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 3, 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):

KIMBERLY ROBINSON

Attorney, Office of the Solicitor

KRISTEN LINDBERG

Attorney, Office of the Solicitor

OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION (OSHA):

WILLIAM PERRY

Acting Director, Directorate of Standards and Guidance

DAVID O'CONNOR

Director, Office of Chemical Hazards - Non-Metals

TOM MOCKLER 

Acting Director, Office of Regulatory Analysis 

- Safety

JESSICA SCHIFANO

Office of the Director

JOANNA GORSE 

Office of Physical Hazards

STEPHEN SCHAYER

Office of Physical Hazards

JOSEPH COBLE, Sc.D., CIH

Director, Office of Technological Feasibility

GREG KUCZURA

Office of Regulatory Analysis - Health

CENTER FOR PROGRESSIVE REFORM (CPR):

MATTHEW SHUDTZ

Senior Policy Analyst

NATIONAL CONSUMERS LEAGUE (NCL):

SALLY GREENBERG

Executive Director

PUBLIC CITIZEN:

AMIT NARANG

Regulatory Policy Advocate

INDIVIDUAL:

CHARLES GORDON

COLLEGIUM RAMAZZINI:

L. CHRISTINE OLIVER, M.D., M.P.H., M.S.

Associate Clinical Professor of Medicine, Harvard Medical School

HALENHARDY, LLC:

DONALD BEAVER

CEO

AMERICAN COMPOSITE MANUFACTURERS ASSOCIATION (ACMA):

JOHN SCHWEITZER

Vice President, Government Affairs

NORTH AMERICAN INSULATION MANUFACTURERS ASSOCIATION (NAIMA):

ANGUS E. CRANE

Executive Vice President/General Counsel

STEVE ALDRIDGE

Regional Manager, Environmental Health and Safety, Knauf Insulation

NOVETAS SOLUTIONS:

PAUL MELLON

President

OTHER PARTICIPANTS:

PEG SEMINARIO

Safety and Health Director, AFL-CIO

ROBERT MATUGA

National Association of Home Builders

CHRIS TRAHAN

Building and Construction Trades Department, AFL-CIO

ELIZABETH NADEAU

Attorney, International Union of Operating Engineers

INDEX

										PAGE

INTRODUCTION 

Judge Stephen L. Purcell					  	  PAGEREF aIntroPurcell \h  3738 

CENTER FOR PROGRESSIVE REFORM (CPR); NATIONAL CONSUMERS LEAGUE (NCL)

	CPR - Matthew Shudtz					  PAGEREF Presentation1Shudtz \h  3740 

	NCL - Sally Greenberg					  PAGEREF Presentation2Greenberg \h  3748 

	Questions			 					  PAGEREF Presentation1and2QandA \h  3756 

PUBLIC CITIZEN

	Amit Narang				 			  PAGEREF Presentation3Narang \h  3768 

	Questions							 	  PAGEREF Presentation3QandA \h  3776 

INDIVIDUAL

	Charles Gordon						 	  PAGEREF Presentation4Gordon \h  3782 

	Questions							 	  PAGEREF Presentation4QandA \h  3805 

COLLEGIUM RAMAZZINI

	L. Christine Oliver, M.D., M.P.H., M.S.	  PAGEREF Presentation5Oliver
\h  3835 

	Questions								  PAGEREF Presentation5QandA \h  3873 

HALENHARDY, LLC

	Donald Beaver							  PAGEREF Presentation6Beaver \h  3896 

	Questions								  PAGEREF Presentation6QandA \h  3912 

AMERICAN COMPOSITE MANUFACTURERS ASSOCIATION 

(ACMA)

	John Schweitzer						  PAGEREF Presentation7Schweitzer \h  3931 

	Questions								  PAGEREF Presentation7QandA \h  3939 

INDEX

										PAGE

NORTH AMERICAN INSULATION MANUFACTURERS 

ASSOCIATION (NAIMA)

