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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April 1, 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):

KRISTEN LINDBERG

Attorney, Office of the Solicitor

ANNE RYDER

Attorney, Office of the Solicitor

OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION (OSHA):

WILLIAM PERRY 

Acting Director, Directorate of Standards and Guidance

JESSICA SCHIFANO

Office of the Director 

JOSEPH COBLE, Sc.D., CIH

Director, Office of Technological Feasibility

GREG KUCZURA

Office of Regulatory Analysis - Health

DAVID O'CONNOR

Director, Office of Chemical Hazards - Non-Metals

PATRICIA DOWNS

Office of Technologic Feasibility

ROBERT STONE

Director, Office of Regulatory Analysis - Health

STEPHEN SCHAYER

Office of Physical Hazards

NATIONAL COUNCIL FOR OCCUPATIONAL SAFETY AND HEALTH (NCOSH)/EQUALITY
STATE POLICY CENTER (ESPC)/ LABORSAFE:

BILL KOJOLA

DAN NEAL 

Executive Director, Equality State Policy Center

PETER DOOLEY, CIH, CSP

President, LaborSafe 

JAVIER GARCIA HERNANDEZ

WISCONSIN COALITION FOR OCCUPATIONAL SAFETY AND HEALTH (WisCOSH):

ALLEN SCHULTZ

JAMES SCHULTZ

AMERICAN INDUSTRIAL HYGIENE ASSOCIATION -

PROFICIENCY ANALYTICAL TESTING PROGRAMS, LLC 

(AIHA PAT):

MARY ANN LATKO

Managing Director

AMERICAN INDUSTRIAL HYGIENE ASSOCIATION -

LABORATORY ACCREDITATION PROGRAMS, LLC (AIHA LAP):

WILLIAM WALSH, CIH

Vice Chair, Analytical Accreditation Board

CHERYL MORTON, Managing Director

THE CENTER FOR EFFECTIVE GOVERNMENT (CEG):

RONALD WHITE

Director of Regulatory Policy

BRICK INDUSTRY ASSOCIATION (BIA):

RAY LEONHARD

President & CEO

SUSAN MILLER

Vice President, Environment, Health and Safety

DR. GARTH TAYLER

Technical Director, Acme Brick Company 

SUSAN F. WILTSIE

Attorney, Hunton and Williams

THOMAS BROWN

Director of Health and Safety, Acme Brick Company 

BRIAN OGLE

General Shale Brick

JANET WHITACRE KABOTH

President, CEO, and Chairman, Whitacre Greer Company 

LINCOLN ANDREWS

Stiles and Hart Brick Company

JOE RICE

CEO, Belden Tri-State Building Materials 

WILLIAM LATHAM

Attorney, Acme Brick Company 

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

ELIZABETH NADEAU

Attorney, International Union of Operating Engineers 

HENRY CHAJET

Attorney, Jackson Lewis 

U.S. Chamber of Commerce

DALE DRYSDALE

National Sand, Stone and Gravel Association

JOE BONIFATE

Arch Masonry

INDEX

										PAGE

INTRODUCTION								   

Judge Stephen L. Purcell 					  PAGEREF a1purcell \h  3141 

NATIONAL COUNCIL FOR OCCUPATIONAL SAFETY 

AND HEALTH (NCOSH)/EQUALITY STATE POLICY CENTER (ESPC)/LABORSAFE;
WISCONSIN COALITION FOR 

OCCUPATIONAL SAFETY AND HEALTH (WisCOSH)

	NCOSH - Bill Kojola			   			  PAGEREF a2kojola \h  3141 

	ESPC - Dan Neal					  	  PAGEREF a3neal \h  3144 

	LaborSafe - Peter Dooley				  	  PAGEREF a4dooley \h  3156 

	NCOSH - Javier Garcia Hernandez		  	  PAGEREF a5hernandez \h  3164 

	WisCOSH - Allen Schultz				  	  PAGEREF a6aSchultz \h  3170 

	WisCOSH - James Schultz 				  	  PAGEREF a7jSchultz \h  3182 

	Questions 						  	  PAGEREF a8questions \h  3204 

AMERICAN INDUSTRIAL HYGIENE ASSOCIATION - 

PROFICIENCY ANALYTICAL TESTING PROGRAMS, LLC 

(AIHA PAT); AMERICAN INDUSTRIAL HYGIENE 

ASSOCIATION - LABORATORY ACCREDITATION 

PROGRAMS, LLC (AIHA LAP)

	AIHA PAT - Mary Ann Latko				  PAGEREF a9Latko \h  3262 

	AIHA LAP - William Walsh, CIH				  PAGEREF b1walsh \h  3281 

	Questions 							  PAGEREF b2questions \h  3286 

CENTER FOR EFFECTIVE GOVERNMENT (CEG)

	Ronald White							  PAGEREF b3white \h  3313 

	Questions								  PAGEREF b4questions \h  3321 

INDEX

										PAGE

BRICK INDUSTRY ASSOCIATION (BIA)

	Ray Leonhard							  PAGEREF b5leonard \h  3325 

	Susan Miller							  PAGEREF b6miller \h  3334 

	Robert E. Glenn, M.P.H., CIH 

	(presented by Dr. Garth Tayler)			  PAGEREF b7tayler \h  3342 

	Dr. Garth Tayler						  PAGEREF b8tayler \h  3352 

	Susan F. Wiltsie						  PAGEREF b9wiltsie \h  3361 

	Thomas Brown							  PAGEREF c1brown \h  3368 

	Brian Ogle							  PAGEREF c2ogle \h  3373 

	Jeff Wyers 

	(presented by Susan Miller)	 			  PAGEREF c3wyers \h  3386 

	Janet Whitacre Kaboth					  PAGEREF c4kaboth \h  3390 

	Lincoln Andrews						  PAGEREF c5andrews \h  3401  

	Joe Rice								  PAGEREF c6rice \h  3409 

	William Latham							  PAGEREF c7latham \h  3420 

	Questions								  PAGEREF c8questions \h  3434 

ADJOURNMENT								  PAGEREF c9adjourn \h  3490 

EXHIBITS

EXHIBITS		DESCRIPTION				 	PAGE

Exhibit 108	NCOSH PowerPoint	  		    	  PAGEREF x108 \h  3157 	

Exhibit 109	Mr. Allen Schultz' testimony    	  PAGEREF x109 \h  3169 	

Exhibit 110	WisCOSH PowerPoint	  		    	  PAGEREF x110 \h  3170 	

Exhibit 111	Mr. James Shultz' testimony	  	  PAGEREF x111 \h  3204 

Exhibit 112	Mr. Walsh's testimony		   	  PAGEREF x112 \h  3281 	

	

Exhibit 113	Ms. Latko's testimony	  	   	  PAGEREF x113 \h  3280 

Exhibit 114	Mr. White's testimony		   	  PAGEREF x114 \h  3312 

Exhibit 115	Mr. Leonhard's testimony		   	  PAGEREF x115 \h  3333 

Exhibit 116	Mr. Leonhard's PowerPoint	   	  PAGEREF x116 \h  3334 	

Exhibit 117	Mr. Wyers' testimony		   	  PAGEREF x117 \h  3390 P R O C E
E D I N G S

(9:30 a.m.)

		JUDGE PURCELL:  Good morning, ladies and gentlemen.  This is Day 11 of
the OSHA rulemaking on silica.  

		Today's date is May [sic] 1, 2014.  The time is approximately 9:30,
and my name is Stephen Purcell, and I'm the Chief Judge for the U.S.
Department of Labor.  

		We're going to combine the first two panels on the agenda this
morning.  That's the National Council for Occupational Safety and
Health, Equality State Policy Center, and LaborSafe with Wisconsin
Coalition for Occupational Safety and Health.  

		Mr. Kojola is first up on the agenda.  So I'll turn it over to him. 
Good morning, Mr. Kojola.

		MR. KOJOLA:  Good morning, Your Honor.  It's a pleasure to be here.  

		My name is Bill Kojola, and I'm here representing the National Council
for Occupational Safety and Health.  I'm a retired industrial hygienist,
most recently working in the Safety and Health Department of the
AFL-CIO.  I've spent the last 35 years working for labor unions as an
advocate for protecting workers from hazards on the job.  

		The National Council for Occupational Safety and Health is pleased to
be here and to express our strong support for OSHA's effort to
promulgate a final standard for crystalline silica.

		The long overdue rule will save the lives of many workers exposed to
silica.  The current exposure limit is decades out of date and fails to
provide adequate protection. 

		In addition to revising the permissible exposure limit to the level
recommended by NIOSH, we're pleased that OSHA's also proposing a
comprehensive set of provisions that will help reduce the health risk to
exposed workers.

		I will focus my testimony this morning on one important aspect of the
proposed rule, and that is worker training.  

		While this issue has received little attention at these hearings, it
is a critical element in an overall approach for protecting workers from
silica exposure.

		To be most effective in protecting workers, all elements of a final
rule need to be strong and they need to be fully implemented by
employers.  

		I want to discuss how the proposed provisions on employee information
training can and should be strengthened in a final silica rule.  

		Many of the existing OSHA health standards have more specific and
extensive worker training provisions than those being proposed for
silica.  We urge OSHA to include these provisions in the final rule.

		First, require training to be provided prior to or at the time of
initial assignment to a job involving potential exposure to silica.  The
proposed rule is silent on when training is to be given.  

		Secondly, refresher training should be given annually.  The proposal
does not provide refresher training to be given ever.  It's as though
OSHA is assuming that workers forget nothing.  

		Thirdly, training should include training specifically on engineering
controls.  The proposal only mentions work practices and the use of
personal protective equipment and doesn't mention engineering controls
as one element of a worker training program.  

		We believe that the final rule should require additional training when
modifications of tasks or procedures or instituting new tasks or
procedures that affect exposure.  The proposal is silent on this issue. 
It's as though OSHA doesn't expect that changes in the workplace will
occur that could change exposure, and those are provisions that are in
other OSHA health standards.

		We would encourage OSHA to include in the final rule a requirement
that training and materials be provided at the educational level,
literacy, and language of the workers.  If that's OSHA's intent, then we
believe they should make it explicit in the final rule so that everybody
understands what the obligation is.

		And, lastly, we believe that there should be a provision in the rule
that says that training should be provided at not cost to the employee
and during working hours.  Again, the proposed rule is silent on this
matter.

		In our view, these recommended changes to training provisions of a
final silica standard will enhance the effectiveness in protecting
workers, and we urge OSHA to adopt them.  

		And thank you for the opportunity to appear here before you today.

		JUDGE PURCELL:  Thank you, Mr. Kojola.  

		Next on the agenda is Mr. Dan Neal.

		MR. NEAL:  Thank you, Your Honor.  I appreciate this opportunity.  

		My name is Dan Neal.  I'm the Executive Director of the Equality State
Policy Center in Casper, Wyoming.  We operate the Wyoming Coalition for
Occupational Safety and Health and have a long history of advocating for
good policies that support Wyoming workers.

		The extractive industries drive the economy of Wyoming.  We the
nation's number one coal state and the top producer of trona.  In 2012,
the state ranked third among the states in natural gas production and
seventh in oil production.  

		In the past few years, much of the new gas and oil production stems
from recent developments in drilling technology and the technology used
in hydraulic fracturing, a method of using water and sand to open tight
shales that hold both oil and gas.

		It's this process that brings the ESPC to this hearing.

		First, I would remind you that work in the industry sector is
dangerous.  Last year in Wyoming, two coal miners, Chris Stassinos and
Jake Dowdy, died on the job, one near Rock Springs, the other in the
Powder River Basin at the Black Thunder Mine.  Carl Jordan was killed
on a drilling rig near Baggs, Wyoming.  Since they died in 2013, they're
not really yet even official national statistics, but each one of them
left mourning families.  Two of them had young children.  We've also had
people burned at refineries and injured in explosions in that oil and
gas patch.  

		Nationally, the number of deaths in oil and gas extraction increased
substantially in 2012 with 138 deaths compared to 112 in 2011.  

		Across the country, the death rate in quarrying, mining and oil and
gas extraction was 15.6 per 100,000 workers, compared to the all worker
fatal injury rate for the nation of 3.2 in 2012, nearly 5 times higher
in this industry.

		Health and safety are critical matters to my Wyoming friends and
neighbors who work to power the nation.  Exposure to silica with its
risk of developing silicosis or one of the many diseases related to
silica exposure is a significant hazard related to hydraulic fracturing
in the oil and gas business.

		Strong oversight and control is needed in an industry that the
statistics indicate has failed to provide safe and health worksites.  

		The National Institute for Occupational Safety and Health has studied
silica exposure during fracking operations and found serious exposure
risks for all workers in the oil and gas industry.  It has issued a
hazard alert warning about exposure to silica during hydraulic
fracturing.  

		NIOSH scientist, Eric Esswein, conducted the research he noted in a
blog for NIOSH that "The magnitude of the exposures is particularly
important.  Thirty-six of the 116 samples exceeded the NIOSH REL by a
factor of 10 or more.  The significance of these findings is that even
if workers are properly using half masks air-purifying respirators, they
would not be sufficiently protected because half masks air-purifying
respirators have a maximum use concentration of 10 times the
occupational health exposure limit."   

		Although fracturing technology has been a staple in oil and gas
drilling since at least the middle of the Twentieth Century, increased
use of horizontal drilling to maximize production from shell beds has
led to much greater use of fracking by the oil and gas industry.  

		This increased use alone increases risk for workers, but another
technological development must also be considered.  Companies in places
like Wyoming Screen River Basin have worked very hard to make their
operations more efficient and less harmful to the environment.  One
strategy for reaching these goals is to locate multiple wells on a
single drill pad.  While it means fewer roads are needed to reach wells,
it also means that well pads now have wells in various stages of
drilling and production.

		Workers may be on a well pad drilling a new hole, while others service
a producing well on the same pad.  Those crews may be working when a
well servicing company comes to the pad to frack a well.

		All the workers on the site are at risk of exposure to silica use in
the hydraulic fracturing.

		Education of the various drilling and well servicing crews must
include education about the dangers of silica exposure and methods of
reducing exposure.  

		The NIOSH hazard alert notes, "Determining worker exposure levels is
important for selecting the right type of control measures, including
engineering controls and respiratory protection."  

		The NIOSH hazard alert contains a list of methods to control dust
exposure.  Engineering methods include relatively low cost measures such
as keeping as many workers on the site upwind of the moving sand, water
spraying to hold dust down, stopping holes in sand batteries,
specifically stick a rag in the hole, and placing screens to knock down
dust as sand is transferred from a sand battery to a well bore.  

		Potentially more expensive measures include designing new sand
batteries to use in closed augers, to move the sand to the well bore
and/or using a less hazardous non-silica material as a proppant such as
ceramic where this is feasible.  

		Continuing education is particularly important in this industry.  The
physical demands of much of the work, competition for workers, and the
transient nature of these moving jobsites, result in continuous
turnover.  Moreover, booms in the industry induce the rapid expansion in
numbers of jobs.  

		In the first quarter of 2000, in Wyoming, there were 7,809 jobs in oil
and gas extraction, oil and gas drilling and in jobs supporting oil and
gas operations in Wyoming.  A year later, those numbers climbed to
9,563, an inkling of the boom that hit full force in the middle of the
decade.  By the fourth quarter of 2008, there were 20,006 of those jobs
in Wyoming.  Job numbers declined to 16,248 in the first quarter of
2013, but that's still 108 [sic] percent increase compared to the first
quarter of 2000.

		It's possible to get a sense of turnover as well.  State statistics
show that in the first quarter of 2000, nearly 1200 more workers than
jobs, 8,971 worked in oil and gas in Wyoming.  At the peak of the boom,
in the fourth quarter of 2008, 23,378 workers were paid wages by the
industry.  That's nearly 3500 more workers than jobs, and I'll note that
those statistics don't include movement within the industry.  Those
numbers reflect people who were paid wages by the industry.  So if
someone moved from one company to another, they also might need training
or education about the effects of silica.

		So we believe this makes a strong case requiring continuing education
and training of both supervisors and workers about the hazard of silica
and how they can be avoided.

		In the past 10 years, 24,490 new wells have been drilled in Wyoming. 
This is according to the Wyoming Oil and Gas Conservation Commission.

		We're looking at a new boom in the Southern Powder River Basin where
industry officials predict 5,000 wells will be drilled in the next 10
years.  Other studies indicate another 25,000 wells will be drilled in
Wyoming over the next 10 to 15 years.

		As companies seek to maximize production, we can expect them to employ
the latest drilling and completion technology including extensive use of
hydraulic fracturing.  

		These wells will provide relatively high paying jobs which will
attract new workers who need training and who have a right to safe and
healthy workplaces.

		Wyoming has a state OSHA program.  Like OSHA nationally, the task
before it is much bigger than its staffing and funding.  Over the past
decade, Wyoming consistently has registered the worst job fatality rate
or second worst job fatality rate in the nation, usually three to four
times the national rate.

		It's important to note that this rate only includes deaths related to
fatal, traumatic injuries.  It does not include deaths caused by
occupational illness such as silica-related diseases that may occur long
after an employee has left the workforce. 

		After wide public outcry to address Wyoming's horrible fatality rate,
the state legislature in 2011 appropriated funds for more courtesy
inspectors for its consultation program.  These inspectors go to a site
and help an employer identify hazards.  No citations are given but the
employer must correct the hazards. 

		At the same time, Wyoming launched a program to incentivize employers
to address safety and health and help small companies establish safety
programs.  Moreover, companies that accept state consultation or that
work with accredited private health and safety consultants, receive
discounts on workers' compensation insurance premiums.  

		The program also funds safety training and equipment purchases above
and beyond regulatory requirements.  

		The oil and gas industry formed the Wyoming Oil and Gas Safety
Industry Alliance in 2011 with the express purpose of improving the
safety culture in Wyoming's oil patch.

		Wyoming has embarked on a revision to its rules on oil and gas
drilling, well servicing and special well servicing that exceed federal
regulatory requirements and take into account the best available
technology.

		In doing so, Wyoming OSHA has reached out to industry and worked with
safety and health advocates.  The new drilling rules were completed in
2012.  This is before the hazard alert was sent out.  Revisions of well
servicing and special well servicing rules are now underway.  They will
note the hazards posed by silica and include recommendations for
training limiting exposure, abating dust, and engineering solutions.

		Why then do we need this new federal regulation?  We believe that
improving worker safety and health requires a carrot and stick approach.
 

		I just outlined the incentive Wyoming offers employers.  The carrot's
dangled before them to encourage efforts to address safety and health.  

		Unfortunately every company in the hydraulic fracturing and drilling
industry will not meet this safety exposure limit on its own.  Not every
company in the industry will conduct the exposure monitoring, offer the
medical surveillance to workers who are heavily exposed to silica or
provide adequate training.

		In fact, some in the industry already have tried to argue that risk
from silica exposure are low.  This regulation is needed to provide the
enforcement that will bring along less cooperative operators.

		In 2012, Wyoming OSHA sent letters to every registered oil and gas
industry employer in the state notifying them of the NIOSH Esswein study
of silica exposure during hydraulic fracturing.  The letter noted that
NIOSH was "interested in working with industry partners in drilling and
well servicing, hydraulic fracturing, to field test NIOSH developed
engineering controls to minimize exposure to silica dust during those
operations."  

		The letter asked companies interested in assisting NIOSH or that had
information about worker safety and health in the industry to contact
NIOSH or Wyoming OSHA directly.  No company contacted state OSHA in
response to this request.

		The state agency wants to be one of the first state programs to
address silica hazards in its drilling and servicing rules.  It recently
observed a hydraulic fracturing operation conducted by Halliburton.  The
agency observers were able to conduct some monitoring according to John
Ysebaert.  He's the Administrator of the Wyoming Department of Standards
and Compliance for the Wyoming Department of Workforce Services.

		Nationally, the oil and gas industry has established a Respirable
Crystalline Silica Focus Group as part of its National Steps Network. 
That work is being coordinated by the American Petroleum Institute.

		Nevertheless, it is our view that significant action will happen only
with a more protective rule in place.  Cooperation occurs but we can't
depend upon cooperation alone.  We need the stick that this new rule
will provide regulators to ensure that rights of all workers to a safe
and healthy workplace are protected.  

		In addition to its moral interest, however, the community has a
financial interest in preventing long-term disabilities.  They're
expensive to both individual workers and to the safety net intended to
shield them from disaster.  Wyoming's occupational epidemiologist, Max
Sewell, has written that, "long-term disabilities are especially
important from an individual perspective because they represent both
significant medical costs as well as disability wage replacement.  These
tend to be the most costly of all work-related injuries."

		The existing standard does not adequately protect workers.  It is
outdated and does not reflect current scientific knowledge.  Tougher PEL
standard comes much closer to recognizing the true hazard posed by
silica dust.  

		We believe its adoption will ultimately help protect the thousands of
workers who toil in Wyoming's oil and gas drilling industry from silica
exposure, and we urge its adoption.  Thank you.  

		JUDGE PURCELL:  Thank you, Mr. Neal.  The next speaker on the agenda
is Mr. Peter Dooley.

		MR. DOOLEY:  Thank you.  Thank you, Your Honor, and OSHA Panel.  

		My name is Peter Dooley.  I am a certified industrial hygienist and
certified safety professional.  I currently am the President of
LaborSafe health and safety consulting, and I'm here today representing
the National Council on Occupational Safety and Health.  

		I currently serve on several national advisory committees including
NCOSH and a global management standards committee for health and safety.

		I perform health and safety evaluations, training and other health and
safety functions for a side group of companies, non-profits and
governmental agencies.  

		If we can move to slide, first, next slide.  

		JUDGE PURCELL:  Well, right now I think that's a PowerPoint
presentation Mr. Kojola had.  Is that -- 

		MR. DOOLEY:  I'm not sure which.  Try one.  Yeah.  Thank you.  

		JUDGE PURCELL:  Okay.  And I have a printed copy of that, Mr. Dooley.
 I'll mark it as Hearing Exhibit 108 and enter it into evidence.

(Whereupon, the document referred to as Hearing Exhibit 108 was marked
and received into evidence.

		JUDGE PURCELL:  And I see the slides are numbered or the photographs
are numbered.  So -- 

		MR. DOOLEY:  Yes.

		JUDGE PURCELL:  -- just refer to them by number as you go along.

		MR. DOOLEY:  Yes.  Thanks, Your Honor.

		So in my career, I have been in hundreds of workplaces that have
significant silica exposure.  I personally started my working career
working as a sandblaster and then worked in a foundry and then later got
interested in the health and safety aspects of the jobs that I was
working in, and then followed by professionally being part of going and
evaluating workplaces involving significant silica exposure.

		In general, the jobs involving silica are dirty, dusty work that are
extremely high demanding in terms of physical endurance and stamina. 
They are often jobs that are complicated by other health and safety
factors including heat stress.  

		So some of these jobs involve work like foundry work, blasting
operations as well as many construction jobs.  

		A lot of these workplaces were a part of well-known, world-class
health and safety companies, yet many others were part of very small
companies that didn't have a very structured health and safety program. 


		The need for a new silica standard is very much needed.  The current
conditions, and we heard a panel last week, including Juan Ruiz who
worked in a foundry and Santiago Hernandez who worked construction work,
about the current conditions in workplaces involving silica, and there's
very, very significant exposures that exist today that we need to be
sort of raising the bar on the whole current exposure situations
regarding silica for workers of various kinds of workplaces.  

		Next slide please, or here I can.

		JUDGE PURCELL:  Mr. Dooley, before you go to the next slide, would
you like to describe what was shown in the first slide.  I noticed there
were two workers with face protection.

		MR. DOOLEY:  Yes.  So the photos that I'm including in the slides are
photos of a workplace, a foundry that I visited that had deplorable
health and safety conditions including silica dust.  This is a foundry
that had severe dust conditions that existed as well as other health and
safety hazards.  So all the photos will be that same workplace.

		JUDGE PURCELL:  Okay.  And where is the workplace?

		MR. DOOLEY:  The workplace is in Illinois.  

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

		MR. DOOLEY:  Uh-huh.  So, secondly, OSHA needs new tools to be
addressing the silica hazards in workplaces.  While many companies have
made significant improvements over the years, many others have not. 
Some companies have simply transferred the dirtiest work to contractors
or outside vendors who continue to work without the necessary
precautions.

		At NCOSH, one of our target populations is vulnerable workers, whether
low wage workers, temporary workers, many Latino workers or other ethnic
groups that have little choice in terms of jobs and end up getting some
of the dirtiest jobs in the industry.  So many, many extremely hazardous
silica conditions continue to exist employing these most vulnerable
workers. 

		Most silica exposures in my experience of being in workplaces and
evaluating health and safety conditions, most exposures happen in very
intimate exposures and without being identified by any kind of air
sampling.  So although air sampling can be an extremely definitive way
of identifying and quantifying the amount of dust, most workers know the
times when there's most exposure to silica laden dust and those
exposures are often not monitored in any kind of way.  

		So we really looking for, you know, sort of the kinds of tools that
are introduced in this proposed standard to help raise the bar on silica
as a hazard for workers and make the necessary improvements that we know
that can be made to reduce worker exposure to silica dust.

		Most workers are not made aware of silica hazards in my experience. 
Our profession has not elevated silica to a rightful place in the
workplace hazards that demand control.  We've seen over and over again
where workplaces will take some necessary precautions if they're
expecting an inspection or having somebody from the outside come in
their workplace, and they take a lot of effort to reduce dust, to be
doing housekeeping and cleaning up of dust levels, but until there's
that kind of incentive for it to be done, unfortunately many workplaces
are in a condition that is unhealthy and deplorable kinds of exposures
that happen.

		At NCOSH, one of our expertise is training and particularly trying to
reach out to workers who may not have gotten the quality of standards
where they might have from again a world class kind of company.  And
most workers are very much unaware of the real hazards of silica, and
most have not been shown the kinds of control technology such as wet
methods, vacuum exhausted tools to be using in their jobs.  And when
they see what could be done to reduce the dust levels, it's an ah-ha
moment of knowing how their work could be done a lot safer if they had
the tools to be using.

		Many workers have not been given sort of the most fundamental tools on
the jobs to protect themselves such as the right kind of respirators,
any kind of training or fit testing for respirators.  They're often just
handed a respirator and that's the extent of the kinds of protections
that they're given.

		So, in summary, and we submitted comments to the record beforehand,
but some of the main points that we wanted to just emphasize is, one,
this whole issue about the hierarchy of controls, an extremely important
part of the OSHA proposed standard.  

		To us, hierarchy of controls is the absolutely most fundamental
premise in which we make advances in workplace health and safety.  To
rely on other methods such as personal protective equipment or various
ways of not engineering and controlling the substance at the source,
would be a really huge problem for us because the principle of really
trying to reduce the controls with the most effective methods is
extremely important.  

		The fact that the OSHA proposal has a multi-pronged component,
including medical surveillance, things like Table 1 which describe the
work methods that could be done in construction operations, we believe
is a very significant advance in this proposed standard that would go a
long way to reducing worker exposure, again to emphasize the limitations
of air sampling.  As a certified industrial hygienist, I can tell you
that 99 percent of my work in the field has nothing to do with air
sampling.  It's basically evaluating conditions, knowing what kind of
products are being used, and one of the employers on a previous panel
last week described their policy as no dust equals no silica, and we
very much believe that an emphasis on reducing dust and therefore
reducing silica exposure is a very important principle that we could be
using to be helping reduce silica exposure in all industries.

		We believe there should be a band of silica in blasting operations. 
This has been done in other countries as well as even some armed forces
departments have taken this precaution.  And, again, it goes along with
the hierarchy of controls principle.  

		The education and training requirements which Bill Kojola has
addressed already, again we see that as a very, very -- at the core of
any kind of standard.  The more that we can be increasing the knowledge
of the workers who do this work, the better control that will be seen
throughout the industries.

		And that vulnerable workers need the protection of a stronger
standard.  And, you know, often we think about OSHA standards as just
helping OSHA enforce their standard.  Well, in reality, it's really
about workers knowing what their rights are, knowing what the standard
requires and having that be a mechanism of enforcement in the workplace.

		And, lastly, we believe that in terms of respirators, when respirators
are required, we believe that workers should be able to request and
demand a powered air-purifying respirator as is in like the asbestos
standard because powered air-purifying respirators can be, and they're
not perfect, but they can be much more comfortable, and they can also be
somewhat addressing the issues with heat stress related to respirator
use.  So we believe that they provide more protection factors and
there's a lot of new technology of respirators out there, and we believe
that that could utilized to have more effective control.

		So that's my testimony and thank you.

		JUDGE PURCELL:  Thank you very much, Mr. Dooley.  The agenda notes
that there's one additional individual to be added to the panel.  That
person is Javier Garcia Hernandez.  Mr. Hernandez, if you're ready, go
ahead and proceed.

		MR. GARCIA HERNANDEZ:  Thank you.  My name is Javier Garcia Hernandez.
 I am here with the National Council for Occupational Safety and Health.
 I'd like to thank you for allowing me to testify.  I currently have two
jobs.  I work as a construction worker, helping organize a worker
construction collective coop, and I also work as a trainer, as an
outreach OSHA trainer.

		JUDGE PURCELL:  Mr. Hernandez, if you back the microphone up a little
bit.  Thank you.  

		MR. GARCIA HERNANDEZ:  I'm here to share my experience as a long time
construction worker and I'm also here to share my experience as a
outreach OSHA trainer and community organizer. 

		I work in Philadelphia.  I currently work in Philadelphia.  I'm
performing trainings for small non-profits called the Philadelphia Area
Project on Occupational Safety and Health, but I also work construction
in the area.  Construction is my main focus because that's how I support
myself and my family.  

		I'll try to read through this note, and it might be a little difficult
here.  

		My experience as a construction worker, over 15 years here in the
United States, and I also worked as a construction worker in Mexico,
I've been a member of a laborers union for years, about eight years and
after that, I work for non-union companies.  

		My experience with the silica dust and other dust in the construction
field is there isn't much to protect us.  I was here on the hearing last
Thursday and Judge Solomon, when my colleagues testify, all immigrants
like myself, he mentioned in Spanish, he asked, when they were leaving,
he said good luck.  In Spanish he said buena suerte, and my very first
thought was, well, they are going to need it.  They really are going to
need it.

		We see very little of enforcement and I say that as a trainer but I
also say that a construction worker.  And I'm reminded of this every
morning when I get up, I feel the urgency to spit and clear my throat,
gargle to clear my throat, the phlegm on my chest and I cannot stop from
thinking about that it's related to dust, silica dust.  

		Even union employers, I work as a pipelayer for a long time, laying
pipes in trenches, I would go in the trench and there is only few times
that I remember wearing a paper mask.  I would get in the trench to cut
the pipes, the existing pipes to make new connections to pipes, and the
dust would be all over in that trench with no air exhaust fans.  Sure,
it only took 10 minutes or 20 minutes at the most to cut a pipe, but
that was 20 minutes that I was breathing that dust and the fumes, right.
 And ever since that I feel I have this chronic attack in the mornings
or sometimes at night when I feel like I have to spit.

		Another, to connect to the silica dust, my uncle and I immigrated
together from Mexico about 15 years ago.  About five years ago, he was
ill and he decided to go back home to retire, and three months after he
had been home, he left because he had a pain on his side, and three
months after, he said he was going to go home and retired, he had enough
of working.  We work in construction, we work in building, and when we
left the building every day, we were all dusty, our clothes.  The next
morning we cannot wear the same clothes because they would itch.

		But, anyway, after the three months that he left, he passed away of
cancer.  None of us really knew what type of cancer it was because we
were from a rural community in Mexico where we believe that everything
happens to us is God's will, it was meant to be.  Really I don't think
today, knowing what I know about the OSHA standards, about OSHA, I don't
think it was meant to be.  He could have been protected, better
protected.

		And that's the same message that I get from workers.  Without having
the OSHA standards, without having stronger protections, we have to
defend for ourselves.  

		One of the messages that I get from workers, and among my trainings,
of the hundreds of trainings that I have done, I'm not snitching. 
That's the most common word that I get from workers, I'm not snitching. 
I won't ask for protections because I'm afraid that I'll get fired.  I'm
afraid that I'll get terminated.  It is an expression to keep a job.  

		That's the message I get from my coworkers and from many of the
workers that I have trained.  They're desperate to have a job and again
in my experience as a construction worker, sometimes I feel that it is a
high price to pay, that we have to pay with our health, right, and I
think we can do better.  

		When I think about the OSHA standards, the standard for silica, to
make it stronger, I think of if in the wintertime, we were asked to wear
a T-shirt when we could be wearing a jacket.  That's what this proposal
reminds me.  Why should we settle for less when we could be more better
protected?  

		As a construction worker, I can honestly tell you not only here in
Washington, Philadelphia, I lived in Seattle for many years.  You go to
a construction site, and you will see that most employers are not
following the standards.  You will see workers covered in dust all over
the place.  This is some of the crisis besides the enforcement.  So at
the very least we could have a better protection to protect our brothers
and sisters.

		I realize every day, and I apologize for the emotion, but I really do
think we can do better.  That's all I have to say.  Thank you.  

		JUDGE PURCELL:  Thank you very much for your testimony,
Mr. Hernandez.  

		Next on the agenda is the Wisconsin Coalition for Occupational Safety
and Health represented by Allen Schultz and James Schultz.  Allen
Schultz is first on the agenda.

		Mr. Schultz, I have a written copy of your testimony, and I'm going
to mark that as Hearing Exhibit 109 and introduce it into evidence.

(Whereupon, the document referred to as Hearing Exhibit 109 was marked
and received in evidence.)

		JUDGE PURCELL:  Also, will you be using the slide presentation during
your testimony?

		MR. A. SCHULTZ:  I'll leave that for my son to use that part of it -- 

		JUDGE PURCELL:  Okay.  That's fine.

		MR. A. SCHULTZ:  -- whenever he chooses to.

		JUDGE PURCELL:  I'll mark that for as Hearing Exhibit 110.

(Whereupon, the document referred to as Hearing Exhibit 110 was marked
and entered into evidence.)

		MR. A. SCHULTZ:  Much of it is about the same location.  So he may
decide to show some early, I don't know.  

		JUDGE PURCELL:  Okay.  That's fine.  You can go ahead and proceed,
Mr. Schultz.

		MR. A. SCHULTZ:  Thank you, sir. 

		I guess I'll start at the beginning.  There's so much I could say
about this subject.  My name is Allen R. Schultz.  I'm a retired United
Steelworkers' member from Waukesha, Wisconsin.  

		I have 40 years of experience in all types of foundries from aluminum
foundries to various grades of aluminum and cast iron foundries to
stainless steel foundries.  I've had all kind of jobs starting with
cleaning up, shoveling sand and dust and iron chips from around running
machines that I could be a foot away and I couldn't see what I was
doing.  I could just hear the screeching of the machines running.

		One machine, in fact, when I was brand new on the job, down in one of
the basements, it was like a foot, foot and a half between the wall and
the machine and I had to get in there and keep that clean or the machine
would plug up.  It grabbed my shovel.  They had warned me.  Stay away
from the machine, but it was so dusty you couldn't see the machine even
though you were only a foot and a half away from it.  You could only
hear it.  

		It grabbed my shovel, and the shovel had gone into the dust.  I don't
know what happened to it.  I had to follow my way out of the hole back
upstairs to get a new shovel.  I didn't want to take a chance on getting
caught in the machine looking for that shovel.

		Anywhere from the basements, sub-basements, in the crawl spaces around
the machines, we had to keep those clean, up into the towers.  

		The foundries, you may not be familiar, many of them operate on the
principal of gravity.  It helps a lot.  They have bucket elevators that
start by lifting the sand way up to the top of these big towers where
the sand bins are and then gravity feeds them down through the various
machines to convert the sand into proper molding material.  

		I've had many jobs in the foundries.  I was a core maker.  I was a
molder, melt furnace repairman, quality control man, the head shipper. 
I also did special projects.  I had to be cleared by the FBI for this
during the Vietnam War.  We made a  -- process with lost wax and lost
foam cores to make extremely precision materials for the Army.  

		I don't know what they all entailed, but I know that we had a
government inspector that watched us each day to make sure we didn't
take any of these secret things out.  We had to turn in all our
notebooks.  We didn't have adding machines in those days.  We had
formulas we had to follow, and we had to write them all down in a
notebook and hand everything into them and he'd lock them up in a big
safe, and then the next morning, we'd sit at our workbenches until he'd
come back in and give us all of our materials.  I guess that's off the
point.

		My last few years, I've been working in a machine shop where they
machine iron castings.  

		My second foundry, I started at Grady's.  That was the worst place. 
It's unimaginable.  I couldn't explain it so that you would really
comprehend how bad it was.  

		The second foundry I worked in with my stepfather at Waukesha Foundry.
 He had worked there since World War II, and his last 10 years there, he
was a sandblast operator where he had to go inside the cabinet where the
castings were hanging inside and going with this gun with a hose on it
that would blast sand out at the castings to clean them off, and he
could get a respirator if he wished. 

		But things that people don't seem to understand, a foundry is a very,
very hot place and the foundries that I worked in, generally except in
the coldest part of the winter, by the time you got your clothes changed
into your work clothes, in the locker room, your work clothes that you
were putting on were all soaking wet with sweat.  When you would go out
into the shop, you'd kind of walk around funny because you were full of
sweat until you got caked with dust.  It was a different kind of
environment.

		But, anyways, for his last 10 years there, just before he retired, he
was having more and more trouble breathing and, in fact, he only lived
about a year after he finally did manage to get a retirement.  They put
him on the easiest, cleanest jobs the last year or so that he was there
so he could make his 30 years so that his family could get the benefits.
 Everybody knew he was dying, get the benefits of his retirement.  It
was really very painful to watch him that last year as you could see him
going down.  He had been a big farm boy up in northern Wisconsin before
he started in the foundry, big and strong and that's why they take those
kind of guys in the foundry.  They needed strong workers.

		But anyways, the last year especially, he was having a hard time
breathing, and he was working really hard, trying to get breath and now
they have oxygen bottles that might prolong you a little longer I guess.
 But he had several heart attacks just from trying to work so hard,
trying to get breath and the last heart attack, he didn't survive.  So I
supposed technically you could say that he didn't die from all the sand
that he inhaled.  He died from a heart attack, but he wouldn't have had
that heart attack if he hadn't been breathing all that sand.

		And the respirators they usually had down here because they were so
sweaty, that he couldn't breath through them.  Within a few minutes,
they'd be soaking wet with sweat and they'd get caked with dust and then
there would be no air coming through.  So he'd wear the respirator
around his neck if he had a respirator.  Usually he didn't bother
because you couldn't use them.  

		Anyways, it was a very sad thing for my mother and I to watch him go
that way, suffering so much before he finally died.  

		From there I moved over to International Harvester.  Shortly after I
started working there, I had some foundry experience.  So the union
asked me if I would go to school to be their first union safety
representative.  OSHA was getting going pretty good then, and they were
starting to bring out new rules.  The union thought that they should
have somebody trained in safety.  They approached the company and the
company and union agreed that they would split the expenses for training
me.  I was the last one that I'm aware of that the company ever paid for
training on the union side.  

		They had several of their own.  The first person that they had for a
safety expert was one of the security guards.  Once a month, they'd give
him a white jumpsuit like you see painters put on, and he had white
gloves, and he'd go around and he didn't know anything about safety.  He
would feel on the window sills or on top of the cabinets or on top of
the soda machines in the lunchroom to see how much dust was up there,
and if there was a lot of dust, if he could wipe it off and see it
falling, then he'd put that on his report.  

		Some of the safety people that the company hired after that were
conscientious and the company would let them be, and many of them were
hired because they weren't that conscientious to be truthful about it.  

		I noticed as the time was going on that it wasn't just the older
generations that I was replacing who were having lots of trouble
breathing and dying young, but the people I was working with were having
more and more trouble breathing and we were the younger generation
supposedly, and it was much cleaner than what it had been for the
generation before us.   

		We had been installing all new high-speed modern machinery to get away
from so much physical labor compared to what it had been.  

		Anyways, I convinced the company and the union, since many of the
people in the office had originally been working in the foundry at some
point in the careers and worked their way into the office, that's the
way it used to be in the old days before everybody had to be college
educated to work in the office, so the company and the union agreed that
we would have, I've forgotten the name of the company, but they had
mobile x-ray machines.  They would come right into the plant, into the
company yard, and we x-rayed all the employees that wished to be
x-rayed, including all the management people and office people.  And I
know because I escorted them when it was their turn in and out from
their various workplaces to wherever they needed to be for their x-rays
and then back again.

		And a lot of the office people were surprised, they thought, because
they were working in the office, they were no longer in danger.  They
didn't realize it only takes a few flakes of this tiny dust to start
this process.  It just takes many years for it to get around to killing
you.  Many of them had already had silicosis.  We had asbestos and
silicosis poisoning in our foundry, both of them.

		I never was able to get the exact numbers from the company, but I know
that many of the people when I escorted them out and when it was slow
times, the gentleman would show me the x-rays and told me how to read
them.  I know there was many, many people there that had silica in their
lungs as well as asbestos.  I have both in my lungs.  

		I'm lucky being a maintenance guy.  I guess I'm supposed to say I'm a
millwright.  I don't know if I mentioned that or not.  My job was
basically a high floating mechanic.  I'd go around and keep all the
machinery running.  

		Since I was the safety guy, I was involved a lot with keeping the
various safety systems operating as close as we could to the way they're
designed.  I know a lot about how they're designed and how we tried to
keep them working right.  We always seemed to be out of the right parts
to keep them working.  

