?

		MR. JOHNSON:  Exposure monitoring.

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

		MS. RYDER:  I have a few questions.

		JUDGE PURCELL:  Ms. Ryder?

		MS. RYDER:  My first question is for Mr. O'Brien.  You mentioned that
you have members in Canada and they are using, I think you said, wet
methods year round, that they've developed some methods and techniques
to address the cold weather.  Can you tell us a little bit more what
those methods and techniques are?

		MR. O'BRIEN:  We did a -- Pat O'Brien, CSDA.  We did a roundtable
discussion on a board meeting that we held up in Calgary a number of
years ago and just tried to summarize and collect all the different
methods that were out there that people had used.  I mean, typically it
involves some kind of additive or whatever that's put in the water, an
environmentally safe additive that -- to be able to cut in the cold
weather, so --

		MS. RYDER:  Is that something like antifreeze or --  I don't know if
that's environmentally safe.

		MR. O'BRIEN:  It's -- no, I don't think it's environmentally safe but
no, there are some and I don't know specifically.  I mean, I could --
would be happy to provide you with a copy of the proceedings from this
roundtable that we held on cold weather cutting, so --

		MS. RYDER:  Yeah.  I think that would be excellent.  That'd be really
useful. 

		Jumping off of that, Mr. Johnson, have you used any of those
different methods, like using an additive to deal with the cold weather?

		MR. JOHNSON:  So the masonry building code does not allow for you to
use antifreeze because it corrodes steel, and steel is much more
important to hold the building up than anything else, so we don't allow
for you to use those additives without an architect or engineer allowing
that to be specified in any mortar, grout, or any other masonry units.

		MS. RYDER:  Are -- but are you aware of any additives being used to
deal with the cold weather?

		MR. JOHNSON:  I know there are some admixtures that you can use, yes,
but it's more for the mortar and the ground than it has to do with
cutting.  As I stated earlier, the vast majority of the cutting we do
isn't wet anyway because it's small cuts, very mobile, very -- we --
unless it's a cutting station.  So, no, we don't -- I don't know of any
that's specifically for cutting.

		MS. RYDER:  Okay.  I just wanted to follow up with you, Mr. Johnson,
about what employees are -- how employees are being protected today when
they're cutting in Chicago where it's, I think, maybe below freezing,
and you seem to indicate that it's too cold to use wet methods.

		MR. JOHNSON:  So even in cold weather where it is too cold to use a
wet method, our people will wear a respirator.  It's just not a
medically fit N100, go to the doctor, spend thousands of dollars, shave
your goatee type of respirator.

		MS. RYDER:  What type of respirator are they using?

		MR. JOHNSON:  Just a standard respirator that's going to stop them
from getting any sort of airborne dust.

		MS. RYDER:  So is that a, like, a dust mask?

		MR. JOHNSON:  I would assume so, yeah.

		MS. RYDER:  Okay.  And if you know do you know how many of your
members have respiratory protection programs?

		MR. JOHNSON:  I do not know.

		MS. RYDER:  Okay.  Is that something that's, you know, part of the
guidance that your association recommends?

		MR. JOHNSON:  Well, because there is no standard that forces it, I
imagine that there's probably not very many, but we've been pushing
everything in our ASTM standard to all of our members, and that does
include a respiratory protection program.

		MS. RYDER:  Okay.  I have another question for you, Mr. Johnson.  I
took a look at the Masonry Contractor Association's website, and it
looks like you maybe have about 10 resources for controlling exposure to
respirable crystalline silica, and I'm not sure if those have been
submitted to the docket yet.  Is that something that you can submit
during the post-hearing comment period?

		MR. JOHNSON:  If it's on our website, I don't see it being a problem.

		MS. RYDER:  Okay.  Great.  Thank you.  I think that's it for me. 
Thanks.

		JUDGE PURCELL:  All right.  Any further questions from the OSHA panel?

		MR. O'CONNOR:  No.  We would like to thank the panel members for
appearing and testifying today.

		MR. JOHNSON:  Thank you.

		MR. O'BRIEN:  Yeah.  Thanks for having us.

		MR. THOMAS:  Thank you.

		JUDGE PURCELL:  Mr. Johnson, Mr. Thomas, Mr. O'Brien, I thank you
as well.  You're excused.

		And the next two presenters are Francisco Antonio Trujillo for Miller
and Long Company and Joel, and I hope I'm pronouncing it right, Guth, 

G-u-t-h, of iQ Power Tools.  I'd invite them to come up at this time.

		All right.  Mr. Trujillo, if you're ready please introduce yourself
and your association, then I'll ask Mr. Guth to do the same, and then
you can begin with your testimony.

		MR. TRUJILLO:  Sure.  My name is Francisco Antonio Trujillo.  I'm the
Safety Director for Miller and Long Concrete Construction here in the
D.C. Metropolitan Area.

		JUDGE PURCELL:  Okay.  Thank you.

		And Mr. Guth?

		MR. GUTH:  Joe Guth, President of iQ Power Tools.

		JUDGE PURCELL:  Thank you.

		Mr. Trujillo, if you'd like to present your testimony?  And also do
you intend to mark your written testimony as an exhibit?

		MR. TRUJILLO:  I will.

		JUDGE PURCELL:  Okay.  After you do that, just hand it to me.  I'll
mark it as an exhibit and admit it at that time.

		MR. TRUJILLO:  Yes, sir.  Again, my name is Francisco Antonio
Trujillo.  I work for Miller and Long Co., Inc., a concrete framing
contractor that builds many of the structures you see here in the D.C.
skyline.  We employ approximately 1,500 field employees including
laborers, carpenters, concrete finishers, and many others.  Our main
goal every day is to get concrete poured without a single injury. 
That's how we get paid, and injuries don't pay.  Everybody knows that.

		Today we would probably pour, on a nice day, hopefully we got a nice
day, we're going to have about 2,000 cubic yards of concrete poured. 
That's quite a bit of concrete, and not one teaspoon of that amount of
concrete is worth an accident or an injury or an illness.

		We often focus on, you know, obvious hazards like falls, cranes, power
tools, et cetera.  But we also remain very aware that the lifeblood of
our industry, concrete, holds many hazards of its own.  In its liquid
form it's a very caustic material that it can -- that can burn exposed
tissue.  However, when it solidifies a new hazard waits to be unleashed.
 This hazard, everyone, crystalline silica, is typically associated with
work activities that fracture, cut, crush, and grind silica-containing
materials like concrete. 

		Many of these activities are represented in Table 1.  While these
activities should absolutely be part of a silica discussion we must also
understand that crystalline silica can become airborne without the
assistance of power or hand tools.  In fact, seemingly benign activities
like removing or handling plywood forms or walking on recently cured
concrete surfaces can create airborne crystalline silica exposures very
close to the proposed PEL and action levels.

		While I intend to address the feasibility and effectiveness of
crystalline silica mitigation methods for activities like grinding
concrete, it is important that I make everyone aware of the potentially
large scope of this regulation.  If the proposed action level and PEL
levels are adopted as written, concrete contractors could be forced to
enroll a large majority of their workforce in respiratory protection
programs.  Most contractors, concrete contractors, like Miller and Long
are not currently set up to manage such a massive respiratory protection
program.  I personally would need to hire a full-time industrial
hygienist to properly implement such a large program.  

		Please let me stress that I do not mean to discount the dangers of
overexposure to respirable crystalline silica or the impact on workers
and their families.  I simply ask that we take a hard look at what we're
trying to achieve and ensure that we all understand what it will take to
get there.  I believe that there is a workable compromise out there and
we can work together to find it.  

		I'd like to switch gears to address Table 1 and mitigation methods. 
While Miller and Long may have many routine tasks that we perform day in
and day out, each condition is unique and requires competent personnel
to assess exposure hazards.  There is no magic table or tool that holds
all the answers we seek.  I would also like to note that the phrase
"operate equipment such that no visible dust is emitted from the
process" appears 11 times in Table 1.  There is no completely dustless
method that I have personally observed in the real world.  There is no
-- if there is no completely dustless system, how can we comply with
Table 1?

		Let me stress that Table 1 is not without value.  It could serve as a
great non-mandatory appendix for easier reference and guidance.  In
specifically addressing proposed 25 µg/m3 action level and 15 µg/m3
PEL, I believe that based on my sampling results, these numbers are far
too low.  I believe that a PEL of 100 µg/m3 and an action level of 75
µg/m3 would be much more appropriate for the construction industry.  I
have found that employees performing form work removal activities where
you take plywood and remove it from a recently poured concrete column or
wall in open air were exposed to crystalline silica levels of 20 µg/m3,
which is dangerously close to the proposed action level.  These
employees were not doing this all day, they were in open air, they were
not using any tools.  They were removing plywood from concrete.  Twenty
µg/m3.

		Another employee was sweeping up sawdust, not slurry, not silica,
sawdust at a carpentry station and received an exposure of 37 µg/m3
which placed her over the proposed action level. 

		Incorporating employees that perform just these two activities could
easily result in Miller and Long having to enroll another 900 of our
1,500 employees in our respiratory protection and exposure assessment
program.  While vacuum systems could be used to help control the dust
for the sweeper, there is no engineering control for concrete form work
removal.

		In referencing engineering controls, I'd like to disclose my findings
regarding the effectiveness of dust collection systems for concrete
grinding systems.  In the past 12 months, I focused my sampling efforts
on powered ceiling and hand grinders.  And I've heard a lot of talk
about water systems used for cutting, and I think a lot of people in
here are picturing saw-cutting floors and things like that and things
that are on a flat surface.  But a lot of the work, especially in the
construction industry today, the architects are very, very -- they're in
love with exposed concrete.  All right?  You cannot pour concrete in a
way that's pleasing to the eye unless you go back and you make it look
pretty.  So if you walk around D.C., there's a lot of glass and a lot of
exposed concrete.

		Now, we did try -- now we have to grind these ceilings too.  There's a
lot of exposed ceilings.  I was pleasantly surprised when assessing the
effectiveness of Ostec's vacuum system designed for use with the ceiling
grinders.  I found that it greatly reduced the amount of dust expelled
from the process but did not completely eliminate it.  It was a very,
very, dusty activity, and now it's moderately so --  

		The visual results were so promising that I had to continually remind
my employees performing these activities to wear their respiratory
protection.  The employees argued with me that they shouldn't have to
wear the protection if there was hardly any visible dust and that, as I
informed them, their exposure levels were under the current PEL, I
reminded them that the respirators provide an extra protection in case
the vacuum system began to fail.  In fact, even the promising visual
results yielded only one in five sampled ceiling grinder observations
were found to be below the proposed action level.  Hardly any visible
dust, still only one in five was below the proposed action level.

		All of the samples were found to be below the current permissible
exposure limit that we have now, but three of the five samples were
found to be above the proposed permissible exposure limit.

		On the other hand, dust collection systems used on hand grinders
received very disappointing results.  In fact, no hand grinder equipped
with a dust collection system was capable of bringing exposure levels
below the current PEL.  The limitations of these systems are not due to
poor engineering or lack of effort by the manufacturers.  I've talked to
Makita, and I've talked to DeWalt, I've talked Bosch, and I've worked
with many of them and own many of their systems and we're trying them. 
We're working with them.  But they're not effective.

		The limitations were the result of many varied configurations in which
the tools must be used.  They're frustrated, but the tools are forced to
be used in many, many different configurations, whether it be grinding a
wall or a ceiling or in the corner.  Dust shroud systems used in the
corner don't allow the grinding system to get up in that corner to
finish it.

		No dust collection system is capable of overcoming incomplete surface
contact, which is encountered many times when grinding columns and
walls.  The inherent limitations of dust collection systems and changes
in site conditions requires consistent evaluation by competent persons
to ensure chosen protective equipment is adequate for the task being
performed.

		In addressing regulated areas, I feel that a real-life example would
best describe the challenges associated with implementing such controls.
 Imagine, if you will, here in D.C. or this is a tall building example,
so maybe Rosslyn, a five-story structure coming out of the ground. 
Concrete.  Twenty more stories to go.  Each floor is approximately
20,000 square feet, so roughly a hundred feet by 200 feet, not uncommon.
 Workers have removed the concrete form work supporting the third floor
because it's no longer needed for re-shoring.  The floor is now open on
all sides to the air and it's protected with cable guard rail systems
all the way around.

		A worker is grinding the ceiling to smooth the seams left behind when
concrete seeps between the layers of plywood decking form work.  Another
worker is grinding the sides of approximately 76 concrete columns to
provide a smooth finish per the job site specifications.  Both workers
are using dust control systems, but complete dust mitigation is
impossible.  Both workers are controlled in the -- are enrolled in the
employer's respiratory protection program and are wearing appropriate
respiratory protection based on the previously conducted exposure
assessments. 

		The entire ceiling and all columns will be finished in approximately
two business days.  This means that the ceiling grinder will have
finished approximately 10,000 square feet of ceiling per day, and the
column grinder will have finished approximately 38 concrete columns per
day. 

		It works for me.  I hope it does for you to provide some perspective
of the speed at which these workers are moving.  As these workers cover
this large distance in a day, wind speed and direction is constantly
changing.  This causes the escaping dust to travel in unexpected
directions and at inconsistent distances.  At the same time, we have the
electrical, HVAC, plumbing contractors and others that have been waiting
for this form work to be removed that want to access the floor and
attempt installing their work as scheduled.

		Given the example above, I challenge any safety professional to
establish and maintain definite demarcation zones where no worker could
ever be possibly overexposed to crystalline silica. 

		A simple answer could be to block off the entire floor while finishing
operations are ongoing, halt the schedule.  This would represent an
unrealistic and infeasible option.  To further represent the
infeasibility of this approach, try to understand that concrete finish
requirements can change during the scope of a project.  An architect can
decide that this room wasn't finished concrete and now it is.  Change
orders are issued and work will start.

		This would require operations described in the example to be
potentially ongoing at various points throughout the building for weeks
or months at the time.  To completely isolate these areas, large
sections of the building, or the entire building itself would have to be
designated as an exclusion or demarcation zone so that no other people
were exposed.

		I feel, as in most hazard abatement methods, education is paramount. 
Each contractor must inform their employees of the hazards of silica
overexposure, how to identify those hazards and what to do if those
hazards are encountered.  Barricades and signs are not the answer for
the construction industry.

		In regards to exposure assessments, I agree that work processes should
be evaluated to determine employee exposure levels.  Additional exposure
assessments should be conducted as needed to address significant
environmental changes or modification to our processes.  

		I propose the following be incorporated into amended version of
Section D.  Employee exposure levels determined to be in excess of 100
µg/m3 must be protected by appropriate engineering controls and/or
personal protective equipment.  Employee exposure levels determined to
be in excess of 50 µg/m3 but less than 75 µg/m3 must be closely
monitored by the employer to identify changes in workplace conditions
that could cause exposure levels to increase.  

		Work processes with exposure levels falling between 75 µg/m3 and 100
µg/m3 must be evaluated and sampled every six months to verify
consistent exposure unless the employer voluntarily implements identical
control methods to those chosen for those in excess of 100 µg/m3.  They
can go above and beyond to eliminate the continued sampling requirement.

		It is my belief that this simplified method of assessment, evaluation,
and control can provide the same results with far less administrative
burden.

		In conclusion, I ask that the Occupational Safety and Health
Administration set a reasonable permissible exposure limit and action
level for silica exposures that provide the maximum worker protection
while maintaining industry implementation feasibility.  I further ask
that methods for achieving compliance with these limits and levels be
left to industry safety professionals like myself who are more than
capable of achieving the results you desire -- desired by industry,
labor, and OSHA.

		Thank you for the opportunity to testify here today.  I also have a
copy of my submitted testimony that I put in through the website, and
unfortunately in my haste to get it in, I recognized one typographical
error, so I modified it and I have it here for you today if --

		JUDGE PURCELL:  Thank you, Mr. Trujillo.  If you'll hand it to me,
I'll mark it as Hearing Exhibit Number 97 and admit it into the record.

(Whereupon, the object referred to as Hearing Exhibit 97 was marked and
received in evidence.)

		JUDGE PURCELL:  And did you have any other exhibits you wish to offer?

		MR. TRUJILLO:  Not right now, sir.

		JUDGE PURCELL:  Okay.  Thank you.

		Mr. Guth?  You're up next.

		MR. GUTH:  My name is Joel Guth, President of iQ Power Tools.  My
background, I'm a journeyman mason and a 25-year mason contractor with
licenses in three states.  I'm also a founding member of MITA, the
Masonry Industry Training Association, and a 10-year board member of the
Mason Contractors Association of California.  It was there that I had
the opportunity to work with Cal/OSHA to rewrite the silica standard
several years ago.

		Fourteen years ago I had a silica dust problem, and I didn't even know
it.  You see, I was a masonry contractor with 80 employees, and we were
dry cutting.  I have a couple of photos here.  We were dry cutting
concrete masonry materials like the ones you see here every day.

		JUDGE PURCELL:  Mr. Guth, do you have a printed copy of the slides
you're showing?

		MR. GUTH:  Just one.

		JUDGE PURCELL:  Okay.  After you finish, I'll ask you to mark that as
an exhibit.

		MR. GUTH:  Okay.

		JUDGE PURCELL:  But while you're describing those, if you would, do
you -- can you number those photographs?

		MR. GUTH:  Yes.  Yes, we will.

		JUDGE PURCELL:  Okay.  You've showed one just before the one that's on
the screen now, and if you'll identify the photo and what's portrayed in
there?

		MR. GUTH:  You -- right now you'd like me to do that?

		JUDGE PURCELL:  Yes, please.

		MR. GUTH:  This is a power cutter that is being run dry.  The person
is wearing a respirator.  This is on one of my job sites.  This is an
activity that happened on a daily basis.  It's very common in our
industry.

		JUDGE PURCELL:  Okay.  And as you go along, just please identify the
photograph.

		MR. GUTH:  This is a 14-inch table saw.  Very common, also cutting
dry.  

		My story growing up in the construction business working for my
father's masonry company I started out with a shovel in my hand at the
entry level as apprentice mason, journeyman, foreman, and then a
contractor for 25 years and having over a hundred employees.  Over that
30 years I've had first-hand experience doing these jobs using these
tools inhaling that dust.  And when I say it sucks, I mean it really
sucks.  It is not a pleasant job.  Ask anyone who's ever run one of
these tools for even an hour in a day, and they will tell you about the
gray/green muck that comes out of your nose in the shower at the end of
the day.  It's not pretty.  But it's real.

		In 2001 I saw the light or the need to eliminate this dust from our
job sites.  I had attended an NCMA silica seminar, and progressively
from there I started to learn more and more about the true hazards this
dust causes to my men.  Many of these people are my friends that I've
known for more than 20 years.  As our education increased, we started to
search for solutions.  What we quickly found was either you wet cut,
which reduced the exposure to a point, or you dry cut and find a way to
capture the dust completely.  But nothing was available, so we had to
build our own.	

		This is a picture of our first --

		JUDGE PURCELL:  And, Mr. Guth, I'm sorry to interrupt you, but you
had displayed on the screen a photograph of a hand with dust, and then
you went on to the next one, so --

		MR. GUTH:  That is a picture of silica phlegm that comes out of your
nostrils at the end of a day.

		JUDGE PURCELL:  Okay.  Thank you.  Not a pretty picture.

		MR. GUTH:  It's not a pretty picture. 

		This is a picture of our first system.  It was very primitive but
very, very effective.  We took this first unit and tried to get major
manufacturers to understand the problem with the dust and to build these
for us.  But no one wanted to invest the time or the money.  That's how
we got into the business, to supply our own crews with effective
solutions to eliminate that nasty silica dust.

		We'd like to submit a copy of our air monitoring test data and also
these are several pictures of the tools we built to help us solve this
problem.  This is a -- an iQ 2000 system on a conventional masonry saw
with our table, and I know several block manufacturers that are using
these currently and -- to maintain and eliminate the dust on -- at their
block plants and also on commercial masonry construction sites.

		This is our iQ 360.  It's a 14-inch table saw, and this is the type of
saw that you could bring right inside this room and cut brick and stone
with it and stay under the exposure limits.

		And this is the newest version we have.  This is a PC912.  This is a
very common tool used dry, and we've incorporated dust collection and
filter system on it to collect up to 90 percent of the dust, and we have
test data in here using this tool.

		So you may ask why isn't everyone just using one of the methods,
either wet or dry, to reduce or eliminate the silica dust hazards from
their job sites.  That's a good question.  What we know from the last 10
years is that 15 to 20 percent of the contractors have found ways to
protect their people, and most of them are represented by the group
speaking before this panel.  It's the other 80 percent that are most
concerning.

		I've had the opportunity to personally speak face-to-face with over
5,000 workers in the last six months.  I asked them three questions. 
The first question: Is dust a problem on your job site and how do you
deal with it?  The second question: Do you know OSHA?  And the third
question: Do you know what a PEL is, specifically the silica PEL?  

		The answer to the first question is scary.  Some cut wet most of the
time, some cut dry with vacuum systems or respirators, that's that 15 to
20 percent.  But the scary part is over 80 percent cut dry without any
controls or personal protective equipment.  

		So the second question, do they know OSHA?  Most of them know and have
heard of OSHA.  What about the silica PEL?  I find that less than one
percent even know what a silica PEL is or have even heard about it. 
Now, when I ask how many of these people can explain the PEL, I've found
no one in this industry that can explain it.  You see, they were like me
15 years ago.  I had an idea this dust might be a problem and not be
good for you, but no clue of the real permanent damage it does to your
lungs at 10 to 100 times the PEL. 

		We found very quickly that no one clearly understands or can explain
the PEL at 250 parts per million or 100 µg per meter or what this PEL
means to them and the people they work with.  It wasn't until I could
run a series of math equations and weigh out a real live samples of this
dust before I could clearly understand and explain the PEL to someone. 
That's how we came up with these tests that measure out a day, a week, a
month and a year of total dust exposure at the silica PEL using an
average breathing rate.  And I have some of my test samples I -- in my
brief case.  I'll share with those.