	Angus E. Crane							  PAGEREF Presentation8Crane \h  3954 

	Steve Aldridge							  PAGEREF Presentation8xAldridge \h  3958 

	Angus E. Crane							  PAGEREF Presentation8yCrane \h  3959 

	Questions								  PAGEREF Presentation8QandA \h  3972 

NOVETAS SOLUTIONS

	Paul Mellon							  PAGEREF Presentation9Mellon \h  3991 

	Questions								  PAGEREF Presentation9QandA \h  4006 

ADJOURNMENT								  PAGEREF Adjournment \h  4011 

EXHIBITS

EXHIBITS		DESCRIPTION				 	PAGE

Exhibit 133	Mr. Shudtz' testimony  		    	  PAGEREF Exhibit133 \h  3739


Exhibit 134	Ms. Greenberg's testimony	    	  PAGEREF Exhibit134 \h 
3740 

Exhibit 135	Reserved - Mr. Narang's 

			testimony			  		    	  PAGEREF Exhibit135IDonly \h  3780 

Exhibit 136	Mr. Gordon's testimony  		    	  PAGEREF Exhibit136 \h 
3781 

Exhibit 137	Mr. Gordon's regulatory text	    	  PAGEREF Exhibit137 \h 
3782 

Exhibit 138	Mr. Gordon's picture  		    	  PAGEREF Exhibit138 \h  3784 

Exhibit 139	Dr. Oliver's testimony	   		  PAGEREF Exhibit139 \h  3835 

Exhibit 140	Mr. Beaver's flash drive			  PAGEREF Exhibit140 \h  3896 

Exhibit 141	Mr. Schweitzer's testimony	   	  PAGEREF Exhibit141 \h  3930


Exhibit 142	Mr. Crane's testimony		   	  PAGEREF Exhibit142 \h  3954 

Exhibit 143	Mr. Mellon's testimony		   	  PAGEREF Exhibit147 \h  3991 

Exhibit 144	Letter to Harsco			   	  PAGEREF Exhibit147 \h  3991 

Exhibit 145	Beryllium NPRM				   	  PAGEREF Exhibit147 \h  3991 

Exhibit 146	Advisory Committee on 

			Construction Safety and Health

			transcript, 12/6/2013		   	  PAGEREF Exhibit147 \h  3991 

Exhibit 147	Hazard alert sheet for beryllium    PAGEREF Exhibit147 \h 
3991 

P R O C E E D I N G S

(9:32 a.m.)

		JUDGE PURCELL:  Good morning.  My name is Stephen Purcell, and I'm the
Chief Administrative Law Judge for the U.S. Department of Labor.

		Today is Day 13 of the public hearings for the proposed rule on
occupational exposure to respirable crystalline silica.  Today's date is


May [sic] 3rd, 2014, Thursday, and the time is about 9:30 a.m.

		The first item on the agenda is a presentation by Public Citizen,
Keith Wrightson and Amit Narang.  I understand that there's been some
problems with commuters coming into the city this morning.  I don't know
if either or both of those individuals are here.  If you are, if you'd
hold up your hand, I'd appreciate it.  It doesn't appear that they are.

		The next item on the agenda is 

Matthew Shudtz from the Center for Progressive Reform.  Mr. Shudtz, if
you're here, I think we'll go ahead and start with you and then continue
with Public Citizen after that.

		And let me ask you, before you start, do you have a copy of your
testimony that you'd like to offer?

		MR. SHUDTZ:  I do and I just handed it 

to --

		JUDGE PURCELL:  Okay.  That will be marked as Hearing Exhibit 133 and
admitted into the record.

(Whereupon, the document referred to as Hearing Exhibit 133 was marked
and received in evidence.)

		JUDGE PURCELL:  And when you're ready, then go ahead and proceed. 
Take your time and get set up.

		MR. O'CONNOR:  Your Honor, if you think it makes sense and if
Mr. Shudtz and Ms. Greenberg were amenable to it, would it be
reasonable for the National Consumers League to present testimony in
sequence and then be questioned at the same time?