		Where was I?  We had some original old baghouses, very tiny,
inefficient little things and OSHA came in a number of times as well as
the state, I forgot the name for the state organization, safety
organization, but the company would argue and debate and they would
eventually -- they would always be beyond the limits for pollution for
the workers and all this, even though they did their best to try to
distract the -- like, for instance, I know many times the OSHA worker
was to come to inspect, and the company would not let them in that day. 
They would have to come back the next day, and then there would be 24
hours of everybody cleaning up.  They put the very cleanest jobs on the
machinery.  They knew which ones were the filthiest and the dustiest,
and which ones were the cleanest.  They'd change all the work for the
next day so that it would be as clean as possible.  And they'd have
everybody staying over their shifts to cleanup everything, make it look
as good as they could.

		And then sometimes if they didn't get time to do that, they'd ask the
OSHA inspector specifically what he wanted to see, and he's say such and
such a machine in foundry 3 or machine shop or whatever.  They'd walk
them way around the outside of the building to the closest gate to get
into that part of the facility, and they'd let them in to see that, and
then they'd walk them back out and way around, back around to the front
office door.  They wouldn't let them see the rest of the facility if he
didn't ask for it.

		We had rotating management and some of them were better and some of
them were worse from the worker perspective.  Some of them did actually
care as much as they were allowed to try to make things better for the
worker and the company.

		Often the company would get fines but they would bargain them down
over the weeks, months, whatever, down to a couple hundred dollars,
maybe $1,000 and the rest of the fine, they would agree that they would
put it into repair and maintenance of the various safety equipment but
we never seemed to have enough money to buy the filters, get the repairs
for the piping and all those kind of things.

		I could go on with a hundred differences of my experience of the bad
working conditions that we had to put up with.  

		You just have to keep in mind that these respirators might work well
in a normal place that you work at like this, where the temperature is
moderate, but in a foundry where it's very hot on a good day, and on a
summer day it can be 130, 135, and that's not counting around the
furnaces where my son worked part of the time, just out in the foundry. 
It was extremely hot.  You're soaking wet with sweat, and with all the
dust, it would cake up your respirator and you couldn't be running to
the office.  They only wanted to give you one a day.  What did you do
with it?  Did you get it dirty?  Well, of course, you got it dirty.  It
sucked in all that dust.  You couldn't breathe through it.  So you'd
have to take it off.  

		At the end, they started getting these forced air helmets that looked
like space helmets that they had in a couple areas to try them for a
number of years.  They worked pretty good as long as they were kept
clean and operating properly and the machine worked good, but they
wouldn't expand them to the people that needed them the worst out in the
foundry where it was the hottest.  They used them in the relatively
cleaner area where they're just grinding on the castings.

		I'm kind of bouncing around here.  I guess this is -- 

		JUDGE PURCELL:  Mr. Schultz, I don't want to cut you off, but I want
to make sure we have enough time for your son's testimony as well.

		MR. A. SCHULTZ:  Sure.  I'll finish up with a couple of things.  

		Something that people don't realize, even in a foundry, they don't
think about this, but you get your clothes so dirty with this silica
dust and asbestos, and then you take the stuff home and you clean it,
and then it gets in the washing machine, and the filters in the washing
machine don't get rid of all this stuff.  It goes throughout the family
wash, and then your children and your families also get exposed to this
stuff.

		I would like to see something that would require that the companies,
if you're going to be working around dusty conditions, they would be
responsible for taking care of cleaning your work clothing and all this.
 They would be required to do that, that you wouldn't get taking
anything out of your work area that could possibly hurt other people.  I
don't think that's been mentioned by anybody but that's very important.

		Thank you very much.  

		JUDGE PURCELL:  Thank you, Mr. Schultz.  Next on the agenda is
Mr. James Schultz.

		MR. J. SCHULTZ:  Thank you.  Good morning.  My name is James Schultz,
and I am appearing on behalf of the Wisconsin Committee on Occupational
Safety and Health, its membership, and the workers from across
Wisconsin, both those that have representation in the workplace and
those that don't.

		I'm also here today as a worker directly exposed to silica on a daily
basis for over 15 years, and a family member of a worker exposed to
silica on a daily basis and at much higher rates than I was.  I have
also had relatives in my family that have died from silica-related
diseases as have a number of my coworkers that I knew and I still know
workers that are coming down with silicosis even today.

		I am currently serving on WisCOSH's Executive Board as well as oversee
their outreach and training programs.  I also interact directly with
workers that come to and employers that have questions about workplace
issues regarding safety and health, and I am a safety consultant for the
Black Eagle Construction Company.  I'm an OSHA authorized outreach
trainer for construction, and a former United Steelworkers Local 3740
bargaining and grievance committee member and as a safety deputy for
Navistar Waukesha Foundry facility.

		Over the course of my career, I've been in hundreds of workplaces that
range from businesses with 3 or 4 workers to facilities with well over
1,000 workers.  As a youth, my first jobs were on neighboring farms and
ranches by our house that we built.  From there, I went on to work in
the food service industries and hospitality industries for more than 20
years, and I spent more than 15 years working in a foundry where I
worked nearly every job classification within that facility over the
course of my time there.

		Along the way, I also worked construction jobs, both union and
non-union, in small printer shops and in spice mixing and packaging
facilities as well as many other part-time and seasonal jobs.

		Today I will speak mainly about my experience in the foundry as that
was the longest continuous job where I had direct exposure to silica. 

		I began my foundry career in the core room where silica sand was mixed
with a chemical binder that is then blown down into a mold to shape the
core and it then has a gas passed through it at a high pressure to kind
of set the binders and the sand in the shape that it needs.  Cores are
put inside of molds to create an open space in the iron so that you
don't have to drill holes and things through it and sometimes you can't
actually drill the shapes you need.  So you need the core there to keep
the iron out of certain areas.  And like the sand used in the molding,
these cores are made out of silica sand.

		Some of these cores were in areas that needed to have special dips put
into them so that they could withstand the high temperatures as they
needed to last longer.

		JUDGE PURCELL:  Mr. Schultz, I think your father just put a
photograph in.  That's the first one.

		MR. J. SCHULTZ:  This is just outside of the core room area where you
can see boxes and boxes of cores stacked up.  They also had a lot of
shelving that also held cores and basically they were running these
cores, making these cores on a one day or two day ahead basis.  There
were some cores that needed to sit for three or four days but most of
these cores were made and then used right away, and even still they have
a lot of this here, so you can see that there's a lot of silica sand in
use on a daily basis. 

		JUDGE PURCELL:  And for the record, the slide caption is east end of
the core room area facing south.

		MR. J. SCHULTZ:  Correct.  And in the background you can see a
sweeping machine that is actively working.  This is during the second
shift at down shift, and there's still quite a bit of dust in the air as
you can see as well as on the ground you can see the path that the
sweeper took through there and how much was left and how much is in the
air.

		Our core machines were fed by an overhead mobile mixing platform that
mixed the sand and the binder on an individual machine basis as
different machines would be running different cores for different jobs
at the same time.

		The sand was fed from several 40-foot silos just outside the core room
building.  These transport pipes and the mixing platform often leaked
sand.  As you're transporting this quantity of sand through these pipes
on a nearly continuous basis, you're basically sanding away the inside
of the pipe to the outside, and so there was constantly leaks both
outside and inside the building that workers would have to go and
cleanup besides their work areas.

		There were also several older core machines that made specialized
cores that used a different binder, and they were set by direct heat
flame.  Additionally, all the patterns used to form the cores were
cleaned by sandblasting them clean with silica sand.  Like the rest of
the facility, the areas around the core machines were cleaned up by
using high pressure airlines to blow the sand off the machines and out
of the work area into the aisle where the sweeper would come through and
drive by sweeping up sand off the floor.  The sweeper always left a
plume of dust behind it that often took 15 to 20 minutes to settle.

		When I left the core room department, I went to the soft iron
department, and worked along the knockoff lines which is an area where
we would separate the casting from the part of the metal that was called
the screw and the runner which actually would get the iron from the
outside from the ladle into the casting to shape it.  This was a very
hot and very dusty area.  We had to stand along a long flat table that
would shake to move the castings along.  So they would often come
through with sand still on the casting as well as the sand that had
fallen off from around it, and it would be constantly putting that dust
back up into the air the entire time.  

		JUDGE PURCELL:  And for the record, the next slide is captioned soft
iron department -- 

		MR. J. SCHULTZ:  Right.

		JUDGE PURCELL:  -- and I think that's what you're describing now.

		MR. J. SCHULTZ:  Yes.  Although this doesn't actually show the
knockoff line.  It was just too dark and dusty in there to get any
pictures that would show up.  Off to the left side here, is where we go
to the knockoff lines.  So this dust here has filtered over to an area
where, you know, 50 to 75 feet away from the knockoff lines, and there's
still this quantity of dust in the air not far from where the workers
are directly working with it.

		JUDGE PURCELL:  Is that the area in the direction of the foreman's
office?

		MR. J. SCHULTZ:  The foreman's office was the only enclosed area in
that place.  They had minimal filtering for the foremen to sit in up
there.

		JUDGE PURCELL:  So it would be in the opposite direction -- 

		MR. J. SCHULTZ:  Right.  

		JUDGE PURCELL:  -- where it says knockoff and shot blaster.  

		MR. J. SCHULTZ:  Yes.  

		MR. A. SCHULTZ:  One thing, at least one thing, the foreman had air
conditioning.  It would probably be below 100 in his office.

		MR. J. SCHULTZ:  Along the way from the cooling line rooms, from the
molding machines, the molds would bounce along these long shaker lines
with the intent of separating the casting from the majority of the
silica sand mold that it was poured in.  But even with that, much of the
sand remained on the line all the way to the knockoff lines.

		The molds were poured at temperatures between 2,550 degrees Fahrenheit
and 2,685 degrees Fahrenheit depending on what the job called for and
what type of iron they were making.  

		By the time they got to us, they may have cooled down to somewhere
between 750 degrees Fahrenheit and 1,000 degrees Fahrenheit.  The sand
that arrived along with the castings would normally be an inch or two
deep but at times it might be four or five inches deep and there were
oftentimes, depending on the large jobs, it may overflow the tables and
fall on the floor and kind of bury the floor that you were working in,
and this would be sand that itself is around 1,000 degree or so also and
very much baked.  

		You could tell the parts of the sand that were closest to the iron
because they were baked back white.  They had kind of gotten rid of the
binder that was used to hold the sand together in the mold, but it
constantly kept sand in the air, dust in the air around us.

		JUDGE PURCELL:  The next slide shown here is captioned normal three
molding machines running, and it shows a good amount of dust.

		MR. J. SCHULTZ:  Yes.  This is -- you can't even really see the
molding machine down there, but this is while we had three molding
machines in the plant at this time, and this would be while three of
them were working.  So it's just actually outside the melt deck area and
you can't even see down to the first molding machine which is about 85,
90 feet away from where that picture was taken.  

		MR. A. SCHULTZ:  I might mention that if they know OSHA's coming in
the next day, it doesn't look like that the next day.

		MR. J. SCHULTZ:  Right.  The separated castings will continue along
this shaker line past us.  They would actually merge all three molding
lines together.  Two molding lines would come out on one wall and those
would be set up to a center line where the third molding machine would
then bring in their castings and mix together.  So what the folks down
on the first line couldn't separate from their screw and runner, would
get sent up to a second chance on the other line which had more casting
coming through to be sent, and from there, they would go down the line
to the shop blast machines which were all in that same area and then
sent up around to a sorting belt for the chippers and the grinders to
get the castings from there.

		So all of these areas were directly with each other.  They were not
separated from each.  This dust in the workplace exposed all of these
workers to that silica dust.

		I also worked on several of the molding machines while I was there. 
They combined the silica sand with binders and rammed them into patterns
and a pouring cup would be drilled in the top to facilitate the pouring
of the iron and most of this iron was poured by hand by workers having
thousand pound ladles pouring this iron, 25 to 2700 degrees, and they'd
be pouring it by hand into each of these molds as they would go past.  

		Eventually we did get a couple of automatic pouring machines which
were basically a capped furnace where you put the molten iron in the one
side, it would pressurize it and pour it directly into the mold on the
other side but they were not any less dust inducing than the hand
pouring.  It just required fewer workers to be so directly close to it.

		Along with these molding machines, you had to work in the area where
this sand was being rammed into the molds, but you would also, for most
jobs, have to place one of these cores or sometimes more than one of
these cores inside of there, and you would also have to check the top
part of the mold because they would have them separated to see if there
was any sand occlusions on there, something that didn't work out right,
so you could scrap it.  And to scrap it, you would wait until they got
close at the end of your line, and then you'd have to throw some more
white silica sand on the top of it to mark it so that the people pouring
them would know that you shouldn't pour that one.  So you were directly
being exposed to silica in a number of different ways on these jobs.

		I worked both in a core setter position and as an iron pourer.  These
molding machines ran at a rate of 200 to 300 molds per hour for the
smaller machines, and 180 to 250 molds per hour with the larger machine.
 

		At that rate, there was a constant drizzle of sand falling down from
above, from the drill, cutting the pouring cups as well as the sand and
dust in the air from the molders up above the molding machine preparing
the sand to be used by the molding machines.

		The mixer for the two smaller molding machines was overhead of the
molding machines and the third molding machine was in a separate foundry
area and had its own molder to mix the sand, and as you can see, both
the molding machine lines and the iron pouring lines were constantly
engulfed in smoke and falling sand.

		I also worked as a furnace operator for several years and during that
time, my normal assignment was to do the repairs on the new auto pour
machines, the auto pour furnaces, that were installed one and then
eventually two of the molding lines.  This was daily maintenance and
repair of the machine, which meant that I worked directly on that
furnace while it had iron in it shortly after it finished pouring iron
for its production shift, and I worked directly with the refractory
materials.  I would have to use jackhammers and chisels to get the slag
and iron build up off of the machine so that you could continue to have
a good spout to pour the new iron into as well as allow it to maintain
the correct pressure within the machine to do the job correctly.

		JUDGE PURCELL:  The current photograph shown on the screen is the
normal two molding machines running, and it shows melt furnaces and the
H2 molding line.

		MR. J. SCHULTZ:  Correct.  So, as you can see, with only two of the
three machines running, it was slightly better in there.  You can see,
that fork truck would have been parked in the same place in the last
picture, and there are three furnaces and a holding furnace where we
would take the iron out of the melting furnaces to put it into the
holding furnace to kind of stabilize and get a consistent chemistry in
the metal and then right past that, about 15, 20 feet from there is
where the next molding machine would be at.  They were in very close
proximity.  

		All of the workers in all of these areas were exposed to this kind of
dust, and these are recent pictures.  I left the facility slightly over
10 years ago, but these pictures are within the last two months.  So
this is current conditions that these workers are being exposed to on a
daily basis and oftentimes workers work an 8½ or 9 hour shift, but
they're often asked to work 12 or 16 and 6 and 7 days a week.  So this
is a fairly continuous exposure to this type of hazard that these
workers are facing.

		Another one of the jobs would be, on a semi-regular basis, a couple of
times a year, unless they could get away with it, if they took care of
them well, they would have to reline these furnaces which would mean
knocking them down, taking all that refractory out and repacking it with
new refractory so that they would operate properly and not have to worry
about burning through the bottom and causing a serious incident from
happening.  

		When these workers did these relines of these furnaces, they would
climb up out of these furnaces and they would be covered in so much of
the refractory dust that they looked like somebody had literally taken
them and dipped them in a big bottle of whiteout, whether they're
African American or Latino or Caucasian, they all came out looking about
as white as this piece of paper here from head to toe.  

		It would make its way under -- many of them would wear jumpsuits.  A
few of them would have suits similar to like you would use for asbestos
where they had the elasticized cuffs and stuff, but it will still go
through all that to their clothes underneath even still. 

		I worked on the cleanup crew for a while which had to go around and
suck up the sand that spilled over the sides of these sand belts and
shaker lines that would move the castings down the line, and oftentimes
the binder would not be properly mixed in the sand and so when you would
go to pour it either from the hand pouring or from the auto pouring
machines, it would break through the bottom of the mold and then you
would have a bunch of sand and iron that would have to get cleaned up
before the next shift could come through because sometimes if the molder
wasn't working right, you might have a lot of them and you could
literally not get the line to move down because there was too much sand
piled up in that area, and it would stop production.

		And when we sucked up sand, we would use a vacuum hose that would be
six to eight inches in diameter, and it would still take the full
eight-hour shift and you could never get all of the sand up off the
floor.  There was so much silica sand spilled everywhere.  All you could
do was try and keep the rollers and the machines free to continue
working and try and keep that sand sucked up, and if for some reason you
were able to get a little ahead and maybe cleanup some of the rest of
the sand that was everywhere, but most of it was just cleaning up the
sand that would allow the machines to continue to operate. 

		For a while as I recovered from a serious workplace injury, I worked
as a janitor or building maintenance worker.  I worked throughout the
facility and the sand and the dust was everywhere.  In the lunch rooms,
in the bathrooms, in the locker rooms, and in the offices.  It even made
its way over to the machine shops and the truck shop and the maintenance
areas which were separate buildings, not located close to the production
area.  

		In fact, this molding facility covered approximately a square mile of
acreage in town, and most of the molding machines and the core room were
on one end, and the machine shops and the maintenance areas were at the
far other end of the facility, but the sand and the dust would still
make its way across that vast expanse.  Certainly it wasn't as
concentrated there as it was down in the production areas, but it was
still present and exposing the workers to it.

		So I'd like to talk a little bit about the proposed rulemaking.  As a
worker representative, I am heartened to see that OSHA is taking on the
silica health hazard.  I have been touched by silica-related death in my
family and hear from workers often and the workers' families that have
been exposed to it as well.

		I was recently contacted by a gentleman that I worked with for many
years and had retired not long ago.  He called me up to get some
information on silica and what it was, as he had just been told that he
had silicosis.  He was not told by his doctor but, in fact, he was told
by the surgeon that had been employed to remove some masses from his
throat.  After the surgery, the surgeon informed him that it was, in
fact, silicosis that he had.  

		And, after that, we had to try and help him work through the workers'
comp system to file a claim as he had been retired.  So there's a lot of
paperwork to deal with trying to prove that he was exposed to this on
the job even though he had the surgeon telling him that this was
obviously a work-related issue.  He is still alive.  We don't know what
his prognosis is at this time, whether they were able to get all of it
and whether any of it will come back or not.

		I have known him to be a fairly upbeat person the entire time I've
known him, but this news seems to have shaken him greatly.  He is not
quite as carefree as I always knew him to be.  He is much more sullen
than he was before his future is very uncertain.  He worked a long time,
many hours over many years to try and get a retirement that he would be
able to take care of his family and he's now not sure how long he's
going to last.  

		I've known a number of other workers from this facility that lived a
year or two years after they retired.  There were also a number of them
that while I was there died just before they retired or died after they
retired but before they received their first or second retirement check.
 

		Silicosis is a very real reality for workers in the foundry industry. 
No one should have to spend their final years fighting to be able to
breathe and stay alive.

		I could go on today in much more depth in this discussion but I will
try to speak on just a few of the items raised in the proposal.  

		The good things that I have seen in this proposal is that I'm glad to
see that the old methods for determining exposure levels which were
difficult to understand or calculated have been eliminated in favor of a
set permissible exposure limit.  I'm glad that it is much lower than
what was previously acceptable but would be in favor of an even further
reduction to the lower level that has been proposed in this proposal
we're looking at.

		I'm glad to see that the proposed exposure assessment requires testing
on all shifts and each job as oftentimes I witnessed workplace
monitoring take place on downshifts or while light production jobs were
run as well as other areas that weren't tested at all because it was not
considered to be part of their hazard in that workplace even though, as
the pictures have shown, they were clearly being exposed even if they
weren't working directly on those machines.  

		I'm also heartened to see that the proposal mandates that the employer
provide protective clothing and equipment at no cost to the observers
that are doing the observation and the monitoring of the hazards in the
workplace.  

		I'm glad that this proposal has great emphasis on instituting
engineering controls and work practices over PPE and that it excludes
job rotations as a means of reducing worker exposure.  

		Furthermore, the requirement for employers to provide protective work
clothing to workers where there is a potential for work clothing to be
grossly contaminated is welcome, and something I fought for while
working in the foundry as nearly every worker would fall in that
category.  I feel that the clothing should not need to be grossly
contaminated in order to receive this protection, and it should include
shoes, boots, jackets, and other clothing worn while working in these
regulated areas.

		The bad parts about this proposal is I believe that the periodic
medical examine should be available more often than every three years. 
Rather than being based solely on a time interval, it should also be
available whenever a worker is experiencing symptoms of exposure, and I
also feel that it should be available to these workers even after
they've left this type of work environment as it takes a long time for
silicosis and these other diseases to manifest.  They may not know until
they've retired that they have silicosis and many of them may not check
it out early on when they first have a feeling that something is wrong
and may not actually go and find out about it until it's very well
advanced.

		As a worker in this facility, I often was required to wear a
respirator.  While I was working as a furnace operator, I was able to
get them to give me a PAPR type respirator but in other areas, they
refused to provide that for me, and I think that myself and a number of
other workers there had facial hair and some of them were willing to
shave.  Some of us had religious reasons why we would not, and we would
ask for alternative respirator protection than what they were providing
us.

		And oftentimes we don't know that they were giving us the correct type
of respirator for what we were working in anyway, as we often did not
see the boxes.  They would often have the bags of respirators sitting
out on the counter where it was open and exposed to the same things we
were being exposed to.  So when you put the respirator on, sometimes
they would be upside down.  So it would have collected a bunch of dust,
and other times it would be face up and it would just settle on the top
of it, but you would still be sucking in the hazard even though you were
supposed to be being protected from it.

		I see no provision for classifying the work clothes worn in a
regulated area as hazardous materials requiring special or separate
storage and treatment by the employer or the laundries cleaning the
clothes.  As with asbestos, there should be some safe means for workers
to clean themselves and change into non-contaminated clothing before and
after their work shift.

		Currently in the state of Wisconsin, we're among the leading areas in
the country with hydraulic fracking taking place, and as Governor Walker
has been working diligently to dismantle the environmental protections
in our state, it will only increase and place even greater workers in
harms way due to their exposure to silica in this area as well.

		So I thank you for having us here, and I thank you for doing what
you're doing.

		JUDGE PURCELL:  Thank you very much, Mr. Schultz.  

		Two things.  You have a written copy of your testimony.  If you'd like
to offer that as an exhibit, you can and I'll have her enter it into
evidence.

		MR. A. SCHULTZ:  Okay.  

		JUDGE PURCELL:  That would be Hearing Exhibit 111.  

		As I indicated before, I've marked the photographs that were up on the
screen as Hearing Exhibit 110, and that's admitted into evidence.  You
didn't mention the last slide that's up, if you want to describe it.

		MR. A. SCHULTZ:  This is an area on the melt deck that was not visible
in those previous pictures, but this is a furnace operator actually
transferring iron out of the holding furnace into one of the ladle
trucks.  As you can see from the light generated by the iron, the 
amount of smoke and dust in the air as well in that area.  We wouldn't
see that work taking place because of the vast amount of dust in the
other pictures, but it is everywhere in this facility no matter what job
you're doing.

		JUDGE PURCELL:  Okay.  Thank you, Mr. Schultz.  And do you want to
hand me that copy of your testimony.

		MR. A. SCHULTZ:  I certainly will.  

		JUDGE PURCELL:  And as I said, that's marked as Hearing Exhibit 111
and admitted into the record.	

(Whereupon, the document referred to as Hearing Exhibit 111 was marked
and received in evidence.)

		JUDGE PURCELL:  Thank you for your testimony.  

		At this time, I'll open it up for questions.  Can I get a show of
hands?  Several.  Okay.  Ms. Trahan, if you'd like to come up and start
the questioning.  State your name and your affiliation for the record.

		MS. TRAHAN:  Thank you, Your Honor.  Chris Trahan with the Building
Trades.  Thank you all for your testimony.  I just have a few questions,
I think first for Mr. Kojola.  

		There's been testimony in these hearings regarding the training on
proper use of engineering controls for construction workers.  Given your
own experience with construction in the construction industry, I was
wondering if you could explain or articulate why you think this might be
important.

		MR. KOJOLA:  Well, you know, I think it's important because it is sort
of the core measure for controlling worker exposure is having
engineering controls present on the jobsite.  In construction, where
you're using tools that grind or cut or whatever, in order to control
exposure, you could use, you know, sort of two approaches.  One is a wet
methods approach and another is using a local exhaust ventilation system
with a shroud to reduce worker exposures to their breathing zones.

		Workers need to be trained on how to use this equipment properly, how
it's supposed to function, how they're supposed to use the equipment on
a construction site and to identify when the piece of equipment is not
function properly. 

		These are all sort of the key elements of controlling exposure for
construction workers on jobsites, and in the absence of a mention in the
OSHA standard, that in addition to training on work practices and
personal protective equipment, these critical engineering control
measures for the tools that construction workers use is absolutely
essential, and I think the standards should be very explicit about that.

		MS. TRAHAN:  Thank you.  And, Mr. Hernandez, I thought your testimony
was very compelling, particularly the "I'm not snitching" and "I'm
afraid to get fired" quotes.  I think a lot of our experience in
construction is the same across all sectors, but what I did want to ask
you about, you described the work you did in the trench, and that in a
very short period of time, the trench would become filled with dust. 
You were cutting pipe.

		MR. GARCIA HERNANDEZ:  Uh-huh.  

		MS. TRAHAN:  And this was concrete pipe.

		MR. GARCIA HERNANDEZ:  Concrete pipes.

		MS. TRAHAN:  Okay.  And what type of tool?

		MR. GARCIA HERNANDEZ:  Well, typically you use a concrete saw and when
you're down in the trench, this is a portable fuel operated concrete
tools.  We call it concrete saw with a diamond blade on it.  So you get
in that -- when you're down in the trench, there is no way -- there is a
way but we're not -- hardly anybody connects the wet saw to a hose so it
would have a wet cutting system.  So we will be cutting the concrete
pipes dry.

		MS. TRAHAN:  So it was gasoline powered.

		MR. GARCIA HERNANDEZ:  Gasoline power.

		MR. TRAHAN:  Is it also known as a chop saw?

		MR. GARCIA HERNANDEZ:  It's also known as a chop saw.

		MS. TRAHAN:  Okay.  Thank you.  And there was a water hookup but -- 

		MR. GARCIA HERNANDEZ:  They come with a water hookup.  They have a
hose hookup on the side but I never seen anybody use the hookup down in
the trench.  Sometimes they use the water hookup when cutting pavement,
concrete sidewalks especially but typically when the owners of the
residence or the particular workplace, they complain about dust but
hardly ever you see anybody cutting with a water connection.

		MS. TRAHAN:  Okay.  And would you know why that is?  Was water not
provided in those circumstances?

		MR. GARCIA HERNANDEZ:  Well, water can be provided.  Usually my
experience is the lack of planning.  Managers doesn't often consider or
think about that particular step.  It can be done because I have over
the years have worked with companies who have taken measures whether
because they have been cited by OSHA or because they were actually
conscious themselves, but it can be done.  The equipment comes with the
-- this particular saw, it comes with an attachment that it could have a
hose hookup to it to have water so it's running.

		MS. TRAHAN:  Okay.  Thank you very much.  

		JUDGE PURCELL:  Thank you, Ms. Trahan.  Next, Mr. Snyder.

		MR. SCHNEIDER:  Okay.  Scott Schneider with Laborers' Health and
Safety Fund.  That's 

S-c-h-n-e-i-d-e-r.  I have a couple of questions.

		First of all, at the hearings, we've heard a number of employer
associations say, well, we don't really need a standard or new standard
because silicosis is disappearing in this country, that we're not really
seeing any more silicosis.  I don't know if you could comment on that. 
Jim, I don't know. 

		JUDGE PURCELL:  Mr. Schultz, identify yourself for the record when
you're responding please.

		MR. J. SCHULTZ:  Sure.  James Schultz from WisCOSH.  Both as a
steelworker, I'm still active with our local and the retirees and
through WisCOSH, with our outreach, we hear from workers that have
silicosis.  I still see a fair amount of them coming through the door,
people asking for information on what it is, and what they can do about
it, and how they got it, and we talk about their work history and find
out that they were working in construction, they worked in foundries or
mills.  

		And, many of them have passed away although very few of them have died
directly from the silicosis but they've died from diseases or other
causes that were brought about because of the silicosis such as my step
grandfather who died of a heart attack because it was so hard for him to
breath because of the silicosis he had but the death certificate said
heart attack.  So I think there's a lot of workers out there that are
still experiencing silicosis and may never have been checked out by
their doctor because they worked in a foundry and while you work hard,
you get aches and pains and you just deal with it.  You don't go and
check it out.  Even today, young workers don't feel that way either,
that they need to go and find out why they're hurting.

		MR. SCHNEIDER:  Right.  Okay.  Thank you.  So your dad had said
something about how when they heard that there was an OSHA inspection
coming, they would clean the facility up, and it was a lot less dusty. 
So were there any controls in use during in the facility or could they,
you know, turn them on or turn them off when they heard OSHA was coming
or how did that work?

		MR. A. SCHULTZ:  This is Allen Schultz.  I'm also here for WisCOSH.  I
guess I forgot to mention that.  I was there when they converted over
from the old fashioned primarily hand labor to the new automated
machinery, so they could speed things up and reduce the number of people
they needed.  And most of the machinery all came with tight fitting
hoods and they had exhaust ventilation built into them and all this.  

		But very shortly that disappeared, the various conveyors and shakers
and all these different machines, they would get plugged up with sand
and/or castings.  We'd have to take all these covers off in order to get
in there to work on them, and they wanted to start production up right
away.  They didn't want all these production people standing around and
iron maybe getting cold, whatever.  So over a short period of time, they
didn't have all the proper covers and guards and air collection devices
weren't all reused.  They were set aside, and then after a little while,
they'd be in the way and they'd just get thrown away and all these
things would be running so-called naked I guess you could say.  

		The manufacturers that made the machines, most of those came with all
of these things to the best of their ability at the time when they
designed them and built them.  They did have some apparatus for trying
to keep the dust contained within the machine and into the baghouses and
other collection machinery, but they just weren't maintained that way.

		But it was very easy for the company, if they knew when they were
going to get an inspection, they'd have certain jobs that were very
clean but the vast majority of them weren't, and they'd have everybody
working overnight, whatever, cleaning everything especially the main
walkways where they would try to get the OSHA inspector just to walk
down the middle where it was the cleanest and not go back behind the
machines.  There were various layers of machines.  It wasn't just one
row, and there's also machines up above.  

		So they'd know which ones used the least amount of sand and which ones
did the least amount of shaking, they'd get them cleaned out and all
this, and they would run those during their perceived inspection times. 


		MR. SCHNEIDER:  Okay.  Thank you.  

		MR. J. SCHULTZ:  James Schultz from WisCOSH.  From my experience
working in the knockoff area and the shakeout rooms, they did have water
systems installed on several areas of the shakeout lines that would keep
the dust down but they were very poorly maintained and the pipes would
break from the heat and it would take a while to get fixed.  So they'd
have it turned off for a long time but even when they had them turned
on, they didn't really have a sufficient amount.  You could tell a
definite difference in the amount of dust in the air when they were
working and if they had more of them installed along the lines and had
them better maintained, it could have reduced a lot of the dust in the
area by a significant amount.

		MR. SCHNEIDER:  Uh-huh.  Thank you.  

		MR. A. SCHULTZ:  What he's talking about, I tried to get them to have
a push/pull system.  They had some suction fans in front of their work
areas that were somewhat efficient, but there was still so much dust
rolling off of these shaking conveyors.  I tried to get them to put fans
behind them and blow the dust away from them into these collection
areas, but they never wanted to invest more in that.  They didn't feel
that was necessary.  So it just stayed dusty.  

		JUDGE PURCELL:  For the record, the additional comments were provided
by Allen Schultz.

		MR. A. SCHULTZ:  Sorry.

		MR. SCHNEIDER:  You sound like an industrial hygienist.  That's
exactly what they should be doing.  

		MR. A. SCHULTZ:  Right.

		MR. SCHNEIDER:  Was any training provided at all in the facility about
dangers of silica or -- 

		MR. J. SCHULTZ:  No, they never -- James Schultz speaking here.  They
never really talked to us about silica, and over the 15 years that I was
there, I know of two times where they did any kind of training on
wearing a respirator and how to properly wear it, although both times
that I was involved in that, they didn't go fully through the process.

		And there were a number of workers that told me after the thing was
done, that they could smell the different aromas coming through but they
had told them that they couldn't smell them because they could see on
the looks of their faces that that's what they wanted to hear.  So
that's what they told them but they could smell one or more of the
chemical aromas even though they had gone through the hood test and
stuff, but they didn't mandate any kind of medical exams or anything
like that. 

		We talked to them about providing smaller size respirators for the
females and things like that, but that was an additional expense, and
most of the women didn't want to wear a respirator anyway, so they were
not going to bother with it, was their respond.

		MR. SCHNEIDER:  And you said that they did sampling at times, and did
they give the results to anybody or make that public or workers access
to that or did it change anything at all or -- 

		MR. J. SCHULTZ:  James Schultz speaking.  I don't recall ever seeing
the results posted anywhere and I've been working with my local to try
and get any recent monitoring testing that they've done to see what the
levels are there now, and it's been very difficult to get that from
them.

		MR. SCHNEIDER:  Yeah.  

		MR. A. SCHULTZ:  This is Allen Schultz.  I have 30 plus years
experience there, a little bit before Jim, but we had a number of times
that they did testing but they did it in such a way as to make it look
as good as possible for them.  They would possibly go and test somewhere
in the lab where they try to keep it as clean as they can or they'd test
on a downshift or quite often, most of the time, in fact, they would
hire these outside firms who they believed would give them the very best
test results.  

		And I would walk around with this guy and watch.  He would put the
pickups under the collars, face them backwards instead of forwards, so
that they wouldn't get any dust or anything into them if possible. 
They'd put them under their jacket.  Many of the guys wore jackets.  It
was very, very unreliable testing as far as being truthful and accurate
testing.  They did do some testing -- 

		MR. SCHNEIDER:  Yeah.

		MR. A. SCHULTZ:  -- but I had my hands full trying to keep them as
close to being truthful as possible, and I'd never, I can't say never,
but very seldom got to see the results and I really believe that the
results were actually doctored on the paper with a pen regardless with
what they came up.  They wrote down what they knew the company wanted
them to write down.

		MR. SCHNEIDER:  Yeah.  Well, thank you very much for your testimony
and for your work, your efforts.  

		JUDGE PURCELL:  Thank you, Mr. Schneider.

		Who else had questions?  Ms. Nadeau, is it?

		MS. NADEAU:  Yes.

		JUDGE PURCELL:  Thank you.  Please state your name and your
affiliation for the record.

		MS. NADEAU:  I'm Liz Nadeau, and I work for the International Union of
Operating Engineers.  

		In the pictures it's dark.  How often is it dark so that you're
combining the dust with the dark?

		MR. J. SCHULTZ:  James Schultz.  I would say mostly 90 percent of the
time.  Even in the daytime, it's very dark in there.  Because of the
large amounts of dust that they produce there, they are constantly under
the scrutiny of the Wisconsin Department of Natural Resources and the
EPA.  So there are monitors all around our facility, and so their way of
keeping from getting cited by them was to make sure that all the windows
was closed, all the doors were closed at all times.  So it kept it very
dark in there almost all the time.

		MS. NADEAU:  I noticed that there was a ladle truck in one photo.  Is
there other heavy equipment being used in operated with the dust and the
darkness?

		MR. J. SCHULTZ:  Yes.

		MS. NADEAU:  And can you name some of the other pieces of equipment?

		MR. J. SCHULTZ:  Well, they have different sizes of ladle trucks. 
They have a transfer ladle that would take the iron from the furnaces to
the holding furnace, and they also had like the one in there that would
take the iron from the holding furnace to the ladles to be poured into
the molds, but they also had stacker drivers for loading the castings
and the pattern molds and stuff in the shelvings.  They had other
heavy-duty fork trucks and medium-duty fork trucks.  

		There were a lot of -- management would typically get around the
facility on go carts which didn't have any type of warning light or any
type of siren on there to let people know that somebody was coming.  And
there were times outside vehicles driving their trucks or cars onto the
facility because they were outside contractors working on some part of
the facility.

		JUDGE PURCELL:  For the record, that was James Schultz responding.

		MR. J. SCHULTZ:  Sorry.

		MS. NADEAU:  So in terms of the proximity to the operators of the
equipment or trucks to workers, can you sort of describe where the
workers were located in relation to the heavy equipment that's being
operated in the dust and dark?

		MR. J. SCHULTZ:  Sure.  James Schultz speaking.  Generally they had
lines on the ground showing where the truck lines, aisles were supposed
to go through and there might be 6 to 10 inches on either side of it
between that walk area and the wall or in this case, it would be against
the furnace where the people are expected to walk.  

		Just before I left there, they did build an outside tunnel for people
to walk without being directly in that area, but they only had one or
two exits.  So you'd have to walk all the way out and then you'd still
have to walk back through the work area to get to where your work area
was because they didn't have enough access points to this protective
tunnel that they put in.

		MS. NADEAU:  Did you ever see any near misses?

		MR. J. SCHULTZ:  Quite often.  

		MS. NADEAU:  How often?  I mean just sort of quantify it.

		MR. J. SCHULTZ:  I would say on a daily basis there would be several
near misses.  I was involved in one myself where there was some workers
walking through an area that was restricted from workers.  There was
supposed to be an iron truck delivery aisle only and workers came down
there and I managed to refrain from hitting them or spilling any iron
but it was very, very narrow.  The truck was probably three and a half,
four feet wide, and the aisleway was maybe five and a half feet wide. 
So you had to go very -- right down the middle of it and they would shim
along the sides of it, turn sideways to keep from getting too close to
you, but that's why they weren't supposed to be there in the first
place.  So it happened on a very regular basis.

		MS. NADEAU:  The plumes of dust at one point you said it took 15 or 20
minutes to settle.  Now was there an effort to wait those 15 or 20
minutes so that visibility was increased before the truck or other
equipment was moved?

		MR. J. SCHULTZ:  No, there was no time for that.  The sweeping
machines would run almost constantly from one area to another area and
back through.  They'd make a loop throughout the whole facility.  They
only had a couple of them and these sweeping machines had the ability to
add water to do wet sweeping but they never used it.  They had one large
one that they did that with on a rare occasion but that was up in the
machine shop, and they did that more so they could clear the slick
compounds off the ground in that area, but out in the foundry, they
always dry swept.  

		MS. NADEAU:  I have a couple of questions for the gentleman from
Philadelphia if that's okay.

		I was wondering if you could name some of the -- you mentioned the
trenching job that you worked on, if you could name some of the
operations that you were involved in as a laborer.

		MR. GARCIA HERNANDEZ:  Well, we do a lot of demolition.

		MS. NADEAU:  Oh, good.

		MR. GARCIA HERNANDEZ:  If we were going to a facility, say we had to
demolish a building.  Often we did have a -- we would hook up to a fire
hydrant, right.

		MS. NADEAU:  Uh-huh.  

		MR. GARCIA HERNANDEZ:  But there was not always the -- we didn't
always have a fire hydrant nearby or we often did not have enough hose
to reach the areas where we were actually working.  

		Besides the concrete piping, the demolition, other areas that I have
worked I have worked as a drywaller doing drywall and you see a lot of
dust on drywall.  

		MS. NADEAU:  Can we get back to the demolition for a second because
I'm -- 

		MR. GARCIA HERNANDEZ:  Okay.  

		MS. NADEAU:  Yeah.  In terms of the type of equipment, heavy
equipment, what was being used?

		MR. GARCIA HERNANDEZ:  Well, you could use a breaker, an excavator
with a breaker attachment to it.  Even then when you have a fire hose,
at the time of, let's say you're talking down a wall from this facility,
the water hose would be here on it, but at the time of the impact, when
the wall's collapsing, it would pick up a lot of dust.

		MS. NADEAU:  Uh-huh.  And so you had operating engineers.  And how
many laborers did you have working in the crew?  So you had -- name the
people you have.

		MR. GARCIA HERNANDEZ:  We typically have one operating engineer or
two.

		MS. NADEAU:  Uh-huh.  

		MR. GARCIA HERNANDEZ:  One running the excavator and the other running
the loader, the front loader.

		MS. NADEAU:  Okay.  

		MR. GARCIA HERNANDEZ:  And we would have typically five laborers.  We
would have a pipelayer.  We would have two tapmen or one tapman and
another guy running around.

		MS. NADEAU:  And where were you, the laborers, in relation to the
dust, in terms of distance, in terms of feets or yards or how far were
you from the dust source?

		MR. GARCIA HERNANDEZ:  Usually typically very close to it.  We were --
our hands were right in the dust.  If we're cutting the pipe, the
concrete pipe in the trench, our face is so close to the concrete blade,
we have to physically see where we need to cut the pipe to make a
connection, right.  So we're in it.  

		Another thing that we do, we have to -- the manholes in the streets,
we have to patch the manholes.  So that involves mixing up the cement to
do the patching, to patch around the pipes.

		MS. NADEAU:  Uh-huh.  

		MR. GARCIA HERNANDEZ:  We have this cement that we have to mix, and
often we mix the cement inside the manhole -- 

		MS. NADEAU:  Uh-huh.  

		MR. GARCIA HERNANDEZ:  -- because you don't want to be trucking up and
down the cement, depending on the size of the manhole, we'd be down in
the manhole or the trench mixing up our mix to patch around the pipes or
the manhole seams.

		MS. NADEAU:  Now in terms of the relationship between the operating
engineer and the laborer, they're operating the heavy equipment with
dust around it.  How did that work in terms of looking out for the
protection of a laborer?  Were they able to operate around you or how
did the dust impact that?

