INFORMAL PUBLIC HEARINGS FOR THE PROPOSED RULE

ON OCCUPATIONAL EXPOSURE TO

RESPIRABLE CRYSTALLINE SILICA

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UNITED STATES DEPARTMENT OF LABOR

OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION 

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April 2, 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):

ALLISON KRAMER

Attorney, Office of the Solicitor

ANNA LAURA BENNETT

Attorney, Office of the Solicitor

OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION (OSHA):

WILLIAM PERRY 

Acting Director, Directorate of Standards and Guidance 

ROBERT BLICKSILVER

Office of Regulatory Analysis - Health 

PETER ANDREWS

Office of Chemical Hazards - Metals

DAVID O'CONNOR

Director, Office of Chemical Hazards - Non-Metals

JOSEPH COBLE, Sc.D., CIH

Director, Office of Technological Feasibility

DALTON MOORE

Office of Technical Feasibility

GREG KUCZURA

Office of Regulatory Analysis - Health 

RYAN TREMAIN

Office of Physical Hazards

JANET CARTER

Office of Chemical Hazards - Metals

ROBERT STONE

Director, Office of Regulatory Analysis - Health

NATIONAL ASSOCIATION OF HOME BUILDERS (NAHB):

PAUL EMRATH, Ph.D. 

Vice President, Survey and Housing Policy Research

ANTHONY ZIMBELMAN

Zimbelman Construction 

NATIONAL ROOFING CONTRACTORS ASSOCIATION (NRCA):

WILLIAM GOOD

Executive Vice President

TILE ROOFING INSTITUTE (TRI):

RICK OLSON

President

TILE COUNCIL OF NORTH AMERICA (TCNA):

JYOTHI RANGINENI, Ph.D.

Research Scientist

ERIC ASTRACHAN

Executive Director

ARCH MASONRY, INC.:

JOSEPH BONIFATE

Vice President

SORPTIVE MINERALS INSTITUTE (SMI):

RICHARD BROWN

Chairman, Technical Committee

NATIONAL AUTOMOBILE DEALERS ASSOCIATION (NADA):

LAUREN BAILEY

Manager, State Franchise Law and Regulatory Initiatives 

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 

BRAD HAMMOCK

Attorney, Jackson Lewis 

Construction Industry Safety Coalition 

INDEX

										PAGE

		

INTRODUCTION

Judge Stephen L. Purcell 					  PAGEREF a1Intro \h  3498 				  	 

NATIONAL ASSOCIATION OF HOME BUILDERS (NAHB)

	Paul Emrath, Ph.D.					 	  PAGEREF a2Emrath \h  3498 

	Anthony Zimbelman						  PAGEREF a3Zimbelman \h  3521 

	Questions								  PAGEREF a4Questions \h  3530 							 

NATIONAL ROOFING CONTRACTORS ASSOCIATION (NRCA);

TILE ROOFING INSTITUTE (TRI)

 

	NRCA - William Good						  PAGEREF b1Good \h  3577 			  

	TRI - Rick Olson						  PAGEREF b2Olson \h  3587 

	 	

	Questions 							  PAGEREF b3Questions \h  3598 	

TILE COUNCIL OF NORTH AMERICA (TCNA)

	Jyothi Rangineni, Ph.D. 					  PAGEREF c1Rangineni \h  3627 

	Eric Astrachan							  PAGEREF c2Astrachan \h  3633 

	Questions								  PAGEREF c3Questions \h  3639 

ARCH MASONRY, INC. 						 

	

	Joseph Bonifate						  PAGEREF d1Bonifate \h  3648 

	Questions								  PAGEREF d2Questions \h  3667 

SORPTIVE MINERALS INSTITUTE (SMI)

	Richard Brown							  PAGEREF f1Brown \h  3689 

	Questions								  PAGEREF f2Questions \h  3708 

NATIONAL AUTOMOBILE DEALERS ASSOCIATION (NADA)

	Lauren Bailey							  PAGEREF g1Bailey \h  3718 

	Questions								  PAGEREF g2Questions \h  3723 

ADJOURNMENT								  PAGEREF h1Adjourn \h  3729 	 

EXHIBITS

EXHIBITS		DESCRIPTION				 	PAGE

Exhibit 118	Dr. Emrath's PowerPoint			  PAGEREF ex118 \h  3506 

Exhibit 119	Mr. Zimbelman's testimony		  PAGEREF ex119 \h  3529 

Exhibit 120	Dr. Emrath's testimony			  PAGEREF ex120 \h  3530 

	

Exhibit 121	Mr. Good's PowerPoint			  PAGEREF ex121 \h  3580 

Exhibit 122	Mr. Good's testimony			  PAGEREF ex122 \h  3587 

Exhibit 123	Mr. Olson's PowerPoint			  PAGEREF ex123 \h  3590 

Exhibit 124	Mr. Olson's testimony		    	  PAGEREF ex124 \h  3597 

Exhibit 125	Mr. Astrachan's testimony	    	  PAGEREF ex125through127 \h 
3633 

Exhibit 126	Dr. Rangineni's testimony	    	  PAGEREF ex125through127 \h 
3633 

Exhibit 127	Mr. Bettiga's testimony		    	  PAGEREF ex125through127 \h 
3633 

Exhibit 128	Mr. Bonifate's PowerPoint	    	  PAGEREF ex128 \h  3650 

Exhibit 129	Mr. Bonifate's testimony		    	  PAGEREF ex129 \h  3666 

Exhibit 130	Mr. Bonifate's flash drive	    	  PAGEREF ex130 \h  3666 

Exhibit 131	Reserved - Mr. Brown's

			testimony/PowerPoint 			  PAGEREF ex131 \h  3689 

Exhibit 132	Ms. Bailey's testimony      	    	  PAGEREF ex132 \h  3717
P R O C E E D I N G S

(9:30 a.m.)

		JUDGE PURCELL:  Good morning, ladies and gentlemen.  My name is
Stephen Purcell, and I'm the Chief Judge for the U.S. Department of
Labor.  Welcome to Day 12 of the OSHA silica rulemaking hearing.  

		Today's date is April 2nd, 2014, Wednesday.  The time is approximately
9:30.  And first on the agenda this morning is the National Association
of Home Builders, represented by Anthony Zimbelman and Paul Emrath.  

		Gentlemen, whenever you're ready. 

		DR. EMRATH:  Okay.  Thank you very much.  I will start.  My name is
Paul, my name is Paul Emrath.  I'm a Vice President of Survey and
Housing Policy Research at the National Association of Home Builders. 
That means that I oversee two departments at NAHB.  One of them does
survey research.  The product there that you might be most familiar with
is our Housing Market Index.  One of my departments produces that.  And
then I also run the Housing Policy Department, where I do things like
review regulations like this one, estimate the economic impact of home
building and things like that.

		So I'm very happy to be here and have a chance to testify on this
topic.  And I'm going to focus largely on the Preliminary Economic
Analysis of the proposed silica rule, or the PEA.  

		And there are three shortcomings from the perspective of the home
building industry that I would like to focus on.  I just list them
there.  One is that I think the economic analysis doesn't really capture
important aspects of the structure of the home building industry. 
Secondly, it has a very narrow focus that keeps the costs down, but the
regulation is very broad, and the language in the regulation is very
broad, and so there's a mismatch there.  And, third, the use of the
revenue and profits from a period that's atypical, historically.  

		So on the topic of failure to capture the structure of the industry,
there are several problems.  Some of them go to analyzing the industry
at a very broad aggregated level using four-digit NAICS codes rather
than the more detailed six-digit NAICS codes.  

		So there are a couple of things about that.  one is it's not necessary
to do that.  I checked the data sources that are used as references. 
You can pretty much get more industry detail there.  It's inconsistent
because the six-digit codes are used in the economic analysis of general
and maritime industry, but not in construction.  And it leads to some
things that are a little bit misleading.  

		One is, it disguises important impacts on certain parts of the
industry because it merges some segments of the industry where there's a
significant effect in terms of cost with other segments of the industry
where there's no cost estimate, and so it's diluted that way, and kind
of disguises the way cost affects certain, you know, particular trade
contractors.

		The other thing is that if you look at the four-digit residential
building construction category, that's got several things in it that are
dissimilar.  It's got single-family construction.  It's got multi-family
construction.  And it's got remodeling.  And so when you lump those in,
you get to ignore some important things that arise in subsets of the
industry like remodeling.  Remodeling is different than new
construction.  And in ways that kind of should complicate the economic
analysis really.  And let's talk about that for a second.

		So what characterizes residential remodeling.  Now, that's a
significant part.  It's running about 140 million dollars a year, not
counting any remodeling that might go into maintenance and repair.  So
it's a significant part of residential construction, but it's somewhat
different.  It's characterized by small firms.  

		You see, this is from our member census where the median revenue in
2012, you know, 1.8 million for a single-family building, 4.4 million
for multi-family, but well under 1 million for remodelers, so they're
small.  And it often involves -- we're talking about remodeling now --
disturbing material that you're unfamiliar with, going from one worksite
to another, working on some substrate you don't know what it, what its
silica content is, and that presents some complications, and should, and
I would argue these are largely ignored in the PEA.

		And we're really talking about in remodeling doing a large number of
very small projects.  So let me give you an idea of that.  This is from
our Remodeling Market Index Survey, or RMI.  This is the remodeling
equivalent of the housing market index.

		JUDGE PURCELL:  Mr. Emrath, just for the -- 

		DR. EMRATH:  Yes?

		JUDGE PURCELL:  -- record, let me point out that that's found on page
3.  That chart you're referring to is found on page 3 of the printed
version of the PowerPoint presentation.

		DR. EMRATH:  Thank you very much.

		So it's a sample of remodeler members who belong to our association
NAHB.  And we asked them to share of their business in a typical year
that comes from remodeling projects of different sizes.  And so you can
see the spread there.  Notice that 10 percent of their revenue comes
from very small projects, under 2500, and another 9 percent are at 2500
to 5,000.  Okay.  You need to do a lot of projects.  You need to do
millions of those in a year in order to get, you know, 10 percent or 9
percent of your revenue.  On the other hand, you know, 21 percent comes
from, you know, large projects, large remodeling projects, 100,000 or
more.  You don't need to do too many of those, but there are a large
number of these.  So that means, you know, again, lots of very small
jobs.  

		 And so, you know, I like to think about -- I like to think of this
regulation in terms of remodelers.  Think of people who are doing these
small, only a few-thousand-dollar jobs going from place to place.  And
if you look at the language in the regulation, as proposed, which I put
up there, it says that the employer needs to conduct additional exposure
assessments whenever a change in the process occurs.  And I would argue
that it occurs many times during the course of the year for a typical
remodeler, or someone doing the remodeling, is you're doing these, you
know, few-thousand-dollar projects, one after the other.  

		And so some of the PEA's assumptions like these, you know, four-person
crews working in stable work environments where you only have to do a
sub-sample of them and get a small number of assessments, that's not
realistic.  It's not realistic, I would argue, in residential
construction in general, but especially in remodeling, where you have
these small projects.  In fact, I would argue that rather than, you
know, many workers per assessment, you -- if you read the regulation,
it suggests that you need to do many assessments per worker because of
the way their workplace is changing so constantly.

		Okay.  Now, so that's one thing.  So it kind of ignores remodeling. 
The economic analysis largely ignores these complications of remodeling.
 There are several other ways where it doesn't seem to recognize what's
really going on in residential construction.  

		They start out by defining representative jobs or representative tasks
using a means, heavy construction cost data.  Now, means has equivalent
things for residential construction and for remodeling that you could
use, but they just don't.  So they start out by defining representative
tasks using a source that doesn't have any residential, you know, jobs
in it.  The heavy construction cost data is based on, you know, highway,
bridges, utilities, you know, some other things, but no residential. 

		Another thing the PEA does, it ignores, well, what the Census Bureau
calls non-employers.  These are small self-employed people, one person,
you know, running around in a pickup truck or van with no payroll.  So
they're not included in the official government statistics usually
either as employers or employees.  And there are a lot of those in
residential construction, well over 2 million, 2.4 million in the most
recent numbers I could find.  About 1.7 million of those are trade
contractors.  

		So, now, what that means is perhaps not entirely obvious.  Because
they're not employees and they're not classified as such, they
technically fall outside the scope of, you know, an OSHA regulation like
this.  But if you think of this from the standpoint of a general
contractor, a home builder who has got many subcontractors, some of
these very small people, and some of them are self-employed, you know
he's not -- the builder is not immune from multi-employer citations. 
If he's worried about that, he's got to either find out which of his
subcontractors is self-employed and which one isn't, which is, you know,
a substantial kind of recordkeeping burden.  Or maybe if he doesn't do
that, he has to sort of treat them all as the same and, you know, do
assessments or engineering controls or whatever the prescription is on
all of them.  So that's one possibility.  I want to come back to that a
little bit.  

		The other thing that the PEA doesn't seem to recognize is the
prevalence of subcontracting.  And that's just the way homes are built. 
Most of the work is really subcontracted out, and it's performed by
trade contractors, not by employees of the home builder.  

		So to give you an idea of that, I'm showing you a slide now which
comes from our Housing Market Index Survey from, I think it's, yes, July
2012.

		JUDGE PURCELL:  And Mr. Emrath, just for the record, that bar chart
is found on page 4, the printed version PowerPoint presentation, which
I've marked as Hearing Exhibit 118 and I'll admit in the record.

(Whereupon, the document referred to as Hearing Exhibit 118 was marked
and 

received in evidence.)

		DR. EMRATH:  Okay.  And so this is from the survey that generates the
Housing Market Index.  It's a page of special questions tacked onto the
end of it.  It means it's from the representative panel of builders that
we maintain to produce the HMI.  And the bottom line here, I would say,
is that two-thirds of these single-family builders subcontract out at
least three-quarters of all their work, you know, substantiating what I
said, that in home building, most of the work is done by subcontractors.

		Now, let me return to the previous slide and talk about some of the
implications for this for a second, think about this a little bit more. 
So as is typical for OSHA, when they analyze cost and the effective cost
on the industry, when they do the economic feasibility part of their
analysis, they analyze two polar cases.  

		One is all of the costs can be passed on to the consumer.  Okay. 
Well, in this case, a lot of the cost falls on the trade contractors,
and the consumer of the output of the trade contractors is the
residential building industry.  So you've got an input and the producer
of the final product both being analyzed here.  And that relationship,
the fact that the cost that the subcontractors bear gets passed down
chain to the builders, is really entirely ignored in the PEA.

		And so if we think about this, let's think about this one case.  Okay.
 We're talking about a case where all costs can be passed on.  Well, if
that's what you're going to do, then what you really should do is you
should analyze the costs of all of the -- the subcontractors and pass
those on with a markup to the home builder who eventually bears them. 
Otherwise, you're just really ignoring it, as you saw in the slide,
three-quarters of the home builder's construction cost or more, in some
cases.

		The second case that they analyze is where -- as I said, there are
two polar cases -- the second one is where cost cannot be passed on at
all, and it's just a reduction in industry revenue, you know, the
industry kind of contracts.  That's the other extreme that they analyze.
 If you're analyzing that, okay, and think what happens when you analyze
a subcontractor.  If their output contracts, that means that there's
less of a key input that the home builders need.  And so that's got to
affect what they can produce.  And so you've just -- you've got to
account for this.  You've got to account for the fact that most of the
construction work done by home builders is done by subcontractors.  That
relationship between subcontractors, who really bear a lot of the
estimated cost of the regulation, and the home builders is just not
captured in the economic analysis.  

		And if we think about this in terms of the large number of the
non-employers -- I want to return to that, because that factors in
here.  If you're analyzing the first case, and you're assuming that
costs can be passed on from the subcontractor to, say, the home builder,
how can those costs be passed on fully if the home builder has, like,
1.7 million non-employers who fall outside of the scope of this
regulation, if you think they do, and who are, you know, close
substitutes?  So how can the employers pass -- how can the employer
subcontractors pass on their costs to a home builder when the home
builder has as a substitute all of these non-employers?	

		In the other case, if the subcontracting, you know, the trade
contracting industry contracts, then what happens?  Well, what happens
to the output that the subcontractors aren't producing, the revenue,
that's lost there?  One possibility is that it goes to the
non-employers.  In other words, if the cost of the regulation reduced
the revenue of employer trade contractors, it could be picked up by
non-employer trade contractors.  

		So, again, if you just -- it gets a little complicated, but if you
think about the relationship between a builder and his subcontractors
and all of the non-employer subcontractors that are out there that you
could use, you know, those are important relationships.  And you need to
think about them.  Those sorts of things are entirely ignored in the
economic analysis.

		Okay.  So let's go on to my next broad topic here, which is the
mismatch between the narrow focus of the PEA and the broad language of
the regulation itself.  And so I would argue that -- and the economic
analysis itself says that a lot of residential construction involves
work where silica exposure overall is not very high.  However, many
workers at some point perform some task that generates dust and that
dust could, in some cases, contain silica.  I mean, most construction
workers, you know, drill or cut into something.  It's not always wood or
metal or something that you know has no silica in it.  So it's difficult
or impossible for a builder or remodeler to predict all of this in
advance.  

		But the broad language of the regulation puts all of the burden on the
builder or remodeler to figure out, you know, which of the employees or
subcontractors is going to be affected.  And I'm going to argue that the
PEA really ignores a lot of that and really only captures only a very
few of the things that a builder has to worry about.  So let me try to
demonstrate that with a few slides here.

		So in talking about the PEA's narrow focus, okay, as I said, there are
a lot of things that occur very often in almost any kind of construction
work, drilling and sawing and sweeping.  And those are activities that
the PEA starts out by saying are important things that could lead to
dust and silica exposure if the dust has silica in it.  

		But that's not the way the economic analysis proceeds.  What they do
is they take a narrow set of representative tasks, which are, you know,
from heavy construction not from residential, and then they map them
into job occupations, and then from these job occupations to industries
to get at the implications of cost for industries.  

		So they do this in a very limited way.  So what do I mean by that? 
Well, when they look at occupation categories, they ignore flooring
installers, electricians or plumbers.  They just assume there's no cost
associated with those.  For other occupations, they include them only to
a minor extent, like carpenters.  And they really ignore the extent to
which kind of a broad category like carpenters -- carpenters tend to do
a lot of different things -- they ignore some of the things that they
do which could, you know, generate silica dust, you know, installing
kitchen countertops, siding, final cleanup.  The analysis just doesn't
seem to capture those. 

		So to give you an idea of that, I'm going to show you a few slides
here.  Let me explain what these are.  What I did is I went into the
occupational classifications within construction.  And what I did is I
highlighted all of the ones where the PEA estimated a percentage of
workers at risk.  And so the shaded areas show things that are captured
by the PEA.  And if they're not shaded, they're just ignored, they're
assumed to have no cost whatsoever.

		And so on this first slide, a couple things to notice.  One is all of
the floorers, carpet installers, floor layers, and so on and so forth,
those are not analyzed.  Some of the categories that are analyzed are
analyzed but assumed that a very small percentage of them are affected. 


		For example, the first-line supervisors, there are a lot of those.  I
used the most recent employment numbers I could find because those were
easy.  Those are not the ones that are used in the PEA.  But
nevertheless, you see there are hundreds of thousands of first-line
supervisors, but the PEA assumes 0 percent of them are at risk.  

		There are a lot of carpenters, you know, well over half a million of
those.  Only 1 percent of those are assumed to be at risk.  So they're
in there, but almost not, you know, only 1 percent, a very small share
of them.  That's how you get very small cost estimates.  That 1 percent
of carpenters, I would argue, is a very important assumption in
generating very small cost estimates in the PEA.

		Same thing for construction laborers.  There are a lot of those,
825,000, roughly, but only 3 percent.  

		So I noticed that some categories like floorers are ignored entirely. 
Other important ones like carpenters are captured, but a very small
percentage are assumed to be at risk.

		Here's the second slide, a continuation.  I broke up the slides just
so they would be a little easier to read.  The thing I would say here is
notice that they totally ignore electricians, painters, plumbers, you
know, areas where there are a substantial number of employees in the
economy.  

		And this is the third and final page.  Again, we're on the page where
we show the helpers, the helpers for electricians and pipe layers and
roofers -- notice roofing is out of the scope of the PEA -- and
highway maintenance workers, which home builders probably aren't
impacted by that much.  Outside of that, the only thing on this page
that's captured in the PEA is carpenters, and again, they assume only 1
percent are potentially affected.

		JUDGE PURCELL:  And so the record is clear, Mr. Emrath, those three
slides, occupations 1, 2 and 3, are found on pages 6 and 7 of Exhibit
118.

		DR. EMRATH:  Okay.  So it occurred to me that, you know, some of those
things look questionable to me.  So I thought what I could do to get
some evidence on it, and because I conduct this Housing Market Index
Survey every month, I had an opportunity in the March survey to ask some
special questions on this topic.  

		And so the questions I asked -- and again, this is of our regular
panel of single-family builders who respond to the HMI every month --
do your employees or subcontractors doing specific tasks, which, you
know, I'll show you on the next page, do they ever saw or drill into
materials other than, you know, wood or metal, or do they sweep
something other than, you know, pure sawdust.  And in the second
question, we asked:  If they don't do that themselves, do they ever work
near someone who is, you know, sawing, drilling or sweeping these
materials?

		And the next couple of slides show the answers to those two questions.
 These are on page 8 of the handout.  So I want to cut to the bottom one
very quickly and get to the third of these slides, but one thing I want
you see is that we did give them the opportunity to tell us they don't
know, because they may not know what their subs or workers are doing in
every single case.  But you can see the categories there.  

		And so these are the responses, yes, no, or don't know, to do you
drill -- saw, drill or sweep something that, you know, could
potentially have silica in it.  And this is do you work near, in the
same vicinity is the way we phrased the question, as someone else who's
doing those activities.  We're asking this of the builder, so it's do
your employees or subcontractors do this or work near this.

		So I want to get to the next slide, which appears on page 9 of the
handout, which combines these two questions together.  So what we do
here is we just added to together people who said yes to either one of
those questions.  So for drywall, this means that 71 percent of our
single-family builders said that their drywall installers either, you
know, drilled, sawed into something other than wood or metal, swept up
something other than sawdust or worked near someone doing it.  So that's
the way to read this.

		And one of the things to notice is the high percentage.  It's 71
percent there for drywall.  For plumbers, 68 percent of the builders
said that they do this drilling or sawing or sweeping activity or work
near them.  Plumbing is totally ignored in the PEA.  And flooring, it's
65 percent.  Flooring is totally ignored in the PEA.  Siding, 61
percent.  Cabinets and countertops, 61 percent.  Now, cabinets and
countertops are done by -- usually by someone who's classified as a
carpenter, I'm pretty sure.  So only 1 percent of those in the PEA are
assumed to be impacted.  Electrical is next, you know, 59 percent of
builders say they do one of these activities which could be exposed to
silica.  Electrical contractors are totally ignored in the PEA, just
assumed right up front to have no exposure.

		So just this is what I mean by a mismatch of the narrow focus of the
PEA and the broad language of the regulation, which really obligates
builders to figure out, okay, well, the PEA says only 1 percent of
carpenters are affected, and you get low costs.  So as a trade
association, what do we tell our builders who call us up and ask us, you
know, what they have to do in terms of silica protection for their
carpenters, their carpenters who are doing siding, installing
countertops, doing interior trim and doors, framing, all of those
things.  

		The broad language of the regulation puts the burden on the builders
to at least assess, you know, the impacts on these workers, who the
builders are saying are doing something that could, you know, expose
them once in a while at least to the silica.  It may not be all the
time.  The exposure overall might not be very high.  But the broad
language of the regulation sort of obligates builders to deal with all
of this.  And the PEA ignores most of these things or assumes a very
small percentage like 1 percent of carpenters.  

		So I'm trying to illustrate what I see as this very serious mismatch,
very broad sweeping implications of the regulations putting a lot of
burden on builders and remodelers to assess all of these different
occupations.  And most of them are ignored or assumed to -- or only a
very small percentage of them are assumed to be impacted by the
regulation.

		Okay.  Another way in which the PEA seems to ignore the broad
implications of the language is, as far as I could tell, there is
nothing explicitly in the PEA on recordkeeping costs.  But the
recordkeeping costs of the regulation are really very broad, explicit,
wide-ranging and pretty extensive.  You've got to, you know, you've got
to -- well, I'll just -- for those of you in the room let you read it
on this slide.  But you've got to -- you know, the operation monitored,
sampling and analytic methods used, number/duration, results of samples,
identity of laboratory, type of personnel, name, Social Security, and
job classification.  

		Also, you have to track the materials that they work on.  So again,
think of a small remodeler going from job to job working on, you know,
substrates they've never seen before, many different one of those in a
year.  The regulation puts all the burden on you to keep these records. 
And as far as I can tell, the PEA assumes zero recordkeeping costs.  If
you're going to do a good job of estimating the costs, you've got to
have some costs, I would think, associated with this new accounting
system, which, you know, most builders don't have set up right now, nor
do small subcontractors.

		So I just want to briefly, then, touch on my final point here, which
is the use of profit and revenue in the PEA from a really historical,
atypical period.  And what the PEA does, it basically uses 2006.  It
takes revenue from 2006, it takes profits from 2006, and then looks at
the range in profits from 2000 to 2006, saying that that captures a
business cycle.  

		But that basically ignores everything that happened after 2006.  And
in the residential construction industry, nothing now looks like it did
in 2006.  And I've got a couple of stats up there, but I think the
easiest way to demonstrate that is just to go to my next graph here,
appears on page 10 of my handout, which is just housing starts.  

		So a single-family and multi-family in the top greenish line shows
them added together.  Just to give you an idea of the historical
context, the long-run average is about 1½ million for total starts. 
It's 1.500, or this is in thousands, so this is 1½ million here.  This
is like the long-run historic average.  It's the average you would get
in the '60s and '70s in the '80s and '90s.  There's like two generations
of Americans have experience with about 1½ million housing starts a
year.  

		Well, in 2006, we were up at 1.8 million, and we were really over 1.5
million for the entire 2005-2006 period.  And what happened after 2006? 
We went to a historic crash.  Before we got to this crash and the
downtrend that started very seriously in 2007, before we hit 2008, we
had never since World War II had a year of housing starts less than 1
million.  So this 1 million line here, this is below the worst
post-World War II recession we ever had in the industry until we got
here.  And we've been below that for six straight years.  

		So we've got the six worst years in the history of the homebuilding
industry since World War II are the last six.  And whereas this 2000 to
2006 period is a period of years that were all above normal.  And so one
of the things that using a number from here and using this as a range to
capture business cycle and ignoring all of this is it just -- it gives
you no credibility, because nobody who knows really anything about the
experience of the homebuilding industry will take in 2013 anything
seriously based on this that ignores all of this.  So that creates a
very serious credibility problem for the PEA, I would argue.   

		And that's my final point.  My last slide here has my contact
information.  

		So I referred to a lot of statistics and results from our surveys. 
Those are all available.  I'm going to submit at least the report on the
survey on what employees and subcontractors of builders, you know, how
often they drill, saw, sweep into things.  I'm going to submit that
after the hearings.  But anything else that I referred to is available,
any of the methodology in any of the surveys or the sample sizes, most
of which are in the slides, or anything else are all available.  And I'd
be happy to provide them at any time.  

		Thank you.

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

		The next speaker for NAHB is Mr. Anthony Zimbelman.  

		Mr. Zimbelman, whenever you're ready.

		MR. ZIMBELMAN:  Thank you, Your Honor, and members of the OSHA panel. 
I am Tony Zimbelman, small home builder and general contractor from
Wichita, Kansas.  My company, Zimbelman Construction, has been in
business for 21 years, and over this time, we have built nearly 500
homes.

		Since 1992, my company's philosophy has been to conduct all of our
business relationships with honesty and integrity while operating within
all federal, state and local laws, and industry regulations.  This
philosophy has enabled us to meet our "treat people right" goal and has
allowed our company to be successful.

		I would like to begin by stating that I appreciate OSHA's efforts,
like this hearing, that affords me and my trade association, the
National Association of Home Builders, the opportunity to explain the
unique characteristics of our industry and to discuss OSHA's regulatory
requirements that oftentimes place a tremendous compliance burden on
home builders. 