		JUDGE PURCELL:  Is Ms. Greenberg here?  Okay, Ms. Greenberg, do you
have any objection to that?

		MS. GREENBERG:  I don't, no.

		JUDGE PURCELL:  Okay.  And Mr. Shudtz does not either, so we'll
proceed in that manner.

		And, Ms. Greenberg, I'll ask you the same thing.  If you have a copy
of your testimony that you'd like to offer into the record, I'll go
ahead and mark that as an exhibit.  Did you have an extra copy?

		MS. GREENBERG:  Coming.

		JUDGE PURCELL:  Okay.  I'm going to mark that as Hearing Exhibit 134
and that will be admitted into the record.  Thank you.

(Whereupon, the document referred to as Hearing Exhibit 134 was marked
and received in evidence.)

		JUDGE PURCELL:  And Mr. Shudtz, if you're ready, you may proceed.

		MR. SHUDTZ:  Your Honor, thank you for the opportunity to testify this
morning.  And thank you to the representatives from OSHA and the
Solicitor's Office, who I want to commend for putting together a very
strong proposal.

		My name is Matthew Shudtz.  I'm a Senior Policy Analyst with the
Center for Progressive Reform.  My written comments are in the docket,
and they form the basis for these remarks.  I'll highlight a few points
from the written comments, and I'd also like to respond to a few issues
that have come up during the course of this hearing.

		I'll address four main points: first, OSHA's statutory obligations;
second, medical surveillance; third, enforcement issues; and fourth,
small businesses.

		JUDGE PURCELL:  Could I get you to pull the microphone a little
closer?  Thank you.

		MR. SHUDTZ:  Is that better?

		JUDGE PURCELL:  That's good.

		MR. SHUDTZ:  I'll begin with the statutory context.  On the first day
of the hearing, Mr. Perry stated, in his opening remarks, that OSHA
must meet several legal tests in developing standards and that one of
these tests was to determine that the regulatory approach chosen is cost
effective.

		I couldn't recall that standard being discussed in the preamble to the
proposed rule, so I got up and asked where that standard came from and
how it relates to the economic feasibility analysis required under the
Supreme Court's interpretation of the OSH Act.  I'm afraid the record of
my questions and OSHA's answers may be a bit confusing, so I just wanted
to take this opportunity to clear up the point that I wanted to make.

		Of course, the cotton dust standard decision -- cotton dust decision
is the touchstone for any discussion about the economic analyses
involved when OSHA is setting a regulation under Section 6(b)(5).

		And as I recall the first day of the hearing, I believe a
representative of the Solicitor's Office indicated that she believed the
cost-effectiveness test that Mr. Perry had mentioned was something that
originated in the cotton dust standard.  I took a look back at the case
and could not find a mention of cost effectiveness as an appropriate
criterion for setting standards under 6(b)(5).

		I also took a look back at the ANPRM and could not find any discussion
of what a cost-effectiveness test means in the context of regulation
promulgated under 6(b)(5), much less how such a test may have shaped
this proposed rule.

		The reason I highlight this issue is that it's not entirely clear to
me what the difference is between a cost-effectiveness test and a
cost-benefit test.  And since the cotton dust decision was pretty clear
in stating that basing a standard on cost-benefit analysis would be
inconsistent with the Section 6(b)(5) mandate to regulate to the extent
feasible, I'm concerned that any provision of this proposal that's based
on a cost-effectiveness test is ripe for legal challenge.

		And that brings me to the issue of medical surveillance.  As I noted
in the written comments, a drastic change to the medical surveillance
provisions of the proposal occurred while the proposal was under
Executive Order 12866 review at the White House.

		The draft proposal that went over to OMB would have required medical
surveillance for all workers exposed above the action level for at least
30 days in a year.  And once the medical surveillance provisions were
triggered, employees -- employers, rather, would have had to provide
for exams on a yearly basis.