		MR. GARCIA HERNANDEZ:  Again, the laborer is highly exposed to it.  

		MS. NADEAU:  No, I'm talking about what the operating engineer had to
do to avoid hitting you potentially because of the dust.  Was that an
impact or no?

		MR. GARCIA HERNANDEZ:  That was -- let's pretend we're excavating a
trench.

		MS. NADEAU:  Okay.  

		MR. GARCIA HERNANDEZ:  The laborer has to be physically right in front
of the excavator bucket to make sure that the operator does not hit any
utilities, and as he's excavating, the laborer has to be or pipelayer
has to be physically right in front of the bucket itself.  The operator
is about 20 feet away from the bucket operating the excavator typically.
 

		But since you brought up the operators, the operators are often very
highly exposed if they don't have the right, the proper equipment.  If
the excavator is not enclosed, also as they're digging, they're taking a
lot of this dust.

		MS. NADEAU:  Thank you.  

		JUDGE PURCELL:  Thank you very much, Ms. Nadeau.  Any further
questions for any of the panel members from the audience?  

		Seeing no hands, I'll turn it over to OSHA.

		MR. PERRY:  Thank you, Your Honor.  First, on behalf of the Agency, I
want to thank each of you for appearing today and providing us very
informative and moving testimony.  We certainly appreciate it.  We'll
start our questions with Ms. Schifano.

		MS. SCHIFANO:  Thank you again, gentlemen, for your testimony.  

		My first question is for Mr. James Schultz.  Was there any medical
surveillance program available in the foundry where you worked?

		MR. J. SCHULTZ:  I am not aware of one.  My father might be able to
speak of one as he was on our safety committee.

		JUDGE PURCELL:  And that was James Schultz responding.

		MR. A. SCHULTZ:  Could you repeat the question?

		MS. SCHIFANO:  Was there any medical surveillance program in the
foundry where you worked?

		MR. A. SCHULTZ:  No, no ongoing surveillance medically of anybody.

		JUDGE PURCELL:  And that's Allen Schultz response.

		MR. A. SCHULTZ:  Yes, Allen R. Schultz.

		MS. SCHIFANO:  Great.  Thank you.  

		JUDGE PURCELL:  If you would please, if the question isn't directed to
an individual, just identify yourself when you're responding.  All
right.  Thank you.  

		MS. SCHIFANO:  And this also is for Mr. James Schultz.  You mentioned
your experience in cleaning operations and you mentioned using a vacuum.
 We've heard from other testimony the last couple of weeks about the
infeasibility of using a method other than dry sweeping or using
compressed air to clean around the equipment.  What is your experience
with those methods of cleaning and others to remove the dust?

		MR. J. SCHULTZ:  Well, in my experience, they could have eliminated a
lot of the stand spill by better engineering of the equipment and
keeping the guards in place that were originally designed for use on the
machines.  But as my father mentioned, a lot of this was predicated on
the fact that they wanted to continue production as much and as often as
possible, so only do what was absolutely necessary.  

		If they had larger cleanup crews and they kept the safety guards in
place that were there to begin with, much of this could have been
eliminated to begin with.

		I don't know on that level that you could be using wet sweeping, but
I'm not an engineer.  So I can't really speak to that.  It's a
possibility.

		MS. SCHIFANO:  But you did say that you used vacuums -- 

		MR. J. SCHULTZ:  Yes.

		MS. SCHIFANO:  -- to do some of those cleanup operations.

		MR. J. SCHULTZ:  Yes.

		MS. SCHIFANO:  Okay.  Great.  Thank you.  

		MR. A. SCHULTZ:  Could I add something?

		MR. SCHIFANO:  Oh, absolutely, Mr. Schultz.

		MR. A. SCHULTZ:  Allen Schultz.  The vacuum that they used was the
size of a pretty big forklift and they could pull it around with a
forklift, and like you said, it had a big hose, and it would suck up the
sand but the filtering mechanism on it wasn't very efficient or maybe it
was too old.  I'm not sure.  I didn't work on repairing the vacuum
cleaner, but it would be blowing dust out the top, picking up sand off
and floor and off the machines but it would be blowing dust out of the
stop.  So you'd get probably 90, 95 percent of the sand and then blow
the rest out through the top and it would be all over the place.

		MS. SCHIFANO:  Great.  Thank you for that clarification.  That's very
helpful.

		My next set of questions is for the NCOSH representatives, probably
Mr. Dooley or Mr. Kojola.  

		We've heard a lot about different local and state ordinances, fugitive
dust ordinances, other regulations, and we were wondering if you've
compiled any of those local and state ordinances, laws that would deal
with silica exposures.

		MR. DOOLEY:  Yes, and we did have some comments in our submitted
testimony particularly about the experience in California and some in
New Jersey -- 

		MS. SCHIFANO:  Uh-huh.

		MR. DOOLEY:  -- where in general we've had reports that contract, and
these are requirements to basically eliminate dry cutting of masonry
materials during construction, and that they had really been very
successful in getting contractors to incorporate wet methods and vacuum
tools into their operations and that some of that experience was shared
among contractor associations particularly we quote a California report
that we had gotten.

		So by and large, we have heard reports of very successful sort of best
practices getting developed in those states, and again, not that it was
widespread enough to be really applying to all of the jobs in those
states, and we heard testimony last week from construction workers in
New Jersey that basically were saying that they hadn't really seen those
kinds of best practices use don the jobs that they were working in, but
at least it did set a higher bar in terms of the application of those
methods to reduce dust on some of the construction jobs.  

		MS. SCHIFANO:  Great.  Thank you very much.  And anything you can do
to elaborate on those best practices, case studies, in your post-hearing
comments, that would be much appreciated.  

		My next question is about the employee request of PAPRs instead of
other respiratory protection.  Do you have any idea of the number of
workers that currently take advantage of those provisions in other OSHA
standards?

		MR. DOOLEY:  We don't have any quantitative numbers.  We know that it
becomes -- what our experience is, is that when workers get training
about the availability of those rights to be requesting PAPRs, that that
certainly increases, with the population that we do training with, that
increases the amount that people ask for it.  A lot of times, we find
that workers are not aware that that is an option that they have.

		JUDGE PURCELL:  And that was Mr. Dooley responding.  I wasn't sure
that was directed just to him, but I want to make sure the record's
clear.  Thank you.  

		MS. SCHIFANO:  Very good.  Thank you.  And just one final question for
perhaps Mr. Dooley or Mr. Hernandez.  You both mentioned the
importance of training vulnerable workers, immigrant workers, day
laborers.  Could you speak a little bit about your experience of
training those populations and with regards to training them on silica
hazards, the sorts of information that you provided and they found most
helpful?

		MR. GARCIA HERNANDEZ:  Yeah, I think I speak from personal experience.
 As I mentioned, my relative, when we come, we don't really know what's
there to protect us and how we can use that information to protect
ourselves.  And since I've been trained now, I know that if I have an
issue, I can call OSHA and get some protection or get defended.  So the
trainings have a tremendous value in our communities.  Once workers know
that they don't have to work under those conditions, that they can call
OSHA for protections, it does empower the workers tremendously.

		And there was a question earlier that I'd like to add, this is Javier
Garcia, in terms of the response from OSHA to a facility.  If it's not
an imminent danger, OSHA doesn't always respond.  They would sometimes
send a letter, right, and when they send a letter to the employer, the
employer may say, well, I'm just going to correct this, what the letter
intended to do, but it may not necessarily address the particular issues
that the workers are actually complaining about, and that was not
relevant to your question but I wanted to make sure I addressed that
because we see that all the time.

		JUDGE PURCELL:  Mr. Dooley, did you have anything to add?

		MR. DOOLEY:  Yes, this is Peter Dooley.  I did want to say that in
particular with, you know, education and training efforts with
vulnerable workers, that very, very often they are totally unaware about
the silica issue regarding common construction operations that they
perform and just this OSHA proposal for a new standard, we've been using
as a way to educate and train workers about that component, and we'll
continue to do that.  We see that that's again another benefit of this
proposal that is very, you know, sort of lesser recognized, but it does
create more awareness and raises the bar on the silica hazards that
exist.

		JUDGE PURCELL:  Thank you, Mr. Dooley.  I think Allen Schultz had an
additional comment.

		MR. A. SCHULTZ:  I'd just like to mention that -- it just flew right
out of my head.  I would like to see some kind of mechanism where OSHA
could possibly contact the union safety person at that facility to find
out if the company actually does follow through with what they promise
that they're going to do when they get these.  I didn't find out about
it at the time, but I found out later when looking through records, that
they had been contacted a number of times on complaints from workers or
from the neighborhood, people complaining about the dust and dirt, and I
never was aware of it.  I could have followed up and tried to encourage
the company to do better if I had known that they had the calls or
whatever from OSHA.

		JUDGE PURCELL:  Thank you, Mr. Schultz.  

		MS. SCHIFANO:  That's all the questions I have.  Thank you.  

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

		DR. COBLE:  Yes, this is Joe Coble, and I have some questions for
Mr. Schultz, James, regarding, you mentioned that you had respiratory
protection available.  How frequently did you wear it and how did you
decide when you needed to wear it?

		JUDGE PURCELL:  Which Mr. Schultz?  James.

		DR. COBLE:  James, yes.

		JUDGE PURCELL:  Okay.  

		MR. J. SCHULTZ:  Unlike most of my coworkers, I wore it probably
three-quarters of the time, and it would often depend on how dusty it
was in there.  As we mentioned, there are some jobs that don't create a
lot of dust and there are other jobs that create huge amounts of dust,
and some days it would seem relatively clean in there even though there
was a lot of dust in the air, it wouldn't seem so bad and because we
weren't really aware that this dust was silica and what the silica could
do to us.  Oftentimes I wouldn't wear it on some days when it didn't
seem so bad.  A lot of my coworkers didn't wear it most of the time.

		Basically we mostly had the face masks, they did bring in some PAPR
eventually, and there were a couple of places where like on the melt
deck where I was able to get them to provide me with one, although it
took several attempts to find the proper one that would last through my
whole shift, but then in other areas where I would ask for it, they
would tell me that they didn't have to provide that to me because it was
not a de minimis type thing.  It would cost them a lot of money to
install an airline dryer and things like that.  So they would require me
to wear the regular dusk mask as opposed to the more effective means of
protecting my respiratory.

		DR. COBLE:  Were there any tasks in which respiratory protection was
required by the company?

		MR. J. SCHULTZ:  There were a couple of areas that after OSHA had come
through and done an inspection and cited them again for violating silica
exposure to the workers where they did make it mandatory to wear
respirators in the area, although they were also in theory working on
increasing their baghouse capacity and their ability to suck in more
air, but for the meantime, it was made a mandatory respiratory
protection area.

		DR. COBLE:  During your time there, did you see the company making
efforts to reduce the dust by improving the ventilation?

		MR. J. SCHULTZ:  Nothing noticeable.  I would hear about them having
spent 40,000 or 50,000 or 90,000, but out on the floor, you really
couldn't tell any difference.  You didn't know what they had actually
done.  My father being on maintenance, I would ask him if he knew
sometimes, and sometimes it would be, well, yeah, they changed half the
filters in this baghouse and they've changed half the filters in that
baghouse, but I mean if you only change half the filters in the
baghouse, you're really not doing much to make any kind of a difference.
 It was more about hitting that monetary mark that they were required to
spend because of their citation.

		DR. COBLE:  Uh-huh.  Thank you.  For Mr. Dooley, I wanted to ask
about the statement you made on hierarchy of controls.  You support
that, and it's a foundation of the rule but under what situations would
you view use of respiratory protection as a suitable alternative to use
of engineering controls, let's say for example, short-term tasks?  Would
you see envisioning any exempt from the hierarchy for short-term tasks?

		MR. DOOLEY:  Well, I wouldn't see it as an alternative to, you know,
the hierarchy of controls as a professional health and safety person. 
And incorporated in like the ANSI Z10 standard, you know, a hierarchy of
a control is literally identified as the principle in which we should be
using, you know, all the time in terms of trying to sort of control
hazards.  

		There may be instances where short-term, you know, protection can be
afforded by, you know, respirators in addition to whatever efforts that
we're making to eliminate and control the hazards with higher level
controls.  So it may, you know, sort of compliment whatever efforts are
being used using the hierarchy.

		DR. COBLE:  Well, we've heard a lot of comments about that engineering
controls are excessively expensive for just short-term tasks that really
wouldn't require you to install a ventilation system, and situations,
for example, with sand spill and that sort of thing.  Could you see it
having an exemption for engineering controls, use a PAPR instead, a PAPR
being a very effective respirator?

		MR. DOOLEY:  Well, I don't think that that's an exemption for --
again, personal protective equipment is part of the hierarchy.  It's the
least desirable method to be incorporated in controlling the hazards. 
So it's not that it doesn't exist.  But you're always thinking in every
situation, what's the best method per the hierarchy to control this
method, this hazard?  So that's the principle that has to be in play,
whether it's a short-term issue or a long-term issue.  But it's not that
it's excluded but it's the least desirable and least effective method.

		DR. COBLE:  Okay.  Thank you for that.

		MR. J. SCHULTZ:  James Schultz, if I may add in.  From my experience
both in construction and in the foundries, they never had any of us do
any kind of medical examine before they handed us the respiratory.  They
would just hand them out as it came.  There was virtually no training on
how to use them properly, how to store them properly and nobody that I
know of there was actually required to have the medical examine which
the OSHA requires before the use of a respirator.  So if you allow them
to use the respirator for short-term exposure to things, it's even less
likely that anybody's going to go through the whole process of being
able to find out whether they can actually wear that respirator and
which kind they should have and so forth.

		DR. COBLE:  And then one last question on control of dust in foundries
using wet methods.  We've heard testimony that it's extremely dangerous
to have water around a furnace.  Could you comment?  Is that your
understanding?  And it sounds like there was some misting on the
shakeout operations where they're using water in a foundry, and we were
told that that's not done.

		MR. J. SCHULTZ:  James Schultz speaking.  Well, on the melt deck, they
discouraged us from using water but in point of fact, pretty much all
the furnace operators did use water because they would need to cool off
the slag on the top so they could skim it off of the iron so it would be
clean before they would use it.  But there isn't really a lot of any
other area to use it in that place because you couldn't really mist the
area, but it is filled with dust.  

		As far as the shakeout lines, they did for a number of years have a
few misters that would be on the shakeout lines to try and reduce the
dust but they were far away from, sufficient to actually make a large
difference, and they would often get caught in the tangles of castings
and stuff and get pulled off the wall, and then you'd just have a lot of
water running down and then making mud out of the sand. 

		It's possible and with proper engineering, I think it could be very
feasible to include misting to control the dust in areas like that.

		DR. COBLE:  Okay.  Thank you.  

		MR. A. SCHULTZ:  I would like to say a word about that.  This is Allen
Schultz.

		JUDGE PURCELL:  Allen Schultz for the record.  Go ahead.

		MR. A. SCHULTZ:  Over the years, I got in quite a few arguments with
management about water on the melt deck.  In fact, officially the
company did not want any water anywhere near their furnaces but they
didn't want to slow down production either, and even though the furnaces
were all electric, hi tech computer controlled and all that, the
computers couldn't seem to quite get -- they like certain jobs poured
best at certain temperatures, plus or minus 10 or 20 degrees, whatever,
and the foremen, if the furnace was going too hot, somebody didn't catch
it and didn't adjust the computer, they were always adjusting them all
the time because I don't know if it was the dust or the heat or what.  

		The computers didn't like where they were working either, and the
foreman would go out from the foreman's office where it's air
conditioned, and take the water hose and spray right on top of the
furnaces and then somebody would come running down and tell me that, and
I'd run back up and chew them out and he just kind of ignore me, laugh
at me because the company knew he was doing it even though it wasn't
allowed.

		And even though, I forget when it was, in the early '90s, we had a
furnace explode down in Texas in a foundry and it leveled a couple of
blocks of houses and stuff from what I remember, and I was constantly
getting on them not to put water on the iron, but as long as the water's
on iron, it's not a problem.  It's just when the water gets under the
iron, that's the problem, but when it's bubbling, you can't be sure when
the water's going to get under the iron.  Luckily we never had an
explosion.  Well, he had one unfortunately but it wasn't necessarily
because of them pouring water on it.  I agree that water and iron are
very dangerous together.  They should not be there.

		DR. COBLE:  Okay.  Thank you.  

		JUDGE PURCELL:  Any further questions from OSHA?

		MS. LINDBERG:  Yes, Your Honor, just a few from me.  

		This is for I think Mr. Kojola.  You mentioned in your written
comments that there are employers in California who noticed that their
insurance costs have gone down when they instituted a comprehensive
silica control program.  Do you know if this is a common experience for
employers who reduce health risks to their employees, that their
insurance costs are reduced?

		MR. KOJOLA:  You know, I didn't write that part of our written
comments.  So I'd really like to turn it over to Mr. Dooley.

		MS. LINDBERG:  Sure.  Thank you.  

		MR. DOOLEY:  Yeah, this is Peter Dooley, National COSH.  We had gotten
that from a report from a contractor association.  So we don't know
whether  -- that was sort of an anecdotal report and we don't know how
widespread that might be within the industry.

		MS. LINDBERG:  Is there any way to get further information on that?

		MR. DOOLEY:  We will certainly try and find out if there's any
additional information and submit it with our written comments
post-hearing.

		MS. LINDBERG:  Great.  Thank you.  And then a couple of questions for
both Mr. Schultzes.  

		Ms. Nadeau asked you about near misses caused by dusty conditions in
the foundries.  What about actual accidents?  Did you see those
happening?

		MR. A. SCHULTZ:  This is Allen Schultz.  I can remember a couple of
instances where people were hit by forklifts in those narrow aisles but
back in those days, there was no outside tunnel for them to go through. 
They had to use the same aisles as the forklifts.  This foundry was
built in the footprint of a really old foundry going back to about 1902
or something like that, when everything was labor and wheelbarrows.  So
there wasn't much room to squeeze all this machinery, and that's why it
was on so many different levels within the building, and they designed
the foundry so that as they added the new machinery, they just allowed
enough room for the iron trucks to get through from one end of the
foundry to the other.  They had melt decks in the middle and then
foundries going off on each side with narrow aisleways for the forklift
and iron trucks to get through, and the people would walk alongside of
the walls to give the iron trucks as much room as possible but it was
dusty and several people were -- they weren't run over but they were hit
let's say.  They were injured somewhat.  Nobody died or anything like
that from being hit by an iron truck.

		MS. LINDBERG:  Do you have anything to add?

		MR. J. SCHULTZ:  James Schultz.  Yeah.  I do know there were a few
people that were hit by fork trucks and it was a combination of both the
dusty conditions and that oftentimes the fork trucks' sirens and backup
alarms didn't work.  So you may not know they were behind you because it
was a very loud work environment, and you coupled that with the
difficulty in seeing much in front of your face.  There were a number of
people that were hit.  I don't know of anybody that was hit severely but
I do know a number of people that were hit both by the fork trucks or by
like the golf carts like the maintenance or the foremen would drive
around in because you just couldn't see them and they didn't make much
noise or at least not enough noise to overcome the machinery around you.

		MS. LINDBERG:  Thank you.  In general, do you think that safety in the
foundries would be improved if the dust was minimized?

		MR. J. SCHULTZ:  James Schultz.  I think the safety in the workplaces
would be tremendously improved if the dust could be minimized or in some
cases, in some areas, it could be just about eliminated.  I think that
would make the workplace much safer on a day-to-day basis plus the
long-term health of the worker in that facility.

		MS. LINDBERG:  Thanks.  Another one for both of you, Mr. Schultz.  Do
you think that employers would discriminate against workers who they
knew had silicosis or another silica-related health condition?

		MR. J. SCHULTZ:  James Schultz speaking.  I think that that might go
either way.  They may discriminate against a worker that they know had
silicosis if they were looking to hire him in or keep him on but there
may be other employers who might take that opportunity to hire that
employee knowing he already has that disease from a previous employer
that they couldn't be traced to working for that employer at the current
time who may have as bad or worse conditions than where that worker came
from.  I think it could go either way that they might be kept out of the
workplace or they may be hired specifically because that might give that
employer the feeling that they've got a get out of jail free card.  It's
not my fault he already had it when he started working here.  

		MS. LINDBERG:  Interesting.

		MR. A. SCHULTZ:  Yeah, I'd like to mention -- Allen Schultz.  The area
that we live in was a foundry town.  It had many, many foundries.  It's
probably more than half of them that have disappeared now but still
there's a number of foundries there, and they all have different, most
of management, as far as how they want to handle their workers but none
of them that I've seen really want to spend any money on protecting the
workers.  They just want maximum production.  That's why they put the
water on iron to cool it down because they don't want to wait for it to
cool down normally.

		MS. LINDBERG:  So if a worker had silicosis, they might see that work
as being less productive and then move them around or otherwise try and
minimize that issue?

		MR. A. SCHULTZ:  This is Allen Schultz.  I don't know how they would
find out that the worker has silicosis unless it was their own worker
and they tested them.  In the old days, when I first started at a
foundry, I was run over by an 18-wheeler and everybody as telling me how
lucky I was I lived, and then second they're telling me how lucky that I
got a job for life.  Now in the old days, if you were hurt on the job,
that meant the employer would feel bad enough that he would give you
some kind of job, sweeping or anything, for the rest of your life.  That
doesn't hold true anymore now.  If they have any kind of idea to think
that you're going to be a burden on their health insurance in the
future, they'll find a way to have you move on to some other employer.

		MS. LINDBERG: 	 So do you think workers would avoid trying to have
their employer finding out if they had a lung disease related to silica?

		MR. A. SCHULTZ:  Yes, I believe they would.

		JUDGE PURCELL:  That was Allen Schultz responding.

		MS. LINDBERG:  Just a couple of questions for Mr. Hernandez.  

		UNIDENTIFIED SPEAKER:  He's got to leave.

		MS. LINDBERG:  Oh, okay.  Thank you.  Do you have a few more minutes?

		MR. GARCIA HERNANDEZ:  Yes.

		MS. LINDBERG:  And he's back.  

		MR. GARCIA HERNANDEZ:  I have to back to work, to the dusty
conditions.  

		MS. LINDBERG:  Okay.  We don't want to delay you from that.  I'm just
wondering.  You said that every morning you have to clear your throat
and chest after you, you know, before you go to work.  Have you ever had
a medical exam on your chest?

		MR. GARCIA HERNANDEZ:  I have not which perhaps I should after this
hearing.  I definitely should.  I do think it's chronic, the number of
times I were exposed to this.  If you imagine yourself going to work and
not having even a mask but sometimes you put the handkerchief and from
your eyes to your -- even the feeling of being really dusty, even if it
doesn't go through your respiratory system, just the feeling of being in
the very dusty work space, it gives you sense, it sort of gives you the
chills and is something that sort of sticks with you.  So I don't know
-- it doesn't -- if it doesn't affect your lungs, it does affect you
mentally, and I think it's chronic over the years, the long-term
exposure.

		MS. LINDBERG:  So have you ever been offered respiratory protection at
work?

		MR. GARCIA HERNANDEZ:  I have.  I have worked through union.  I have
worked for several different contractors.  Some contractors will offer
us the respirators depending on the task but rarely a contractor does
that.  Typically you would see a paper dusk mask which is often not
enough.  Sometimes when -- and when you're working, it's just the
mentality of getting the work done.  So it's more about tough man, let's
get it done and you don't often ask this type of question.  So you just
submit to the working conditions, but I remember more than once or
several times, when you look at the mask from the inside, it looks just
as black as it does on the outside.  Paper mask, when you breathing and
it's hot and it's moisture in the air, it absorbs the moisture as well. 
So the inside also turns black.

		MS. LINDBERG:  So in the absence of a respirator, you said sometimes
you use a T-shirt or something?

		MR. GARCIA HERNANDEZ:  A handkerchief.  If I don't have a
handkerchief, I use a T-shirt. Sometimes we wet the T-shirt so it's sort
of a -- it gives you a better feeling of when you're breathing.

		MS. LINDBERG:  Does that help at all?

		MR. GARCIA HERNANDEZ:  It does.  At least it makes you feel like
you're somewhat protected versus just breathing the open dust.

		MS. LINDBERG:  Have you ever used controls such as wet cutting or
ventilation when you were working?

		MR. GARCIA HERNANDEZ:  There are times when we use the exhaust fans. 
We will run a hose, sort of a pipe, a flexible hose, pipe into a trench
and that would carry the dust out and again there was a couple of times
we used the concrete or the chop saw with a hose attachment to it.  It
was only when the employer was particularly mindful for whatever reason
about the conditions.

		MS. LINDBERG:  And do you think that your more productive if you're
working in an environment that's less dusty?

		MR. GARCIA HERNANDEZ:  That is one of my -- as a construction worker,
I highly believe that we're more productive when we are protected for
two reasons.  We spend less energy focusing on how to protect ourselves.
 Just imagine you're working in a roomful of dust and you're just trying
to either close your eyes or cover your mouth so the less you breathe. 
So you're constantly thinking about how to breathe less dust but if you
have the respirator or the wet, the controlled area, whether it is water
or respiratory protection, you're much more productive because our mind
is less occupied in how to protect ourselves and we spend that time that
we would have spent protecting ourselves working.

		MS. LINDBERG:  I guess the same question for both Mr. Schultzes. 
Mr. Hernandez, I don't think I have any more questions for you.

		MR. GARCIA HERNANDEZ:  Thank you.  I have to catch my train.  

		MR. PERRY:  Please go ahead, but again, thank you very much for
appearing today to testify.

		MR. GARCIA HERNANDEZ:  Thank you for all you do -- 

		MR. PERRY:  We appreciate it.

		MR. GARCIA HERNANDEZ:  -- in behalf of my coworkers in Philadelphia. 
We really applaud you for your efforts. 

		JUDGE PURCELL:  Thank you, Mr. ernHerHe

Hernandez.  You had some questions for Mr. Schultz.

		MS. LINDBERG:  Yeah, if you could comment on productivity when, you
know, you're in the dust and maybe if you can imagine not being in the
dust how it would feel.

		MR. J. SCHULTZ:  James Schultz.  I think if you would work in the work
environment that was less dust or hopefully dust free, it would
definitely increase the amount of productivity just because so much of
the time you're spending wiping the dust off your brow because it's
falling into your eyes or something like that.  Even if you have the
respirator, it still interferes with your vision and things like that. 
So a cleaner environment would definitely be more productive just
because as he mentioned, you spend less time trying to think about how
you can protect yourself from this hazard, and I know myself, after
working in the place for many years, I've started to have breathing
problems and so if you can eliminate those breathing problems, if you
can breathe freely, you're also going to be much more productive because
you're not going to stop because you have wheeze or go stand outside to
get some fresh air for awhile or those types of things.

		MR. A. SCHULTZ:  This is Allen Schultz.  I can attest to that.  If
you're having to remove your mask every few minutes to spit out some
black or gray spit out of your mouth, it really doesn't give you a very
good attitude towards your day.  And, in fact, our company, how would I
say this?  They actually prove your premise.  

		Some many years ago, they had what they call a grinding tunnel here
the castings would come through on the conveyor, and they had a row of
men with 30 inch, 36 inch grinding wheels, and they'd take these
castings off the conveyor, and they'd grind them, turn them and grind
them, get them all smoothed off, get all the fins and everything off of
them, and these guys were all piecework.  This is heavy work.  It was
really hard work.  They had to be careful not to grind fingers and all
these kinds of things, but it was very, very dirty work, too, with all
these castings going rattling by on these oscillating conveyors and
falling down the chutes to their machines.  

		They found that, I forget what they called them officially, but
they're like a helmet that astronauts wear.  They're a hard helmet with
a glass shield in the front and a curtain around the shoulders and all
this, and they're supplied fresh, clean cooled air to this helmet so
that it was constantly blowing out through and it kept their bodies
cooler and they had nice, clean, fresh, cool air to breathe, and the
production went up.  These pieceworkers were very happy compared to the
rest of us were all sweaty and everything.  They were much more
comfortable.  They had clean air.  They didn't have to think about
spitting or anything, and they got much better production numbers out of
those pieceworkers after they installed these helmets for them only. 
The rest of the foundry, they didn't want to go to the expense of
putting these in at any of the other places where they might have been
useful.  The rest of the people used these little paper filters, but
that worked great for those 10 guys that were up in that grinding
tunnel.  

		MS. LINDBERG:  Just one last question again for Mr. and Mr. Schultz.
 How does it feel to wear a respirator in a foundry, just a regular 95
or paper mask?

		MR. J. SCHULTZ:  James Schultz.  As was mentioned before, these are
quite warm areas.  So you're constantly sweating whether it's summertime
or wintertime and, in fact, against what most people think, it's
actually much warmer in there in the wintertime because you definitely
have all the windows and everything closed up tight.  So it gets even
warmer inside there in the wintertime.  So putting the respirator on
within five minutes, sometimes less, it will be sweat laden just like
your clothes would be, and it makes it very difficult to breathe.  You
can definitely tell a difference in how hard it was to breathe when you
first put the respirator on until a few minutes later where it was
starting to pick up all this dust on it and starting to get damp and
difficult to breathe through.  It felt very restrictive.

		MR. A. SCHULTZ:  This is Allen Schultz.  I don't exactly know how to
answer this question.  I know that being the head safety guy for the
union, I tried to use my safety equipment as much as I could, wherever I
could.  I feel that I wore it much more often than the rest of the
maintenance crew.  It was just cumbersome and it was sweaty and it was
hard to breathe, whether you had it on or not.  

		A lot of the guys, we knew that the respirators weren't that efficient
if you weren't cleanly shaven because when I would give them the test, I
would make sure they shaved before we'd give them the fit test and all
this.  That program came and went.  We didn't do that for the whole 35
years I was there.  We just did it for a few years and then it become
too much bother for the company. 

		But I did feel that I probably lengthened my life by wearing the
safety equipment as much as I could.  I couldn't wear it all the time. 
Sometimes there were some machines I had to crawl into either on my back
or my stomach and there wasn't room for one of those space helmets much
less -- I just didn't have room.  I couldn't even wear my safety helmet
inside some of the machines I had to get into.  It was so constricted I
couldn't wear my safety equipment at all times.

		MS. LINDBERG:  Okay.  Thank you very much.  

		MR. J. SCHULTZ:  Just a quick follow up on that.  Another way I was
thinking, while he was talking, to describe that was in some of these
areas in the plant that were respiratory mandatory areas, the company
made a proviso for the smokers that they didn't have to wear their
respirator while they were smoking a cigarette.  So many times these
guys would end up being chain smokers just so they wouldn't have to put
their respirator back on because it was so uncomfortable to wear, and so
they were smoking through this cigarette that had a filter on it.  So
they were still filtering the air is how some of the foremen would even
put it across that, you know, it might even be a better filter than what
you've got on the respirator there.  

		So while they were mandatory respiratory areas, they still found ways
to allow the guys and women around that requirements.

		JUDGE PURCELL:  That was James Schultz responding.  

		MR. A. SCHULTZ:  One quick side on that.  This is Allen Schultz.  I
found out in our records that myself personally, almost everybody else
there, whether they smoked or not, when the nurse would ask us this
question, do you smoke, and I'd say no, I haven't smoked since I was 16.
 They'd always write down you were a smoker for everybody.  They figured
if you're a smoker, it's your own fault that you got lung disease.  It's
not the foundry's fault.  That was their thinking I believe. 

		JUDGE PURCELL:  Thank you, Mr. Schultz.  

		MS. LINDBERG:  Thank you.  

		JUDGE PURCELL:  Any further questions? 

		MR. PERRY:  I have just a couple.  It's Bill Perry.  I can't let
Mr. Neal escape without a couple anyway.  So you mentioned that the
Wyoming State OSHA, they revised their rule a couple of years ago for
oil and gas servicing, and now they're looking at it again specifically
to address silica exposure in hydraulic fracking operations.  Did I
understand that correctly?

		MR. NEAL:  Thank you.  Dan Neal.  Not quite.  There are three sections
of the rule, oil and gas drilling, well servicing and special well
servicing.  They finished the oil and gas drilling rules, and now
they're working on the well servicing and special well servicing rules,
and that's where they intend to address silica.  

		MR. PERRY:  Okay.  Is there anything that's been released to the
public so far in the way of a proposal or draft language?  And can you
say something about what you think the expected timeframe is before that
is completed?

		MR. NEAL:  There's a public hearing April 10th in Casper where the
Agency will hear from industry particularly and others, and I know that
silica will be brought up at that point.  

		Just to digress briefly, they actually had the well servicing rules
done last December.  The Attorney General reviewed them and found some
glitch in some part of the wording.  So they have to redo the hearings
on those.  They're basically written.  They just have to change some
language.  So those they're hoping to have done by June.  Special well
servicing, they're hoping to have done by next December.

		MR. PERRY:  Okay.  Thank you.  Also I think you said something about
or compared the cost of chronic illnesses like silicosis to the cost of
injuries and that the illnesses were more costly as a rule, and this is
based on -- am I correct this was based on workers' compensation data or
was there other data you were making reference to?

		MR. NEAL:  Thank you.  Yes.  The statement is by the State
Occupational epidemiologist in a report he issued last November, and he
said that these long-term disabilities are the most costly to the fund. 
Well, he didn't say to the fund.  He said they're the most costly to the
individual state.  And obviously he was referring to long-term
disabilities caused by traumatic injuries as well as a long-term hazard.

		MR. PERRY:  Okay.  Would that be a report that you would be able to
provide to the post-hearing record?

		MR. NEAL:  Absolutely I can do that.

		MR. PERRY:  That might be useful for us.  Thank you.  You also
mentioned use of water spray to knock dust down during fracking
operations.  Do you know if people in your state, do they currently do
that?

		MR. NEAL:  I can't say it if they do it during fracking operations. 
We had a huge boom in coal bed methane drilling, and one of the things
that company were required to do was use this specially treated water to
use to hold down dust on dirt roads.

		MR. PERRY:  On roads.

		MR. NEAL:  So there's water around the rigs, and it would be available
I believe.

		MR. PERRY:  Okay.  Thank you.  One last question, and this would be
Mr. Kojola or Mr. Dooley.  Bill, I think you made a recommendation to
us that we consider in the final rule a requirement for annual refresher
training.  So our proposed rule did not specify a periodicity for that. 
I assume you would also support or maybe insist on a requirement that
there be record of that annual training as well kept by the employer or
maintained by the employer?

		MR. KOJOLA:  Yes, absolutely.  I mean it's critical for the employer
to have a record that the training was done to make sure that it is
done.

		MR. PERRY:  I guess my question then is other than having evidence
that, okay, training was done every year, how can employers or OSHA, for
that matter, best evaluate that the training received by workers in fact
has been effective?

		JUDGE PURCELL:  For the record, that last response was Mr. Kojola. 
I'm sorry to cut you off, Mr. Perry.

		MR. PERRY:  So how can employers and others tell that the worker
training's been effective?

		MR. KOJOLA:  How can employers tell or how can OSHA tell?

		MR. PERRY:  Both, either.

		MR. KOJOLA:  Well, first of all, I mean OSHA could -- a compliance
officer could ask workers, pose certain questions when they're doing an
inspection to see whether or not they had -- when the training was
given; two is to ask questions about, for example, the medical
surveillance program, are you aware of that, they can ask questions
about engineering controls or other methods, wet methods, other work
practices to reduce exposures to, you know, poke and probe and see if,
you know, workers have a sense of, and give correct answers is certainly
a way to do it. 

		Secondly is you can also find out whether the training is effective by
the conditions in the workplace and have the conditions in the workplace
been improved.  And, you know, of course, it may be useful to ask the
employer, but it certainly would be most useful to ask the workers
because they're the ones that are going to really know whether or not,
you know, the training is what has been given; two, is it effective, is
it being implemented, do workers feel free to implement the, you know,
the training and the knowledge that they have to reduce and control
exposures?

		MR. PERRY:  Okay.  Thank you.  I appreciate that answer, and I believe
we are done with our questioning, Your Honor, and again, thank you to
everyone on the panel for spending all morning with us in testimony and
answering our questions.  We really appreciate it.  

		JUDGE PURCELL:  I'd like to thank the panel as well.  I appreciate
your testimony and your attendance here.  

		Unless OSHA has another suggestion, I plan to continue with the
hearing to get the presenters that were scheduled for this morning.  We
have four more people.  The next two on the agenda are from the American
Industrial Hygiene Association, William Walsh of the Laboratory
Accreditation Program and Mary Ann Latko from the Proficiency Analytical
Testing Programs.  

		Any suggestion about scheduling?  

		MS. LINDBERG:  Your Honor, we were wondering if we can finish with the
next two panelists before lunch and then take a lunch break.  I don't
know if Mr. Schrag or Mr. White would mind coming back after lunch.

		JUDGE PURCELL:  Are those two individuals here?  Mr. White.

		MR. WHITE:  Yes, I'm here.

		JUDGE PURCELL:  Do you have any problem coming back this afternoon?

		MR. WHITE:  If it's at all possible to squeeze us in before lunch,
that would be appreciated because you're looking at relatively short
testimony.

		JUDGE PURCELL:  All right.  Mr. Schrag?  Is Mr. Schrag here?  Okay. 
I don't see Mr. Schrag.  We'll certainly try and do that, get you on
and out of here, Mr. White, before we break for lunch.  

		So if Ms. Latko and Mr. Walsh can come forward.  

		I'm going to go off the record for just about five minutes.  I need a
break, and I think OSHA might as well.

		(Off the record.)

		(On the record.)

		JUDGE PURCELL:  I'm going to go ahead and ask everybody to go ahead
and have a seat.  I think we're about ready to resume.

		As I indicated before we broke, there are two representatives here
from the American Industrial Hygiene Association.  Also a member of the
staff I think was going to introduce Mr. Walsh.  So if that person.

		MS. LATKO:  Would you like me to go first?

		JUDGE PURCELL:  Maybe we'll do that just go ahead and not delay any
further.  

		The first speaker then will be Ann Latko with AIHA Proficiency
Analytical Testing Programs.

		MS. LATKO:  Thank you, Your Honor.  My name is Mary Ann Latko, and I'm
the Managing Director of the AIHA Proficiency Analytical Testing
Programs, LLC.  I appreciate the opportunity to provide my prepared
testimony during this hearing regarding the silica proficiency testing
data from the AIHA PAT Programs, as demonstrating proficiency is
generally one component of the laboratory accreditation process.  

		The primary mission of AIHA PAT Programs is to assist participants in
pursuing excellence in laboratory services through external quality
control program assessment and to promote the practice of proficiency
testing both nationally and internationally.

		The objective of these programs is to allow participants to
demonstrate their ability to correctly analyze samples by determination
of assigned values for quantitative analysis and correct identification
of those test items that are qualitative.  

		The programs which are open to any interested parties allow a
participating laboratory to demonstrate its ability to correctly analyze
samples in the workplace and the environment.  

		In addition, AIHA PAT Program samples are available to laboratories or
other interested parties for use as training or internal quality
assessment tools.  

		The AIHA PAT Programs avoid involvement in any activities that might
diminish its competence, impartiality, judgment or operational integrity
by employing staff and partnering with contractors that are qualified
and experienced, utilizing the assistance of qualified technical experts
formed by the AIHA PAT Programs board and requiring confidentiality and
conflict of interest statements from all staff, subcontractors and
experts.

		AIHA PAT Programs currently offers five proficiency testing programs
in industrial hygiene, beryllium, bulk asbestos, environmental lead and
environmental microbiology.

		The IH or Industrial Hygiene PAT Program is designed to test the
analytical competence of participating laboratories and to help a
laboratory to improve its analytical performance by providing
proficiency testing samples on a regularly scheduled basis, evaluating
the results and providing a report on how well the laboratory performed.
 

		The IH PAT Program has been in existence since the early 1970s.  The
IH PAT Program has approximately 900 total participants from private and
government laboratories, educational institutions and other interested
parties seeking to demonstrate their proficiency or to make use of third
party quality control provided by the proficiency testing scheme.

		Laboratories can select to participate in proficiency testing for
organics, metals, asbestos and free silica.  There have been nearly 200
IH PAT rounds of testing completed with more than 55 labs participating
in each of the silica rounds from 2004 to present.  AIHA PAT Programs
has tens of thousands of data points regarding analytical laboratories
and their proficiency in analyzing the concentration of silica deposited
on the sample medium that is used to collect airborne silica. 

		It is with the support of this wealth of historical data and the AIHA
PAT Programs' current status as an accredited proficiency testing
provider that we wish to provide OSHA with our comments regarding the
proposed revision to the permissible exposure limit for silica.

		The IH PAT Program is a consensus-based proficiency testing program in
an inter-laboratory comparison against peers.  The IH PAT Program data
are analyzed using NIOSH proficiency, analytical testing statistical
protocols.  

		This approach has generally been used since the IH PAT Program was
started and has been demonstrated to work effectively.

		Proficiency testing around performance is determined after performance
limits have been statistically evaluated using acceptable statistical
protocols.  Each result is assigned to the analyte group to which the
sample belongs such as organics, metal, asbestos, or silica.  

		IH PAT participant results are rated acceptable or unacceptable for
each unique analyte sample.  A passing score is 75 percent or more
acceptable results for an analyte group.  

		Both the assigned values and acceptance limits are based on the
consensus of a predefined reference group.  The reference group
comprises participants that are accredited to the ISO/IEC standard
17025.2005 by an ILAC MRA signatory for those participate measures.  

		Participants are included as part of the reference group for an IH PAT
analyte group if their accreditation is tied to their participation in
that particular IH analyte group and they have no acceptable results for
that analyte group in the previous IH PAT proficiency testing rounds.  

		Reference laboratories are determined for each data set for every
proficiency testing round.  This scheme was developed and continues to
be modified as required through the input of participants, accreditation
bodies and regulators, and through incorporation of relevant
international standards and recommended practices.