		Today I would like to address one specific issue that concerns me, the
impact of OSHA's proposed silica regulation on small home builders as
well as the specialty trade contractors that perform the vast majority
of construction work necessary to build a home.  

		Small home builders and trade contractors are often puzzled by the
complexity and range of OSHA requirements imposed upon them.  And this
proposed silica rule is no exception.  Most small construction firms,
including my own, do not have a full-time safety professional to
implement the array of OSHA regulations because it is simply not
possible or economically feasible to have one staff member dedicated
solely to understanding and implementing safety programs.

		Like many small home builders, I wear many hats in my company.  I am
the owner, the president, the sales manager, job superintendent,
construction scheduler, bookkeeper, as well as the safety person.  In
our industry, over 80 percent of home builders are considered small
businesses.  And typically, these companies build fewer than 25 homes
per year.  And more than half build fewer than 10 homes per year.  Most
small construction companies also employ fewer than 10 workers.  My
company, Zimbelman Construction, only has one employee.  Similarly, most
of my home builder colleagues back in Kansas would fit this profile.

		In addition, home builders typically subcontract out the vast majority
of their construction work to specialty trade contractors, such as
bricklayers, plumbers, drywall contractors, deck builders, granite top
installers, et cetera, who can more efficiently deliver the individual
pieces of the construction process for us.  My subcontractors are also
small businesses, and we typically use 20 to 25 of them to build each
single-family home.  Most of our trade contractors, or partners, as we
call them, have been working with us in excess of 10 years, and a few of
them have been with us since the start.  

		I have spent quite a bit of time reviewing the proposed silica rule,
and at the current time, I just don't have a good feel for what I need
to do to comply with this rule.  I have also spent time reviewing OSHA's
proposal with my trade partners, and I would now like to share some of
our collective concerns and some specific examples of why navigating
this proposed rule would be extremely difficult and eventually leading
to noncompliance with the entire silica standard.

		The proposed rule is so complex and long that after reading through
the proposed language and Table 1 a number of times, I am still not sure
what to do to comply.  My trade partners were in no better shape.  They
didn't know how to comply or what to do to be sure they were adequately
protecting themselves and their workers.  

		Let's first take a look at Table 1.  The procedures or engineering
controls listed in Table 1 do not specifically address all construction
tasks, especially in the home building business.  For example, our deck
builders hand-mix concrete for setting deck posts, which takes about an
hour.  Because Table 1 does not address this specific task, will these
contractors be required to conduct exposure assessment and monitoring to
determine if their workers are exposed to silica above the permissible
limits?

		This monitoring is complex, time-consuming, and costly.  In my
experience, trade contractors are currently not conducting exposure
testing, and these small employers would definitely have to hire an
outside industrial hygiene firm to do this.  I believe the small
contractors I deal with will see no benefit in this monitoring, won't
know how or when to comply with the requirements, and consequently, will
not comply with it.

		Another issue in Table 1 is that OSHA proposes the use of wet methods
when using stationary masonry saws for cutting bricks.  Any silica
controls requiring a continuous constant water source may not be
feasible in the home building business.  Why?  On my home building
sites, we do not typically get a water meter hooked up for use on our
job sites for two to three months after construction has started on the
home.  My local municipality controls when water service is provided,
and it is often delayed well into the construction process.  During that
time, when water is not available, there are numerous tasks in Table 1
that are conducted while building a home.

		I understand that the issue of water availability on construction
sites has been raised during this hearing.  Clearly, individuals who
have stated that water is always available on construction job sites may
not fully understand the home building industry.  

		Finally, in terms of Table 1 and the engineering controls used to
reduce silica dust levels, I have not seen any of these controls being
used on my job sites.  To comply with the existing OSHA silica rule,
most of the contractors are currently using dust masks, respirators to
control worker exposures to silica, mostly because there are very short
periods of exposure when conducting tasks such as mixing concrete for
setting deck posts, as previously mentioned.

		Now, let's look at regulated areas.  This is another area where OSHA's
proposal misses the mark in residential construction.  For example,
silica may be disturbed when granite countertops are being installed. 
Although most of the countertop fabrication is done at the shop, there
may need to be -- there may be a need to drill holes for plumbing
fixtures or make a few small grinding adjustments at the job site.  

		OSHA would require the marking of a regulated area where the drilling
or grinding is taking place or developing a written plan and restricting
access to only designated workers.  However, in this case, there would
be no reason to establish a regulated area or have an access control
plan to keep other workers out because the granite countertop installers
are usually the only ones at the job site during that timeframe.  

		I also understand that the issue of multiple trade contractors being
exposed to silica dust has also been raised during this hearing.  I
don't believe this will be an issue in home building, as generally,
there are only one or two trade contractors working on the job site at
any one time.  

		Finally, I have one more issue I would like to speak about.  I am an
authorized OSHA outreach trainer.  And during my training, it's easy for
me to show workers the results of bad fall protection practices by
stating the number of deaths reported each year as a result of falls on
the job site.  By actually seeing and hearing about the dangers of
falls, workers realize they need to protect themselves when working in
high places.

		On the silica issue, it will be difficult to convince employers and
workers these regulations are necessary because there is no demonstrable
data showing deaths from silicosis on construction job sites.  

		In conclusion, the vast majority of small construction employers are
overwhelmed by the complexity and breadth of the OSHA requirements
imposed upon them.  If OSHA does not provide a rule that is clear,
concise, and easy for small businesses to understand, implement, access,
and train their workers, then with this proposal, OSHA is setting small
construction employers and their workers up for failure.  OSHA has the
responsibility to provide a clear, concise rule that small businesses
and individuals will be able to understand and actually use.  

		Therefore, I would like to take this opportunity to urge OSHA to,
first, withdraw the proposed silica rule.  Second, conduct additional
informal public hearings on the silica proposal in other parts of the
country to obtain firsthand information from construction employers and
workers who would be directly responsible for complying with this rule. 
And, of course, I welcome you all to Wichita, Kansas any time you want
to do that.  And third, take what you have learned from these comments
to rework the standard and streamline the requirements so that they make
sense for businesses in our industry, particularly the smaller ones.

		Once again, thank you for allowing me to participate in this hearing. 
I am happy to answer any questions you may have.

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

		I'll go ahead and open it up for questions.  Can I see a show of hands
of individuals in the audience?  One, two, three, four, five?  Okay. 
We'll start with Ms. Trahan.

		MS. KRAMER:  Your Honor, was there any written testimony that the home
builders would like to submit?

		JUDGE PURCELL:  Mr. Zimbelman, I noticed you were reading from yours.
 Do you have a copy of that?

		MR. ZIMBELMAN:  Yup.

		JUDGE PURCELL:  Okay.  I'll mark that as Hearing Exhibit 119 and admit
it into the record.  	

(Whereupon, the document referred to as Hearing Exhibit 119 was marked
and received in evidence.)

		DR. EMRATH:  I also have one.

		JUDGE PURCELL:  Okay.  And Mr. Emrath's testimony I'll mark as
Hearing Exhibit 120 and also admit that into the record.

(Whereupon, the document referred to as Hearing Exhibit 120 was marked
and received in evidence.)

		MS. KRAMER:  Thank you.

		JUDGE PURCELL:  All right, Ms. Trahan, if you'll state your name for
the record and your affiliation. 

		MS. TRAHAN:  It's Chris Trahan with the Building Trades.  Mr. Emrath,
you said that much of residential construction involves work where
exposures are low.  I think I read that on one of your slides.  Does the
NAHB have any data on exposures in home building?

		DR. EMRATH:  We don't.  I was relying there on what I've heard from
other people and the -- and what was in the preliminary economic
analysis and its precursors done by OSHA's contractor.

		MS. TRAHAN:  Thank you.  

		And then the issue of water, and I think this is Mr. Zimbelman, if
I -- 

		MR. ZIMBELMAN:  Yes.

		MS. TRAHAN:  The issue of water on the job site, you used an example
of cutting brick, that there wouldn't be a water source available to
control dust?

		MR. ZIMBELMAN:  Not a continuous water source like coming out of a
spigot.

		MS. TRAHAN:  Okay.  But typically, when brick is being cut on a job
site, is it also being put in place?  Is it being laid?

		MR. ZIMBELMAN:  My bricklayer uses a hammer to cut brick usually, just
taps it and breaks it.

		MS. TRAHAN:  Oh.

		MR. ZIMBELMAN:  In the instances where he needs to saw, he will set up
his saw and cut all of the bricks he needs to saw, maybe in a period of
about five minutes.  But if he has water, it's because he brought it
from home.

		MS. TRAHAN:  But he would be putting them in at the same time -- 

		MR. ZIMBELMAN:  Yes.  

		MS. TRAHAN:  -- mortar?

		MR. ZIMBELMAN:  Yes.  

		MS. TRAHAN:  Okay.  Thank you.

		JUDGE PURCELL:  Thank you, Ms. Trahan.

		Next, Mr. Schneider?

		MR. SCHNEIDER:  Okay.  Scott Schneider with the Laborers' Health and
Safety Fund.  Thank you very much for coming today.

		I had a question.  You were talking a lot about remodeling and the
potential for exposures there.  I mean, when remodelers create dust, is
that something that concerns homeowners, that homeowners may say, well,
you know -- I mean, I know, for example, if someone's coming in to
refinish floors, there could be a substantial amount of dust created,
wood dust, of course, but is that something that home owners often
object to or are concerned about?

		DR. EMRATH:  You know, I would prefer it if we had a remodeler here
who could answer that firsthand, but based on what I've heard from our
remodeler members, that's very important.  If you're remodeling in
general, relations with your consumer and working in a home that's
occupied places a lot of requirements on you.  And in some cases, you
know, employees who can work on new construction can't work in
remodeling projects for that reason.  

		So yes, you've got to -- if you don't control it while it's going
on -- and you need to try to, but there's also cleanup, of course.  And
this final cleanup before something is ready to occupy is, I would say,
one of the other things that the PEA doesn't deal with.  It deals with
it in general and maritime industries where they have, like, little
housekeeping stuff, but that housekeeping function, you know, including
in remodeling, makes sure that the thing is clean before people move in,
you know, that involves sweeping.  And so I mean, the short answer is
yes, I would say it's important in remodeling.  The cleanup is also
important in terms of getting a new home ready for the owner.

		MR. SCHNEIDER:  All right.  So would capturing the dust or collecting
it as you're doing the job help reduce your cleanup costs and reduce the
cleanup time that you have?  And the concerns of homeowners?

		DR. EMRATH:  I'd have to look at that before I could say.  I think
it's going to vary case by case depending on the job.  They're just so
variable.  And I know that we've run into some of this with the lead
exposure rule.  And I think, from that, the answer isn't at all clear
which would be less costly.

		MR. SCHNEIDER:  Okay.  In your survey, you asked the survey
participants if they ever drill or saw, but did you ask them also how
frequently they do it or how long they -- the duration of the exposures
are?

		DR. EMRATH:  We did not.  We didn't think in one page of special
questions -- there were two reasons we didn't do it.  One is simply
space and complexity.  And the second page of a two-page questionnaire,
which we need to keep short to get the response write-up for the Housing
Market Index, we didn't have enough room.  

		But the second thing is, you know, from the standpoint of a builder,
if their employees ever do this, this means the regulation places the
burden on them, then, to figure out how often and which ones, and so
forth, so that would be kind of like the trigger.  And also, we thought
it might be kind of a stretch that a builder would be able to know that
and give us a real precise answer to that.

		MR. SCHNEIDER:  Are you familiar, in reviewing the regulation, with
the concept of the action level or historical monitoring data?

		DR. EMRATH:  You know, I know that it's there, but I haven't focused
on that a lot and don't really consider myself to have a lot of
expertise on it.

		MR. SCHNEIDER:  Yeah, um-hum, of course.  Well, the action level
essentially says that if you're below the action level, you don't have
any obligations and that you can use historic monitoring data, like, for
example, NAHB could collect data to show that if you're just drilling a
countertop once or doing sawing for 15 minutes a day, that you would be
below the action level and therefore have no obligations.

		DR. EMRATH:  I take your point.  I guess my point would be that stuff
hasn't been done, and OSHA could have done that also and given us a much
easier to follow blueprint.  But somebody's got to do that, and maybe
that's possible in that case, and maybe in many of the other cases.  But
you know, to me, it seems like the way the regulation is written, it
places all of the burden for doing those things and establishing those
practices and getting that data on the business, the employer.

		MR. SCHNEIDER:  Um-hum.  Okay.  I have one more question.  I know you
follow trends in the industry.  My understanding is there's a lot more
of manufacturing going on, manufactured homes or pre-manufacturing of,
you know, windows and doors and a lot of stuff so that there's less work
being done actually on the site, and it's basically assembly on the
site.  Is that the case?  So many of those exposures could be controlled
in the manufacturing facility?

		DR. EMRATH:  The panel, I can get you the actual numbers if you want,
but -- actually, I might have -- can I have a second just to see if
I've got some -- 

		JUDGE PURCELL:  Sure, go ahead, Mr. Emrath.

		DR. EMRATH:  -- statistics with me?  The percentage of manufactured
housing or panelized is still, you know, it's still pretty small.  Let's
see.  So in 2013, you know, if we look at manufactured home shipments,
just an example -- that's one component only of what you're talking
about -- it's, you know, 60,000 compared to, like, 929,000 new housing
starts.  So that component of this is small.  In the survey of
construction, you can get a percentage of modular or panelized.  Those
are just a couple percent of the industry also.  They're still small. 
So that would be the first part of my answer, that those are still
small.   

		The second part is I'm not sure what the implications are, because if
you do this factory construction, you know, modular or manufactured
housing or building panels, or whatever, that's done, like, in a tent
somewhere.  But the construction techniques are, like, the same.  It's
like building something else only you do it in a more controlled
environment before shipping it.  So I think all of the, you know, the
workers doing different sorts of tasks would still apply.  And then, of
course, all of the attaching of these things to foundations occurs on
site.  And I guess I could ask Tony if I'm right, but I think in a lot
of the cases where you're drilling into maybe concrete or something,
that would occur when you're dealing with attaching something to a
foundation.  Would that be reasonable?

		MR. ZIMBELMAN:  Yeah.  I haven't done a panelized home, but I suspect
the typical installation would be to set it on the slab and then drill
through the bottom plate and into the concrete and put an anchor bolt
in.

		JUDGE PURCELL:  And for the record, that last response was by
Mr. Zimbelman.

		MR. ZIMBELMAN:  I'm sorry.  

		JUDGE PURCELL:  That's fine.

		MR. ZIMBELMAN:  Thank you.

		MR. SCHNEIDER:  Okay.  Thank you very much.

		JUDGE PURCELL:  Thank you, Mr. Schneider.  

		No other questions?  

		Ms. Nadeau, please state your name for the record and your
affiliation?

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

		I have a question regarding the overall safety assessment that takes
place before the remodeling or construction of a home.  Who's
responsible and what's the depth and breadth of the assessment that's
done?

		DR. EMRATH:  Tony, I think that would be a question for you, because
that's outside of my expertise.

		MR. ZIMBELMAN:  All right.  

		JUDGE PURCELL:  And that was Mr. Emrath.

		MR. ZIMBELMAN:  This is Tony Zimbelman.  The large majority of the
remodeling companies are small.  There might be an owner and then three
or four workers.

		MS. NADEAU:  Um-hum.  

		MR. ZIMBELMAN:  And then the subcontractors that go along with it.  It
would be up to the owner or his designated competent person to make that
assessment before they ever start.

		MS. NADEAU:  So what does it entail?  What does the competent person
actually do in assessing --

		MR. ZIMBELMAN:  Oh, they'd have to figure out where they need to put
dust partitions up.  They would have to figure out how to control the
dust that they make from getting into the rest of the house.  They would
have to have a plan that, you know, after each task we're going to clean
up, where is all the debris going to be disposed, are we going to
have -- 

		MS. NADEAU:  So that's what they do now?

		MR. ZIMBELMAN:  Yes.  

		MS. NADEAU:  And is there -- for instance, one of the things that was
said that I was confused by is it often involves removing or altering
materials of unknown silica content.  If you don't know the silica
content, do you know what else might be there, like asbestos or any lead
or anything else when you -- I'm wondering how that occurs.

		MR. ZIMBELMAN:  Well, it depends -- that would depend on the age of
the house.  Of course we have the lead-based paint regulations for all
pre-'78 houses.  So if it's earlier than that, you pretty much know it's
in there.  Asbestos, they would either have to hire a remediation firm
to come in and make that determination or maybe some of them are good
enough to know.  They're good enough that they know it already.

		MS. NADEAU:  So the assessments of what materials might be involved in
the house that would be remodeled, that's already occurring for other
types of dangers that might be there, respirable contaminants or other
dangers?

		MR. ZIMBELMAN:  I can't answer that.  I don't do remodel.  I'm just
telling you what I would do if I was a remodeler.

		MS. NADEAU:  Okay.  And there was a question or something about use of
respirators for short periods of time.  And I was wondering whether

-- how that works.  Do you have a program where people are fit-tested
and that sort of thing?  How does the typical home builder deal with
short-term use of respirators?

		MR. ZIMBELMAN:  Okay.  Well, in my situation, which I can only speak
to mine, just about all of my subcontractors are either one-man shows or
them and their son or them and their son-in-law.  And so they have --
and they inherently know that if they're sawing control joints in
concrete, that's going to create dust, and that's probably not the kind
of dust you need to breathe.  So they wear dusts masks when they do
that.  It's a decision they make.  I mean, even though I tell them, you
know, this is what we should be doing, most of those decisions are made
by them for their own safety.

		MS. NADEAU:  So you recommend the use of a respirator for certain
functions?

		MR. ZIMBELMAN:  Yes, um-hum.

		MS. NADEAU:  And a couple of other questions.  There's been a lot of
testimony or discussion during the course of the hearing about local
standards of dust control, where homeowners or builders can be cited for
failing to control dust to the standards that the locality or even state
would require.  And if you're working adjacent to other homes,
that's -- we found during the testimony that that was one of the
biggest sources of complaints.  So I'm wondering how you deal with local
dust ordinances.

		MR. ZIMBELMAN:  Okay.  This is Tony Zimbelman again.  We have not had
that problem in our area.  We have no complaints like that.

		MS. NADEAU:  There's no ordinance or you've never had to address it?

		MR. ZIMBELMAN:  I do not know if there is an ordinance, but we have
never had to address it.

		MS. NADEAU:  Do you have any knowledge of a -- 

		DR. EMRATH:  I have never had a builder raise that issue with me.

		JUDGE PURCELL:  And that's Mr. Emrath responding.

		MS. NADEAU:  Okay.  One more question.  In terms of conducting your
survey, what level of resources went into developing the survey and
disseminating the survey and analyzing the survey?

		DR. EMRATH:  Sure.  This is Paul Emrath again.  Well, the key to
knowing how the survey is conducted is to realize it's a page of special
questions that we add on to the instrument whose primary purpose is to
generate the Housing Market Index.  So we have a panel of builders.  We
try to keep it at about 2,000.  We refresh it once a year, creating a
new panel and merging them together to see that the new panel is
responding the same way as the old panel to the constant questions.  And
we shoot for about, you know, 400 responses.  This is at the end of the
cycle, so we only had 200 and some.  The sample is stratified by the
four census regions and by the size of builders.  They're single-family
builder members.  And so that's how -- that's kind of how the survey is
conducted.

		With the special questions -- because -- they're generated in
different ways, but in this case, I initiated it myself, and I drafted
the questions, and I circulated them to my staff, who are survey experts
and our chief economist, Dave Crowe, to comment on.  And I showed them
also to our labor staff to comment on and incorporated any suggestions. 
And that's pretty much how it went.

		MS. NADEAU:  Do you think some of these resources could be devoted to
developing databases so that when the contractors perform the same
activities again and again and again that they could have a reasonable
expectation as to whether there might be silica exposures at the action
level?

		DR. EMRATH:  I think given the number of tasks that you'd have to
analyze and what you'd need to do to get, you know, enough of a
representative sample on that.  I think that's way beyond one page of
special questions on our monthly survey, so -- 

		MS. NADEAU:  Well, how many tasks are done repeatedly every time you
go to a house like drilling a countertop or, you know, removing the
existing pieces of structure.  I mean, is that done repeatedly again and
again and again from house to house to house?

		DR. EMRATH:  I think there are certainly a subset of tasks that are
done repeatedly like that where it would make sense to build up a
database like that.  I mean, that requires more resources than my
department has.  I mean, our survey department is me and, you know,
three other people, and we have to, you know, generate something like
100 surveys a year.  And I think -- you know -- this is Paul Emrath
again.  I'll go back to something I said before, which I think it would
be nice to have a database like that.  I can see where it would be
developed, but it doesn't exist right now.

		MS. NADEAU:  Well, are there any tasks that when you go to remodel a
house you say, gee, this is a surprise, I wasn't expecting to have to do
that?  Does that happen?  Is that the norm, that you go into a house and
you realize, gee, I didn't know that I was going to have to cut brick or
I didn't know that I was going to have to drill countertops or --

		DR. EMRATH:  This is Paul Emrath again.  And I would prefer to have,
you know, some hard statistical evidence, but anecdotally, remodelers
tell me that there's always -- they're always surprised when they go
in.  They always wind up doing things that they weren't expecting to do.

		MS. NADEAU:  Such as?

		DR. EMRATH:  Opening up a new wall because there was something behind
there that no one had anticipated or the owners didn't even know.

		MS. NADEAU:  But I guess what I'm saying is they may have not
predicted it in a particular situation, but over time, the unexpected
becomes the expected because it -- if you have experience, it will have
happened again over months and years of doing the same business?

		DR. EMRATH:  I think it's -- this is Paul Emrath again -- I think
it's quite reasonable to expect that there are a large number of tasks
that would fit that model, where you could build up a database like
that.  But to my knowledge, that doesn't exist now.

		MS. NADEAU:  Thank you.

		JUDGE PURCELL:  Thanks, Ms. Nadeau.  

		Next questioner, I believe, is Mr. Hammock?

		MR. HAMMOCK:  Thank you, Your Honor.  Brad Hammock from Jackson Lewis
on behalf of the Construction Industry Safety Coalition.

		Thank you all for being here.  I just have a few questions.  And I
wanted to start with some questions related to this category of
employers you're talking about who are not employers under the OSH Act. 
In other words, they don't actually have employees, so I'll just call
them the self-employed category of employers out there.  

		In a situation -- and this is for both of you -- in a situation
where you have someone working alongside, someone with employees,
working literally alongside someone who doesn't have employees, how do
you get -- how do you handle a situation -- an OSHA compliance
situation in that scenario?

		DR. EMRATH:  Well, this is Paul Emrath, and I have the same question
you do, so you know, I sort of wonder about that, so I'm going to turn
that over to Tony, I'm afraid.

		MR. ZIMBELMAN:  This is Tony Zimbelman.  So your question is if I have
an electrician out there that doesn't have any employees, and he's
working next to the plumber that may have a plumber and a helper?

		MR. HAMMOCK:  Right.

		MR. ZIMBELMAN:  And the plumber now -- the plumber is drilling a hole
through the basement wall, and the electrician is down there, right?

		MR. HAMMOCK:  Yeah.

		MR. ZIMBELMAN:  The plumber drilling the wall would generally be
wearing a dust mask, P95, because it's only going to take him about
three minutes to get through that wall.

		MR. HAMMOCK:  Um-hum.  

		MR. ZIMBELMAN:  The electrician, quite frankly, goes about his
business like nothing else was going on, because it's such a small
amount of time that the event happened.

		MR. HAMMOCK:  Let me take it out of the silica context, because I'm
really interested in your views on how it works just generally.  And I
don't know this because -- and I don't mean to testify, Your Honor, but
just to set the predicate for the question -- the OSH Act doesn't
technically cover these people.  So you could have an employee -- you
could have a self-employed individual with no employees engaging in a
number of hazardous activities that might not affect their -- and they
don't care from an OSHA compliance perspective.  We'll just say that. 
How do you handle a situation where they're working right next to an
employer who is covered in dealing with that hazardous condition?

		MR. ZIMBELMAN:  Okay.  This is Tony Zimbelman again.  We have -- I
have a safety plan for my company, and I recommend that they all have
safety plans.  And I would hope that all of my subcontractors would be
following their safety plan like they're supposed to be and abiding by
the OSHA regulations.  If I would see that, I would say something about
it.  But I can only speak for, you know, what's going on on my job
sites, and I just don't see that happening.  I don't see my subs putting
other subs in danger because they're all kind of practicing what they're
supposed to be doing safety-wise.

		DR. EMRATH:  This is Paul Emrath.  One thing that seems relevant to me
is just how difficult it is for the builder to determine which category
his subs fall into because one employee anywhere in your firm will make
the difference.  And there are a lot of small trade contractors with one
or two employees, very often family members.  That's a very common
arrangement.  And you know, you might decide you don't like your
brother-in-law Fred that much and don't need him and lay him off.  And
how would the builder know?  And in some cases, the employee may be just
one -- someone who helps you with the books, and the builder, general
contractor, would never see that person who triggers the change in
status.  So it's a very difficult thing for a general contractor to
always know if his subs are, you know, the -- what the Census calls
non-employers or actual establishments with employees.

		MR. HAMMOCK:  Would it also be safe to say that if you repeatedly were
having an experience with a subcontractor who was not compliant with
OSHA standards that you may stop working with that subcontractor?

		MR. ZIMBELMAN:  Tony Zimbelman.  Yes, absolutely.  And I might add one
more thing if I could.  In a typical building of the home process, there
are not that many situations where what you're talking about comes up. 
Generally, it's like -- we saw control joints in our basement floors. 
That's done the day after they pour the floor.  They're the only people
there.  They're the only people that have any reason to be there.  The
bricklayers would cause some dust every now and then.  They're outside. 
There's nobody else outside working.  The siding has already been done
because they're laying the brick up to the siding.  And those would --
and the other big silica event would be in the drywall, and they're the
only ones in there.  When they show up to tape and mud and sand, they're
it, that's the only person in there.  So it just doesn't come up that
much in the normal course of homebuilding.

		MR. HAMMOCK:  Um-hum.  And when you are building a home, let's say
you're building it from scratch, who dictates the materials that you
have to install in that home?

		MR. ZIMBELMAN:  This is Tony Zimbelman again.  That would be me.

		MR. HAMMOCK:  Okay.  Do you get specs from customers or anything like
that?

		MR. ZIMBELMAN:  In a custom home, we have to submit our specifications
to the lender with a set of plans, et cetera.  So yes, we do specify
certain materials.  Others are left up for the owner to pick out.

		MR. HAMMOCK:  Final question.  Are there circumstances when you're
building a new home where you cannot introduce water into the home
related to a building method that you're utilizing?  And putting aside
the thing you testified to earlier, which was related to whether there's
water on the site.  Let's assume there is water on the site.  Are there
situations where you are building, say, inside a home where you can't
introduce water?

		MR. ZIMBELMAN:  Tony Zimbelman again.  The answer is yes.  The most
obvious one would be at the end when you're getting ready to lay carpet.
 If you wet everything down to sweep it up, it's going to seep through
the substrate, go down in the basement, stain the ceiling, cause a mess
down there.  So it's just prohibitive.  You just cannot do that.

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

		JUDGE PURCELL:  Thank you, Mr. Hammock.  

		Other questions from the audience?

		(No response.)

		JUDGE PURCELL:  Seeing no additional hands, I'll turn it over to OSHA.

		MR. PERRY:  Thank you, Your Honor.  This is Bill Perry.  And first of
all, let me thank both of you for appearing today and giving your
testimony.  We really appreciate it.  You're helping us out with this.  

		Okay.  Bob Blicksilver will begin our questioning.

		MR. BLICKSILVER:  Bob Blicksilver.  Good morning.

		Dr. Emrath, I'd like to ask some questions about remodeling.  You
appear to take issue with OSHA's estimate of cost per establishment, and
you've provided some data on the sorts of trades that could be involved
in remodeling.  But I don't see in your written testimony or your oral
testimony any indication of what NAHB estimates to be the estimated cost
per, say, remodeler.  Do you plan or have you done any sort of profile
of a typical remodeling job, or is that something you could put into the
record in post-hearing comments for us?