		And then comparing these with a total amount of dust generated from
one brick or paver cut.  That's what's in this photo.  This is a
comparison of the amount of dust that one paver cut, 44 grams, compared
to the allowable 16,800 µg, which is a total amount of respirable dust
at a 10 percent silica content.  This small pile you see here on the
penny represents eight hours of dust at 100 µg of silica at a 10
percent silica content.  The large pile is the dust from one cut.

		In this industry they cut 100 to 400 times this much on tens of
thousands of job sites every single day, and 80 percent or more of these
people are not using anything to protect themselves from this dust. 
Why?  They do not understand the true short-term or long-term hazards
associated with this dust.

		Will changing the silica PEL from 250 parts per million or 100 µg per
meter square change the mindset or the work habits of these tens of
thousands of people?  Not at all.  Why?  Because they do not even know
what a PEL is, and second they do not understand the hazards.  

		We've got to change this.  We've got to educate, educate, educate the
80 plus percent of the people in the industry who continue to severely
overexpose themselves.  We have to explain to people in clear, simple
terms what 100 µg per meter square really means to them on a daily
basis.  We have to show them in graphic terms and pictures what this
silica dust is doing to their lungs and we have to show them and teach
them safe, efficient methods to get their job done.  Give them good
options to solve this problem.  

		To do this is going to take a unified effort from all the stakeholders
in the construction industry.  That means everyone in this room.  We've
got to stop wasting time debating.  Instead, we all need to agree that
too many people are severely overexposed on a daily basis in certain
segments of the construction industry and we're going to work together
to change this.  Let's choose a target goal and work together to get
there.

		At iQ Power Tools, we'd like to make available some of the silica
education tools we use and propose a silica three times 100 as a target
we can get to.  Three times 100 means 100 percent of the people, 100 µg
or less silica, 100 percent of the time.  Thank you.

		JUDGE PURCELL:  Thank you, Mr. Guth.  With your permission I'd like
to mark your written testimony as Hearing Exhibit Number 98.  That
testimony I noted includes copies of the photographs so it'll show where
in your testimony those eight photographs appeared.  Then you'd
mentioned some test data, which I'll mark as Hearing Exhibit Number 99
and admit it on the record.  And then did you want to offer any
additional exhibits other than these?

		MR. GUTH:  I do have some test samples in my briefcase that I'd like
to share also --

		JUDGE PURCELL:  Okay.  I'll mark those as Hearing Exhibit 100 and
admit those into the record.

(Whereupon, the objects referred to as Hearing Exhibits 98 through 100
were marked and received in evidence.)

		JUDGE PURCELL:  If you could hand those two documents to me and then
the other copy --

		MR. GUTH:  Can I give you the other copy?  This has some notes on it
of my personal notes.

		JUDGE PURCELL:  Certainly.  That --

		MR. GUTH:  I have another copy in my briefcase --

		JUDGE PURCELL:  That's fine.

		MR. GUTH:  -- I'll submit.

		JUDGE PURCELL:  If you can go ahead and hand those to me, I'll mark
them now and admit them into the record.  Do you have your briefcase up
here with you?

		MR. GUTH:  No, I don't.

		JUDGE PURCELL:  Oh, okay.

		MR. GUTH:  It's back in my seat.  If we can get it when we finish?

		JUDGE PURCELL:  After we break, you can do that and then the sample
data as well.

		With that I'll ask how many people have questions for the panel. 
Okay.  Ms. Trahan?  Please state your name and your affiliation for the
record.

		MS. TRAHAN:  Chris Trahan, T-r-a-h-a-n, with the Building Trades. 
Mr. Trujillo, thank you for your testimony.  I think it's really
important to hear from contractors in these hearings and you're few and
far between, so thank you.

		MR. TRUJILLO:  Thank you.

		MS. TRAHAN:  You mentioned a brand name of Ostec of one of the tools
equipped with local exhaust ventilation --

		MR. TRUJILLO:  Uh-huh.

		MS. TRAHAN:  -- that you've used on your job site and that you've done
air sampling with that tool.  Is -- have you provided that data to the
record and if not would you?

		MR. TRUJILLO:  I have not yet, and I will.

		MS. TRAHAN:  Okay.  Thanks.  And the type of specifics like the
conditions it was used in and the specific engineering control used I
think would be very helpful.

		MR. TRUJILLO:  Okay.

		MS. TRAHAN:  If you can do that.

		JUDGE PURCELL:  Ms. Trahan, your voice kind of trails off.  If you
could pull the mic a little closer?  Thank you.

		MS. TRAHAN:  You also mentioned a role for competent personnel to
assess and evaluate efforts to mitigate exposures.  What kind of
knowledge or training do those people -- would those people need to have
in order to --

		MR. TRUJILLO:  Well, I --

		MS. TRAHAN:  -- perform on the job site?

		MR. TRUJILLO:  I'm a, you know, we have competent persons for almost
everything and the definition of a competent person pretty much says it
pretty well which is whoever that person is needs to have knowledge of
the existing and predictable hazards and they all -- more importantly
they have to have authority to take some sort of action with regards to
that hazard recognized and the mitigation method identified.

		MS. TRAHAN:  As far as the specific knowledge as -- where silica goes?

		MR. TRUJILLO:  Well, I would think that they would need to have some
knowledge of the work process and the hazards associated and maybe even
have been -- some knowledge of prior sampling evaluations so they know
what they're looking at, you know?  You can't look at silica and know
what the exposure levels are.  You need to know -- have some data behind
it.  And anybody that I personally would make in -- put in charge of
monitoring that type of activity would definitely know what they were
looking out for and the, kind of the telltale signs of overexposure
based on sampling results.

		MS. TRAHAN:  Okay.  Thank you.

		Mr. Guth, the -- we're happy to see you here because we don't see a
lot of people who are making engineering controls in this hearing and
it's very nice.  We've heard that there's some productivity benefits
associated with the use of your equipment.  Can you describe some of
those productivity benefits?

		MR. GUTH:  In certain industries we've been able to measure the time
savings from cleaning up the silica dust and here we're focusing not on
the, maybe the commercial contractors, but this is more the residential
contractors that are using these products and not doing anything about
it.  And so we're trying to educate them.  But what it does, it saves
them one to two to three hours a day in cleanup time because they don't
have to wash down the house or wash the windows or wash the bushes where
they're inherently dry cutting.

		MS. TRAHAN:  Wow.  And do you have new equipment on the market?

		MR. GUTH:  Yes.  The one piece, the PC912 is a new piece of equipment
out just this year.

		MS. TRAHAN:  And I saw that you submitted some sampling data
associated with your equipment.  Is that included in the data that you
--

		MR. GUTH:  Yes, it is.

		MS. TRAHAN:  Okay.  Thank you.  And what types of tasks and projects
would your equipment be used for --

		MR. GUTH:  It varies quite a bit.  They're pretty universal.  A power
cutter is used, you know, gasoline powered hand-held saw is used on
everything from cutting asphalt to cutting concrete to cutting pavers to
cutting pretty much any type of cementitious materials which generate
silica, but that's a wide range.  And I want to add that any of these
tools, to be used properly, they have to be used by a trained
professional.  They can't be just with zero training and expect to get
the results achievable to meet the PELs.

		MS. TRAHAN:  So you say they have to be used by a trained person. 
What would the person have to be trained on to use the tools properly?

		MR. GUTH:  Again, it would be along the lines of a competent person
type of situation where they're learning how to mitigate these hazards,
just as we talked about.

		MS. TRAHAN:  Are there elements of the tools' engineering controls
that the operator would need to be trained on?

		MR. GUTH:  The -- it's pretty straightforward with the actual
operations, but it's just the technique that they use, just like when
you're running any type of wet saw or any type of equipment, it's --
there's certain best practices that need to be followed.

		MS. TRAHAN:  Thank you very much

		JUDGE PURCELL:  Thank you, Ms. Trahan. 

		Next questioner?  Please identify yourself for the record, spell your
last name, and state your affiliation.

		MR. KEMP:  Yeah.  My name is Mark Kemp.  I'm Chairman of the Mason
Contractors Association and I --

		JUDGE PURCELL:  Is that Kemp, K-e-m-p?

		MR. KEMP:  K-e-m-p, correct, sir.

		JUDGE PURCELL:  Thank you, Mr. Kemp.

		MR. KEMP:  And, Joel, I just got a quick question for you.  You showed
that portable -- I call it portable gas power saw, and I have not seen
that.  I'm just wondering is -- have you sold many of those yet?

		MR. GUTH:  We've got --

		MR. KEMP:  And the cost.

		MR. GUTH:  -- a few hundred of them out there.

		MR. KEMP:  What is the cost of that?

		MR. GUTH:  1950.

		MR. KEMP:  1950.  And what about the filters and how often you got to
change and --

		MR. GUTH:  The filters are 89 bucks and they -- or we recommend 90
days.

		MR. KEMP:  Ninety days on the filter in that.  Okay.  That's something
that, you know, I'm going to give you my card.  I know you know me.  But
I mean that's something that, you know, is new.  I didn't see that at
the World of Concrete/World of Masonry, but I like the idea, and I
applaud you for coming out with something because most of our cuts in
our industry are up on the scaffold dry cut.  And we'll cut one block on
one end of the scaffold for one course --

		JUDGE PURCELL:  Mr. Kemp?

		MR. KEMP:  -- the next course --

		JUDGE PURCELL:  Mr. Kemp, I'm sorry.

		MR. KEMP:  No, that's fine.

		JUDGE PURCELL:  This is an opportunity to question Mr. Guth or
Mr. Trujillo.  If you have testimony to provide and have entered a
Notice of Intent to Appear, then you can testify at that time but please
limit your questions to --

		MR. KEMP:  Okay.

		JUDGE PURCELL:  -- to questions.

		MR. KEMP:  That was my only question about that particular saw, so
you've answered it and I'd like information.  Thank you.

		JUDGE PURCELL:  Thank you, Mr. Kemp.

		MR. GUTH:  Thank you.

		JUDGE PURCELL:  Next individual who has questions?  Please state your
name, spell your last name for the record, and identify your
affiliation.

		MR. HAMMOCK:  Yes, hi.  I'm Brad Hammock, H-a-m-m-o-c-k, with the law
firm of Jackson & Lewis, and I'm here on behalf of the Construction
Industry Safety Coalition.

		JUDGE PURCELL:  Thank you, Mr. Hammock.  Go ahead.

		MR. HAMMOCK:  Thank you.  Your Honor, would it be possible if we
scroll back through some of those pictures?  I was hoping to get some
more information from you, Mr. Guth, on the cost of some of those
items.  Would that be possible?  So is that the one that was just --
that -- we're, for purposes of the record, we're looking at a red one
that's hand held.

		MR. GUTH:  And that -- that's an -- this is Joel Guth with iQ Power
Tools.  That's an iQ PC912.

		MR. HAMMOCK:  Okay.  What's the -- what is the cost of that?

		MR. GUTH:  1950.

		MR. HAMMOCK:  Okay.  Could you go to the previous one?

		MR. GUTH:  That is a -- an iQ 360, and that cost to that one is 1950
also --

		MR. HAMMOCK:  Okay.  Thank you.  And what about the -- that one there?

		MR. GUTH:  That is a -- an iQ 2000 system that includes the vacuum,
which the large thing looks like a refrigerator and then the table, the
orange table that's on a -- an MK 5000 20-inch table saw, and the two
components there are about $14,000.

		MR. HAMMOCK:  For both things, 14,000?

		MR. GUTH:  Yes.  Not including the saw.

		MR. HAMMOCK:  Not -- okay.  So but you have to have both things in
order to make that work?

		MR. GUTH:  Yes.

		MR. HAMMOCK:  Okay.

		MR. GUTH:  And many mason contractors already have that type of saw.

		MR. HAMMOCK:  Okay.  The saw, but not necessarily the --

		MR. GUTH:  Correct.

		MR. HAMMOCK:  -- the other two items.  Okay.  Just a couple other
questions, Mr. Guth.  You mentioned at the end of your testimony, the
three times 100, one of which was a -- I believe I heard 100 µg/m3
permissible exposure limit; is that correct?

		MR. GUTH:  Correct.

		MR. HAMMOCK:  Okay.  Have you tested some of your tools to see if
they're in compliance with that 100 µg limit?

		MR. GUTH:  Yes, yes they are.  We have tested, and we continue to do
testing, and we're doing perimeter testing and operator testing on these
at for what duration, how long you can run them and what the exposure
limits are for the different materials.  And also verifying the
different silica contents in the different materials we're cutting.

		MR. HAMMOCK:  Does it -- does the different materials in the -- I
mean, does a different silica content affect the exposure ratings that
you get?

		MR. GUTH:  It absolutely does because if you got a -- if you're
developing so many pounds of material in a day and it's a seven percent
silica content, although your respirable -- total respirable content
would be the same, your amount of silica exposure's obviously going to
be different if it's seven percent or up to 27 percent, which is a range
we've seen it in.

		MR. HAMMOCK:  So if you were a contractor using one of your tools and
you want to make sure you're below 100 µg, for example, do you need to
sort of target a lower level because of the differences in silica
content?

		MR. GUTH:  Yes.  You would need to know what it is but also, you know,
what we've seen by testing is that we can use certain ranges for certain
types of material.  Brick seems to be lower, and concrete masonry units
seem to be a little bit higher, so if you're using somewhere around a 20
to 23 percent, you're going to know approximately how many cuts you can
make and still maintain that level.

		MR. HAMMOCK:  Okay.  And just so I'm clear, so if I'm using one of
your tools to get in compliance, let's say, with a 100 µg PEL that same
tool, that same action with the same control measures the amount of
contact -- silica exposure that I have will necessarily differ based
upon just the silica content of the material?

		MR. GUTH:  Yes.	

		MR. HAMMOCK:  Okay.  You mentioned one other thing, Mr. Guth, I was
interested in.  You talked about a survey that you had done getting a
sense from folks who were using equipment what their knowledge of the
OSHA PEL is and the like.  Was that just a informal survey talking to
folks?

		MR. GUTH:  It's absolutely a very informal survey, but asking people
the same consistent question over and over.  And this goes back to my
employees.  I've employed several thousand people in the industry, and I
understand what their mindset is and trying to train those people on our
best practices and safety programs, how difficult it is, and that's how
we were able to tailor our questions to people to really get a sense. 
And, as I said, this is a very narrow segment of the industry that is
working without any type of protection.  The -- most of the members of
the Masonry Contractors Association and the ICPI and the people I talk
to that are participating in this forum and know this forum is going on,
they're taking great strides to protect their people.  That's that 15 to
20 percent.  It's the 80 percent that don't even know we're here today
are the ones that are the most concerning to me.

		MR. HAMMOCK:  So based on your experience, you think there's 80
percent of folks out there that really aren't taking measures to protect
their employees from silica?

		MR. GUTH:  In certain industries.  And at the certain segments of the
construction industry.  It's not the commercial mason contractor that
falls in that category.  It's the guy that's doing pavers or hardscape
type thing in people's back yards.  Those are the ones that do not even
know what we're talking about here.

		MR. HAMMOCK:  And does that include respiratory protection too?  Would
you say about 15  -- I think I heard you say about 15 to 20 percent of
folks you think are using some type of respiratory protection, even if
it's informal, in the construction industry right now?

		MR. GUTH:  Yes.

		MR. HAMMOCK:  So that --

		MR. GUTH:  I think it's --

		MR. HAMMOCK:  -- conversely --

		MR. GUTH:  -- higher.

		MR. HAMMOCK:  Yeah.  Conversely to say the obvious 80 percent are
probably not using any respiratory protection?

		MR. GUTH:  In certain segments.  If you took commercial masons and put
them together or commercial hardscape contractors they -- the majority
of them are all taking precautions to protect their people, either wet
or dry.  It's the other 80 percent of the people out there that are not
part of the association and not aware of what OSHA does or the PEL that
are really, really overexposing themselves.

		MR. HAMMOCK:  And then just, sorry, Your Honor, just two questions for
Mr. Trujillo, right?  Trujillo?

		MR. TRUJILLO:  Good try.

		MR. HAMMOCK:  Sorry.  Close enough.  Do you find that when you've done
your exposure sampling, that the levels of exposure differ based upon
there being multiple silica-generating tasks in the same area?

		MR. TRUJILLO:  Yes.  Yes.  I -- well, I try to make sure that when I'm
sampling I'm sampling for what I'm sampling for.  So if I'm working to
find out the exposure levels for ceiling grinders I do everything within
my power and a pretty good job of it to make sure there's nothing else
happening in that area so I know what that operation is producing.

		MR. HAMMOCK:  That's -- so you'll sort of try to isolate something as
far as you can?

		MR. TRUJILLO:  Correct.

		MR. HAMMOCK:  Now, but if you were trying to judge exactly what --
whether your employees or one of your subcontractors' employees is
exposed to on any given day, that reading will differ if --

		MR. TRUJILLO:  Oh, yeah.  I don't know what they're --

		MR. HAMMOCK:  -- if they're cutting next to someone who's also
grinding or something like that?

		MR. TRUJILLO:  Yeah.  I don't -- I can't know what the other
contractors are doing to elevate their exposure.

		MR. HAMMOCK:  Okay.  Thank you very much.

		JUDGE PURCELL:  Thank you, Mr. Hammock. 

		Any further questions from the audience?  Yes, sir?  Please state your
name for the record, spell your last name and identify your affiliation.

		MR. BUCZKIEWICZ:  Sure.  I'm Jeff Buczkiewicz.  I'll repeat it if you
need it.  I'm the President of the Mason Contractors Association.

		And, Joel, I want to first commend him because he has done an awful
lot of great work.  He's actually a strategic partner of ours, and we
work with him to try to see some of the things, and I notice you do have
a new saw up there, which is great, the hand saw.  How much does the
handsaw weigh?  I'm just --

		MR. GUTH:  It's Joel Guth, iQ Power Tools.  It's 31 pounds.

		MR. BUCZKIEWICZ:  So 31 pounds?

		MR. GUTH:  About eight pounds more than a standard unit.

		MR. BUCZKIEWICZ:  Okay.  And what are the limitations of your
equipment right now?  As far as application on a job site?

		MR. GUTH:  One thing, the PC912 has a limitation, it has a 12-inch
blade and many people are using a 14-inch blade, so the depth of cut is
four inches on our unit versus five inches, what many people are used to
using.

		MR. BUCZKIEWICZ:  Sure.  Now, the table saw, not this slide but the
other saw, the other table one?  That one in particular.  Is there
limitations as to what you can cut on this particular piece of
equipment?

		MR. GUTH:  That is made for material -- we recommend four and a half
inches or less, and it has a -- it can cut in one direction up to 12
inches deep.  Anything larger than that you need to rotate it, but it's
capable of bigger than that.

		JUDGE PURCELL:  Mr. Guth, for the record, what's the model number on
that?

		MR. GUTH:  That is the iQ 360.

		JUDGE PURCELL:  Thank you.

		MR. BUCZKIEWICZ:  So would it be practical to cut a concrete block on
that particular saw?

		MR. GUTH:  No.  That is not practical for a concrete block.

		MR. BUCZKIEWICZ:  Okay.  So that's not a practical application for
that.  Do you have -- you have other products in development, correct,
that will --

		MR. GUTH:  Yes, yes, we do.  We have a couple other products that --
where it will cut concrete block.  The large unit, which is, that's the
2000 system, iQ 2000, and that will cut an 80/16, a 12/8/16, 16/8/16,
all the common stuff that we use on a commercial masonry.

		MR. BUCZKIEWICZ:  Now, the -- as far as limitations, I -- we talked a
little bit about the limitations of what you have currently, the other
table saw, not this one, but the one -- that's the one I'm most familiar
with because we do have a lot of members that use that saw.  Does it cut
as quick or how is the cutting speed compared to a gas-powered saw?

		MR. GUTH:  We did a comparison against a five and a half horsepower
gasoline-powered saw, and on an 80 mil paver, nine inches long, we were
able to cut -- they cut in seven point -- I think it was about 7.6
seconds, and I was about 8.7 seconds with ours, so just about a second
longer.

		MR. BUCZKIEWICZ:  Okay.

		JUDGE PURCELL:  And, Mr. Guth, just for the record, the picture being
displayed is the iQ 2000?

		MR. GUTH:  That -- this picture is the iQ 360.  I'm sorry.

		JUDGE PURCELL:  Oh, 360.  Thank you.

		MR. BUCZKIEWICZ:  And just one more quick question for you.  You
talked about the 80 percent and 20 percent?  Those folks that are
complying and those that aren't?  What will -- what do you think will
happen to the 20 percent if the current proposed rule goes into effect? 
Will they become smaller group or a small -- or a larger group of the
whole pie?

		MR. GUTH:  Unfortunately my opinion is if the PEL goes to 50 and an
action level at 25 there will be a lot of people that will throw up
their hands and say, it's -- I -- it can't be done, I can't do it, and
they'll just ignore it, which is sad to me.

		MR. BUCZKIEWICZ:  So --

		MR. GUTH:  I think it's -- they'll -- it will have less people trying
to comply and they'll just give up and wait till they get caught.

		MR. BUCZKIEWICZ:  So you feel the -- changing the PEL to 50 or 25 will
actually encourage some folks not to comply with the PEL, or it wouldn't
be economically feasible to them to compete with those who aren't?  Is
that you said?

		MR. GUTH:  Yes.  I think that they will just not try at all.

		MR. BUCZKIEWICZ:  Okay.  That's all I have.  Thank you.

		JUDGE PURCELL:  All right.  Thank you.  Just one other point of
clarification, Mr. Guth.  You referenced a unit that weighs 31 pounds. 
What was the model number of that?

		MR. GUTH:  That was the PC912.  Weighs 31 pounds.

		JUDGE PURCELL:  Okay.  Thank you, Mr. Guth.