		We urge OSHA to take into consideration the statistical significance
of the volume of data upon which AIHA PAT Programs' comments are based
when determining the merit and validity of comments from stakeholders
related to sampling methodology and analytical methods.

		Since the first silica proficiency testing round in 1974, AIHA PAT
Programs has enjoyed a collaborative relationship with NIOSH in the area
of proficiency testing.  NIOSH has conducted and published reviews of
the AIHA silica proficiency testing data on several occasions.  

		In the paper titled, "Proficiency Analytical Testing Silica
Variability 1990 to 1998" published in the AIHA Journal in 1999 over
11,000 AIHA PAT Programs silica data points were reviewed by NIOSH
scientists.  In that paper, it was noted that strict adherence to the
standardized procedures and the use of a common silica reference
material are necessary to produce precise results.  

		NIOSH is conducting a follow-up review of the nearly 10,000 AIHA PAT
Programs silica data points from 1999 through 2013.  The results of that
review will be presented at the American Industrial Hygiene Conference
and Exposition in June 2014.

		These papers are referenced in the statement to provide OSHA with
context regarding the basis for AIHA PAT Programs comments and for
OSHA's consideration when weight information provided by stakeholders
regarding the ability to properly sample and test for worker exposure to
silica in the proposed permissible exposure level.

		The need for ongoing competence in laboratory performance is essential
not only for laboratories and their customers, but also for other
interested parties such as regulators, laboratory accreditation bodies
and other organizations that specify requirements for laboratories.  

		The ISO standard 17043.2010 entitled conformity assessment general
requirements for proficiency testing, includes the principles of ISO
standard 1901 for quality management systems and provides a consistent
basis for all interested parties to determine the competence of
organizations that provide proficiency testing and inter-laboratory
comparisons.  

		The development and operation of accredited proficiency testing
schemes are undertaken by proficiency testing providers that have
competence to conduct inter-laboratory comparisons and expertise with
the particular type of proficiency testing items. 

		Accreditation is sought by proficiency testing providers who wish to
demonstrate their competence by formal compliance with a set of
internationally acceptable requirements for the planning and
implementation of proficiency testing programs.

		Accreditation provides users of proficiency testing programs such as
laboratories, accreditation bodies, regulators and technical assessors
with increased competence that the proficiency testing programs relied
upon are being operated competently in accordance with specific
technical and management system requirements.  

		We, the staff, volunteer subject matter experts and Board of AIHA PAT
Programs, are committed to the quality of our proficiency testing
services.  AIHA PAT Programs is accredited by A2LA, an internationally
recognized accreditation body, as a proficiency testing provider for
industrial hygiene proficiency analytical testing.

		Our current certification of accreditation number 3300.01 can be found
in the A2LA website,   HYPERLINK "www.a2la.org"  www.a2la.org .  

		When samples are prepared for use in comparing the performance of a
group of laboratories, regarding analysis of a specific analyte or group
of analytes, exceptional care must be taken to ensure that the samples
are homogeneous and stable and not influenced by environmental
conditions.  

		Employing internal quality control procedures to verify accuracy and
precision is a routine part of any analysis performed by AIHA PAT
Programs sample generating contractor.

		For silica samples, the suspension is stirred continuously throughout
the generation process to avoid settling or stratification of the
samples.  Samples randomly selected from the beginning, middle and end
of the generation run are analyzed to check for non-homogeneity of the
suspension.  Damaged filters with tears or holes are discarded.  

		Proficiency testing samples and blank media are stored under optimal
conditions to protect them from cross-contamination and to prolong shelf
stability.  

		Silica samples are stored at ambient conditions, protected from direct
sunlight, dust and liquid leaks, or spills.  Retained samples are stored
in environmentally controlled rooms and stability records show that the
samples stored are stable for at least 10 years.  

		We urge OSHA to take into consideration the accreditation status of
any stakeholder that addresses proficiency testing or other
inter-laboratory comparison studies in written or verbal comments
regarding the proposed regulation when determining the merit and
validity of such comments.

		Participants in the AIHA PAT Programs receive proficiency testing
samples four times a year.  The AIHA PAT Programs includes samples of
free silica as quartz deposited on polyvinyl chloride, PVC filters, in
accordance with current NIOSH analytical methods.  The samples contain
different silica concentrations and include a background matrix of coal
mine dust, talc, calcite, or a combination of talc and coal mine dust. 
These background matrices are used on a rotating basis.

		The standards, sampling media, and sample analytes used in each lot
are tested for suitability as proficiency testing samples.  The required
quality assurance functions include determining the calculated
concentration of the analyte in the samples, ensuring and documenting
contamination control for the various equipment and supplies used in the
sample production process and analyzing at least 10 samples from each
concentration level and providing the statistical data needed to
characterize the quality of the samples.

		Proficiency testing schemes need to be designed and carried out in a
statistically valid manner.  In designing a statistical analysis,
careful consideration needs to be given to the accuracy as well as the
measurement uncertainty required or expected for each measurand or
characteristic in the proficiency testing.  

		In addition, there needs to be a minimum number of participants in the
proficiency testing scheme to produce statistically meaningful results,
and the scheme needs to have a procedure to identify and handle
outliers.  

		We again urge OSHA to take into consideration these parameters for
statistically valid inter-laboratory comparison studies when determining
the merit and validity of written or verbal comments regarding the
proposed regulation that address sampling and analytical methods related
to the proposed silica permissible exposure limit.

		With regards to the standard reference material and process used to
generate proficiency testing samples, AIHA PAT Programs utilizes the
National Institute of Standards and Technology, NIST, Standards
Reference Material, SRM, 1878a, alpha-quartz, in a liquid sample
generation process and has done so since 2011.  Earlier proficiency
testing rounds using an aerosol generation method with Min-U-Sil 5 as
reference material.  

		Discussions with OSHA and NIOSH suggested analytical error could be
reduced by eliminating aerosol generation in favor of liquid deposition.

		In reviewing the relative standard deviation of the AIHA silica
proficiency testing rounds prior to and in the eight rounds after the
change of sample generation material and process, the average relative
standard deviation improved by nearly 30 percent.  

		This is a critical indicator of the improvement in analytical
precision and repeatability that is seen when NIST-SRM 1878a is combined
with the use of a liquid sample generation process.  

		This change was supported by several peer-reviewed studies.  The
published peer-reviewed paper, titled "An Evaluation of Aerosol and
Liquid Generation Silica Samples for Proficiency Analytical Testing,"
published in the Journal of ASTM International, in 2006, provided a
review of sample generating processes.  This review was conducted by SIR
International, the organization that is producing the silica proficiency
testing program samples for NIOSH and AIHA PAT Programs since 1980.

		NIST-SRM 1878a is a well-characterized particle size distribution and
most closely matches the respirable dust criteria.  NIST-SRM 1878a is a
material specified in the NIOSH Manual of Analytical Methods for each of
the three crystalline silica methods.  In the paper titled, "A
Comparison of International Silica Calibration Standards" by Fourier
transform-infrared spectrophotometry published in the Annals of
Occupational Hygiene in 2001, comparative studies of various silica
materials used as standards such as Min-U-Sil 5, Sikron F-500, and
Ottawa silica sand, note that there may be significant differences in
the quantified results obtained by using alpha-quartz materials other
than NIST-SRM 1878a. 

		We urge OSHA to take into consideration the reference material and the
generation process used in any studies that address the analysis of
silica and stakeholders written or verbal comments regarding the
proposed regulation when determining the merit and validity of such
comments.

		Homogeneity ensures that every participant receives comparable
proficiency test items.  Careful planning, manufacture, and shipping are
necessary to achieve this, and testing is needed to confirm it.  The
procedures for the assessment of homogeneity need to be documented and
conducted in accordance with appropriate statistical designs.  A
statistically random selection of a representative number of proficiency
test items from the whole batch of test material needs to be tested in
order to assess the homogeneity of the material.

		IH PAT samples are generated under a quality system that ensures the
generation of proficiency testing samples of known and documented
quality and traceability in strict adherence to the requirements of ISO
17043, conformity assessment general requirements for proficiency
testing, ISO 17025, general requirements for the competence of testing
in calibration laboratories, and ILAC Guide 13.

		We urge OSHA to take into consideration the confirmation of
proficiency test item homogeneity in any inter-laboratory comparison
studies which addresses the analysis of silica in the written or verbal
comments regarding the proposed regulation when determining the merit
and validity of such comments.

		Liquid generated silica sample sets have been used in the IH PAT
Programs since 2005.  Conventional quality control analysis using NIOSH
method 7603 indicate the sample generation method equipment used meets
AIHA PAT Programs current specifications of a maximum acceptable
variability for any individual concentration level of plus or minus 10
percent.  

		Analysis of representative sample sets and filter blanks using NIOSH
methods is performed to ensure that the sampling media are free of
contamination.

		The samples consist of silica of approximately 5 micron particles with
up to one matrix of material as a background.  Thirty-seven millimeter
diameter, five micron pour size PVC filters, that are cable of providing
interference free silica determinations are used.  

		The silica material used for sample perforation is NIST-SRM 1878a. 
The background matrix materials currently used in the IH PAT Program
include rotations among talc also known as magnesium silicate from
Harrison and Crossfield, coal mine dust, Pittsburgh seam 200 mesh from
the National Bureau of Mines and calcite, microfine 25 from the
Sylacauga calcium products.  A one-to-one mixture of talc and coal mine
dust is used.  

		A suspension is prepared of silica and the background mineral mix. 
Different concentration levels are achieved by varying the particle
size, the particle concentration in the suspension.  

		The absorbance of standards and samples using Fourier
transform-infrared at a wave number of 800 per centimeter is used to
quantitate the amount of silica.  

		In addition to in-process quality control checks, the generation
procedure is verified by the analysis of the statistically adequate
number of generated samples.  The precision of the samples is reported
as a coefficient of variability based on the analysis of these quality
control samples.  

		The methods included in the NIOSH Manual of Analytical Methods are
intended to promote accuracy, sensitivity, and specificity in industrial
hygiene analyses.  The process utilized by NIOSH includes the evaluation
and validation of every aspect of the method.  Each method includes
detailed instructions for sampling, sample preparation, calibration and
quality control, measurement and calculations.

		While NIOSH acknowledges that there may be situations where users of
the NIOSH methods will need to modify the prescribed method, NIOSH also
notes that when method modifications are made, quality control data
showing the reliability of the modified method is to be obtained.  

		Regarding the current NIOSH analytical methods for crystalline silica,
the use of a five micron pour size PVC filter in NIST-SRM 1878a are
specifically required.  Any variance from the NIOSH method should not be
considered valid unless there's a sufficient quality control data
provided to demonstrate the reliability of the modified method.

		In the case of silica sample preparation, the filter specified in the
NIOSH method is a five micron pour size PVC filter.  This is the medium
that has been validated.  Without validation, substitution of other
filter media is not appropriate.  Different pour size or different
filter material may have a negative impact on the dissolution of the
filter media using tetrahydrofuran and may not collect the appropriate
amount of sample material or may collect contaminants that would impact
the analytical results.

		As with other analytical methods, the success of any particular
technique can be dependent on the skill and experience of the analyst
and the quality system in place.  For example, whenever gravimetric
methods are employed, care needs to be taken to ensure that the sample
is at an equilibrated state using controlled environmental chambers and
conducting all weighing within the chamber.  This will eliminate the
potential for inaccurate measurements from environmental influences such
as moisture in the air being absorbed by the filter media.  

		We are providing these details to emphasize to OSHA the care and
control exercised in the AIHA PAT Programs when developing proficiency
test items for inter-laboratory comparison studies.

		We urge OSHA to take into consideration the quality of the data upon
which AIHA PAT Programs' comments are based when determining the merit
and validity of comments from stakeholders related to inter-laboratory
comparison studies.

		The free silica sample concentration for IH PAT Programs is generally
between 50 and 225 µg.  Target concentrations are varied for each round
and prepared samples must fall within plus or minus 10 percent of the
specified target concentrations.  Four concentration levels are prepared
for each silica round, and all sample sets include a blank sample.

		JUDGE PURCELL:  Ms. Latko, I hate to interrupt, but each of the AIHA
presenters asked for 10 minutes.  You've already taken 20 minutes.

		MS. LATKO:  I apologize.

		JUDGE PURCELL:  I know you gave me your written testimony before
starting, and I've marked that as Hearing Exhibit 113.  So if you don't
have any objection, I'll just admit that into the record.

		MS. LATKO:  No objection.  Thank you, Your Honor.

		JUDGE PURCELL:  Okay.  Thank you.  

(Whereupon, the document referred to as Hearing Exhibit 113 was marked
and received in evidence.)

		JUDGE PURCELL:  And Mr. Walsh is next on the agenda, and there's a
young lady here that asked to introduce you.  I'll ask her first to
identify herself for the record.

		MS. MORTON:  Thank you, Your Honor, for calling me a young lady.  I'm
Cheryl Morton, 

C-h-e-r-y-l, Morton, M-o-r-t-o-n.  I am the Managing Director of AIHA
Laboratory Accreditation Programs, LLC.  We are an affiliate of AIHA,
the American Industrial Hygiene Association, and I'm here to help answer
any questions that may come up.  I'm here also to introduce William
Walsh, Bill Walsh, who is here to give our testimony.

		JUDGE PURCELL:  Okay.  Thank you, Ms. Morton.  I'll also note that
I've marked your testimony as Hearing Exhibit 112, and I'll admit that
into the record.

(Whereupon, the document referred to as Hearing Exhibit 112 was marked
and received in evidence.)		

		JUDGE PURCELL:  If you wish to summarize that instead of reading it
into the record, you can do that.

		MR. WALSH:  Okay.  Thank you, Your Honor.  

		JUDGE PURCELL:  Certainly.

		MR. WALSH:  My name is Bill Walsh, and I'm the Vice Chair of the
Analytical Accreditation Board of the AIHA Laboratory Accreditation
Programs.  I'm a certified industrial hygienist and a former lab
director for an AIHA accredited laboratory.  I've got 20 years
experience with the Laboratory Accreditation Programs, and about 30
years experience in industrial hygiene laboratories and specific
experience running silica samples using x-ray diffraction.  

		The AIHA Laboratory Accreditation Program comprises a group of
accreditation programs under the American Industrial Hygiene
Association.  There is 75 local sections of AIHA and 10,000 members.  

		Before the establishment of the limited liability corporations for
producing PAT samples and laboratory accreditation, labs were accredited
directly by the American Industrial Hygiene Association in IH and
asbestos and lead.

		The limited laboratory accreditations were formed in 2010 to take over
that function.  About 70 percent of the laboratories that AIHA
Laboratory Accreditation Programs accredit are involved in industrial
hygiene analysis.  Of those, I think it's been testified already there
are about 40 that run silica as part of the samples.

		The AIHA Laboratory Accreditation laboratories are assessed to ISO/IEC
17025.2005, general requirements for the competence of testing and
calibration laboratories, as well as additional AIHA specific
requirements.  And we'd be happy to provide the panel with a copy of our
policies if as requested.

		The Laboratory Accreditation Programs themselves are accredited
according to ISO 17011, conformity assessment general requirements for
accreditation bodies and accrediting conformity assessment bodies.  

		AIHA LAP is a signatory of the Asia Pacific Laboratory Accreditation
Cooperation and the Inter-American Accreditation Cooperation, and we are
a signatory of the Mutual Recognition Agreement of ISO.  

		One thing that separates the AIHA LAP is our requirement to
participate in proficiency testing.  We have robust proficiency testing
requirements and all labs must demonstrate successful participation in
the PT Program when applying for accreditation.  With the laboratory's
permission, the proficiency testing results are submitted to AIHA LAP
from the proficiency testing providers used by laboratories.  We do not
specify a particular proficiency testing program, only that the labs
participate in one for each field of testing.

		PT performance is monitored on a continuing basis and labs are
suspended when they fail two consecutive rounds of proficiency testing. 


		There are, as I said before, 40 industrial hygiene labs currently
accredited for silica analysis and they participate in the AIHA
Industrial Proficiency Hygiene Testing Program which is the only one
that I know of, analyzing silica four rounds per year.  

		This makes proficiency testing the centerpiece of our program since it
gives some quantifiable data to judge the relative performance of
laboratories.  It's important to note that AIHA LAP does not provide
proficiency testing or other inter-laboratory comparisons itself but has
approved several proficiency testing providers.  The AIHA LAP maintains
a list of approved proficiency testing providers on its website.  

		The AIHA LAP has reviewed OSHA's analysis in the proposed rule on
sampling and analytical methods that can be used to measure airborne
crystalline silica and agrees with OSHA that the x-ray diffraction and
infrared spectroscopy methods of analysis are both sufficient to
quantify levels of quartz and cristobalite that would be collected on
air samples taken from concentrations at the proposed PEL and action
levels.

		We have also reviewed the data from OSHA's Salt Lake City Technical
Center on lower filter loadings which has shown an acceptable level of
precision analyzing samples at 40 µg and 20 µg.  While that data show
acceptable precision and analysis, we recognize that more work needs to
be done to prove analytical methods for silica especially if labs are
going to be able to produce reliable data at or below the proposed
action level of 25 µg/m3.

		The AIHA LAP is willing and expects to work with NIOSH and OSHA
officials to review and validate new analytical methods as they are
being developed.  This is a role that AIHA LAP has historically played,
and we expect to continue to play this role moving forward.  

		JUDGE PURCELL:  Mr. Walsh, again I hate to interrupt, but in the
interest of making sure that everyone has an opportunity to ask specific
questions, I note that your written testimony includes a response to
question 46 as well as comments on inter-laboratory comparisons.  Again,
that's admitted into the record as evidence.

		If you don't have any problems with it, what I'd suggest is that we go
ahead and open it up to questions.  I know Ms. Morton is here to answer
specific questions as well.

		MR. WALSH:  Sure thing.  

		JUDGE PURCELL:  I appreciate that.  Let me ask members of the audience
how many individuals have questions for the panel.  

		All right.  I see three hands right now.  Let me go ahead. 
Ms. Trahan.

		MS. TRAHAN:  Can I go last this time?

		JUDGE PURCELL:  If you'd prefer to go last, I don't have a problem
with that.  Mr. Schneider.

		MR. SCHNEIDER:  Scott Schneider, 

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

		Thank you for your testimony.  I'm sorry I didn't get to hear it all. 
I just had a question.  The samples that you guys analyze for silica are
by and large -- I mean would you say that they're by and large sampled
using 1.7 L pumps?

		MR. WALSH:  This is Bill Walsh.  No, I would say it's a mixture of 1.7
and 2.5 depending on the particular cyclone that's being employed by the
people taking the samples.

		MR. SCHNEIDER:  Okay.  Because NIOSH in their testimony talked about
the use of 4.2 L pumps.  So if we were to use 4.2 L pumps, then
presumably the ability to measure at the action level would be
increased.  Is that correct?  

		MR. WALSH:  That's correct.  The air volumes and the denominators, so
the greater the air volume the lower the measured amount.  As long as
the cyclones pulling at the four micron cut point, it's irrelevant as
far as the analysis is concerned.

		MR. SCHNEIDER:  Okay.  So you feel like if we were to use the higher
flow pumps that you'd feel confident that you could measure the action
level with sufficient precision?

		MR. WALSH:  Yes, I do.

		MR. SCHNEIDER:  Okay.  Thank you very much.  

		JUDGE PURCELL:  Thank you, Mr. Schneider.  Who'd like to go next? 

		MR. CHAJET:  Good afternoon.

		JUDGE PURCELL:  Good afternoon.  Please state your full name, spell
your last name, and your affiliation.

		MR. CHAJET:  My name is Henry Chajet.  I'm with Jackson Lewis, and I'm
representing the United States Chamber of Commerce.  

		JUDGE PURCELL:  Can you spell your last name, Mr. Chajet?

		MR. CHAJET:  C-h-a-j-e-t.  

		JUDGE PURCELL:  Thank you.  

		MR. CHAJET:  And I just have a few questions.  First of all, I'd like
to ask whether the intent of your process as you explained it is to
minimize the variability of the actual amount of material that is
delivered to laboratories for proficiency analysis testing?

		MS. LATKO:  I'm sorry.  Could you repeat the question, please?

		MR. CHAJET:  Sure.  As I understand it, the intent of your process by
limiting to one particular standard of silica, by limiting to particle
size, by limiting to interference materials, that's so that you can
limit the variability of the sample delivered to a laboratory for round
robin PAT testing?

		MS. LATKO:  We are following NIOSH analytical methods, and that is
what we are using when we develop our samples.

		JUDGE PURCELL:  And that's Ms. Latko responding for the record.

		MS. LATKO:  That's Mary Ann Latko responding.

		MR. CHAJET:  But you agree that those procedures are intended to
minimize the variability from the actual weight that you're delivering
to the testing labs, correct?

		MS. LATKO:  I really can't speak to what the intent was from that
perspective.  Again, it's Mary Ann Latko responding.  

		MR. CHAJET:  Okay.  When you have real world samples they vary in
particle size, they vary in interference materials.  You would agree
that you would expect a larger variability in results if you were round
robin testing real world samples that were split for various labs to
check?

		MS. LATKO:  We do not test real world samples in this particular
instance.  So I really can't speak to that.

		MR. WALSH:  This is Bill Walsh.  I can answer a little bit of that. 
Provided that a cyclone is used at the proper flow rate, the particle
size distribution should be 10 microns or less and should be relatively
uniformly distributed across the face of the filter which are the two
sources of variability.

		MR. CHAJET:  And interferences as well, right?

		MR. WALSH:  Interferences can be minimized by the laboratory with the
help of the person taking the samples as well as the laboratory's
expertise.

		MR. CHAJET:  I'm trying to understand as compared to what you do in
your certification program, a laboratory that's analyzing real world
samples is going to get a higher level of variability, correct?  Because
the real world is much more highly variable than all the controls you
put on how to feed samples to them.

		MR. WALSH:  There are additional sources of error in real world
samples.  Pump rates, for example, operator error, things like that.

		MR. CHAJET:  Okay.  The pass rate for a laboratory on silica, is it
plus or minus 100 percent of the intended result that you report?

		MS. LATKO:  You need to have 75 percent or greater acceptable results
to pass the PT round.  

		MR. CHAJET:  So, in other words, for a laboratory to maintain or get
its certification, if the real value is 50 plus or minus 75 percent is a
pass rate?

		MS. LATKO:  No.  Of the samples, each sample is evaluated and you need
to have an acceptable result on that sample.  I cannot speak to how an
accreditation body -- each one has its own way of taking the proficiency
testing data and using that to determine whether that laboratory would
be accredited.

		MR. CHAJET:  But for your reporting purposes, you testified that if
you miss two in any particular round, the certification is lifted or -- 

		MS. LATKO:  No, that was not my testimony.

		MR. CHAJET:  That was Mr. Walsh's testimony.  Is that correct?  

		MR. WALSH:  That's correct.  

		MR. CHAJET:  Okay.  So that pass rate is plus or minus 75 percent of
the real result?

		MR. WALSH:  It's 75 percent correct out of the four samples.  I
believe the individual sample, and Cheryl can help me, is plus or minus
20 percent of the relative mean value.

		MR. CHAJET:  Because you're averaging four.

		MR. WALSH:  No.  If a sample is 100 µg, the acceptable rate would be
between 80 and 120 µg.   

		MR. CHAJET:  For a particular one sample?

		MR. WALSH:  It's 20 percent, yeah, per each sample.

		MR. CHAJET:  For each one.

		MR. WALSH:  Right.

		MR. CHAJET:  Okay.  And do you have any comparison of how that relates
to the error rates or variability that laboratories report for their own
internal analysis, just for the analysis part?

		MR. WALSH:  That goes laboratory to laboratory.  It's examined by the
site assessors during every two year onsite inspection, but I don't have
that information in front of me.

		MR. CHAJET:  So when you're taking each one of these samples at plus
or minus 20, how do you get the plus or minus 75 percent for the pass
rate?

		MR. WALSH:  You have to be within the acceptable range of three out of
the four samples.

		MR. CHAJET:  Okay.  So three out of four have to be in the acceptable
range.

		MR. WALSH:  Right.

		MR. CHAJET:  I could be off 25 percent of the time.

		MR. WALSH:  You could be off 25 percent on one of the four samples.

		MR. CHAJET:  By as much as -- it doesn't matter really.

		MR. WALSH:  Right.  If you miss, you miss.

		MR. CHAJET:  Okay.  And when you deliver samples for the PAT Program,
you deliver these liquid silica samples.  Is that right?  

		MS. LATKO:  They are liquid deposited on filters.  They are not liquid
samples.

		JUDGE PURCELL:  That's Ms. Latko responding.

		MS. LATKO:  Yes.  Mary Ann Latko responding.

		MR. CHAJET:  Okay.  Liquid deposited on filters.  So that's how you
control for particle size and interference by creating this liquid
material to be tested for silica content?

		MS. LATKO:  The particle size is determined by the reference material
that is used which is the NIST-SRM 1878a.

		MR. CHAJET:  Do you ever deliver materials that have the known
interferences in them that NIOSH reports have to be accounted for?

		MS. LATKO:  Exactly what known interferences were you -- 

		MR. CHAJET:  A number of minerals that are listed in the NIOSH 7500
method that interfere with the sampling.

		MS. LATKO:  We use different background matrices, and I noted there
are four of them that we would use, and those are rotated through on a
random basis in our PT testing.

		MR. CHAJET:  But not the interference materials that NIOSH lists on
7500.  Maybe I'll ask Mr. Walsh.  

		MR. WALSH:  I'm not -- this is Bill Walsh.  I'm not aware of what
interferences are contained in the background matrix.  There could well
be some.  I'm not sure of that.  

		MR. CHAJET:  Okay.  That's all I have.  Thank you very much.  

		JUDGE PURCELL:  Thank you, Mr. Chajet.  The next person that has some
questions, please state your name for the record and spell your last
name and identify the group you're affiliated with.

		MR. DRYSDALE:  Sure.  My name is Dale Drysdale.  Last name is
D-r-y-s-d-a-l-e.  I'm here on behalf of the National Sand, Stone, and
Gravel Association, but also as a 31 year member of AIHA who's used AIHA
accredited labs on hundreds of occasions.

		I'd like to comment AIHA for every effort they make to improve the PAT
process and my questions come in that spirit.

		First of all, are you aware that last week one of the experts
testified that for PAT rounds after round 158, the RSD values that were
greater than 20 percent were truncated to 20 percent.  Did I understand
his testimony to be -- is that accurate?

		MS. LATKO:  I am not sure exactly what the testimony was, and on our
statistical, we do a process called winsorising the data, and that is
where the outliers, and I am not a statistical expert and I cannot speak
to it in greater detail, but that will help us to remove and identify
the outliers.

		MR. DRYSDALE:  Okay.  So the true RSD that's reported is potentially
greater than 20 percent.  Is that correct?  

		MS. LATKO:  I would have to go back and talk to my statistical experts
on that, but with that type of winsorization, that is where the ultimate
upper level is indicated.

		MR. DRYSDALE:  Would you mind doing that, and is it possible to
provide a response for the record for that?

		MS. LATKO:  I will look into that.  I can tell you that we do have
agreements with our participants regarding the confidentiality of data
and also when we share the data with an organization like NIOSH, but I
will look into it and see if we are allowed to do that with our current
confidentiality issues.

		MR. DRYSDALE:  All right.  Thanks.  And are the most recent PAT round
RSD values also truncated?  Do you also winsorize the RSDs?

		MS. LATKO:  Winsorizing is our standard process.

		JUDGE PURCELL:  Again, that's Ms. Latko responding.  

		MR. DRYSDALE:  Okay.  I take it from your testimony that you're aware
of this study that was described here last by a representative of the
American Chemistry Council on the blinded testing that the ACC
commissioned?

		MS. LATKO:  Yes.

		MR. DRYSDALE:  Okay.  

		JUDGE PURCELL:  Ms. Latko.

		MR. DRYSDALE:  With that in mind, would you expect that in general the
proficiency testing results that you get would differ if you all had
sent out blinded samples to the various PAT Program labs?

		MS. LATKO:  I really can't speak to that because it is not something
that would be within the way we would operate our proficiency testing. 
Again, this is Mary Ann Latko responding.  

		MR. WALSH:  This is Bill Walsh.  I had a chance to look at the data as
Vice Chair of the Accreditation Board, and there were several additional
sources of error in the study that weren't well accounted for that I
think contributed a lot to the statistics.

		MR. DRYSDALE:  Okay.  I appreciate that response.  Hearing the
testimony that you provided here and the various processes and steps
that you have to improve the quality of the PAT Program and the samples
that are created that are sent out to the labs, has AIHA or any of the
parties that you deal with in this PAT process, have you ever considered
doing a -- well, number one.  Have you ever done blind testing like we
just heard last week where the laboratories are not aware that they're
receiving proficiency samples?  So Part A of that question is, has AIHA
or any of the other parties associated with the PAT process ever done
that kind of blind testing?  And Part B would be, if not, have you ever
considered it and discussed it internally?

		MS. LATKO:  When we ship the samples out to our participants, I do not
know how they are identified within their laboratory, whether they will
know that it's a proficiency test beyond the point of receipt.  So I
can't speak to whether they would know or not know.  When we ship them
out, they are coming from our sample generating provider.

		JUDGE PURCELL:  Ms. Latko, just a reminder, if you would, please
identify yourself -- 

		MS. LATKO:  I'm sorry.

		JUDGE PURCELL:  -- when you respond, and I'll ask the panel members to
do the same.

		MR. WALSH:  This is Bill Walsh.  The PAT samples go out as single
blind, not double blind which is what I think you're asking.  

		It would be hard to do it as a double blind because you have to
provide means -- you have to identify the samples so that they're
reported back.  However, past PAT samples are available to the public
for purchase, and in my experience as a lab director, I know that
various customers have used them as blind submissions to the laboratory.

		MR. DRYSDALE:  Do you think that in the possibility that there is a
bias among certain labs to perhaps better when they know they're doing
proficiency samples versus those that come in on a commercial basis over
the transom?  Do you think it would be important for -- 

		JUDGE PURCELL:  Ask one question at a time, Mr. Drysdale?

		MR. DRYSDALE:  Okay.  I'm sorry.  I thought I was.  

		JUDGE PURCELL:  I thought you had asked a question.  Maybe I didn't
understand it but -- 

		MR. DRYSDALE:  Well, I guess let me start over.  Given what we've
discussed, would AIHA be willing to collaborate with a third independent
party, independent third party to repeat the type of testing?  I'm
asking this as a practicing industrial hygienist who has relied on
samples from accredited laboratories and now I find based on, at least
in part, the study that you've described as imperfect, and it may be,
but I'm finding myself -- 

		JUDGE PURCELL:  Mr. Drysdale, I hate to cut you off, but again ask a
question.  Please don't testify and go into -- 

		MR. DRYSDALE:  Thanks.  That was a predicate to the question, Your
Honor.  Would AIHA be willing to engage an independent third party to
send samples blinded to the laboratories, have it all done outside of
the scope of any other vested interest and report those in the
literature?

		MR. WALSH:  This is Bill Walsh.  Since the Laboratory Accreditation
Programs do not produce proficiency testing samples, I think as long as
they were produced by an accredited body, we would have no problem with
it at all.  And to speak to maybe one of your other questions, site
assessors are very sensitive to how PAT samples are processed in the
lab.  It's a specific area that's examined, and if the samples are
processed in any way other than a normal sample, the laboratory is cited
as a deficiency.

		MR. DRYSDALE:  All right.  Thank you.  

		JUDGE PURCELL:  Thank you, Mr. Drysdale.  

		Ms. Trahan, did you still have some questions?

		MS. TRAHAN:  Yes, I do.

		JUDGE PURCELL:  Please state your name and your affiliation for the
record.

		MS. TRAHAN:  Chris Trahan with the Building Trades.  

		And these two questions maybe are for Mr. Walsh.  You noted that you
had reviewed the study that ACC conducted.  You have said, I believe you
said several other sources of error were in that study but you did not
elaborate.  Could you elaborate on the sources of error that may have
been in that study?

		MR. WALSH:  The samples passed among several parties before they got
to the laboratory and in looking at the data, it looked like there may
have been some labeling problems between the blanks and one of the
higher spikes which resulted in both of those data sets being skewed.  

		And also I didn't see all the details of the sample preparation but it
appeared that the quality control for the sample prep was based purely
on gravimetric rather than also running some of the samples via x-ray or
IR, and sample preparation is a very high source of error for doing
standards, the dispersion has to be evenly applied across the face of
the filter.  

		So if the suspension was applied too quickly and the silica material
was pushed to the side, it could influence the results kind of in the
drop off as the concentration increased that was demonstrated in the
study.  Again, I'm not saying that's what happened, but I didn't see any
data to indicate that it didn't happen.

		MS. TRAHAN:  So one thing you did say, you said some of the details of
sample preparation were not included.  Is that correct?  

		MR. WALSH:  Right.

		MS. TRAHAN:  And the laboratory where you work now has a limit of
quantitation for silica of what?

		MR. WALSH:  Our limit of quantitation is five µg.  Over the, you
know, 30 years that I've been a chemist, things have changed a lot. 
When I started doing x-ray diffraction, you took a ruler and measured
the peak and now, of course, you use sophisticated software.  The
software and the instrumentation has improved enough that we have been
able to statistically verify a limit of quantitation at 5 µg which we
define as plus or minus 25 percent of the true value.  

		MS. TRAHAN:  Thank you very much.  

		JUDGE PURCELL:  Thank you, Ms. Trahan.  Were there any other
questions from the audience?  

I'm not seeing any hands.  

		I'll turn it over to OSHA. 

		MR. PERRY:  Thank you, Your Honor.  We do have a few questions, and
again, thank you, Panel members, for coming to testify today.  This has
been very helpful.  It's somewhat technically complex testimony, but
I've enjoyed it.  I believe, Dr. Coble, you have a few questions.

		DR. COBLE:  Yes.  Joe Coble.  And when you're preparing the PAT
samples, proficiency testing samples, how do you determine how much to
deposit on the filters?

		MS. LATKO:  This is Mary Ann Latko responding.  As far as what our
target concentrations are, we have a range in our contract with our
sample generation that will give us the range of those, and those target
concentrations are determined by staff randomly to completely span that
range over the course of several rounds.

		DR. COBLE:  Which range are you referring to?

		MS. LATKO:  In our contract, we will generally, and I don't have it in
front of me, and I don't want to misquote, but I believe it is at twice
the current PEL down to one-half the current PEL.

		DR. COBLE:  So the lower end of the range is at one-half the current
PEL?

		MS. LATKO:  I believe so, yes.

		DR. COBLE:  And so that would be including the proposed PEL of 50 -- 

		MS. LATKO:  Right.

		DR. COBLE:  -- would fall within the range that you currently
distribute.

		MS. LATKO:  Yes, it does, but the action level of 25 would not.

		DR. COBLE:  Right.  But you would consider expanding or changing that
range if there was the need to do so?

		MS. LATKO:  Our current contract is based on the existing OSHA PEL. 
So if that would change, we would need to reevaluate our contract and
our program appropriately.

		DR. COBLE:  Okay.  Thank you.  

		MR. PERRY:  Okay.  I have a few questions.

		Let's see.  For Mr. Walsh, if a laboratory wanted to become
accredited for silica analysis, what's kind of the process, and how long
would that take if they aren't currently accredited?

		JUDGE PURCELL:  For the record, that was Mr. Perry asking the
question.

		MR. PERRY:  Thank you, Your Honor.  

		MR. WALSH:  This is Bill Walsh.  They would have to apply to the
accrediting agency that they want to have, fill out the application,
demonstrate on paper that they're meeting the ISO requirements, have a
site visit and then in our case, AIHA's case, they would have to
successfully complete two proficiency testing rounds.  So it would be an
absolute minimum of six months.  Cheryl.

		MS. MORTON:  More like nine months to a year.

		JUDGE PURCELL:  Okay.  That was Ms. Morton.

		MS. MORTON:  Cheryl Morton, I'm sorry.

		JUDGE PURCELL:  Okay.  

		MS. MORTON:  More like nine months to a year, and I must say that the
site assessment involves a demonstrate of competency, so that the
analyst has to run certain tests and demonstrate that, you know, they're
not just putting out phony PT numbers.

		MR. PERRY:  Okay.  Excellent.  And if I understand then, an accredited
laboratory, at least under your program, is assessed every two years, a
site assessment every two years.  Is that correct?  

		MS. MORTON:  Yes.  Initially after the very first accreditation is
issued, you have an assessment, a surveillance assessment in a year, and
then after that, every two years unless the site assessor calls for one.

		MR. PERRY:  Okay.  What's the training and background of the
assessors?  Who are they?

		MS. MORTON:  Oh, wow.  They are -- we have 18 assessors.  They are
people who are generally IHs, people who are lab professionals, who have
worked in labs for many years.  Some of them are retired or some of them
still work in a laboratory and have had agreements with their employer
to conduct assessments.  So they're very experienced, and they undergo a
week-long training and then they have to do an assessment, be witnessed
and they go through a very long process before they're qualified to
assess.

		MR. PERRY:  Okay.  Thank you.  That was helpful.  

		And then I think, Mr. Walsh, you had mentioned earlier offering, I
think your programs' policies on what you look for, for QA/QC assurance
-- 

		MR. WALSH:  Yes.

		MR. PERRY:  -- to the record.  So that would be helpful if you can
supply that as you mentioned before.

		MR. WALSH:  We'd be happy to do that.

		MR. PERRY:  Thank you.  Ms. Latko, let's see.  In your written
testimony, you talk about a couple of other studies that it looks like
you've done.  One of them you say that you evaluated PAT data both eight
rounds before and after the change in the way the samples were prepared.

		MS. LATKO:  That is correct.  

		MR. PERRY:  Moving from aerosol deposition to direct liquid
deposition.

		MS. LATKO:  Right.  And using the NIST-SRM of 1878a.  

		MR. PERRY:  Okay.  Is that a study that you would be able to provide
any details to the post-hearing record?

		MS. LATKO:  I will look into that.  As I said, our data is under -- we
have confidentiality agreements with our participants.  We have provided
some of that data to NIOSH, and it is also under an agreement, but I'll
look into that -- 

		MR. PERRY:  Okay.  

		MS. LATKO:  -- and if there's any way we can, we will provide that
additional data.

		MR. PERRY:  Okay.  Then I'll ask you maybe for two other things under
consideration, one of them in your written testimony, you talk also talk
about 10 rounds of data in order to look specifically at the relative
standard deviation obtained at the low end of the filter load at 50 µg.
 And if I understand your written testimony, it looks like the relative
standard deviation -- 

		MS. LATKO:  Uh-huh.  

		MR. PERRY:  -- in fact, was lower -- 

		MS. LATKO:  Yes.

		MR. PERRY:  -- at 50 µg than it was at the higher filter loads.

		MS. LATKO:  That is correct.  

		MR. PERRY:  So any additional data or information you could supply to
the record on that investigation -- 

		MS. LATKO:  I will certainly do that.

		MR. PERRY:  -- would also be helpful.  And then I will ask in general,
since I know that as you say, you collaborated with NIOSH on looking at
more recent PAT data up to 2013, I would ask for consideration that that
data also be made available to the record if it's possible for you to do
that and stay true to your confidentiality agreements and so forth.

		MS. LATKO:  Most certainly.

		MR. PERRY:  Then you mentioned that you use the NIST material -- 

		MS. LATKO:  Uh-huh.  

		MR. PERRY:  -- and with constant stirring to maintain as homogeneous
suspension of the materials you can.  So there's no sedimentation
involved is there?

		MS. LATKO:  We use a sample generation -- again, this is Mary Ann
Latko responding.  We use a sample generating contractor, and according
to their procedure, that they are using this constant agitation to
prevent that type of settling so we have a homogeneous deposition.

		MR. PERRY:  Okay.  But there's no intentional sedimentation -- 

		MS. LATKO:  No.

		MR. PERRY:  -- of the material to get rid of any larger particles.

		MS. LATKO:  I do not believe so.

		MR. PERRY:  Okay.  Is there a written protocol for sample preparation
that they follow?

		MS. LATKO:  There is.  It is proprietary to our sample generation
contractor.

		MR. PERRY:  Okay.  

		MS. LATKO:  But I could speak with them about releasing that.

		MR. PERRY:  Any details you are comfortable to release would be
welcome.

		And just so I understand something about sample errors, when you move
or when AIHA changed from the aerosol deposition to direct liquid
deposition on the filter, with the idea that we would reduce at least
any variation or variability that's being caused by the sample
preparation, that didn't eliminate sample preparation error, did it,
going to liquid deposition?  It's still, I mean your own QC of the PAT
samples, doesn't that show that there's still some variability there in
the samples?

		MS. LATKO:  Yes.  This is Mary Ann Latko responding.  And that is a
requirement for our contractor that if there is a variability of more
than 10 percent, plus or minus -- 

		MR. PERRY:  Yes.

		MS. LATKO:  -- the concentration, those samples cannot be used in the
PT program.

		MR. PERRY:  Okay.  Excellent.  But that's a source of error, am I
right, that doesn't exist in field samples because they're field
samples.  They're not -- it's a single field sample.

		MS. LATKO:  It's a single field sample.  You don't have a batch of
samples, that is correct.

		MR. PERRY:  So that plus or minus 10 percent error that's apparent, at
maximum -- 

		MS. LATKO:  Uh-huh.  

		MR. PERRY:  -- apparent in the PAT samples is not something you would
expect to be a source of error when analyzing field samples.  Is that
correct?  

		MS. LATKO:  I cannot -- I am not a statistical person and the source
of error, I could get a better definition or a better response for you
from our statistician about how that impacts our coefficient of
variability and other aspects.