		DR. EMRATH:  This is Paul Emrath.  We do ask in our Remodeling Market
Index Survey periodically what are the most -- what we ask is what are
the common remodeling tasks you have performed during the past year. 
And we did that very recently.  We did that in the fourth quarter of
2013.  And so the most common types of remodeling projects are bathrooms
and kitchens.  Those are always one or two.  Right now, roughly 70
percent of our remodelers tell us they commonly do bathrooms or kitchen,
or each of those separately, we get somewhere around 70 percent.  And I
would be happy to provide that report that shows that if you would like.
 I think I might even have a copy of it with me.

		MR. BLICKSILVER:  Okay.  It would help us if in your interviews or any
survey or polling of the specialists, the typical trades that encounter
silica, the amount of time they're spending in those tasks, any controls
they may already have in place to control dust exposure, that type of
information.  Say, you know, a profile of a typical, again, a typical
sort of remodeling job if you have an opportunity to interview someone
who specializes in that activity.

		DR. EMRATH:  Okay.  This is Paul Emrath again.  I'd be happy to look
into that.  I mean, this is a little more complicated than what we would
normally do in a survey, but I understand it's important, and we'd like
to help.  Would it possible for me to communicate with you on developing
a questionnaire when we're doing that?

		MR. BLICKSILVER:  Yes, I believe so.

		DR. EMRATH:  Okay.  

		MR. BLICKSILVER:  Yes, okay.  Thank you.

		The question about employees or subs who either saw or drill or sweep
non-wood or metal, do you think that you've captured all silica
materials?  I mean, I'm thinking just plastic and vinyl might be
considered non-wood or metal, and I don't know how much silica is in
that.  So, you know, I wonder just how much we've really restricted
these activities or trades to strictly silica exposure.

		DR. EMRATH:  This is Paul Emrath again.  Yes.  Again, you know, in the
context of a very, you know, simple one-page questionnaire, we had to,
you know, had to have a brief description.  And we had -- we did
provide a brief paragraph on -- at the top of the questionnaire saying
what -- listing some of the things like, you know, asphalt and concrete
and things that we know contain silica, which I'll also get that to you.
 

		But I wanted to -- well, I thought there was a gray area.  I thought,
you know -- there are a couple things.  Our labor staff, you know, were
able to tell me, you know, wood does not contain silica.  A lot of other
things -- either it's the material itself or the -- or maybe some of
the materials that are used in attaching it together or whatever might
contain silica.  So I mean, it was deliberately a broad question that
was designed just to rule out at this first go-around things that we
knew could not contain silica, which I think are relatively few,
although important categories of construction material like, you know,
steel and lumber.

		MR. BLICKSILVER:  Okay.  So again, maybe in post-hearing comments, you
could sort of clarify those particular materials where your members
believe they do encounter silica just to sort of narrowly define the
types of materials.  Is that something that you could, again, interview
a few of your members and just to sort of refine that scope question?

		DR. EMRATH:  We can certainly try to do that.  I would say -- this is
Emrath again -- I would say the same thing I did in terms of asking a
remodeler these questions.  I'd like to be able to work with you on the
questionnaire.

		MR. BLICKSILVER:  Okay.  Sure.

		DR. EMRATH:  I will say when I did these things, realizing that I'm
not an expert on the silica content of various things, I did go to our
labor staff, particularly Rob Matuga, who knows a lot more about that
than I did, and you know, so I had some expertise driving how I phrased
the question.  

		MR. BLICKSILVER:  Thank you.  Okay.  Now, on the use of objective
data, you answered some questions earlier.  Do any of your larger
members or even smaller, any of your members use objective data?  Are
you aware that some may be using objective data in guiding the
contractors in, you know, assigning controls and setting up regulated
areas and those types of things?

		DR. EMRATH:  This is Paul Emrath again.  We haven't asked a particular
question like that, so I don't have any first-hand knowledge.  If you
ask me to, you know, speculate, I would say some of the larger
operations, it's likely they have, you know, some of the people who have
more construction employees of their own, which would be, you know, some
of the larger builders.  They'd be more likely to do that.

		MR. BLICKSILVER:  Thank you.

		On regulated areas, you indicate in one of your slides that there are
no costs for certain trades, electricians, plumbers, flooring
installers.  Could you foresee that regulated areas or access control
plans, that those might limit exposures to some of these trades and
concentrate those trades with higher exposures, and again, sort of limit
the ones who may be sort of peripherally exposed to silica?

		DR. EMRATH:  This is Paul Emrath.  That's a very general question
that's asking me to speculate an awful lot.  There's certainly going to
be some subset of activities and trades that fall into a category like
that.  But I would think if you look at an occupation like carpenters
and just the different things that those people will do in the, you
know, in the course of their job, in the different kinds of carpenters
and people, you know, doing the countertops, doing the siding.  I think
it's going to be hard to narrow the focus on carpenters very much, for
example.

		MR. BLICKSILVER:  Okay.  Just a couple more questions on your profit,
your comments on OSHA's profit rate estimates.  And in one of your
written comments, you provided a timeline of profit rates. And I just
note for the record that your NAHB cost of doing business study
determined that the profit rate in 2012 was 5.7 percent.  And there
seems to be also a trend upward from 2008 to 2012 of average profit for
single-family home builders, 1.4 percent in 2008, 4.7 percent in 2010,
and 6.0 percent in 2012.  You seem to be critical of OSHA's applying of
a profit rate across a range of establishment sizes.  Has NAHB estimated
profit rates for smaller employers that would guide us -- guide the
Agency?

		DR. EMRATH:  This is Paul Emrath again.  You've pretty much seen what
we have in that written testimony.  That's what we have.  I'd be willing
to take a look at breaking that down further.  The chart he's referring
to distinguishes between small volume builders with fewer than 26 starts
per year and production builders, defined as 26+ starts a year.

		MR. BLICKSILVER:  Um-hum.  

		DR. EMRATH:  Just the size and scope of that survey, I'm afraid, isn't
going to allow us to break it down much further than that and get any
kind of reliable results.  But I can take a look at it.

		MR. BLICKSILVER:  With a small volume builder, would that be a pretty
good sort of proxy for an SBA-defined small employer in the home
building industry?

		DR. EMRATH:  I think almost all builders are -- this is Paul Emrath
again -- are small.  I mean, the SBA, their threshold is $33½ million
of revenue.  Very few of our members have, you know, $10 million if
they're single-family builders.

		MR. BLICKSILVER:  Okay.  Finally, you commented that you didn't see
any recordkeeping costs in the PEA, and I just wonder if you in the
Federal Register notice were aware that there's a report on the
information collection requirements, the recordkeeping burden.  There's
a section in the proposed rulemaking with totals on page 5643(a).  Did
you get a chance to look at that, or could you please just to return
comment on what you see there?  Also, there's an ICR paperwork package
with the detailed estimates by provision if you could review that and
comment on that as well?

		DR. EMRATH:  This is Paul Emrath, and I'd be -- I was aware of the
first of those, but I didn't spend a lot of time on it just because my
assignment was really to, you know, review the PEA.  That's something
that our labor staff asked me to do.  But yes, I'd be happy to look at
it and provide written comments --

		MR. BLICKSILVER:  Thank you. 

		DR. EMRATH:  -- for both of those.

		MR. BLICKSILVER:  Okay.  That's all.

		MR. ANDREWS:  Hi, this is Pete Andrews.  First of all, thank you for
coming.  I have a question for Mr. Zimbelman.  This is in regards to
training.  Do you provide training on the hazards of silica exposure for
your members?  Please describe for the record.  And how do you determine
the trigger for a certain exposure level on who to train?

		MR. ZIMBELMAN:  Okay.  When you say members, are you talking about my
local association members, do I provide training to them, or are you
talking about my subcontractors on the job?

		MR. ANDREWS:  Both.

		MR. ZIMBELMAN:  In answer to the first question, we do a training
session on the HazCom or GHS, Global Harmonization, we offer that course
about twice a year.  And when we do teach that, yes, they get a little
bit of information on hazardous chemicals, hazardous materials.  I'm not
sure we address silica directly because it hasn't been that big a deal
up till now, but I suspect we probably will in the future bring it up
more.  

		As far as my subcontractors, like I stated before, we all have safety
plans.  I have shown them all my safety plan. I require them to do their
own.  We also had our association teach a course on a written safety
plan.  So if they come to the course, it's a pretty elaborate two or
three-hour long course, but when they're done, they have a safety plan
that we'll type up for them, and it's specifically contoured to their
business.  

		So yes, as far as me training them personally, between me and my
subcontractors, it's more of just a day-to-day kind of dialogue of what
we need to be doing.  

		MR. ANDREWS:  Thank you.

		MR. ZIMBELMAN:  You're welcome.

		MR. ANDREWS:  I'm going to turn this over to David O'Connor.

		MR. O'CONNOR:  Thanks, Pete, and thank you for appearing to testify
today.

		I wanted to explore a bit more about use of respiratory protection and
the indications in the NAHB written comments that there is increased use
of respiratory protection, particularly 95 respirators.  But there was
also an indication both in the written comments and testimony we heard
this morning that exposure monitoring isn't typically done.  

		And I was just wondering what the basis was for deciding when that
respiratory protection would be used and deciding that the N95 would be
the appropriate type of respiratory protection?

		DR. EMRATH:  Well, this is Paul Emrath. I mean, I personally, you
know, since I'm not a home builder don't make that decision for anyone,
so if Tony can't answer it, we'll have to do some research and maybe get
back to you, but -- 

		MR. ZIMBELMAN:  Yeah, this is Tony Zimbelman.  I'm going to have to
defer to NAHB staff to get you an answer on that.

		MR. O'CONNOR:  Okay.  Thank you.  And one other request.  There is
some mention in the written comments, and Mr. Zimbelman, you touched on
it in your testimony this morning as well, that OSHA needs to have a
clear, concise, easy to understand standard.  And I was wondering if you
had any specific suggestions.  Clearly, from what we heard, NAHB has
some issues with what we've proposed, but I was wondering if you had any
specific suggestions as to what changes would be appropriate short of
withdrawing the rule and going back to the drawing board?

		MR. ZIMBELMAN:  That's funny you should ask.  Yes, I do.  I guess
my -- what I would envision is that the Table 1 could either be revised
or scrapped and start over, but what I would like to see is a category
by trade, like one for the masonry people, one for the concrete people,
and each task that they would do whether it be, you know, sawing control
joints or sawing bricks, that -- and you're not going to like this, but
I would think that that would be OSHA's responsibility to do that
testing, figure out that task, and then put in that report this is what
you need to do if you're doing this task.  That way, you would know
beforehand.  Right now, I kind of feel like you're making me do that. 
You're making me decide what's dangerous and what isn't.  

		I think that that table should be definitive that if I'm a bricklayer
and I'm going to stand there and cut bricks for four hours, I need to do
this.  If I don't have any water, I need to do this.  If I have water,
fine.  We use the water.  And it could -- and drywall, masonry,
plumbers, anybody that has one of these silica-related tasks to do, all
they got to do is look at the table and say I'm a plumber, I'm doing
this, this is what I have to do.

		MR. O'CONNOR:  Okay.  So do I understand correctly that in your view,
Table 1 doesn't get into sufficient detail or simply needs to be broken
down by the various trades in order to provide appropriate guidance?

		MR. ZIMBELMAN:  Yeah.  This is Tony Zimbelman again.  The way Table 1
is written right now, personally, I have trouble even figuring it out. 
My subcontractors definitely will have trouble figuring it out.  And
there's not nearly all the tasks that happen silica-related in the
table.  I think we talked about several of them today.  Plumbers drill
holes through concrete walls.  They're not in there.  What are they
supposed to do?  Deck builders mix concrete by hand.  They're not in
there.  What are they supposed to do?  There's several of the -- our
carpenters that put up siding, cement siding, they cut cement siding
with saws.  It's not in there. What are they supposed to do?

		MR. O'CONNOR:  Thank you.

		DR. COBLE:  This is Joe Coble.  And a question for Mr. Kimbelman
[sic] regarding what is your estimation of the percent of time during
the construction of a new home that people are involved in working on
materials that are known to contain silica?

		MR. ZIMBELMAN:  What percent of the time?  This is Tony Zimbelman.

		DR. COBLE:  Or just how often, I mean, roughly?

		MR. ZIMBELMAN:  Well, the entire foundation process, which would be
the basement and the floors, of course, is all concrete in our neck of
the woods.

		DR. COBLE:  Um-hum.  

		MR. ZIMBELMAN:  I don't know how to put a percentage on it, but I can
tell you that takes about a week and a half to two weeks that you have
workers actually dealing with concrete every day.  The masonry crews on
a typical house can lay up all the brick or stone in about three days. 
The drywall crew is in the house -- a typical house of mine, a drywall
crew will be in there a week and a half.  And the other tasks are, you
know, just so small, they're kind of insignificant when they happen.

		DR. COBLE:  Okay.  Thank you.  I was interested in the issue of the
OSHA compliance with your subcontractors.  Now, with these
subcontractors, do you actually have a contract that you sign with these
people?  I mean, do they -- is there a written contract?

		MR. ZIMBELMAN:  Tony Zimbelman again.  When we started out many, many
years ago, we had contracts.  Over the years, it's kind of become I'll
do what I say, you do what you say.

		DR. COBLE:  Yeah.

		MR. ZIMBELMAN:  And we'll be happy.  And it's worked very well.

		DR. COBLE:  When you have written contracts, does it specify anything
about doing the work in accordance with applicable OSHA standards in the
contract?

		MR. ZIMBELMAN:  Yes.  Originally, we use kind of a boilerplate
purchase order or whatever you want to call it, a subcontract agreement,
that all of that in there.  And technically, I suppose I could say we're
still working under them since we signed them, you know, some of them 15
years ago.

		DR. COBLE:  So even these non-employers could conceivably have an
obligation to comply with OSHA regulations with respect to doing the
work the way you want it done as a subcontractor?  

		MR. ZIMBELMAN:  I think even my subcontractors that are sole
proprietors, self-employed, I still think they have an obligation to
abide by the OSHA regulations.  Even though, you know, technically,
they're exempt from them, they're still part of the overall building
process, and if they work around other people, they need to be safe.

		DR. COBLE:  Right.  And then, finally, just on Table 1, in the
interest of trying to simplify and make it workable, if, for example,
the table said "when drilling holes through concrete indoors the drill
should be equipped with a local exhaust ventilation system," would that,
in your mind, be a reasonable entry on the table?  You know, regardless
whether anybody else is around or just as a precautionary measure, you
want to require local exhaust ventilation when drilling concrete walls
and doors by plumbers?

		MR. ZIMBELMAN:  This is Tony Zimbelman.  I think you should test that
operation, and if it's above the PEL limit, then make the appropriate
engineering control required.  If it's not, let him use a dust mask.

		DR. COBLE:  And just let the dust fly everywhere -- 

		MR. ZIMBELMAN:  Well, that's what -- 

		DR. COBLE:  -- and potentially expose other employees?

		MR. ZIMBELMAN:  That's what you're going to test.  The dust may not
fly everywhere.  When you're drilling a hole through a basement wall, it
just falls down in a pile.  It doesn't go everywhere.

		DR. COBLE:  Okay.  

		MR. ZIMBELMAN:  So you may not need any engineering control at that
point.  But that's what I'm getting at.  It would be easier if they
could just -- if that operation had been tested that we know we'll be
safe if we do this.

		DR. COBLE:  Um-hum.  Okay.  Thank you.

		MR. ZIMBELMAN:  You're welcome.

		MS. KRAMER:  This is Alison Kramer.  I just have a couple questions
for you guys.  My first is for Mr. Emrath.  I know you've answered a
lot of questions about your survey so far.  I have one more.  Did the
"don't know" responses include the survey respondents who just didn't
respond to that question?

		DR. EMRATH:  This is Paul Emrath.  No.  It included only -- the
tabulations and those charts were based only on people who gave answers.
 They could check it was not applicable, and I think we got very few of
those, and they weren't in there either.  So the "don't knows" are
people who specifically checked a box saying they don't know.

		MS. KRAMER:  Okay.  So there may have been some subset of the 203
respondents that didn't answer that question but that weren't captured
in the "don't knows" or in the -- 

		DR. EMRATH:  Oh, yes.  That's correct.

		MS. KRAMER:  Okay.  

		DR. EMRATH:  And if you're really interested, I can get you all of
those percentages.  We have tables with those.  

		MS. KRAMER:  That'd be great.

		DR. EMRATH:  And in fact, I think it'll be in the report that I'm
going to submit later.

		MS. KRAMER:  Perfect.  Thank you.

		Moving on from the survey, I am interested in how Mr. Zimbelman, how
you keep your records now.  I imagine as a small business owner you have
to keep a number of records, tax, payroll, how to comply with lead
standard, the asbestos standard, things like that.  How do you keep your
records now?

		MR. ZIMBELMAN:  I'm responsible for all of that.  So I do the required
documentation and keep them in a file in my office.

		MS. KRAMER:  So paper, not computerized?  Just checking.

		MR. ZIMBELMAN:  Yeah, it's -- I'm 62.  I'm not much of an IT guy. 
Yeah, it's paper.

		MS. KRAMER:  Do you -- no, I think that answers my question on that.

		MR. ZIMBELMAN:  Okay.  

		MS. KRAMER:  Now, I appreciate your invitation to come to Kansas. 
I've only been there so far in the summer.  I'm told it's quite cold in
the winter.  Do you do construction in the winter in Kansas?

		MR. ZIMBELMAN:  Yes, we do.  Our winters are -- they're not like
Minnesota where it might get cold and never get above freezing.  It'll
get cold for two, three, four days, and then it might get up into the
40s for a couple of days.  That allows us -- if we need to get a
basement in, we can actually do that in that time span.  Once we get the
basement in, which is really the only thing the weather kind of hinders
us on, we can go ahead and, you know, frame and roof and do things like
that.  Of course, we would have problems with laying masonry when it's
cold, and stuff like that.  But there, again, you get those two or three
days where it's nicer, and you can still work.  So we're never
completely shut down.  The longest I can ever remember in my 21, 22
years is I went for 30 days once and never did one single thing.

		MS. KRAMER:  Okay.  Thank you.  I have one last question.  When
Ms. Nadeau was talking with Mr. Emrath about tasks that were done
repeatedly from house to house, I believe you were nodding your head
during that to kind of indicate that that was your experience.  Could
you say a little bit more about that?

		MR. ZIMBELMAN:  Could you repeat that?  I'm sorry.

		MS. KRAMER:  Of course.  I believe Ms. Nadeau was asking Mr. Emrath
about tasks that were done repeatedly.  So say if you're working on a
granite countertop, you always know that you're going to need to drill
some holes in that granite countertop.  Do you find that you can kind of
predict, all right, house A, I'm going to need to do these tasks. 
They're the same tasks that are going to happen roughly on the same day
in house B.  

		MR. ZIMBELMAN:  Yes.  This is Tony Zimbelman.  The reason I was
nodding my head is because it kind of fits into this schedule that I
would like to see in that, yes, we can predict pretty much on every
house these things will happen almost every time.  And that's why it
would be easier if everybody knew when they walked in the house, you
know, after a period of time, after they got used to it, they would just
automatically do what they're supposed to do.  It'd be part of their
routine.  They'd get their respirator out or whatever they need to do
the task.

		MS. KRAMER:  Thank you.

		MR. ZIMBELMAN:  Yes.  

		JUDGE PURCELL:  Thank you, Ms. Kramer.  

		Any further questions from OSHA?

		MR. PERRY:  Yes.  This Bill Perry.  I have just a few.  Let's see.  A
question about respirator use because -- and I'm going off of the
NAHB's written comments here a bit, too, where -- and I think we've
heard you, both of you, I think, say that N95s are the predominant means
of dust control in the home building industry.  Would you agree that
that just kind of -- are people just not aware that there is a current
exposure limit for crystalline silica in our construction regs and that
that rule requires the use of engineering controls where it's feasible
to use them?  Are people just not aware of that or is there something
else going on there?

		MR. ZIMBELMAN:  Tony Zimbelman.  I would agree with you.  I think it
is a lack of knowledge of the regulation, the current regulation, and I
think what they're doing right now is, you know, when -- you kind of
inherently know when you're doing something and you shouldn't be
breathing that, then you get a dust mask on.  Like, when I sweep out
houses now, I wear a dust mask just because I know that's probably the
right thing to do.  And I've done enough of it in my life that it
probably would have built up on me by now.  Currently, I think that's
what's going on.  It's just they know I probably need to take this
precaution when I do this event.

		MR. PERRY:  Okay.  Thank you.  And I get a sense from what you were
saying earlier about your subcontractors -- I think it was the issue of
regulated areas -- that there's pretty good communication, it sounds
like, between subcontractors, your various subcontractors on site, that
if somebody's doing something hazardous or might affect the work of
another, they communicate.  Is that -- would you say that that's fairly
typical in the industry also?  

		MR. ZIMBELMAN:  Yeah, this is Tony Zimbelman.  Yes, absolutely.  I
think the difference, or the misconception maybe it is, is like a
national home builder, he might be building -- he might have 40 houses
going in one development, you know, all next door to each other.  But
there's still just a few people in each house.

		MR. PERRY:  Um-hum.  

		MR. ZIMBELMAN:  It's the daily events that they need to do.  And then
the next day or three days later, they all move over a house.  So even
though there's a lot of people in that development, there's still a very
small exposure in each house.  Does that make sense?

		MR. PERRY:  No, it does.  It's a scale.  I mean -- 

		MR. ZIMBELMAN:  Yes, yeah.

		MR. PERRY:  -- a small scale than, say, commercial -- 

		MR. ZIMBELMAN:  Right.  And I'm sure even in -- you know, my subs are
friendly with each other and understand, and I'm sure on the bigger
developments, they even have a better concept of the safety because, you
know, they have a safety director, and they're getting these weekly
talks.  So yeah, I think it's pretty common.  Everybody is friendly to
each other, and nobody's trying to hurt each other.  And nobody's, you
know, purposely throwing silica.  I mean, there is a general
understanding in the home building business that dust can be dangerous,
and you need to take some precautions, but maybe not as far as what
you're suggesting.

		MR. PERRY:  Okay.  Very good.  Just wanted to ask about a comment in
the NAHB submission.  I don't know if you have it in front of you.  It's
on page 29.  But it deals with water, where they say water is not
necessarily immediately available on residential construction sites. 
And I think you spoke to this also.  Is that mostly a cost issue or is
there any reason why if water needed to be present on a residential site
before the continuous supply is made available, is there any reason why
it can't be made available?

		MR. ZIMBELMAN:  Tony Zimbelman.  Okay.  I think there's a difference
in the regions that we build in.  Like, some states don't put in
basements, so when they do the infrastructure, they probably put in the
water meters at the same time.  When we put a basement under a house,
the water supply line comes through the basement wall.  So first of all,
I have to have a basement -- and I understand what you're saying.  I
just want you to know why we can't get water when we need it on a house
with a basement.  I know you're asking about could we set up a 55-gallon
barrel and make a -- is that what you're -- 

		MR. PERRY:  Or truck it in, yes.

		MR. ZIMBELMAN:  Or truck it in.  I mean, if we had to, we would.  I
mean, if this goes through, that's probably what we'd have to do.  But
right now, everybody hauls their own water in.  The bricklayer will
bring a 55-gallon barrel, and he'll either get water from one of our
model homes or he'll bring it from home, or I'm sure some neighbor's
water gets stolen.  I'm not that naïve.

		MR. PERRY:  No, I'm just -- 

		(Laughter.)

		MR. ZIMBELMAN:  The drywallers bring their own water if we don't have
water.  So up to this point, there hasn't been any -- everybody
survives.

		MR. PERRY:  Right, right.  Okay.  Very good.  Thank you.  

		Just one last question, Mr. Emrath.  I think you commented earlier in
response to a question that you thought it might -- and tell me if I'm
mischaracterizing this, okay?  But I think what I heard you say was you
thought it wouldn't be possible to collect enough exposure information
to really characterize the exposure of different kinds of work in
different conditions so that it might enable somebody to anticipate on a
future job what do expect.  But you haven't -- have you or anyone at
NAHB really done an analysis or consulted with people in the -- with
heightened industrial hygiene expertise to really kind of figure out a
plan or a program that might develop useful information?

		DR. EMRATH:  Well, I haven't done that.  That would be a little
outside the scope of what I would normally get involved in, but I can
relay that question to some of our other staff who would be more likely
to do that.

		MR. PERRY:  Okay.  Very good.  That would be helpful.  I appreciate
that.  

		That's all I have, Your Honor.

		And thank you both again for appearing today.

		JUDGE PURCELL:  Thank you, Mr. Perry. 

		And thank you, gentlemen, for your testimony today.  I appreciate it. 


		Let's go off the record for a minute.  I want to check and see if the
next two speakers are here, William Good -- 

		(Off the record.)

		(On the record.)

		JUDGE PURCELL:  The first is William, representing the National
Roofing Contractors Association, and the second speaker is Rick Olson,
representing the Tile Roofing Institute.  

		Welcome, gentlemen.  After you have a chance to set up, whenever
you're ready, you may begin.  And we'll start with Mr. Good.

		MR. GOOD:  Thank you, Your Honor.  Thank you for having us.  And my
name is William Good.  I'm the Executive Vice President of the National
Roofing Contractors Association, NRCA.  NRCA was founded in 1886 and
today has about 36 or 37 hundred members in all 50 states and in some 54
foreign countries.  Our members, we believe, do about two-thirds of the
roofing work that's done every year in the U.S. 

		We very much appreciate the opportunity to comment on this proposed
rule on occupational exposure to crystalline silica.  Let me begin by
saying the obvious, which is that our members want to reduce, wherever
possible, exposures to harmful substances at the work site, including
silica.

		Silica exposures in roofing, however, we believe, are very rare, and
are generally limited to operations where tile roofs are being installed
or replaced because the tiles need to be cut to fit in place on the
rooftop.  Tile roofing represents less than 10 percent of the
residential roofing market, and the residential roofing market itself is
roughly a third of the total roofing market.  So we think we're talking
about a relatively small piece of the roofing industry that will be
affected by this rule.  

		And we know from earlier studies that, typically, the only person, we
believe, that's at risk from silica exposure during roof tile operations
is the person actually using the saw to cut the tiles on the rooftop. 
And we want to do everything we can do to protect that person.  But
again, that person operating a saw on a roof represents a very small
segment of the roofing workforce.

		In roofing, as we know, OSHA understands very well, our overriding
concern is and always has been falls.  The leading cause of serious
injury and death in roofing is from falls.  And falls occur generally
from three different -- in three different ways on a roof.  They occur
off the edge.  They occur through openings on the rooftop, and they
occur from ladders.  And, interestingly, I think it's about a third, a
third, and a third, from your data and from data that we have.  

		So the very best safety practices in the roofing industry include
keeping roofing workers away from the edges of the roof to the extent
that we can, protecting them on the rooftop from openings and from falls
and tripping.  The last thing we want them to do is be sliding around. 
And then minimizing their trips up and down ladders because we know
falls from ladders account, again, for about a third of the falls that
we have to deal with.  

		And our fear here, unfortunately, is that the proposed silica rule
will dramatically increase the risk of falls because of the unique
nature of roofing work.  And I'd like to explain that.  

		And first of all, I'd like to just show, for the record, what a tile
roofing job looks like, because I'm not sure that's very well
understood.  And I'd point out two or three things just from taking a
look at that photograph.

		JUDGE PURCELL:  Mr. Good?

		MR. GOOD:  Yes, sir?

		JUDGE PURCELL:  Just so the record is clear, I've been provided with a
written copy of your PowerPoint presentation.  And I'm going to mark it
as Hearing Exhibit 121 and admit it into evidence. 

					(Whereupon, the document 						referred to as Hearing 						
Exhibit 121 was marked and 						received in evidence.)

		JUDGE PURCELL:  And I note the first photographs you're referring to
appears on page 2 of that document.

		MR. GOOD:  Thank you.

		I would point out just a couple things from this photograph.  First of
all, it I hope goes without saying, but we're outdoors when we do
roofing work.  But more important than that, we're the only trade on the
roof in almost all situations.  There aren't other tradesman up on the
roof during roof installation time.  So we don't have other trades that
are affected by the activities that are done on the rooftop.  