		OSHA panel has questions, I'm sure?

		MR. O'CONNOR:  Yes, we do.  First I'd like to thank Mr. Trujillo and
Mr. Guth for appearing and testifying today.  Patti Downs will begin
our questioning.

		MS. DOWNS:  Thank you.  I'd like to start with Mr. Trujillo.  You
mentioned in regards to a question from Brad Hammock that you try to
isolate your samples whenever you're conducting sampling of your worker
tasks.  Is that the case in the two employee exposure results you
discussed earlier, the gentleman removing frame work and the worker who
was sweeping?

		MR. TRUJILLO:  Yes.

		MS. DOWNS:  So you took the two samples, and it was just for those
tasks.  Was that something they were doing the entire work shift or was
it just a short duration sample?

		MR. TRUJILLO:  It was not the entire work shift.  I believe it was a
six-hour sample.  We extrapolated out the eight-hour TWA.

		MS. DOWNS:  Okay.  So the gentleman was removing framing for six
hours, and the lady was sweeping for six hours of her shift?

		MR. TRUJILLO:  Correct.  Somewhere around there.

		MS. DOWNS:  Okay.  Okay.  And then you also described a situation
where you had a worker grinding down seams in concrete on the third
floor and there were other workers in the area and you said that it was
open-sided.  What do you currently do to prevent exposures to other
workers in the area in that type of situation?

		MR. TRUJILLO:  Well, we're using the dust collection systems on the
ceiling grinders that I spoke about that have been moderately successful
and the other trades seem to be very happy with the reduced amount of
dust that's coming off of them.  But I don't know what they're exposed
to.  I do train on my ceiling grinder operators to try to keep the head
of the machine downwind from them when possible, but circulating, you
know, wind flows around the buildings in the city make it --

		MS. DOWNS:  Right.

		MR. TRUJILLO:  -- difficult sometimes.  But I don't know what they're
exposed to going on around our operation.

		MS. DOWNS:  And now do you or any of your workers communicate that
hazard to the other contractors on site?  Do you let them know you're
going to be --

		MR. TRUJILLO:  Uh-huh.

		MS. DOWNS:  -- grinding and that there's silica there?

		MR. TRUJILLO:  Yeah.  As much as they'll listen.

		MS. DOWNS:  So do they normally not listen?

		MR. TRUJILLO:  They got stuff to do too.

		MS. DOWNS:  Okay.

		MR. TRUJILLO:  You know, they're on the schedule.

		MS. DOWNS:  Uh-huh.

		MR. TRUJILLO:  So they do their best to keep their heads away from
where the dust is going, but --

		MS. DOWNS:  But you let them know so that they can take whatever
appropriate steps they feel are necessary to reduce the exposures to
their employees?

		MR. TRUJILLO:  Almost everything in this town's concrete.  So if
there's a contractor that's been doing something in the city for a
while, they've seen that operation.  And anybody that doesn't know and
is -- makes the unfortunate decision to get close, they won't do it for
long, and we'll continue to warn them that it's just a noisy, nasty
operation, and it doesn't take a lot of -- for people to realize they
should be somewhere else if they can be.

		MS. DOWNS:  Okay.  Great.  Thank you so much.

		Mr. Guth, do you only manufacture these saws right now, or do you do
any other sorts of equipment like grinders or drills?

		MR. GUTH:  We have a -- one iQ core drill that has a very limited
application and the tools that we develop are primarily for our own
crews and focus towards a commercial mason contractor, and then just
recently we've started to build things that have a wider application.

		I made a career change three years ago headed in this direction
because I was a contractor with 150 people three years ago.

		MS. DOWNS:  Okay.  And so then does your company intend on expanding
its product line, then, correct?

		MR. GUTH:  We have 11 new products on the drawing board that we plan
on introducing.

		MS. DOWNS:  How long do you think it will take to get those up and
running and available for sale?

		MR. GUTH:  I would like to say that we could do that very quickly but
it -- it's all a matter of money and the amount of money we've invested
just to bring these to market is tremendous, of getting a wide range of
acceptance and getting people educated to the options that are out there
is what we've -- we're working at right now.  So it's going to be over
the course of, I would say, probably five years.

		MS. DOWNS:  Okay.  Great.  Thank you.  I have no more questions.

		JUDGE PURCELL:  Thank you.  Next questioner?

		MR. BLICKSILVER:  Bob Blicksilver.  

		Mr. Guth, do you have any marketing data you'd feel comfortable
providing into the record for the products you currently have out or any
that you see on the horizon developing?  And by that I mean industries
you've sold to even if you can get as specific as NAICS, North American
Industry Classification System Codes?  Do you have any data on your
sales to the various industries?  Or NAICS codes?

		MR. GUTH:  We don't track that currently, and I'm not real comfortable
from a competition standpoint.  We've got a lot of big manufacturers
that are looking at us and I don't need to have them try to derail me
from our -- what we're -- our plan is.

		MR. BLICKSILVER:  Would you feel comfortable sort of characterizing in
terms of type of jobs that your customers are applying them to?  Just
sort of broadly without, you know, this particular saw was used on this
particular job, just in a very broad way without identifying companies
or locations or anything like that?  Just --

		MR. GUTH:  Give --

		MR. BLICKSILVER:  Sort -- probably -- I'm sorry.  Sort of the
information that's probably on your product sheets, I imagine.

		MR. GUTH:  The application code is, but we would be comfortable
sharing a percentage of where we believe what industries they're going
to and how they're being adopted.

		MR. BLICKSILVER:  I'm sorry, did you --

		MR. GUTH:  We would share the percentage of -

		MR. BLICKSILVER:  Oh.

		MR. GUTH:  -- of products that are -- what industries are going to.

		MR. BLICKSILVER:  Thank you.  Have you received any testimonials on
productivity benefits of using your equipment on job sites?

		MR. GUTH:  Yes, we have.

		MR. BLICKSILVER:  Okay.

		MR. GUTH:  On the --

		MR. BLICKSILVER:  Okay.  Could you provide those to the record as
well?

		MR. GUTH:  Yes, we could.

		MR. BLICKSILVER:  Thank you.

		Mr. Trujillo, have -- has Miller and Long or have you personally done
an analysis of the cost to comply with the OSHA-proposed silica rule?

		MR. TRUJILLO:  Not in its entirety, no.

		MR. BLICKSILVER:  Okay.  Have -- is that something that you think you
can undertake to provide in post-hearing comments?

		MR. TRUJILLO:  I could -- I'd give it a go.  It's pretty -- there's a
lot to it.

		MR. BLICKSILVER:  Sure.  There are spreadsheets that are in the record
that might help you sort of frame it.

		MR. TRUJILLO:  I'll take help.

		MR. BLICKSILVER:  Thank you.  In your written comments you mentioned
that you take no issue with respiratory protection, medical
surveillance, communication of hazards to employees, record-keeping
sections.  Does that mean that Miller and Long are currently complying
with the requirements in the proposed rule?

		MR. TRUJILLO:  Well, I -- we currently -- we do pre-qualifications
from employees using respiratory protection.  

		JUDGE PURCELL:  Could you pull the mic closer?

		MR. TRUJILLO:  Yes, I'm sorry.  We do pre-qualifications for employees
performing -- going to use respiratory protection.  The standard goes a
little above and beyond that with regards to pulmonary function tests,
chest x-rays, all those things, but I don't see how I could in good
conscience be against something like that.  I mean, it helps you
understand what your employee exposure is and make sure that what you're
using is working.

		MR. BLICKSILVER:  Okay.  Thank you.  I -- if you could identify those
particular requirements that might require additional effort on the part
of the company to comply with the proposed rule that would be very
helpful to us.

		MR. TRUJILLO:  I can also tell you that speaking to local area
doctors, many doctors just in this area of Washington D.C., Maryland,
Virginia that have been doing those type of assessments for employers in
this area and in speaking with them about the additional requirements
put on by the standard, specifically the chest x-rays, pulmonary
function tests, follow-up, recordkeeping, all those things, I don't have
a number, but it's going to be a significant increase in the amount of
effort they have to put forward and of the equipment being used.  I've
been forewarned, kind of a punch in the shoulder, this is going to cost
you a lot more money.  But I don't know how much yet.

		MR. BLICKSILVER:  Okay.  Thank you.

		MR. TRUJILLO:  All right.

		JUDGE PURCELL:  Further questions from the OSHA panel?

		MR. O'CONNOR:  Yes.  This is Dave O'Connor.  We've had a number of
participants in this proceeding tell us that what OSHA needs to do is
focus on enforcement of its existing requirements.  

		And Mr. Guth in particular, given that you've had conversations with
quite a few people recently about silica exposures in construction, I
was wondering if you had any thoughts on that, particularly when you're
advocating 100 percent compliance for 100 percent of workers.  How does
OSHA go about accomplishing that objective?

		MR. GUTH:  Joe Guth, iQ Power Tools.  I think -- the only way I know
that it can be done is to work with all the industry's construction
industry stakeholders, which means from the contractors themselves, the
labor groups that are representing some of them, but a -- the majority
of these are not represented by any labor groups.  And then you have all
the rest of the material suppliers, the material dealers and the
associations that represent the industry and then even the material
manufacturers.  Getting the word out on this is important, and it's
going to take everybody working together along with OSHA.

		I don't think the -- writing a bunch of citations, now, that certainly
gets people's attention, but we want people to change their mindset and
that is through education.  And educational tools that can be shared
across the board is what people need and, you know, anyone that has ever
tried to get a point through to a construction worker, they're hands-on
people, they're very intelligent, but they're not going to sit down and
read a 20- or 30- or 200-page book.  We need to give them a quick and
easy and identifiable education that gets them -- their mindset to
change.

		MR. O'CONNOR:  And do you have a sense from your experience in talking
with people as to why they're not complying with our current
requirements, to the extent that they're not?  Is it simply a matter of
not being aware of those requirements or the control measures that would
be appropriate, or are there other reasons?

		MR. GUTH:  A lot of them just don't care.  They don't know about a
PEL.  They don't understand the exposure or they don't understand what
silica is.  And, you know, like I said, go back 15 years I knew it
probably wasn't good but I didn't understand what it really did to you. 
Once people start to learn and understand, and I've said I talked to a
lot of people.  I know, you know, I had many, many, many conversations. 
A guy says, I do all the cutting because I don't want my son exposed to
it.  He's 45.  He's been doing it for 20 years.  He doesn't want his
20-something-year-old son exposed to it so he doesn't let -- doesn't
want -- he protects his workers by doing this himself.  I said, do you
wear a respirator?  Well, no, I try to, but it fogs up and it does this,
it does that, so I just -- they kind of hold their breath.  There's a
joke about them putting their T-shirt over their mouth, and that's their
respirator, but that's the honest truth of how it's done by the majority
of people is they -- and they just don't know.  And that doesn't change
here.  That changes out in the field.

		MR. O'CONNOR:  Thank you.

		MS. RYDER:  I --

		JUDGE PURCELL:  Ms. Ryder?

		MS. RYDER:  I have a question for Mr. Trujillo.  I just wanted to
follow up on the medical -- the proposed medical surveillance provision,
and how do you anticipate that you would keep track of the employees who
would possibly require medical surveillance?

		MR. TRUJILLO:  Well, if it stays confined to the current pool of
people that I'm managing now, I can manage it with my staff.  But with
the permissible exposure limits that are proposed and the action levels
proposed we're talking tripling or quadrupling the amount of people that
are in that program.  That will become a much more daunting task.  I
think if it -- if we can maintain or pick a PEL, which I think I've
heard a lot of talk about 100 µg/m3, and I'm in agreeance, that would
be something that we could work with.  But getting something that gets
knocked down and could potentially incorporate many more employees that
are performing activities that don't even involve the use of power tools
into that program would make it so cumbersome and onerous that I would
have to figure out a way or bring somebody in to help me manage that
system.

		MS. RYDER:  So how are you currently keeping track of which employees
are exposed --

		MR. TRUJILLO:  Well, currently we perform hazard assessments to
determine which employees are likely to be overexposed.  And if they're
-- if they get within a arm's throw, you know, we look at everything on
a case by case, of the current PEL then we don't wait for them to be
overexposed.  We go ahead and we get them in the respiratory protection
program.  These are our ceiling grinders.  These are our wall grinders. 
These our all column grinders.  These guys are using power tools on
concrete, cutting it, grinding it, breaking it.  We know that they're
creating airborne dust, and we're not going to pretend like they aren't
so we put them in the program.  And we'll have 150 or 200 guys at any
given time that are in that program.  

		And they're on -- they're part of a program that we -- a system that
maintains them.  It monitors their training, it monitors their medical
evaluations, their fit tests.  We get red flag e-mails when they're
coming up due for their re-evaluation or re-medical -- or respirator fit
test and we get them or get the doctors to come to our facility and do
those medical evaluation and fit tests or send them to a facility.  It's
something that takes a good portion of one of my guys' times to keep
that managed, I mean, and still do all the other things that he needs to
do.  So that's how we currently do it.

		MS. RYDER:  Okay.  I have another question about the sampling that
you're doing right now.

		MR. TRUJILLO:  Sure.

		MS. RYDER:  Are you -- can you tell us a little bit how regularly
you're doing sampling and what type of samplers you're using?

		MR. TRUJILLO:  Well, we did a lot of sampling in the past but -- and
we felt like we had a good handle on what our exposures were.  But
there's been a lot of new products on the market here recently, and I've
seen some interesting ones right here just a few seconds ago.  They
don't work for what we do but, you know, there are other ones out there
and in talking to Bosch, Makita, DeWalt, Milwaukee, everybody's -- he's
not kidding -- everybody's coming out of the woodwork trying to find
dust mitigation tools that are, like I said before, some are effective,
some are not.

		In light of all these new tools, we're investing in trying them, you
know, we're buying them.  We're going to -- and we put them out in the
field.  So lately we've been doing a lot of sampling of basically
looking at everything all over again.  And then again for each tool that
we're trying.  So, you know, we knew that the guy grinding a ceiling was
overexposed, but trying the ceiling grinder with the dust mitigation, we
wanted to see what difference that made and we found that it helps.  But
he's still got to wear his respirator.  

		The hand grinders, on the other hand, there's a lot of work yet to be
done if there is anything to be done.  I mean, when you're grinding a
square-face concrete column and you got flat face on the grinder and
it's running, as long as you got that blade enclosed in that collection
system, it's pulling the vacuum and you're getting most of the dust. 
But the second that grinder breaches the edge of the column to finish it
--

		JUDGE PURCELL:  Mr. Trujillo, I think you're blocking the mic.  I'm
sorry.

		MR. TRUJILLO:  I'm sorry.  The second that grinder goes beyond the
edge of the column, you lose suction and then the dust goes everywhere. 
And it's a common problem on walls and columns, pretty much everything
we do.  And, you know, we're finding that we're not winding up with any
more or less people in our respiratory protection program with all of
these neat new systems.  I mean, right now it's more feel good and look
good than anything else, but we're wanting -- we're willing to try them.

		MS. RYDER:  And just a follow up, what type of samplers are you using
to collect that dust?

		MR. TRUJILLO:  Currently I'm able to get our insurance carrier, the
Hartford, to come in and bring in industrial hygienists and help us do
that sampling.  I imagine if, you know, these rules pass as written I'm
probably not going to have access to him like I used to but right now I
can usually get him when I need him, so he's --

		MS. RYDER:  Do you know -- oh, I'm sorry.

		MR. TRUJILLO:  I'm sorry.  So he does the sampling, monitors the
sampling, I'm there with him, and then he sends the samples to their
accredited laboratory who does the assessment and then sends us the
results.

		MS. RYDER:  Okay.  Do you know what type of analytical method they're
using?

		MR. TRUJILLO:  I can find out.  I don't --

		MS. RYDER:  Okay.  I think -- did you already say you were going to
submit some of that data --

		MR. TRUJILLO:  Yes.  I have a little   table --

		MS. RYDER:  -- to the record?

		MR. TRUJILLO:  -- here.

		MS. RYDER:  Okay.  Great.  That's all I have.  Anyone else?

		JUDGE PURCELL:  All right.  Any further questions from OSHA?

		MR. O'CONNELL:  No, that's all we have.

		JUDGE PURCELL:  All right.  Gentlemen, thank you very much,
Mr. Trujillo and Mr. Guth.  Mr. Guth, you mentioned you had some
sample data that you wanted to submit which I'll designate as Hearing
Exhibit 100.  Also, I do have a copy of your PowerPoint presentation,
the photographs that I've marked as Hearing Exhibit 98.  If you'd like
to submit your written testimony that also incorporates those slides,
then I'll mark that as Hearing Exhibit 98A and admit both those into the
record.

(Whereupon, the document referred to as Hearing Exhibit 98A was marked
and received in evidence.)

		MR. GUTH:  Thank you.

		MR. TRUJILLO:  Here's two.  Sampling data and testimony.

		JUDGE PURCELL:  Okay.  Mr. Trujillo handed me two exhibits, which his
hearing testimony will be Hearing Exhibit 97 and admitted into the
record.  The second exhibit I'll mark as Hearing Exhibit 97A, and that
is data in support of Mr. Trujillo's testimony, which is air sampling
silica results for a range of dates beginning in March 2013 up through
December 2013.  And I'll hand those to Ms. Ryder.

(Whereupon, the document referred to as Hearing Exhibit 97A was marked
and received in evidence.)

		JUDGE PURCELL:  And with that we'll adjourn for lunch.  It's hard to
get back here in less than an hour, so it's 10 after 12:00 now.  We'll
resume at 1:10.  Thank you.

		(Whereupon, 12:00 p.m., a lunch recess was taken.)

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

(1:00 p.m.)

		JUDGE PURCELL:  Like to resume this afternoon's session.  The first
group on the agenda is the International Union of Bricklayers and Allied
Craftworkers.  They're assembled over here to my right, and I'll ask
them to introduce themselves.

		MR. WARD:  Hello.  My name is Tom Ward.  I'm a bricklayer from
Detroit, Michigan, and I'm also a 23-year member of the International
Union of Bricklayers and Allied Craftworkers.  Nearly two years ago I
spoke with the Senate Health -- HELP Committee about OSHA's delays in
the rulemaking process and the impact on worker safety.  I'm pleased to
have the opportunity today to talk to you about this long overdue
standard.

		Silica exposure is of critical importance to myself, my family, and my
brothers and sisters in the trial (ph.) trades.  You see, when I was
just 13 years old, my father died of silicosis.  He had worked as a
sandblaster for about a few years in his twenties.  There's not much I
remember about early childhood, but, you know, I remember going to work
with Dad a couple times.  One day he rolled in a rusty old truck frame,
which I was sure it was ready to go to the scrap yard.  By the end of
the day, it had a fresh coat of primer, and it looked brand new.  I
remember being amazed that my dad knew how to do that and it was him
that did it.  He knew how to do it, and it looked brand new at the end
of the day.

		He left sandblasting for a better job and was represented by the
Teamsters.  He had good pay and health benefits for our family.  It was
just a few years into his new job where he started getting short of
breath.  I remember him having pneumonia several times, a collapsed
lung.  I remember Mom telling us that the doctors thought it was some
type of lung infection that just kept reoccurring.  

		The official diagnosis of silicosis came when he was only 34 years
old.  The hardest memory for me to live with was the last day he worked.
 He came in the door, fell on the ground, and started to cry.  He looked
at us and said, I can't do it anymore.  This was also the day my work --
his work ethic was imprinted in me forever.  He was only 39 years old
when he died.  The disease took about five years to kill him.  Not only
was it incredibly difficult and slow and painful for him, but we had to
watch it.  In the end, the disease suffocated him.

		I joined the BAC in 1991, and coming into the trades was easy for me. 
I was taught how to work hard, and I love working with my hands.  A
great trade eventually turned into a great career.  But who would have
thought that in 1991 I would be exposed to dangerous levels of silica,
the same dust that took my father?  I wonder today if I'll develop it
myself.

		When I started there wasn't a lot of training being done.  It wasn't a
big deal, especially about training of silica or respiratory protection.
 A lot of the guys I worked with were completely unaware of the serious
nature of the disease.  Contractors weren't consistent about providing
PPE or engineered controls because a standard was completely lacking. 
And it's inconceivable to me today that the same standard exists.

		Once I became aware that silica was in our product, I did what I could
to protect myself, and I was always determined to just work for the best
contractors, and I did for most of my career.  The last one, actually I
was in supervision, was progressive about health and safety, and for
five years we never had a Quickie or we -- masonry chop saw on the job. 

		Took a little getting used to, but it was a breath of fresh air,
literally.  All of our brick and block were cut with 20-inch wet table
saws.  We used a hose connection, a garden hose connection to it, which
actually prevents slurry and flow rate issues with the piece of
equipment.  We were always safe, and we always the company money.  Our
mantra was that proper planning protects profit and the workers.

		Not every craft worker and construction worker knows what I know and
what I saw my dad go through, but believe me, I spread the word now.  I
miss being in the field quite a bit, but I don't miss that dust at all. 

		Part of my job now is instructing apprentices and journey workers
alike on safety.  We give them a good understanding of the hazards and
how to control and when to use PPE, and I want to show you just two
examples, if you will for a minute, of a stationary table saw, how we
control that hazard, and a grinder.

		JUDGE PURCELL:  Mr. Ward, would you identify for the record what it
is we're looking at?  Is that a video presentation you're about to run?

		MR. WARD:  Yes, sir, it is a video presentation.

		JUDGE PURCELL:  Okay.  And do you have a printout of that that you can
make part of the record?

		MR. WARD:  We do.  We will.

		JUDGE PURCELL:  Okay.  At the appropriate time, I'll mark that as an
exhibit, and we'll admit it into evidence.

		MR. WARD:  Thank you.

		(Video begins.)