		MR. PERRY:  Okay.  That would be most welcome.  Thank you.  

		Just one other question or two in an area.  If I understand or if I
recall, the number of accredited laboratories for silica analysis has
declined in the United States in recent years or over say the last 10 or
20 years.  Is that correct?  

		MR. WALSH:  This is Bill Walsh.  Yes, it has.

		MR. PERRY:  Okay.  Would that have any impact on the -- well, first of
all, let me ask you.  What do you think or know are some of the reasons
for that decline?

		MR. WALSH:  It's market consolidation.  There are fewer labs because
each lab is more efficient than they used to be.  When this process --
when I started doing this process, it was very manually intensive.  Now
there's auto samplers that load sample.  The instrument itself can
process samples faster, so that each lab's capacity has gone up.

		MR. PERRY:  Okay.  So each lab's capacity has gone up.  So even though
the number of labs have declined, there's still capacity out there to
analyze samples.

		MR. WALSH:  That's correct.  

		MR. PERRY:  Okay.  Thank you.  I believe that's all the questions I
have.  You all have been very helpful and I appreciate your testimony
today.  Thank you.  

		JUDGE PURCELL:  Any further questions from OSHA?

		MR. PERRY:  No, Your Honor.  

		JUDGE PURCELL:  Okay.  Thank you.  I'd like to thank the panel as well
for their testimony and participation today.  

		Mr. White, you're next on the agenda.  I'm prepared to proceed with
your testimony, and then we'll go to lunch after that.  

		Let me ask, is Steve Schrag here?  I don't see any indication that he
is.  So we'll proceed with Mr. White.  

		Mr. White, please state your name for the record and introduce
yourself, and when you're ready to proceed with your testimony.

		MR. WHITE:  Here's a copy of my testimony.

		JUDGE PURCELL:  All right.  I'm going to mark your testimony as
Hearing Exhibit 114 and that will be admitted into the record.

(Whereupon, the document referred to as Hearing Exhibit 114 was marked
and received in evidence.)

		MR. WHITE:  Thank you, Your Honor.  My name is Ronald White.  I'm
testifying on behalf of the Center for Effective Government, and I
appreciate the opportunity to present this testimony on behalf of the
Center for Effective Government where I serve as Director of Regulatory
Policy.

		The Center for Effective Government, formerly called OMB Watch, is a
national policy organization with the aim of ensuring that government
operations are open and transparent, that our regulatory system protects
people and the environment and that public officials advance the
interests and priorities of working Americans.

		The body of scientific evidence is documented in OSHA's proposed rule
and in more detail in OSHA's 2013 documents entitled "Occupational
Exposure to Respirable Crystalline Silica: Review of the Health Effects
Literature and Preliminary Quantitative Risk Assessment," as well as in
the document entitled "Supplemental Literature Review of Epidemiological
Studies on Lung Cancer Associated with Exposure to Respirable
Crystalline Silica," clearly indicates that exposure to silica causes
silicosis, chronic obstructive pulmonary disease, lung cancer, chronic
kidney disease and autoimmune disorders.

		JUDGE PURCELL:  Mr. White, could you move the mic back just a little
bit.

		MR. WHITE:  Sorry.

		JUDGE PURCELL:  Thank you.  

		MR. WHITE:  CEG believes that OSHA conducted a thorough review and
evaluation of the peer-reviewed literature on the health effects
associated with exposure to respirable crystalline silica.  

		However, numerous articles regarding the health impacts of
occupational silica exposure have been published in the peer-reviewed
literature since the conclusion of OSHA's literature review.  

		For a listing of this published literature, OSHA has referred to
written comments on the proposed rule submitted by the American Public
Health Association which include an appendix with several articles
published in the peer-reviewed literatures subject to OSHA's literature
review.

		Of particular note is the 2012 study by Chen et al., which found
significantly elevated standardized mortality ration for ischemic heart
disease in silica-exposed workers. 

		The authors of that study conclude that "Long-term silica dust
exposure was associated with substantially increased mortality among
Chinese workers.  The increased risk was observed not only observed for
deaths due to respiratory diseases and lung cancer, but also for deaths
due to cardiovascular disease."  

		This finding of an association between silica exposure and increased
risk of IHD mortality or incidence was also reported in studies by
Steenland and Sanderson in 2001; by Weiner et al., 2007; and by Lu and
Zhang, 2012, and expands the scope of adverse health effects of
potential concern from exposure to silica.

		The risk of death from silica exposures permitted under the current
standards is clearly significant.  OSHA's risk assessment indicates that
there is a "very high level of risk remaining at the PEL" for adverse
health effects from diseases even at the proposed 50 µg/m3 level. 

		OSHA's risk assessment estimates a remaining lifetime excess risk of
death associated with silica exposure of 6 to 26 lung cancer deaths per
1,000 workers, 43 deaths from nonmalignant respiratory disease,
including silicosis, per 1,000 workers, and 32 deaths from renal disease
per 1,000 workers. 

		These risk levels are well in excess of the benchmark of 1 in 1,000
excess risk over a working lifetime that OSHA has used for other health
standards and strongly underscores the need for an action level, AL, set
at a substantially lower exposure level to minimize the unavoided health
impacts. 

		CEG supports adoption of the proposed the 50 µg/m3 PEL based on
OSHA's current assessment of the feasibility of controls to achieve this
level of exposure, though we note that a threshold limit value
equivalent to 25 µg/m3 which is actually expressed as 0.025 mg/m3, time
weighted average standard, was set in 2006 by the American Conference of
Government Industrial Hygienists, and this exposure limit for silica has
been adopted by several international countries, including Japan, Italy,
and the Canadian provinces of Alberta, Nova Scotia, and Saskatchewan. 

		Compared to the current silica PEL of 100 µg/m3, the proposed 50
µg/m3 PEL will prevent over 16,000 silica-related fatalities and more
than 28,000 serious illnesses over a 45-year working life, or more than
350 deaths and 630 illnesses annually.

		CEG also supports OSHA's proposal to set an action level for silica
exposure at 25 µg/m3.  For workers employed in general industry,
exposure to silica that exceeds the AL, the action level, rather than
the PEL as proposed, for 30 or more days a year should trigger the
rule's medical surveillance provisions.  

		As noted in the written comments submitted by the AFL-CIO, requiring
medical surveillance based on exceedances of the AL is consistent with
OSHA standards for several other toxic chemicals and materials. 

		CEG supports the recommendation from the American Public Health
Association that medical surveillance be conducted at least every three
years subsequent to an initial examination conducted within 12 to 18
months of the baseline examination, with the clarification that workers
are able to request to see a clinician at an earlier interval if there
is a concern about shortness of breath, excessive exposure levels, or
their ability to use respiratory protection. 

		We also support periodic exposure monitoring for the general industry
categories when silica exposures are at or above the action level, with
more frequent assessments required if exposures exceed the PEL. 

		Since the rationale for OSHA's selection of 50 µg/m3 level as the PEL
for all affected industries is not based on a level that eliminates
significant risk but rather on the feasibility of engineering controls
and work practices, CEG recommends that OSHA require reporting of
results from the exposure monitoring required when silica exposures are
at or above an action level of 25 µg/m3, to provide information
regarding the ability of controls to reduce exposures below the proposed
PEL. 

		CEG strongly supports a compliance approach for the silica standard
based on OSHA's and the industrial hygiene field's longstanding concept
of a hierarchy of controls that requires that exposures be reduced
primarily through the use of engineering and work practice controls
unless the employer can demonstrate that such controls are not feasible.
 

		Where engineering and work practices controls are not sufficient to
reduce exposures to or below the PEL, the employer is still required to
implement feasible controls, supplemented by respiratory protection to
comply with the PEL.  Limiting exposure to silica at its source through
engineering and work practice controls not only protects workers
directly involved in the dust-generating operation, but also serves to
limit exposures to other workers and the public. 

		With respect to the construction industry standard, we recommend that
Table 1 of the proposed rule should be reviewed within five years and,
where necessary, revised with updated information on control technology
that is technically and economically feasible to achieve lower exposure
levels.  

		We urge OSHA to evaluate the evidence that is submitted to the record
for this rulemaking to determine if more recent experience and evidence
support the feasibility of a lower limit, and, if so, to set a lower PEL
in the final rule.

		CEG urges OSHA to prohibit the use of silica sand for abrasive
blasting.  In the 1974 criteria documents supporting the recommended
standard of 50 µg/m3 for occupational exposure to crystalline silica
NIOSH noted that silica sand, or other substances containing more than 1
percent crystalline silica, should be prohibited as abrasive blasting
material. 

		The 1992 NIOSH Hazard Alert document 92-102 notes that the use of
crystalline silica for blast cleaning operations was prohibited in Great
Britain in 1950 and in other European countries in 1966. 

		The NIOSH Alert recommends "Prohibit silica sand, or other substances
containing more than 1 percent crystalline silica, as an abrasive
blasting material and substitute less hazardous materials."

OSHA's website lists numerous alternatives to silica sand for abrasive
blasting that are feasible and available. 

		In conclusion, almost 40 years after NIOSH issued criteria for a
recommended standard limiting occupational exposure for all forms of
crystalline silica to a level of 50 µg/m3, and OSHA published an
advanced notice of proposed rulemaking based on the NIOSH criteria, the
process for developing a revised exposure limit and related components
of a rule to reduce the health impacts of silica exposure on workers has
yet to be completed.

		OSHA's action to adopt a more health protective PEL is long overdue
and should be completed on an accelerated schedule to ensure that
workers are provided as soon as possible with the improved health
protections afforded by the revised standards. 

		Thank you for your attention.

		JUDGE PURCELL:  Thank you, Mr. White.  Let me see a show of hands of
individuals in the audience who would like to ask questions.  

		Seeing none, I'm going to turn it over to OSHA.

		MR. PERRY:  Yes, this is Bill Perry.  And thank you, Mr. White, for
coming to visit us today and provide your testimony and thank you also
for your patience.  I know we're running a bit long this morning or this
afternoon.  So I think we have a few questions.

		MS. SCHIFANO:  This is Jessica Schifano.  I just have a quick question
about your written comments.  If you could clarify for me, on page 3,
you say that CEG recommends that OSHA require reporting of the results
from the exposure monitoring required at the action level.  What do you
mean by reporting of results?  Who would that reporting go to?  Is it
reporting to OSHA, reporting to employees?

		MR. WHITE:  Reporting to OSHA.

		MR. SCHIFANO:  Okay.  Great.  Thanks.

		MR. KUCZURA:  Hello.  My name is Greg Kuczura.  I have a question in
regards to the benefits analysis section on page 3.  You suggest a
different approach to evaluating the benefits, and I wanted to ask if
you could expand on that and explain why that different approach should
be taken and if you feel that the benefits will increase or decrease
with that approach.

		MR. WHITE:  I'm sorry.  Are you talking about my current testimony
that I've just provided?

		MR. KUCZURA:  The submitted comments on page 3 for the benefits
analysis.

		MR. WHITE:  I apologize.  I didn't bring those with me, but I can talk
to I think the question that you have -- 

		MR. KUCZURA:  Sure.  

		MR. WHITE:  -- which relates to the statistical analysis of the
benefits based on epidemiological data.  Is that the question that
you're referring to?

		MR. KUCZURA:  It's actually in regards to the benefits of the proposed
rule based on the selection of the monetary value of a statistical life
that increases over time resulting from an increase in real per capita
income and the estimated income elasticity of the value of life.

		MR. WHITE:  Right.  So OSHA did request comment on the issue of
whether or not there should be a static value of statistical life or
whether that should increase in time to reflect increases in income, as
an alternative approach and we did support that alternative approach,
that OSHA was requesting comment on in which the value of statistical
life would increase with increasing income.  I believe that's what
you're referring to.

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

		MR. PERRY:  I think that's all we have, Your Honor.  

		Thank you again, Mr. White.  We appreciate your appearance today.

		MR. WHITE:  Thank you.  

		JUDGE PURCELL:  Thank you, Mr. Perry, and also thank you, Mr. White.
 I appreciate your patience.  

		I know some of the panel members from the Brick Industry Association
are probably here.  As you may have guessed, we've been running a little
late.  I've been advised by Ms. Lindberg that OSHA has no objection to
shortening our lunch break.

		So the time is 25 after 1:00.  We're going to take 30 minutes, and
we'll resume at 5 minutes to 2:00.

		(Whereupon, at 1:25 p.m., a lunch recess was taken.)

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

(1:56 p.m.)

		JUDGE SOLOMON:  It's 4 minutes to 2:00.  So we're starting a minute
late, but I'd like to go back on the record again.  

		I'm Stephen Purcell, the Chief Judge for the Department of Labor.  

		This afternoon's Panel consists of various individuals representing
the Brick Industry Association.  I've been told that Mr. Leonard would
like to make an opening statement.  So at this point, I'll turn it over
to him.  

		MR. LEONHARD:  Okay.  Thank you, Your Honor.  Good afternoon and thank
you for providing us an opportunity to speak today about the proposed
silica rule.

		My name is Ray Leonhard.  I'm the President and CEO of the Brick
Industry Association.  The BIA is a 501(6)(c) trade association
representing the clay brick industry.

		BIA was founded in 1934 and incorporated in Delaware and maintains
headquarters in Reston, Virginia.

		In a recent National Association of Manufacturers survey, 79 percent
of respondents said their concern was the unfavorable business climate
due to taxes, regulations, and government uncertainties.  

		The silica rule as it's currently proposed represents such a concern
for the brick industry.  Following my testimony, other representatives
for the industry will provide facts, details, and real world examples of
how the proposed silica rule will impact their specific companies and
employees.  We believe this combined testimony will demonstrate the
silica rule will significantly and detrimentally impact the brick
industry while providing no commensurate improvement in the health or
well being of our employees.

		Let me begin by stating, our highest priority is protecting the health
of the brick industry's employees.  They are our most valuable asset,
and if we felt that the proposed silica rule was, in fact, going to
result in any health benefit to our employees, we would not be here
today and opposing this rule.

		Under the existing PEL, the brick industry has little or no instances
of silicosis among its workforce.  OSHA's own words on 78 FR 56333 of
the proposed silica rule states, the finding of a reduced silicosis risk
among pottery workers is consistent with other studies of clay and brick
industries that have reported finding a lower prevalence of silicosis
compared to that experienced in other industry sectors as well as lower
silicosis risk per unit of cumulative exposure.  

		Therefore, reducing the PEL by 50 percent or more cannot provide any
measurable health benefits for employees in the brick industry.  In
fact, the opposite may result.

		As you will hear from our speakers today, the proposed rule may
introduce real health risks to the industry and industry's employees
while attempting to address a problem that simply does not exist in our
industry.

		We will also demonstrate that OSHA has significantly underestimated
the impact of silica implementation costs in our industry. 
Notwithstanding that understatement, OSHA acknowledges the industry's
high cost on page 78 FR 56368 of the rule stating, the estimates of
annualized cost per affected establishment in general industry and
maritime vary widely from industry to industry.  These estimates range
by from $38,422 for brick and structural clay to $107 for paint and
coating manufacturing and $49 for dentist offices.

		OSHA also used financial information for the brick industry for years
2000 to 2006 to estimate the cost impact on the industry.  The problem
with using that financial data for those years, especially 2005, is that
that timeframe happens to be the best years the brick industry has ever
recorded.  

		Let's take a look at what the brick industry was like before the great
recession and after the great recession.  The information I'm presenting
is taken from the annual brick industry report.

		BIA engaged Tucker Worldwide, a renowned consulting and research firm
to collect industry data directly from brick manufacturer and
distributor companies as well as from public sources like the U.S.
Census Bureau and from private sources such as the National Association
of Home Builders among others in order to produce a comprehensive
analysis of the brick industry.

		This economic data shows significant financial change in the industry
that it has undergone since the record setting years used in the OSHA
report.  For example, brick production in 2005 had standard brick
equivalence of 9.7 billion units.  In 2012, that had dropped to 3.4
billion, a decline of 6.3 billion units, 65 percent decrease.  

		JUDGE PURCELL:  Mr. Leonhard, I hate to interrupt you, but do you
have a printed copy of your PowerPoint presentation?  What I'd like to
do is mark that as an exhibit for the hearing.  It will be Hearing
Exhibit 115.  And then as you go through the parts of the PowerPoint
presentation, if you could identify the charts you're referring to.

		MR. LEONHARD:  Okay.  Will do.

		JUDGE PURCELL:  Thank you.  

		MR. LEONHARD:  You're welcome.  

		So that was brick production.  Brick shipments and standard brick
equivalence, 9.4 billion in 2005, 3.5 billion in 2012.  That's a 5.9
billion unit decrease, 63 percent.  

		Shipment value, $2.1 billion in 2005, $869 million in 2012, a decline
of $1.2 billion, 59 percent.

		Plant utilization, 93.5 percent in 2005, down to 38.7 in 2012.  That's
a 59 percent decrease.  And industry jobs, 215,000 in 2005, 120,000 in
2012.  That's a 44 percent decrease, 95,000 jobs.

		These key financial indicators of the brick industry clearly
demonstrate the significantly weaker financial condition, the industry
finds itself in today.  Some of these indicators are now only a third of
what they were in 2005 which is data that mirrors what was used in
OSHA's report.

		Chart 1, which is up there on the screen, you can see what happened to
brick production right after the years that OSHA used in its report.  It
can't be much of a bigger decline than that.

		Chart 2, first I want to apologize.  There's a mislabeling on Chart 2.
 The middle bars there should all say 2005, not '06 and '07.  All three
of those are 2005.  

		Chart 2 shows OSHA's estimated annual silica rule implication cost per
establishment as a percentage of revenue.  It also shows a ratio if cost
estimates increase by 50 percent and by 150 percent.  Those were the
increases that they used as examples in their report.  The chart
illustrates the same three calculations using industry data from the
brick industry's annual industry report for 2005 and 2012.

		You can see the '05 data matches OSHA's report almost exactly. 
However, when you look at 2012 which is more representative of what the
current industry is like, the cost ratios increased 0.0 percent of
revenues at OSHA's estimate and with a 50 percent increase, 1.35 percent
and 150 percent increase, 2.26 percent, so substantially more impact
when you use current data.

		Chart 3, the same labeling issue on Chart 3.  It's a very similar
chart except for the OSHA cost are a percentage of profits, and before I
recap the results of that chart, it must be pointed out that the amount
of profit used in these calculations was based on OSHA's profit
percentage in their rule which was developed from balance sheet
information reported to the Internal Revenue Service for years again
2000 to 2006.  

		Although this percentage likely results in an overstatement of profit,
especially for 2012, I do not have any exact information from the
industry to use instead.  So I have continued to use the same ratio that
OSHA used in its report.  Even with 2012 profits likely being
overstated, you can see the impact that it has using 2012 information. 

		Again using OSHA's cost estimates, the percentage of profit is 20.45
percent.  If those costs go up by 50 percent, it increases it to 30.68
percent of profit, and if it goes up 150 percent, all the way up to
51.14 percent of profit.  And the ACC Silica Panel estimates that the
actual cost to our industry will be $452 million, not $7.8 million.  So
you can imagine what those ratios would look like if OSHA's cost
estimates are not on the mark.

		So no matter what the measure, the financial data that's used better
reflects the current condition of the industry, and it shows a
significant cost impact.

		The brick industry has already been decimated by the great recession,
and just as we're starting to recover, we're facing huge regulatory
costs from EPA regarding its Brick MACT and the National Ambient Air
Quality Standards among others and OSHA's silica rule.  These cumulative
regulatory costs are unwarranted and may lead to further job losses and
plant closings.  

		We hope that after listening to all of the representatives for our
industry today, you'll agree with our position that the proposed silica
rule is unjustified for the brick industry and should be exempted from
the rule because of our extremely low incidence of silicosis in our
industry and at the existing PEL level, and the implementation costs for
the industry is so high that it's even used as an example in OSHA's
report.

		Now, I started with this statement, and I'll end with it.  Our
employees are the most valuable resource and their safety is our highest
priority, and we would not be opposing this rule if we felt there was
some benefit to employees in the brick industry.  

		This rule is attempting to address a problem that simply doesn't exist
in our industry, and therefore we don't believe that OSHA can
demonstrate that the proposed rule will result in a decrease in
silicosis cases.  This rule will not protect the health of the employees
in our industry, and in some instances, the proposed rule will do the
exact opposite, introduce real health dangers to our workforce.  

		Thank you for your consideration.

		JUDGE PURCELL:  Thank you, Mr. Leonhard.  Before Ms. Miller
introduces the speakers for the panel, let me just make a correction on
exhibit numbers.  I was given a written copy of your testimony, which
I'm going to mark as Hearing Exhibit 115 instead of the PowerPoint
presentation. 

(Whereupon, the document referred to as Hearing Exhibit 115 was marked
and received in evidence.)

		JUDGE PURCELL:  That document also has accompanying it, the charts you
referred to and I've hand corrected Charts 2 and 3 as far as the 2005
year for all those.

		MR. LEONHARD:  Thank you, Your Honor.  

		JUDGE PURCELL:  I'm going to mark separately Hearing Exhibit 116 which
is the PowerPoint presentation which is appears multiple speakers will
be using during their presentation, and I'll admit both exhibits into
the record.  

(Whereupon, the document referred to as Hearing Exhibit 116 was marked
and received in evidence.)

		JUDGE PURCELL:  So with that said, let me ask Ms. Miller to go ahead
and introduce the panel.

		MS. MILLER:  Okay.  I'm going to make a statement as well and
introduce the people all in one.  

		My name is Susan Miller, and I am the Vice President for Environment,
Health and Safety for the Brick Industry Association.  I've worked with
the brick industry for 15 years, including the past 5 as BIA's Vice
President for EH&S.  

		As you've heard from what Ray just said, our industry is committed to
protecting our workers.  As you also saw in that first graph, our
industry is struggling.  Like everyone, we have limited resources.  We
need to ensure we're using our resources to the best we can, both in our
manufacturing as well as in our EH&S programs which are integral to
those operations.  

		We agree with the concerns raised that you've heard for the past
couple of weeks raised by other industries about the lack of
demonstration by OSHA, that the rules are justifiable, and we share the
concerns about the feasibility.  We share the concerns that the proposed
levels will fall below levels that we can accurately measure or verify. 


		We are members of the American Chemistry Council's Crystalline Silica
Panel, and we believe that they've done a great job of characterizing
the issues that a lot of industries, all industries tend to have with
this proposed rule.

		However, today we're here as brick people.  We believe we have
specific information that you need to consider separately.  We're not
here as experts for the whole silica rule in all industries.  We believe
that for us, you have grossly underestimated the cost and our ability to
pay these costs.  But most importantly, we believe that there's no
significant risk to mitigate.  

		We're going to discuss three main points over the next two hours or
so.  We'll try to be faster.  

		One, OSHA should treat us separately.  Dr. Garth Tayler of Acme Brick
will briefly review testimony given by Mr. Bob Glenn, our expert on
silica and silicosis, or lack thereof, even with exposures higher than
the current PEL.  Bob was unable to be with us today, and we wish him a
speedy recovery.  

		Garth will also talk about geological differences between pure silica
and the clays and shales from which we make brick.  We believe that
these data demonstrate that OSHA should look at us differently.  There's
enough data to look at us differently, and we're different enough to
look.

		Number two, OSHA can and should treat us separately.  Susan Wiltsie of
Hunton and Williams will discuss our legal position that OSHA's
obligated to look at us separately when they have the data.  

		And most importantly, number three, OSHA has misrepresented the
technical feasibility cost and economic impact of the proposed rule. 
Dr. Garth Tayler's on my far right, Susan Wiltsie is behind me.  And
the second part of Dr. Garth Tayler's presentation will deal with
Acme's take on the silica rule.

		We're bringing in numerous speakers from different size companies to
try to show you the perspective and the range of situations we find
ourselves in.  There's not a one-size-fits-all we believe for all
industries.  Even within the brick industry, you will see some
differences.

		You'll hear from some of our larger companies including Tom Brown of
Acme Brick and Brian Ogle of General Shale who have more comprehensive
programs and resources and staff to support them.  You'll also hear from
some of our small businesses including Janet Whitacre Kaboth of Whitaker
Greer and Lincoln Andrews of Stiles and Hart.  Due to last minute issues
at the plant, Jeff Wyers from Nash Brick is unable to attend.  However,
I do have a brief statement from him that I would like to read into the
record if allowed.

		While equally committed to their employees' safety and these companies
will discuss real world problems with the rule, real world problems with
financing the rule.  In addition, Janet will speak about her review of
the economic assessment conducted by OSHA for this rule.  

		You'll also hear from Mr. Joe Rice, who is from Belden Tri-State
Building Materials, a distributor and another small business about
impacts of the proposed rule outside just the manufacturing operations. 


		And, finally, Bill Latham from Acme Brick who is sitting in the front
row will give some concluding statements.  

		I'm about to turn this over to Dr. Tayler, but I wanted to take just
a minute to go through a few points.

		One, we are committed to giving you whatever information you need to
prove our position in this rule making process.  But there's a small
caveat.  We are not a large industry.  We are not a large trade
association.

		We don't have the resources to conduct some of the large studies.  We
participate in them whenever we can including the ACC Silica Panel, and
we work with other industries who have common concerns and issues with
us.  We also have wonderful resources in our member companies as you see
from the people surrounding me.  We rely on coordinating information
through our association, with our companies and work together to solve
problems.  It takes some time.  Again, we're not that big.  We will
provide you with the responses and additional data that we can but it
may take us a little longer than some others.  We ask that you work with
us on that.  We don't believe that being a small industry and not being
able to conduct some of these bigger, more comprehensive studies should
equate to a less favorable consideration for us.  We will get you what
you need.

		Another point, the vast majority of our businesses are considered
small businesses under the Office of Management and Budget's definition
of less than 500 employees corporate-wide.  We currently have
approximately 176 plants owned by somewhere around 69 companies that
would be impacted by the proposed silica rule.  Over 85 percent of these
companies are small businesses.

		I have to say approximately when I'm talking because numbers change. 
People are bought.  The number of plants changes because people define
plants a little differently.  That makes our costing a little more
difficult for us.

		And not all these companies are members of the Brick Industry
Association.  However, on issues like this, we work together.  It's a
really good industry for that. 

		We do have numbers changing in our small businesses.  We have small
businesses being purchased by big businesses.  Unfortunately we've had a
few large businesses become small businesses in the last few years.  We
hope that changes.

		We believe that the information about our small businesses has changed
over the past 10 years or more.  We did participate in the first small
business panel under SBREFA, and we encourage you to conduct another
one.  We think that collecting real world information from our small
businesses, in the current market, what we can afford, what we currently
do is different than it was 10 years ago.  Some of the changes may
actually help your position.  We've evolved.  As everyone does, we learn
new things.

Some may just help explain our plate.  

		Either way, you'll be making decisions that could impact our industry
and others using the best of available information.  I would think that
such a comprehensive rulemaking could only benefit from a new panel.

		And, finally, you will hear a concern from our industry over the
potential for this rule to lead to a huge increase in the role of
personal protective equipment or PPE, combining the much lower limits
and the lack of precision and measurements, we believe that we're going
to be pushed into the more use of PPE as engineering controls are not
expected to be adequate to attain the limits consistently as
demonstrated by current test methods.  

		We do not believe that putting people into PPE is a step to be taken
lightly.  There are physical as well as psychological risks and effects
from their use that we should consider.

		Real heat stroke risks arising from controls to mitigate against
silica exposure that causes little to no silicosis is not a good
tradeoff.  As you'll hear, we even have the issue of at least one plant
of Amish workers who would be forced to shave their beards and would
refuse to work if they were required to be put into respirators.  

		These real risks and impacts should be measured against what we
believe are yet to be proven benefits.  

		Again, we thank you.  We ask you the following:  One, OSHA consider
the applicability of this proposed revision to our industry.  If OSHA
goes through with the full rulemaking, we ask that brick manufacturing
be specifically excluded since the standard is not warranted nor
technically or economically feasible.  Bottom line, for every cost,
there should be a benefit.  This rule fails to demonstrate the benefit. 
There are more important things we can do with our money to support our
workers and to provide a more positive impact on the health and well
being of our coworkers.

		Second, as I stated before, we ask that OSHA reconvene or rehold the
small business panel under SBREFA.  Thank you.  

		JUDGE PURCELL:  Thank you, Ms. Miller.  

		Dr. Tayler, you're next.

		DR. TAYLER:  Thank you, Your Honor.  

		My name is Garth Tayler.  As Technical Director of Acme Brick Company,
I'm responsible for the direction, development, and coordination of the
company's environmental, health, and safety and engineering and research
functions.  I've been involved with brick manufacture for over 48 years
and have studied clays in South Africa, U.K. and England, and U.S. clays
for many years.

		I will be commenting on the nature of our raw materials used in the
brick industry here, and the economic impacts of the proposed rule on my
company and the industry at large but before I make those comments, I've
been asked to briefly summarize the testimony provided previously by
Mr. Bob Glenn who can't be here with us today unfortunately.  Bob's
unable to join us.  He had an injury, and we hope he recovers quickly.

		However, we believe his testimony is critical to the first part of our
argument and that there's no risk to mitigate in our industry.  

		So I'd like to just go through the highlights of Mr. Bob Glenn's
report, and as I speak, I will show some slides but I'm not going to be
talking through a PowerPoint presentation.  I'm talking to the
commentary from Bob Glenn with some relevant slides to reflect some of
the points.

		Mr. Glenn has testified on behalf of the BIA.  He presented the facts
from a vast body of research which clearly demonstrates the scientific
effects acknowledged by OSHA on behalf of the clay industry.  

		I will review the key parts of his analysis.  Mr. Glenn's testimony
is focused in three areas, the enormous body of scientific study work
demonstrating no significance to workplace risk from the crystalline
silica exposure at the current exposure limit, and any reduction in the
crystalline silica permissible exposure limit is not scientifically
justified.  Silicosis caused by the prevalence of silica is virtually
nonexistent in the brick industry.  

		Using the second point that Mr. Glenn makes is using the Scottish
coworker study by Buchanan, Mr. Glenn shows that using the prediction
equations from the Buchanan studies seriously inflates the cases of
radiological silicosis that were actually observed in a study of the
brick workers in England and Scotland.  

		OSHA considers the exposure response relationship from the Buchanan
study to be the best of any radiographic study of silicosis.  Mr. Glenn
shows that this is not necessarily the case.

		His third point deals with lung cancer and the risk from silica
exposure.  It is not expected because of potency of quartz contained in
the aluminum rich clays which occluded surfaces not only inhibits the
development of foundry fibrosis but also inhibits the mechanisms of
carcinogenesis.  

		So if you look at these slides here, Mr. Glenn has done an extensive
study of over nine significant studies in England, Scotland, South
Africa, and China, here in this country, the USA, in Ohio, North
Carolina, Indiana, the Institute of Occupational Medicine's
publications, NIOSH studies in '78, and the BIA studies in '06.

		JUDGE PURCELL:  And for the record, you're referring to slide number 7
in the PowerPoint presentation.

		DR. TAYLER:  Yes.  To demonstrate the absence of silicosis in the clay
brick industry over the years, Mr. Glenn's analysis carried out in the
clay brick industry as far as back as 1939, to the more recent work
carried out in '06 in the BIA study, all of these studies are valid and
significant.  

		For the record, I reference a significant study, namely, the Ontario
Structural Clay Brick study reported in 1972.  This involved the study
of 1,166 production workers in 8 brick plants and 2 tar plants.  Regular
chest x-rays were taken beginning in 1957, every 18 months through to
1972, a 13-year period.  The authors concluded that even though the
workers were exposed dust concentrations in excess of the TLVs at the
time, 8 to 114 times, the radiological signs of silicosis among the
workers were not present.  And if we look through the comments made,
you'll see in Mr. Glenn's publication, you'll see.  

		Further reference is made to the Brick Industry Association sponsored
study completed in May '06 entitled "The Prevalence of Silicosis in the
Brick Industry," Glenn and Hessel in 2007.  

		It was carried out to determine the prevalence of radiographic signs
of silicosis among current workers in the U.S. brick industry.  The
study included workers at 13 plants producing structural clay brick from
a total of 94 facilities operated by members of BIA.  Workers were
selected for study through a process which took account of the company
size, the geographic location and the employee age.

		JUDGE PURCELL:  Dr. Tayler, could you pull the mic a little closer. 
I want to make sure that everyone's able to hear your testimony.  Thank
you.  

		DR. TAYLER:  Two NIOSH certified B readers read radiographs from 701
workers.  When the two primary readers disagreed on the interpretation
of a film, the chest x-ray was read by a third B reader.  Very
importantly, none of the chest x-rays of the 701 workers was consistent
with silicosis.  The results are consistent with the previous studies
discussed in the brick workers in the United States, United Kingdom and
Canada.  

		Mr. Glenn moves on to talk about the Buchanan prediction model. 
Mr. Glenn refers to the Buchanan risk model for coal workers.  He
points out that using the Scottish coal study, over predicts the
observed silicosis among brick workers and is an inappropriate risk
model for establishing a PEL for the brick manufacturing industry.

		Mr. Glenn bases his statement on the work carried out by the IRM
researchers, Love et al., in 1994 and 1999, in which Miller and Sotar
applied prediction equations from the Scottish coal study to the
exposures of brick workers and with and without a 15 year lag period to
account for latency.  The results predicted silicosis greatly in excess
of the cases observed in the brick workers study.

		And as can be seen from this figure here, what we have is a predicted
risk in observed frequencies of radiographic abnormalities grouped by
cumulative quartz concentration with 50 years latency without a 15 year
exposure lag and the upper curve shows the predicted profile and the
three lowest curves show the actual observed frequency.

		JUDGE PURCELL:  And for the record, Dr. Tayler is referring to slide
number 10 in the PowerPoint presentation.

		DR. TAYLER:  I quote Mr. Glenn, "These discrepancies cannot be
explained by mere statistical variation.  It is clear that the observed
frequencies of abnormalities in the heavy clay workers were much lower
than the equations of Buchanan et al., and which were predicted,
suggesting that those predictions are based on formulations of risk that
may not be relevant for the heavy clay industry."

		Moving on to Mr. Glenn's comment about lung cancer and the risk
thereof, the analysis reported by Mr. Glenn highlights further research
findings that the quartz occluded in aluminous silica clay matrix does
not have the biological potency or ability to produce pulmonary fibrosis
as does unoccluded quartz.

		Beginning on page 247 and continuing on page 258 of the OSHA proposal,
a discussion is recorded of how metal impurities in clay encapsulation
are known to modify the toxicity of crystalline silica in animal
experiments.  

		Two of these factors discussed by OSHA at some length are physical
characteristics that are inherent in brick making clays and are
undoubtedly responsible for the lack of cases of silicosis attributed to
the studies of clay brick manufacturing.  

		The structural clays used in brick manufacturing are inherently
composed of aluminum rich clays that directly modify the toxicity of the
quartz surface and also by occluding the quartz particle in a clay
coating that decreases the bioavailability of the quartz particles.  

		Aluminum has been shown to reduce toxicity of silica in several
studies.  Another physical factor relevant to the toxicologic potency of
silica is the presence of a mineral coating or occlusion of the silica
surface which may affect the biological availability of the quartz
component of the dust.  Research suggests that the contaminants on the
surface such as aluminous silica clay may diminish the biological
availability of surface active sites affecting toxicity by gross
occlusion of the silica surface.  It is thought that contamination by
this clay may have aluminum ions in an abraded quartz surface and that
this may be the mechanism of action for the inhibition of silica
toxicity.

		OSHA should therefore take note that the materials used by the clay
brick industry at large are inherently composed of aluminum rich clays
that directly modify the toxicity of the quartz particle surface.  This
means that by occluding the quartz particle in a clay coating, the
bioavailability of the particle is decreased.  

		Mr. Glenn's report emphasizes that the aluminum has been shown to
decline the toxicity in a series of studies by the subcohort of Chinese
pottery workers by Chen et al. in 1992 and 2007 and McLaughlin in 1992
provides strong evidence of this phenomenon of reducing the potential
carcinogenicity from quartz.  These elements in which clays are similar
in composition to those used in the brick industry.  

		Chen examined the effect of coating silica with aluminum lactate on
silica toxicity uptake and silica induced DNA damage was studied.  The
study appropriately used human lung epithelial cell line to test the
treatments of uncoated quartz and aluminum lactate coated quartz.  The
authors concluded from the study that the aluminum coating which could
easily occur naturally has shown to eliminate the ability of the quartz
to both generate hydroxyl radicals and exert critical genotoxic effects
that may very likely play a role in the quartz carcinogenesis.  

		To conclude, in Mr. Glenn's remarks, certain text from OSHA review
health effects literature and preliminary quantitative risk assessment
validates the facts discussed and shows that OSHA is fully aware that
quartz occluded in an aluminum clay matrix does not have the biologic
potency and the ability to produce pulmonary fibrosis as does unoccluded
quartz.

		The second conclusion he makes is that OSHA only considers the studies
of Buchanan as the best for modeling the risks of silicosis.  The study
was carried out from quartz not occluded by clay.  Quartz in the clay
brick industry is included by aluminum rich clays which have been shown
to suppress potential carcinogenicity.  

		The Buchanan model, when used to predict silicosis risk for brick
workers exposed to quartz occluded in a clay matrix, grossly inflates
the risks compared to observe frequencies in the clay brick industry.  

		The Buchanan model as a study fails to even closely predict the number
of silicosis cases that actually occurred in a radiographic morbidity
study of brick workers and therefore cannot be used by OSHA to establish
the PEL or quartz in brick manufacturing.  

		The fourth and final point that Mr. Glenn makes, silicosis caused by
exposure to crystalline silica is essentially nonexistent in the brick
industry workers.  The BIA strongly believes therefore that the current
OSHA PEL for crystalline silica is amply protective of brick
manufacturing workers and should not be reduced for the brick industry,
and as Susan suggests not be applied to the brick industry.

		That concludes the comments from Mr. Glenn.

		DR. TAYLER:  I'd like to now proceed with the comments made by myself
from Acme Brick's perspective.

		I will comment on the impact of the silica rule proposed by OSHA in
which the PEL is being reduced by 50 percent to 50 µg/m3 in which an
action limit of 25 µg/m3 is introduced together with an addition of
numerous ancillary requirements which are made applicable to facilities
that the rule is applied to.  

		Regarding the crucial step of measuring, apart from the reductions in
the PEL, I would like to point out that the proposed change in the
method of determining the exposure limit will result in an even more
stringent standard.  By this I mean that the current calculated PEL
which compares the value with the calculated exposure limit is based on
a mathematical ratio whereas the proposed more empirical method compares
the silica portion of the collected sample directly with the set PEL of
50.  

		While this method may be simpler, high dust counts experienced in the
industry and samples with high levels of variability with possible
analytical error in the OSHA ID-142 method of plus/minus 26 percent will
result in borderline measurements being in and out of the action limit
or in and out of the exposure limit which could result in an ongoing
process of confusion and repetitive testing.  I wanted to mention that
before I go any further.

		By way of background, Acme Brick has been manufacturing clay-fired
face brick for 122 years.  Before the recession, in full capacity, we
employed some 3,000 associates.  Our core business is in the manufacture
and distribution of clay face brick.

		Acme owns 25 clay brick operations situated in the southwest regions
of the country.  As a result of the great recession and the downturn in
construction, only 16 of these plants are currently operating being
operated by some 1,000 production associates.  

		Acme certainly appreciate the opportunity to address OSHA and to
comment on our concerns with OSHA's decision to reduce the permissible
exposure level and to impose the significant additional ancillary
regulations pertaining to respirable silica.  

		I will comment on the impact of the silica rule proposed by OSHA in
three areas, the nature of our raw materials, the feasibility of
achieving compliance with the rule, and Mr. Brown will also address
that same point as well, and the economic impact on Acme Brick and some
of the aspects of that.

		So on the first point of brick making materials, brick are made from
clays, not from silica.  The clays used by Acme Brick are minerals
referred to as hydrated aluminosilicates, and these aluminosilicates
were developed and formed millions of years ago from the breakdown of
parent igneous rocks, mostly feldspathic in nature.  

		Over geological time, these fine clay particles were transported by
water and deposited into low lying areas through a sedimentation process
developing the clay deposits that we use today.

		It's important to realize that most of the silica in these brick
making clays is embodied in the aluminosilicate metric structure of the
clay mineral.  The free quartz which does exist in the clay bodies is an
impurity.  It's content in the brick mix can be minimal, typically
ranging from 10 percent to a maximum of 30 percent.

		In Mr. Bob Glenn's testimony on behalf of BIA, he presented the facts
of the vast body of research which clearly demonstrates the scientific
facts acknowledged by OSHA, and in this slide here, I'd like to show
you, it's an electron microscope micrograph of kaolinitic clay, and what
you see there is the platy structure of the aluminosilicate crystal
compared to a micrograph of free quartz particle, you can see at the 10
micron magnification, where you see a totally different appearance in
the structure.  Clay, silica.  Clay, silica.

		JUDGE PURCELL:  And for the record, the two photographs that
Dr. Tayler are referring to are found on page 7 of the printed version
of the PowerPoint presentation.

		DR. TAYLER:  OSHA should therefore take note that the materials used
by Acme Brick and indeed by the brick industry at large, are inherently
composed of aluminum rich clays that directly modify the toxicity of the
quartz particle surface.  This means that by occluding the course
particle in a clay coating, the bioavailability of the particle is
decreased.  

		The report complied by Mr. Glenn emphasizes that aluminum has been
shown to decline the toxicity of silica in several studies.

		It's therefore imperative that OSHA recognizes the facts presented in
these studies and that it undertakes a balanced assessment of this vital
information.  Should they do this, they will most certainly have to
conclude that the proposed reduction of the PEL to 50 µg/m3 cannot be
justified.