		Second, you'll notice that the tiles are preloaded.  Loading is a term
we use in the roofing industry for placing the tiles on the roof before
the job begins.  What that means is there's a lot of movement and a lot
of activity because the tiles have to be moved around to be put in place
by the installing roofer.

		And then the third thing you'll notice is that the roofers are now
under the new fall protection rules, wearing harnesses and lanyards.  So
we already have one rope, if you will, on the rooftop that these workers
have to work around.

		The new rule would require -- whoops, I'm sorry -- the new rule
would require engineering controls to be used as the first resort to
control silica emissions.  And for roofing, engineering controls mean we
either use wetting methods or we use dust reduction through --
presumably through vacuuming.  Both of those, however, introduce new
tripping hazards on the job site, because both involve adding hoses or
air lines -- water hoses or air hoses on the rooftop.  

		In addition to that, when we wet roof tiles, we wind up with slippery
tiles.  And we contribute, then, to the possibility of tripping and
slipping.  And especially on a roof that's pitched or steep, because
most tile installations are done on roofs that are pitched or steep. 
The last thing we want to introduce to the roofing worker is the
possibility of slipping and falling even with safety belts and harnesses
and life lines, that becomes problematic for us.

		We also note that attaching vacuums to handheld saws, which is what we
use to cut tiles on the rooftop, in addition to being cumbersome, those
saws when you start attaching things to them get to be very heavy.  We
know that that's not always an effective methodology.  And that's
because of the nature of the roofing operation.  When we cut tiles on
the roof, there's a lot of movement involved, and the vacuums just don't
work well in all those conditions.

		In addition to that, not all roof tiles are created the same.  So we
have different sizes, we have different weights, we have different
profiles.  And capturing the emissions off of those tiles is not as
consistent as you might otherwise imagine.

		One seemingly easy solution would be to wet the tiles on the ground
while they're being cut.  But there are two problems with that.  First,
the tiles need to be fit.  They need to be custom cut so that they can
fit around the edges and corners on the roof where they're being
installed.  And if we're cutting them on the ground, we can't get the
kind of precise measurement and exact cutting that we need.  So the
result of that can be that the roof just won't perform the way it's
supposed to perform and won't look the way that it's supposed to look.

		And, second, if we're cutting the tiles on the ground, what that means
is somehow we have to get those tiles back to the rooftop.  And
typically, what that means is we're putting more people on ladders going
up and down ladders to get the tiles to the rooftop.  And, again, that's
one of the things that we try in this industry very hard to avoid.  We
try to minimize the time that we have people on ladders.  We try to
minimize -- the other way to get tiles to the rooftop is through some
kind of hoisting system.  That would require more workers working near
the edge of the roof, and that's another thing that we try very hard to
avoid.

		The proposed rule also provides for the use of respirators when
engineering controls alone don't work, and in some cases, requires the
use of respirators in addition to engineering controls.  We know that
respirators constrict the user's field of vision.  We know it makes it
more difficult for them to communicate.  And we know it can create
shortness of breath.  

		We also know, from experience with other materials, that when roofing
workers are required to wear respirators, they simply take them off,
because of all these difficulties, because they can't hear one another,
they can't see as well, and breathing becomes more difficult.  

		So consider, if you will, the use of a respirator outdoors in Phoenix
in August when you're putting a roof on, and imagine what happens.  And
we know what happens, sadly, is that the workers simply either slide
them off of their faces so they can breathe better, because roofing is
strenuous work, or just simply take them off.

		JUDGE PURCELL:  And for the record, the photograph now being displayed
is on page 3 of Exhibit 121.

		MR. GOOD:  So taking all this into account, my point today is a simple
one, which is that ours is a unique industry.  We think we have unique
hazards, and we're concerned that a one size fits all approach to
reducing silica exposures not only won't work for us, but will likely,
in fact, create other hazards that are much more immediate and much more
life-threatening.

		State officials in both California and Arizona working with NIOSH,
labor, and management have studied the issue of silica exposures to
roofing workers and have concluded that conventional engineering
controls like wetting and vacuuming are not effective and that half-mask
respirators are not practical.  In those states, work practices have
been approved until and unless better engineering and long-term
solutions can be found.  So there's an exception for dust collection on
roofing in those states.  We think that exception that was made in those
states was appropriate, and we would ask OSHA to take a similar approach
in this rulemaking.

		Let me also comment briefly on the cost estimates for complying with
the proposed rule.  The estimates that OSHA has would -- for a
small -- for a typical small business are in the neighborhood of $500
per year.  And we know that the cost of the equipment, the engineering
control equipment, just for one roofing crew would be somewhere in the
neighborhood of $2,000.  We've seen estimates even more than that.  Many
contractors operate with several crews.  They're not using that
equipment today, so all these costs would be new costs for the
contractor.  And that's just the equipment cost.  It doesn't include the
cost of air monitoring, costs of medical surveillance, cost of training,
and all the other costs associated with compliance.

		And what we fear, as we always fear, is that higher costs for
compliance for a small part of the industry will simply encourage the
unprofessional contractors and the one-person contractors to do nothing
and take their chances.  That's not good for OSHA, it's not good for
NRCA, and it's certainly not good for the cause of worker safety.  

		So we think it would be much better for us to work with OSHA, work
with the United Union of Roofers, Waterproofers and Allied Workers, and
we've had ongoing dialogue with that union, and see if we can arrive at
workable practical solutions that really get at what we all want to get
at, but do it in a way that doesn't create these additional hazards, and
especially the additional hazards for falls from the rooftop.

		Appreciate the opportunity to be here again, and happy to answer any
questions.

		JUDGE PURCELL:  Thank you very much, Mr. Good.  Would you like to
offer a written copy of your testimony for the record?

		MR. GOOD:  I'd be happy to do that.  There is already one that was
e-mailed, but I have another clean copy here.

		JUDGE PURCELL:  I'll mark that as Hearing Exhibit 122 and admit it
into the record.

					(Whereupon, the document 						referred to as Hearing 						
Exhibit 122 was marked and 						received in evidence.)

		JUDGE PURCELL:  And with that, the next speaker is Mr. Rick Olson,
the Tile Roofing Institute.

		Mr. Olson?

		MR. OLSON:  All right.  Thank you very much.  I'm just waiting for the
PowerPoint to come up.

		All right.  Good morning.  My name's Richard Olson, and I am the
President of the Tile Roofing Institute.  And we're also known as the
TRI.  We were founded in 1974, and we're the only organization that
represents both the concrete and clay roofing tile manufacturers.  As of
today, we have over 95 percent of the capacity to make these tiles
within our ranks, and we include international manufacturers from around
the globe.  We have close to 300 contractor member companies, and we
have affiliated members that represent roofing accessories and related
products.  I wish to thank the panel for the opportunity for us to come
and provide input on the silica issue today.

		As Bill indicated earlier, we're the tile roofing industry, and we
wish to support and promote the need for safer job site environments. 
We want to help reduce the silica or any other harmful substance that
might occur as part of that goal.  

		Tile is a roofing product that's installed on steep slope
applications, making it a little different from other products that are
predominantly low slope.  For us, we are only 4 percent of the overall
residential steep slope market.  If we get added into flat roof, we're
insignificant.  We're less than 1 percent of that overall market.

		We're primarily located in the Sunbelt regions of the U.S. and the
snow and cold regions of the Rocky Mountains and the Midwest.  As a TRI,
we have supported the position of the construction industry safety
coalitions -- questions whether a rule of this magnitude costs and lack
of their validity is really a necessary role.  

		But even more so, as we look forward, as we talked earlier, we're a
steep slope application.  And first and foremost, we're very aware of
the need to prioritize for proper fall protection and -- practices to
ensure compliance with existing regulations.  In the case of residential
roofing, the majority of the roof pitches will be greater than 4 and 12,
or what we commonly would say a 4-inch rise and a 12-inch run.  And as
the pictures show on the top left, today's architectural construction is
going to greater and greater roof pitches.

		JUDGE PURCELL:  Mr. Olson, do you have a printed copy of the -- 

		MR. OLSON:  I do, and I will be presenting that.

		JUDGE PURCELL:  Okay.  

		MR. OLSON:  Yeah.

		JUDGE PURCELL:  You might describe -- there's three photographs in
that.

		MR. OLSON:  Yeah.  The upper left photograph is the one I'm referring
to there that shows how the common new construction is going to more
steeper slopes with more cut up and various roof planes that are on
there.  		

		The lower left, obviously, is somewhat of a traditional one, but
shows, as Bill Good talked, about the fall protection and the difficulty
right now in going up and climbing onto a roof, just trying to get up
there to do any type of remodeling, remaintenance, anything there.  

		The picture to the right shows that we also do do part of what we do
in commercial applications.  And in this case, we can get on rather
high-rise buildings.  In the Sunbelt region of the country, we're the
predominant roofing product that's used on steep slope, and so
therefore, we have to be able to come up with methodologies that we can
use to go on such high applications.

		JUDGE PURCELL:  Thank you, Mr. Olson.  Ms. Kramer handed me a copy
of the PowerPoint presentation.

		MR. OLSON:  Oh, okay.

		JUDGE PURCELL:  And I'll mark that as Hearing Exhibit 123 and will
admit it into the record.  

					(Whereupon, the document 						referred to as Hearing 						
Exhibit 123 was marked and 						received in evidence.)

		JUDGE PURCELL:  And the caption of those three photographs is Roofing
Tiles or Steep Slope.

		MR. OLSON:  Okay.  Because of the nature of our roofing work compared
to other construction disciplines, where silica-based materials are
used, the new proposed silica rule will increase the risk of falls,
resulting in a greater number of injuries and fatalities.  Proper
installation protocols requires that our tiles are preloaded or stacked
on the roof to allow the access from the roofing professional with a
minimum of lifting, moving and shifting of the product during the
installation process. 

		Once again, we put a slide there to show how various stacks can be
done up on the roof, but it really helps illustrate the complexity of
trying to move around on the roof when we're trying to install a
product.  Different from other roofing materials, where they're stacked
totally on the ridge line going down.  

		And our case, due to access and the weight of the products, they have
to be relatively stacked close to where they're going to go in.  This
allows the ability for the roofing contractor to navigate around these
stacks with proper fall protection, which is already a challenge for a
current requirement.

		JUDGE PURCELL:  And for the record, that last slide was captioned
Roofing Tiles Are Preloaded.

		MR. OLSON:  While other masonry materials have the options of cutting
on the ground or on a level surface, roofing tiles do now.  The proper
application of the tiles requires the fit of the individual coursing of
tiles in addition to proper alignment at this transitional points, where
custom cutting is necessary to obtain the required coverage.  

		To achieve the same effect by cutting on the ground, there will be
numerous trips up and down ladders on steep slopes, where the mean roof
heights can range from 30 to 60 feet above the ground, significantly
increasing the fall hazards.  

		In the case of roofing tiles, the limited exposure to dust will occur
during the cutting of the accessory tiles found in the valleys, rakes
and ridge areas of the roof.  As the roof is installed, these areas are
addressed for cutting where final measurements on the roof can be made
to ensure a proper with minimum cutting and proper alignment, as
required by industry standards.  

		And the lower right picture kind of shows as we lay out a valley,
which is the predominant place we cut, we have to have the ability to be
up there to measure a proper distance from the center for the metal
lines.  

		JUDGE PURCELL:  And for the record, the caption on that slide showing
four photographs is Require Rooftop Cutting for Proper Fit: Limited Time
Exposure.

		MR. OLSON:  And, once again, this dependent upon the amount of tile
being cut.  It's not a full-time function for any one employee and will
vary from job to job, as they have different configurations.  So it'll
depend upon the number of valleys on a given roof design to really
understand what that total exposure might be.

		The new rule as proposed would mandate engineering controls to be used
as a first resort to control silica emissions.  For roofing, engineering
controls will require either a wetting or vacuuming apparatus for
cutting, which brings additional fall hazard potential in either case
from hoses and/or balance issues from heavier and more awkward saws with
vacuum containers. 

		In the case of wet saws, introducing water onto steep, uneven surfaces
greatly increases the risk, slips that can occur from -- that can
create such falls.  Such falls account for 76 percent of the fatalities
in roofing.  And 668 fatalities in 2012.  As of this date, we're not
aware of any reported silicosis deaths from cutting of our roof tiles.

		In addition, the proposed rule requires the use of respirators in
addition to engineering controls in some circumstances.  As we stated
above, our primary roofing tile markets are found in the Sunbelt regions
of the U.S. where extreme outdoor temperatures are present for most of
the roofing seasons.  The reduced vision, condensation, and lack of
audible conversation from respirators creates a serious safety hazard. 
In addition, the proper fit of the respirators requires the removal of
facial hair.  There is a cultural aspect for a significant portion of
the blue collar roofing workforce in these areas where our tiles are
installed.  Finally, the current gas-powered saws also require hearing
protection that will further hinder communication, which is critical to
maintaining the safety of all the people on and below that roof.

		In 2006, the TRI worked collaboratively with the Arizona Contractors
Association, Arizona OSHA, Cal/OSHA and NIOSH to review all the current
practices and possible engineering controls that would help reduce that
exposure to silica.  We held demonstrations of various equipments
proposed by several manufacturers as being able to reduce that exposure.
 These included handheld wet saws and dust collecting saws, as well as
full-size table-style saws.  

		Collectively, at that time, we were not able to identify any option
that would address both the silica and fall protection needs to properly
protect the roofer during installation of our tiles.  As a result, in
those states, current work practices have been approved until and unless
better long-term solutions can be found.  And over the last few months,
we have even met with saw manufacturers to further review possible new
technology that have not yielded any additional options for us.

		As a TRI, we continue to advocate that the exception for roofing that
is allowed in California and Arizona is appropriate to maximize the
safety of the installers on the tile roofs, and we ask OSHA to follow a
similar approach in this rulemaking.  We cannot in good conscience allow
this ruling to decrease the safety of so many of our members in the
roofing industry.  We owe it to them to make sure they are safe as
possible, to have the peace of mind that they are able to go to work and
return home to their families uninjured.

		If the proposed rule is not withdrawn, we would therefore ask that
OSHA conclude that, due to the unique nature of steep slope
applications, it will make it necessary to provide an exception for dust
reduction systems in rooftop operations with roof tile, roofing pavers
or similar materials. 

		Let me also comment briefly on OSHA's cost estimate for complying with
the rule.  OSHA estimates the full cost of compliance would be in the
$500 per year for a typical small business.  Our database of contractors
indicate that almost all steep slope roofing contractors are small
businesses and to comply, the cost is far more than 500 provided in the
draft regulation.  

		The hard cost of just the potential cutting equipment if we could even
find a viable option would be far greater than that.  It is estimated at
more than $2,000 per unit, and numerous units would be required where
multiple job locations are under construction for just the hard cost. 
Due to the nature of these devices, they do have a shorter lifespan
requiring more frequent replacement further adding to the cost.  

		The medical evaluation time for training, air monitoring and
recordkeeping also add up to additional costs that can amount, in our
opinion, to more than $500 per employee.  Therefore, small business
owners, they would be coping with an undue financial burden that the
larger companies would not have to bear in the same proportion.  

		So as the TRI, we wish to be an active stakeholder in the process of
developing safe roofing practices that cover all aspects of the safety,
including fall protection.  We would also ask that OSHA follow the
footsteps of the regional and state OSHA offices by holding additional
stakeholder meetings with NIOSH, our industry, and the roofing
contractors associations all at the table.  It is only through this open
dialogue that the advancement and effective engineering controls can
really be made.  

		And, again, we do thank you for the opportunity to present today.

		JUDGE PURCELL:  Thank you, Mr. Olson.  Would you like to offer a
written copy of your testimony?

		MR. OLSON:  I will do.  Thank you, Your Honor.

		JUDGE PURCELL:  All right.  I'll mark that as Hearing Exhibit 124 and
admit it into the record.

					(Whereupon, the document 						referred to as Hearing 						
Exhibit 121 was marked and 						received in evidence.)

		JUDGE PURCELL:  With that, could I see a show of hands from the
audience from individuals who have questions?  I see one.  Okay.  

		Ms. Trahan?

		MS. TRAHAN:  Hi.  Chris Trahan with the Building Trades.  I do have a
few questions.  And Mr. Olson, you primarily manufacture the tile?

		MR. OLSON:  Yeah.  I represent the industry that actually make the
products.

		MS. TRAHAN:  Okay.  So we talked about -- I think you talked about
the California standard and the exemption that's in place.  This is a
question for Mr. Good.  Are there steps that your members have taken to
address the challenges of cutting roofing tiles since the passage of the
California rule?

		MR. GOOD:  Well, yeah.  We've continued to try to arrive at either
engineering controls that could help with that or work practices that
could help with that.  Unfortunately, the way the proposal is written,
we don't have the opportunity to address the concerns through work
practices.  It has to be addressed through engineering controls.  And
right now, those are not where we would like them to be.  We continue to
work with manufacturers of vacuum equipment and cutting equipment who I
think would tell you that they haven't found the perfect solutions yet.

		MS. TRAHAN:  So you indicate that you've identified work practice?

		MR. GOOD:  Well, we haven't identified work practices, but we think
there may be some.  For example, job rotation might be an appropriate
solution.  We don't know yet.  And the way this rule is written, we
couldn't do that.  It's expressly prohibited.

		MS. TRAHAN:  Right.  Is that the only work practice that -- and I
guess maybe this is a question for both of you because you mentioned
work practices.  Is job rotation, in your view, the only work practice
that you've been able to identify to reduce exposure?

		MR. GOOD:  I think there are others that might be appropriate.  We
haven't done a lot of study in it, but for example, we know that just
the location of where the cutting is done on the rooftop, which way the
wind is blowing has a big effect on what the exposure might be to the
worker using the saw, and those kinds of things we really could explore.

		JUDGE PURCELL:  That response was by Mr. Good.  Mr. Olson, do you
have anything you'd like -- 

		MR. OLSON:  Yeah.  This is Mr. Olson.  We mark on all of our
materials that are going out in the shipment and in our installation
guides that the exposure to such silica is of concern and standards need
to be followed.  And through that and a lot of lessons learned from 2006
work was really how the workers in these areas that tile is so
predominant lay out their crews.  

		So as Bill said, the ability to take a look at roofs and reduce the
amount of time that we exposed doing the cutting to get all the other
things kind of laid up and be ready to go, as we did work analysis back
then and saw that, gosh, they'd get over to there, and the rest of the
roofing crew was standing right there when they were cutting.  Now when
you go to a job, you'll see where they're using the dust masks, where
only the person that's directly, as I showed in the picture, measuring
and doing the cutting is present. 

		And those were some of the lessons learned that have slowly in the
Arizona roofing contractors and western states roofing contractors as
they work with their people and their safety officers are saying, you
know, these are best practices that can be put in place.  So it's a
topic that has been to the forefront in those areas.

		MS. TRAHAN:  Okay.  So some of the controls are planning the work and
respirator use?

		MR. OLSON:  Could be, yes.

		MS. TRAHAN:  Is what you've identified as being -- 

		MR. OLSON:  Yes.  

		MS. TRAHAN:  You mentioned that there are different variables that
affected exposure during cutting the tile on the roof, wind, other
variables.  Do you have exposure monitoring that either association has
conducted that you're able to introduce them to the record?

		MR. OLSON:  No.  OSHA and NIOSH in 2006-7 did some work in the Arizona
and California area that was the basis of it.  Since then, I'm aware of
a Florida OSHA one where they did a roofing contractor that had no
exposure trickle over to the current ones.  We have been trying to
perform a little bit, but since this regulation was drafted that we've
been doing in conjunction, and once that's completed, we're happy to
share those numbers that, you know, come out from that.

		JUDGE PURCELL:  That's Mr. Olson responding.

		MR. OLSON:  Oh, I'm sorry.

		JUDGE PURCELL:  That's all right.

		MS. TRAHAN:  So there is air sampling that's been conducted more
recently?

		JUDGE PURCELL:  Ms. Trahan, let me just ask Mr. Olson if he -- or
I'm sorry -- Mr. Good if he had anything to add to that.

		MR. GOOD:  Only that, yeah, only in response to her last question. 
Yes, there is some recent air sampling, very limited, that's been done
that has not yet been completed.  It was done after the proposal was
issued.

		MS. TRAHAN:  Is it -- 

		MR. GOOD:  We'll be happy to make it available once it's completed. 
It's not -- it's still in the final analysis stage.

		MS. TRAHAN:  Okay.  Thank you.

		MR. GOOD:  Um-hum.  

		MS. TRAHAN:  And this is for Mr. Olson.  In your written comments,
you say, and I'm quoting, "Current regulations and best practices that
have been implemented to date have helped improve the best practices and
engineering controls used in the roofing trades, resulting in a
significant reduction in silica-based illness and deaths over the last
decade."  Can you describe the best practice -- the practices and
engineering controls and what you base this illness and death reduction
statement on?

		MR. OLSON:  The best practices that were done, as I say, the way
we -- the crews are out there and the way they look at it doing -- and
the job rotation and the awareness that they should be wearing at least
the N95 mask.  Our comments about it helps reduce is really just looking
at the overall statistics, the reductions that have been seen from
silicosis deaths, because the hard part is we cannot find anywhere where
there is an attributed silicose death to the cutting of roof tiles.  

		And we know there are roof tiles -- one of our oldest roof tile
manufacturers, Ludowici, started producing tile in the U.S. in 1922.  So
we know tiles have been around, and you know, they're on the Supreme
Court here and some other facilities in town.  But in the mainstay part,
tile has been there for a lot of years.  But that's where it came from,
is that I am not aware as we reached out for any statistical data that
showed that we had an issue, so we only have to say that the overall
concern for silicosis in the last decade has shown a reduction in those
deaths.

		MS. TRAHAN:  Okay.  Thank you.  And for either panel member, any
medical surveillance conducted on workers exposed to silica from cutting
roofing tile?

		MR. GOOD:  Not that I'm aware of.

		JUDGE PURCELL:  That was Mr. Good.

		MR. GOOD:  Mr. Good, yes.

		MR. OLSON:  Yeah, and Mr. Olson says the same.  You know, it's not an
issue.  We had seen it was a high-risk exposure, saw the damage
controls.  For us, it's known from the old days, you know, crystalline
silica goes way back to the mining days.  And I can tell you I grew up
in the masonry business making pipe.  And it was known and stated on
every invoice that the cutting of this product can create that.  So it's
been the awareness, but I think it's been through the educational
process of raising the awareness.  Actually, after 2006, OSHA actually
came out with a silica one that addressed some tile cutting in it, and
that was the first time we had ever seen such, you know, action there. 
And that's good.

		MS. TRAHAN:  Okay.  And, again, this is a question for both of you. 
The equipment and size blades that are currently used for cutting tile,
can you describe that?

		JUDGE PURCELL:  Ms. Trahan, could you move the mic a little closer? 
I'm not sure it's picking up everything.

		MR. OLSON:  Yeah, I'll speak to it.  The length of the blade depends
upon the style of the tile.  And the reasons is we've got to be able to
cut.  So if it's got a high profile, being a really high -- that
blade's got to be far enough to get down to whatever angle to make that
cut.  

		Traditionally, the size being used out there, if you walked up to any
job, let's say, in Arizona or California where tile is so predominant,
it's going to be the Skil saw.  And the Skil saw, once they came out
with the diamond carbide blades, they could get the longevity out of
them.  And so the average roofing contractor will use that.  

		And a lot of it becomes pitch-based.  If we're down at a relatively
low roof slope, they'll look and say, gosh, I could use these, as I
could get from Home Depot a Skil saw, but I can get faster cutting rates
if I go to a slightly larger like a K12 or a gas-powered saw because I
can get it to cut much faster.  But as soon as we start getting up into
the steeper roof slopes, 6-12 and above, then because of the magnitude,
and you know, these saws weigh -- the gas-driven, larger saws weigh 33
pounds -- so that's just under a bag of grain if you're from the farm
community -- that you're going to have to take around the roof.  

		So, really, when we get to the high-pitched ones, what we're seeing
used are the Skil saws, which are battery-operated ones, or we're seeing
a grinder with a diamond blade on it.  Because once again, it's a
relatively, you know, if we're doing 20-foot of cut, you know, there's
going to be 15 or 20 tile that we have to cut some portion.  It can cut
that relatively quick.  

		Once again, it also depends upon the roof design.  If we get into a
roof that has a lot of dormers or multi-plane roofs to where there has
to be a lot more cutting, then they have to get a little better at how
they lay it out.  But those are the traditional saws being used.

		JUDGE PURCELL:  That's Mr. Olson responding.

		MR. OLSON:  Oh, sorry.

		MR. GOOD:  Yeah.  And this is Bill Good.  If I could just kind of
reinforce the point.  When you're talking about being on a roof that
might be 12 and 12 pitch, I mean, really, really steep pitch, and you've
got already a fall protection line, and now maybe you have introduced a
respirator line or a vacuum line or a hose line onto that roof, and you
put a 33-pound saw in a roofing workers hand, you're just asking for a
problem, because it becomes much more likely they're going to stumble. 
If they stumble, it becomes much more likely they're going to come
across a line of some kind up there.  And we're really concerned that
that just creates to some unintended consequences.

		MR. OLSON:  And I think the only other point we need to add in there,
we did explore in 2006 the option of could you mark a bunch of tiles,
take them over and take them down the ladder, cut them on the bottom. 
The problem is when the individual has the three tiles in his hands and
he goes over to go down the ladder, now he doesn't have two hands
available to get onto the ladder.  And so now you got the problem, well,
what does he do.  Well, he's going to -- does he bend over and put
these down?  Is there another partway off and we transition a 10-pound
tile that could drop?  

		So when we really tried to look at it with NIOSH and Arizona OSHA and
even Cal/OSHA was the concern of really looking at the whole process,
not just, okay, hey, we're up there cutting and there might be a little
dust, but gosh, what does the alternative do.  And if the alternative
created a greater chance of that person tripping and falling or knocking
product -- you saw some of those on steep slope where those stacks are
there that if they tripped over and knocked those stacks and they went
and hurt somebody else, you know, that kind of issue.  

		JUDGE PURCELL:  That additional response was Mr. Olson.

		MS. TRAHAN:  And you mentioned a Skil saw, a grinder with a diamond
blade, and then a K -- 

		MR. OLSON:  Well, like, the gas-powered bigger saws.

		MS. TRAHAN:  A masonry saw?

		MR. OLSON:  Yeah, so, like, a lot of the new larger masonry saws that
take water attachments and everything else or a rather large blade, and
those are the ones that cost over $2,000 and they weigh over 30 pounds. 
And this is Mr. Olson.  

		MS. TRAHAN:  Okay.  And for those three types of saws, what is the
typical lifespan?

		MR. OLSON:  Well, you know, I haven't surveyed the actual time span,
but you take a traditional Skil saw that you're cutting, they'd really,
well, become a throwaway.  So if they're doing a lot of cutting, they
might throw away one a month, and they're 200 bucks, you know, or three
months, whatever it's going to be.  

		If we go to the expensive $2200 saw that's going to have a water
attachment or a vacuum attachment, those are going to have -- they
really aren't tried and tested to know with a water attachment on it how
long until they clog up, because it's all about we're creating a slurry
now.  We're taking a cementitious material and making it a slurry, and
at night when they're done, you know, it's going to cake up.  Likewise,
if we use a vacuum system, you know, are we going to encase that.

		And like I say, we recently just played with some of the new saws that
they said could do it, and we couldn't quite get there.  They weren't
able to capture that.  This is Rick Olson.

		MR. GOOD:  Yeah.  And this is Bill Good.  One of the other points,
too, that we didn't make earlier is that when that slurry develops, when
you wet while you're cutting a roof tile, that slurry can also adhere to
the tile, leaving it either unattractive or discolored or both, and
there is no real effective way of getting rid of that, because it's not
just -- we're not just wetting with water.  Obviously, tiles are made
to get rid of water.  That's their whole purpose, but they can't get rid
of that slurry, and that slurry will create problems for the aesthetics
and also for the safety.

		MS. TRAHAN:  And, Mr. Good, did you have anything else to add on the
lifespan of the tools?

		MR. GOOD:  No, ma'am.