		TODD:  Hi.  My name is Todd.  I'm here at the BAC's training center in
Detroit, Michigan to talk to you about the proposed silica standard. 
Are you confused or a little concerned about it?  Well, we're here today
to take a look from a worker's perspective on how to control this hazard
and eliminate this disease.  It is 100 percent preventable.  Let's take
a look.

		Kurt, that was amazing.  How'd you do that?

		KURT:  Oh, it was simple.  I just turned on the water.

		TODD:  Just water?

		KURT:  That's it.  Real simple.

		TODD:  Thank you, Kurt.

		Sean, that was incredible.  How'd you control the silica dust that
easily?

		SEAN:  I just turned on this vacuum.

		TODD:  Just turned on the vacuum?

		SEAN:  Just turned it on.

		(Video ends.)

		MR. WARD:  I know this helps them understand the hazard.  The power of
proper training cannot be underestimated.  But we now have to get --
empower them to speak up when they see something wrong at work.  We're
already working together very successfully with some of our contractors
in providing the training for them, for our members that ensures they
understand the hazard, how to control it, and when to use a respirator. 
But the reality is without strength in standards and enforcement efforts
there's really nothing compelling the contractors to do anything.  We
need to -- we need standards that raise the bar across the industry and
we need them now.

		Experience is a great teacher, and I know there are affordable,
feasible, and available control methods that come with most of the
equipment we use.  You just have to turn it on.  All job site conditions
can be accommodated for if planned.  It just takes a little bit of
effort, and I speak to you as someone that went through an
apprenticeship, worked as a journey worker, and ran work for 14 years. 
I can be done.

		What we can't lose sight of is the fact that too many people are
falling ill and dying of preventable diseases.  I'm honored to speak to
you today and have the opportunity to work on this.  But we simply
cannot do it without your help.  Thank you.

		JUDGE PURCELL:  Thank you, Mr. Ward, for that very heartfelt and
poignant testimony.  

		I'm just going to go down the list of the panel members and ask that
they identify themselves and then they can proceed with their testimony.
 Mr. McNabb, I believe, is next.

		MR. McNABB:  My name is Dale McNabb.  I am a BAC Local member for 22
years out of the state of Michigan.

		JUDGE PURCELL:  Okay.  You might need to repeat that so it's picked up
by the microphone.

		MR. McNABB:  Okay.  Good afternoon and thank you.  Again, my name is
Dale McNabb.  I am a tile setter from Warren, Michigan in the Detroit
area, a BAC Local 2 member.  This is emotional for me, so if I get stuck
you have to bear with me.

		I started my career in the late teen -- 1980s.  I first started with
odd jobs in the residential and construction -- residential construction
market.  When I first joined the union, I worked as a tile helper, and
some of my jobs were mixing cement, making cuts, tasks that exposed me
to silica dust.  When I became a journeyman, my main responsibility was
setting tile, but I worked right along with the helpers who were also
using silica in their jobs.

		Some contractors I -- that did provide engineering controls were a
safe environment, but most did not.  The atmosphere on projects was to
get the job done; to get it done fast, turn a profit for the employer,
and for God sakes don't complain.  Even union guys knew that if you
spoke up or complained too much, we probably wouldn't be rehired by that
contractor, or there would be a possibility you might not get hired for
-- by another contractor.

		I love my job.  I took a lot of pride in my work, and I would still be
doing it today if my doctor had [sic] told me that I might not ever work
again because I had breathed silica dust.  

		In my twenties I noticed that I had breathing problems at night and by
my -- by the time I was 30 I felt it more.  I could hear my labored
breathing and wheezing, and it shocked me.  I've always been athletic, I
always kept myself in shape, but I kept feeling worse and worse.

		In 2008 I was 42 years old, and I was working on a project, and I was
one of the only guys that could actually hold a grinder up against the
wall to take off some silica-based thin sets.  Even though it was my --
wasn't my responsibility, I did it.  For two or maybe three weeks I was
on the grinder every day.  I bought myself some paper masks to try to
protect myself from inhaling so much dust, but at the end of the project
I was feeling pretty bad.  

		I thought I had a cold.  No matter what I did I couldn't shake it, so
finally I broke down and I went to the doctor.  After going to the
doctor the doctor noticed my wheezing and he -- and we had some tests
done.  The tests showed that I had some shadowing in my pleural membrane
so severe that the membrane was almost opaque and there were several
lesions on my lungs.  I went to an occupational specialist after that, a
Dr. Michael Harbut in Michigan.  He's well known in occupational
specialists.  He told me that my respiratory problems was caused by
silica exposure.  When I get exposed to dust now, and not just silica
dust, any dust, it feels like I have a plastic bag around my head and
someone's trying to pull it shut on me.

		Worse than the physical symptoms was the depression.  I love my job,
and I intended to retire as a tile setter.  I had 22 years in and could
not imagine not doing 20 more.  But now who was I?  For more than eight
months after my diagnosis, I was in deep depression.  The stress of the
health condition, of the uncertain prognosis, of the financial burden,
and the loss of my income was unbearable.  In the end, silica exposure
cost me my job, my health, and also my marriage.  By -- after --
diagnosis, my -- I separated from my wife.  My health was so bad the
doctor advised me to apply for Social Security, but I just couldn't
stand that.  I knew that I had to find a job for my state of -- good
state of mind. 

		Through all this I never lost my faith and trusted in that faith.  I
went out and I found work.  I spent a year as a shuttle bus driver.  I
had two prayers.  The first one that was God would put me in a place
where I could help people who went through financial difficulties that I
had gone through.  Two weeks later I ran into an old friend, and I got a
job in the financial service industry, and that's where I'm working
today.  I'm so thankful for this job, but I still think of myself as a
tile setter and that's what I would be doing today if I could.

		My second prayer was that God would put me in a place where I could
prevent even one person from going through the health situation that I
had, and I feel like that opportunity's here today at these hearings. 
No worker should go through what I did for a job.  I'd like to say I'm
lucky because I'm back on my feet, I found a new career, and I'm here
today.  But the truth is I don't know what's going to happen next.  My
voice is raspy from the dust, and I'm always a little congested.  I do
not -- and I do not know what the long-term prognosis is.  And on top of
that, I still have a lot of anxiety about what might come later. 

		I kept my union card even though I no longer work in the trade because
in my mind I'm a tile setter.  Because when no one would do anything to
help me, I still had the camaraderie, friendship with my brothers and
sisters and because I always hoped there would be a way that I could
help generations coming up behind me.

		I am proud to be here today sitting alongside my brothers to help OSHA
do just that.  My prayer is that you adapt these regulations before it's
too late for future generations of workers and you consider the
recommendations by the union and the Building Trades that they have made
in order to make more protective of workers.

		In closing, I -- you know, I consider myself a strong person.  And I
got to know these gentlemen behind me this weekend who are also strong
men, who I saw break down this weekend when they started to tell their
stories.  For me it was a realization that I wasn't the only one going
through struggles with silica.  I wasn't alone.  That's scary.  That's
real scary.  None of us signed up for this, but we're here to share --
here today to share our message.  We aren't the only ones.  I hope you
realize that.  Thank you.

		JUDGE PURCELL:  Mr. McNabb, thank you very much for that testimony.

		The next person on the agenda is Tommy Todd.  Mr. Todd, if you'll
have a seat up here and state your name for the record?

		MR. TODD:  Excuse me.

		JUDGE PURCELL:  Take your time, Mr. Todd.

		MR. TODD:  Excuse me.  I'm sorry.  I --

		JUDGE PURCELL:  That's all right.  Whenever you're ready.

		MR. TODD:  I mean, after hearing that, just -- My name's Tommy Todd. 
I'm a 62-year-old bricklayer.  As a matter of fact next month I'll
become a 40-year-old -- a 40-year member from Local 5 Oklahoma,
Arkansas, Texas, and that's quite an accomplishment for me.  I -- I'm
pretty proud of it.  I'm sorry.

		You know, as an apprentice I considered myself pretty fortunate and as
a matter of fact pretty lucky.  I had a wife and a newborn son, and I
landed a job at Fort Sill, Oklahoma.  It was two years as a --
remodeling barracks, and it was all inside.  I had a steady paycheck
every week, so I mean, I was pretty lucky.  It was laying brick and
block and glazed tile, and the cuts were made with wet blades mostly,
but there was dry cuts as well.  But what I remember most was the
expansion joints cut in the interior floors and the quarters were tight
and the rooms filled with the dust.  And I never had problems with
allergies or sinuses before in my life, but all through that job my nose
ran and I sneezed and coughed and still to -- do today.  

		And as a journeyman, my tasks were to lay out the walls and build
leads out of brick and block.  I never -- didn't -- well, I didn't
never, but I didn't run the saw much as an apprentice -- I mean, as a
journeyman, I -- but you didn't have to run the saw because you run it
-- worked close enough by it that the dust off of it come across anyway.
 If the sawdust didn't get you, the mixer -- the dust off the mixer as
it was running came running across the job sites.

		And I remember when the wet/dry blades come out.  Those things, we'd
fill the water barrels up and run the saws and the barrels'd run out and
in Oklahoma, man, we was -- it was go man go, whatever it took to get
the job done.  We laid the blocks -- bricks and blocks as fast as we
could, and we did the jobs, put them up, and put them up right.  That
made the contractors proud of us and kept our jobs.  So I was a -- I
made a hand and I was a mechanic too.  I never was without a job.  When
there was a job around to have, I was on it.  

		And I loved going to work in the morning.  I was -- I showed up to
work 15 minutes, sometimes 30 minutes early every day.  Get my tools out
and drink coffee with the old timers and BS with them, and find out --
sometimes even help them carry their tools to the work site, and I loved
working with my tools.  And, you know, I just took it as a grain of
salt, the dust.  I never thought it was harmful or anything.

		We'd -- and we'd do jobs out in the middle of nowhere with a -- we
towed our own water, truck it to the sites, used gas-powered tools,
generators.  Saws were run -- were powered the same way.  And the water
was used to keep the dust down, control the dust.  

		I've never worked on a job that I can remember that didn't have a --
the saw didn't have a set-up for, you know, that wasn't set up for water
or a water hook-up.  And when those diamond -- dry blade diamond -- dry
wet/dry blades come out, we used them, like I said, to -- the -- when
the -- run out of water there was no need to stop.  We just kept going. 
And then the -- they come out with the gas-powered, shoot, the
contractors thought those things were a gold mine.  We'd -- they'd put
the dry blades on them, set them up on the scaffolds and, shoot, or
maybe a five-gallon bucket of water.  They didn't have to send the cuts
down.  We'd -- they were making money hand over fist. 

		And dust'd roll down the walls like a rain off, kind of -- off the
water falls.  But like I said nobody ever thought anything about it.  I
didn't.  If I'd known it was hurting me, you know, or killing me, shoot,
I'd have done things a lot different, and I had no idea back then.

		And then mid to late '90s I went to work for the local union as a
field rep and organizer and, you know, you see -- you could tell the
difference between the union and non-union jobs.  As dusty as the union
jobs were, you could spot the non-union jobs a mile up the road. 
There'd be, like, a cloud of dust over them.  And they took advantage of
their employees.  Poor guys, I mean, in my opinion.

		These regulations would really level the playing field.  Everybody
would have to play with the same ball.

		And then about the time I went to work for the local union, that's
when I noticed that I was having problems with my breathing.  I never
had any problem before except my sinuses, but I started getting
short-winded and I'd get colds and the flu.  Every time something'd come
around I'd get it.  Couldn't shake it.  It'd take forever to get rid of
it.  I'd go to the doctor and have to get antibiotics to knock it out.

		JUDGE PURCELL:  Mr. Todd, when did you begin working for the union?

		MR. TODD:  Pardon?

		JUDGE PURCELL:  When did you go to work for the union.

		MR. TODD:  It was in '98.

		JUDGE PURCELL:  Okay.

		MR. TODD:  '97, '98.

		JUDGE PURCELL:  And have you continued to work as a bricklayer since
then?

		MR. TODD:  No, sir.  I had to retire.  I was going to get to that --

		JUDGE PURCELL:  Okay.

		MR. TODD:  -- in 2010.

		JUDGE PURCELL:  Didn't mean to cut you off.  I just want to make sure
the record's clear.

		MR. TODD:  Okay.

		UNIDENTIFIED SPEAKER:  Working for the union.

		MR. TODD:  Pardon?

		UNIDENTIFIED SPEAKER:  You were working for the union.

		MR. TODD:  Yeah.  While I was working for the union that's when I
noticed I couldn't do what I used to do.  The -- I was athletic.  It --
they was  -- I could run like a deer.  I was kind of proud of that, you
know?  I --

		JUDGE PURCELL:  Have you been diagnosed with silicosis?

		MR. TODD:  I had lung cancer.  I fell -- I had a -- I'd fallen and
messed up some vertebraes in my neck, and the doctor ordered an MRI to
assess the damage in my neck, and they found a mass in my upper quadrant
of my lung.

		JUDGE PURCELL:  When was that?

		MR. TODD:  That was in 2007.  And he waited a few months and ordered
another MRI, and it was lung cancer.  And he said it was related to   
occupational --

		JUDGE PURCELL:  Exposure to dust?

		MR. TODD:  Yeah.  And they removed it and I tell you what, it's -- I
had to retire early.  It didn't just cost me my benefits, part of my
benefits, but it, you know, it took away the job that I loved, and I
thought was pretty beneficial and meaningful, but I wasn't doing a good
job out there.  And it's --

		JUDGE PURCELL:  Anything -- 

		MR. TODD:  -- pretty --

		JUDGE PURCELL:  I'm sorry.  I didn't mean to cut you off. 

		MR. TODD:  It's --

		JUDGE PURCELL:  Anything else you want to add to that?

		MR. TODD:  It's pretty devastating to -- I just, I mean, to my wife
and, you know, you -- there's a lot of things that go through your mind
when you're sitting there and thinking.  I mean, I don't want to get
into all that.  It's irrelevant, but anyway, you know, it's -- you work
hard all your life and besides that it's not just me.  I -- there's --
I'd like to add something else.  

		I got a good friend, Richard, he's worked over 40 years.  He's 77
years old.  He'd went to work in Michigan back in the '90s and -- on a
jail up there and was working inside, crazy things like I did, run a
Quickie saw.  I'd cut out gables with Quickie saws because it was
quicker.  Made the contractor more money.  Richard did the same thing,
was cutting -- just dry cutting blocks because it was quicker, making
the contractor more money over a long period of time.  

		He got flu-like symptoms, and it kept getting worse and worse, and
when the job was over he went back -- come back home to Lawton.  We were
working together on a job at Wichita Falls, Sheppard Air Base, and
Richard was so sick, but he had to work like the rest of us, and he was
coughing up blood on the scaffold, so he went home and went to the
doctor, and the doctor diagnosed him with lung cancer and recommended a
lung surgery, and they removed one of his lungs.  And Richard got along
fair for a while, but the last few years Richard's suffocating to death.
 Before I got on the plane to come here, I checked on Richard.  You
know, I take care of Richard every once in a while.  I go by and see him
and do what I can to look after him.  I --

		JUDGE PURCELL:  Well, thank you very much for your testimony,
Mr. Todd.  I appreciate you coming here today and hope you have a safe
travel back.

		MR. TODD:  Thank you, sir.

		JUDGE PURCELL:  The next individual testifying, Mr. Sean Barrett. 
Mr. Barrett?

		MR. BARRETT:  Good afternoon.  My name's Sean Barrett.  I'm a terrazzo
worker and a member of the BAC Local 3 in Massachusetts.  I joined the
union in 1995 as an apprentice focused on terrazzo work.  Until a couple
of months ago, my phone would ring off the hook with calls to work on
projects.  I take a lot of pride in my work and I love my job.  I love
knowing that I've taken aggregate, sand, epoxy and turned it into
something lasting and beautiful like the moving walkways at Logan
Airport, the Mohegan Sun Casino.  I was always there.  If it was big or
it was difficult, I was there.

		We have a lot of exposure to silica dust in my trade from the dry
grinding on the floor on the first few passes to the pouring of the sand
and last, but not least, standing alongside apprentices and finishers
who mix the terrazzo for us.  We do what we have to do to get the job
done, and we do it with the tools that they give us in the condition we
receive them in.  All the equipment I use comes with dry vacuums --
filters, water spigots, external vacuums, everything that's there to run
a safe job site.

		The filters are supposed to be changed on a schedule of hours, much
like if you bought a brand new car and it said after 3,000 miles, change
your oil.  I've been told by contractors on jobs to take the filters off
and bang them out rather than replace them and knock all the dust back
into the air to save a couple of dollars.  I've also been told when the
pump stopped working, rather than replace the $20 pump, to poke a hole
in a milk crate and stick it on some blocks next to you.  This doesn't
solve the problem, and it certainly doesn't protect anybody.  It's like
getting a flat tire in your car and sticking a piece of duct tape on it
and seeing how far you get.

		Common sense tells you to change the filters and the schedule is to
keep the equipment working correctly.  Like I said, changing your oil
regularly, stuff like that.  You wouldn't take your kids to the dentist
and have their teeth cleaned and then tell them not to bother brushing
their teeth till their next visit a year later.  You just wouldn't do
it.  We're talking about filters, not thousands of dollars in machinery.
 Small costs.

		If employers give us what we need to keep the vacuums working, it
actually improves production.  If the vacuums are working properly, you
can grind right up until 3 o'clock in the afternoon.  If they're not,
you have to stop at about 1:30 and go back and sweep everything you
ground for the day, again setting it up in the air and defeating the
whole purpose of the system.

		A few years ago I started noticing that my breathing wasn't what it
used to be.  My girlfriend could hear me wheezing at quiet moments at
home.  I'm only 41 years old.  I was everyone's hero until June 4th.  I
found myself slouched over the machine, and the guys on my crew all came
over to make sure I was okay.  I went outside to get some fresh air, and
the next thing I knew I was sprawled across a pallet full of nails.  I
went to the hospital.  They gave me three breathing treatments.  I think
it usually takes about one to set a normal person back right.  

		The doctor there told me that I should probably seriously consider
changing my careers and seeing some specialists.  That wasn't good news
for me because this is my job.  It's what I want to do, and it's all
that I know.  

		I called Brigham and Women's Hospital in Boston, and I asked to speak
to the best chest guy available.  I was surprised.  They got me right
in.  The doctor there said my symptoms sounded like silicosis.  I was
devastated, but the scans didn't show the telltale signs.  The doctor
told me since the only thing it could be linked to was industrial asthma
brought on by silica, he can't tell me my future prognosis.  He can't
tell me anything.  It all depends on my exposure to silica dust.

		When I went to Brigham and Women's, they measured my breathing
capacity.  It was 54 percent of what it should be.  I've seen some
improvement but -- in that number but it's still not at what should --
what it should be for a man of my age and my athletic background. 
You're probably wondering how this happened to a 41-year-old terrazzo
mechanic.  My employees [sic] didn't provide me with a safe workplace,
nor did they care to.  They did not provide me with the equipment
properly maintained.  They wouldn't allow me to maintain it.

		I can assure you that everything in the notes on this Table 1 are
completely doable.  And feasible as well.  And I can also tell you that
they're all common sense, and anybody that tells you they don't
understand them is lying to you.  Flat out lying to you.

		I haven't been able to work in my chosen trade in months since I got
sick on the job, but I'm not taking it lying down.  I called a company
from New Jersey and invited them to come up and operate out of New
England and allow me to do their estimating and their bidding.  But it's
tough.  Now I'm working in an office.  It's a good job, and don't get me
wrong, I'm glad to have it, but it isn't what I want to do.  It doesn't
financially take care of me close to what it was, what I was making
before.  It's great to have it, but it's just -- it's not my life, you
know?

		As a project manager, I write now, and an estimator, the price of
these safety devices in, and my bids are just as competitive, and nobody
even knows I'm bidding them in.  So we're not talking about something
astronomical here.  Nobody's even noticing that I'm doing it.  I mean,
you can go to Home Depot or Granger and get a box of filters or
respirators for next to nothing in the scheme of what these jobs cost to
do.  

		I hope these new standards will be in place so that I can go back to
the job I love and these young kids that are coming up behind me can do
the craft that I love or this is going to happen to them and you need to
protect them.  They need your help because nobody's going to do it and
they're going to keep dying.  That's it.

		JUDGE PURCELL:  Thank you very much, Mr. Barrett.  Appreciate your
testimony.

		The next witness will be Dennis Cahill.  Mr. Cahill?

		MR. CAHILL:  Good afternoon.  My name is Dennis Cahill, and I'm a
bricklayer from Arizona.  I'm here to tell you that construction sites
today are far dustier, dirtier, and vastly more dangerous than they were
when I started in this trade.  The standards have not kept up with the
technology, and it's killing people like my brothers back here, Sean,
Dale, and Tommy.  

		The trade has changed a lot since I chose to leave college and become
a bricklayer in 1959.  And I chose to be a bricklayer in 1959.  I left a
college career that was totally paid for and very fortunate.  Like my
brothers back here I too was an athlete, and I was going to school free.
 But I wanted to be a bricklayer like my father, my grandfather, and my
great-grandfather.

		I know there's a theory out there.  It goes around these hearings that
I'm sick now because I started working in the trade before the current
1971 -- anyways, the 1971 standards came into effect.  That theory's
foolish.  I remember that as an apprentice and a young bricklayer, if
there was something wrong with a wall, the foreman'd come to me and say,
Cahill, get your hammer and chisel and follow me.  Well, a hammer and
chisel doesn't make very much dust.  But a young apprentice today in a
similar situation, foreman comes to him and says, Cubby, get that
Quickie saw and follow me.  And he follows him right into a cloud of
dust.

		In the early days of my career, I never saw a masonry saw that was not
water-covered.  We couldn't.  The blades'd fall apart if they weren't
wet.  Since the wet/dry blade came into effect, and you heard it from
some of the other testimony, hey, the water stops going, we keep right
on cutting.  And the dust just gets worse and worse.