		Moving onto the achieving of compliance, over the decade, Acme Brick
has worked diligently to comply to the existing rule.  We have developed
a program designed to address ways and means to meet the current PEL of
100 µg/m3.  In spite of the application of best management practices,
engineering solutions and extensive training on work practices, we have
found it difficult in some of our locations to meet the current PEL. 
This is due to the high respirable dust levels generated as a result of
the fine platy nature of clays and shales being processed.

		The known limitations of engineering solutions and best work practices
even though as proposed by OSHA is going to place our company in a state
of ongoing noncompliance coupled with an ongoing program of extensive
testing in an attempt to meet concentrations that are not achievable.

		Now, likely inability to meet the proposed reduction in the PEL of 50
µg/m3 would inevitably result in the requirement for extensive
respiratory protection measures placing our associates in unbearable
working conditions.  I show you a slide here of a typical grinding
facility at one of our North Texas plants.  You can see that it is well
equipped.  The interior of that plant is well equipped with lots of very
sound dust collection equipment and with the best of those practices, we
still find difficulty to meet the existing PEL.

		JUDGE PURCELL:  For the record, the photograph you were referring to,
Dr. Tayler, is found at the bottom of page 8 of the printed version of
the PowerPoint presentation.

		DR. TAYLER:  Furthermore, the introduction of an action limit of 25
µg/m3 will trigger confusion and the need for ongoing disruptive
extensive and expense testing as I referred earlier to the method
applied, the empirical methods and the variability that's possible with
the x-ray diffraction results that we've seen.  We've experienced a need
for ongoing disruptive testing with our current program.

		Maintaining this level of detection is unrealistic and will place most
of the plants in a permanent state of action and indeed noncompliance.

		OSHA should remove this action level requirement and maintain the PEL
at 100 µg/m3.  This will enable Acme to continue to provide protection
of its health and well-being of its associates in a safe matter over the
long term. 

		I'd like to move onto the economic impact.  Our practical experience
in the application of engineering solutions, best practices and the
management of a well-structured program has brought our industry to a
leading position.  Our level of compliance and protection of our
associates is excellent, and we intend to pursue ongoing improvements.  

		We have conducted extensive studies of our facilities to determine the
investment requirements that would be needed to come close to meeting
the proposed PEL and ancillary requirements.  The investment in
additional dust collection equipment, ventilation, vacuum devices,
decontamination facilities, change rooms, protective equipment, to name
just a few, amounts to an operational and capital cost of more than 5 to
15 times the OSHA estimates.  

		I'd like to show a table here with a typical example of the plant
you've just seen in North Texas.  The impact of the rule on the
operational costs and the capital costs.  

		I'll show the capital costs first where we have -- ventilation.  We
have dust collection, a vacuum systems, moisture conditioning systems to
bring down dust levels, improvements in collection and duct hoods,
ventilation in the packaging area and mobile vacuum units of this one
single plant, and bearing in mind, this plant has already spent over
half a million dollars on bringing the plant to the current level of
compliance.  So we have an additional 850,000 applicable to that plant
alone.

		The actual operational cost impacts, a typical shale brick plant would
see these kinds of investment or expenditures on operational costs for
maintenance, labor, energy, PPE, and various other costs you can see on
the sheet given there.

		JUDGE PURCELL:  And for the record, both tables are shown on page 9 of
the PowerPoint presentation, the printed version.

		DR. TAYLER:  OSHA should acknowledge that compliance with the proposed
revisions to the silica PEL is not economically feasible for the clay
brick manufacturing industry.  To expect the industry, which is being
crippled by the recession conditions to incur these costs without any
safety and health benefit to its associates is unnecessary and
unreasonable.  

		In conclusion, the current OSHA PEL for crystalline silica at 100
µg/m3 is amply protective of its brick manufacturing workers and should
not be reduced.  The reduction of the PEL to 50 and the introduction of
the action limit of 25 µg will place our industry in the state of
permanent noncompliance with little prospect of it ever achieving these
levels.  

		The economic impact will be devastating to an already crippled
industry.

		In order to meet the ancillary requirements of the rule, Acme Brick
and the brick industry at large will face the prospect of its associates
having to be subjected to the PPE requirements which will force them to
work in unsafe and life threatening conditions, and Mr. Brown will be
expounding on that aspect as well.  Thank you.  

		JUDGE PURCELL:  Thank you, Dr. Tayler.  Ms. Miller, who's next? 
What order do you want to go in?

		MS. WILTSIE:  I'm next.

		JUDGE PURCELL:  Next will be Susan Wiltsie of Hunton and Williams. 
Ms. Wiltsie.

		MS. WILTSIE:  Thank you, Your Honor.  I'm Susan Wiltsie.  I'm a
partner with the law firm of Hunton and Williams, and I have been
practicing occupational safety and health law for 25 years, and I'm here
proud to represent the brick industry, the BIA.

		JUDGE PURCELL:  Can you pull the mic a little closer, Ms. Wiltsie.

		MS. WILTSIE:  The member companies employ over 200,000 people, mostly
in small businesses.  

		The brick industry's facts and arguments are unique because the
industry is unique.  

		The health effects from silica in the brick industry workplace already
are controlled under the current standard.  To the extent that the
proposed rule would have any health effect for this industry, it would
not be the legally required material health effect and moreover could
not be legally justified in light of the extraordinary financial and
operational impact to this industry.

		My comments will be brief as the most important information from this
industry is the real life testimony from the member companies and the
specific company information that they will provide.  My goal is simply
to put this in a legal framework so you can better understand the legal
justification for the brick industry's specific request for exemption
from this particular rule.

		It is my opinion that OSHA would exceed the scope of its regulatory
authority if it were to apply this proposed rule to the brick industry,
and I know that all of you know what I'm going to say.  The OSH Act at
Section 38 authorizes OSHA to impose safety and health standards only
when they are reasonably necessary or appropriate to provide safe or
healthful places of employment.  

		The OSH Act at Section 6(b)(5) limits that OSHA authority in the area
of toxic materials, like silica, to only those circumstances in which
"the best available evidence shows that the standard would prevent
employees from suffering a material impairment of health or functional
capacity and is technically and economically feasible to implement."

		Now, the Supreme Court in the benzene case brought those two concepts
together, put it in a little bit more of a lay person's reading, to say
that it's only when the best available evidence shows that workplaces
present significant risks that can be eliminated or lessened by a chance
of practice.  That's OSHA's authority in this area.

		And I guess the nub of it is that OSHA has the discretion under 6(b)
of the Act to exempt industries that meet the profile of just legally
articulated and indeed the case law has established that the Agency is
obligated to consider industry specific mitigating circumstances such as
what we're presenting this afternoon.  

		Here, the best available evidence does not show that brick workers
face a significant risk of impairment from the presence of silica in
brick industry workplaces under the current standard.  

		The best available evidence must be based on, again quoting, "a body
of reputable scientific thought."  Here, as articulated by Dr. Tayler,
the best available evidence does not show a significant risk to brick
industry employees under the current standard.  What evidence, the
overwhelming evidence that is specific to the brick industry, creates a
body of reputable scientific thought that the brick industry is, in
fact, different.  

		Bob Glenn testified several weeks ago and submitted comments on behalf
of BIA that have been summarized today by Dr. Tayler, that survey
studies stating back to the early Twentieth Century in support of the
fact that respirable crystalline silica lacks the toxicity in the brick
and structural clay manufacturing industry that exists in other
industries.  

		And Dr. Tayler provided a summary of Mr. Glenn's testimony against
the backdrop of his 48 years in this industry and his firsthand
observations of the lack of silica-related illness in this industry.

		And even the Agency's own Notice of Proposed Rulemaking notes that
studies unique to the pottery industry indicate a lower toxicity of
quartz particles which again I'm quoting because I'm a lawyer not a
scientist or expert in the science behind this, but because the alumina
coating on the quartz particles does something that I can't understand,
but it does something that is verifiable in the data that makes the
exposure response different, significantly different.

		OSHA also in its Notice of Proposed Rulemaking cites favorably a study
of Chinese pottery workers that shows no reported increase in lung
cancer even with higher exposure in that industry.

		The testimony that follows me includes remarks from Janet Kaboth and
Lincoln Andrews who each run fourth and fifth generation small brick
companies that they grew up in.  And in these small town companies,
small town facilities, where everyone knows everyone and arguably
everything about everyone, in their lifetimes, neither of them have
experienced any of the workers at their family plants that have
experienced health effects related to silica exposure.  I know that's
not data like Dr. Tayler illustrated, but that kind of anecdotal
information going back decades I think should be compelling.

		Setoff law establishes that OSHA not only has the authority to exempt
the brick industry but is legally required to do so when it is able to
differentiate between affected industries as it can with this
rulemaking.  

		In the Notice of Proposed Rulemaking, there are numerous situations
where the brick industry is identified separately.  So the work
necessary to separate data associated with the brick industry from the
other industries where the industries is aggregated, it already has been
done.  It does not require additional effort by OSHA.  

		Finally, returning back to Section 3(8) of the Act, this standard
cannot be reasonably necessary or appropriate where the cost of
compliance is high and the standard does not demonstratively eliminate
or lessen a significant risk.  

		You have heard, and you will hear, in the balance of BIA's remarks,
that the cost imposed on the brick manufacturing industry by the
proposed rule cannot be absorbed by the member companies.  The small
member companies would be at risk of going under.

		OSHA's Notice of Proposed Rulemaking confirms that the
disproportionate effect on this vital industry.  The cost per
establishment for this industry is exceeded by only one industry sector,
and that industry sector does not have the compelling scientific data
regarding the lack of impact that our industry has.

		Also testimony from this industry that has preceded me and will
follow, includes specific information regarding how the use of PPE
potentially required by the proposed rule will create health and safety
issues for industry employees that cannot be managed.

		One example of this is the testimony that will follow me from Acme
Brick regarding the serious heat related health and safety risks that
would exist if employees in West Texas were required to wear respirators
and protective suits.  

		The Agency is not required to explicitly balance the costs and
benefits of the proposed rule.  That is not my argument, but the benefit
of the rule must be a reasonable relationship to the costs imposed, and
here I submit that the analysis is simple.  OSHA cannot diminish a
significant risk of material health impairment when the best available
scientific evidence shows that no such significant risk of material
health impairment exists for this industry. 

		So in effect OSHA is asking this industry to make debilitating capital
expenditures that will not result in a material change to the health of
its workers.

		In conclusion, we are hopeful that the brick industry's scientific and
factual arguments viewed against the legal framework that I have just
outlined will convince you to exercise your authority under 6(g) of the
Act to exempt this vital industry from the rulemaking.  Thank you so
much.

		JUDGE PURCELL:  Thank you, Ms. Wiltsie.  

		Mr. Tom Brown from Acme Brick is next on the agenda.

		MR. BROWN:  Thank you, Your Honor.  

		My name is Tom Brown.  I have 30 years of experience in the field of
occupational safety and health, and I am the Director of Acme Brick
Company, and it's my honor to represent the brick industry today in my
testimony.

		I'd like to go ahead and show everyone what a typical brick plant
looks like, and these are stockpiles out here and our plant is in the
background and you'll see brick throughout that area stacked outside. 
That's our manufacturing area.  And that's what we have to control in
bringing those silica exposures down to the current PEL of 100.

		JUDGE PURCELL:  And for the record, that photograph's shown on page 10
of the printed version of the PowerPoint presentation as well as the
next slide.

		MR. BROWN:  Okay.  Here's a typical grinding operation where we
introduce the material into a bin there that goes into our grinding room
into our process.  We have front-end loaders with enclosed cabs, seals
around the doors, air conditioning with HEPA filters.  Those are some of
the controls we have implemented there.

		Here's an actual screening bank inside a grinding room where we size
our materials.  Notice all of the ductwork there that is coming off from
ventilation controls for that operation, and we have several other
engineering controls in that building.  

		Here's the typical clay bins where we bring in the raw material and
store the clay.

		JUDGE PURCELL:  And let me stop you there, Mr. Brown.  Maybe it would
be easier as you go along if you'll just read the caption for the slide,
but the last two, the screen bank and the clay shed storage photographs
are on page 11 of the printed version.

		MR. BROWN:  Okay.  I wanted to go through this fairly quickly just to
let you know that we've put in a tremendous amount of controls in our
operation and we still struggle meet to the current PEL.  

		Most of our industry does not have the resources we have and we are
considered a leader.  For us to achieve the 25 µg would be
unattainable.  If we're struggling to get to the 100, 25 is out of reach
with our facts and our data.  So this is going to put us in a continuous
state of noncompliance and that's where we get into life threatening
situations from our heat stress programs throughout our industry.

		Here's a typical monorail unloading operation where they're unloading
this brick into those gigs that are to the left, and they continue that
process -- let's see.  I guess I just have one of those.  They continue
that process for their entire shift, and they're unloading this brick. 
Now you put a Tyvek suit and a respirator on those individuals, the heat
stress that they would go through would be very, very life threatening.

		And the point I want to also make is we have breaks.  We have
lunchtime.  They leave the plant.  How are we going to address those
issues?  That's another facet that we, as an industry, our people having
to don a different respirator.  What are they going to do take liquids
in?  Plus we work in 100 to 115 degree heat, and with a sealed suit,
which is a Tyvek suit and respirator, that protective clothing can put
their health at risk. 

		In this next slide, we have a crusher, and we have plenty of controls
on that.  As you can see, that's a primary crusher where we crush the
clay and we have dust collectors on it.  

		Here's a control room.  This control room through our experience, we
have found out that we have to put our operators in a controlled
atmosphere to ensure their safety and reducing that PEL.  

		In certain operations that we have, we can't reduce the levels under
the current standard to protect them adequately we feel and we go the
extra mile.  We provide them a clean working environment inside an
air-conditioned control room, and we rotate.  Under the proposed
standard, we can't rotate people out, and that's going to be another
problem.

		This is another situation, I don't know if OSHA's taken into
consideration, but in our operations in the southwest, we have dust
storms, and this particular dust storm is pretty prevalent in the
southwest.  A lot of those dust storms actually have reached the East
Coast.  So you can imagine how bad it is where it starts.  

		So with us having to address that on a current basis, we had one three
weeks ago in Lubbock that was almost zero visibility.  Our background
levels are higher than the current PEL.  How to achieve the proposed PEL
would be unattainable.  It's just not there.

		In conclusion, the facts show basically the brick industry will have
difficulty maintaining compliance with the current standard, but is it
attainable?  I believe it is.  The 100 µg/m3 is.  

		The proposed, I do not believe we can maintain that on a consistent
basis.  The proposed standard, with the technology available today for
the brick industry and what we do, would put us in a continuous
noncompliance [sic] state, and that would mean permanent PPE for our
employees and that is just unacceptable because PPE is the last resort. 
We don't want to have to put people in PPE.  We look at engineering
controls, and you must engineer it out and it's not attainable from our
facts and our experience.

		And I want to thank the panel for allowing me to testify today on
behalf of the BIA.  

		JUDGE PURCELL:  Thank you very much, Mr. Brown.  

		Next on the agenda is Mr. Brian Ogle of General Shale.

		MR. OGLE:  Good afternoon, everyone.  I appreciate the opportunity to
come before you to represent not only General Shale Brick but also my
industry. 

		General Shale was founding in 1928.  We manufacture veneer and
architectural brick, concrete products.  We process stone for building
material, and we operate calcium silicate stone manufacturing operations
in both the U.S. and Canada.

		Since 2008, our business has been forced to modify its portfolio of
products in order to adapt to market conditions.  I'm proud to sit here
before you as proof that we made it.  We have adapted.  We have the
ability to adapt.

		I am, however, concerned that the changes related to the proposed
silica rule will impact the brick manufacturing industry negatively in
the name of safety while creating provisions that will not increase the
protection of our employees by adherence.  

		I sit here before you as the face of my company and I want to express
to you who we are and what our approach is to the safety and health of
our employees.  

		Before you understand our approach, my challenge is to explain to you
that our safety program is created by our colleagues.  It's created by
our teams.  It's created by our associates.  It's created by coworkers,
whatever term you're personally comfortable using.  

		Without people, there is no business.  Without people, there is no
safety and health program. 

		Our people pulling together as a team in the same direction, that's
what defines our corporation, and again I submit to you that that is
what defines our safety and health program.

		My background includes time as both a compliance officer and a
consultation rep for the State of Tennessee's OSHA Program.  I am proud
that I was the first safety compliance officer representing Tennessee's
OSHA Program selected and sent to Ground Zero after 9/11 terrorist
attack in New York City.  That was an experience that was both humbling
and life changing for me.

		I've been involved in the safety and health of people since around
1999 and believe me, I've seen things happen to the human body that
invoke an impassion and a commitment in me to help prevent accidents and
help prevent injuries.  It's what I do.  

		Part of the reason I left the OSHA world was because I always came
onsite to determine what went wrong after it went wrong, and then tell
that employer what they could have done, what they should have done,
what might have prevented this.

		While tragic injuries and illnesses occur even today in the workplace,
it's my opinion that the proposed changes in the regulations that apply
to silica exposure will not have the impact in saving lives that this
body hopes to achieve, certainly not to the level that I have seen
touted on web chats and off   HYPERLINK "http://www.osha.gov/"  OSHA.gov
.  

		Let me be clear.  I am on the site of protecting my people.  They're
my people.  That's what I'm supposed to do and that's what I do.  

		Granted, my organization's not perfect when compared to law.  One
thing I learned as a compliance officer is that law by its very nature
cannot forgive in any situation.  The reason for our lack of perfection
when compared to law goes back to what creates a safety program.  It
goes back to what creates a corporation, and that's a group of
individuals.

		There are days when we as people make better decisions than others
while a law remains rigid in any given situation.  People do not because
we as people use our judgment.  

		Judgment is created by experience.  I will never forget the wise words
of a man that I worked for who explained it to me this way.  He said,
Brown, it takes 10 years to gain 10 years of experience.  

		Ladies and gentlemen, I ask you the question, do you know what a
written safety and health program does in the event of a tragedy?  I'll
tell you what it does because I've seen it.  It sits on the shelf that
it was on before that tragedy happened.  

		One of our many challenges as an employer includes not only providing
a safe and healthy workplace, but we are also challenged to provide our
people with the best information possible so that when they are at a
crossroads, they're at a place where they have to make a decision, they
are prepared to make the best decision that they can.

		We are challenged daily to ensure that at the end of the day, our
people go home to their families, with their fingers, their ears, their
eyes and their toes, and they come back tomorrow and do it again, and
then come back the next day and do it again.  

		My understanding is that some of the costs and estimates related to
the implementation of this rule as it stands today were taken during a
time when my industry was booming.  I hope to be able to prove that
we're not here to simply complain about this proposed rule.  That's not
my goal.  We're not going to overlook the vast amount of time that it
goes into collecting the data and supporting what I'm sure you believe
is a rule that will impact the lives of employees.

		General Shale currently employs around 1100 people with some 900 in
the U.S.  During the boom, prior to the great recession, we sold,
manufactured and shipped enough General Shale product to support 3,000
plus jobs.  Keep in mind, that's the U.S. only.  After 2008, despite
growth from acquisitions, our staff level dropped to less than 800
persons. 

		Currently we have 15 manufacturing sites in the U.S.  Of those, eight
are brick plants, brick manufacturing plants, five are concrete product
plants.  We also have a rock quarry and again, a calcium silicate
operation in Georgia.

		Those operations currently represent about 60 manufacturing positions.
 Overall, our average workforce tends to be around 40 employees per
location.  That's 600 persons going to work every day at a manufacturing
operation at General Shale and 300 persons going to work in one of our
sales and distribution centers.  

		This is to help give you a scope of the impact this rule has on the
American workers at General Shale. 

		My goal here again is not to vocalize the gaps that I believe exist in
this proposed rule nor publicly criticize just for the sake of outcry. 
I appreciate and we appreciate the great deal of effort that has gone
into this proposal, but as the face of the person who has to implement
your proposal, I urge you to listen and understand that your rule will
not have the impact you believe on our employees.

		I want to provide you some real world examples of the impact this rule
has.  So I'm going to talk to you a little bit about what we currently
have, the dollars associated with that, and then allow you to draw your
own conclusions from that.

		There's roughly 40 baghouses that we use not only to help reduce the
silica level, but that's what we use to keep our plants clean.  We're
proud of our plants.  It's an investment that we've made since 1928, and
we want it to be around for many more generations to come.  So we have
40 baghouses.  The average cost of a baghouse by itself at 10,000 cfm is
about $25,000.  That's for the baghouse.  The ductwork to connect that
baghouse to various parts of your plant has an average cost of $100,000
and that's for a very small baghouse.  That's a 10,000 cfm baghouse. 
I'm looking at an average of $125,000 in cost.  

		And this number changes based upon the cfm volume and the engineering
costs of a baghouse.  You just don't walk up to your building and say I
need a baghouse in here.  I'm going to buy one and then we're going to
figure it out.  That's not the way the process works.

		General Shale today has an estimated total investment of no less than
$5 million in baghouses.  The use of a baghouse alone would limit our
operation to about a 60 percent compliance rate based on the current
PEL.  This cost does not include maintenance, time, replacement bags or
cages for each baghouse, costs associated with empty the bins, et
cetera.  That is for the purpose of the baghouse.

		Our raw material processing buildings do not provide for the practical
use of local exhaust ventilation, what I call baghouses.  Rather, we use
a control room similar to what Acme's just shown you.  However, the
operators in these areas are currently required to use filtering face
pieces when going outside of the room.  

		Our raw material is processed at an extremely low moisture content,
and that's because of the physical properties of that raw material.  We
use the latest in technology as it relates to rotary impact machines. 
However, even with this technology, because of the nature of that raw
material, we're forced to utilize heaters and devices that display large
volumes of air at high velocity just so we can process our raw material
and make brick.

		The slightest change in moisture content changes the maintenance
related activities, the settings and even the exposure limits in those
areas.  This is a fancy and complicated way of saying that if we
increase moisture content of the raw material, we're not going to be
able to make brick.

		The proposed rule even states that wet methods are applicable in "most
conditions."  I am an employer required to operate in an area that falls
outside of most conditions.  

		In looking at an estimate, maybe a 50,000 cfm baghouse might work in
these buildings.  Could is the key phrase.  I've not done the
evaluation.  I've not paid for the engineering study.  

		I've got buildings that were built in 2008 going all the way back to
the 1950s.  We would not simply purchase eight baghouse kids, one per
plant.  Rather, we would pay for an engineering study to determine the
volume of airflow necessary, the number of air exchanges necessary based
upon the building design, the physical properties of the raw material.

		After that study, we would specify and then bid and finally purchase
the baghouse from whomever bid it correctly finally by paying the
contractor to install the ductwork because we would install the baghouse
part ourselves.  

		Upon completion of that, sampling would then be done.  After the
sampling results come back, then you go back and modify your ductwork so
that you can get closer to what volume you're trying to achieve.

		Again, in the interim of all of this activity taking place, our
employees would be required to wear respirators.  

		Now we find out that the market has shifted.  We must change our raw
material or the area that we own and mine no longer has suitable raw
material or another government agency has changed the definition of
contiguous and we have to go mine somewhere else. 

		Keep in mind that the baghouse we just added has to be added to your
Title 5 permit because it exhausts air.  You better observe and document
what that baghouse does to stay compliant with one of the sister
agencies.  

		By the way, there's usually three employees that work in that
processing area, the front-end loader operator, a control room operator
and a cleanup position.

		Using our current data alone proves that the current use of local
exhaust ventilation would equate to about 4 out of every 10 jobs
requiring full-time respiratory protection, and that's again compared to
this new PEL that's coming out.

		The annual cost for silica testing, I went back to 2012 and 2013 and
looked at what we spent, and we averaged about $50,400 annually.  

		If we're required to sample every 4 workers, twice a year, the cost
will increase our normal sample group from 8 employees per location to a
total of 104 employees overall.  I will now sample 160 plus employees
twice a year.  Simple math predicts $200,000 in costs for sampling
alone.  Remember, sampling gives data that requires an action plan.  The
end is not sampling.  Sampling, once you get that data, you now have to
come up with an action plan to try to find out where holes or gaps exist
or who now has to be put into the respiratory protection program.

		And if OSHA makes the argument that this expenditure will create jobs,
I will reply simply that it will not.  I will sign a contract with the
same sampling agency that I've used.  They will send the same crew. 
They will carry more pumps, but they will do this sampling for us twice
a year.  There is no other change other than I have $200,000 less to pay
for employees to help us manufacture product.

		When I look at this estimate and compare that to that simple 1 and 10
percent revenue metric of feasibility, I've got a problem.  

		Our market continues to change and while our average of 150,000 per
investment, our design per location, we do not go back and re-engineer
that local exhaust ventilation for every product change we make.  You
can't do it.  

		When trying to stay in the marketplace, you might make 25 different
products per location and that's to gain wall share.  That's to provide
the architect, the builder with something that they like, that their
customers like.  The materials used to make these new products may
increase the coatings.  They may increase the textures.  They may
increase the sand, the airborne particulates for the installed local
exhaust ventilation. 

		After three months from now, all those products that you just made are
dropped.  That's why you don't go back and re-engineer every time you
have a new product.  

		In light of the cost associated with the changes required by the
proposed PEL, I just don't understand where the lifesaving impact comes
from the brick industry.  

		I know you all have heard it, but the Centers for Disease Control says
that between 2006 and 2010, there's been 600 deaths listing silicosis as
the underlying or contributing cause of death.  Yet, OSHA touts in that
web chat that this change will save 700 lives annually.  That may be in
the construction.  I'm not in construction.  I'm a brick manufacturer. 
That's what I do.  

		Remember, a safety and health program is made of people just like a
business is or OSHA is.  It's a group of people.  We're all people. 
You're going to force changes in our process because of the 1.85 million
in the construction industry.  I'm not the construction industry. 

		I'll never forget a meeting that I had with a sister safety agency
here.  We were having a good meeting, a good conversation with the folks
that were there, when a gentleman who was a little higher up on the
chain walked into the room and without listening to any of the
conversation we were having, declared to us, and I quote, "You're just
another group unhappy with enforcement.  You need to write your
congressman."  

		I sit here before you as a representative of a large employer who is
not here to complain about enforcement but rather to explain to you that
the implementation of this rule as it stands today will hinder our
ability to recover and do little while protecting my employees.

		Thank you, ladies and gentlemen.

		JUDGE PURCELL:  Thank you very much, Mr. Ogle.

		The next three individuals on the panel are Janet Kaboth, Lincoln
Andrews, and Joe Rice.  

		JUDGE PURCELL:  Okay.  Ms. Miller, you indicated you wanted to read
testimony by Jeff Wyers.

		MS. MILLER:  Yes, Jeff Wyers.  I have considerably less facial hair
I'm happy to say than Jeff Wyers, but I'll my best.

		My name is Jeff Wyers.  I've been employed in the brick business for
25 years.  I currently work for Nash Brick Company which is a small,
independently owned brick manufacturer located in eastern North
Carolina.

		Nash Brick Company has been in business since 1902 and operates with
one plant with one kiln and to my knowledge has never had a case of
silicosis.  

		Please accept my deepest apology for my absence today, but as an
operator at a small business, there is just no way I could break away
today even for an issue as important as this one.

		My direct supervisor is out on an extended, non-work related medical
leave, and my assistant had a kidney stone removed yesterday.  

		Therefore, as is common in businesses this size, where one is required
to wear multiple hats, it is impossible for me to cover for them and be
with you today.  

		As an example of the multiple hats one must wear in a small business
such as ours, currently I am the plant manager, safety director, vice
president of production, assistant secretary, EH&S director, human
resources department, risk management officer, research and development
department, quality assurance, quality control and mining supervisor.  

		Now, today, I would like to address four specific topics and they are
as follows:  the lack of worker risk, the economic misconception of our
industry, the impact of stacked regulation and the impact this proposed
rule would have upon small businesses such as Nash Brick.

		First, we support the reports previously submitted on our behalf and
by the brick industry which show that the prevalent type of silica and
current exposures in our industry do not pose a significant health risk
and as such, our industry should be regulated differently.  You
acknowledge this on page 56333 of the preamble.

		Therefore, you should provide regulation appropriate to the risk for
our industry.

		Secondly is the issue of economics.  You have stated that the economic
impact to our industry will be 15 times greater than the industry
average for a risk that clearly does not exist.  That is complicated by
the fact that the industry economic data you used from the years 2000 to
2006, a time in which our industry was more productive than ever before
seen in the history of brick making.

		Allow me to provide a comparison of that time period to the last six
years.  The last six years have seen a horrific economic storm, the
likes of which our industry has never endured before.  As a specific
example, our company went from 55 full-time employees in 2006 to our
current level where we have 6 full-time employees and use part-time
employees as needed since we can meet the production requirements by
operating less than 6 months per year.

		The only means for our industry to generate income is to ship product.
 As such, a good indicator of our business is total product shipped. 
During the aforementioned timeframe, this industry saw national
shipments drop by 70 percent.  Additionally, industry reported shipment
values per unit have also seen an overall decrease in the 10 percent
range and over 30 percent in some sectors.

		You have stated that our industry would be able to pass the cost of
compliance along to our customers.  How can that happen when our product
is being sold at a lower price and demand has dramatically decreased?

		And since this horrific economic storm has lasted for several years,
it is imperative that reconsideration of the economic impact be used
using more realistic data.  

		We recommend that OSHA gather this information by convening a new
SBREFA Panel.  

		Thirdly is the issue of stacked regulations from multiple agencies and
the impact it is having on this industry.  I realize that the issue of
an industry being impacted by multiple new regulations at one time does
not necessarily affect those separately enacting those regulations, but
it is an issue that needs addressing since it has a direct impact on an
industry's ability to afford and comply and still operate.

		One example is the Federal EPA Air Toxics MACT rule.  This industry
spent in excess of 100 million to come into compliance only to have the
rule vacated and now it is being rewritten.  This rule could result in
additional $600 million being spent.  

This is just one example of several new regulations that our industry
must determine how to pay to comply.

		Lastly, I would like to address the compliance impact of this rule on
the small companies in our industry such as Nash Brick Company.  Based
on the above economic information, it would be impossible for small
companies to raise the capital to comply with this unnecessary
regulation.

		Also, the use of part-time employees cause high turnover.  The
training costs would be much higher than your stated $3 per employee.

		I thank you for your time today and again apologize for my absence and
defer general questions to my able colleagues that are present.  I would
be happy to answer specific questions during the post-hearing comment
period.

		JUDGE PURCELL:  Thank you, Ms. Miller.  And I'll mark that as Hearing
Exhibit 117 and admit it into the record.

(Whereupon, the document referred to as Hearing Exhibit 117 was marked
and received in evidence.) 

		JUDGE PURCELL:  And next on the agenda is Janet Whitacre Kaboth.

		MS. KABOTH:  Thank you.  Kaboth actually.

		JUDGE PURCELL:  Kaboth, I'm sorry.

		MS. KABOTH:  That's okay.  My name is Janet Whitacre Kaboth.  I'm the
President, CEO, and Chairman of the Board of Whitacre Greer Company.  

		Whitacre Greer has been manufacturing clay products since 1916 in
northeastern Ohio.  The company has been owned and operated by my
father's family, the Whitacres, since its beginning, and currently we
are a woman-owned business.  We operate one manufacturing facility in
Alliance, Ohio, that employs approximately 80 people.  At least 20 of
those employees have been with Whitacre Greer for over 30 years.

		We manufacture fire brick for the inside of masonry fireplaces and
paving brick.  All these jobs have a steady paycheck with good health
insurance where each employee pays 10 percent, a 401(k) where all
employees receive 4 percent of their annual wages regardless of any
individual contribution and a profit sharing plan where 25 percent of
our plant profit it split equally among all employees.

		Many of our employees have never graduated from high school and would
have difficulty finding other employment without significant training. 
We are currently offering to pay the cost in full for any employee that
desires to obtain more training in any area.  We also offer a
state-recognized apprenticeship program.

		We value our employees and have spent a great deal of time and effort
over the last few years to improve our operations and make our company a
good place to work.  

		Having a safe work environment is a big part of this goal.  We try to
operate our plant with the viewpoint that safety is first at all times. 
Since I assume the position of President, we have made safety one of our
top priorities and have spent a great deal of time, money, and effort to
improve our safety conditions.

		This effort has been very successful to date as we have gone from 1
injury for every 4 employees in 2000 to 1 injury for every 76 employees
in 2013.  

		Our mission to improve the safety conditions will continue to be a top
priority for Whitacre Greer.  We focus on the safety issues that our
experience and history have shown us to be of concern.  

		However, in my 32 years of employment with Whitacre Greer, we have not
had one illness or death from silicosis during that timeframe.

		My job as President, CEO, and as one of the owners of the business is
to ensure to the best of my ability that Whitacre Greer Company is
prepared to succeed for the next 100 years.  We are a very small company
within the industry.  We only have one plant that has two kilns.  We
focus our sales on smaller niche markets within the industry.  

		We are beginning the second of several phases in order to modernize
our production facility to allow us to continue to exist long term.  We
have limited financial resources and try to focus these resources on
areas that will provide us with the most improved results.

		I am not a technical expert.  So I will leave all the technical
explanations to people that better understand that area to discuss why
the brick industry is different.

		I will be talking about the financial assumptions made in the proposed
regulation for silica, how these will have a bearing on Whitacre Greer.

		I helped to review some of the financial information for our industry
as most of my background deals with financial issues.  

		According to the proposed regulation, there are two major objectives
of the economic impact analysis: One, whether the proposed rule is
economically feasible for all affected industries.  The rule is
determined to be feasible so long as their costs do not threaten the
existence of or cause massive economic dislocations within a particular
industry or alter the competitive structure of that industry.

		On page 56366, the regulation states if the cost of a regulation,
primarily take the form of fixed costs defined as costs that do not vary
with the level of production at a facility, then reductions in output
are more likely to take the form of plant closures or delays in new
entry.

		The next paragraph states that the majority of the regulation
compliance costs are variable costs as opposed to fixed costs.

		The proposed regulation further states that the capital costs of
engineering controls in general industry due to this standard are
relatively small as compared to the total cost, representing less than
eight percent of the total annualized cost at approximately $363 per
year in general industry.

		These statements are not true for the brick industry as the capital
costs are the largest portion of the costs.  OSHA's estimate as shown in
Table 8-11 for the structural clay industry is $38,422 annualized cost. 


		By applying the cost data in Table 8-9, that shows the annualized
compliance cost for the industry and reducing this to the amount per
establishment, $34,150 of this total is for engineering controls which
are capital costs.  This is 89 percent of the annualized cost, more than
10 times higher than the 8 percent for general industry.

		A large percentage of fixed cost in the proposed regulation for the
brick industry make it likely to have the previously mentioned
reductions in output that are likely to take the form of plant closures
or delays in new entry.  As a small company, Whitacre Greer has much
less financial leeway to be able to survive in an industry contraction.

		OSHA generally considers the standard to be economically feasible for
an industry when the annualized costs of compliance are less than a
threshold level of 1 percent of annual revenues or less than 10 percent
of annual profits.

		The proposed regulation states, if costs exceed either the threshold
percentage of revenue or the threshold percentage of profits for an
industry, or if there is other evidence of a threat to the viability of
an industry because of the standard, OSHA will examine the effect of the
rule on that industry more closely.

		Table 8-12 shows the analysis for small entities affected by the
silica standard.  This chart shows the profit percentage for the brick
industry to be 4.41 percent and the annualized cost for compliance as
8.05 percent of profits.

		Examination of actual financial results for Whitacre Greer since 2002,
show that our average profit for this period is 1.06 percent and the
annualized cost from OSHA represents 33 percent of this average profit. 
This result does not fall within the economically feasible category as
defined by OSHA as it is more than 10 percent of annual profits.

		Two, determine if the agency can certify that the proposed rule will
not have a significant economic impact on a substantial number of small
entities.  

		According to the details given in Appendix 5-A, Table A-2, if the unit
cost of the items required for engineering controls are compiled, they
add up to $750,484 to be purchased and installed for the first year of
compliance.  Under the respirator category, the first year investment to
purchase the required respirators is $154,040.  Additionally, the
initial investment for the regulated areas is $1,996.  These three add
up to $906,530.  

		OSHA presents these amounts as annualized over 10 years using a 7
percent discount rate.  However, in reality, these items must be
purchased and paid for in the first year of compliance.

		For a small company like Whitacre Greer, this means we have to find a
lending institution to lend us this money.  As we have been discussions
over the last nine months to obtain a bank loan in order to finance our
next step for modernization of our manufacturing plant, I am now well
acquainted with the bank industry's current requirements.

		A bank at the moment requires EBITDA, earnings before interest, taxes,
depreciation, and amortization, to be at a ratio of 3.5 to 1 in order to
make a loan.  As these engineering controls and respirators will not
lower costs or increase revenues at all, the calculation must be done
with existing revenue and increased cost added to represent the increase
in the annual maintenance costs.

		According to the OSHA data found in Table 8-12, the average profit per
small entity is $409,079.  This amount must be reduced by the first year
of annual operating costs in order to get the profit after the increase
in maintenance costs.  The first year annual maintenance adds up
$224,130, assuming 50 employees for the medical surveillance and
training where the costs are listed per employee, leaving us with
$184,949 of profit.  Some amount of depreciation will be added back to
this in order to get the EBITDA.  However, I could not find any data
concerning this in the regulation.

		$184,949 multiplied by 3.5 equals $647,321 which represents the amount
that could be borrowed from a bank.  This amount is short of the amount
required by $259,209.

		It is extremely unlikely that a small entity such as Whitacre Greer
would be able to obtain a bank loan into banking climate for something
that does not reduce costs or increase revenue and additionally adds
cost.

		Now, Whitacre Greer is only one small company within the industry. 
According the numbers presented in the regulation, there are 93 small
entities out of 204 plants in the brick industry.  This is almost
one-half.  I cannot speak for the current profit percentages of the
other small companies in the brick industry.  However, each of these
small entities would certainly have the same financing issues as
Whitacre Greer.  This seems like it would have a significant economic
impact on a substantial number of small entities.

		I know OSHA conducted a small business panel on this rule over 10
years ago.  However, many economic conditions have changed over the last
10 years, and I would encourage OSHA to reconvene a panel so they can
better appreciate how the operations have changed in that time.

		There are many other examples of places within this preamble and rule
where we have questions and could use another small business panel.  For
example, on page 56276, it states the proposed rule is estimated to
prevent 688 fatalities and 1,585 silica-related illnesses annually once
it is fully effective.  At Table 5-5, the chart states that out of
22,206 employees in the structural clay industry, 4,377 have exposure
above 50 PEL.  Table 5-12 shows the estimated cost for medical
examinations by a pulmonary specialist.  There is one person in the
entire brick industry that will be referred according to the table.  The
total annual referral for all industries is 61 people.  If the standard
will truly prevent 688 fatalities and 1,585 silica-related illnesses,
shouldn't the number of people being referred to pulmonary specialists
be much higher?

		In conclusion, on page 56287, OSHA seeks comment as to whether
establishments will be able to finance first year compliance costs for
cash flow and under what circumstances the phase in approach will assist
firms in complying with the proposed rule.  The answer for Whitacre
Greer and probably most of the small entities in the brick industry is
no, we probably will not be able to finance year compliance costs.

		Whitacre Greer is trying to modernize our facility in order to be in
business for the next 100 years.  We are small and do not have large
financial resources.  Compliance with the silica rule as proposed as
well as with other pending regulations, such as the air toxics
regulation, or Brick MACT expected later this year from the U.S. EPA
could well see the end of our company as we will not be able to afford
the compliance costs as well as the modernization costs.

		We certainly want to be a safe place for our employees and our
neighbors.  However, to spend all our money on items that have not been
a problem for our employees or our neighbors seems like a sad way to go
out of business after almost 100 years.

		Thank you very much for your time.

		JUDGE PURCELL:  Thank you, Ms. Kaboth.

		Next on the agenda is Lincoln Andrews.

		MR. ANDREWS:  Mr. Chairman, may I please go to the podium?

		JUDGE PURCELL:  Why do you need to go to the lectern?

		MR. ANDREWS:  I have something to show, and it's easier for me to
address people when I can see them, sir.

		JUDGE PURCELL:  All right.  As long as you're standing close enough to
the mic -- 

		MR. ANDREWS:  I will be.

		JUDGE PURCELL:  -- to pick up your testimony.  Thank you.  

		MR. ANDREWS:  I'm going to slow this down a little bit.  There's a lot
of stats and facts and figures.  

		Before you I stand as a direct fourth generation owner of Stiles and
Hart Brick Company of Bridgewater, Massachusetts.  We have been in
operation for over 130 years and are the only remaining brick
manufacturer in the Commonwealth.  I am Lincoln D. Andrews.  I am 50
years old.

		My clear knowledge of employees goes back to men born between 1915 and
1920, one of which was a prisoner of war in World War II.  These are men
with whom I would regularly camp and fish.  I attended their funerals. 
I grew up with and went to school with many of my current employees. 
Our children have attended school together.  

		To this date, I know of only one worker who has experienced lung
disease.  The cause of his lung disease, a lifetime of smoking, not the
conditions of his workplace.  He enjoyed a successful recovery and
returned to work.  He returned to a workplace which was not the cause of
his disease, rather one that provided him with Blue Cross Blue Shield,
disability insurance, a pension, 401(k) and fair wages to support his
family.  He told his son, now an 18-year employee, that our brick
factory would be a good place for him to work and to provide a
livelihood for his family.

		There have not been any cases of silicosis.  