		MS. TRAHAN:  Okay.  Thank you.

		JUDGE PURCELL:  Thank you, Ms. Trahan.  Any other questions from the
audience?

		(No response.)

		JUDGE PURCELL:  I'll turn it over to OSHA then.

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

		MR. BLICKSILVER:  Bob Blicksilver.  Just a few questions.  It sounds
like you'll be -- both of your organizations will be providing exposure
data into the record in post-hearing comments.  Will you be able to
associate those data with current controls?  Can you go back and try to
link up, connect the exposure information with the controls that are in
place?  What would help us would be to sort of develop a profile of
current controls in place, types of exposures you're encountering.

		MR. GOOD:  Boy, we haven't done that kind of testing to that degree. 
I'd love to have that data, too.  I mean, maybe there's an opportunity
we could collaborate on coming up with a protocol to get it.  I wouldn't
be opposed to that at all.  But no, you know, the only data we have is
just very kind of fundamental, here's a roofing crew here, the exposures
on a fairly typical tile operation.

		MR. BLICKSILVER:  Do you have a set of contractors you're sort of in
communication with that you could sort of ask, you know, interview-style
or something what sorts of controls typically do you bring up to the
roof to limit dust exposure?

		MR. GOOD:  Sure.  We've been -- 

		JUDGE PURCELL:  Let me, let me -- 

		MR. GOOD:  I'm sorry.

		JUDGE PURCELL:  -- make sure the record is clear.  That was Bill Good
responding to the last question.  And, gentlemen, it would be easier, I
think, on everybody if you just -- if when you respond to identify -- 

		MR. GOOD:  If we did that instead of you?

	 	JUDGE PURCELL:  Yes.

		(Laughter.)

		MR. OLSON:  We'll get better at this. 

		JUDGE PURCELL:  Thank you.

		MR. OLSON:  Sorry, Your Honor.

		MR. GOOD:  By tomorrow. 

		MR. OLSON:  Yeah.

		(Laughter.)

		JUDGE PURCELL:  Go ahead.

		MR. OLSON:  This is Rick Olson.  I would add in there that we did our
studies in conjunction with NRCA, and what we tried to do is quickly go
out and identify a clay tile project and a concrete tile project to
understand.  And we picked one in the Southern California area and then
one in the Arizona area.  And both of them would be using the typical of
the -- the Skil saw as the saw and using the M95 as the dust mask.  But
what we did is we had them analyze the full crew just to see, you know,
would we trigger at the level with the new regs.  And that was the whole
thing was just to look at the benchmark of it.  And once it's in, we
only have the one, and we're trying to get the other one back, and we're
happy to share that with you.

		MR. BLICKSILVER:  Great.  Thank you.

		MR. OLSON:  And we would also ask if you've done any -- the air
monitoring turned out to be a lot more money than we thought, for one,
which really raised the concern if the individual contractors that are
privately owned had to go out and say "I don't know on this roof if I
have it," you know, I guess we could share it.  I mean, it was $5,000 a
test.  

		And so when you stop to say, wow, what would the small business owner
be up against when he's looking at a roof especially when it was
explained to us, and you know, correct me if I'm wrong, the levels that
we were told by the organization we're having doing it is we could be
down to levels that aren't necessarily visible.  So it's not a case
you'd go up on the roof and say, wow, I have a lot of dust coming out, I
think there's a problem.  They were saying these levels could be down
small enough to where you wouldn't normally look to say, gosh, they
could be there.  And you know, once again, education of how we educate
the roofing community will be huge.

		MR. BLICKSILVER:  Okay.  Thank you.  Just a couple more questions.  On
the cost discussion in both of your written submittals, I'm wondering if
we're that far apart in our annual cost estimate.  Question for each of
you:  Are you aware that OSHA annualizes a capital cost?  So we would
take the cost of the initial first-year purchase of a saw and amortize,
spread that cost out over five to 10 years, whatever we determine to be
the life of the saw.  Mr. Good, please?

		MR. GOOD:  This is Bill Good.  And I would just -- yes, I am aware of
that.  I would just say the typical roofing saw isn't going to last five
years.

		MR. BLICKSILVER:  Okay.  That would be useful information in the
record, please, if you --

		MR. GOOD:  Okay.  Yeah.

		MR. BLICKSILVER:  If you could sort of, yeah, characterize the types
of saws and lifespan -- 

		MR. GOOD:  Yeah.

		MR. OLSON:  This is Rick Olson.  I would add to that.  I would say
today's saws are, you know, as I stated before, they might make it a
month, a couple months, you know?  Even if you go to these new, higher,
more expensive saws, because of what they're trying to do, one, we just
don't know how you get water on a roof because there are no spigots up
by the chimney.  And tab the hose to the roof edge and then the hose all
the way down is a pulling factor.  

		So for us, we started to look at, you know, could we do it on the dry
side, those -- but the reality is, all of those systems, when we tried
to cut more than just a few tiles, were clogging up.  So our estimation
is that you better be saying not will it make it five years for
amortization, but how many of these are you really going to have to buy,
because I think you're going to find that you're buying multiple in a
year.  And these are not cheap saws.  And they're heavy.  

		You know, we look at our roof crews down there in Arizona, and the
peak construction season, unfortunately, is still summer down there. 
And you're above 100 degrees, and we're going to ask them to, you know,
even have a dust mask on, and they've got eye protection and hearing
protection, and now we're going to move them up to a saw that's -- you
know, we've all been in our garage with a Skil saw, and we're now going
to ask them to hold 33 pounds of something that has torque.  So as soon
as they touch it down to cut the surface, it's going to try to move you
a little.  That was some of the things we tried to work through in 2006
that had a tough go.

		MR. BLICKSILVER:  My final question is are you aware that OSHA's
estimate of the costs for the silica rule are just the additional or
incremental costs associated with the rule itself and not combined with
any other safety or health programs that you have in place for medical
surveillance, exposure assessment and so on?  So that's sort of behind
that 5, 6 hundred dollar figure that you mentioned in your comments.

		MR. GOOD:  Yeah, this is Bill Good.  A typical roofing contractor is
not doing medical surveillance because there's no other issues that
would require that.  A typical roofing contractor is not doing the
regulated areas because there are only very, very limited circumstances
where they may have to do that, asbestos, for example.  But asbestos has
been out of roofing materials for 40 years, so that's just not commonly
done at all.

		MR. OLSON:  This is Rick Olson.  I would concur with that.  And we'd
be willing to have discussions to better understand because our intent
is not -- you know, if you're saying we're not that far apart, we'd
like to see.  We pooled our contractors, which, once again, we touch a
lot of contractors that do our tile, and none of them are currently
having to do something.  But just the hard cost of a chest x-ray and the
cost of the volume of your lungs and a TB test, and then, by the way,
since this is kind of a new program, you know, the fit for use.  And
then if somebody is not sure, then we have to go to a cardiopulmonary
specialist.  But the reality, you just take the first step.  You know,
if the chest x-ray is 100 and - you know, I think the last one I saw
from somebody said it was, you know, like $160, then you've got to have
the doctor's visit.  And by the way, none of this is going to be under
their healthcare side.  This is going to be a rack rate -- you know, we
don't know from the agencies that are approved to do this what those
costs will be.  

		We find it hard to understand that that can only be $500 per company,
because I'm sure, as Bill will tell you, roofing companies are small,
and it's really whoever is there at the time to do the cutting of the
valley.  So you may have to say, gosh, I don't know, but all of my crew
might cut at some point.  So it's not like maybe an electrician trade or
a plumbing trade where it's one designated classification within it.  A
roofer on a steep slope has to be ready to do any of those functions.

		MR. BLICKSILVER:  Thank you.  That's all the questions I have.

		JUDGE PURCELL:  Okay.  Thanks.

		MR. ANDREWS:  Hi.  My name is Pete Andrews with OSHA.  First of all,
thank you very much for testifying today.  I have a question for both of
you regarding training.  Do you provide training on the hazards of
silica exposure for your members?  Please describe for the record.  And
how do you determine the trigger of a certain exposure level on who to
train?

		MR. GOOD:  We are not currently providing training to our members.  We
typically don't conduct safety training.  We have developed safety
training materials for our members depending on -- I'm 

sorry -- this is Bill Good -- depending on the hazard and the nature
of the hazard and the required compliance methodology.  So it varies. 
We have not yet done that for silica, however.  I think it's fair to say
we're waiting to see what the outcome of the rule is before we invest
heavily in training to an outcome that is still uncertain.

		MR. OLSON:  And this is Rick Olson.  We're the manufacturing side, so
we include the caution for it and say work and comply with the local
OSHA.  So we leave it to the regional contractors associations or the
individual contractor to work with their OSHA representative.  So we
personally don't do any training, you know, for that.

		MR. ANDREWS:  Okay.  Thank you.  I'm going to hand it over to Dave
O'Connor.

		MR. O'CONNOR:  Thank you.  Just one question for you both.  You had
mentioned the exception to the California regulations on dust control. 
And was wondering if you had any knowledge of the experience of roofing
contractors in California given that they have a lower permissible
exposure limit than we have at a federal level, whether roofing
contractors there are now using respiratory protection since they're not
using engineering controls or whether the exposures are below the level
that would trigger a requirement for respiratory protection?

		MR. GOOD:  I think what's happening -- this is Bill Good -- I think
what's happening in California is most contractors, at least that I'm
aware of, are using dust mask protection, N95s.  They're not going to
full respirators.  I think that's the most common practice in the field
right now.

		MR. ANDREWS:  Okay.  Do you see the N95s as being preferable in terms
of the additional hazards that you had indicated would be associated
with respiratory protection in general?

		MR. GOOD:  Bill Good.  Yes, definitely.

		MR. OLSON:  Rick Olson.  Yes.

		MR. O'CONNOR:  Thank you.

		DR. COBLE:  Yeah, this is Joe Coble.  And a question on the use of
some sort of dust collection up on the roof.  You mentioned that the
dust can discolor the tiles.  So when you're cutting without any sort of
dust collection, what happens to that dust?

		MR. OLSON:  This is Rick Olson.  What he's referring to is wet
cutting.  We've tried and played with wet saws on the ground.  What
happens is you generate heat cutting any of these materials.  And as you
do it, you're pulling the color pigment that's within the tile, because
our tiles actually have color within them, and then a slurry color on
the top, and by heating that and doing that, the slurry line, it injects
that backwards into it.  So when you're all done and you've cleaned it
all off, the homeowner walks out, and here it almost looks like a little
highlighter has gone down the edge of that.  And so they immediately put
that on their punch list for the contractor and say, well, hey, I love
my roof -- and believe me in the areas where tile is used, the roof is
the aesthetic.  They build their house to show multiple roof planes. 
And all of the sudden here are these lines.  And they'll ask them to go
up and take those tiles down and redo them.  

		So, you know, we've tried to play with some of those options, but that
is an issue, but it isn't on the dry side.  The dry side one, we just
found you're now, in most cases, handling two pieces of equipment, you
know, and that makes it tough.  And some of them that we've played with,
they clog up so fast.  You know, in essence, the early ones look like
you got a shop vac that you'd put on your back, and then you'd have the
saw.  

		You know, once again, we're a balance issue, and that's -- you know,
we're all ears.  We welcome the opportunity to work with any option to
try and come up with it.  And as we stated, we last month invited some
of the newer equipment people to the table and had them cut some, and
we're saying, okay, we're getting close, you know, or at least we're --
we got some thoughts here.  But you know, tile is a unique animal.

		DR. COBLE:  Then with regard to who actually does the cutting, you
said anybody has to be able to do it, but it's kind of, you know, dusty,
noisy.  Is it something that a helper or one of the, you know, junior
level people do more often, or is it something that requires a senior?

		MR. GOOD:  Yeah.  This is Bill Good.  I think what Mr. Olson said was
that there are cases where anybody might do it.  I think that's
different from anybody would do it. 

		DR. COBLE:  Yeah.

		MR. GOOD:  So no, you wouldn't typically have an apprentice roofer or
an entry-level roofer handling a saw and cutting valleys and ridges. 
That's a fairly sophisticated skill that takes some experience.  So it's
not everybody on a typical job, but it could be a number of people.

		DR. COBLE:  Okay.  Thank you.

		MR. PERRY:  Hi, it's Bill Perry.  And thank you both for appearing
today.  This has been very, very helpful testimony for us.  I just have
a couple things.  First, just to confirm, I think I heard this, but
right now, the roofers do not have medical surveillance programs that
would involve, like, periodic x-rays every few years; is that correct?

		MR. GOOD:  This is Bill Good.  That's correct.

		MR. PERRY:  And they're not currently routinely measuring exposures
when they cut -- when they're cutting tiles, right?

		MR. GOOD:  That's correct.

		How long are tiles cut for on a typical job?  I mean, on a given day? 
Is somebody cutting them for hours or is it a few minutes at a time?  Or
what's kind of the work pattern?

		MR. OLSON:  This is Rick Olson.  The work pattern really, as I stated
earlier, depends upon how much cutup work the roof is.  If it's a roof
with multiple planes and all that, you might have a person that's at it
for five hours doing it.  You know, a simple one cut, they could maybe
do it in a couple of hours, where they would fall below the threshold. 
But the reality is that we see -- the new architectural styles on new
homes where we predominately put our materials are cutup roofs.  And
more and more they're becoming more cut up because they want the
aesthetic.  So more and more, that's just there.

		So, you know, we would guess we would probably fall at that trigger
point of, you know, the four hours, you know, that we would have to do
it on the wet side look, you know, because we tried to look at it
because the dry side we don't see work, and the wet side, we just have
not seen a mechanism that would get us the water safely.

		MR. PERRY:  Okay.  Okay.  Very good.  Now, if I heard -- I think it
was in response to a question earlier -- you did talk about adopting
some work practices including making sure that there was nobody else up
on the roof when cutting was occurring, so it's only the person
performing the cutting that's on the roof at the time?  Is that pretty
typical practice?  

		MR. OLSON:  Yeah -- oh, go ahead, Bill.

		MR. GOOD:  No, go ahead, Rick.

		MR. OLSON:  Okay.  This is Rick Olson.  Yeah, what we've tried to do
is get away from having -- if you had a five-man crew up on the roof,
having everybody standing there now.  The common work practice is to
reduce that to the minimum number.  Maybe there's a couple guys that
help lay it out, and then when the guy goes to cut, the other guy goes,
you know, upwind or someplace to get away from it.

		MR. PERRY:  Okay.  So you have set up rules, at least, that you could
say it's kind of a controlled access zone in that sense so that people
understand -- 

		MR. GOOD:  Bill Good.  But to be clear, you know, they're not coming
down the ladder and off the roof and just leaving the -- 

		MR. PERRY:  I understand.

		MR. GOOD:  Okay.  

		MR. PERRY:  Okay.  Very good.  Thank you.  And just to make sure, if
it's current practice or typical practice now for people to use N95
respirators, do you know, have roofer companies implemented respiratory
protection programs to go along with that, with fit testing and checking
for medical fit -- 

		MR. GOOD:  It's Bill Good.  I would say it's extremely rare.

		MR. PERRY:  Okay.  

		MR. GOOD:  There may be a few that do that, but it would be extremely
unusual.

	 	MR. PERRY:  Okay.  All right.  Very good.  

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

		And, again, Mr. Good and Mr. Olson, thank you for appearing today.

		MR. GOOD:  Thank you for having us. 

		JUDGE PURCELL:  Thank you, gentlemen.  

		That concludes the morning portion of the program.  It's now 12:15. 
We'll resume at 1:15 this afternoon.  We're in recess.

		(Whereupon, at 12:15 p.m., a lunch recess was taken.)

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

(1:15 p.m.)

		JUDGE PURCELL:  Good afternoon, ladies and gentlemen.  We're ready to
get started.  So if you'll take your seats, this is the afternoon
session of day 12 of the OSHA silica rulemaking hearing.  

		The first item on the agenda is the testimony of two representatives
of the Tile Council of North America.  Seated here at the table next to
me are Mr. Eric Astrachan and Dr. Jyothi -- forgive me if I
mispronounce this -- Rangineni.  

		And I understand Dr. Rangineni, you're going to go first?

		DR. RANGINENI:  Yes.

		JUDGE PURCELL:  All right.  When you're ready, you may proceed.

		DR. RANGINENI:  Thank you.  Good afternoon.  My name is Dr. Jyothi
Rangineni, and I work as a research scientist at Tile Council of North
America.  I have a Ph.D. in microbiology, specializing in -- from
Clemson University, South Carolina.  In addition to microbiological
research at TCNA, I am also involved in the development of industry
standards.  I am leading the effort to develop an ISO standard for
quantifying antibacterial activity of treated sediment surfaces and also
lead the effort to develop a protocol to evaluate the hypoallergenic
qualities of tile and installation products.

		Today I would like to focus my testimony on two issues: the toxicity
of forms of silica and raw materials in tile manufacturing and studies
on workplace risk in tile and heavy clay industries.

		The first point, toxicity of forms of silica in raw materials.  The
clay raw materials used in tile manufacturing are similar to those used
in brick and sanitary ware manufacturing.  Silica and clay is embedded
in matrices of aluminosilicates comprising the clay, which decreases the
bioavailability of the silica molecule to attach to the pulmonary tissue
by modifying the surface of the silica molecule.  

		The decrease in fibrogenic potency and toxicity when exposure occurs
in the form of aluminum-rich clay has been documented to be due to the
binding of aluminum ions to the surface silanol groups of quartz in a
study by Donaldson and Borm in their study titled "The Quartz Hazard: A
Variable Entity."

		The presence of aluminum adds a second advantage in its ability to
clear the particles from lungs at a faster rate, as described by Bégin
et al. in their study titled "Late Aluminum Therapy Reduces the Cellular
Activities of Simple Silicosis in the Sheep Model."  In their study,
they demonstrated that aluminum treatment of quartz significantly
reduces the biological activity of quartz and increases its clearance
with, essentially, no detectible particle retention in the lung 10
months after exposure.  Lung clearance half-lifes of 145 days for pure
quartz treatment and 30 days for aluminum combined quartz treatment were
reported in the sheep models.

		A more critical and important study by Torman and Kaufmann have
reported such coating of quartz by aluminum and clay is long-lasting and
their studies reveal that -- the intact coated particles recovered by
ashing the lungs of coal miners who had died 40 to 50 years back.

		In the risk assessment of silica exposures, we would like to point out
that the models used by OSHA to establish exposure limits are based on
pure quartz and do not represent such unavailable occluded silica of
clay materials.

		These studies of unoccluded native quartz have no significance to the
complex clay matrices used in tile manufacturing.  While it is not our
strong point that crystalline silica in such clay raw material is
harmless, but rather that the harmful effects are reduced due to its
existence as molecules in combination with aluminum.

		The second point in my testimony:  Studies on workplace risk in tile
and heavy clay industries.  An extensive review of medical literature on
the silica exposure risk in brick industries reveals a decline in
reported silicosis cases, beginning with two studies conducted in 1939
and 1941 by West Virginia State Health Department and North Carolina
Brick Industry, respectively.  The decreased risk of exposure in these
industries has been well documented.  

		These studies were conducted in different facilities, which included
brick and wall and floor tile facilities and revealed two cases of
silicosis in the 1939 study and none in the 1941 study, prompting the
other to report that the examination of workers in brick and tile plants
was expected to reveal the existence of pulmonary pathology that could
be attributed to the inhalation of dust.  And the other concluded his
study with the total absence of silicosis and other serious pulmonary
pathology and the low incidence of other respiratory diseases among 1555
brick and tile plant workers indicate that exposure to dust in the North
Carolina industry does not constitute a serious menace to health.

		Between 1960s to 1970s, dust exposures were reduced across all
industries, resulting in a sharp decrease of reported silicosis cases. 
CDC reports indicate that the mortality and morbidity declined
significantly over the years from 1157 silicosis-related deaths in 1968
to 148 silicosis deaths in 2002.

		In 2006, Brick Industry Association sponsored and conducted a study to
determine the prevalence of silicosis among brick industry workers.  The
industry revealed the brick workers were not -- the study -- sorry --
the study revealed the brick industries were not at a risk for silicosis
at present levels of exposure.  

		Additionally, TCNA's largest tile and mortar producing members
reported no silicosis cases -- in the past 15 years or longer,
reaffirming the fact that stricter regulations are not required.

		As mentioned earlier, the raw materials used in tile formulations
include clays similar to those used in brick formulations.  However, for
tile, the percentage of quartz and the raw materials is commonly less
than 10 percent and less than typically found in bricks and structured
clay products.

		As the silica present in ceramic tile differs appreciably from the
free crystalline silica, OSHA intends to further regulate that tile
manufacturing should not be included in the category of affected
industries listed by OSHA in the proposed new rule.  We request that --
provisions reflecting the reduced cytotoxicity of aluminum silicates
being considered for other industries using clay raw materials, the same
be considered for the tile manufacturing industry.

		Thank you for this opportunity to provide testimony.

		JUDGE PURCELL:  Thank you, Dr. Rangineni.  I received a written copy
of your testimony as well as the testimony that we're about to hear from
Mr. Astrachan.  I've marked those two exhibits -- Dr. Rangineni's
testimony as Hearing Exhibit 126, Mr. Astrachan's testimony as 125. 
And then I understand, Mr. Astrachan, you have the testimony that Bart
Bettiga -- 

		MR. ASTRACHAN:  Correct. 

		JUDGE PURCELL:  -- had intended to provide.  He's not here today, and
you're going to introduce that into the record?

		MR. ASTRACHAN:  That's correct.

		JUDGE PURCELL:  So I've marked that testimony as Hearing Exhibit 127. 
And all three of those exhibits are admitted into evidence.

					(Whereupon, the documents 						referred to as Hearing 						
Exhibits 125 through 127 were 					marked and received in 						
evidence.)	

		JUDGE PURCELL:  You can proceed when you're ready.	

		MR. ASTRACHAN:  Thank you.

		I have, as Judge Purcell indicated, the testimony of the National Tile
Contractors' Association.  As we've provided printed copies, and in the
interests of time, I will not read this.  But you have copies of that
testimony.  I do reference in my testimony a couple of places from this
testimony, but I think it'll be clear as we proceed.  

		So with your permission, I'll go ahead and start my testimony.

		JUDGE PURCELL:  Certainly.

		MR. ASTRACHAN:  Good afternoon, and thank you for this opportunity to
present today.  I am Eric Astrachan, Executive Director of the Tile
Council of North America.  

		The Tile Council is a trade association representing manufacturers of
ceramic tile products, tile installation materials, tile-making
equipment, other tile-related products, and raw materials for the tile
industry.  Our membership includes all major U.S. tile manufacturers,
all major U.S. grout and mortar manufacturers, and most U.S.
manufacturers of related tile products.  Additionally, through our
staff, we're the secretary or chairperson of the ANSI, ASTM, and ISO
committees responsible for ceramic tile industry standards.  And through
such, we have a broad awareness of industry stakeholder interests and
concerns.  

		In the 12 months ending December 2013, our tile producing member
companies' domestic shipments totaled $1.077 billion, and our
tile-producing member companies employed approximately 10,000 American
workers.  Additionally, our grout and mortar manufacturing members
manufactured approximately 800 million in mortar products over the same
period, and other member manufacturers produced a similar volume of
related materials, backer boards, trims, et cetera, for tile
installations.  

		This is, however, a highly import-sensitive industrial sector, with
$1.725 billion of tile imports coming into this country over the same
period, representing 62 percent of domestic tile consumption on a dollar
basis and 70 percent of consumption on a square foot basis.

		My testimony today will focus principally on the economic issues
facing this ceramic tile industry, and then I will speak briefly to
amplify and include the position of Mr. Bettiga and Dr. Rangineni.

		In the proposed rule's preamble, OSHA asserts that "most or all costs
arising from this proposed silica rule would be passed on in higher
prices rather than absorbed in lost profits and that any price increases
would result in minimum loss of business to foreign competition."  I
will explain why that is false.  Rather, these costs cannot be passed on
to the consumer.

		According to the latest data collected by TCNA, the average price per
square foot of U.S. tile shipments is $1.43 per square foot.  The
average price per square foot of Chinese imports is $0.86.  With Chinese
imports 60 percent less expensive than U.S. tile in what is an extremely
price-competitive market, OSHA's claim that any price increases would
result in minimum loss of business to foreign competition is
unrealistic.  

		The average price per square foot of U.S. tile shipments was last at a
$1.43 in 2007.  Since 2007, the CPI has risen 13 percent while tile
prices have not.  Raw material costs have gone up, labor has gone up,
but tile prices have not.  

		Let us look at market share.  Over the last 10 years, 2003 to 2013,
Chinese ceramic tile imports have risen in square feet from 2 percent of
U.S. consumption to 20.9 percent.  Over that same time period, Mexican
ceramic tile imports have risen from 10.4 percent of U.S. consumption to
20.7 percent.  In the meantime, the percentage of the market retained by
U.S. manufacturers has declined three years in a row, putting even more
pressure on U.S. manufacturers to compete against countries that likely
do not adhere to the same labor and environmental laws.

		This is not due to a lack of product innovation or research.  The Tile
Council and our member companies are on the cutting edge of tile
technology, developing tile, for example, that is actively antimicrobial
for hospital and food service settings as well as developing building
exterior tile that will help clean the air of smog and other volatile
organic compounds.  Despite these developments, U.S. consumption of
ceramic tile is more than 25 percent below its peak in 2006.  And the
market is flooded with lower-quality, lower-priced imports.  As already
noted, the low cost of imported tile places an enormous burden on U.S.
tile manufacturers to, at best, maintain current pricing to remain
competitive.

		Given the above, I believe we can conclude unambiguously that any
increase in costs from the proposed regulation will be borne by American
manufacturers already challenged to survive and at the cost of good
American jobs in an industry with a track record of voluntary
accelerated environmental compliance.

		I'd like to turn now to the testimony of Mr. Bettiga that I've
submitted.  Having personally also worked in the installation of tile, I
draw your attention to his comments that the use of respirators is not
without consequence.  The use of a respirator and protective suit will
negatively impact the retention of workers and lead to job site
frustrations in a craft that requires meticulous attention to detail.  

		A tile installer puts in place a finish every bit as precise as a
finish carpenter but with heavy materials and often while working on his
knees.  Those are difficult conditions under the best of circumstances
and made doubly so if PPE is required.  On the behalf of all tile
tradespeople, let's be doubly certain there is a health benefit before
establishing criteria that will require use of PPE.

		Considering the testimony of Dr. Rangineni and the well-established
reduced cytotoxicity of silica in the presence of aluminum, as well as
the anecdotal but compelling statements from multi-generational tile
installation companies, also from the testimony of Mr. Bettiga, denying
any incidences of silicosis, we believe OSHA should maintain the current
PEL for the manufacture and installation of ceramic tile.

		I draw your attention also to our written comments submitted on
February 11th, 2014, where we provided further information and
additional issues for OSHA's consideration.  

		TCNA applauds efforts to improve safety but cautions that safety is
not improved by making America less competitive.  As discussed herein,
OSHA's proposal will negatively affect the majority of our members
operating in an import-saturated market.  We believe it will
significantly increase costs, eliminate jobs and undermine our
industry's ability to compete in a global marketplace without improving
worker safety in the manufacture or installation of ceramic tile.  

		I thank you for this opportunity to speak with you today.  Please do
not hesitate to contact us or our council in Washington, David Spooner
of Squire Sanders.  

		Thank you very much for this opportunity.

		JUDGE PURCELL:  Thank you, Mr. Astrachan.  

		With that, I'll open it up to questions from the audience.  Can I see
a show of hands of individuals who have questions for the panel?  I see
one.  

		Okay.  Ms. Trahan?

		MS. TRAHAN:  Chris Trahan with the Building Trades.  Just for
clarification, are you presenting your testimony on behalf of tile
installers?

		MR. ASTRACHAN:  No.  My testimony is on behalf of the Tile Council of
North America.  Mr. Bettiga submitted his comments on behalf of the
National Tile Contractors' Association.

		MS. TRAHAN:  Thank you.  And the survey that was conducted that no
silicosis cases were confirmed in the past 15 years or longer, was
that -- who did that survey go to?

		MR. ASTRACHAN:  That was a survey of our members.  We referred to
that, I believe, as an informal survey of reaching out to our members
and asking if they had reported cases of silicosis.