		I think the dusty, dirty conditions are mainly the result of
development in the rapid adoption of the wet/dry diamond blade.  And
hand-held masonry saw even more so --  The one that they call the
Quickie or chop saw.  And these weren't around until the mid-'70s so
they -- the fact that I've been in the trade for a long time, I got my
issues later on in life.  

		When I was working in that trade, I did all kinds of work, including
lots of work in the smelters as well as large commercial jobs.  And the
kind of work that we did can be easily controlled but it has to be a --
the dust has to be eliminated at the source because there's people
within yards of the person that's making the cuts that can -- that will
be affected.  They wouldn't be wearing masks like the man or woman
actually making the cuts.  

		In the 1990s, mid-1990s I was lucky.  The Plumbers' Union in Phoenix
had a testing for silicosis, and I already had some symptoms of asthma,
and I decided, let's take advantage of this screening.  Well, I had the
screening, and I was diagnosed with silicosis.  Very fortunate.  I was
diagnosed with silicosis early, and this is so important, early in its
development.  I've been alive now for over 15 years.  Obviously I spend
a lot of time on oxygen, all night long, and most times during the day
if I'm under a stressful situation like this is because I -- this -- I
feel very strongly that we have to protect the young people coming up. 
I wouldn't have -- well, I didn't drive, but I wouldn't have come all
the way from Arizona to see all you folks today.  It's a long trip for
an old man with silicosis, but I have to be here.  We have to protect
the young folks that are coming up.

		Like I said, I do attribute my illness to the Quickie saw.  And I have
to tell you how much I love my trade.  At 75 it breaks my heart that I
still can't work more than an hour or so --  Two years ago, and for
those of you that don't speak Italian, I built myself two forno; one at
my permanent home in Phoenix -- in Tempe, Arizona, and another one at my
mountain home.  Forno is Italian for wood-fired pizza oven.

		I've been in the masonry business for a long time.  I worry because
nearly all of us have family members and friends that suffer and are
dying from silicosis diseases.  I worked a -- for a long time along my
brothers, and when I'm talking about brothers I'm talking about these
guys here, but I'm also talking about my brothers like we share the same
father and mother.  They suffer from similar symptoms.  

		I worry about them.  I worry about my son, Jimmy, who followed me into
the trade.  I worry about my nephew who followed his father into the
trade.  And I worry about countless friends.  Many people think they
have other diseases that -- related to tobacco smoking because they may
have smoked.  I did not, as a matter of fact.  The simple fact is, they
probably have silicosis and thinks it's something else.

		Silica is everywhere on the job in nearly all the material that our
members work with.  But it's a controllable substance, at least down to
the levels that OSHA is proposing in these standards.  The fact that
it's everywhere doesn't mean it shouldn't or couldn't -- can't be
contained.  And the fact that we are going to contain it using methods
that some contractors have avoided paying for in the past does not mean
that the construction industry will become extinct if we do.

		My brothers on the panel have done well in telling you their problems.
 I thank you for the opportunity to be here, and I thank God that I'm
still alive, and I owe a lot of that to early detection of my silicosis.
 Thank you very much.

		JUDGE PURCELL:  Thank you, Mr. Cahill.  Appreciate you coming today.

		The next witness is Mr. James Boland.

		MR. BOLAND:  Thank you, Your Honor.  My name is Jim Boland, and I'm
President of the Bricklayers and Allied Craftworkers Union.

		Back in 1967, a year before he was assassinated, Dr. Martin Luther
King warned us all.  He said, "There is such a thing as being too late."
 Well, it's too late for these five men.  But we can still protect the
next generation.  

		When OSHA enacted the silica standards back in 1971, there was finally
a way to address the fact that thousands of workers were dying from
silica disease.  But it wasn't enough.  And the job isn't done.  I know
the story because when I came to this country back in 1970, it was a
great time of change.  I was a young man looking for a job.  I chose to
be a bricklayer.  I could not have predicted back then how important
OSHA would be in the life of a bricklayer.

		It's been four decades.  Four decades.  Workers are still getting sick
and dying form silicosis and there's no denying it any more.  Enough is
enough.  Workers in the construction trades are counting on us to enact
the new standards.  They need protection now.  As president of the
Bricklayers Union, I speak for the workers who will benefit from these
regulations, the thousands of workers in the masonry trades, union and
non-union alike.  

		Construction is a dangerous industry.  There are hazards lurking in
every part of the job, and we signed on knowing there were risks in
doing our jobs and we accept that.  But we don't accept silica diseases.
 Dust is the great enemy of the working person.  Essentially every
material used in our trade exposes workers to silica dust.  The leading
health and safety hazard on our jobs is silica dust.

		At the Building Trades conference very recently, Secretary Perez said,
"Silica is like tobacco.  We've studied it for too long, and it's time
to do something about it."  This is what we need to do about it. 
There's nothing unreasonable about the standards.  Even at lower limits
there remain significant risks to workers.  But it's a huge step forward
and it will save thousands of lives.

		To industry leaders I say the new rule standard is a workable
solution.  It's not a penalty.  There is no reason we can't come
together to conquer the silica threat that continues to plague workers. 
The Bricklayers Union already collaborates with responsible contractors.
 Tom Ward showed you earlier that not only can it be done but it is
being done.  But these men sitting here today also told us that new
rules are needed to protect workers on all job sites.

		One example of workers and employers coming together is articulated in
this coat -- quote, and it's from the International Council of Employers
in 1999.  And I quote, "The safety of BAC members," that's our members,
"is of prime concern to ICE members as we consider our employees our
greatest assets.  We recognize the health risk of silica exposure, and
we encourage our contractor members to establish dust control programs
immediately that employ engineering controls, limit dry cutting where
possible, and promote safe work practices."  I continue their quote, "We
are also anxious to work with our labor partners and OSHA to develop a
silica standard that will ensure the safety of our workers and the
competitiveness of the union masonry contractor and to educate union
contractors and members on the hazards of silica exposure."

		Bricklayers put up buildings with pinpoint precision.  So much is
asked of us, and we deliver it all the time, without room for error. 
Every job is different.  They're all different, and each one presents
new sets of challenges.  But the tasks and the tools and the controls
are the same.  We are skilled and adaptable, and we master our trade
over and over again from job site to job site.  But our employers must
give us what we need to do our job safely and healthily.  We can and we
will learn, train and implement.

		Now, our opponents on this standard keep talking about "in the real
world."  Tom Ward and Sean Barrett told you they're already
implementing the new standards with success in the real world.  It's not
hurting production or pocketbooks.  Enough excuses.  All workers should
have the option to have medical surveillance to detect disease early. 
They should expect that these medical matters are kept confidential and
there should be provisions that protect from discrimination if they are
diagnosed with silica-related disease.

		The people working in the masonry trades, they're fathers and their
brothers and sisters and best friends and neighbors.  They're these men
here on the stage with me today.  So it's time to stop stalling and
start protecting them.  I want to thank you very much for your time and
consideration, Your Honor.

		JUDGE PURCELL:  Thank you very much, Mr. Boland.  For the record, I
note there are two ladies who accompanied the panel today.  I don't know
if you'd like to identify them for the record.  I believe Anne Kearse
and Caryn Halifax are with you.

		MR. BOLAND:  That's right.  They --

		MS. KEARSE:  Yes, Your Honor.  We don't plan to provide testimony
today, but Anne Kearse and Caryn --

		JUDGE PURCELL:  Okay.  But just for the record, I wanted to make sure
that you're noted as being here. 

		Also, before your presentation, you had provided me with a copy of
several pages which I believe is the PowerPoint presentation that was
running throughout the testimony of the various individuals who came
here today.

		And I appreciate it.  I'll mark it as Hearing Exhibit Number 101, and
I'd asked Mr. Ward if the video presentation had been printed out as
well.  Is that included in this exhibit?

		MS. KEARSE:  We -- it's not printed, but we have provided it this
morning on a jump drive.

		JUDGE PURCELL:  In electronic format?

		MS. KEARSE:  Yes.

		JUDGE PURCELL:  Okay.  I'll mark that as Hearing Exhibit -- well, I'll
make that 101, and then the printout of the PowerPoint presentation
Hearing Exhibit 102.  

(Whereupon, the documents referred to as Hearing Exhibits 100 and 102
were marked and received in evidence.)

		JUDGE PURCELL:  And did you have any other exhibits you wish to offer
at this time?

		MS. KEARSE:  Not at this time, Your Honor.  Anything else we'll do in
post-comment.

		JUDGE PURCELL:  Okay.  Thank you very much.

		With that, let me find out how many questions there are in the
audience.  One, two, three.  Okay.  

		If you want to come down and start, Ms. Trahan?  State your name and
affiliation for the record.

		MS. TRAHAN:  Thank you, Your Honor.  Chris Trahan, the Building
Trades Department. 

		I want to thank you all for coming and testifying today.  It was very
important, and you helped us understand some things that we hadn't heard
yet in these hearings, and I do have a few questions.  

		President Boland, many industry groups have argued that the current
standard is good enough and that OSHA should just focus its efforts on
enhanced enforcement of the existing standard.  Do you believe that
enhanced enforcement is sufficient to protect workers from significant
risk of disease from exposure to silica?

		MR. BOLAND:  No.  We know enforcement is important, but OSHA has shown
in the proposed standard and supporting materials and NIOSH has
consistently shown that there is significant risk to workers, as I
mentioned earlier, even at the proposed exposure limit.  And that's
going to be 80 percent lower than the current limit, and workers are at
risk now and they will continue to be at risk.  But I said this is a
huge step forward and we can no longer delay taking this step.  

		And there's -- the current provision doesn't include either medical
surveillance, compliance options, and there aren't provisions for
training currently, and we need all this as well to protect our workers.

		MS. TRAHAN:  Thank you.

		And this is a question for Mr. Barrett.

		MR. BARRETT:  Uh-huh.

		MS. TRAHAN:  The terrazzo professional.  You -- Mr. Barrett, you
spoke a little bit about Table 1 in your testimony.

		MR. BARRETT:  Uh-huh.

		MS. TRAHAN:  The Construction Industry Safety Coalition has criticized
the inclusion of the notes in Table 1, arguing that OSHA should say, for
example, cut wet without any further specifications.  Do you think that
kind of general direction would ensure adequate protection?

		MR. BARRETT:  No, I don't at all.  And like I said before, these notes
are common sense.  It's almost a checklist, if you will.  You know,
people forget things.  You keep those notes in there and it keeps
everybody in check.  You go down the line.  It's not hurting anybody and
it's nowhere near over the top.  I mean, it's -- this is very common,
everyday stuff.

		MS. TRAHAN:  Okay.  Thank you.  Another thing that's come up during
these hearings is that for the basis of risk analysis OSHA uses the
average work life of 45 years.  It's been challenged by some of the
participants in this hearing and commenters who've written in to the
record.  Do any of you have colleagues who have worked longer than 40
years in your trade?  And there's -- I don't know if there's a
microphone.

		JUDGE PURCELL:  And, for the record, a show of hands by one, two,
three, four, five, six of the  -- all the presenters.

		MS. TRAHAN:  Okay.  Thank you.

		And, Mr. McNabb, the -- my -- this question is for you.  Without
strict confidentiality protections for medical information and
anti-retaliation protections, do you think workers will participate in
medical surveillance?

		MR. McNABB:  Absolutely not.  You can get black-balled very easily by
having that information given to employers, so I would not.  I do
believe that it's important that there's early detection of this, so
three years I think is well within, you know, because I started feeling
effects early.  And I just didn't know what it was.  So --

		MS. TRAHAN:  I had -- to follow onto    that --

		MR. McNABB:  Sure.

		MS. TRAHAN:  -- some people have suggested in the course of this
rulemaking that perhaps that medical surveillance shouldn't kick in for
20 years or after at least 20 years working in the construction
industry.

		MR. McNABB:  Yeah.

		MS. TRAHAN:  I was wondering if 20 years in is the right time to start
medical surveillance.

		MR. McNABB:  Absolutely not.  If you have worked a year in the trades,
I guarantee you that there's some exposure to silica dust.  Like I said,
early in my career I had symptoms.  I didn't know what it was.  I
thought it was just, who knows, you know?  At night, have trouble
breathing and I just -- over the years it -- it's compounded itself. 
It's progressive.  But early, early detection is important.

		MS. TRAHAN:  Okay.  Was there anyone else who wanted to --

		MR. BARRETT:  According to the standards that we --

		JUDGE PURCELL:  Mr. Barrett, if you would identify yourself for the
record?

		MR. BARRETT:  Oh, Mr. Barrett, Local 3.  According to their 20-year
standard, you wouldn't even find out I was sick until next year.  I was
sick a year ago, and it probably showed five years before that.  So, I
mean, that's ludicrous.  That is absolutely ludicrous.  It's like
smoking cigarettes.  Some people might get sick with cancer after one
year.  Some people with 20.  There's no way of knowing unless you check.

		MS. TRAHAN:  Thank you.  And just to switch gears a little bit we've
-- there's -- when OSHA does a rulemaking, they have to consider
economic feasibility.  And that's part of what they need to do.  So they
talk about productivity costs associated with the use of controls. 
Penalties, as it were.  When -- and again, this is for anyone who'd like
to answer.  In your experience is there any productivity gains or
benefits that you can describe?

		MR. BARRETT:  I can.  These machines, when running correctly, when --
as they are when they're sent from the shop, the vacs are regulated, the
filters are running good.  You can run that machine until 3 o'clock in
the afternoon, shut it off, and go home.  You know what I mean?  If it's
not, you constantly got to keep going back and cleaning up what you
already did.  You're losing productivity.  And over the course of, you
know, think about it, the course of a month you're talking 40 man-hours.
 You're talking a -- paying a guy for a week.  It's -- that's not the
case at all.  You would actually increase productivity by having the
right equipment there and not have people have to keep coming back or
jimmy-rig little things to try to get by.  Just do it the way it was
designed, and you'll get a lot farther.

		JUDGE PURCELL:  And for the record, again, that was Sean Barrett
responding.  When questions are asked and she's not directing a question
to a particular individual, if you would please just state your name for
the record?

		MS. TRAHAN:  And I believe Tom Ward had something he wanted to say --

		JUDGE PURCELL:  Mr. Ward?

		MS. TRAHAN:  -- in the back.

		UNIDENTIFIED SPEAKER:  State your name, Tom.

		MR. WARD:  Tom Ward.  In the short video I showed you guys, you could
take a look at it and see, a wet block takes exactly the same amount of
time to cut as a dry block.  The other benefit is the workers know
what's right.  A lot -- training has been ramped up big time for the
last six years.  They know.  So when they're on the job dry cutting they
know -- it affects morale as well when they know that they're actually
-- they have some safeguards and they're protecting their lungs.  So
there is an increased productivity when you have a good morale then on
the job.

		MS. TRAHAN:  Okay.

		MR. WARD:  Thank you.

		MS. TRAHAN:  There's -- you -- there's actually -- 

		JUDGE PURCELL:  There's a --

		MS. TRAHAN:  There's a mic.

		JUDGE PURCELL:  -- hand-held microphone if  you --

		UNIDENTIFIED SPEAKER:  Oh.

		JUDGE PURCELL:  -- want to pass that around rather than.

		MR. McNABB:  You know, I'm -- and I'm Dale McNabb.  Just on the
question of productivity, this is not narcissism, this is not -- this is
-- I was good at what I did.  I was fast.  I was good as two guys, and
that's -- if you want to call Local Michigan you can find that out.  So
they lost someone that was productive.  Someone that, you know, did a
lot of work.  I mean, I -- it seems like a no-brainer, you know?

		MS. TRAHAN:  And do I have a little bit more time, Judge?  I've got a
few more questions if it's --

		JUDGE PURCELL:  Go ahead.  We've got time for a couple more.

		MS. TRAHAN:  Thank you.

		There's -- have any of you worked for more than one contractor in your
career?

		JUDGE PURCELL:  Everyone that testified has.

		MS. TRAHAN:  Have any of you worked for more than three contractors in
your career?

		JUDGE PURCELL:  I see five hands, so Mr. McNabb has not.

		MS. TRAHAN:  Is there -- has anyone worked for more than 10
contractors in their career?

		JUDGE PURCELL:  Three hands, and let me see if I can get this right:
Mr. Boland, Mr. Todd, and Mr. Cahill.

		MR. CAHILL:  Yes.

		JUDGE PURCELL:  Sorry.

		MS. TRAHAN:  Okay.  Thank you.

		Several commenters have suggested that variability from job site to
job site will make it too difficult for engineering and work process
controls to be used or that they will cause additional unanticipated
hazards.  For instance, sites may not have water or power or that the
use of engineering controls, particularly water, freezing weather will
cause additional hazards on the job site.  And I think, Mr. Todd, in
your opinion will engineering and work practice controls translate
across sites?

		MR. TODD:  Yes, ma'am, they will.

		JUDGE PURCELL:  Mr. Todd, hold the mic up, please.

		MR. TODD:  They will.  The work -- excuse me -- the work is the same
regardless.  You know, it's -- we do it.  If we use -- if we have to
haul the water in to mix the mud and then we use gas-powered tools or
generators to power the mixers and the other equipment if need be, so,
and as far as weather, you -- if it's freezing you can't -- below 28
degrees you can't make -- 28 and rising you can't work anyway.  And we
-- if the contractor decides -- has planned ahead to, you know, for
reasons to enclose or heat the mud or the water to, you know, to perform
the job, so --

		MS. TRAHAN:  Okay.  Thank you.

		MR. TODD:  And the same water and the gas-powered equipment's used to
control the dust for the saw, so --

		MS. TRAHAN:  Okay.  Thank you.

		MR. McNABB:  Can I answer that question too?

		JUDGE PURCELL:  Mr. McNabb, yeah --

		MR. McNABB:  Dale McNabb again.  What people don't understand is that
construction workers are the most resourceful people out there.  These
-- put into effect -- we're like MacGyvers.  If it's there we're going
to be able to do it.  So I -- when they say that they're unfeasible or
they -- there's always a way.  That's how these jobs get done because we
find a way.

		MS. TRAHAN:  I see. 

		MR. McNABB:  Thank you.

		MS. TRAHAN:  Thank you.

		JUDGE PURCELL:  Thank you, Ms. Trahan.  Oh, I --

		MS. TRAHAN:  I think Mr. Ward had something to --

		MR. WARD:  Tommy Ward.

		JUDGE PURCELL:  Mr. Ward?

		MR. WARD:  Just a quick one if I may, Judge?

		JUDGE PURCELL:  Certainly.  

		MR. WARD:  We -- we're the trial trades.  There's water in our
products.  We don't work in the winter unless we have winter condition
money put in the project.  I'm one of the fortunate ones that worked
year round.  I've been in -- on jobs every winter for the last -- for 19
of my last 23 years.  I can tell you it is doable.  And if you
understand the current standards in the hierarchy of controls which are
right now and then they're going to be when this one comes out, we are
to use engineering controls whenever feasible.  In those rare -- in
those cases where you just can't do it, proper PPE.  It's that simple. 
Thank you.

		MS. TRAHAN:  And, Mr. Ward, you're from Michigan?

		MR. WARD:  Yes, I'm from Michigan.

		MS. TRAHAN:  Thank you.  And Table 1 breaks tasks into durations of
four hours or less or four hours or more.  Is this scheme workable in
the masonry industry and do you know ahead of time how long certain
tasks will take on the job site and   who --

		MR. CAHILL:  My name is Dennis Cahill, and I spent most of my career
as a masonry contractor.  And if you didn't know how long the job was
going to take, there's a fair chance you wouldn't get the job.  You have
to estimate these things, and that's how you make your assessment, in
essence.  And if you really don't know how long the job's going to take
and you guess much less, you may not be running very many jobs in the
future because you go broke that way.  You have to know those answers
before you show up there.

		And I'd like to address the thing about the water and power on a job
site.  I've done jobs on the Navajo reservation where the nearest power
was 40 miles away and the water was just as far.  You truck the water
in.  Yes, if -- put it this way.  If there's no power on the job,
there's a good chance there's no cut-off saws that are creating dust
that you have to deal with.  And if there is, you hook them up to water
just like you do anything else.  So just the fact that a job site may
not have water and power now, it'll have one, for sure, probably both
when the job starts.  Thank you.

		MS. TRAHAN:  All right.  Thank you very much.

		JUDGE PURCELL:  Thank you, Ms. Trahan.  

		Next, Mr. Schneider?  Identify yourself for the record, please, and
identify your affiliation.

		MR. SCHNEIDER:  Scott Schneider.  It's 

S-c-h-n-e-i-d-e-r, with the Laborers' Health and Safety Fund of North
America.  Thank you very much for your testimony.  I really appreciated
it.  I just had a couple questions.  

		One of them is Mr. Ward talked about planning, and it seems like in
the scheme of things in addition to engineering controls that planning
really makes a huge difference in terms of what your potential exposures
are like, you know, if you plan properly you may have to make fewer
cuts, you know, to get the brick to fit, et cetera.  I don't know if you
could make a comment on that, or planning, like was just said to plan to
have water and electricity on the job.

		MR. WARD:  Sure.  My -- Tom Ward.  I had worked primarily for two
contractors.  One, 60-year-old company's been around forever, great
people, it was like family there, but they were old school, per se, and
we were addicted to the Quickie saw and cutting dry.  When I worked for
a more progressive contractor he sat me down in the interview and says,
Tom, guy from Detroit, you're -- the biggest problem you're going to
have is getting used to not having a Quickie saw on the job.  And in my
head I'm thinking, okay, how the heck are we going to put this thing
together?  And he said, you're going to become a much better planner,
son.  And we did.  

		If you're doing a corridor and you know you need 120 12's and 4's, you
put a guy on a wet saw and you production cut 120 12's and 4's. 
Manufacturers even in Michigan have block already with the electrical
outlet cut out for you so you don't even have to cut it yourself. 
Planning is key.  Thank you.