		I am so sure of the absence of hazard that I employ my son, David,
during summers as a laborer.  He has a rare genetic disease called
Peutz-Jeghers syndrome.  If you care to write it down, it's spelled
P-e-u-t-z - J-e-g-h-e-r-s syndrome.  He is predisposed to cancers
including lung cancer.  I love my son.  He will absent excessive
regulation have the opportunity to be the fifth generation owner and
once again I repeat, I have him work in the factory during summers
without fear.

		Here's the fun part.  Let's play a game, an imagination game.  Go back
to your youth, your youthful mind when you could still vividly imagine
all sorts of fanciful scenarios.  It is now the second Monday of August.
 If knowing that does not make you groan, the most of our potentially
very real scenario will.  

		Your alarm clock sounds a sharp chime waking you to the start of your
workweek.  You have breakfast, brush your teeth, put on your jeans,
steel toed boots and leave.  You're immediately struck by a wall of
humid air as you walk out your kitchen door.  Yep, it is sure going to
be a hot and muggy day.

		You enjoy a 20-minute ride.  Then you arrive at work, get out of the
cool car and immediately begin to sweat.  Your breathing becomes labored
as you walk to the changing room.  You dread going to your locker.  The
mask, the suit, your livelihood, no choice.  

		In case you could not understand me, which will come into play later,
the mask, the suit, the heat, your livelihood, no choice.  

		You sit on a locker room bench and strap that rubber mask
euphemistically called a NIOSH respirator onto your face.  You step into
a Tyvek suit which is immediately uncomfortable and chaffs against your
sweaty body.  You wish you could at least walk to your workstation
without this cumbersome gear.  

		Over the course of the increasingly hot and humid day, you pick up
12,000 5-pound brick.  That's two brick per hand, 10 pounds in each
hand, 20 pounds altogether per lift.

		A job you once loved is now unbearable.  You can no longer hear the
muffled masked voice of the forklift driver that approaches you to pick
up your stack of brick.  If at any time during your sweaty day of labor,
you were caught removing your mask, to sneak a breath of sweet, fully
oxygenated air, you will be fired.

		You are 57 years old.  You have 15 years of continuous employment, yet
you will be fired and you will not be able to collect unemployment.  You
will have no health insurance, insurance for your ailing spouse who is
battling her third round of cancer.  No mask, no suit, no job, no health
insurance for her cancer treatment, bankruptcy.

		You naturally think why has this happened to me.  

		Lincoln tells you the reason is simple.  OSHA promulgated a new law
for your protection.  

		So ends the potentially true account of a Stiles and Hart employee if
this was law last year.  

		My regulators, I am the quintessential businessman similar to
companies who are completely unaware of this current process. 
Fortunately, Stiles and Hart has an association that helps people, small
manufacturers like me, become aware of issues like this.  I am thankful
for them to the ability to address you.

		However, it appears from previous testimonies, information provided by
the Crystalline Silica Panel of the American Chemistry Council and
others, it would be impossible for small businesses like mine to be
positive they would be below the PEL action levels at all times.

		The nation's small factories are barely surviving the current economy.
 Even in robust times, we could not afford the required engineering
modifications presented by Janet Kaboth.  

		Therefore, company policy resulting from the proposed ruling would be
clear and draconian.  All workers wear respirators and Tyvek suits all
the time.  

		The law has unintended consequences.  Included are impaired ability of
forklift drivers to communicate to stationary individuals to whom they
drive very closely and monitoring people for potential heat stroke. 
Small companies cannot afford to shut down every time it gets a little
warm.  People with families to support do not want to lose wages if it
gets hot.

		I have two simple goals in life, to nourish my family and my
employees.  It is humbling to employ people with whom you break bread,
to emotionally share deepest fears and to unit to ensure the survival of
a small company upon which all depend.

		Last Friday, a 59-year-old man was crying in my office.  He was hired
by my father in 1978.  He needed help.  I was there to provide it.  

		Some human statistics about Stiles and Hart factory workers, 32
employees, 20 combined for 420 years of service, 16 have familial
relation.  It is a high honor when a father brings a son into the
company or a man, his brother, or a mother recommends her son.  Fifteen
people have 55 total dependents.  Including 4 people in management, we
have 36 employees that benefit 93 spouses or children.  

		Small business is America's backbone and is responsible for much of
the taxation upon which our communities, school, police, and fire
departments depend.  Small businesses are the most vulnerable to
one-size-fits-all regulation.  

		We can all agree that laws are created with noble intent.  We can also
agree there are problems with how laws are interpreted and applied.  

		I ask, is this law correct for every company regardless of size and
viability?  

		Small businesses are clearly different from mega businesses.  Can an
organic farmer be compared to Archer Daniels Midland?  Can both equally
flourish under identical regulations?  Should Archer Daniels Midland be
allowed to have roadside vegetable stands?  Should the organic farmer
because she is a farmer be required to wear a pesticide suit?  

		All of you appreciate the dignity of employment that our nation's
vanishing factories provide.  So far, Stiles and Hart has survived.  I
invite you sincerely, as human beings, to my factory.  You can bear
witness to the internal pride people have in a day's work that is
completed by punching a clock.  Look them in the eye, talk to them.  Ask
them if they personally value their job.  You can watch them talk and
laugh together as they work the job they have chosen.  

		Once again, imagine yourself right now holding four brick, two in each
hand, a total of 10 pounds in this hand and a total of 10 pounds in this
hand.  The previously mentioned 57-year-old man, now a widower, is by
choice one of 11 workers who pick up and move 145,000 brick per day. 
For one man, that's 6,010 hand pounds of brick, 60,000 hands per man or
woman, yes, we have had women do this, per day.  

		Would you expect a human being to lift 60,000 pounds while wearing a
NIOSH respirator and Tyvek suit?  Do you believe it is possible on a
cool day, let alone a hot, humid day?  Is it reasonable to tell a person
whose family requires high quality health insurance to endure such
rigors?  

		We all know that most factory workers cannot get a job that provides
the same wages and benefits.

		No one cares more for my employees than I, no one.  

		This ruling appears to be one-size-fits-all for all industries, from
Monsanto to small, compassionate companies like Stiles and Hart.  

		This is a job killer for companies like mine where no hazard exists. 
It may be needed for other occupations, but not for brick factories.

		In closing, I make an honest request.  Please do not promulgate an
overarching law, a law that will be the demise of factories such as mine
that employ real people, that need well paying jobs that do not require
secondary education.  Displaced factory workers become the nation's
chronically unemployed or underemployed citizen.  Please do not include
my employees, my friends amongst that group. 

		Thank you.  

		JUDGE PURCELL:  Thank you very much, Mr. Andrews.  

		Next on the agenda is Joe Rice of Belden.

		MR. RICE:  That's hard to follow.

		Good afternoon, my name is Joe Rice, and I am the CEO of Belden
Tri-State Building Materials.  I've been with the Belden organization
for the past 21 years and 30 years in the brick industry.

		Our office was founded in 1930 in the midst of the Great Depression. 
Why?  Because people needed brick.  People in the middle of the chaos
realized the durable material that they were using and its
cost-to-benefit ratio.  

		Brick buildings used by Caesar and common citizens are all over in
Europe and still very viable today.  

		Brick is fireproof, stands up to hurricanes and floods, virtually
needs no maintenance, emits no volatile organic compounds.  The
materials used in manufacturing, installation, or the cleaning, which is
only every 25 to 50 years, can be regionally produced saving shipping
costs and reducing fuel emissions. 

		Building with brick reduces insurance costs and only real stone has a
better cradle to grave cycle.  

		My office currently employs 42 people and not one of them has any
direct connection with manufacturing or installation of any materials. 
We just sell and deliver them to schools, hospitals, municipal
buildings, places of worship, commercial and retail centers, apartment
buildings and private homes.

		The fact is no one making these decisions has any clue how many people
you're actually hurting.  

		That's why I'm here, to ensure that OSHA understands that everybody in
brick and related industries can be hurt. 

		The manufacturing, the companies that supply the equipment for
materials, to the mining, to packaging materials, the people that supply
the materials used in building materials in the plants, the list of
these companies is into the hundreds especially the people that work in
the plants.

		Brick plants are typically in rural areas and they provide good paying
jobs with excellent benefits in areas where farming is no longer
dominant, plus all the businesses that derive the income from those
plants.  

		Distribution and installation, I can tell you that 50 percent of all
the brick that I buy, and I'm the biggest supplier of brick in the New
York metropolitan area, comes from a plant owned by a family.  It's not
one of the giant conglomerates that you heard before.  It's people like
Lincoln and Janet.  

		The distribution from my small office is also incurred with people
that manufacture the mortars, the metal ties, the makers and mixers and
cements, the hand tools, the safety equipment, the power tools.  Most of
these products actually are made in America.  

		Then there's the thousands and thousands of union and non-union
masons, the laborers and third party installers.  

		So why am I so concerned?  Because most of the glass and steel that
comes into this country, especially my city, New York, comes from Asia. 
No American jobs, wasteful emissions, questionable manufacturing
standards, and known workplace labor violations.  

		The pulp used in HardiePlank comes from Australia.  The bulk of the
glass and steel used on the Freedom Tower were made in China.  

		A glass and steel building uses one quarter the amount of skilled
craftsmen as a masonry structure, and while a complete wall section
constructed by union masons cost $80 per square foot and 35 non-union, a
glass wall section costs $175 and up and is less energy and sound
efficient.  Glass buildings use more HVAC heating and cooling.  Glass
requires constant washing and more maintenance.  

		What politician hasn't stood in front of a brand new brick school or
hospital and bragged about their accomplishments? 

		My parent company is the Belden Brick Company found in 1885 in Canton,
Ohio.  It is now in the fifth generation of family ownership.  Belden
Brick has supplied the brick for tens of thousands of schools,
universities and hospitals and millions of other projects.  This is not
an exaggeration.  This is actually fact.  

		Belden Brick employs 400 people in Sugarcreek, Ohio, and they hire and
will continue hundreds of Amish.  Many of them are multigenerational
employees.  

		I just put in a note.  I actually know three people in one plant where
I'm working with a grandfather, a son, and a grandson, all in the same
plant, all here handling materials.  I forgot to add that in my notes.

		Why?  Because it's a safe place to work, and if you understand the
Amish traditions, it's important for them to work with their hands, and
Belden is a good neighbor to the farming community.  

		If this regulation is enacted, there's a great risk that Belden Brick
will lose the Amish employees because they will not shave off their
beards and they will not wear respirators.  These employees are true
craftsmen and it would be a tremendous loss to the Belden Brick Company.

		All of their closed mining pits are reclaimed and sold to the local
farmers.  They actually sell for more than the comparable land because
of their amazing irrigation and the great care that we take in replacing
topsoils.

		The workers from these small communities talk instead of watching
television.  If there was a history of illness or even discomfort, word
would spread.  Fathers would not encourage their sons to work for the
company.  Many of the workers at the plants then go home and tend to
their farms.  

		Not many industries have the symbiotic relationship with the land and
the people that love it.  To these people, the land is God's gift and
must be used wisely and many have told me that brick makes good use of
the land.

		Dozens of families have worked for the Belden Brick Company and become
longtime employees.  About 35 percent of our employees have over 20
years in the company.  The vast majority of these people are not office
workers.  They are men and women on the line handling materials and
loading the railcars, and they are able to retire healthy.

		So you're asking, why am I so doom and gloom, OSHA doesn't want them
to stop making brick and doesn't want to lose the revenues and the jobs?
 Well, you're wrong.  

		Our industry is very price sensitive.  Brick is sold by the thousand. 
I make profit of a .02 per brick, .06 and my salesman are jumping
backwards doing summersaults to make .06 on one brick.  I'm selling
brick currently for less than I sold it in 1984 because of the economic
times.

		When I listened to the previous speakers, and they're talking about
the industry being down 65 percent, my business is down 85 percent.  I
bought my competitors for 20 cents on the dollar.  Our business is in
devastation right now.  

		Do you realize this is not really in the best public interest?  I hate
reading.  I really do.  

		The cost of the materials, the equipment and the monitoring will be
reflected in the manufacturing and the cost and obviously it's going to
reflect in the eventual sales.  

		The cost related to the installation of the product, I deal every day,
not like these guys, they all work in a factory, I'm the guy that goes
to the construction sites.  I'm the guy that's out there, sometimes I
visit three sites a day.  In New York City, we don't have space as it is
to work on a typical site.  

		So now you're telling me, when I read further, beyond what happens to
my industry, just for the manufacturing, about the workplace safety
zones and the respirators and all this, it's totally impossible to
actually matter.  You're asking way beyond the scope of reality.  

		The course related to these work zones in New York City we couldn't
do.  The mason would be responsible for establishing his work zones and
liable for the other trades that just violate it.  

		Wearing a respirator and protective gear will scare young people from
becoming masons.  Why would I want to wear a respirator?  This must be a
dangerous trade.

		There is relationships to extra cost in the labor, the material, the
personal protection.  Someone's going to have to pay.  It's going to be
the taxpayers in government work, the developers and especially the
homeowners.

		Much of the basis of our economy is based on the home building index. 
This would be a significant blow to the marketplace and the economy and
the environment since brick is such a safe product.

		It's more than just naïve to think there won't be huge costs.  It is
irresponsible for the long-term effects and dangers to our communities. 


		What are the hidden and psychological suggestions and implied messages
to owners, both public and private builders, architects and local
government agencies and the general public to think?  

		If you remember the scene in ET when the government comes rushing in,
with their white Tyvek suits and their respirators, it was a filmmaker's
way of instilling fear.  

		Well, if go by or an architect goes by a worksite and sees someone in
protective clothing, wearing a respirator, eye protection, having danger
zones drawn around them, they'll say, why would I ever want to use brick
again?  It must be unsafe.  

		I've been to thousands of commercial sites and I have not seen one
commercial site that does not use a wet saw.  General contractors won't
want to use it, and if the architects see it, with the current green
building trends, it will die 100 percent.  I've talked to the biggest
architects in the business.  I'm lucky to have the name Joe Rice.  If
you want to look me up on the internet, I've spoken at more AIA meetings
than anyone else.  They've told me, they will not use brick.  This is my
business.  

		Architects are very sensitive to the materials they use.  If any
implication is hazardous, they will use other materials.  When someone
sees a house being built, will they understand that silicate is innate
and only exposed during dry vacuumless sawing?  Do you realize that 1
out of every 200 or more brick actually has to be cut.  That's an
average by the way of commercial and residential.  In the commercial
world, we barely cut one brick.  I talk to 90 percent of my masons and
they said they cut 5 brick per hour.  If buildings are laid out
properly, then they don't require cutting brick.

		What are the costs in terms of when this person walks by the building
site?  The homeowner.  Are they going to say, I don't understand.  Why
would I want to live in a brick house.  Brick must be dangerous, and if
architects won't specify it and homeowners are scared of it, our entire
industry is in jeopardy.  

		What are the costs in terms of dollars in environmental impact when
imported materials with questionable manufacturing standards are used
and regularly maintained?  It is much to the chagrin of my American
manufacturers that I actually import brick from Europe.  It is sad but
the American companies are too busy themselves from regulations and
unfounded lawsuits to be spending money on innovations of new product
development.  

		A quote from my German manufacturer, who I'm going to see next week,
"I'm sorry, but you Americans are 20 years behind on your -- technology.
 You waste too much time with silly issues.  We fought this silica issue
20 years ago and won.  It was simple.  The pollution that comes from
China is the world's greatest threat.  We don't stay open if we were
harming our employees.  Clay is the safest material and there's tons of
data to prove it."  

		So what I'd really like to do here today is just thank you to be able
to speak for the thousands of masons that I see on a weekly basis, the
hundreds of architects that I know that like to use brick because they
feel that it's a tremendously safe protect, people like Frank Lloyd
Wright and, you know, Charles Wang and all these other great architects
that have built great buildings in great brick will never happen any
more.  

		I'd like to thank you on behalf of people like Warren Buffet who owns
Acme Brick, an American company.  Most of the companies that are in the
brick industry are not by the way Americans.  The foreign invasion has
come in and most of our materials are made by foreign entities.  But
people like Lincoln Andrews and Janet are good American companies and
those are the people that I seem to like to do business with. 

		So if OSHA does change any of these regulations, I am sure that we
will not be in business in this centuries old industry, the second
longest building material and the only one, next to stone, when it comes
from cradle to grave usefulness will come to an end.  Thank you.  

		JUDGE PURCELL:  Thank you very much, Mr. Rice.  

		Next on the agenda is William Latham of Acme Brick.

		MR. LATHAM:  That's usually what happens.  When I show up, everybody
leaves.  

		Well, I have good news and bad news.  The good news is I'm the last
speaker for the BIA.  The bad news is you have to listen to a lawyer.

		But my job today is to kind of wrap things up and tie together for you
the discussions that Susan Wiltsie brought forward which I know you
personally know what your job is as regulators and the limitations on
those jobs.  

		But what you need to see in those regulations are the connection to
the people that you heard from today, and I know it is a tough act to
sell, the brick industry is different but it is, and you've heard from
Acme Brick about two weeks ago, you heard from Bob Glenn, that same day
about the technical aspects of the silica related to brick.  Dr. Garth
Tayler with Acme showed you slides of how the silica itself is
different.

		And, if you look back at the three basic issues that you face, as a
regulator, it must be reasonably necessary and appropriate to provide a
safe and helpful place of employment.  That's one.

		Two, it must be necessary to prevent employees from suffering a
material impairment of health or functional capacity that it
technologically and economically feasible.

		And, finally, you can't be regulating things that aren't safe.  I mean
that's your job is to regulate things that are not safe, a safe work
environment.

		And I think the evidence that you've heard today is the evidence of
silicosis and silica-related illnesses in the brick industry does not
justify the amount of money that these companies will have to face and
have to put out in order to meet your new PELs and meet the regulations
that you're trying to impose.

		And that's significant, excuse me, more significant in the fact that
the evidence of no silica -- I'm sorry.  That's not a correct statement.
 That there's little to no evidence of silica-related illnesses, at
least in the companies you heard from today.

		I heard this just before our discussion from the gentleman from the
Center for Effective Government, and I know I've read some testimony
from some of the unions involved that say that these regulations are
necessary for general industry, and we're not here today to say whether
they are or not.  There's not a person in this area that would be an
expert in other areas.

		And so that's why we are here today to ask you to consider to exempt
or exclude the brick industry from these regulations, and you yourselves
have already recognized in your statements the difference between the
brick industry and general industry.  

		You talk about the evidence of silicosis being lower in the clays, the
potteries, and the brick industries.  You talk about the cost involved
in meeting or complying with that being larger than general industry.  

		You add those two elements together and it's a perfect storm, and the
storm, if you try to impose these on the brick industry, will result in
catastrophic events.

		We purposely brought to you today larger brick manufacturing companies
and the smallest brick manufacturing companies that have one plant who
have 30 to 80 employees.  And why that's really important is that the
fact that these regulations will impact both in the very same way.  

		In some areas, you'll put those companies out of business.  Janet with
Whitacre Greer, you know, showed you how she's having trouble getting a
bank to loan her money to do the things necessary to keep her business
open, to ask that same bank to give her money that will not increase
revenue, that will not help her make her business last another 100
years.  What's the likelihood of banks doing that, especially after the
recession and the banking formalities that have been imposed that the
difficulty in getting a loan today is exponentially harder for
profitable business, much less many of these businesses that you've
talked about, that you've heard from today, that are struggling to make
profits.  

		And quite candidly, Acme Brick Company is the biggest brick company
right now in the U.S. and for the last few years, we have struggled to
make a profit and if you want to take your 10 percent profit and add on
that, well, you're never going to reach that level because we haven't
even been making a profit.  And you take the percentages of the cost
compared to the zero profit we've made, you're imposing regulations that
will absolutely affect our business.  

		Will it put us out of business?  Quite candidly it's nice to have
Mr. Buffet as our owner, and he enjoys and loves our industry because
you often hear him say, I like brick and mortar industries.  Well, we're
the best example of that.

		But the effect will be like it has been over the last few years,
plants being closed and employees losing their jobs.  As you heard
Dr. Tayler say earlier, in the 2006-7 timeframe, we had 3,000
employees.  Today we have right around 2,000.  We have 25 brick plants. 
Only 16 are operating, and of the 25 operating, many of those are slowed
and not at full capacity.  And what does that mean?  We've got workers
that we could employ that we're not.

		Let's talk just a minute about the silicosis and what is the risk that
the brick industry faces today.  You've heard from every person and, in
fact, I'm not sure if you've, and I'm guessing, and I'm asking you, have
you heard anybody say that the brick industry has a serious problem with
silicosis?  I dare say not.  

		The studies done by Mr. Glenn and the anecdotal testimony that you
heard today which quite candidly was pretty compelling to me, and this
is the first day I've met some of these people, but they care about
their workers.  They care whether they're sick.  You talk about
Mr. Andrews talking about people that he grew up with and you're
talking about a brick, you heard also that the brick plants are out in
rural communities.  Somebody asked, the last time we were here, why
don't you just make one big giant plant?  And, you know, put it where
you can get a lot of employees.  

		Well, one, our clay is there.  Two, we've got substantial investments
where they are and, three, that's where the people that know how to make
brick are.  And to put those guys in a position -- and the point I'm
making, sorry, I got distracted but the point I'm making with that is
these people know their employees.  They know what silicosis has been.  

		One of the elements the last time we were here you talked about is,
well, following through with these employees for many years.  Do you
keep medical?  Do you do this about keeping up with them?  Well, these
people know these people because they know them for a lifetime, and so
they can testify, they have testified today that there is no silicosis
in their plants.  

		And I'm not saying that there's no silicosis in every brick plant. 
I'm not testifying to that today.  We are.  There are situations where
silicosis apply.  There's places of silicosis for somebody living in
Lubbock their whole life.  It's prevalent I know in certain areas, but
in the brick industry, we simply do not have that problem today nor have
we had it for a long time.

		Acme Brick Company, General Shale, the larger plants are trying to do
the best they can to comply with those rules, and we've been effective
at doing that.  Over the last couple of decades, we have spent lots of
money.  Dr. Tayler again testified that in many of our plants that are
operating today, we've spent up to $500,000 trying to comply with the
100 PEL.  If you lower that, he also testified that we're going to spend
an additional $900,000 to meet that PEL plus about $400,000 a year in
meeting those PELs.  Those smaller plants that haven't done that initial
investment, you heard Janet's testimony who talked about the cost to her
would be, you know, significant, $900,000.  That even your own numbers. 
That's just not something that's feasible.

		Now, one plant is not that, you know, you think, well, that's not that
much money.  But you impose that upon our 25 plants, even at the
additional $900,000, that's a significant investment when you simply
have not shown, one, we have a silicosis problem and, two, the economic
impact on us after this economic situation we've had over the last few
years, simply can't be justified.  

		And, again, every person you heard today said, I care about my
employees.  We care about safety.  We have already implemented lots of
things not because you've made us but because that's what's the best
thing to do.  I dare say there's not a single person, if there was one
thing that they could afford to do and they absolutely needed to do, to
help them, their employees, that they wouldn't do.

		I believe that based on the testimony I heard today.  There's been
some really compelling testimony from guys who have run businesses in
three and four generations.

		Acme Brick Company, as big as it is, is still a pretty good size
family.  About 20 percent of our employees have been with the company
for over 20 years.  That's a pretty good sign that, one, we're doing
something right for our employees but, two, that they think they're
working in a safe environment.  

		I'd just like to address specifically the small business issue.  I
can't say it any better than you've heard, but I think what you really
need to look at is not only their testimony but tie it to the economic
feasibility.  That is a mandate for you guys.  You can't just do
something when it can't be afforded, especially I'll add to that when
there really is no significant risk or whatever that risk is, is not
going to be improved by the amount of money you're going to be spending
or requiring them to spend.  

		That is something that OSHA, I know you don't have to do that, but the
brick industry would beg, is that a good enough word, that you consider
because it is impacting not only Acme Brick Company, and I know I'm with
the biggest brick company here, but with Whitacre Greer and Stiles and
with Nash and even with Belden.  You know, they're larger but they're
still within the definition of a small business.  

		And the brick industry, as big as it is, and you think, you know, some
of the high profile companies that you might have, it still boils down
to the men and women that work at a local plant, and our 25 plants are
spread across the country and you're affecting us, those workers in
those 25 plants.

		Let me bring it to a conclusion.  I'm sorry, beg my indulgence.  

		I do want to talk about the one thing about price increases.  That was
something that I've seen addressed in several publications, and actually
I think the last time we discussed it was that, you know, just raise you
prices, and that's going to make the difference.

		I guess Joe probably put it best is that that just is totally
unrealistic for two reasons.  One, and probably the ultimate one is that
customer is simply not capable of paying those additional costs.  The
only person I can think of that may have been more adversely affected by
the recession other than the brick industry was the construction
industry.  Home building went to nothing, and there are builders and
construction contractors and masons who are struggling now to try to get
work and try to build houses and just find some economic light at the
end of the tunnel.  

		And, currently, we are facing struggles within not only sand.  We
don't want to pay more money for your brick.  They're saying we can't
afford the prices that you have.  

		And one statistical piece of information is this is industrywide based
on the BIA's analysis, brick prices from 2006 to 2013 are down 13
percent.  That's a significant amount of money, and if your numbers
which are based on 2006 financial information, is using those numbers,
then we're already 13 percent behind the hole.  Even if we got up to
that increase of 13 percent, we would still be significantly below the
ability to make money off of these new improvements.

		So, you know, just in our own situation, being down 9 plants, that's
40 percent of our capacity to produce brick.  We've got to get 40
percent there just to get back to where we were in 2006, and I was
shocked to hear Joe's testimony about 80 percent in the actual sale of
brick.  It is a significant thing that must be considered.

		And one last thing before I conclude is that this is a legal issue of
cost that I don't think you all considered, and that's the cost of
litigation and silicosis, and we haven't faced that because we don't
have any real claims.

		But my one experience, and this is Bill Latham as general counsel for
Acme Brick, the one area we have faced, frivolous and expensive
litigation is in asbestos litigation.  Brick, or at least Acme's brick,
does not have asbestos in it at all.  There's no asbestos found in our
bricks.  

		Yet, we are constantly being hailed in to a couple of states in the
Union, and I won't mention their names.  Somebody else mentioned
Illinois, not me.  But being constantly sued along with hundreds of
other defendants because somebody's got asbestosis and they worked for
Acme or they bought an Acme brick, or they've walked next to an Acme
building, and we've had to spend thousands of dollars for attorneys and
paying cost of defense settlements just to get out of these never ending
asbestos lawsuits.  

		Now, will that happen in the silica industry?  I don't know.  Did
anybody anticipate it would happen in the asbestos industry almost 30
years after asbestos was found to be a problem?  No, I would say no.  

		But we face those, and the result of that is we simply are having
difficulty even buying insurance.  Of the three or four or five
companies that we look at on a regular basis for getting quotes to buy
insurance, only two of them will cover us from silica, and the one we
use almost, and we have been with the same company over 25 years, they
know we don't have a silica problem, and that's the reason they continue
to allow us to have coverage.  Some of these other companies don't have
that benefit, and they have difficulty and, in fact, I would dare say
most of them don't have coverage for silica.  

		So, in conclusion, I think we demonstrated that OSHA's existing rules,
with regard to the brick industry, and that's all we're talking about
today, the current PELs that have been imposed, we've been able to
demonstrate that our actions, whether it be because the clays are
technically not causing silica, whether it's because of the action plans
that Acme and General Shale and others have put into place, or whether
we're just -- I don't know the other reasons, but it's simply doing its
job and we're not having silica-related injuries. 

		Decreasing the PEL and adding regulations would simply not eliminate
our lessen the risk which is minimal at best at a brick plant and
there's little to no evidence of silicosis being a problem in the brick
industry, and finally that the cost in the current post-recession
conditions make these proposals economically unfeasible in the brick
industry.  

		Therefore, the BIA and the brick industry, including all the brick
manufacturers that you've heard from today and the other members of the
BIA, would recommend that if OSHA finds that regulations are necessary
in the general industry, that the brick industry should be exempted from
any new regulations pertaining to the respirable crystalline silica
exposures and excluded from the requirement of lowering the PEL and
imposing an action limit or any other ancillary regulations.  

		We have demonstrated, I believe today both legally and factually, that
this request is a reasonable request and something that OSHA can and
should do.  

		As many have said, if there is particular information that you want to
get from Acme and the other companies, we'll do our best to try to
comply with that.  We want to demonstrate what we've said is the truth
and what's reality, and I do appreciate on behalf of all the members of
the BIA the opportunity to come and speak to you today.  

		JUDGE PURCELL:  Thank you very much, Mr. Latham.  

		I'm going to open it up for questions.  Let me see a show of hands of
people in the audience who intend to ask questions of one or more of the
panel members.  

		Okay.  Mr. Schultz, both Mr. Schultz.  All right.  Let me ask
Mr. Allen Schultz to come down and the panel members that have already
made their presentations, several are seated in the audience.  I'd ask
you to go ahead and come back up here.  I know it's crowded but just so
you can respond to any questions.

		All right.  Please state your name for the record and your
affiliation, Mr. Schultz.

		MR. A. SCHULTZ:  My name is Allen Schultz.  I've been a millwright for
35 years.  I do not work in the industry.  So I don't know it intimately
like you do, but I do know silica intimately unfortunately because I've
worked in a foundry for 40 some years and a machine shop machining
castings for another 5 years.  And while you may not have any verified
silica cases, I know that many of my friends in foundries that have
silica in their lungs get sick and some of them die from supposedly
unrelated causes.  The silica weakens their breathing ability so much
that they fall prey to other reasons that they die.  

		But be that as it may, the thing that I don't understand is if you
have no silica problem, then what does it matter what they lower the
PELs to because you have no problem.  It won't affect you.  I don't
understand your reasoning if there's no silica problem, no matter what
they put the PELs at, you can easily meet them because you have no
silica problem.  If you have a related silica problem, then you should
be concerned about the limits being limited and making it harder and
stricter to meet.  But if there is a problem, and you love your
employees like you say you really do, being a millwright, I had to
install lots of machinery.  I know it's expensive.  I know it's
complicated, but it really does the job and saves people's lives, and if
you have happy employees, they'll work longer, harder, and won't be
getting their family sick from getting their clothes washed in their
washing machines at home instead of having the company wash their work
clothes. 

		And I have experience unfortunately that our company got these
pressurized I guess you call them helmets.  They're not exactly helmets,
but they have little battery packs that filter the air that these people
breathe, and in the foundry, it's extremely hot all the time, summer and
winter.

		JUDGE PURCELL:  Mr. Schultz, I hate to cut you off, but you've had
your opportunity to testify earlier today, and the purpose of the
questioning period now is to ask questions of the panel based on their
comments.

		MR. A. SCHULTZ:  I'm getting to the helmet thing.  These helmets
aren't cheap, but it seems to me that you could supply these to your
employees, and they'd be much happier, safer employees to work in your
hot industry.  It's pretty near hot as the foundry industry.  Anybody
who would have experience like to reply to that?

		JUDGE PURCELL:  Who would like to respond?  And whoever respond,
please state your name for the record before you give your response.

		MR. OGLE:  This is Brian Ogle with General Shale.  It's not that we
have -- you're asking me to reduce the dust level in the air of my plant
to less than what it is on the outside of my plant.  The technological
feasibility, I'm currently battling to get it to the current PEL.  I
don't have cases of silicosis.  But I battle, and I do capital
expenditures to get it to the current PEL.  

		Well, you know, I don't know what the cost will be to take it 50 of
that PEL.  I have an estimation of what that cost is going to be, and
again in my mind, the way I logically process that is I'm being asked to
make the air inside my plant cleaner than the air that's outside my
plant because of a hazard that doesn't exist in my plant.

		And I guess it's one of those that, to your point and what you said,
if I can invest money into something that would make it so that you do
go home each day, fingers, ears, eyes and toes, I can see that by
investing this $5 million in changing that process, for example, so that
employees aren't required to do something, if I can reduce their
exposure, I've got a return.  

		By taking that dollar investment and putting it into more baghouses to
get the level lower, I do not have a return.  I do not have a safer
plant.  I can take the level down to as far as technology allows me to
take it down to, and at the end of the day, I've not gained anything. 
My employees have not gained anything.  

		So I don't know if I'm answering your question or not.  

		From all of us in our perspective, the silicosis issue is a non-issue
in the brick industry.  We have had cases of silicosis, sure we have,
but it is not a prevalent case.  It is the exception.  It is not the
rule.  

		So to take a $5 million investment, add an additional $5 million
investment, I have nothing to show for my $5 million other than the fact
that I don't have $5 million to invest toward machine guarding.  I don't
have it to invest towards lockout, tag out.  I don't have it to invest
towards confined space entry.  I don't have it invested towards first
aid, CPR training.  I don't have the money that does affect the safety
of my employees but I've got a cleaner plant.  Does that help at all?  

		MR. A. SCHULTZ:  Well, I can see the point of the people that are
living in the southwest or wherever they have lots of dust storms, a lot
of dust in the air.  I can understand that.  But in the northern part of
the country, where we have very few dust storms and very little dust
lying around the outside air, I just don't comprehend how -- 

		JUDGE PURCELL:  Again, Mr. Schultz, it's not an opportunity to
testify again.  But if you have an additional question, you're certainly
-- 

		MR. A. SCHULTZ:  Thank you very much.  

		JUDGE PURCELL:  All right.  Thank you, sir. 

		James Schultz, I think you had a question.

		MR. J. SCHULTZ:  Yes.  James Schultz representing the Wisconsin
Community of Occupational Safety and Health, and I've got a couple of
questions here.  The first couple have to do with, I believe it was this
gentleman's here.  I missed his name.  He had some figures on the screen
as to what the costs were to meet the new PEL for the installation of
equipment and so forth.

		JUDGE PURCELL:  Dr. Tayler I believe.

		MR. J. SCHULTZ:  Okay.  

		DR. TAYLER:  Dr. Tayler, uh-huh.

		MR. J. SCHULTZ:  And perhaps I missed this because I got in here late,
but I was wondering what the percentage of the annual profits from your
business that capital outlay would comprise.

		DR. TAYLER:  The percentage of the operating cost and capital cost of
our -- 

		MR. J. SCHULTZ:  What percentage of the profit, the annual profit
would that expense for putting in this new equipment and machinery and
processes, what percentage of that profit would that represent?

		DR. TAYLER:  Well, as Mr. Latham quoted, we don't have any profits to
declare.  So it's a moot question.  

		MR. J. SCHULTZ:  Okay.  And I also may have missed, I was wondering
how many years would this outlay be amortized over?  I mean you're not
going to pay for the entire amount this year.  That's going to be a
piece of equipment that's going to be there for 10, 15, 20 years.

		DR. TAYLER:  Our normal capital investments are amortized in
approximately 15 years.

		MR. J. SCHULTZ:  Okay.  Thank you.  

		MS. MILLER:  This is Susan Miller.  Some of those costs were annual
costs.  Those were already annualized.

		JUDGE PURCELL:  I think the two charts showed operating costs and then
initial outlay costs.  So the annual cost obviously would be recurring. 


		MR. J. SCHULTZ:  And I had a question for the gentleman who had some
pictures up.  He was showing his brick company and he talked about the
vehicles that his employees drive to transport the materials, both the
shale and the clay to his facility.  

		You spoke about how the cabs were sealed and they had air conditioning
and HEPA filters.  And I was wondering, as far as the transport of the
material itself, how is that contained in the materials, in the vehicles
that you're transporting it in?

		MR. LATHAM:  They're front-end loaders.

		JUDGE PURCELL:  Identify yourself for the record.  

		MR. LATHAM:  I'm sorry.  This is Bill Latham.  The vehicles are
front-end loaders.  Is that what you're trying to get to?

		MR. J. SCHULTZ:  Well, that was one of the questions I asked, and what
kind of -- 

		MR. LATHAM:  Front-end loaders.  

		MR. J. SCHULTZ:  Okay.  Because I got the impression that some of them
might be dump trucks or other types of vehicles that you would load them
into to transport them into the facility.  So that's what I was getting
at.

		MR. LATHAM:  Getting them into the facility, this is Bill Latham
again, is through a front-end loader.  There are trucks that bring it
from some distances depending on the materials.

		MR. J. SCHULTZ:  Uh-huh.  And how is that contained within those
vehicles?

		MR. LATHAM:  Just a regular -- the front-end loaders as Mr. Brown
said are air conditioned, enclosed with HEPA filters.  The trucks are a
normal 18-wheel truck.

		MR. BROWN:  And they have a tarp over the top.

		JUDGE PURCELL:  You need to speak into the microphone, Mr. Brown, and
identify yourself for the record.

		MR. BROWN:  This is Thomas Brown.  And they also have a tarp over the
bed.  

		MR. J. SCHULTZ:  Okay.  That's what I was inquiring about if there was
some kind of means of keeping that material inside.  

		And so the entire panel here, many of you made point that you have no
cases of silicosis in your industry, and I'm just curious as to how
often, if at all, you send your employees through for silicosis
screening and medical exams that you can say, you know, how often you do
it?  Once every five years, once every year, what is the regularity that
you monitor your employees to ascertain there is no silicosis there?

		MR. LATHAM:  This is Bill Latham again.  First of all, we did not say
that there is no silicosis in the industry.  We are aware of, you know,
some but it's minimal, little to none.  And you heard nobody today,
their particulars are doing that monitoring, and there is no medical
monitoring that I know of that we do when we're not aware of any
silicosis cases.  

		The testimony that Mr. Brown and Dr. Tayler testified to a couple of
weeks ago is that we do some preliminary x-rays and things like that,
just pre-employment, but no after monitoring unless there is a problem
and they get treatment for that silicosis or silica-related illness
which in Acme's situation, we've not had any.

		MR. BROWN:  This is Tom Brown.  We also do a pulmonary function test
annually and fit testing, and that's the screening that we do.

		MR. J. SCHULTZ:  Okay.  So I'm just curious because silica being a
hazard in the workplace, we're all mandated to monitor the hazards, and
I was just curious how often you monitor that hazard to ascertain that
there are no cases of silicosis within your employment.  Thank you.  

		JUDGE PURCELL:  Thank you, Mr. Schultz.  I don't think there are any
further questions from the audience.  I do see another hand over here.

		Sir, if you'll come up to the lectern and identify yourself, spell
your last name and identify your affiliation. 

		MR. BONIFATE:  My name is Joe Bonifate from Arch Masonry, last name
B-o-n-i-f-a-t-e.

		Would you say that you are noticing any silica-related illness at your
facilities because you are currently striving and implementing controls
to reach the current rule's proposed PEL level of 100?

		DR. TAYLER:  This is Garth Tayler.  I think the reason that we are not
experiencing a prevalence of silicosis has more to do with the material,
the nature of the dust, more than the actual devices and practices we
do.  

		I think that the testimony of Mr. Glenn spells it out very well that
the clay materials that the brick industry uses is of such a nature that
it is less toxic and less bioavailable to the lung tissue to the body. 
So I think that is more of the reason why you don't see a high level of
silicosis.

		MR. BONIFATE:  Okay.  Thank you.  

		JUDGE PURCELL:  Thank you, Mr. Bonifate.  

		Any further questions from the audience?

		Not seeing any hands, I'll turn it over to OSHA.  

		MR. O'CONNOR:  Thank you, Your Honor.  On behalf of OSHA, I would like
to thank the BIA and the panel members for coming in to speak with us
this afternoon.  Patti Downs will begin our questioning.

		MS. DOWNS:  Hi, and thank you all for coming today.  This is Patti
Downs.  

		I think, Dr. Tayler and Mr. Brown, you have answered some of these
questions already when you were here last time.  So if I've already
asked you this, feel free to let somebody else respond.  

		Now, you all say that you manufacture clay bricks at your facilities. 
What other type of brick or block do you make there as well?

		DR. TAYLER:  Most of the production -- all of the production is clay
brick, extruded clay brick.

		JUDGE PURCELL:  That was Dr. Tayler responding.  

		DR. TAYLER:  Dr. Tayler, yeah.

		MR. OGLE:  This is Brian Ogle with General Shale.  In our brick
manufacturing operations, we manufacture clay brick.

		MS. DOWNS:  So what about refractory brick?

		MR. OGLE:  This is Brian Ogle.  We do not manufacture refractory
brick.

		DR. TAYLER:  Garth Tayler, Acme Brick does not manufacture refractory
brick.

		MS. DOWNS:  Also, there is a cordless microphone in the back if you
guys want to -- I think you push the button on the bottom and it'll turn
it on.  It might make it easier than trying to -- 

		MR. ANDREWS:  This is Lincoln Andrews.  Clay brick.

		MS. KABOTH:  This is Janet Kaboth from Whitacre Greer.  We do make a
refractory brick but it's made out of clay.  We make a fire brick, a low
duty fire brick which is made with refractory material.

		MS. DOWNS:  Okay.  What is the silica content of that brick?  Do you
know the range?

		MS. KABOTH:  I don't know.  We could probably find out.  I'd have to
find someone in our technical area that does analysis of that 

		MS. DOWNS:  If you could just maybe submit that information with
post-hearing comments, that would be great.

		So, Mr. Ogle, I thought I heard in your testimony you say that you
did manufacture some concrete products then.  Is that at a different
plant or -- 

		MR. OGLE:  Yes, ma'am.  You have different equipment, different
materials, a different process. You do not manufacture the same product
from the same facility.  You extrude brick, which means you have to
process that raw material.  That raw material then comes into your mill
room where it goes through a PugMaster where the moisture content is
monitored and then it gets extruded at a set die pressure and you create
a brick slug.  That brick slug is then pushed through a wire bank where
it's cut into brick like you think of brick.  