		JUDGE PURCELL:  And for the record, that was Mr. Astrachan responding
to both questions.  And I would ask the panel members to identify
yourself when you respond to questions unless the questioner asks a
specific person to respond.

		MR. ASTRACHAN:  Thank you.

		MS. TRAHAN:  So was it a paper survey, a mail survey, online survey,
or discussions?

		MR. ASTRACHAN:  Ultimately resulted in a discussion.

		MS. TRAHAN:  Do you know how many respondents, how many people
responded or participated in the discussion, or how many companies?

		MR. ASTRACHAN:  I don't have those details.

		MS. TRAHAN:  Do the companies who participated conduct medical
surveillance of the workers in their manufacturing facilities?

		MR. ASTRACHAN:  This is Eric Astrachan.  Again, that is my
understanding for some of the companies, but I cannot speak
knowledgeably to the practices of all members or, in fact, which
companies have which policies.  It's not something that I know.

		MS. TRAHAN:  So you don't know if they included a chest x-ray or other
medical tests related to non-silicosis -- other -- 

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

		MS. TRAHAN:  Okay.  Is there exposure data from the manufacturers that
has been collected?

		MR. ASTRACHAN:  That is not something that we asked for.  Again, many
of these are very large companies, and we have to ask them directly.

		MS. TRAHAN:  I think that's it.  Thank you.

		JUDGE PURCELL:  Thank you, Ms. Trahan.  

		Any other questions from the audience?

		(No response.)

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

		MR. O'CONNOR:  Thank you, Your Honor.  And thank you, Dr. Rangineni
and Mr. Astrachan for appearing to testify today.  Dalton Moore will
begin OSHA's questioning.

		MR. MOORE:  Hi, Dalton Moore.  I have a question for Mr. Astrachan.  

		In your February 11th written comments that were submitted, you
describe a typical project to add equipment to provide air ventilation
or dust control systems.  And my first question for you, is that the
Council's estimation or is that an actual real-world scenario, or it's
something that you experienced?

		MR. ASTRACHAN:  Thank you for asking.  My understanding, those
comments were provided through consultation with our members, and my
understanding was those were real-world numbers.

		MR. MOORE:  Okay.  Did you also get, like, a cost estimate for that
scenario?

		MR. ASTRACHAN:  Can you clarify what you mean by a cost estimate?

		MR. MOORE:  It's page 3 of 10 of your comments you submitted.  You
talk about a typical ventilation or dust control system, what it would
cost you for the -- the approximate cost of your equipment, to modify
this equipment.  You talk about air permitting.  You talk about
contacting agencies for your point emission permits.

		MR. ASTRACHAN:  Yes.  

		MR. MOORE:  That type of work, do you have any kind of cost estimates
of what it would cost you to actually outfit this existing equipment?

		MR. ASTRACHAN:  I'm quite certain that I can provide that to you and
would be happy to do so, so we will reach back out to our members to get
that information and be happy to do so.

		MR. MOORE:  Definitely.

		JUDGE PURCELL:  Mr. Moore, could you pull the mic a little closer? 
I'm not sure you're getting picked up.

		MR. MOORE:  Okay.  All right.  You also state in your comments that
your members have decades of experience with dust control technologies. 
And I was hoping you could describe the dust control technology that
your members are using.

		MR. ASTRACHAN:  Ceramic -- I will be somewhat inaccurate, and I
apologize for that, and again, would be happy to provide further
information through a written reply.  I personally am not knowledgeable
of the dust control technology in detail.  Ceramic tile facilities use
extensive ventilation systems and bag filters.  But I think to answer
your questions in more detail, I'll be -- we'll go back to the members
and ask them that question.

		MR. MOORE:  Okay.  And I guess you're going to submit that in
post-hearing comments?

		MR. ASTRACHAN:  Very much be happy to, sir.

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

		MR. KUCZURA:  My name is Greg Kuczura, and I just had a few questions.
 The first question is do you provide any training or medical
surveillance currently with the members from your association?

		MR. ASTRACHAN:  This is Eric Astrachan.  So again, speaking generally,
I know that many of our members do.  They use PPE now.  They have dust
control equipment in place now.  They provide training.  They have a
medical monitoring program.  I am aware of that at least with some
members.  But the details of that, I don't have, but I'd be happy to
provide -- 

		MR. KUCZURA:  Post-hearing?

		MR. ASTRACHAN:  Post-hearing, yeah.

		MR. KUCZURA:  My second question is, is it possible to submit the
average shipment costs, the percentage of shipments -- of your total
costs, what it costs to ship the product?  It gives a overall cost in
the summation, and I wanted to know if it's possible to get an average
cost of shipping as a percent of the total cost of the product.

		MR. ASTRACHAN:  I can speak somewhat to that now, and again, provide
more follow-up information.  Shipping costs, you know, vary quite a bit
depending on the distance.  Anecdotally, we have heard that to ship from
some of the Texas facilities to the corners of the U.S. can be as much
as 40 cents per square foot.  On average, we typically see more like 25,
20 to 30 cents per square foot.  Imports from China can be landed on the
West Coast for 20 cents a square foot.

		MR. KUCZURA:  I see.

		MR. ASTRACHAN:  But that gives you an idea of approximate shipping
costs.

		MR. KUCZURA:  Okay.  All right.  Thank you.

		MR. ASTRACHAN:  Thank you.

		MR. TREMAIN:  Hi, my name is Ryan Tremain with OSHA, and again, thank
you for coming today.  I think I just have a brief question, maybe just
a point of clarification for Dr. Rangineni.  Your testimony made
reference to a number of studies.  A lot of times, I believe I know
which ones they're talking about.  I didn't know, have they been
submitted to the docket or do you have a reference list or the studies
that you could provide so we can give them full consideration?

		DR. RANGINENI:  We can definitely submit a list of reference studies
that we have used for our testimony after the -- 

		MR. TREMAIN:  Okay.  That'd be great.  Thank you.

		MR. O'CONNOR:  This is Dave O'Connor.  I just had one question,
clarification, really, regarding the comments that you had regarding
medical examinations.  I'm looking at page 5 of your written comments
where you indicate that medical examinations should not be mandated and
instead refer to the requirements of a respiratory protection program. 
And was wondering if your position was that there shouldn't be any
medical requirements above and beyond what's currently required by a
respiratory protection standard or whether you were looking at some
other, more limited, medical surveillance requirement being appropriate.

		MR. ASTRACHAN:  Because this isn't my area of expertise, may I ask you
to repeat that question and see if I can understand it fully?

		MR. O'CONNOR:  Sure.  And I might be able to simplify it a little bit
as well.  Was really just wondering what your position was with regard
to a requirement for medical examinations in the proposed rule.  

		MR. ASTRACHAN:  I'm sorry if our comments that we summed from our
members were not clear in that regard.  I don't think I can provide any
additional insight, but I would be happy to indicate to them that
further perspective would be appreciated, and we'll submit that.

		JUDGE PURCELL:  And for the record, that was Eric Astrachan
responding.

		MR. ASTRACHAN:  Thank you, Judge.

		MR. O'CONNOR:  Okay.  Thank you very much.

		MR. ASTRACHAN:  Thank you.

		MS. BENNETT:  This is Anna Laura Bennett.  I just have a couple of
follow-up questions about the survey of your largest tile and mortar
producing members.  I understand from your responses to Ms. Trahan's
comments that this was an informal survey.  Would it be possible to
submit whatever results you might have in post-hearing comments?

		MR. ASTRACHAN:  I will reach out to them.  As a trade association, of
course, we maintain confidentiality between our members and the
information they share with us, and I will ask those questions.

		MS. BENNETT:  Thank you.  And it would not necessarily have to
identify the members by name if we could just aggregate results.  And do
you happen to know if the survey addressed any silica-related diseases
other than silicosis?

		MR. ASTRACHAN:  We asked specifically about silicosis, so I do not
believe that it would have.

		MS. BENNETT:  Okay.  Thank you.

		MR. ASTRACHAN:  Thank you.

		MR. O'CONNOR:  And that's all the questions that OSHA has.  I'd again
like to thank the panel members for appearing today.

		JUDGE PURCELL:  Thank you, Mr. Astrachan, Dr. Rangineni.  Appreciate
your participation today.  And you all are excused.

		MR. ASTRACHAN:  Thank you very much.

		JUDGE PURCELL:  Next on the agenda is Joseph Bonifate from the Arch
Masonry, Incorporated.

		Mr. Bonifate?  Make yourself, Mr. Bonifate.  Take your time.  And
whenever you're ready, you may proceed.

		MR. BONIFATE:  Thank you.  

		Okay.  I would like to begin by expressing my gratitude for the
opportunity to publicly share my concerns with OSHA's proposal on
crystalline silica.

		JUDGE PURCELL:  Mr. Bonifate, you can pull the mic a little closer. 
Thank you.

		MR. BONIFATE:  My name is Joseph Bonifate, and I am the Vice President
of Arch Masonry, Inc.  I began my career in high school working as a
helper for a local contractor.  Upon graduation, I completed a
pre-apprentice program at the International Masonry Institute.  I then
completed a four-year apprenticeship with the Bricklayers and Allied
Crafts.  I had spent at least 10 years working in the field before
moving into full-time management.  

		Arch Masonry, Inc. is a small business which operates out of
Pittsburgh, Pennsylvania and employs approximately 100 workers.  90
percent of our employees are exposed to respirable crystalline silica on
a regular, if not, daily basis.  The health and welfare of our employees
is of great concern to us.  

		There are several key points to the proposed rule that concern me. 
And if I understand these points correctly, I believe they are
prohibitive.  These new policies will have great economic impact beyond
the cost of compliance.  Furthermore, I also believe that when enforced
properly, the current rule provides adequate protection to our
employees.

		Before changes are made OSHA should first provide evidence that the
current rule is being adequately enforced.  The sample data -- 

		JUDGE PURCELL:  Mr. Bonifate, for the record, I note that I've been
provided with a written copy of your PowerPoint presentation.  I'm going
to mark that as Hearing Exhibit 128 and admit it into evidence.

					(Whereupon, the document 						referred to as Hearing 						
Exhibit 128 was marked and 						received in evidence.)

		JUDGE PURCELL:  And what's now on the screen is showing slide no. 2,
title Current Rule Enforcement.  As you go through the slides, if you
would identify for the record what is being discussed, I'd appreciate
it.

		MR. BONIFATE:  Sure.  

		The sample data for this slide was collected by doing a search of
citations by establishment on the OSHA website.  We used the keyword
masonry, as most masonry companies we know of contain that word in their
name.  This will not cover all masonry companies, but it does provide a
fine subject sample.  We searched all offices and all citation levels
from January 1st, 2013 through December 31st, 2013.  What we found is a
remarkably low percentage of citations related to the respirator
standard.  We believe this is due to the inspectors' typical focus on
imminent dangers.  		

		During the inspections our company has been through, the inspector
asks for credentials such as certification cards for forklift operators
and scaffold builders.  It was not until our tenth inspection that we
were asked to provide our written respirator program and/or any medical
documentation.  Throughout the first nine inspections, our employees
were observed using N95 paper masks and our company's safety policy was
submitted and reviewed several times.  Imminent dangers should remain
the focus.  However, a new rule should not be used to offset a lack in
enforcement.

		Second, OSHA should prove that the people and/or organizations
supporting the proposal are currently working in an environment which
strictly follows the current rule.  This should include an investigation
of the testimony given in these proceedings in support of the proposal. 
Any photographs or testimony which depict or describe a work environment
that is noncompliant should be considered evidence that the problem is
enforcement and/or education on the current rule and not considered
evidence to support a new rule.

		JUDGE PURCELL:  And for the record, what's shown now on the screen is
slide no. 3, entitled Current Rule Enforcement: Arch Masonry,
Incorporated.

		MR. BONIFATE:  I'm sorry, Your Honor.

		JUDGE PURCELL:  That's all right.

		MR. BONIFATE:  Third, OSHA should prove that employees who have spent
the majority of their career working in an environment of current
compliance are suffering symptoms and/or illness from silica exposure.  

		This slide shows death rate from 1968 to 2010, and the source is
NORMS.  As you can see in this graph, the current rule has greatly aided
the American worker.  We firmly believe that the continued rate of death
is a reflection of noncompliance to the current rule.  With well under
200 deaths annually, OSHA should be able to do case studies on each one
to determine if the victim worked in a compliant environment and/or
began their career before the current rule was passed and enforced.

		This slide is just a PowerPoint of the discussion points.

		JUDGE PURCELL:  Thank you.

		MR. BONIFATE:  The key points I wish to speak on now are as follows:  

		One, air sampling and monitoring.  Under the proposed rule and due to
fluctuating variables on construction sites, silica-producing
contractors may have to do air sampling and monitoring on each
individual job site.  

		Two, the proposed rule will lower the allowable daily exposure limits.
 This unnecessarily makes respirators a requirement for many daily
tasks.

		Three, continued medical evaluations.  The employer may be responsible
for medical evaluations of employees exposed to silica in the workplace
for up to three years.

		And, fourth, economic impact.  We have found no studies done by OSHA
to demonstrate the economic impact of substitution.

		This slide is a photo of a job site in which the concrete contractor
had done something incorrect to the footer, so as our masons were
progressing with the wall, they had to step back while the concrete
contractor, another company, another employer, created a silica hazard
around our people.

		JUDGE PURCELL:  And the number on the lower right-hand corner is page
6, I believe?

		MR. BONIFATE:  Yes.  

		One, air sampling and monitoring.  Who is responsible for air sampling
and monitoring on construction projects?  It appears to me that this is
the burden of silica-producing contractors.  Most construction sites are
multi-employer worksites which are primarily made up of a general
contractor and several subcontractors.  The air is often shared by
employees of multiple employers.  

		However, contractors that do not produce the silica may not be aware
of the hazards exposed to their employees.  These contractors most
likely will not be responsible or able to coordinate air sampling  and
if provided a copy of the results from the producing contractor, may not
have enough time to react.  This may become a greater concern if the
allowable daily limit is lowered, because several non-producing
employees may reach unallowable limits.  I believe that this requirement
will become the burden of the masonry subcontractor, and it will become
prohibitive.

		I would expect the general contractor to restrict and isolate the work
areas which produce the most silica, increasing cost of compliance for
the masonry contractor.  I also believe that this will bolster the prime
contractor's desire to push owners and architects away from masonry
creating the appearance of a minimal silica hazard on their worksites. 
Once the masonry contractor is removed from the job site, the idea may
become that no existing hazards will need to no air sampling and
testing.  Multiple workers will then continue to be exposed to hazards
due to cutting, drilling and grinding of poured in place concrete, which
currently cannot be eliminated from construction projects.  

		Our recommendation is that silica-producing contractors remain able to
use generic or typical air samples of a particular activity to be the
basis of all projects.  This allows the contractor to use previous data
to determine upcoming hazards and dispatch employees and equipment
appropriately in advance to eliminate the coming hazards.

		If air sampling and testing is desired, I believe it should be
reserved for large, multi-employer worksites, and it should be the
burden of the general or prime contractor.

		Slide 7 is a photograph of one of our employees using a dry cutting
brick saw with a vacuum attachment on it.  

		Two, daily exposure limits.  The greatest problem we have with the
lower limit is that virtually all of our workers will meet or exceed the
limit.  This greatly increases our cost, because now we must have all
employees go through medical evaluations, fit tests and be supplied with
proper training and equipment.  We currently absorb costs associated
with transporting materials to and from designated cutting and mixing
areas.  These are costs that we cannot justify once we spend the money
to equip all employees with respirators.  Essentially, we would be
forced to direct our employees to create a greater silica hazard on the
worksite.

		Slide 8 is a photograph of one of our -- this is from the apprentice
class in the evening. Those are both employees.  The older gentleman is
a bricklayer and an instructor, and the younger gentleman is in our
apprentice program.

		The greatest problem with have with the lower limit is that virtually
all our workers will meet or exceed the limit.  This greatly increases
our cost, because now we must have all employees -- oh, I just read
that.  I'm sorry.

		The thing that most concerns us is what do we do with senior employees
who cannot pass the medical evaluations.  The average bricklayer is over
50 years old.  Many of these workers are or used to be smokers and have
spent a great deal of their career working in a noncompliant
environment.  If they cannot wear respirators, we most likely cannot
employ them due to the high volume of activity which exceeds the
allowable limit.  We will be forced to give up our most valuable
employees.  

		Senior craftsman not only ensure the construction projects are
completed with a certain level of integrity and pride, but they ensure
our future through the example and lessons they provide to the mason
industry's youth.  We strongly believe that our company cannot afford to
lose these workers due to prohibitive regulations imposed by our
government.

		Slide 9, I believe it is, is a photograph of men working the night
shift.  

		Three, continued medical evaluations.  Continued medical evaluations
for employees may make sense in a manufacturing environment, but it is
an unfair employer expense in the construction industry.  Due to busy
and slow periods in the construction industry, many of our workers have
and will work for other employers, and they will be subjected to silica
hazards which we have no control of.  

		Also, many of our workers expose themselves to great silica hazards at
least once a year.  It is hard to count the number of times a worker was
not able to work overtime because they were helping a neighbor build a
garage or pointing their mother's chimney top.  I can only speculate as
to their compliance on these projects.  But I am confident in stating
that compliance is minimal at best.  Employers in the construction
industry should not be burdened with continued medical evaluations of
employees.

		Slide 10 are some photos from the questionnaire and fit test our guys
go through.

		Four, economic impact.  The last point I wish to make is the economic
impact this proposed rule will have.  First of all, in regards to the
cost of compliance, I do not think OSHA is being realistic in estimating
the cost impact on construction.  

		If the proposed rule was current law in 2013, our company would have
spent about $174,500 in compliance cost.  Due to the lower allowable
limits, all employees would have had to answer the questionnaire and do
the respiratory fit test.  This would have also been a part of the
new-hire orientation.

		This total cost would increase our company's overhead by 18 percent. 
Even if the rule was passed and technology was created to minimize the
cost, I would expect an overhead increase in the range of 10 to 15
percent.  In today's market, this is not a cost that can be absorbed by
any contractor.  This cost must be passed on to the client and/or end
user.

		OSHA is only estimating a cost of 432 -- $2,013 in the first year
compliance.  Slide 11 illustrates how we came to that number.  

		Arch Masonry's actual cost for medical examinations alone in 2013
would have been $387.50 per employee.  And slide 12 gives you the
breakdown on how we come to the cost per employee.  And then the bottom
number is -- because we had -- that's how many W-2s went out at the
end of the year for employees that worked around silica.  So that would
have been how we -- part of how we got to our annual number.

		This is a quote for some of the medical services.  

		JUDGE PURCELL:  That was slide 13.

		MR. BONIFATE:  Yeah.  Sorry.

		Arch Masonry's actual cost of air quality testing in 2013 would have
been $703 per employee.  And slide 14 is how we came to that number.  We
have the average job site cost, number of job sites our employees were
on in 2013, got the total cost of air testing, divide that by the number
of employees.

		This is a quote we received for the air testing.

		JUDGE PURCELL:  And that's slide 15.

		MR. BONIFATE:  And slide 16 is a breakdown combining those two and
breaking it down by employee to show that the total cost of compliance
per employee in 2013 for Arch Masonry would have been $1,113.  If our
numbers represent the national average, the total cost for OSHA's
estimated 1.85 million workers would have been $2.06 billion.

		As you can see, the cost of compliance per employee as estimated by
OSHA falls short by 60 percent.  And slide 17 is a graph with a side by
side comparison of the two.  

		My concern is that the increase in cost will create an unsafe work
environment.  I base this on the fact that I have three kinds of
competitors.  The first kind is a similar mid-size contractor who
employees several workers and strives to maintain OSHA compliance. 

		Slide 18 is a photograph of a mason contractor who was constructing
this house foundation a short distance from our office.  I actually took
that photo myself on my way back from lunch last week.

		The other two types of competitors fall into two groups of little or
no compliance.  The first group is a small, one or two-crew operation
with a handful of employees that do not have knowledge or means to
comply.  These contractors typically fly under the radar and expose
their employees to several workplace hazards regularly.

		Slide 19 is a job site my men are just finishing work on.  They're
actually in the plastic to the left.  To the right is an area we have
completed, and there is a worker standing on top of the rails of the man
lift.  Neither worker has a harness, and they're attaching exterior
sheathing while the superintendent stands on the sidewalk.

		The final group are larger contractors that employ several hundred
workers.  These companies oftentimes have in-house attorneys and simply
comply just enough to get by or keep a good appearance.  With so many
workers, there is a disregard for prohibitive rules, as compliance is
nearly impossible, and the cost of compliance far exceeds the cost of
penalties and/or litigation.

		So as the cost impacts compliant contractors, such as myself, more and
more projects will be awarded to contractors that do not factor the cost
of compliance into their proposals.  Unfortunately, we are working in a
tight market, and cost is the driving factor for most project owners. 
The owners will typically push for and enforce safety on their projects
only after an award is made and they notice workers being exposed to
hazards on their project, at which time it is often too late, especially
when it comes to respirable hazards.

		Slide 20 shows one of our crews building a block wall.  

		As I mentioned in my preface, I believe the proposed rule will have an
economic impact greater than just the cost of compliance.  I am
referring to the economic impact felt by substitution.  

		For years now, the masonry industry has seen a reduction in market
share.  During the construction boom of the 1990s, there was a brief
worker shortage.  This has led to the continued use and growth of
construction methods that involve less onsite labor.  I'm talking about
prefabricating buildings made of wood, concrete and steel as well as
tilt-up or balloon construction techniques.  

		These buildings are primarily built in a location outside the local
community, outside the state and/or outside the country.  They are built
with materials quarried at the location of fabrication and oftentimes
involves questionable labor practices.  The buildings are quickly
assembled on site with a handful of workers in a fraction of the time. 
Often, these workers are migrant and travel with the contracts. 

		When a construction project uses masonry, there will be several local
workers on the projects for a good length of time.  Not only are these
workers taxpaying citizens, but they patronize local businesses on a
daily basis.  Most of the materials will come from local manufacturing
facilities that employ local workers and ship their products with local
drivers.  These manufacturing facilities often buy raw materials, such
as sand and other aggregates from local quarries that also employ local
workers and local drivers.  

		Slide 21 shows a comparison of a precast building and a masonry
building.  This data is an accurate depiction of the local economic
impact felt when buildings are prefabricated.  Although we chose not to
name the fitness company, I assure you these buildings are very similar.
 As you can see, when the building was prefabricated, the local economy
lost 360 working man days and 59 loads of product from local suppliers.

		Slide 22 shows the amount of manufacturing plants that have closed in
southwestern PA in last 10 years.  

		This data demonstrates the reality of market loss the masonry industry
is suffering.  I fear this will only increase as substitution becomes
the only feasible way to achieve compliance.  I believe that if the
proposed rule is not rejected, the added cost and red tape I have
mentioned in all my points above will push prime contractors and
building owners away from using masonry in their future projects.  This
will greatly advance the market loss being felt by the masonry industry
and have a significant impact on the local economy.  Masonry products
not only create many local jobs, but they build great structures that
bring integrity to our communities.  

		In our current economic and employment crisis, the Government of the
United States of America should pass initiatives that bolster building
trades such as masonry.  I firmly believe that the current propose
silica rule will unnecessarily over-regulate the masonry industry.

		The harsh reality is that few contractors strive for compliance under
the current rule.  If the proposed rule is accepted, it will greatly
impact contractors who factor the cost of compliance into their
business.  As these contractors continue to lose work to noncompliant
companies, they will be forced to lay off workers.  These workers will
be forced to find employment with companies that do not have the same
concern for the health and welfare of their employees as those who
factor in the cost of compliance.

		At this time, I will be glad to field your questions to the best of my
ability.

		JUDGE PURCELL:  Thank you, Mr. Bonifate.  As I indicated, I've
already marked a copy of your PowerPoint presentation as an exhibit. 
Did you want to introduce your testimony as an exhibit as well?

		MR. BONIFATE:  Yes.  

		JUDGE PURCELL:  Okay.  I'll mark that as Hearing Exhibit 129, and
that'll be admitted into the record as well.

					(Whereupon, the document 						referred to as Hearing 						
Exhibit 129 was marked and 						received in evidence.)

		MR. BONIFATE:  I also have a flash drive.  It has several of the
documents that we used to establish our graphs and slides.  And the copy
of the PowerPoint is on here, and a copy of my verbal presentation is on
here.  But there was an error in the verbal which I corrected by hand in
that one.  We had one of the cost of one of the medical tests wrong
initially.  We fixed it on the PowerPoint, but we did not fix it before
I printed the verbal.

		JUDGE PURCELL:  All right.  Thank you very much.  I'm going to mark
the flash drive as Hearing Exhibit 130, and that'll be admitted into the
record as well.

(Whereupon, the object referred to as Hearing Exhibit 130 was marked and
received in evidence.)

		JUDGE PURCELL:  With that, let me ask for a show of hands of people in
the audience who have questions.  I see Ms. Trahan, if you'd like to
come up.

		MS. TRAHAN:  Chris Trahan with the Building Trades.

		Mr. Bonifate -- did I say that correctly?

		MR. BONIFATE:  Yes.  

		MS. TRAHAN:  How long has Arch Masonry been in business?

		MR. BONIFATE:  A little over three years.

		MS. TRAHAN:  Little over three years?  Do you know how the jobs are
estimated that you've been on?

		MR. BONIFATE:  Yes.  

		MS. TRAHAN:  Can you explain that process a little bit -- 

		MR. BONIFATE:  Well -- 

		MS. TRAHAN:  -- in kind of general terms for people not in your
industry?

		MR. BONIFATE:  The first part of the equation is the cost -- the
direct cost on the job site.  That's labor, materials, and equipment. 
Then the second part of the equation is a markup for the company's
overhead.  Currently, we have a budget, a general budget for safety,
which includes a lot of details, but this -- the proposal would
become -- would eclipse our current budget, so that's how that number
would get increased.  And then after that, there's an increase for the
profit margin.

		MS. TRAHAN:  Thank you.  So you said the basics of it are labor,
materials and equipment?

		MR. BONIFATE:  Plus overhead.

		MS. TRAHAN:  Plus overhead.  So you know the materials that are needed
on the job site prior to the work being started and the equipment that's
needed and those -- 

		MR. BONIFATE:  Yes.  

		MS. TRAHAN:  Okay.  Thank you.  In your comments, you recommend that
you should be able to use generic or typical air samples for routine
tasks.  Do you have access to -- 

		MR. BONIFATE:  Yes.  

		MS. TRAHAN:  -- that information now?

		MR. BONIFATE:  Yes.  That's how the current rule is written, and
that -- we have that now.  There's tables, and so we know that
there's -- you know, what the average PEL for dry cutting indoors
versus dry cutting indoors versus wet cutting, different PELs for block,
for brick, for grinding.  And then, you know, based on the current
standard, at what PEL level is a paper mask efficient, at what level do
you have to add the half-mask.  And then there's, you know, hoods that
bring air to the men, but we don't typically get into confined spaces
and that type of work.  But yeah, to answer your question is yes.

		MS. TRAHAN:  Okay.  So did your company perform air sampling that
characterized those tasks or did you obtain it from outside of your
company?

		MR. BONIFATE:  We are having some testing done now, but up until
recently, we've used data provided by OSHA.  There are existing tables
available.  I believe it's on their website.  I'm really not sure how. 
We also have -- we outsource some of our safety and we have an in-house
human resources person who does a lot of safety work.  And OSHA may be
able to answer that question better as to whether or not that
information is currently available on your website.

		MS. TRAHAN:  They're not answering questions anymore.

		MR. BONIFATE:  Yeah.  Well, I'm pretty sure that's how we got our
numbers.

		MS. TRAHAN:  Okay.  Also in your comments, you talk about having --
or using wet cutting and having a dust-free environment.  Do you know if
Arch Masonry has -- do you have those tools in use on your job sites?

		MR. BONIFATE:  Yes, we do, but they would not make -- I know the
proposed rule, the PELs would be lowered so much that those tools would
not be sufficient that our men could simply wear the paper mask.  All
men would have to go through the full medical exams and have half mask.