		MR. SCHNEIDER:  Okay.  Thank you.  Another question I had is, is in
construction trades a lot of the different OSHA standards require a
competent person, and we have proposed that -- and we in the Building
Trades have proposed that a competent person be required on jobs where
there's silica-generating tasks to make sure that the controls are
working properly and make sure everybody's doing the work properly.  So
I don't know if you could have a comment about the use of competent
persons on your jobs or the need for a competent person for silica
exposures?

		MR. WARD:  Sir, again, Tom Ward.  It would certainly help.  The
current standard says that companies are required to have a respiratory
protection program and they're to evaluate its effectiveness annually. 
When we do our fit testing, there are some guys that I would not even
hook up to our PORTACOUNT machine because their mask is so dirty.  And
we actually have to retrain them and get it in their head how serious it
is to care and clean for it.  So the competent person component would
help in my opinion.

		MR. SCHNEIDER:  Okay.  Anybody else, or --  Okay.  Thank you very
much.

		JUDGE PURCELL:  Thank you, Mr. Schneider.

		Additional questions?  Please identify yourself for the record and
state your affiliation.

		MS. SEMINARIO:  Good afternoon.  My name is Peg Seminario,
S-e-m-i-n-a-r-i-o, from the AFL-CIO, and I want to thank everyone on the
panel for coming today and your testimony.  As Chris Trahan said, it's
really very important and incredibly useful testimony for these
proceedings.

		A couple of areas I wanted to ask you about.  A number of you in your
testimony talked about bystander exposure on the job, that you,
yourself, or your co-workers might be involved or would be involved in
actual tasks that generated a lot of dust but that other workers were
also exposed to the dust.  Could you say a little bit more about those
kinds of operations specifically that would generate dust and who else
might be exposed?  And I know there's a number of different kinds of
jobs that you've been involved with, but Mr. Ward?

		MR. WARD:  Sure.  Tom again.  That actually goes back to planning. 
And the lack of planning will put a table saw or in most cases a Quickie
saw on the scaffolding to cut -- make a cut that's needed right now
instead of planning ahead for it.  I'm sorry.

		JUDGE PURCELL:  Thank you, Mr. Ward. 

		Mr. McNabb, did you have some --

		MR. McNABB:  Yeah.  I have a little bit more to put into that. 
Especially in my trade, tile, you do whatever you do to get the job
done.  So even though you may be a mechanic you are also susceptible to
dust too because you're sometimes, you know, in the morning you're
jumping out, you're helping to mix concrete because you're not standing
in the building waiting for them to bring you mud.  So even though, you
know, they want to say that maybe mechanics aren't getting the dust,
they are.  It just -- it -- I've been on jobs where I've had carpenters
say, listen, this dust is too real.  And they -- I think they have
called OSHA and no one ever came out.  And I said, you know, call them,
you know, so that someone would come out and change this.  So there's a
lot of, you know, not other -- not just us.  Other trades are going to
be benefited by this.

		MS. SEMINARIO:  So other trades would be working --

		MR. McNABB:  Oh, absolutely.

		MS. SEMINARIO:  -- on the job site at the same time --

		MR. McNABB:  -- Absolutely.

		MS. SEMINARIO:  -- that you are so it's not just in your craft or in
your trade.

		MR. McNABB:  Absolutely.

		MS. SEMINARIO:  Yes.

		MR. McNABB:  Yes, absolutely.

		JUDGE PURCELL:  Mr. Barrett?

		MR. BARRETT:  Sean Barrett.  In terrazzo, in the terrazzo industry you
use about a 900-pound machine to dry grind the floor.  And as I said
before, if those vacuums aren't polishing correctly or the filters
aren't working correctly, you know, 99 percent of the time you're in the
main lobby or the hallway of the building.  Every other trade has to
walk through the cloud to get in and out of the building to use the
outhouses or to go to the coffee truck or even go home at the end of the
day.  I mean, they have no choice but to walk through the dust.

		MS. SEMINARIO:  And so -- and on a related issue that has come up in
the proceedings has to do with what Mr. Ward referred to as the
hierarchy of controls, the requirement engineering controls be used for
substitution if you can't, but engineering controls in the work
practices and respirators as a last means of resort and there have been
some in these proceedings who have advocated doing away with that
hierarchy and relying simply on respiratory protection instead of
engineering controls.

		Mr. Ward, could you talk a little bit about the operations that you
showed in your videos; what those were and how much dust would be
generated in the area if there weren't the engineering controls?  It --
how effective are the controls at reducing the exposure in tuckpointing
and in the cutting operation?

		MR. WARD:  They're extremely effective.  In fact, we had to shoot
those a few times and limit the initial cut where you seen the dust
cloud because it smoked the whole room out and I -- we couldn't take the
shot.  That's why there was only a couple seconds of the actual initial
cut when they were cutting dry.  So they're extremely effective.  If the
equipment's maintained and turned on, it's extremely effective.

		MS. SEMINARIO:  And so if you didn't use the engineering controls,
there would be the full source of dust that was generated?

		MR. WARD:  You wouldn't have seen the guy cutting.

		MS. SEMINARIO:  Okay.  And one other area just to ask you about that
you spoke to, Mr. Ward, and others as well and that has to do with
training.  In some cases there was no training provided by employers,
you know, in other cases as you mentioned some of the contractors do
that training, and the union is also involved in training.  Could you
talk a little bit about the kind of training that's done and what kind
of training this standard should require?  What are the basic elements
that should -- of information that should be provided to individual
workers under the silica standard?

		MR. WARD:  Sure.  The first thing, to identify the hazard and
understand the health affects associated with that hazard and how to
control it.  Back to the hierarchy of controls.  It is the first thing
we are supposed to do.  Whenever feasible, eliminate the hazard.  PPE is
and always should be the last line of defense.  Switching it is going
backwards and that sounds like the behavior-based safety programs that
most companies buy into.  They're blame-the-worker programs,
essentially, and that's taking a step backwards.

		MS. SEMINARIO:  And should the training also be on the specific
controls of the job, the types of controls and how they are used to
maintain?

		MR. WARD:  Absolutely.  Yes, absolutely.  For every specific task the
guys up here are from a wide range of crafts and each -- we give them
basic awareness training on a variety of hazards but what we can't do in
our shop, in our training center, is give them site specific.  That
really is on the contractor.

		MS. SEMINARIO:  So if --

		MR. WARD:  So -- go ahead.

		MS. SEMINARIO:  -- a number of you raised your hands when you were
asked how many of you worked with numbers of different contractors, and
one of the issues in construction clearly is, is that the work may be
shorter term, workers may move from one job site to a different job
site.  Do you have any recommendations about portability of training
that workers could be, you know, provided training with some
certification and bring that with them to the next job?  And what kind
of training, could it be portable, and what would need to be
job-specific?

		MR. WARD:  Well, the respiratory protection training that members
attend regularly is portable.  We have a national database.  We're the
lucky ones.  We have those tools for our contractors to where they can
accept it.  If they come to our training center for an OSHA 30 or a
16-hour permit-required confined space course, the contractors that
we're signatory with accept that and endorse it and if they have that on
their card it's widely accepted.  But we -- none of us can get away from
the requirement of site-specific training, and we never should get rid
of that.

		MS. SEMINARIO:  And one last area, and that has to do with the
availability of equipment that has the controls actually built into it. 
And many of you have been working in this trade for a long time.  Could
you talk about what you've seen as far as the development and evolution
of equipment and the availability of controls for the work that is done
in your trade as to whether there's more equipment that's available now
that's being developed that's being built into the actual equipment?

		MR. WARD:  Sure.  There's more equipment available today than ever
before.  At the World of Concrete and Masonry show a couple months ago,
there were incredible pieces of equipment, one that was demonstrated by
the MCAA at the Bricklayer 500.  They brought a couple machines out. 
They were stationary table saws, but they were a little bit smaller than
the ones that we're used to and they were -- he had a couple ladies up
there cutting brick and you -- there was no visible emissions, and it
was a vacuum system.  It would be perfect for winter conditions.

		JUDGE PURCELL:  For the record, that was Tom Ward responding.

		MR. WARD:  Thank you.

		MS. SEMINARIO:  All right.

		MR. TODD:  Tommy Todd.

		MS. SEMINARIO:  Mr. Todd?

		MR. TODD:  You know, prior to the wet/dry diamond blades, the old
blades, masonry blades, were used to -- the water was used to cool --

		MS. SEMINARIO:  Right.

		MR. TODD:  -- the blades to keep them from warping and coming apart. 
And then later on they developed into keeping the dust down and they,
you know, technology changes constantly.  So new tools and equipment are
coming out daily in the masonry trade and other trades as well.

		MS. SEMINARIO:  All right.

		JUDGE PURCELL:  Thank you, Mr. Todd. 

		Mr. Cahill, did you want to add to that?  I know you talked about
some changes in technology and how it used to be.

		MR. CAHILL:  Yeah.  I'd like to speak for old bricklayers for a moment
here.  Yeah.  When I was a young man there were -- the only power tool
on the job was a mortar mixer, and my father before me the only power
tool on the job was the guy with the hoe in the mud tub.  So a lot of
things have changed.  And it was late in my career before I even saw the
cut-off saw, and I'm convinced that cut-off saw is the biggest threat to
young construction workers that I've seen in my time.  And I'm sure
there's other things that have come in are -- that are worse.  

		But I also can tell you that I've been on jobs recently, and there are
ways to make these cut-off saws work.  In other words, all modern
cut-off saws have a fitting to hook them up to water or to hook them up
to vacuums.  So they -- as these problems appear the technology tries to
solve the problem.  And I think we're doing a pretty good job, but if we
don't apply these answers to these problems they're not going to get
solved.  

		And the last thing in the world a contractor wants and, you know, I
was one for most of my life, is to have to spend more money on material
and new equipment, but at the same time what's the difference between
spending more money on the equipment you have so it'll last longer and
spending more money on your employees so they last longer.  Because I
can tell you an older bricklayer works smarter.  And just because your
apprenticeship might be three or four years doesn't mean you're done
learning.  You learn the rest of your life.  

		And I would like, as -- I would like to keep an employee as long as I
possibly could just like I want to keep that forklift running as long as
I possibly can.

		JUDGE PURCELL:  Ms. Seminario?

		MS. SEMINARIO:  Thank you.

		JUDGE PURCELL:  All right.  Any further questions?  All right. 
Mr. Hammock, please identify yourself for the record, your -- state
your affiliation.

		MR. HAMMOCK:  Thank you.  Brad Hammock with Jackson Lewis on behalf of
the Construction Industry Safety Coalition.

		JUDGE PURCELL:  Go ahead.

		MR. HAMMOCK:  Thank you all -- thanks to the panel for testifying
today.  

		I just had, to start, one quick question for OSHA.  I thought the
instructional video was very interesting.  Is that -- are we going to be
able to access that in the docket?  Can we -- will hearing participants
be able to look at that again at some point?  Is that the way that it --

		MS. RYDER:  Yes, you will be able to view that.

		MR. HAMMOCK:  Okay.  So is that going to be on regs.gov, or do we have
to go physically into the docket to push a button?

		MS. RYDER:  It should be available on line through   HYPERLINK
"http://www.regulations.gov/"  regulations.gov .

		MR. HAMMOCK:  Okay.  Thank you.  

		I just wanted to -- I was curious -- I -- about the show of hands on
how many different contractors you all have worked for over the course
of your careers.  Would it be okay if you all could kind of estimate for
the record how many contractors you've worked for --  And then I'm
curious, as a follow up, do you think that's -- the number of years that
you've worked is usual in a union construction environment?  I'm just
kind of curious.

		JUDGE PURCELL:  You want to start with Mr. McNabb, and then just work
down the line?

		MR. McNABB:  I had a --

		JUDGE PURCELL:  And identify yourself.

		MR. McNABB:  -- a total of 22 years in the field.  I worked for three
basic contractors.  Sixteen of those that was with one contractor. 
Probably maybe four with one and maybe a couple with the other.  But,
you know, there was times when there may be a week slow and you'd jump
to one company, but three companies I was basically with for my whole
career.

		MR. HAMMOCK:  Okay.

		JUDGE PURCELL:  And that's Dale McNabb.  Sean Barrett?

		MR. BARRETT:  Hi.  Sean Barrett.  I've been with four companies in 19
years; one of them for 11, and then the other three were broken up over
the last of them but terrazzo is a very finicky thing.

		MR. HAMMOCK:  Uh-huh.

		MR. BARRETT:  You know, usually they're big jobs like a complete
airport or something like that.  So whatever company gets the job out of
the three, there's only four companies in New England all together, so
whoever has the majority of the work, that's where you end up going to. 
There's only 22 guys in the whole union in New England.

		MR. HAMMOCK:  Oh, I see.  Okay.  Thank you.

		MR. WARD:  Tom Ward.  I had worked for three contractors throughout my
career, 19 years in the field.

		MR. HAMMOCK:  Thank you.

		MR. TODD:  There's three military installations in the area that I
come from.  There's Altus Air Base, Fort Sill Army military base, and
Sheppard Air Base, and of course there's schools, hospitals, and other
institutes in southwest Oklahoma and north Texas area.  And being a
union bricklayer, the -- all the jobs come up for bids and who --
whatever contractor comes into the area and bids that's the one I'm
going to go to work for.

		JUDGE PURCELL:  And that was Tommy Todd, for the record.

		MR. HAMMOCK:  So --

		MR. TODD:  Tommy Todd.

		MR. HAMMOCK:  So, you know, 40, 50, that kind of thing would you say?

		MR. TODD:  I would --

		MR. HAMMOCK:  I know it's hard to --

		MR. TODD:  Gosh.  Forty years of being a bricklayer.

		MR. HAMMOCK:  Oh.

		MR. TODD:  I would say just out bending your ear I would say 25,
maybe.

		MR. HAMMOCK:  Okay.  Okay.  Thank you.

		MR. CAHILL:  Good afternoon.  My name is Dennis Cahill.  And without
explanation, you're going to think I'm a real ne'er-do-well, but the
first year after I became a journeyman I worked for 11 different
contractors.  And let me tell you why.  When I was an apprentice, I was
indentured to a particular contractor.  He went bankrupt and then I
became indentured to what they called "The Committee," which meant that
I, you know, I could go in every now and then and talk to the apprentice
committee and say, hey, you know, I'm missing this particular skill.  I
want to go somewhere else.

		Then once I became a journeyman, and I was and still am very gung-ho
about our trade, every time a new job -- a new type of work came up that
we claimed, example almost none of you in the room, maybe Jimmy knows, I
laid cork.  I tuckpointed.  I did acid wash.  I worked in the smelters. 
I did gunite.  I did sandblasting.  I wanted to be as broad in my skills
as a bricklayer as I possibly could and, to be honest with you, my
loyalty was to my family and my union, not to any particular business
until I went into business for myself.  So I wasn't a ne'er-do-well.  I
just wanted to learn as much as possible.  Thank you.

		JUDGE PURCELL:  Thank you, Mr. Cahill.  Mr. Boland?

		MR. BOLAND:  Uh-huh.

		JUDGE PURCELL:  Did you want to respond to that?

		MR. BOLAND:  Gladly, Your Honor.

		JUDGE PURCELL:  Number of contractors.

		MR. BOLAND:  Yeah.  I'll be glad to respond, Your Honor, and I'll try
and put it in perspective.  I was born in Ireland.  I don't know if you
were in the room for my testimony.

		MR. HAMMOCK:  I was.

		MR. BOLAND:  I learned the trade working for my uncles who were
masonry contractors and builders in Chicago.  So I was in Chicago a
little bit when I was in college, and then when I emigrated here, I
lived there for four years.  I learned residential construction for
their companies, and when I left my uncles, I think I worked for one
other residential guy before I went to California.

		Now, one of the reasons that drove me to California were there were
two successive winters like this where I had spent every other -- at --

		MR. HAMMOCK:  Yeah.  I hear you.

		MR. BOLAND:  -- I spent a long time at home.  So I went out there, and
anybody that knows anything about masonry, it's a quite different
industry in California.  There's a lot of wood out there.  Like, one
eighth of our membership is in the Chicagoland, so there was tons of
work there.  We have a small union out in California, but nice climate. 
And what I tended to do there was to follow the big jobs in downtown San
Francisco.  So I went from being a residential brick mason to a guy who
did the block work in high rise buildings and the garages and then I
learned to set granite and set marble. 

		And what I liked about that is I lived in the city.  Jobs were close
to home, whereas if I wanted to follow some of the block work
religiously, I would have to go all around the Bay Area, commute, I saw
guys commute 150, 200 miles a day just to follow the work because it's
scattered.

		So I would say on a job-by-job basis, I worked at the trade in San
Francisco from '78 to '88 so I had to work pretty hard and pretty
consistently.  My children were all small then.  So I probably worked 10
contractors over the 10 years and sometimes back to one that I had been
with before --

		MR. HAMMOCK:  Uh-huh.

		MR. BOLAND:  -- depending on the project.  So that's how it worked out
for me.

		MR. HAMMOCK:  Okay.  That's very helpful.

		And one other question for the panel.  Is that -- the number of
contractors; is that in some way unique to a union construction
environment?  Is it -- do -- if you're in a non-union environment is
there -- you -- would you work for more contractors?  Does that make
sense, that question?

		JUDGE PURCELL:  Mr. Boland, you were nodding your head.  Maybe you
want to respond to that.

		MR. BOLAND:  Well, in my case in Chicago, it was highly unionized, and
so was San Francisco, so it wasn't an option for me.

		MR. HAMMOCK:  Uh-huh.

		MR. BOLAND:  People that get into the union and get established most
tend to stay with it.  You know, these have been a hard couple of years,
and we've probably lost some members, but my experience is once you
develop the skills, you like to stay with the better jobs.  But I
wouldn't want to speak for everybody else here.  They -- they're free to
speak for their own experiences.

		JUDGE PURCELL:  Any other responses?  Mr. Ward?

		MR. WARD:  Sir, I really don't know -- I've never been with anybody
else so I don't know what the non-union sector does, but --

		MR. HAMMOCK:  Right.

		MR. WARD:  -- you know, I want to point out this is going to benefit
more than just our membership.  It's not a union/non-union thing.  My
dad was a 20-year-old kid trying to feed his family.  That's what it's
about.  It's about the worker.  It's not a political statement or one
side or the other side.  It's about people getting sick and dying.

		MR. HAMMOCK:  Right.  And just for clarity, I'm just curious as to
whether the turnover rates and moving from contractor to contractor you
all think is different in a union or a non-union environment?

		JUDGE PURCELL:  Mr. Cahill?

		MR. CAHILL:  Yes.  This is Dennis Cahill.  I know for a fact it's
different because many of our benefits we'll carry with us wherever we
go.

		MR. HAMMOCK:  I see.  I see.

		MR. CAHILL:  And going back to what I told you it was like when I was
a young journeyman, I'd go down to the union hall and I'd ask them, is
there something new coming up?  Is there something going to happen in
the near future that the contractor's going to have to call a haul for
-- And I wanted to learn as much as I could, and I'm not the only one
like that.  But when you don't have the opportunities that we have in
the union environment sometimes you're stuck somewhere, where -- and you
may not have the skills or the --

		MR. HAMMOCK:  I see.

		MR. CAHILL:  -- confidence in yourself to move on.  But my environment
that I was raised in gave me the skills and definitely gave me the
confidence to move on.  I want to learn something different.  Guy down
the street's got a job that I've never done before.  I'm going there.

		MR. HAMMOCK:  I got --

		MR. CAHILL:  I think it happens more often in our industry than it
does in the open shop.

		MR. HAMMOCK:  Got it.  Okay.  Thank you very much.  I would just make
one final comment.  Mr. Boland, I think that after you retire from your
current position I would encourage you to go into storytelling.  You
have the best voice for storytelling.  I could just sit back there and
listen to you the whole time, so --

		MR. BOLAND:  It's the old Irish blarney.

		MR. HAMMOCK:  That's right.  I don't know what it is.  Thank you very
much for your time.

		JUDGE PURCELL:  Thank you, Mr. Hammock.

		Next questioner?  Please state your name for the record, spell your
last name, and state your affiliation.

		MS. NADEAU:  Yeah.  Liz Nadeau, 

N-a-d-e-a-u, and I represent the International Union of Operating
Engineers.  I'm not specifically familiar with your craft, but when I
was looking at the PowerPoint presentation, I had a question about the
impact of visibility on cutting hands, fingers, et cetera, because it
struck me as I was watching it that, my goodness, if it was really
dusty, how could you see what you were doing very well, and I didn't
know whether that affected sort of other safety issues.  You've got them
all, or you --

		JUDGE PURCELL:  Mr. Cahill is pointing   out --

		MS. NADEAU:  You got them all.

		JUDGE PURCELL:  -- that he has all 10 digits, so --

		MR. CAHILL:  Get all 10.

		MR. McNABB:  And I'm sure it does, but I, you know what?  Take one of
my fingers.  I'd rather have my lungs.

		MS. NADEAU:  No, no.  I understand that, but --

		MR. McNABB:  Yeah.

		MS. NADEAU:  But -- and I got that, I -- fully.  But my question is,
is if you can --

		MR. McNABB:  Yeah.

		MS. NADEAU:  -- control the dust for your lungs you would, I think
from what I'm seeing, you would control the dust so that you might
prevent -- maybe somebody could trip, maybe somebody could cut their
hands, maybe -- it just struck me that when this -- when it -- the blade
was coming toward the person and I thought, oh, goodness, if they do
that an awful lot, you could cut your hands, right?

		MR. McNABB:  Just -- it's a general hazard.

		MS. NADEAU:  It's a general --

		JUDGE PURCELL:  And for the record that was Mr. McNabb responding. 
And, Ms. Nadeau, please limit it to questions, I -- other than
observations.

		MS. NADEAU:  Okay.  Well, I was trying to elicit a question with that.


		MR. BOLAND:  So the question is?

		JUDGE PURCELL:  I believe it's does reduction of the dust improve
safety?