		Concrete product manufacturing is a different operation.  Concrete
product manufacturing, you have a raw material that consists of concrete
obviously, an aggregate.  Some concrete manufacturers will use like
flash and things like that in addition.  You bring those materials in. 
You add moisture.  You have a ribbon mixer that typically blends that
material or a pan mixer so that you make concrete like you think of
concrete, and then that material then travels up through and into a
hopper where you have a large mechanical press and the concrete is
dropped into a box.  That box is vibrated to get the air out of it, and
it's put into a press. 

		Now, at that point, that is not a finished product.  Once it comes out
of the press, it's usually on a metal pallet.  It then has to go into a
curing room, and a curing room is nothing more than a room that allows
for -- there's a technical term for it, the heat of evaporation I want
to say is what it's called but the concrete will cure itself much like
wet hay does.  Put wet hay in a barn, it'll burn your barn down.  Well,
it's because it gives off heat.  Concrete gives off heat in the curing
process.  So you put it in the curing rooms.  Once it's been in those
rooms for a set period of time, then it comes out but those are
completely different operations.

		MS. DOWNS:  Okay.  Thank you.  And then I know a few of you have
mentioned that there's been some difficulty getting down to the current
PEL of 100 and maintaining that.  Can you just talk a little bit about
what controls you have put in place and how you've met the 100?  And for
those instances where you have difficulty meeting and staying at the
100, can you tell me what those are and the percentage of the operations
that those account for?

		JUDGE PURCELL:  Dr. Tayler.

		DR. TAYLER:  Dr. Tayler.  We've been able to meet the PEL in areas
such as the extrusion area where there is enclosures around the column
where there's an extraction process going on, dust collection process
and our measurements, they are showing that we're meeting the PEL with a
lot more ease.  

		We have more difficulty in these places I showed you, the grinding
plants where you are processing large tonnages of clay shale type
materials, and the nature of the material is such that it would stick to
the conveyor belts.  There would be a certain amount of dust being
generated by the simple process of crushing and screening and even with
all of those collectors you saw in the slides, we still find difficulty
there in those types of plants to get below that PEL level.  

		And Tom Brown mentioned the use of the control room.  It's a way of
protecting our associates when they operate these plants to be in that
control room to control the operation, but there are times where they
have to come out, and I think I mentioned previously that about 50
percent of the time, the operator has to go out into the grinding plant
to inspect and make sure that the operations is functioning well.  So
under those conditions, we find it difficult to meet the PEL.

		MR. OGLE:  This is Brian Ogle with General Shale.  We have the same
experience.  It's typically in our raw materials processing that we
struggle to meet the PEL using local exhaust ventilation.  

		In the mill rooms, typically we're below, and we use local exhaust
ventilation there.  Also the state of the material is different when
you're in the mill room to what it is in processing because at that
point, you do have moisture that you've been add to it.

		In the packaging end, the finished product, we don't have any problem.
 The local exhaust ventilation normally suffices.

		MS. DOWNS:  Okay.  That was it for me.  Thank you so much.  

		MR. STONE:  This is Robert Stone, and I also want to thank you for
coming and for adding all this material to the record.

		Most of my questions actually are just to try to clarify some of the
data and tables you've provided.  My first question is for
Mr. Leonhard, and you presented a couple of tables, Chart 2 and Chart
3, and I'm curious to know, in each one of them, you had two sets of
three columns or bars.  And I wasn't quite sure what each of the sets
was intended to represent particularly the first one in each table.

		MR. LEONHARD:  Okay.  This is Ray Leonhard.  The first set was OSHA's
numbers.  The second set was using industry data for 2005 and it was
intended to show that it was very close to the amounts used in OSHA to
substantiate the information that we're using, the argument that I'm
making, that the industry is no longer at that level.  So that's why I
used 2005 to show that it almost exactly matched OSHA and then using
current industry data to 2012 shows a dramatic change.

		MR. STONE:  Okay.  Then you added -- for any one of those sets you
said OSHA cost plus 50 percent and that's because that was one of the
tests OSHA suggested.  Is that what you said?

		MR. LEONHARD:  That's correct.  I saw that in an example, and let me
see if I have here with me.  It was on page -- 

		MR. STONE:  I know.  I understand it.  

		MR. LEONHARD:  Okay.  

		MR. STONE:  Okay.  And then you had OSHA plus 150 percent.  I didn't
know where that came from.

		MR. LEONHARD:  That was also in that same example.

		MR. STONE:  Okay.  I'm sorry.  If you would tell me where the second
example comes from.  You were about to give a page number.

		MR. LEONHARD:  Yeah, I believe they're both on page 56368.

		MR. STONE:  56368.

		MR. LEONHARD:  Correct.  

		MR. STONE:  Thank you.  

		MR. LEONHARD:  You're welcome.  

		MR. STONE:  All right.  Then my next questions are for Acme Brick,
probably Dr. Tayler, if that's okay.  

		You had some information about a shale plant and provided some costs
for that.

		DR. TAYLER:  Exactly.

		MR. STONE:  Pardon my ignorance, but is a shale plant also a type of
clay plant, clay brick or is it different?

		DR. TAYLER:  This is Garth Tayler.  

		The clay minerals that we work with, the terminology shale, is the
term used for a more what we call illitic clay.  In other words, it's an
aluminosilicate with a much higher mica content and it tends to be laid
down with a different mechanism.  It tends to be more dense and there's
some differences to the physical characteristics but in terms of clay,
clay mineral, shale and clay, the basic formulations is the same.  The
only difference is the shale tends to be a little more dense and it has
a much higher mica content.  

		MR. STONE:  Okay.  Thank you.  And you indicated or I inferred that
the cost for the shale plant, that you were estimating costs to meet the
proposed bill, would be higher than they would be for the clay plants. 
Is that correct?

		DR. TAYLER:  That's correct, yes.  I alluded to that in that the
shales tend to be drier as Brian has mentioned and more difficult to
deal with.  In the Acme Brick plants, we have six plants which use shale
materials with this same challenge, and the clay plants tend to be a
little easier to work with because the inherent moisture contents tend
to be a little higher.  So the dust generation through the processing is
a little easier.  

		MR. STONE:  Thank you.  Are the shale plants a big larger than the
clay brick plants or similar?

		DR. TAYLER:  Similar.

		MR. STONE:  Similar.  Okay.  Okay.  I think that's all for you.  Thank
you.  

		I have a couple of questions for Ms. Whitacre Greer.  This is fired
brick, right?

		MS. KABOTH:  I'm sorry.

		MR. STONE:  Your plant produces a different type of brick, fired
brick?

		MS. KABOTH:  Yeah, we produce a low duty refractory which is also made
out of clay and we produce a paving brick.  They're clay products
though.  

		MR. STONE:  Okay.  Clay refractory.  

		JUDGE PURCELL:  That response was by Janet Whitacre Kaboth.

		MS. KABOTH:  Oh, I'm sorry.  

		JUDGE PURCELL:  That's all right.

		MR. STONE:  You indicated you had 80 employees or so.

		MS. KABOTH:  Yes, this is Janet Kaboth.  Yes, that's correct.

		MR. STONE:  Thank you.  And about how many do you think would be
affected by the rule, would be potentially exposed to silica during
operations?

		MS. KABOTH:  To be honest, I really don't know.  As I said in my
testimony, oh, again, this is Janet Kaboth, I'm not a technical person. 
So I would have to go back to my plant and ask the people who are in
charge of that area and say how many?

		MR. STONE:  Okay.  And you indicated you're trying to get a loan now,
not related to this proposed rule obviously.  You are actually seeking a
loan from a bank at this point, or is this hypothetical?

		MS. KABOTH:  No, no, I have been seeking a loan actually.  It's been a
long process.

		MR. STONE:  Okay.  But this isn't tied to meeting the current PEL of
100?

		MS. KABOTH:  No, this is Janet Kaboth.  The loan we've been looking
for is to finance modernization.  We're too small to be able to do it
all at once.  We had to break it into smaller pieces.  So this is for
the next piece of the next modernization is why we've been looking for
the bank loan.

		MR. STONE:  Okay.  And do you think you're currently able to meet the
PEL of 100, the current PEL?

		MS. KABOTH:  I think so, but I again don't know for sure.  

		MR. STONE:  Okay.  Thank you.  That's all.  I appreciate it.

		Then, Mr. Rice, I have a question.  You're not in the manufacturing? 
Are you a distributor or are you a manufacturer?

		MR. RICE:  This is Joe Rice.  I'm a distributor.

		MR. STONE:  Okay.  

		MR. RICE:  I work for a manufacturer.

		MR. STONE:  Okay.  Oh, okay.  

		MR. RICE:  They're my shareholders.  

		MR. STONE:  Okay.  So you're not personally regulated by this rule
exactly.

		MR. RICE:  No.

		MR. STONE:  Okay.  I was just curious.  I think you said that masons
rarely have to cut brick.  Is that right?

		MR. RICE:  This is Joe Rice.  Yes, that's correct.

		MR. STONE:  Okay.  And when they do, they don't wet cut?

		MR. RICE:  No, they do wet cut.  Commercial they always wet cut.

		MR. STONE:  Oh.

		MR. RICE:  There's no such thing as a non-wet cut.  That was a
commercial site.  

		MR. STONE:  Okay.  Sorry.  

		MR. RICE:  Brick typically don't have to be cut.  If you lay out your
walls -- 

		MR. STONE:  Right.

		MR. RICE:  -- you're not cutting brick.

		MR. STONE:  Right.  You said rarely cut brick.

		MR. RICE:  Rarely.

		MR. STONE:  And you indicate that there is some importing of brick
from Germany.

		MR. RICE:  Yes, there is.  Well, I just started it actually.  I'm the
innovator.

		MR. STONE:  Oh, okay.  Because this is a question actually for the
entire Panel.  My understanding is that there's very little foreign
competition in the brick market.  Would you all tend to agree with that?

		MR. RICE:  No, I bring in plenty of brick from Canada.

		JUDGE PURCELL:  That was Mr. Rice responding.

		MR. RICE:  Joe Rice responding.  Plenty of brick from Canada.

		MR. STONE:  Okay.  

		MR. RICE:  And Mexico comes into play when it comes to Texas, Oklahoma
or Arkansas.

		MR. STONE:  Okay.  

		MR. OGLE:  This is Brian Ogle with General Shale.  Some of us might
have limited knowledge of that because we primarily are in the
manufacturing side, and the sales folks would probably be able to tell
you -- 

		MR. STONE:  Okay.  

		MR. OGLE:  -- who is more their competition than we could.  

		MR. STONE:  Okay.  But it's not zero competition anyway.  There is
some competition from foreign competitors.

		MS. MILLER:  This is Susan Miller.  Our competition isn't just brick. 
Our competition comes more from other cladding materials like vinyl
siding and HardiePlank and things like that.

		MR. STONE:  Thank you.  Because I think this is my last question on
this subject, and I think Mr. Latham might be the right person but it
could be for any of you.  

		You indicated that brick prices fell 13 percent from 2006 to 2013, and
I'm not expecting you to provide an economic forecast but to what extent
do you think this might be a result relative to the prices of substitute
materials?  Did the substitute materials you think fall commensurately
during the great recession or do you think that brick suffered relative
to other materials?

		MR. OGLE:  This is Brian Ogle.  I'll take a stab at that.  That is a
very complicated answer.  The reason that is a complicated answer is
because the market changed.  Those of us that grew up with parents that
had a house, they bought that house, they lived in that house until they
retired and they still live in that house, that generation, that idea
and that mindset no longer applies to today's market.

		Today's market is a transient market.  The younger generation, after
they graduate school, they move to where the jobs are.  So we fight for
wall share on a home and the builder who looks at their profit margin as
well, they look at what claddings they can put on that house so they can
maximize their margin as well.  

		The homeowner will sacrifice to have a granite countertop.  They'll
sacrifice to have a stainless appliance suite.  They'll sacrifice to
have some other amenity because they know that the average life
expectancy in a home is between five and seven years.  They don't look
at it from an investment for 20 years.  This is it.  And that's average.

		Now, again, you know, there's the extremes in between that.  So we
fight for wall share and we fight for very hard for wall share, and we
do fight with HardieBoard and we fight with vinyl siding, and again when
you're coming at someone who's looking at, well, I can make this
purchase, I can put X in it, and in five years I'm out, and make a small
bit of a profit, and I can have my granite countertops, why would I
purchase brick.  

		MR. LATHAM:  Another factor, too -- 

		MR. OGLE:  Bill Latham.

		MR. LATHAM:  -- yeah, Bill Latham, is that there are a lot of new
products that have come in to compete with brick and also just areas of
the country.  I mean in the southeast and across all the way to probably
Texas, you know, brick is still more competitive than anyplace else
because of just the stature of brick.  Some of the other, northeast and,
you might address this more than I can, you know, brick is not
necessarily the first choice of things.

So it is a very difficult to do that.  

		Is there other factors pushing down the cost of brick other than just
the recession?  Absolutely, yes, new products and things like that.

		MR. OGLE:  This is Brian Ogle.  One last thing on that. 
Transportation of raw materials.  The reason you put your brick plant
close to where your raw material comes from is because you lose money
every time it goes in the back of a truck and goes up the road.  You've
got to pay for that.  So the longer it's on the highway, the more money
it's costing you.  That cost has got to be absorbed somewhere.

		MR. STONE:  Okay.  But that would explain perhaps why you want to
build your plants next to your market.

		MR. OGLE:  Next to the market and next to raw material.

		MR. STONE:  Okay.  That's all for me.  Thank you very much.  

		JUDGE PURCELL:  Thank you, Mr. Stone.  Any further questions from the
OSHA Panel?

		MR. SCHAYER:  Hi, my name is Steve Schayer from OSHA.  I have a couple
of quick questions for Dr. Tayler.  

		One is just a point of clarification.  So on slide number 8 in your
presentation which was the table of nine studies, we noticed that the
data there is a bit different from what Mr. Glenn presented last week,
specifically the number of silicosis cases in the West Virginia Health
Department study now reads 2 instead of 15, and the number of silicosis
cases in the Love study now reads 0 instead of 25.  So we didn't know if
you were aware of that.

		DR. TAYLER:  Which are you referring to?

		MR. SCHAYER:  So the top one there that says West Virginia, and then
it says number of silicosis cases.  In Mr. Glenn's table, it said 15
and now it says 2, and down towards the bottom, the Love 1999 study, it
now says 0 and previously on March 20th, Mr. Glenn's testimony had said
25.

		So we're not sure if that's just something typographical or if there
was a reason for the change.

		DR. TAYLER:  I see it as printed in his paper here.  So this is his
latest version.  It could be -- this one is January 27th.  We can look
into that.

		MR. SCHAYER:  Okay.  Maybe if you could let us know, that would be
great.

		And the other question I had, too, was just you had mentioned pottery
workers.  So I didn't know if you were familiar at all, I know
Mr. Glenn isn't here, but with the Chen 2005 study, in which they
showed that the risk of silicosis in pottery workers, you know, while
lower than that in miners in the study, it still existed.  

		DR. TAYLER:  We'll have to check with Mr. Glenn.

		MR. SCHAYER:  Okay.  Okay.  Thank you very much.  Those were my
questions.  

		JUDGE PURCELL:  Okay.  Thank you.  Further questions from OSHA?  

		MR. O'CONNOR:  Yes, I just have a couple of questions here.  We had
heard a bit about the medical surveillance that Acme Brick conducts, and
I was wondering if the representatives of the other companies here today
would be able to describe what, if any, medical surveillance is done in
their facilities.

		MR. OGLE:  This is Brian Ogle with General Shale.  We follow suit kind
of with Acme.  We do our annual silica testing that we do throughout all
operations of the company.  We do the pulmonary function tests.  We do
the fit tests.  We do the medical questionnaire in accordance for those
areas that we can't get to the 100 PEL or less.  

		That's primarily the screening process that we have at General Shale.

		MR. O'CONNOR:  Okay.  And the pulmonary function testing, do I
understand this to be related to respiratory protection and what's
provided there and providing clearance to use a respirator?

		MR. OGLE:  Yes, sir.  This is Brian Ogle with General Shale again. 
Yes, sir.  That is what we do.  We have varied areas.  When you have
200,000 plus square feet under roof, you have some areas of the
operation that do, some that don't.  We post Appendix D so that, you
know, we provide the filtering face pieces in case the employee still
would like to use those, and they do, but we always want to make sure
that they can.  So that's part of that process that we go through.

		MR. O'CONNOR:  Okay.  And that would not include chest x-rays, would
it?

		MR. OGLE:  No, sir, not in all of our locations.  We do not do chest
x-rays in all locations.

		MR. O'CONNOR:  Okay.  Thank you.  

		MR. OGLE:  That was Brian Ogle.  Sorry.

		MR. O'CONNOR:  Yes.  Would anyone else be able to weigh in on that?

		JUDGE PURCELL:  Mr. Andrews, any comments?  

		MR. O'CONNOR:  Okay.  Just one further questions.  Mr. Ogle, you had
mentioned, if I understood correctly, that the proposed PEL would result
in you needing to lower the dust levels inside the plant to lower than
it is outside the plant, and we also saw a photograph is one of your
slides, the Midland dust storm, that was presented here.  I don't think
that was necessarily from you directly, Mr. Ogle, but in the BIA
presentation, and I was just wondering if you or any of the other Panel
members had any sampling data to indicate what the environmental
exposures were.

		MR. OGLE:  We have done some testing where our -- this is Brian Ogle
with General Shale.  We have done some testing outside primarily because
of the proximity of the area that we extract our raw material from to
the plant.  If you noticed in that slide that Mr. Brown had, you saw
dirt.  You saw dirt everywhere if you paid attention.  The roads were
dirt.  The concrete platform leading up to where you dump your raw
material in the first hopper, it's dirt.  So while I do have some
because we went to monitor what our mine sites have, I do have some
outside.  

		I've never set a sampling device up, an impinger, outside of the plant
and just let it run just to see what that number is.  

		So, again, I use my judgment, and part of what you evaluate on your
mine sites is you do a visual evaluation.  That's part of what they want
us to do and we do, and so I use my own judgment, and there are times
when it's dry and you've not had rain, and you don't have concrete and
you don't have asphalt, that dust level will be greater than what's
inside the plant, and that's at the whim of the good Lord.  That's
something that when the wind comes and blows, if you've got your doors
up, to let a nice flow of air to come through, we have a coop lid that
goes down the ridge line of our plant so that we can have air
circulations because the tunnel kilns operate at a pretty high
temperature.  But if your doors are up, you definitely will.  You will
be over.  I guarantee you will be over in those situations.

		MR. O'CONNOR:  Okay.  And if I understood correctly, is there some
mining operation that's associated with this that's creating this dust
that you were sampling for?

		MR. OGLE:  You have to extract raw material from the earth in order to
process it.  Therefore, you dig dirt.  You dig shale.  You dig the clay.
 It has to come out of the ground.

		MR. O'CONNOR:  Okay.  So this is the source of that dust that's -- 

		MR. OGLE:  It could be.

		MR. O'CONNOR:  -- potentially getting into the building?

		MR. OGLE:  It could be the plowed field.  This is Brian Ogle again. 
It could be the plowed field that the neighbor right beside you plowed. 
It could be your neighbor across the street.  It could be a lot of
things.  It could be the dirt road that leads to your particular area. 
To specifically say that that's always the cause, no, sir, I wouldn't
agree with that statement.

		MR. O'CONNOR:  Okay.  

		MR. LATHAM:  This is Bill Latham.  What I'd add to that is that the
plants are not always next to where you're mining.  It could be
different locations, and the photograph you saw of the Midland storm, we
don't have a plant in Midland.  That's real, just everything from the
environment, whether it comes from Colorado or New Mexico or the
environment around there.  So you cannot assume that the outdoor
environment is caused by the operations of a brick plant.  

		MR. O'CONNOR:  Yes.  I guess what I was getting at there is in looking
at a photograph such as that, there is clearly a lot of dust.  I just
wasn't quite sure what the measured levels of respirable crystalline
silica would be.  So I was really curious if there was any data to
reflect that.  

		MR. OGLE:  This is Brian Ogle.  We can certainly look and see what
we've got on file.  We can do that, and if we've got something, we'll
send it to you.

		MR. O'CONNOR:  Okay.  Thank you very much.  I appreciate that.

		DR. TAYLER:  Garth Tayler.  We don't have any data at all.  If we do
find those types of conditions, we hold back, and it's pointless to try
to do any testing.  So we hold back and wait for better conditions.  

		MR. OGLE:  This is Brian Ogle.  One other thing that you do is, we're
in the Southeast and Mid-Atlantic, primarily east of Mississippi, but we
do have locations west of the Mississippi.  You can't mine year round. 
When it's raining outside, you can't mine.  There's no way to extract
the material.  You're extracting mud.  

		So if you remember from Tom's slide when he showed you the back of the
plant, you saw a series of what looked like loaves of bread, and those
are stockpiles.  So what you do is when you can mine, you stockpile your
material.  

		Some people even blend their material in their stockpile because
another conversation that this brings up is, you know, you don't dig out
of this hole, stick it in the hopper and make brick out of it.  You may
be blending five different materials.  You may have a material that
comes from this particular location.  You may have 10 percent come from
there, 10 percent come from a second location that's 20 miles up the
road, 40 percent comes from another location that's 50 miles down the
road.  

		You bring those materials in, you stockpile those materials, and then
when you can't mine, you draw out of those materials.  So that's another
part of our process that we have to contend with.

		MR. O'CONNOR:  Thank you.  I believe Robert Stone has another
question.  

		MR. STONE:  Right.  Thank you.  This is sort of a follow-up question
for Mr. Rice.  It has to do with foreign competition again.  

		If you do have foreign competition, is it for a specialized brick, a
more expensive brick typically?

		MR. RICE:  This is Joe Rice.  Typically it is a more expensive brick. 
There have been innovations in Europe that we just haven't caught up to,
different sizes, different colors, different processes.

		MR. STONE:  Okay.  That's it.

		MR. O'CONNOR:  Thank you.  

		JUDGE PURCELL:  Thank you.  Ms. Ryder, do you have any questions?

		MS. RYDER:  Yes, I have a few questions for you all.  

		JUDGE PURCELL:  Please pull the mic a little closer -- 

		MS. RYDER:  Sure.  

		JUDGE PURCELL:  -- so we're sure to get it on the record.

		MS. RYDER:  Sure.  For Mr. Leonhard, just a follow up on the Chart 1
and 2 of the PowerPoint presentation.  You might have said this already,
but you said that those numbers were derived from industry data looking
at the bar graphs that say 2005 industry and then 2012 industry.  Is
that the BLS data that OSHA's numbers are based on, or is that some
other data source?

		MR. LEONHARD:  This is Ray Leonhard.  We took that information -- I
took that 2005 and 2012 data that's there is from the brick industry
annual report and that's why I showed the 2005 data from that report
very closely matches what OSHA uses.  So I was trying to do a validation
there to show that the data that we used for a similar period of time
that OSHA used matches our industry report whereas the 2012 data are
current and more reflective of our current financial situation that OSHA
does not reflect. 

		MS. MILLER:  This is Susan Miller.  Just as a little follow up, these
are our industry costs, OSHA's rule costs.  We're not saying by this
that we agree that your costs are accurate.  As a matter of fact, we
agree with the ACC Silica Panel that they're not just off by 150
percent.  They're off by a lot more, but just to show you the difference
in using the data from 2005 to 2012, that's the purpose of these slides.

		MS. RYDER:  Okay.  I guess just to follow up, what is the source of
the BIA annual report?  Is that some sort of survey that you're doing or
-- 

		MR. LEONHARD:  Yeah.  This is Ray Leonhard again.  As I mention in my
testimony, it's a combination of things.  It's a survey of manufacturers
and distributors, both members and non-members.  It uses public
information like U.S. Census Bureau.  It uses private information like
the National Association of Home Builders and other sources.  

		Tucker Worldwide is the firm that we hired to pull all that
information together and do the analysis for us.  They have their own
proprietary database that they also contributed to that report.  So it's
a number of different sources all compiled together for a comprehensive
look at the industry.

		MS. RYDER:  Okay.  And then is the source for the numbers on Chart 1
the same?

		MR. LEONHARD:  That's correct.  

		MS. RYDER:  Okay.  

	 	MR. LEONHARD:  Again, that's why I was showing the 2005 information
from that industry report very closely matches what OSHA had.  So I was
trying to validate the information in the report compared to what you
were using for the similar period of time.

		MS. RYDER:  Okay.  So are you planning to submit your source to the
record if you haven't already or am I understanding that you think the
source is okay?  It's just that the year of the data is not as
up-to-date as it should be.

		MR. LEONHARD:  Well, that's the whole argument is that the information
that OSHA was using is no longer reflective of the current financial
condition of the industry.  We are a third of what we used to be.  So to
use data that was a record year as the basis for determining how we can
absorb this rule is not appropriate.  So that was the whole point of
that information.

		MS. RYDER:  Okay.  Sorry if I'm belaboring this point, but the source
isn't the issue.

		MR. LEONHARD:  No, the source is not the issue.

		MS. RYDER:  Okay.  

		MR. LEONHARD:  The timeframe of the financial data is the issue.

		MS. RYDER:  Okay.  All right.  Thank you.  

		MR. LATHAM:  Let me add to that.  This is Bill Latham.  We do not
agree with the cost estimations, but purely the profit aspects of that
as Mr. Leonhard has already pointed out.

		MS. RYDER:  Okay.  

		MR. LATHAM:  I want to make that clear.

		MS. RYDER:  Okay.  Thanks.  Okay.  I have a few other questions. 
Ms. Kaboth and maybe Mr. Andrews, for either of you.  Do either of you
have any type of exposure monitoring that you're doing right now in your
facilities?

		MS. KABOTH:  I don't really know to be honest.  I have to find someone
who does that every day and ask them.  So -- but I can find out if you
want me to.

		MS. RYDER:  Sure.  If you can, and then I think it would be useful for
us if you have any data, any sampling data, if you would submit that to
the record during the post-hearing comment period.

		MS. KABOTH:  I will look at see what we have.

		MS. RYDER:  Okay.  

		MR. ANDREWS:  Hi, Lincoln Andrews.  I do care about my employees.  I
invited OSHA into my facility back at the start of the second Gulf War
and my foreman brought OSHA in, for a compliance test, and we had the
entire facility gone through over I believe it was a two year process,
including what was a silicosis sampling, and we had I believe two areas
which we were able to modify with some engineering controls.  

		Subsequently, OSHA came in after that experience and this we had our
entire facility monitored and we made every single change from OSHA.

		My daughter told me not to talk about this, to kind of like take the
angry out of the speech.  

		So then OSHA came in and inspected me two years later, and I was fined
in vicinity of 70 or 80 thousand dollars.  I can't remember the exact
number, and I was fined for things, this is right after the inspection,
done the voluntary inspection, and I have 24 fans in my facility. 
They've been inspected since 1979.  They've been guarded according to
OSHA standards multiple, multiple times.  

		I was fined, I believe the number was $1700 per fan.  It was
exorbitant.  As a small business man, it is very intimidating when OSHA
comes in, especially when you are doing everything you can to help your
employees.

		Then came the health inspector, and she was conducting monitoring,
lapel monitoring.  She couldn't speak English, and she thought we were
lying to her, and that initiated a whole other round of problems for us.

		And the upshot of the whole thing was that we had one job that
comprised approximately 10 hours of work, basically cleaning in a
confined area, where we instituted engineering controls and a NIOSH mask
and were fined, and that is now a permanent part of that person's job. 
We were within acceptable PEL levels to the best of my knowledge for all
the other places.  

		However, if this is instituted, based on what I know right now, I will
be out of business.  I'm not joking.

		MS. RYDER:  Just to follow up, is my understanding incorrect that you
don't have any type of routine exposure monitoring that you're doing in
your facility?

		MR. ANDREWS:  That's correct.  

		MS. RYDER:  Okay.  

		MR. ANDREWS:  Frankly, I couldn't afford to.  Right now you've heard
about the condition our industry.  I am personally financing the losses
of the company, and we talk about profits.  I don't have any profits. 
I'm literally going to the bank and financing my losses, and it's only
through the strong relationship that I have with my bank that I am able
to do that.  And it's only one reason why I'm doing that.  Only one. 
And that is to provide my employees with a place to make money.  It
sounds hokey.  It sounds false, but it's the truth.  

		MS. RYDER:  I have a few questions for some of you about the types of
work that you're doing with the bricks, if you're doing any abrading or
engraving processes or any type of cutting in your facilities.  Maybe
some of you want to talk about that, maybe Mr. Ogle, Ms. Kaboth, and
Mr. Andrews again.

		MR. ANDREWS:  I can start with that one.  Lincoln Andrews.  We do many
engraving projects.  We subcontract all of it out to a laser engraver. 
Engraved brick at least in New England is no longer done with
sandblasting.  It is all done with a laser beam.  And what was your
second question?

		MS. RYDER:  I was just -- 

		MR. ANDREWS:  Abrading of brick.  

		MS. RYDER:  I've seen like tumbling processes.  I'm not really sure
what that is, if any of you do that.

		MR. ANDREWS:  No, we do not do any tumbling process, but we do do
brick cutting, all of it with a wet saw, and everybody is wearing full
protective equipment.

		MS. RYDER:  Okay.  Thank you.  

		MR. OGLE:  This is Brian Ogle with General Shale.  You tumble the
product to tudor it.

		MS. RYDER:  I'm sorry.

		MR. OGLE:  You tumble the product in order to tudor, t-u-d-o-r, tudor
the product.  You can do it when it's green or you can do it when it's a
finished fired product.  People like antique brick.  They like brick
that has, in certain areas, again it depends on your market, where
you're at, but they like brick that quite frankly has been beat up.  

		So you take on the green side, after it comes out of the extruder,
there's a lot of ways you can do this, but it literally falls down a
ramp, okay, after the fact.  A fired product, in other words, you've
taken the brick through, it's gone through vitrification.  You've got
your finished product out the end, a pretty red brick that you think of.
 

		You can take that product, and there are a various number of ways of
doing that, too, but you basically put it in a big tumbler, which is a
big long barrel and you tumble it, and you let it beat up and it chips
it and it dings it.  

		So when the mason comes along and does the installation process, you
don't have clean neat lines.  In architecture, they like clean, neat
lines.  They like straight.  They like everything pretty.

		When you get into the residential market, uh-uh, not so much.  And
then again, some of the other architects, too.  I'm not getting into
Joe's world.  He'll eat me alive.  But they like beaten up products.  So
we do do that.

		Do we engrave products?  I can't remember when we've engraved brick. 
I'm not real sure.  Has General Shale ever done it?  Probably at some
point in our history, and that's since 1928, we probably did.  

		I will tell you that we do use a water jet to cut into our calcium
silicate product which is not a clay product.  It's a totally different
product, and that's where you can draw someone's home address so that
when it's laid into a wall, it's nice and pretty.  Does that help?

		MS. RYDER:  Sure.  Yeah.  And I think you touched on the tumbling,
that's in an enclosed structure or something?

		MR. OGLE:  In the green -- this is Brian Ogle with General Shale. 
When you tudor the product when it's green, no, it is not because
there's no need.  It's mud.  It's very thick mud.  It has a high
plasticity content to it.  We could take and put our -- and your
thumbprint would be in that brick henceforth forever more.  

		The product, after the fact, the tumbled product, the brick that has
come out of the tunnel kiln, that you have to have a local exhaust
ventilation system set up on that to capture that material and take it
away while you're employees work with it -- 

		MS. RYDER:  Okay.  

		MR. OGLE:  -- because that is a dusty operation.  

		MS. RYDER:  Okay.  So you said you have the 

LEV apparently.

		MR. OGLE:  Yes.  

		MS. RYDER:  Okay.  

		MR. OGLE:  Yes.  

		MS. RYDER:  Okay.  Ms. Kaboth, did you want to weigh in.

		MS. KABOTH:  This is Janet Kaboth from Whitacre Greer.  We do not
engrave any brick.  We sell to people who do engrave the brick but we
don't do any of that ourselves. 

		We do make a tumbled brick using the same process that Brian just
described, make it look old.

		MS. RYDER:  And do you have that same type of LEV currently that
you're using as an engineering control at the same time?

		MS. KABOTH:  Well, actually we do it after it's been fired.  We have
an old cement mixer that we use.  But we do have controls on it so the
dust stays under control.

		MS. RYDER:  What kind of controls are you using right now for that?

		MS. KABOTH:  I'm going to have to find someone who knows.

		MS. RYDER:  That's fine.  And if you do find out that information, can
you submit that information to us during the post-hearing comment
period.

		MS. KABOTH:  Okay.  Thank you.  

		MS. RYDER:  Okay.  Thanks.  

		MR. RICE:  Belden Brick Company doesn't cut or do any post-fired
tumbling at all.  It's only molded.  And a follow up to Mr. Stone's
question before, I'm sorry -- it's Joe Rice.  I didn't -- you just asked
me about the German manufacturers.  The Canadian and the Mexican brick
is much cheaper.

		Actually in Canada, brick falls under the Department of Forestry. 
They call it the Ministry of Forestry, and it's subsidized by the
government.

		MR. STONE:  Okay.  Brick from Mexico and Canada then, is it mainly
sold just across the border because of the transportation costs or -- 

		MR. RICE:  Anywhere.

		MR. STONE:  -- throughout the United States?

		MR. RICE:  I have railcars going everywhere.

		MR. STONE:  Because in Canada, it's subsidized, and Mexico, the costs
are cheaper.

		MR. RICE:  It's cheaper, right.

		MR. STONE:  Okay.  Thank you.  

		MR. LATHAM:  It's not the same quality of U.S. brick though.

		MR. STONE:  Okay.  

		JUDGE PURCELL:  That was Mr. Latham for the record.  

		MS. RYDER:  I have a few more questions.  One for Mr. Ogle again.  I
think you mentioned that you have some facilities in Canada.  Can you
tell us if any of those are in the provinces that have the PEL of 25? 
And if so, how are you complying with it in those areas?

		MR. OGLE:  We have -- this is Brian Ogle with General Shale.  We have
one operation in Cambridge.  We have a mothballed operation in Quebec. 
We have an Adair quarry in Wiarton, Canada.  I'm not sure which province
that is, and then we also have a sand operation in St. Petersburg I
think is the name of the area.  I don't know what provinces those are.  

		We have a full-time safety and health professional based out of the
Cambridge location, and they've done a lot of engineering controls and I
know that we sample there quarterly.  That's a quarterly cost that we
do, the Ministry of Labor there.  It's a little different relationship
with the employer and the Ministry of Labor than what we have here in
the states but they use local exhaust ventilation.  They have actually
tried to substitute getting texture on some of the products there by
getting away from the blasting and using a different mechanism to do
that, and for their calcium silicate product, they can do that.  Again,
it's not a clay product that's we manufacture in Canada.  It's a
different material.  It's a calcium silicate product, a totally
different animal.  It's manmade rock.

		MS. RYDER:  Okay.  

		MR. OGLE:  But it's manmade rock in such a way that you have it
through the body color.  If you've ever noticed, manmade stone, when a
mason goes to lay an interior fireplace or something like that, when
they get to the point where they have to make a turn or they have to
make a rock fit a certain place, when you chip it, it changes color, and
they'll have to coat it because it's a veneer.  Our manmade stone is
through the body.  So when you chip it, you have the same texture and
you have the same color throughout so you don't have to go through that,
but it is not a clay product.

		MS. RYDER:  So none of your facilities in Canada are brick
manufacturers?

		MR. OGLE:  They are not clay brick manufacturers.

		MS. RYDER:  Not clay.  

		MR. OGLE:  No, ma'am.  

		MS. RYDER:  Okay.  All right.  Mr. Latham, I have a question for you.
 You made a reference to people developing silicosis from living in
Lubbock, Texas.  I was just wondering, is that a hypothetical or do you
have any, you know, evidence or data that silicosis, some people develop
silicosis solely from environmental, non-occupational exposure?

		MR. LATHAM:  Purely a lawyer making just a general statement.  I don't
know of anybody that has silicosis quite honestly.  

		MS. RYDER:  Okay.  

		MR. LATHAM:  But I mean I'm just assuming that there are people that
have silicosis that you don't know where they got it.

		MS. RYDER:  Okay.  

		MR. LATHAM:  I do not have any studies or any information in that
regard.

		MS. RYDER:  Okay.  I have a question for Ms. Miller or for anyone
from the BIA.  I just wondered if you put out any type of guidance
materials for your members for how they can implement engineering
controls or what tactics they can use to reduce their exposures in their
facilities of respirable crystalline silica?

		MS. MILLER:  This is Susan Miller.  Before my time, I know there was a
manual that was developed that talked about silicosis, and some of these
guys may remember it because it was before I came on board at BIA.  It
has not been updated recently.  We do a lot to try to update people on
the regulatory side of things and that would be something that we would
be hoping to do in the future but right now like I said, we're small. 
We tend to focus on the most urgent need, and right now it's this
regulation, and we've done a lot to let people know of the regulation
but have not updated that manual.

		MS. RYDER:  Is that something that's already been submitted to the
record or is it just that it's so outdated that -- 

		MS. MILLER:  I saw its existence.  I don't know a lot about it.

		MS. RYDER:  Okay. 

		MR. OGLE:  This is Brian Ogle with General Shale.  I'd like to comment
on that last question.  

		What would you change?  Our process is the extraction of raw material.
 That raw material gets moisture added to it, gets extruded and it gets
fired, and it gets packaged.  We use local exhaust ventilation.  We look
at steps.  I mean that's part of who we are.  I mean we're proud when
someone comes into a General Shale plant.  Like I say, we're not
perfect.  Nobody is but we are quite proud that when you walk in our
plant, the first comment you will make is, wow, because we keep our
plants clean, not because we're just trying to keep in compliance with a
rule.  That's a lot of investment and it's a lot of dollars and that's
who we are. 

		I don't know what Susan could provide to us that we don't know.  And I
say that with all due respect.  Local exhaust ventilation is about what
you're going to do.  In the past, we've tried fogging nozzles with no
success.  I say that, General Shale has in our grinding areas.  I don't
know about the other operations.  As a matter of fact, I just pulled one
out of one of our operations last year because it did not add to
decreasing the silica content.  Quite frankly, it made a big mess.  

		So we do try to and for when we tudor or for when we do that, you
know, as part of going into that, you've got to have a baghouse.  Okay. 
We're going to be doing this.  We've got to have a baghouse.  So you
engineer that in at the get go.  

		I don't know what other technologies that we could use.  I'm not
saying we don't have it, but I don't know what else that we don't know
because that's our business.  That's what we do when we go to work every
day.  That's what we do.

		MS. MILLER:  But as an industry, as you hear these people around you,
this is Susan Miller again, there's a lot of sharing of lessons learned
and that's why I say, we may be small but it's an amazing group of
people to work with because they do share on issues like that. 
Somebody's learned a lesson learned or, you know, careful if you go this
way.  That kind of stuff happens all the time on all kinds of issues.

		MS. RYDER:  Okay.  And last or a couple of weeks ago, we heard from
Acme Brick that they have an action level of 50 µg/m3.  Do any of the
rest of you on stage utilize any type of action level where you're
trying to keep your exposures at or below?

		MR. OGLE:  This is Brian Ogle with General Shell.  We do not have a
different action level.  No, ma'am.  

		MS. RYDER:  Or any action level.  Is that what you mean?

		MR. OGLE:  We try to comply with the current rule.

		MS. RYDER:  Okay.  Ms. Kaboth.  Anyone else?

		MR. ANDREWS:  Ditto.

		MS. RYDER:  Ditto.

		JUDGE PURCELL:  Who was that?

		MS. RYDER:  Mr. Andrews.  

		JUDGE PURCELL:  Mr. Andrews.

		MS. RYDER:  Ms. Kaboth, do you have anything like that?

		MS. KABOTH:  I'll add it to my list of questions to ask when I get
back.

		MS. RYDER:  Sure.  Ms. Kaboth, I have one more question for you I
think.  I took a look at your website.  I noticed that you guys have --
it seems like you guys are in the process of building a new facility or
you already have.

		MS. KABOTH:  We're -- 

		MS. RYDER:  If you want to tell us a little bit about it.

		MS. KABOTH:  We're not building a new facility.  I wish we were.  That
would be nice if we could borrow that much money but we can't.  We tried
for that first.  Our current plant was probably -- well, it was built in
the early 1920s.  We bought it in the '70s.  Most of the equipment and
things are pretty much from the '50s.  

		So we are trying to update our facility.  The first part of that was
built a new grinding room and in the new grinding room, we did adhere to
all the regulations especially concerning dust because that was one of
the reasons we had to get a new grinding room.

		The next part of the process we're trying to borrow enough money to
renovate one of our kilns which was built in the '50s, so that it will
be more efficient energy-wise and it'll make a better product.  

		MS. RYDER:  Okay.  All right.  That's all for me.  Thanks.

		MR. O'CONNOR:  And that concludes OSHA's question.  Again, I'd like to
thank the panel for appearing and testifying this afternoon.

		JUDGE PURCELL:  I'd also like to add my thanks to the panel.  Ladies
and gentlemen, I appreciate your time and effort in your presentation. 

		That will conclude Day 11 of the OSHA rulemaking hearing.  We'll
resume tomorrow morning at 9:30.  With that, we're adjourned.

		(Whereupon, at 5:30 p.m., the hearing was continued, to resume the
next day, Wednesday, April 2, 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

April 1, 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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Free State Reporting, Inc.

1378 Cape St. Claire Road

Annapolis, MD 21409

(410) 974-0947

			 

Free State Reporting, Inc.

1378 Cape Saint Claire Road

Annapolis, MD 21409

(410) 974-0947

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Free State Reporting, Inc.

1378 Cape St. Claire Road

Annapolis, MD 21409

(410) 974-0947

			 

Free State Reporting, Inc.

1378 Cape Saint Claire Road

Annapolis, MD 21409

(410) 974-0947

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