		MS. TRAHAN:  And you base that on your exposure data?

		MR. BONIFATE:  I base it on the available exposure data, yes.

		MS. TRAHAN:  Okay.  Thank you very -- 

		MR. BONIFATE:  We -- okay.

		MS. TRAHAN:  Thank you.

		JUDGE PURCELL:  Thank you, Ms. Trahan.  

		Any further questions from the audience?  Yes, Ms. Nadeau?

		MS. NADEAU:  My name is Liz Nadeau, 

N-a-d-e-a-u, and I'm with the International Union of Operating
Engineers.

		One of the pictures you showed, you identified as being night shift
work.  How much of the work that you do is performed at night versus the
day, your company?

		MR. BONIFATE:  Predominantly during the day.  Typically, the night
shift work involves -- that particular project, we had to cut -- the
office building had redesigned their interior layouts, and they needed
windows, and the office building was occupied and functional during the
day.  So that particular project had to be done during the evening.  And
mostly repairs, restorations, additions and renovations that have to do
with occupied structures or heavy traffic areas are the only times we
really have to work in the evenings.

		MS. NADEAU:  And in terms of outdoor versus indoor work, how much of
your work is indoor versus outdoor?

		MR. BONIFATE:  I would say, like, 99.9 percent is outdoor.

		MS. NADEAU:  Okay.  And in terms of the work function that's
performed, the tasks that are performed by your employees, is there a
lot of variation in what they do or are the tasks fairly similar from
day to day?

		MR. BONIFATE:  What do you call similar?

		MS. NADEAU:  For instance, we had someone this morning, they talked
about drilling in home house building.  They talked about drilling
countertops, and they said that that was the same thing every day,
essentially, that they had a variety of tasks that they had to perform
from house to house to house.  And I'm just wondering how similar what
you do from day to day is, or is there a lot of variety in the work?

		MR. BONIFATE:  There's a lot of -- I would say there's a lot of
variety in the work.

		MS. NADEAU:  Can you describe some of the variety, then?

		MR. BONIFATE:  There are job site factors, but outside of job site
factors, the material factors alone.  One of the previous questions
involved our estimating process.  Our estimating price sheet has the
most common materials that we have to estimate, and it's over 100 lines
long.  So there are several different manufacturers of brick and block
and stone, glass block, that we use on a daily basis.  And each
manufacturer has different lines of products.  And the task required to
do these products vary from day to day.  And there's multiple tasks each
day on each job site that are carried out by multiple employees.  It
would be relatively difficult to quantify, but there are several,
several different tasks.

		MS. NADEAU:  Does the task that the employee perform vary based upon
the type of material involved or are there other factors that influence
how the task is performed?

		MR. BONIFATE:  There would be other factors.

		MS. NADEAU:  Such as?

		MR. BONIFATE:  Such as the architecture of the building.  I mean, are
you building a wall below the surface?  Are you building a wall 50 feet
above the surface?  How are you transporting your materials to the work
area?  Can you access the work area with machinery or is there a lot of
manual work involved to get the materials to the work area?  Just to
name a few.

		MS. NADEAU:  So the transportation varies and the location of where
the worker varies?  Other items that would vary that involve the
generation of silica, for instance, the way you might be performing the
function?  Would sometimes it cause more or less silica, more dust
anyway?  Are some ways of doing things dustier than other ways?

		MR. BONIFATE:  Yes.  

		MS. NADEAU:  And which are dustier?

		MR. BONIFATE:  Well, we would have to identify each individual task
and then talk about the dustier version of completing that task and the
less dustier version of completing that task.

		MS. NADEAU:  Okay.  

		MR. BONIFATE:  So, I mean, do you really want to get into that?

		MS. NADEAU:  Well, we're here to talk about dust generation and the
impact upon employees, so if there's ways of doing the task that
generates less dust, then I think that that's relevant.

		MR. BONIFATE:  Okay.  

		JUDGE PURCELL:  Ms. Nadeau, can you specify what types of tasks
you're asking about?

		MS. NADEAU:  Well, that's what I'm trying to elicit from him.  I'm not
an expert in the industry.

		MR. BONIFATE:  How about mixing mortar and mixing concrete and --
well, transporting doesn't involve dust on those because they're wet at
that point -- placing them and cleaning up afterwards?  How about
scraping walls and floors after the work is completed the following day?
 How about cutting block, cutting stone, cutting stone with hand chisels
or cutting stone with machinery?  How about cutting brick, cutting brick
with hammers or cutting brick with machinery?  How about drilling?  Are
we drilling concrete or are we drilling block?  Are we drilling brick,
are we drilling stone?  Are we drilling indoors or are we drilling
outdoors?  Are we cutting indoors or are we cutting outdoors?  	

		And every one of those tasks, I can give you -- and there's more
tasks -- but every one I can give you dustier ways to do it and less
dusty ways to do it.

		MS. NADEAU:  Thank you.

		JUDGE PURCELL:  Thanks, Ms. Nadeau.  

		Any further questions from the audience?

		(No response.)

		JUDGE PURCELL:  I don't see any other hands, so I'm going to turn it
over to OSHA. 

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

		And thank you Mr. Bonifate for coming in to testify today.  I just
wanted to get a better understanding -- this is Dave O'Connor -- of
your current practice.  I noticed in your cost estimates, you did not
include any numbers, any costs for controls.  And I was wondering if
you're currently using controls on your equipment, wet methods,
ventilation?

		MR. BONIFATE:  Yes, we are currently using controls.  And I would
imagine we would continue to use controls, so I was simply trying to
evaluate the cost imposed by the new rule.  I did not include any cost
for the half-mask.  I imagine that would -- the need for half-mask
would increase, and that would be a cost, but I did not include that.

		MR. O'CONNOR:  Okay.  So your expectation was that while using the
engineering controls, you would still need to use respiratory
protection?

		MR. BONIFATE:  Yes.  

		MR. O'CONNOR:  And I was going to follow up on the discussion earlier
about exposure assessment.  If I understood correctly, you were relying
upon some data possibly provided by OSHA with regard to characterizing
exposures.  Was that correct?

		MR. BONIFATE:  Yes.  I believe that our data comes from OSHA.  And
there are other industry resources.  But I believe the one that we are
currently using, we found a resource on your website.

		MR. O'CONNOR:  Okay.  If you would be able to specify what that
resource was, exactly where that came from, I'd appreciate it.  If you
could just note that in a post-hearing submission, it would be, I think,
very helpful to us.

		And that exposure assessment data that you're relying on is the basis
for your decision as to what respiratory protection would be appropriate
here?  Is that correct?

		MR. BONIFATE:  That's what we use currently to determine what our
current requirement is for respiratory protection.

		MR. O'CONNOR:  Okay.  And -- 

		MR. BONIFATE:  And it would, yes, yes, we would -- we use the same
information to determine how we would be affected if the PEL was
lowered.

		MR. O'CONNOR:  Okay.  Have you had a chance to review Table 1 in our
proposed construction rule?  Are you familiar with that at all?

		MR. BONIFATE:  Yes.  

		MR. O'CONNOR:  You estimated some costs for exposure monitoring.  And
I was just wondering why that was, whether you viewed Table 1 as not
being workable in your situation or why you included cost for exposure
assessment rather than relying on Table 1?

		MR. BONIFATE:  If I'm not mistaken, the table and the proposal
indicates that there are variables that may require monitoring of
individual job sites or tasks.  And I'm not -- we work, we work
primarily on multi-employer job sites, and we generate a silica hazard
that other employers are going to expose their employees to and our
customers are going to.  And it is our expectation that with the
more -- with the stringent requirement of the new proposal, we're going
to be expected to provide that data to our clients and the other
employers on that job site, and that they're not going to want to hear
about a table or about a job site we did that was just like this one a
year ago.  They're going to want to know what hazards their employees
are being exposed to on that particular worksite.

		MR. O'CONNOR:  Okay.  So if I understood that correctly, your thought
was that you would be following Table 1, but felt a need to do the
exposure monitoring as well, in addition to that?

		MR. BONIFATE:  Yes.  And primarily because once you get down to lower
levels, the varying -- some of these tasks that I've mentioned, such as
drilling and some of the other tasks that I had mentioned in response to
the previous question, they're well under the limit now.  Once the limit
gets lowered, there's going to be a multitude of tasks that are right on
that border, and most likely, you're going to have to test each
individual job site to have accurate information, because some job
sites, this task may fall under the PEL.  Some job sites, that task may
go above it.

		MR. O'CONNOR:  Other than the medical clearance to wear a respiratory,
is Arch Masonry currently offering any type of medical surveillance to
employees?

		MR. BONIFATE:  The first part of the question, other than what?

		MR. O'CONNOR:  Other than the medical clearance to use respiratory
protection, is there any type of medical surveillance program in place
for employees at Arch Masonry?

		MR. BONIFATE:  No.  

		MR. O'CONNOR:  Okay.  And just one further question.  A number of
participants in this proceeding have mentioned the thought that OSHA
should focus on enforcement of the current permissible exposure limit. 
And you mentioned that as well.  And I was just wondering if you had any
thoughts that -- with regard to compliance with the current PEL, to the
extent that there is noncompliance, why that is and what OSHA could do
about it?

		MR. BONIFATE:  My experience is that there's a very lack of knowledge
of the experienced rule.  And I'm going to give you one main reason that
I think that is so in the construction industry and a suggestion on how
that could be helped.  In the construction industry, when you go to the
respiratory requirement, it just references 1910, which is industry. 
And when you look at the definition of a respirator, there is no
definitions in OSHA for what a paper mask is.  Now, that's because OSHA
doesn't recognize those as a respirator.  They only recognize something
that's certified by NIOSH as a respirator.  But your average contractor,
like myself, I think, well, I guess if it's a task that only requires a
paper mask, OSHA doesn't regulate it.  So OSHA doesn't regulate until
you would need a task that requires a half-mask.  So I don't -- I just
make sure I'm not in an environment where I need a half-mask, and I
never even read the 1910 respirator requirement because I think it
doesn't pertain to me.  

		Then the other thing is, OSHA has been on several of our job sites. 
Not once, although our guys wear the N95 paper mask, which I thought was
fine, they never once asked for the card that that person had a fit test
or filled out a medical questionnaire.  And they never once asked me for
my respirator program because I would have said, "What do you mean?" 
You know, we have a requirement that they have to wear that paper mask,
and that's our written program.  So I would have been educated the first
time OSHA inspected me.  If they would have asked to see such
documentation, I would have been educated on the first visit and not the
tenth visit.

		MR. O'CONNOR:  From your knowledge and experience, is it typical for
employers in construction to rely upon some characterization of
exposures to determine what type of respirator is necessary or just
default to an N95 or even a dust mask?

		MR. BONIFATE:  My experience is that they default to a paper mask and
that very few contractors that I worked for or work with have any idea
that there's a table or there's different levels or any of this.  That
this information is even available is generally not known.

		MR. O'CONNOR:  Thank you very much.

		MR. BONIFATE:  You're welcome.

		MR. MOORE:  Hi, Dalton Moore.  My question may have been asked in some
of the other questioners, in parts of it, but you state that 90 percent
of your employees are exposed to crystalline silica.  What task are they
actually doing that they're exposed to it?

		MR. BONIFATE:  I said 90 percent of our employees because we have
about 90 to 100 people working for us, and I'm going to say 10 or under
percentage is office staff, estimators, project managers.  Everybody in
the field that works for Arch Masonry is exposed to silica.  

		The two primary categories we have are bricklayers and laborers.  We
have supervisors, but they're involved with the same task, supervising
the tasks.  We have a truck driver, but he's typically moving materials
that are covered in -- they have dust coatings on them.  So but the
general bricklaying and laboring jobs of transporting materials, mixing
materials, cutting materials, installing materials.  Constructing walls
is mostly what we do.  And it would be easier for me to tell you the
things that they do where there's no silica involved than the -- 

		MR. MOORE:  So do you have any exposure data at all for any of your
activities?

		MR. BONIFATE:  Not yet.  We're doing some testing, but we don't have
the results.  So far, we've relied on industry data, which has been, you
know, under the current rule, our understanding is industry data is
acceptable.

		MR. MOORE:  Okay.  And also, like, in your written comments, your
testimony, you talked about you have, like, a company practice at Arch
Masonry where you had everyone wear a paper mask when they were cutting.
 And I guess, you know, you don't -- you no longer do that.  You know,
the reason why you stated in the -- in your comments -- you said you
were trying to be proactive because, you know, you cared about your
employees?

		MR. BONIFATE:  Right.

		MR. MOORE:  Why did you -- what was the reasoning behind having them
wear paper masks?

		MR. BONIFATE:  We didn't want them to be exposed to dust.

		MR. MOORE:  Okay.  

		MR. BONIFATE:  And we had to quit doing that when we were cited
because, like, our mortar mixers, there's really no silica dust when
they mix mortar because they're shoveling in sand, which is typically
damp because we leave it uncovered.  All the dust in the air is from
the -- and lime, which doesn't have the silica content in it.  But we
would have them wear respirators just because I figured put this paper
mask on instead of breathing that lime dust into your lungs.  And that's
how we were cited for the initial offense is that an OSHA inspector
witnessed one of our guys mixing mortar with a mask.  And I was told I'd
be better off if I didn't give him that paper mask; I wouldn't be
getting cited because there was no hazard, and I was making him breathe
through a piece of paper without doing a medical evaluation to determine
whether or not he was fit enough to breathe through the paper mask.  So
that's why we had to retract that and implement a written respirator
program.  And that's why we started doing the -- that's why we're doing
the testing now and things of that nature because we were very recently
educated on this.

		MR. MOORE:  On your slides in the presentation, you were talking about
how you had purchased new equipment that had LEV on it.  And could you
just talk a little bit about how that differs from, you know, some of
your older equipment that doesn't have LEV or a wet suppression type
controls on it?

		MR. BONIFATE:  We've always had the wet type.  The new stuff is the
vacuum.  And the reason we've implemented that is because a lot of
times, they're cutting, they're cutting materials that are going into
the wall right now.  A window got moved, there's an outlet.  It's not
something that they could have forecasted and cut wet.  So dry cutting
is becoming -- with the rapid pace of construction and the design
building, a lot of the techniques being used, a need to cut materials
that are going to be installed now need to be dry, is on the rise.  So
there's a greater need for it.  

		And the technology is better now.  I mean, the technology was weak in
the past for the vacuum cutting.  And what technology was good for
vacuum cutting in the past was very expensive and it didn't last long on
the job site.  But now they're making some inexpensive shrouds that we
could attach to -- I didn't have to buy a new saw.  We use a Bosch
electric saw.  We like the Bosch because they spin backwards.  Some guys
don't like it because if it kicks, it kicks toward you.  But we teach
our men to stand -- don't stand behind the cut, stand next to it, so
you don't have that risk.  Since it spins this way, it blows the dust
away from the man instead of the conventional Partner saws that spin
this way and blow the dust towards the man.

		So now Bosch has come out with a shroud that I can go and buy for 50,
60 dollars and attach it to all my existing saws.  All I need is a HEPA
vac to attach to it, and HEPA vacs have become more available and more
economic as well.

		MR. MOORE:  Okay.  Last question.  As far as, like, when you go to
sites, your communication with prime contractors, do you guys have
discussions like of what type of task you're going to be doing and are
they dusty, what type of dust they're generating to kind of, like,
schedule other activities that may be going on -- I guess maybe when
your activities are happening, other things aren't happening.  Do you
have those type of discussions?

		MR. BONIFATE:  Kind of.  We do have discussions, but we don't
specifically talk about dust and some of the hazards, because for
the -- mostly when we deal with someone for the first time and they
don't know how wise we are and we don't know how wise they are.  Once
you get a working relationship with someone, you can cut out a lot of
the detail because you know what each other's about, and then you
coordinate your work.  You know, when we have our coordination
discussion, it's not, well, we're going to put you here first and get
done there -- do this wall first because the plumber has underground
plumbing to do, and we don't want your scaffolding to crush his pipes,
and we need you to brace that wall right away so he can work in that
area.  We don't have to.  We can trim down the conversation that the
plumber needs to start here, so I need you to do this wet wall first and
move on.  And I know what he wants, he knows -- you know, there's --
so to answer -- the answer to your question is, yes, we coordinate and
we have discussions, but not -- it doesn't need to be in such great
detail with people that do this every day.  They know the hazards and
they know what they're talking about.

		MR. MOORE:  So the prime contractor knows when you're on site, maybe
he schedules other activities, you know, that aren't around you?

		MR. BONIFATE:  Yeah, typically, when we work with good prime
contractors, they have weekly or biweekly -- they call them PM
meetings, where the project manager for each of the subs attends the
meeting at the job site, and we all talk about look-aheads, where we're
going to be working in the weeks to come, two-week look-ahead,
three-week look-ahead, and that's typically how the project is
coordinated.

		MR. MOORE:  Okay.  

		MR. O'CONNOR:  I think that concludes OSHA's questioning.  Thank you,
again, Mr. Bonifate for appearing today.

		MR. BONIFATE:  All right.  Thank you.

		JUDGE PURCELL:  Thank you, Mr. Bonifate.  I appreciate your testimony
and your attendance here today -- 

		MR. BONIFATE:  You're welcome.

		JUDGE PURCELL:  The next item on the agenda is -- I'm not sure how to
pronounce it -- Sorptive Minerals Institute, Mr. Richard Brown?  Did I
get that right, Mr. Brown?

		MR. BROWN:  Very good.

		JUDGE PURCELL:  Good, thanks.  You can come up and be seated, and
whenever you're ready, you may begin.  Let me ask you if you have a copy
of -- a written copy of your testimony that you want to offer, I'll go
ahead and mark that as an exhibit now.

		MR. BROWN:  Actually, Your Honor, we're going to composite the slides
that we have with the written testimony and supply that shortly after
the hearing to OSHA.

		JUDGE PURCELL:  Okay.  Let me ask OSHA.  Do you want me to give that
an exhibit number now, or do you want to wait?

		MS. BENNETT:  If you don't mind to reserve an exhibit number.  Thank
you.

		JUDGE PURCELL:  Give it a number now?

		MS. BENNETT:  Yes, please.

		JUDGE PURCELL:  Okay.  I'm going to premark that as Hearing Exhibit
131, and then as you indicated, you can submit it after the hearing.

		MR. BROWN:  Very good.  Thank you, Your Honor.					

		JUDGE PURCELL:  And as you go through the PowerPoint presentation, it
would be helpful for the record if you identify each slide as you go
through.

		MR. BROWN:  Very good.  We're now on slide 1, untitled.  

		Good afternoon.  I'm Richard Brown, Chairman of the Technical
Committee of the Sorptive Minerals Institute, or SMI, and I'm pleased to
have this opportunity today to present SMI's comments on OSHA's proposed
rulemaking on occupational exposure to respirable crystalline silica.

		Slide no. 2, titled Sorptive Minerals Institute.  

		SMI is a national trade association representing the manufacturers and
marketers of products made from absorbent or sorptive clay minerals. 
Founded in 1970, SMI represents an industry whose products are used
daily around the world in thousands of commercial, industrial, and
consumer applications.  Importantly, SMI also serves as the scientific
research arm of the sorptive clay industry.

		Slide no. 3 titled SMI History of Crystalline Silica Research.

		Through its technical committee, SMI has been heavily involved in
science-based crystalline silica research since 1988, focusing on
understanding the nature and health effects of the silica species in the
sorptive clays mined and sold by SMI member companies.  Throughout this
time, SMI has freely shared its research in public scientific
conferences in the U.S., Germany, the Netherlands, and South Africa.  

		In 1999, this research led to the issuance of a safe use
determination, or SUD, by the California Office of Health Hazard
Assessment under Proposition 65, for exposures to airborne respirable
crystalline silica from sorptive mineral-based pet litter.

		In 2008, SMI published two companion research papers in the
peer-reviewed international journal Inhalation Toxicology.  The first
paper discussed the results of in vivo studies conducted by the
Fraunhofer Institute in Germany while the second was a detailed study
characterizing the physical and chemical nature of the samples used in
those studies.  

		And just as an aside here, that last part was done because in going
through the research for the Fraunhofer study, we discovered that
toxicologists pretty universally never characterized the mineral
materials that they were using in the studies that they conducted.  

		Slide 4: SMI's Focus, subtitled, It's the Surface...

		In the preamble to the proposed rule, OSHA acknowledged the
considerable evidence documenting the role the surface of crystalline
silica particles play in producing disease.  With that in mind, the
primary purpose of this presentation is to discuss the unique nature of
the crystalline silica in sorptive clays and the critical role played by
the surface of quartz in sorptive clays in determining toxicity.  This
subject has not yet been addressed by OSHA and must be considered during
this rulemaking process.

		Slide 5: Characteristics of Silica in Sorptive Clays.

		Silica contained in sorptive clays may be present as opal, a
non-crystalline silica hydrate, or as the crystalline species, quartz. 
Opal and other amorphous forms of silica are not covered by OSHA's
proposed rule.  This is consistent with the long-recognized absence of
health risk associated with exposure to amorphous silica.  However, a
portion of the quartz present in sorptive clays is of respirable size
and will be subject to the proposed rule.  It is OSHA's assessment of
this health risk for respirable quartz in sorptive clays that is of
specific concern to SMI.

		Slide 6: Characteristics of Crystalline Silica in Sorptive Clays.

		Recognizing that many of you may not have a familiarity with geology
or mineralogy, I hope you'll bear with me for just a second while I
provide you with just a little bit of background.  First, the
crystalline silica in sorptive clays occurs only in the form of quartz. 
Most commonly, the quartz in sorptive clay is formed ophygenically
(ph.), that is, along with the clay and other accessory minerals, by in
situ precipitation of volcanic ash that has been dissolved in salt
water.  The perfect example of this is bentonite clay, which happens to
be the dominant sorptive mineral used in our industry.  Alternatively,
the quartz may be residual, left over from in situ weathering apparent
rock to form clay, or it can be detrital, having been washed in from a
distant location and co-deposited with the clay.  

		Regardless of the origin, however, the quartz in commercially useful
sorptive clays is geologically ancient, having been in intimate contact
with the clay in which it occurs from about 10 million to 110 million
years, depending upon the deposit.  Because sorptive clays are destroyed
by temperatures over about 500 degrees Centigrade, we can be certain
that the crystalline silica they contain has never been subjected to
temperatures high enough to have created cristobalite or tridymite.

		We intend to show that regardless of origin, the quartz in sorptive
clays is different from the forms of crystalline silica that OSHA
proposes to regulate.

		Slide 7:  Characteristics of Surfaces of Crystalline Silica in
Sorptive Clays. 

		The surface of the quartz grains in sorptive clays has been in
chemical equilibrium with the clay matrix in which the quartz resides
from the time the clay was formed millions of years ago until it was
removed from the ground to be processed into clay products.  The quartz
grains and sorptive clays are covered or occluded by amorphous
aluminosilicate and clay from the matrix in which they reside.  The
occlusion may also consist of adventitious metal ions, especially
aluminum, magnesium, and iron.  

		And a study not cited by OSHA, Wentland (ph.) et al., 2007, analyzed
hundreds of quartz grains from bentonite and found that coatings of the
clay mineral montmorillonite were ubiquitous on the grains, the coatings
covered the entire surface of the grains regardless of grain size, and
the coatings were resistant to removal using dispersants, acids or
industrial processing.  The authors concluded that the clay coating has
the potential to mitigate quartz toxicity in the lung.

		Slide 8: Sorptive Clay Occluded Quartz Surfaces. 

		In unpublished research conducted for SMI, Hochila (ph.) and Mariama
(ph.), 2010, found occluded quartz from bentonite to be composed of
multiple, minute silicon dioxide crystals, which, as a group, were
coated by amorphous aluminum silicate and minor amounts of calcium,
magnesium, and iron.

		This slide shows a pair of truly extraordinary transmission electron
microscope photomicrographs of a representative quartz particle from
bentonite.  And the author has told me personally that, although this is
only one particle, this is characteristic of all the particles that were
observed.

		The chemical nature of the core and the outer film of the particle is
determined by electron dispersive spectroscopy, or EDS, is also shown
confirming that the core is quartz, silicon dioxide, and the film
surrounding it is amorphous aluminosilicate.  In the dark field image on
the right side, the quartz core of the particle can clearly be seen
along with its surrounding aluminosilicate occlusion.  

		Slide 9: Sorptive Clay Occluded Quartz Surfaces.  

		The transmission electron microscope photomicrographs on this slide
show a portion of the occluded surface of a single quartz particle from
bentonite.  The high-resolution transmission electron photomicrograph on
the right clearly shows the highly crystalline quartz core and the
amorphous aluminosilicate clay layer near the particle surface.  The
observable lattice fringes in the core are indicative of specific
crystal planes of the core material.  

		And if you look here at the picture that's being projected on the
screen, you can see lines in this structure.  Those are the lattice
fringes of the crystalline structure of the quartz interior, the quartz
core.  If you look down here towards the outside of this particle, you
don't see that.  And that's why this is being called highly crystalline
and this is being called amorphous.  They are different, but they are
bound together.

		Critically, Hochila and Mariama confirmed that the aluminosilicate
surface is connected to the quartz core at an atomic level and is not
merely a coating, but actually chemically and physically an intrinsic
part of the quartz particle itself.  They also show that the quartz core
is not exposed, but rather completely shrouded by the aluminosilicate
film.

		Slide 10: Sorptive Clay Occluded Quartz Surfaces.

		This last point bears reemphasis.  For sorptive clays, the occluding
amorphous aluminosilicate coating is chemically and physically an
intrinsic part of the quartz particle itself.  And the quartz core of
the particle is completely shrouded by this amorphous rind.  A summary
of this study will be provided as part of SMI's post-hearing submission.

		Slide 11: Characteristics of Crystalline Silica Species Known to Cause
Health Hazards.

		In comparison, there are three crystalline silica species known to
cause health hazards:  Non-occluded quartz, cristobalite, and tridymite.
 These offending species occur as single crystal particles with a pure
silicon dioxide surface that has a high degree of crystallinity.  They
also have high energy surfaces capable of generating free radicals.  And
these surfaces are produced by specific industrial circumstances such as
sand blasting and dry stone and concrete cutting and grinding that
fracture and break the silica particles into a respirable size. 

		Slide 12: Quartz Particle Surface Morphology. 

		The scanning electron photomicrographs in this slide illustrate the
obvious morphological differences between naturally occurring quartz
that has been isolated from bentonite, the commercially manufactured
DQ12 and Min-U-Sil 5 quartz used in toxicology studies, and the
occupationally generated quartz from a South African gold mine. 

		The sharply angular nature and clean surfaces of the manufactured and
occupationally generated quartz can clearly be seen on the right.  This
contrasts dramatically with the highly irregular clay-covered surface of
the quartz from the bentonite seen on the left.  

		Slide 13: OSHA Reference Studies Comparing Freshly Fractured versus
Aged Silica.

		In the preamble to the proposed rule, OSHA cites three studies where
the toxicity of freshly fractured silica is compared to that of "aged
silica" in animal studies.  In these studies, the silica was aged from
as little as a few hours to as much as 60 days.  In each case, the
authors found that the freshly fractured silica was more toxic than the
aged silica although the aged silica still retained significant
toxicity.  OSHA uses this fact as justification in the proposed rule to
regulate both freshly fractured and aged silica in the same manner.

		Slide 14: Aged Silica.		

		OSHA appears to have adopted the definition of the term aged as used
by these researchers.  That is, fractured silica that has been stored
for days or a few months before use in toxicology testing.  However,
this definition does not encompass the geologically ancient quartz
present in sorptive clays which has surfaces that are tens of millions
of years old.  

		Here, the difference in the timeframe is too significant to be
ignored.  Simply put, freshly fractured silica that has been aged for a
few months cannot be used to assess the health risks of quartz that is
millions of years old and has never been fractured.  As a result, OSHA
must critically define what it means by aged silica.  And for the
purpose of regulation under the proposed rules, OSHA must also
acknowledge the unique surface of geologically ancient quartz from
sorptive clays and segregate this quartz from the extremely young aged
silica it references.

		Toxicity of Occluded Quartz in Sorptive Clays, Slide 15.