		MR. BOLAND:  Jim Boland -- Jim Boland's my name.  Reducing the -- it's
more than just safety.  It's raising the standard of professionalism in
the workplace.  And it just raises the whole tenor of behavior across
the board where you got professionalism, safety, hygiene, dignified
professional presence.  Everybody wins across the board if you strive
for those kinds of environments, and I'm kind of glad you raised the
question in a way --

		MS. NADEAU:  I had one other question.  When the IUOE testified,
someone was talking about operating a skid-steer with a scarifier
attachment to demolish concrete, and he said that he was very concerned
that if the dust didn't settle, that he could run into a laborer or
somebody else around him.  And he said that often they would wait 10
minutes at a time for the dust to settle enough for him to be able to
see, and I was just wondering if you had any sort of estimate as to once
you produce a lot of dust how long in terms of it takes actually for it
to settle so that visibility -- uncontrolled dust, how long you would
take.  What productivity would be diminished by having to wait so you
could see?

		JUDGE PURCELL:  Mr. Boland?

		MR. BOLAND:  Jim Boland is my name.  I don't know how long exactly but
-- and I'm listening to these questions and this discussion, and I don't
want to be too graphic here, but if I got a Quickie saw and about three
concrete blocks, I'm pretty sure I could clear this room of everybody
before I was finished chopping the three blocks.  That's the amount of
dust it generates.  And, like Mr. Cahill said, that wasn't in the
industry when we started out.  We had hammers and chisels and we had wet
saws that were set up to do it.  It was the advent of this dry cutting
that happened late in the '70s that was more rapid at the time and
required less planning that brought this terrible experience of the dust
that my friends are suffering from today.

		MS. NADEAU:  And so if somebody was trying to operate heavy equipment
while you were having your blocks to --

		MR. BOLAND:  You don't want to be around it.  That's all.

		MS. NADEAU:  Thank you.

		JUDGE PURCELL:  Thank you, Ms. Nadeau.  

		Any further questions from the audience?  I don't see any additional
hands, so I'll turn it over to the OSHA panel.

		MR. O'CONNOR:  On behalf of OSHA, I'd like to thank the panel members
for coming in and talking to us this afternoon.  It is tremendously
helpful to us to hear from people who have firsthand direct experience
in jobs that involve silica exposure, so we really appreciate the
information that you're able to relate to us.

		Joanna Gorse will begin our questioning.

		MS. GORSE:  Hi.  My name's Joanna Gorse.  Thank you again for coming
to Washington.  

		My first question's for Mr. Cahill.  If I heard you correctly, you
talked about how you wouldn't be here if it weren't for early detection.
 How did early detection help you?

		MR. CAHILL:  Well, it helped me quite a bit.  I mean, silicosis just
doesn't go away.  But by early detection, I was made aware of how to,
for lack of a better term, live longer.  You know?  I take my -- I get a
flu shot as soon as flu shots come out in the fall because, remember
this is a lung issue.  I really steer clear of pneumonia.  I've had my
pneumonia shots, and I keep those current, and when there's colds and
what about, I kind of pull back from the public scene somewhat.  You --
but if I didn't have that kind of knowledge, in other words, if I hadn't
been diagnosed, I'd have fallen headlong into one of these things early
on and be probably gone now.  We can only speculate on that.  But just
by knowing what my weakness is, I'm able to plan for it pretty well. 
75's not bad.

		MS. GORSE:  Thank you.

		UNIDENTIFIED SPEAKER:  It's good.

		MS. GORSE:  Mr. Boland, in your written testimony you talk about
written exposure control plans and how it's important for projects where
multiple trades and -- or multiple employers are present.  Can you
expand on this and then how hazards are communicated on a multi-employer
work site?

		MR. BOLAND:  You don't mind if I take a look at my submission for just
a second?

		MS. GORSE:  Go ahead.

		MR. BOLAND:  And then I'll try and summarize, okay?

		MS. GORSE:  It's on page 5 of your written testimony.

		MR. BOLAND:  Yes.  We're talking about controlled areas here and a
competent person and methods of compliance, and I guess to get to the
crux of the matter, there are some objections to that, and from my own
perspective, I think there shouldn't be because in my experience much of
the construction site that I've -- the ones that I've been on are
controlled areas.  The carpenter stays out of the bricklayer's area as
much as he can and vice versa.  The electricians would not be up on our
scaffolds unless there's need to make a change to the schedule on where
he's putting his conduit and boxes.

		So it's such a controlled environment in so many ways to designate
specific areas for controlled purposes going forward is not a big deal
at all.  It's just getting whoever's administering that job or running
it to add it into the mix.  It's just one more component.  If that's
what we're driving at here.  And I'm prepared to be -- for you to drill
down a little more if I'm not being helpful.

		MS. GORSE:  Can you talk a little bit about how you guys would
communicate hazards on the multi-employer work site, and anyone can
touch on this.  How, you know, does a general contractor normally do
that, or --

		MR. BOLAND:  Well, there are safety meetings all the time.

		MS. GORSE: Okay.

		MR. BOLAND:  And most of the general contractors require them and
subcontractors do them at -- as well.  That's the job site way of doing
it.  Sometimes there are videos.  Sometimes in the union industry they
ask us to communicate certain things through the apprenticeship and
training programs or to build up the emphasis.  Sometimes there are
entire courses.  For example, we had a lot of refinery work out in
California when I was there and there were specific courses where people
had to spend two days of training to be allowed on the job site.  So
we're willing to do whatever it takes depending on the degree of
difficulty involved.  

		At -- but what we're saying here is much of what's called for in the
register and here is being done already.  It just needs to be tidied up
and we just need federal enforcement.  We have some of what we need in
some cities already through collective bargaining.  But we don't need
state or federal regulations so much as we need -- or state or city
regulations.  We need a federal standard across the board that holds
everybody accountable and brings that same level of professionalism to
all job sites.  That's why we think this standard is so important.

		JUDGE PURCELL:  Mr. Boland, I want to make sure all your testimony
gets in the record, so just pull that mic a little closer to you.

		MR. BOLAND:  This one here?

		JUDGE PURCELL:  Yeah.

		MR. BOLAND:  Okay, Your Honor.

		JUDGE PURCELL:  Thank you.

		MR. BOLAND:  I'll do that.  So I hope that's helpful.

		MS. GORSE:  Okay.  Yeah.  Thank you.  Did Mr. Ward have something?

		MR. WARD:  I'd like to comment just for a minute, if I could, please.

		JUDGE PURCELL:  Tom Ward.

		MR. WARD:  Thank you.  As far as communication goes on the job site,
it doesn't necessarily come from the general contractor.  The trades
communicate with each other through weekly project coordination
meetings.  

		And as far as the silica hazard control plan, I had just literally
Thursday evening at 8 o'clock had a contractor -- because it was --
yeah, it was a couple days before your hearing started.  It was a couple
weeks ago actually, had a contractor that called and he says, Tom, I
have a problem.  It's a 60-year-old company.  They're not used to all
this stuff.  The general contractor said we want your silica control
plan in place tomorrow before you go to work.  So help us out, Tom. 
Thanks to CPWR, who's done an incredible job, go to silica-safe.com --
do I have that right?  I'm sorry?

		UNIDENTIFIED SPEAKER:  dot org.

		MR. WARD:  Dot org, I'm sorry, and right there they have a control
plan that you can customize.  And it literally took me 15 minutes to
customize it for the contractor, send it over.  We went out and did a
job hazard analysis, looked at what they were doing, came up with some
ways to control the hazard.  And in some cases we had to put the guy
dumping the bags in the buckets for the thin set outside with the fan
with the respiratory protection and found some productivity improvements
too that we found.  So there -- there's tools out there not just for our
contractors but for any contractor across the country to come up with a
plan, issue it to the general contractor, and share it with the other
crafts on the job.  Thank you.

		MS. GORSE:  Thank you.

		JUDGE PURCELL:  Further questions from OSHA?

		MR. MOORE:  Yes.  Dalton Moore.  Thanks again to everybody for your
testimonies.

		My first question is during the hearings we've talked about the
limitations of using wet methods in freezing or cold conditions, and
we've also talked about kind of like the construction season or masonry
season.  Do you -- generally this is a question that's general to
everybody on the panel.  Do you generally work in freezing conditions
or, you know, is there limitations that you do, you know, as far as,
like, you have, I should say, in working with freezing conditions?  Like
as far as your mortar mix or your tools, that type of -- that sort of
thing?

		JUDGE PURCELL:  Mr. Tommy Todd.

		MR. TODD:  Tommy Todd.  My work is performed mostly on government
installations in the Corps of Engineers and 28 degrees and rising.  And
-- I was not on?

		MR. BOLAND:  No, you just got to hold it closer.

		MR. TODD:  Oh, I'm sorry.  I'm a bricklayer.  Twenty-eight degrees and
rising and we heated our mortar and heated the water to make the mud. 
And that was basically it.  Anything else the contractor had to provide
a shelter and heated environment before we could perform our duties.  So
preparation had to be made prior to work hours, you know?  So --

		JUDGE PURCELL:  Mr. Ward?

		MR. WARD:  Yeah.  The limitation is funding for winter conditions. 
And when we get funded to work through the winter, we bill that change
order, that condition money so we do work year round in some cases.  Our
work does slow down, of course, because funding is not -- isn't what it
used to be, and so it does slow down pretty significantly for us, but if
you're putting block or brick up in the winter, you're enclosed and you
have a fund that you bill towards for all those costs including wet
cutting or whatever it may be.  Thank you.

		MR. MOORE:  Okay.  So most of your activities in the cold and the
freezing conditions would probably be on the inside where you could heat
your materials or be warm?  Is that fair to say?

		MR. BARRETT:  Sean Barrett, yes.  It would have to be enclosed, an
enclosed, heated structure.  Terrazzo, for instance, what I do, it has
to be 57 degrees in the building just to pour it, to grout it, to
anything.  So there's no chance of any freezing conditions at all.  If
it's not 55 you can't work.

		MR. MOORE:  Okay.  This morning we had some testimony from a power
tool manufacturer about, you know, the -- I guess the various controls
that are put into machines or cutting machines to control dust.  And I
know, Mr. McNabb, you talked about that you kind of see this equipment
on your site in general but it's not used as far as, like, if it's a
chop saw that has a water hose connection it's probably not hooked up or
a vacuum is not hooked up.  Could you talk a little bit more about that?

		MR. McNABB:  You know, you're right.  There are those.  A lot of times
it -- it's for speed or sometimes they're just not properly maintained,
not working.  That -- that's a lot of the problems that come in, as they
talked about.  The vacuums a lot of times are not properly maintained,
the filters changed regularly, so those aren't working properly.  A lot
of the things are already there.  I remember I bought a saw, a dry cut
saw when they came out, a Makita saw back when I started and it had the
water attachment on there.  Contractor said, throw it away, so --

		JUDGE PURCELL:  For the record that's Mr. McNabb responding.  Sorry.

		MR. McNABB:  So that was in the early '70s -- I mean, not in the early
'70s, in the, like, mid-'80s or so -- Did that answer your question?

		MR. MOORE:  Yes.  I guess this question's for Mr. Barrett.  You
talked about how as far as doing some of the things on Table 1 were
just, like, common sense and as far as, like, some of the equipment that
you have, as far as maintenance did you need any other training above
what you already had to perform maintenance on your --

		MR. BARRETT:  No.  Most -- any equipment we use comes pretty readily
to go with being dust-free, being water-fed and it's very simple.  And
when you get it, just like when you buy a vehicle or something like that
it has a maintenance thing that comes with it of the steps you should
take and when you should take them.  And as long as you follow that,
which is pretty cut and dry, you'll have no issues at all.  It's just a
matter of following the protocol.

		MR. MOORE:  And my last question is for Mr. Dolan [sic].  In the OSHA
PEA, they kind of grouped individuals as removing mortar and putting
fresh mortar in as tub pointers.  Do you think that it would be better
to separate the individuals removing the mortar as just grinders as --
instead of including them with tub pointers and -- because what's the
actual exposure that you find when actually putting the mortar into the,
you know, replacing the mortar?

		MR. BOLAND:  Well, Jim Boland's my name.  So this sort of work,
restoration of masonry, it would be done by a contractor and the people
doing the work would have an array of skills that would include
grinding, tuckpointing, assessing the portion of the building that they
were repairing.  So this division of labor thing probably wouldn't
happen that way.  You may have a separate guy who's building scaffolds
or mixing mortar or that, but I would think the mason or the tuckpointer
would be grinding and tuckpointing and planning his day's work and
laying it out before himself what he would try to accomplish in the
course of a day, or at least that was my experience when I spent some
time at bits of restoration work here and there.  Does that answer your
question?

		MR. MOORE:  Yeah.  Basically the same people who are replacing the
mortar grinded the mortar out?

		MR. BOLAND:  Well, that's been my experience.

		MR. MOORE:  Your experience.

		MR. BOLAND:  That's been my experience

		MR. MOORE:  Okay.  All right.  Thank you.

		JUDGE PURCELL:  Further questions from the OSHA panel?

		MR. MOCKLER:  Yeah.  Tom Mockler.  I've got a couple of questions. 
Just to follow up on the engineering controls, it sounds as if they're
frequently available, but they have not been maintained properly, and I
guess one of the questions I would have is what kind of effort would be
required to maintain those controls?

		MR. WARD:  I'm sorry, could you repeat that?

		MR. MOCKLER:  Yeah.  My question was what kind of effort would be
required in the course of a day or a week to maintain the controls so
that they're in proper working order.

		MR. WARD:  It -- it's really quite --

		JUDGE PURCELL:  Tom Ward.

		MR. WARD:  -- thank you, Judge.  It's quite simple.  The control
systems are simple.  Sean talked about the vacuum system, the pulse vac
for terrazzo.  The restoration workers use those as well.  And it's as
simple as -- it's not much more complicated than changing a bag on your
vacuum at home.  It doesn't take a ton of training to learn how to do
that.  As far as the water-fed systems, I personally always liked
running a hose -- a garden hose directly to it that prevented any kind
of clogging of the system and any flow rate issues and slurry build-up. 
So the systems are pretty simple.  So I would say it would be fairly
easy and in most cases just as simple as showing someone how to do it
and providing whatever it is they need to do that.

		MR. MOCKLER:  But more specifically, say in the case of changing a
filter, how long would that take if it was done properly?

		MR. BARRETT:  Sean Barrett.  It would literally take about 5 to 10
minutes.

		MR. MOCKLER:  Okay.

		MR. BARRETT:  In the morning.  And it would be very easy to get it
done.  You basically just have to tell these contractors that they have
to allow the employees time and equipment to do it because they all want
to do it.  They just -- nobody wants to get black-balled.  You don't
want to be the complainer, you don't want to be the trouble-maker.  You
know what I mean?  It's -- in terrazzo and tile and business like this
the squeaky wheel gets fired.  He doesn't get the grease, you know?  You
-- they'll find a way to get rid of you and have you go home and then
they'll tell the other contractors, oh, always safety with him.  This,
that, and the other thing.  That's just the bottom line.  If you guys
don't make them do it, they aren't going to do it.

		MR. MOCKLER:  This question is more for Tom Ward.  It had to do with
the planning process.  At the risk of being redundant, it sounds to me
that you're suggesting that if jobs are planned -- are they safer from
reducing -- in terms of reducing silica exposure but they're actually
done more efficiently.  Is this a correct characterization?

		MR. WARD:  Absolutely.  It is.  The morale -- when you take a Quickie
saw or any type of saw up on the scaffold, and you not only smoke
yourself out but everyone else on the scaffold, the guys know that it's
dangerous.  And, like Sean said, no one's going to get up and go
complain to the boss because there are so many -- there's so few jobs
and so many people in line to take them that you will be sent home.  So
it does improve morale.  It improves production and I -- I'm speaking
from experience.  I did not dry cut for five -- the last five years of
my field work and we were profitable and we didn't put a single person
in the hospital, by the way, on other -- for anything else.  So it was
-- it's very doable.

		MR. MOCKLER:  Okay.  Thank you.

		JUDGE PURCELL:  Any further questions, Mr. Mockler?

		MR. MOCKLER:  No.  Go ahead.

		MR. O'CONNOR:  I just had one point of clarification for the record. 
When the panel members refer to a Quickie saw, would that be the device
that OSHA refers to as a hand-held masonry saw?

		MR. BOLAND:  Yes.

		JUDGE PURCELL:  That was Mr. Bolton [sic].

		MR. O'CONNOR:  Thank you.

		MR. BOLAND:  Excuse me.

		UNIDENTIFIED SPEAKER:  Thank you.  I just have one question for
Mr. Boland.  Do you -- does the Bricklayers Union have any data on the
numbers of cases of silica-related diseases among your members?  Numbers
or percentages?

		MS. HALIFAX:  Could I answer that?

		MR. BOLAND:  I would refer to -- Jim Boland.  I will defer to Caryn
Halifax on that.

		MS. HALIFAX:  Oh, hi.  This is Caryn Halifax.  We don't have those
numbers here today, but we can try to put something together and submit
it in post-hearing comments if we are able to.

		UNIDENTIFIED SPEAKER:  That would be great.  Thank you.  And if it's
-- do you do any post-employment tracking of illness?

		MS. HALIFAX:  You know, I'm not sure that we do.  But we will look at
what records we have.  It may be, you know, death certificate type
records only.

		JUDGE PURCELL:  And that was Ms. Halifax, for the record, again.

		UNIDENTIFIED SPEAKER:  Thank you.

		MR. O'CONNOR:  And again I'd like to thank the panel members for
testifying here this afternoon.  I'm sorry?

		MR. CAHILL:  This is Dennis Cahill.  I want to make one clarification
on early diagnosis of silicosis.  Once a week I go online on the
computer and I look up air quality index for Maricopa County.  And even
though I live in the county next, which is Gila County, air blows from
west to east.  And then that tells me what the pollution rates are and
how I should act accordingly.  

		Now, I can tell you when the pollution rates are real high in the
Valley of the Sun, in the Phoenix area, I kind of lay low a little bit
up where I live in Gila County, and I don't go to Maricopa County. 
Because they really warn us, if the weather's bad, those with lung
issues stay indoors, don't exert yourself.  So I add that to the list. 
And, again, that's one more thing that I wouldn't do if I hadn't been
diagnosed.  Thank you.

		JUDGE PURCELL:  Thank you, Mr. Cahill, for that additional
information. 

		Anything further from the OSHA panel?

		MR. O'CONNOR:  No, nothing further.

		JUDGE PURCELL:  Okay.  Gentlemen, ladies, I'd like to thank you all
for your participation today and that concludes this part of the
program.

		The next individual on the agenda is Diane Matthew Brown on behalf of
the American Federation of State, County and Municipal Employees.  If
you'd like to come forward, we can go ahead and start with your
presentation.

		MR. BOLAND:  Thank you very much, Your Honor.  

		MR. CAHILL:  Thank you.

		MR. BOLAND:  Thank you for having us.  We appreciate it.

		(Cross-talk.)

		UNIDENTIFIED SPEAKER:  Thank you, Judge Purcell.  

		JUDGE PURCELL:  Purcell.  That's right.  They pronounce it Purcell
over there.

		MR. CAHILL:  I think we were run out of Ireland, the Cahills.

		MR. McNABB:  I had a few Cahills I think in my family tree way back
when.  We're all related one way or another.

		MR. CAHILL:  We are.

		JUDGE PURCELL:  Oh, I'm sorry.  Thank you.

		Ms. Brown, take your time, set up, and whenever you're ready just let
me know.

		MS. BROWN:  Nothing -- no PowerPoints here.  And for the record.

		JUDGE PURCELL:  Testimony and PowerPoint?

		MS. BROWN:  That's my written comments of this testimony and -- 

		JUDGE PURCELL:  Okay.

		MS. BROWN:  -- that I mentioned.

		JUDGE PURCELL:  I'll mark them -- probably the best way.

		MS. BROWN:  The last presentation of the day.  That's not fair.

		JUDGE PURCELL:  I didn't set up the schedule.  You can blame OSHA for
that.

		All right, ladies and gentlemen, if you'll be seated, I think
Ms. Brown is ready to proceed.

		Ms. Brown, if you would introduce yourself and your organization?

		MS. BROWN:  Good afternoon.  Thank you.  My name is Diane Matthew
Brown.  I'm a Health and Safety Specialist representing the 1.6 million
members and retirees in the American Federation of State, County and
Municipal Employees, AFSCME.  My testimony today is to give voice to our
public employees in state and local government whose jobs put them at
risk of silica exposure.

		AFSCME is the nation's largest public services employee union.  We
have approximately 3,400 local unions and 58 councils and affiliates in
46 states, the District of Columbia and Puerto Rico.  We represent about
275,000 members in public works, maintenance and highway departments. 
These workers perform many tasks that likely expose them to silica,
including highway maintenance and repair, masonry work, sidewalk and
concrete repair and removal, sandblasting and other abrasive blasting,
excavation earth removal and bridge repair and maintenance.  Maintenance
and repair activities also occur in school and university settings.  

		Many of these tasks are similar to our brothers and sisters in the
construction and Building Trades.  However, these tasks tend to be very
short term in nature and the work areas, especially in highway repair,
are very mobile.  A public works employee may be building a culvert one
day and breaking up a sidewalk the next.  

		Due to the diverse settings, both the silica general industry and
construction standards could apply.  AFSCME believes that the controls
listed in Table 1 are a great way for public employers to control
hazards given some of the improvements have been already in the docket
and in testimony.

		Our members have consistently raised their concerns about dust that
they inhale while on the job, including silica dust.  AFSCME's concern
for public employee exposure to silica substantiated in the public's
literature and the report, "Highway Repair and the Silicosis Threat" in
the American Journal of Public Health, May 2004, researchers found that
large populations of highway workers are at risk of developing
silicosis.  Their conclusions stated the need for engineering controls,
medical screenings, protective health standards, protect workers from
occupational disease related to exposure of silica.  Anecdotally I
learned just last week that two highway workers in Erie County, New
York, have applied for disability due to COPD.  The likely cause? 
Silica exposure early in their careers.