		A number of important studies for assessing the health effects of
exposure to occluded clay -- excuse me -- to occluded quartz in the
sorptive clay industry were not considered by OSHA.  In Gay, et al,
2006, human lung fiber blasts were exposed in vitro to relatively high
concentrations of bentonite containing various levels of quartz with
differences in the presence and types of transition metals.  The authors
found only very low levels of genotoxicity as measured by micronucleus
assays.  They also found that samples with less than 1 percent quartz
showed no increase in micronucleus formation.  

		A recent animal study by Kroitzenberg (ph.) et al., 2008, that was
consistent with the findings of Gay was also not cited by OSHA in its
risk assessment.  

		Slide 16:  Toxicity of Occluded Quartz and Sorptive Clays,
Kroitzenberg et al., 2008.

		This study found that quartz with occluded surfaces was substantially
less toxic to rats after intratracheal instillation with follow-up for
up to 90 days than DQ12 crushed reference quartz.  A significant effort
was made to extract quartz from bentonite for this study without
chemically or mechanically altering the occluded surface of the quartz
particles.  

		This occluded quartz, or quartz isolate, as it's referred to here in
this slide, was compared to the DQ12 reference crushed quartz in a
single high-dose study specifically designed to elicit an inflammatory
response in the test animals.  This study provided sound evidence that
cytotoxicity and inflammation were significantly less severe in animals
dosed with occluded quartz from bentonite when compared to DQ12.  

		The graphs of key indicator tests shown here reveal that DQ12, the red
line, induced persistent, highly progressive inflammatory responses and
significant tissue damage while the response to the occluded quartz at
the same dose, the green line, was modest, not progressive, and
significantly above -- and not significantly above the saline control
group, which is the blue line.

		The results show that despite the very high dose used to guarantee an
inflammatory response, the response for occluded quartz is much
different and far less potent than that of crushed DQ12 quartz.  

		It is important to note, it's critical to note, that the DQ12 used in
this study was crushed 30 years before it was instilled into the test
animals, not a day or a few months.  Thirty years.  This is far older
than the aged quartz used in the three cited by OSHA, and which OSHA is
using as justification for regulating both freshly fractured and aged
quartz.  

		Now, frankly, although we can speculate based upon the data presented
in those three papers, Porter et al., Shoemaker et al., and Vallyathan
et al., what would have happened if OSHA's aged quartz and freshly
fractured quartz had been tested here -- we didn't do that,
obviously -- the response in each of these key indicator tests is very
likely to have been far greater for those materials than it was for this
30-year-old reference quartz.  

		And that's important because that's the real frame of reference that
needs to be used here to compare the response to the geologically
ancient, occluded quartz that we're testing and these other quartzes. 
In fact, if you look at those graphs, you might see those other test
lines going up almost asymptotically through the top of each graph
because they are so significantly more reactive and inflammatory than
the 30-year-old material was, which is far greater in its toxicity
capability than the geologically ancient quartz.

		Slide 17: Stability of Occluded Surfaces on Quartz from Sorptive Clay,
Kroitzenberg et al., 2008, 90-Day Instillation Study.

		As part of this same study, the stability of the occluded surfaces on
the quartz from the bentonite was also evaluated.  The instilled DQ12
and occluded quartz was recaptured from rat lungs at the end of the
90-day test period, and then subjected to scanning electron microscopy
to determine what its morphology was as well as some statistical
testing.  

		These scanning electron microscope photomicrographs show the
morphology of the crushed DQ12, reference quartz, the top two pictures,
and the occluded quartz from bentonite, the bottom two pictures, before,
on the left, and after instillation, on the right.  No significant
morphological changes occurred in either material.

		Further, particle diameter distribution and particle mass distribution
was also determined, and no significant difference was noted for either
material.  This provides strong evidence that the occluded surface on
the quartz isolated from bentonite clay remained intact throughout the
90-day test period.

		Slide 18: Epidemiological Studies in the Sorptive Clay Industry. 

		Worker exposure in the sorptive clay industry has not been extensively
studied due to the lack of observed adverse health effects in the
industry.  A NIOSH retrospective cohort study by Waxweiler et al. in
1988, which studied worker mortality at a sorptive clay mine and
processing facility in South Georgia, found a significant deficit of
non-malignant respiratory disease and no excess non-malignant
respiratory disease regardless of presumed dust exposure level,
induction latency period or duration of employment.

		Several reviews of worker exposures to crystalline silica have also
recognized the lack of silicosis risk among clay workers with exposure
to clay dust, including exposures to Fuller's earth, bentonite,
montmorillonite, and attapulgite.  And these studies were already
provided as part of our February 11th, 2014 comments.

		Slide 19: Occluded Quartz Conclusions.

		To summarize, geologically ancient occluded quartz from sorptive clays
is demonstrably different from freshly fractured quartz or OSHA's aged
quartz that is known to cause health issues.  Physically, it has an
inseparable aluminosilicate and clay surface.  Chemically, the surface
is not silicon dioxide, but that of an aluminosilicate. 
Toxicologically, it is significantly less toxic than crushed reference
quartz, which is far older than OSHA's aged and freshly fractured
quartz.  And it does not produce progressive disease.  In the past, OSHA
has regulated other silica species, such as opal, cristobalite, and
tridymite	differently from quartz.  

		Based upon this precedent and the numerous differences between
occluded quartz from sorptive clays and quartz that is known to cause
health hazards, SMI believes that occluded quartz from sorptive clays
should be regulated separately from other quartz species.

		Finally, I'd like to present one other issue that we believe OSHA must
consider.  

		Slide 20: The Effect of Ambient Levels of Crystalline Silica in the
Atmosphere on the Ability of the Regulated Industry to Meet the Proposed
Exposure Limits.

		Crystalline silica exists ambient air across the U.S. at levels that
represent a significant fraction of the proposed action level of 25
µg/m3.  In 1996, U.S. EPA published the results of a study that
measured mean ambient respirable atmospheric crystalline silica
concentrations in 22 cities across the U.S.  And EPA found that these
concentrations ranged from .9 to 8.0 µg/m3 of respirable crystalline
silica.  

		Slide 21: Airborne Quartz in 22 U.S. Cities.  

		This slide summarizes that data that EPA gathered.  It shows that for
the period of the study, Seattle had the lowest ambient concentration
while Boston had the highest level.  One might ask why Boston, and I
think that was during the period of the big dig.  These levels represent
4.4 percent and 32 percent, respectively, of the proposed action level. 
And the average of all 22 cities is 14.7 percent of the proposed action
level.

		Slide 22: The Effect of Ambient Levels of Crystalline Silica in the
Atmosphere on the Ability of Regulated Industry to Meet the Proposed
Exposure Limits.		

		The issue of ambient atmospheric respirable crystalline silica was
recognized by OSHA's senior industrial hygienist, Dr. Michael Pennell
(ph.), in a presentation he gave in May 2013 when speaking about program
considerations and a "zero exposure assumption," he stated crystalline
silica is ubiquitous in the environment, wind-blown surface dust may
account for a significant non-occupational exposure, and sampling in
northern New Mexico revealed ambient quartz levels that were 32.7
percent of the CPEL.  

		So under the proposed rules, high levels of crystalline silica in the
ambient atmosphere would contribute significantly to measured worker
exposures.  However, ambient crystalline silica in the atmosphere in the
U.S. has not been shown to be a significant health hazard.  So the
ability of industry to comply with the PEL and action level will be
significantly adversely affected by ambient atmospheric crystalline
silica levels. 

		As a result, OSHA must consider the proposed rule to provide --
reconsider the proposed rule to provide a mechanism for ambient
atmospheric crystalline silica levels to be factored out of silica-level
measurement in the workplace. 

		The Sorptive Minerals Institute thanks OSHA for this opportunity to
present testimony on OSHA's proposed rule on occupational exposure to
respirable crystalline silica, and I would be happy to take any
questions you might have.

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

		I'll open it up to questions from the audience first.  Could I see a
show of hands?  Any questions?

		(No response.)

		JUDGE PURCELL:  Not seeing any hands, I'll turn it over to OSHA.

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

		And thank you, Mr. Brown for appearing here this afternoon.

		MR. BROWN:  You're welcome.

		MR. O'CONNOR:  We'll begin with Janet Carter.

		MS. CARTER:  Thank you so much, Mr. Brown, for coming today and
providing us an opportunity to ask you questions.

		You had provided several references in your testimony.  And most of
them were full references, but there was one particular one, Wentland et
al., that didn't have a reference, and you indicated that that was a
very key reference.  And I just want to make sure that we have that to
look at.  The only one I was able to find was in Applied Geochemistry. 
And so if you could provide the full reference for that, that would be
wonderful so that we could actually consider that as part of our
reevaluation.

		MR. BROWN:  I believe that that document was actually provided as part
of our original comments back in February.  But if it was not, we will
make sure that it is provided.

		MS. CARTER:  We couldn't find it, so that would be great if you could.
 Thank you so much.

		I had a question regarding your testimony both today and your written
testimony.  Slide 18, you indicated that there was no anecdotal history
of silicosis, and that you indicated that ACGIH, EPA, and IARC 2005 had
done a review.  Now, I didn't look at the IARC 2005, but I looked at a
World Health Organization review in 2005.  It may be the same reference
that you were discussing.  And it actually indicated that there was
silicosis in bentonite-exposed workers.  They had several different
instances.  

		One of them was looking at bentonite workers exposed to crystalline
silica -- bentonite containing crystalline silica 5 to 11 percent. 
Another one was a study where they indicated that 32 workers were
exposed and 14 showed radiological evidence of silicosis.  And they also
indicated that these observations suggest that the beneficial effects
ascribed to bentonite in protecting rat lungs from silicosis may not be
present in humans.  

		I was wondering is this the same study that you were talking about? 
And if it's not, would you care to comment?

		MR. BROWN:  I can't comment if it is the same study without having
taken a look at it.  My comment would be that as far as I am personally
aware, there is only one, at this point, very old study that purported
to find any kind of health effects, any silicotic effects coming out of
the bentonite industry.  This was a publication by Fibbs (ph.) back in
the 1960s, the early '60s, I believe, which has largely been discredited
at this point because of multiple failures to properly analyze the
cohort that was being dealt with.  

		Workers that were being used for that or who were being referenced for
that study had come out of the metal mining industry in Butte, Montana. 
They were by and large heavy smokers, and there were major factors that
contributed adversely to the results that they were finding.  

		Other than that, I am not aware of anything at all.

		MS. CARTER:  Okay.  So what they referenced was actually different. 
So I just wanted to make you aware of that as well.  There were cases of
bentonite silicosis.  

		There's also been some -- so sorry -- 

		MR. BROWN:  Purported cases.

		MS. CARTER:  There was some recent -- there was a recent study
looking at workers' occupationally exposed to bentonite particles that
showed genetic damage and lipid peroxidation in workers.  I was
wondering -- this was published in 2013.  I was wondering if you were
aware of that study?

		MR. BROWN:  No.  

		MS. CARTER:  You also indicated that you had -- you have in the past
your sponsored research.  I was wondering if that was continuing?

		MR. BROWN:  Yes, it is.

		MS. CARTER:  Will you be publishing any of this any time soon or do
you have anything that you'll be able to add to the literature any time
soon?

		MR. BROWN:  I would say it will probably be a little while before we
get anything further to the point where it's ready for publication.  The
amount of effort that went into those two papers that were published in
Inhalation Toxicology sucked a lot of the wind out of our sales.  But we
are continuing to work on it, and rest assured, as soon as we have
anything that we believe would be usefully published, we're going to
publish it.

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

		MR. BROWN:  Yes.  And if I could say, those references that you
mentioned that I had indicated that I'm not familiar with, if I could
get those from you, I would certainly appreciate it.

		MS. CARTER:  Oh, absolutely, absolutely.  My name is Janet Carter. 
You're more than welcome to e-mail me, and I'm more than happy to send
those to you.

		MR. BROWN:  Thank you, Janet.

		MS. CARTER:  Okay.  

		MR. TREMAIN:  Hi, Mr. Brown.  Thanks again for being here.  My name
is Ryan Tremain with OSHA, and I was just curious if you could speak
maybe real briefly, at least on more of a macro scale, about some of the
processes through the mining or transport or processing of these
sorptive materials that release respirable crystalline silica.

		MR. BROWN:  Certainly.  The general process for processing either
bentonite clay or any of the other clays that are used in the industry
is to mine using an open pit mining technique, an open cut mining
technique.  The clay is removed by large equipment and transported in
bulk to a processing facility, typically where it is stockpiled, and
then used in smaller amounts as the plant consumes it.  The clay is
dried.  Temperatures during drying never exceed about 250 degrees
Fahrenheit.  And then the clay is typically either screened to produce a
granular product and remove the fine fraction and/or milled to produce a
powdered product, which is on the order of 200 mesh or 75 microns in
size, nominal size.

		For some products, particularly specialty products, some of the member
companies in our organization may also add a variety of chemicals to
accentuate properties that the clay has.  And then it's packaged after
that.

		MR. TREMAIN:  Okay.  Thank you.

		MR. O'CONNOR:  This is Dave O'Connor.  I just wanted to follow up on
Ryan's question.  Do you have any information as to the exposure levels
of the people involved in those operations, the screening and milling
operations, what their typical exposures are?

		MR. BROWN:  I don't have any of that here, and so could not speak to
it, but that kind of information is captured on a regular basis by, I
would expect, all of the member companies in our association, and even
those that are not part of the association.  The Mine Safety and Health
Administration is the regulatory body for the mining aspect of all of
our operations.  OSHA does have responsibility for some of the
processing operations or packaging operations.  So yes, it's available,
and at all levels throughout the process, I believe.

		MR. O'CONNOR:  Yes.  And, of course, we're particularly interested in
those operations that are under OSHA's jurisdiction.  And to the extent
that you're able to provide such information to the record, that would
be very helpful to us.

		MR. BROWN:  We'll see what we can do.

		MS. BENNETT:  Anna Laura Bennett.  I have just a few questions.  You
made a reference to the safe use determination for mineral-based pet
litter that was issued by the California Office of Environmental Health
Hazard Assessment?

		MR. BROWN:  Correct.

		MS. BENNETT:  And I think the attachment 1 to your written submission
is just the application, not the safe use determination itself; is that
correct?

		MR. BROWN:  You know, I'm not sure.  

		MS. BENNETT:  Okay.  If you wouldn't mind to submit the safe use
determination.  I looked through all of attachment 1, and it appears to
be the very long application but not the result.

		MR. BROWN:  I thought -- it was our intent to have included it. 
We'll have to check and see what actually was included.  If it wasn't
included, we'll make sure that it is.	

		MS. BENNETT:  Thank you.  So there are actually two documents.  And
you do refer to one in a footnote, the June 4th, 1999 issuance of the
safe use determination for crystalline silica in sorptive mineral-based
pet litter, and then also a document that is linked from the URL that
you provide in your footnote, the May 20th, 1999 response that includes
the supporting materials for the safe use determination.

		MR. BROWN:  Right, right.

		MS. BENNETT:  If you could provide both of those.  And just to be
clear, what was the effect of that safe use determination?

		MR. BROWN:  Could you clarify your question?

		MS. BENNETT:  What is the purpose of seeking a safe use determination?

		MR. BROWN:  Under Proposition 65 in California, anyone that has a
known cancer-causing agent in their product must list that on the
package.  And, of course, that is not particularly good for consumer
products if you're seen to have cancer-causing agents in your product. 
Because of the statements by IARC, where at that point in time, it was,
I believe, a 2A class carcinogen, it qualified.

		So as a group, we determined that we would attempt to seek a safe use
determination and develop the information, continue to develop the
information necessary to prove the point that this was not something
that caused that kind of issue, and we were successful in being able to
do that.  

		I might add, this was only the second safe use determination that
California had ever issued and the first that was issued for something
that really was not capturing in its entirety the potential bad actor
that they were focused on.  I believe the first one was a Loctite
product where some solid material was inside it and never could get out
of it, but they had gotten the safe use determination anyway.

		MS. BENNETT:  Okay.  And so you did succeed in getting the safe use
determination, so the warning requirement was not triggered?

		MR. BROWN:  That's correct.

		MS. BENNETT:  Okay.  And I was able to look at the materials on the
California agency's website, and I just want to make sure I understand
the basis for the safe use determination was not actually that the
mineral was inherently safer, but rather that the exposure among
consumers who would be using this product would be exposed at such low
levels that the excess cancer risk was less than 1 in 100,000
specifically because the exposure was so low, correct?

		MR. BROWN:  That is correct.  We put forth both arguments to
California OEHHA, and they chose to focus on the exposure.

		MS. BENNETT:  Okay.  Thank you.

		MR. BROWN:  Um-hum.  

		MR. O'CONNOR:  That concludes our questioning.  Thank you, again,
Mr. Brown.

		MR. BROWN:  Thank you very much.

		JUDGE PURCELL:  Thank you very much, Mr. Brown, appreciate your
testimony.

		The next and final presentation on the agenda for this afternoon is by
Lauren Bailey from the National Automobile Dealers Association.

		Ms. Bailey?

		(Off the microphone discussion.)

		JUDGE PURCELL:  Ms. Bailey, you just handed me a copy of your
testimony, which I'm going to introduce into the record as Hearing
Exhibit 132.  

					(Whereupon, the document 						referred to as Hearing 						
Exhibit 132 was marked and 						received in evidence.)

		JUDGE PURCELL:  With that said, whenever you're ready, you may
proceed.

		MS. BAILEY:  Thank you, Your Honor.

		Good afternoon.  My name is Lauren Bailey, and I am the Manager of the
State Franchise Law and Regulatory Initiatives for the National
Automobile Dealers Association, or NADA.

		NADA represents more than 16,000 franchised automobile and truck
dealers.  These dealers sell new and used motor vehicles and engage in
service repair and part sales.  Together, NADA's members employ upwards
of 1 million people nationwide.  Yet the majority are small businesses,
as defined by the Small Business Administration.

		NADA appreciates the opportunity to testify here today on OSHA's
proposed rulemaking on occupational exposure to crystalline silica.  And
I'd also like to thank OSHA for switching my time to today from
tomorrow.  Thank you very much.

		The list of affected industries in the proposed rule does not
reference the NAICS codes for franchised automobile and commercial truck
dealerships or those for standalone auto body shops.  Nonetheless, auto
body operations have long been referenced by OSHA a workplaces involving
the potential for crystalline silica exposure.  However, since no more
than 30 percent of automobile and truck dealerships have auto body
shops, and for the reasons I will elaborate on here today, NADA urges
OSHA to affirmatively recognize in its final rule that the overwhelming
majority of dealership employees are never exposed to respirable
crystalline silica at levels of concern.

		OSHA's current standard on respirable crystalline silica has
contributed to a 93 percent decline in silicosis deaths across all
industries and is adequately protective of automobile and truck
dealership worker health.  In the automotive industry, the current
standard has helped spur paint manufacturers to eliminate crystalline
silica from both factory and refinished automotive paint systems where
it once served as a flattening agent.  It has also spurred body filler
and abrasive blaster media manufacturers to offer products containing
little or no crystalline silica.  Moreover, the existing standard has
caused dealership auto body shops to consider the purchase and use of
ventilated sanders and ventilated abrasive blasting systems.  

		Consequently, OSHA's proposed changes to the crystalline silica
permissible exposure limit and action level would do nothing to enhance
dealership auto body worker health, yet would potentially impose an
array of unnecessary regulatory costs and burdens on an industry that
consists overwhelmingly of small business.

		Historically, the potential for respirable crystalline silica
exposures and auto body operations were limited to two exposure
scenarios involving auto body technicians and painting prep workers. 
The first involves the sanding of vehicles and vehicle body panel
surfaces.  In the past, body fillers and outmoded paint system
components sometimes contained a small amount of crystalline silica that
could become airborne during sanding.  Over time, crystalline silica was
removed from paint systems used in factory and auto body automotive
finishes to the point where NADA has been unable to identify its use in
automotive paint systems used in North America.

		With respect to body fillers, products containing a de minimis level
of less than 1 percent crystalline silica by weight exist in the
marketplace, but virtually every product manufacturer also offers
silica-free body fillers.  Moreover, some shops have moved to ventilated
sanders to control shop dust and improve workplace cleanliness.  

		When body fillers with less than 1 percent silica are sanded during
prep work, the amount of respirable crystalline silica dust generated
should fall below even OSHA's proposed action level.  The second and
only other potential exposure involves the removal of paint or rust from
vehicles or vehicle body panels with or without the use of abrasives
containing crystalline silica.

		In preparation for filing comments on this rulemaking, NADA surveyed a
number of dealership auto body shop operations regarding their paint and
rust removal practices.  Survey results suggest that abrasive blasting
is not regularly used to remove paint and rust.  This is not surprising,
as most paint removal operations in dealership auto body shops do not
involve going to the bare metal.  Moreover, dealerships also tend to see
relatively few vehicles with significant rust.

		Dealership auto body technicians and paint prep personnel tend to use
chemical paint strippers and, when necessary, spot blasters with
silica-free abrasive media.  It is not uncommon for dealership auto body
shops to use ventilated spot blasters for dust control purposes
regardless of the media being used since such devices offer the
advantage of abrasive capture and recycling and have a cleaner workplace
environment.  The use of ventilated blasters, like ventilated sanders,
helps to minimize any potential dust exposures.

		In an effort to identify and evaluate potential crystalline silica
exposure risks involving dealership employees, NADA collaborated with
numerous state and metro dealership associations who run their own
workers' compensation pools, and evaluate a year of dealership worker
compensation data.  The result: NADA was unable to identify a single
instance of dealership employee injury or illness related to respirable
crystalline silica exposure over the past 10 years.  In addition, NADA
was unable to identify a single OSHA or state enforcement action
involving crystalline silica exposure in a dealership auto body shop
operation for that same time period.

		In conclusion, NADA thanks OSHA for the opportunity to comment on this
rulemaking and to testify here today.  As noted above, the use of
crystalline silica-free products, dust reduction work practices and
appropriate respiratory protection have served to virtually eliminate
significant exposure concerns for dealerships.  NADA urges OSHA to
reference this fact in the preamble to any final rule it promulgates and
to maintain the standards that exist today.

		Thank you.

		JUDGE PURCELL:  Thank you, Ms. Bailey.

		I'll open it up to questions.  Any questions from the audience?

		(No response.)

		JUDGE PURCELL:  Seeing none, I'll turn it over to OSHA.

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

		And thank you, Ms. Bailey.  Greg Kuczura will begin OSHA's
questioning.

		MS. BAILEY:  Okay.  

		MR. KUCZURA:  Hello.  Do you currently perform any of the exposure
monitoring?  Like, any companies, do they perform any exposure
monitoring in, you know, when they work on the body -- cars or in the
shops?

		MS. BAILEY:  I'm sure companies exist that do perform exposure
monitoring.

		MR. KUCZURA:  Is it possible to send any data that they have with --
to OSHA after the post-hearings?

		MS. BAILEY:  NADA doesn't have any data on that.

		MR. KUCZURA:  My second question is do you perform any training in
regards to silica or dust control?

		MS. BAILEY:  Not necessarily on silica, but we do have a long history
of respiratory protection.  We have a guide that NADA publishes.

		MR. KUCZURA:  Okay.  Thank you.  That's all my questions.

		MR. STONE:  Robert Stone.

		MS. BAILEY:  Hi.

		MR. STONE:  Hi.  Congratulations on your excellent proactive program
in terms of not having silicate exposures of note reported or citations
from OSHA.  I was wondering if you have a program to support your
dealerships in terms of having the use of non-silica or low-silica
products?  I mean, is that part of the work that you do, or who informs
the individual dealerships about the practices they should use to avoid
silica exposure?

		MS. BAILEY:  So we couldn't necessarily as a trade association propose
what products our members could use, whether it be a silica-free product
or not.  But the products that I've mentioned in my testimony have a
very, very low amount of silica in them, less than 1 percent by weight. 
And that would be the body filler.  The paint systems no longer have
silica at all in them.

		MR. STONE:  Right.  Well, I think you've urged OSHA to recognize that
the overwhelming majority of your employees are never exposed to silica.
 I was wondering if it would be possible perhaps instead for you or some
other representatives from the dealerships to do some what I would call
objective analysis to verify that if they use these products, specific
products or specific practices, silica exposures would never exceed,
let's say, the action level of the PEL, which could then be used in your
industry, I believe, so long as the individual dealerships follow the
practices that you did the analysis on?

		MS. BAILEY:  I think our comments show that we use products with very,
very low concentrations of silica and we have engineering controls and
work practices that the employees are very, very unlikely to encounter
silica levels even close to the PEL.

		MR. STONE:  Right.  And what evidence do you base this on?  Do you
have any types of results, any types of exposure monitoring or other
analysis that's been done for you to demonstrate that what you say is
true?

		MS. BAILEY:  We don't.

		MR. STONE:  Okay.  Okay.  That's all for me.  Thank you very much.

		MS. BENNETT:  Anna Laura Bennett.  I have just a few questions.  For
page 2 of your written submission and also in your comments today, you
referred to the recent NADA survey of automobile dealership body shop
operations.  And you state that the survey showed that abrasive blasting
was not regularly used as the primary method for paint and rust removal.
 Would it be possible to provide the results of the survey in
post-hearing comments?

		MS. BAILEY:  So the survey results were not -- it was not a written
survey, so I don't think they would be able to be provided in
post-hearing comments.

		MS. BENNETT:  Okay.  So there's no written form of the results of the
survey to provide -- 

		MS. BAILEY:  Right.

		MS. BENNETT:  Okay.  Do you know from the survey how often these body
shop operations actually reported using abrasive blasting for paint and
rust removal?

		MS. BAILEY:  Almost never.  It would be a different type of operation
entirely. Taking the entire paint off of a car would be done at a
completely different facility.  And most of the people that talked about
abrasive blasting were the truck dealers, and that was not done at a
truck dealership operation.  It was done at a completely different
facility.

		MS. BENNETT:  Okay.  So this is uncommon for dealership auto body
shops?

		MS. BAILEY:  Uncommon for dealership -- when you're talking about an
independent body shop, they would be more likely to take the paint off
of a car.  Dealerships are usually using new cars.  They would take only
paint off a section of the car, so they wouldn't be using a giant
abrasive blaster.

		MS. BENNETT:  Okay.  Thank you.  And you also state that dealership
auto body shops sometimes use ventilated spot blasters that control dust
that allow for the capture and recycling of abrasives?

		MS. BAILEY:  Um-hum.  

		MS. BENNETT:  Similar questions.  Do you know how often those control
methods are used or what percentage of dealership auto body shops use
them?

		MS. BAILEY:  So again, this would be dealing with a truck dealer who
used the abrasive -- the ventilated abrasive blaster.  

		MS. BENNETT:  Okay.  So when you say that dealership auto body shops
sometimes use ventilated spot blasters, they just don't need to use them
more often because they're not doing that kind of work?

		MS. BAILEY:  Right.

		MS. BENNETT:  Okay.  

		MS. BAILEY:  Correct.

		MS. BENNETT:  And you also mentioned in your comments today and on
page 3 of your written submission that a review of 10 years of data from
several state automobile dealership trade associations workers'
compensation programs turned up no claims involving silica dust
exposure.  Are those data in a form that you could submit in
post-hearing comments?

		MS. BAILEY:  No.  

		MS. BENNETT:  Okay.  Do you happen to know what specific diseases or
symptoms were examined?

		MS. BAILEY:  So we looked for any sort of lung disease, anything
having to do with silica exposure, and the way that they were searching
their workers' compensation data, they actually looked through 10 years
of their lung diseases to see any sort of exposure that way.  So it
wasn't necessarily just looking for a silicosis claim.  It was looking
through all of the data on lung diseases.

		MS. BENNETT:  Okay.  Thank you.

		MR. O'CONNOR:  That concludes OSHA's questioning.  Thanks again,
Ms. Bailey for coming in.

		MS. BAILEY:  Thank you for accommodating me for today.  Thank you.

		JUDGE PURCELL:  Thank you very much, Ms. Bailey.  

		That concludes the program for today.  We'll resume with Day 13 of the
OSHA hearing tomorrow morning at 9:30.  We're adjourned.		

		(Whereupon, at 3:34 p.m., the hearing was continued, to resume the
next day, Thursday, April 3, 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 2, 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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