		Although our public works, maintenance and highway workers are the
most likely to be exposed to silica, there are other job classifications
that may be at risk.  For example, we represent workers that work in
dental facilities and public health and university settings.  Here these
workers are potentially exposed to silica in the making of certain
molds.  Now, the dental industry has changed an awful lot in the last
couple of years, but the reality is dental students and public employees
are exposed to silica in some of these processes.

		It is firmly established that silica exposure can cause lung cancer in
addition to silicosis.  We heard that quite plainly just a few moments
ago.  There have been over 100 studies of silica and lung cancer.  The
World Health Organization's IARC determined crystalline silica as a lung
carcinogen in 1997 and reaffirmed this conclusion in 2012.  

		In the United States, the National Toxicology Program determined that
crystal silica is a human carcinogen in 2000 and reaffirmed this
judgment just in 2011.  Yet the current standard based in 1971 is based
on decades-old science and requires methodology, especially in a
construction site, that are no longer in common use.

		In this study in silica, a lung carcinogen, which is Steenland and
Ward, A Cancer Journal for Clinicians, 2013, the authors note that new
cases of silicosis and lung cancer are being diagnosed in younger
workers who entered the workforce long after the current silica standard
was in place.  It also notes that patients may develop silicosis years
after their occupational exposure ends.  To conclude that all that's
necessary to protect workers is to better enforce an outdated regulation
ignores the current realities of today's workplaces and the harm being
done to a new generation of workers.

		This updated rule is long overdue.  One of the first things I was
given when I was hired in health and safety within AFSCME was to go to
the silicosis NIOSH conference which happened to be across the street
from our office.  I am wearing the sticker from that.  That was in 1997,
and we're still talking about this now.

		So this rule is long overdue.  And not just for the public employees
in the 25 OSHA plan states.  Many of my members work in states that do
not have an OSHA-approved state plan.  It is not my intention today to
testify as to the need for expanded public employee protections under
OSHA.  Take a whole lot longer than 10 minutes to do that.  But I will
testify how OSHA regulations set the standard for workers in states such
as Ohio, which has its own unique public employee law.  

		An updated regulation becomes invalid when we review workers'
compensation claims.  It enables AFSCME to negotiate good contract
language for public employees in those non-OSH states so that they too
can be protected through their collective bargaining agreements.

		OSHA standards eventually become the basis for standard operating
procedures and safe work practices even in those states that do not have
public employee OSH coverage, admittedly sometimes just takes a very
long time.

		We have heard concerns in testimony about the proposed permissible
exposure limit not being feasible, that employers cannot monitor to that
level, but this exposure limit is already in effect in other countries. 
For this testimony I reviewed a large amount of information for the
European union and from Canada.  Alberta, Canada has an eight-hour
occupational exposure limit, or OEL for 25 µg.  The government of
Alberta conducted a silica project that reviewed health data, exposure,
and sampling data.  They studied job classifications exposed to silica
and included in public employees, which is why I was interested,
specifically, public works and maintenance laborers and equipment
operators.  All these job classifications were exposed almost 100
percent of the time.

		In a presentation to AIHA in 2012, representatives from the Government
of Alberta state that monitoring for the lower OEL is feasible.  It does
require an increase in volume from 400 to a 1000 L, to 1320 L, 1980 L. 
So it is feasible, and it is being done.

		When it comes to hierarchy controls, we of course support the use of
hierarchy controls, preferring engineering controls and work practices
over personal protective equipment.  I can assure you anyone who states
that wearing a respirator all day long will provide adequate protection
has never talked to a public employee.  Even the best-fitting respirator
will become uncomfortable.  Employees will sweat and the fit will be
compromised.  Comfort is the number one reason cited when our members
are asked why they're not wearing their PPE.

		Cartridges do become saturated, and long use of any respirator puts a
strain on respiratory and cardiac systems even for young, healthy
workers.  So personal protective equipment must always be our last line
of defense.  We do realize it's very important because we can't always
control all the exposures all the time.

		Yes, respiratory protection has improved over the years, but so have
engineering controls and equipment, including the vacuum systems and
monitoring devices.  And we've heard these arguments before.  When the
confined-space entry standard was first implemented in 1993, we were
told it was infeasible, technology infeasible, economically infeasible,
especially in public employers.  The monitors that we used were bulky,
they were heavy, they had a very limited battery life.  Entry equipment
was limited in style, and it was pricey.  

		Today the monitors that we use for our confined spaces are not much
larger than a cell phone.  They are accurate, easy to use, battery life
way over eight hours.  The entry equipment now is available in all
types, sizes, configurations to meet employer needs and quite frankly
costs less than it did years ago.  The argument that equipment is not
available or too costly doesn't hold up.  Equipment manufacturers will
meet the demands of its customers and produce options, creating jobs.

		Indeed, most of this equipment's already available, and we've heard
testimony to that, and it's in use in many places.  As far as costs,
those costs change as technology improves and because more available
costs will drop.

		Lastly I would like to comment specifically on the training
requirements in the proposed rule.  The proposed rule relies heavily on
the Hazard Communications standard as the basis for worker training
related to sili-containing materials and possible exposure risks.  

		As a Health and Safety Specialist for AFSCME, I have developed and
delivered hundreds of training programs for our members.  In fact, that
is my main job at the International.  And I can assure you that the bulk
of the hazard communication programs provided by public employers do not
cover silica-containing products or the tasks that produce silica dust
in sufficient detail, if at all.  

		OSHA should clarify in the proposed rule that initial training must be
done prior to giving a worker assignment that would likely expose them
to silica dust.  Initial training should, at a minimum, include what
silica is, where it's found, the health effects to not just include
silicosis but lung cancer, other diseases including renal disease,
hazard recognition, sources of silica exposure related specifically to
the tasks they're going to be doing, requirements under the standard,
whether it's general industry or construction, again, according to task,
monitoring that will be done, medical screening that's available and
then most importantly the ways to reduce exposure, those engineering
controls specific to the operation, the tools and equipment and
including proper handling and operation of those tools and the proper
maintenance required for those tools, work practices including what
processes, personal protective equipment, respiratory protection and
include proper fit, cleaning storage, cartridge selection where
applicable and personal hygiene.  

		Training should be interactive as possible, allowing for different
learning styles.  The standard should include a specific requirement
that training be provided in language that employees understand.

		While this is inferred in preamble, it is not specified in proposed
rule itself.  The standard does not refresh refresher training.  As --
again, as my job is training 99 percent of the time, we strongly support
an annual refresher requirement.

		In conclusion, AFSCME supports OSHA's proposed rule on silica.  Silica
has been a known hazard for centuries, but our regulatory system simply
has not kept up with the current knowledge base on silica and its health
effects.  Continuing to rely on an outdated standard does not protect
workers.  It burdens their families; it hurts the economy.  Public
employees with silica-related diseases cannot be productive and serve
the constituents.  These illnesses make it difficult, if not impossible,
for workers to continue to work and contribute to the economy.  The cost
of these debilitating illnesses adds strain to the healthcare system,
and in the public sector these costs are covered by the taxpayer. 
Taxpayer dollars pay those benefits.

		While we recognize that the rule will likely require employers in both
the private and public sector to make investments in engineering and
equipment, these investments pale in comparison to the death and
long-term disability suffered by workers, their families, and their
communities.  It is necessary to review and update safety and health
regulations when evidence strongly shows that workers remain at risk. 
Our current and next generation of workers deserve nothing less.  

		AFSCME appreciates the opportunity to share its position on the
proposed rule on respirable crystalline silica.  This concludes our
testimony.  Thank you very much.

		JUDGE PURCELL:  Thank you, Ms. Brown.

		Before opening up to questions, Ms. Brown handed me several documents
before testifying, so I'm going to mark and introduce those as exhibits.
 The first will be hearing exhibit 103, which is a written copy of her
testimony.  The second document I'll mark as Hearing Exhibit Number 104.
 That's a January 22nd, 2014 submission by AFSCME to OSHA.  Hearing
Exhibit 105 is a printout from the CDC website dated March 12, 2004, and
it's an article entitled "Silicosis in Dental Laboratory Technicians,
Five States, 1994 to 2000."  The next document I'll mark is Hearing
Exhibit 106.  It is a copy of an article for the American Journal of
Public Health from May 2004, Volume 94, Number 5, and the title of that
document is "Highway Repair: a New Silicosis Threat."  And, finally, the
next document I've marked as Hearing Exhibit 107 which is a printout of
a PowerPoint presentation from the government of Alberta dated March
9th, 2012, entitled "Dangerous Dust: Exposure to Crystalline Silica in
Alberta."  

(Whereupon, the documents referred to as Hearing Exhibits 105 through
107 were marked and received in evidence.)

		JUDGE PURCELL:  With that I'll provide those documents to OSHA and ask
how many people in the audience have questions for Ms. Brown.  Okay.  I
see three hands right now.  We'll start with Ms. Trahan.  

		MS. TRAHAN:  Thank you, Your Honor.

		JUDGE PURCELL:  And please state your name for the record and your
affiliation.

		MS. TRAHAN:  It's Chris Trahan with the Building Trades.

		I just wanted to thank you for testifying and for calling attention to
the fact that there are people doing construction work on the public
sector side, and I think it's important.

		My question really is a simple one, and that's if you can articulate
what it's like -- how the protections are improved in those states that
have state plan states versus the non-state plan states.

		MS. BROWN:  I would say that they're probably night and day.  In the
state plan, states they generally do follow most of the OSHA standards. 
Some of the states actually have stricter standards.  On the other side
of things it is very dependent on whether they are following what their
workers' compensation wants them to do.  If they have a actual workers'
compensation policy and they are not self-insured, the policyholder may
require they follow OSHA standards, and so they will do that to the best
of their ability.  Sometimes that is still quite lacking.

		If they are self-insured and there is no state law in place for them
to follow, then they will do whatever they can get the workers to do
regardless of whether or not that is even considered the standard
practice or not.  I will give you an example of Huntington, West
Virginia, where we have a small local.  West Virginia is not a state
plan state.  They do have a state law on the books, but it's never been
funded.  Recently did a confined space entry class for them and told
them all their equipment had to be taken out of service.  This stuff was
probably about 25 years old, and they were still using it on a regular
basis.  No one told them that the equipment wasn't any good.  I took one
look at it and told them they had to take it out of service immediately.
 That's typical.

		As far as silica is concerned, they don't even know they're being
exposed to silica.  I had to show them examples and video clips and they
go, oh, yeah, we do that.  Yeah.  I bet you do.  And they -- it will
take them a long time to come up to speed, but they do eventually do so
--

		MS. TRAHAN:  Thank you.

		JUDGE PURCELL:  Thank you, Ms. Trahan.

		Ms. Seminario?

		MS. SEMINARIO:  Peg Seminario -- excuse me -- Peg Seminario from the
AFL-CIO.  A number of the participants in the hearing have suggested,
recommended that OSHA focus its efforts currently on stronger
enforcement of the current standard and that enforcement of the current
standard would be sufficient to protect workers.  

		In your experience in dealing with enforcement under state plans for
public employees, do you believe that enforcement of the current
standard would be sufficient to protect workers?  And recognizing that
there are differences in enforcement for public sector workers than
there are for private sector, and if you could speak to that as well?

		MS. BROWN:  Yes.  I do not believe that that would change much in the
public sector.  Generally -- and this is not a knock on OSHA enforcement
-- they are more likely to go to a actual construction site.  That is
where the bulk of the enforcement activities are, not public employee
sites.  They would only come to a public employee site in those states
where there are enforcement officers who are assigned to the public
sector.

		In vast majority of the state plan states there is no mechanism to
fine a public employer.  I can think of maybe three states off the top
of my head, Iowa, Minnesota, New York maybe, but most of the time they
are not fining a public employer, they are writing a corrective order. 
So there is no financial incentive to do so --  The -- but again, the
vast majority of enforcement efforts is going to be done on the
construction industry side, not public employees.  They -- public
employers may go years and never see an OSHA inspection.

		MS. SEMINARIO:  Okay.  You've also had experience with there being
standards coming into effect on other health hazards such as asbestos
that do affect public employees as well as private sector.  Have those
standards brought about change and made a difference in working
conditions for public sector workers who are exposed to asbestos?

		MS. BROWN:  I would say, yes, they have.  There is a great deal of
knowledge base, especially exposure to asbestos in schools and school
maintenance.  That there was hard look at what had to be done to protect
workers, controlled areas, medical exams were -- that were never done
before.  It is still -- asbestos is, like, the big thing for public
employees.  They are very -- still very concerned about it.  

		That is not to say the non-OSH states, that it doesn't get ignored
because then it is in fact enforced by EPA, and they don't know how to
enforce it when it comes to a public employee work site.  So in those
states without OSHA protections, it's still not as strict as it is in
OSH state plans, but the awareness level and where it can be found has
made a huge difference.

		MS. SEMINARIO:  All right.  So the standard when it comes into effect
does have an impact in changing practices and conditions, even when
there isn't enforcement?

		MS. BROWN:  I call it the osmosis effect.  It's, you know, by osmosis
it filters down to other folks, and they pick it up as best practices. 
Especially, again, if they are privately insured where there's workers'
compensation, they may in fact insist that they adopt them or that their
rates go up.  And it is the driver in some public employee settings. 
And, again, when they are -- where they are self-insured, this is all
coming out of the taxpayer dollars.  Every public employee right now is
facing budget constraints.  There is no state out there with maybe North
Dakota, South Dakota being the exception that says they are flush with
money.  So they are all looking for ways to save money.  If that means
cutting back into workers' compensation costs, they will do so --  And
this is one way to cut back on workers' compensation's costs.  Better
enforcement of the standards.  Newer standards that make sense.

		MS. SEMINARIO:  All right.  Turning to the issue of job tenure, we've
heard from other witnesses in other sectors, the -- there were testimony
last week from the Auto Workers and the Steelworkers, and there's been
testimony today from the Bricklayers about how long people work in
particular jobs.  And just like to ask you, is it common for public
sector workers to have long tenures of employment and be employed in
jobs for 10 years, 20 years, 30 years --

		MS. BROWN:  Thirty years.

		MS. SEMINARIO:  -- 40 years?

		MS. BROWN:  Yes.  The average age of a public employee according to
our last survey is 48 years of age.  The average tenure, about 25 to 28
years is normal.  I met a custodian, University of Iowa, who was in --
75 and was working at the university.  He'd been there for over 30
years.  That was his -- after -- it was after coming from another
country, and that's where he was doing.  

		So a vast majority of our members stay for a long time.  They start
off in lower level jobs, and they move their way up similar to the
Building Trades, except that we often don't have formal apprenticeship
programs.  They will stay for years and years and years and jump around
from skill base to skill base.  They may start off in highways and go to
public works.  They may start out as a custodian, go to a maintenance
worker.  But they will stay with that public employer for long periods
of time, and it -- they may jump from county to state, but they're still
public employees.

		MS. SEMINARIO:  Hmm.  And turning to the issue of medical
surveillance, are you aware if there's any kind of regular medical
surveillance that is currently conducted for public employees for
occupational health problems in any states?  You mentioned asbestos
before because that standard does apply, but are you aware that there
are any established ongoing medical surveillance programs that would
address issues of dust exposure, particularly silica exposure?

		MS. BROWN:  I don't know if it's still ongoing.  There was one in New
Jersey with New Jersey DOT.  There is an occupational environmental
health clinic group that -- in New York that handles not just public
employees but private sector as well and they collect data.  It's not --
in fact, I was trying to get some of it for this testimony and wasn't
able to get it in time.  Other than that, I'm not aware of any that are
actively going on right now.

		MS. SEMINARIO:  So you're not aware of any employer-provided medical
surveillance?

		MS. BROWN:  Only for respiratory protection.

		MS. SEMINARIO:  Right.

		MS. BROWN:  That would be not -- nothing that's done otherwise.

		MS. SEMINARIO:  Right.  Thank you very much.

		JUDGE PURCELL:  Thank you, Ms. Seminario.

		Ms. Nadeau, I think you had some questions?

		MS. NADEAU:  No, I -- she's asked --

		JUDGE PURCELL:  Okay.  Any further questions, then, from the audience?
 Not seeing any hands, I'll turn it over to OSHA.

		MR. O'CONNOR:  Thank you, Your Honor, and thank you Ms. Brown for
testifying here this afternoon.  

		Dalton Moore will begin OSHA's questions.

		MR. MOORE:  Hi.  Dalton Moore.  I just have one question for you.  I
know you were -- you said that basically the public works workers and
your highway workers are the ones that are probably most likely exposed
to silica.  Could you just talk a little bit about the training that
they have and how they would know on their job site to, you know, maybe
upgrade to a respirator or institute some other type of control?

		MS. BROWN:  Depending on that state, some of it is your basic hazard
communication training.  This is what you're supposed to do, this is the
hazard, maybe a 10-minute pre-job type of training.  In the non-OSH
states, probably none at all.  That is one of the reasons that I wanted
to stress that there needs to be some very strong language about
training in the standard because right now most public employees are not
getting the type of training they do need.

		If you're talking about highway work, they're going to get your basic
work zone training, flagger training.  They are more worried about
getting hit than they are about silica.  It's only afterwards when they
realize that they're coughing or they're having problems breathing that
they are concerned about the silica or exposure or diesel exposure or a
combination of those things.  That's my experience when it comes to our
public works and our highway folks.

		MR. MOORE:  Thank you.

		JUDGE PURCELL:  Another question from OSHA?

		MR. MOCKLER:  Tom Mockler.  I had a question about the occupations and
where you thought the primary silica exposure problems were.  It sounds
as if you've identified the construction-related occupations as the
primary problem, although there might be some other as well.  Is that --

		MS. BROWN:  Yes.  I didn't go into detail here, but we do have a lot
of folks that work in maintenance activities and, like I say, school
settings.  And so they're not your typical highway worker and they're
not in public works, per se.  They do maintenance trades work so they
work on boilers, they work on masonry, they work on concrete.  They may
do some of their own nip tucking.  In fact, that's not uncommon.  They
may fix or repair a sidewalk or, you know, something outside the school.


		They are small jobs, they are jobs that are done quickly by a
tradesperson or, quite frankly, a higher-level maintenance worker, and I
assure you that silica exposure is probably the least of their concerns.
 They have got probably five or six other tasks they are required to do
that day.  But because of the materials that they're using and the
actual type of tools that they're using, it creates silica dust and they
probably are inhaling it.

		I don't have monitoring data because nobody monitors public employees.
 It's lumped in with a great number of other studies when it comes to
highway or maintenance repair.  They don't separate out the public
employees from the private sector employees.  And the other one was the
dental labs.  And we represent, again, you still have your students
there.  And we -- remember, those are going to be your future workers. 
So we are concerned about them.  But there are folks that work in the
labs and in these public health clinics that are doing dental work where
some of the materials that they work with contain silica and those
exposures, as well, you know, those again those are not settings that
move.  They are much easier from a engineering standpoint.  You can put
controls in place.  But I sometimes think people forget about that, that
there's that whole other sector that deals with silica that is not
construction or highway related.

		MR. MOCKLER:  Okay.  Thank you.

		MS. BENNETT:  Anna Laura Bennett.  I believe in response to
Ms. Seminario's question, you mentioned that you had tried to get data
from New Jersey and New York but hadn't been able to get it in time for
this hearing.  Would it be possible to submit that in post-hearing
comments?

		MS. BROWN:  I'm going to in fact try to get that information for the
post-hearing comments.

		MS. BENNETT:  Great.  Thank you.  And you mentioned in your testimony
and also in your written testimony on page 4 you have the list of the
recommended components of initial training.  Could you give us an
estimate of about how long that training would take?

		MS. BROWN:  This would be in addition to your hazard communication
training, not a part of it.

		MS. BENNETT:  Just the portions focused on the silica exposure.

		MS. BROWN:  I could see, if I was doing this training myself, in
addition to the hands-on piece of it, probably 30 minutes of information
plus a hands-on demonstration, probably an hour.

		MS. BENNETT:  Okay.  And that's for the initial training.  And would
it be the same or less time for the annual refresher?

		MS. BROWN:  Refresher would be task-oriented.  So 30 minutes.

		MS. BENNETT:  Okay.  And do you have any information about members'
development of silica-related diseases as far as numbers or percentages,
who might be affected?

		MS. BROWN:  Unfortunately AFSCME's collection of members killed on the
job is almost all acute.  We get that information from the families,
from the councils and locals themselves.  They give that information to
us.  Because silica's such a chronic illness, if we get an information
about someone having a problem with a lung disease, that they died from
it, it comes from a family member.  We have information on one or two
folks who were diagnosed with complications from COPD, but I can't tell
you for sure if it was related to silica or not because, again, that
information's coming from the, you know, the deceased's family member
who reported it to us.

		MS. BENNETT:  And those were the highway workers you mentioned
earlier?

		MS. BROWN:  Those are in addition to the -- I just found out about
those highway workers literally last week.

		MS. BENNETT:  Okay.  Thank you.

		MR. O'CONNOR:  That's all the questions OSHA has.  Thank you again for
testifying this afternoon.

		MS. BROWN:  Thank you.

		JUDGE PURCELL:  Yes.  Thank you very much, Ms. Brown.

		That will conclude the testimony for today.  We'll resume with Day 11
of the hearing tomorrow morning at 9:30.  We're adjourned.

		(Whereupon, at 3:38 p.m., the hearing was continued, to resume the
next day, Tuesday, May 1, 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 31, 2014

Washington, D.C. 

were held as herein appears, and that this is the original transcription
thereof for the files of the United States Department of Labor,
Occupational Safety & Health Administration.

			      						         					____________________________

			         	ED SCHWEITZER

			         	Official Reporter

		

_________________________

		Continued

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