		When the proposal emerged from the White House review more than two
and one-half years later, the trigger had been bumped up to the PEL and
the frequency of exams had dropped to a tri-annual requirement.

		The reason I harp on this issue is that it appears those changes were
made primarily for cost-cutting purposes.

		Again, on the first day of the hearing, I asked a question seeking
clarification on the justification for setting the medical surveillance
trigger at the PEL rather than at the action level.  And OSHA's staff
indicated that the choice of a PEL trigger was based on some type of
risk/benefit calculation.  The workers exposed above the PEL are more
likely to suffer adverse health effects, and so ensuring that they get
medical exams is more important than providing the same assurances to
workers who are exposed in the 25 µg to 50 µg range.

		And here's my problem with that reasoning.  OSHA has clearly stated in
the preamble that workers face a significant risk of adverse health
consequences even at the action level.  It's unfair and unjustifiable,
under the 6(b)(5) mandate, to provide different levels of protection to
workers based on whose risks are more or less, though in every case
significant, when providing those protections are feasible for all. 
There is no evidence in the record to suggest that using an action-level
trigger for medical surveillance is either economically or
technologically infeasible.

		OSHA's staff described the decision-making construct as being
risk-based, but that's not the relevant standard under 6(b)(5). 
Congress delegated OSHA the task of regulating to the extent feasible,
not to the extent that only the most at-risk workers are protected.

		In the final rule, I urge OSHA to adopt what is currently listed as
Regulatory Option 6, which would require medical surveillance for all
workers exposed above the action level for at least 30 days per year,
and would provide for annual medical exams.

		I'd like to shift gears and talk about enforcement.  A number of
stakeholders have suggested that OSHA could better protect workers who
are exposed to silica dust by simply beefing up enforcement of the
existing standard.  I don't think that solution is practical, much less
appropriate.  From a practicality standpoint, there are too many
worksites, many of them transient, where silica exposure is a problem.

		I'm not sure if the record contains an explanation of the time it
takes to conduct a health inspection focused on silica exposure, or the
number of industrial hygienists on OSHA or state plan agency staffs who
can conduct those sorts of inspections.  I'd encourage OSHA to include
that information in the preamble to the final rule, because I think it
will clearly show that inspections are only a partial solution to the
problem of silica-related disease.

		What's so important about this proposal and what makes it so
imperative that the final rule be published soon is that it's a
comprehensive solution.  Enforcing the current standard won't lead to
the medical surveillance, training, or other ancillary provisions to
ensure employers are protecting workers to the extent feasible.

		Last, I'd like to say a few words about small businesses.  I want to
commend OSHA for taking the time to do the analysis of the proposal's
potential effects on what the Agency calls very small entities; that is,
employers with 20 or fewer employees.  Some stakeholders like to focus
on the proposal's potential effects on businesses that meet the Small
Business Administration's standards for what defines a small business.

		I want to take this opportunity to note for the record that SBA's
small business size standards were adopted for a purpose very different
than assessing the potential effects of regulatory proposals.

		The size standards were originally adopted pursuant to the 1950's era
Small Business Act, which was primarily an effort by Congress to
establish government purchasing preferences and financial assistance
programs that would benefit U.S. small businesses.  SBA's goal in
setting those standards was to create inclusive criteria so that its
loan programs would have the broadest impact.

		SBA's Office of Advocacy, which has been actively lobbying for scaling
back this proposal and has primary responsibility within SBA for dealing
with Reg Flex Act implementation, did not create the size standards.  In
fact, the Office of Advocacy did not exist until nearly 20 years after
the standards were first developed.

		To my mind, this history raises significant questions about the size
standards' relevance and validity for purposes of analyzing the
potential effects of this proposal.  Again, I urge OSHA to include a
note about this history in the preamble to the final rule.

		In conclusion, I would like to reiterate my support for OSHA's
proposal.  Stakeholders have many different opinions on the risk and
cost numbers and on the optimum form for a protective standard.  But the
simple fact is that millions of workers are exposed to this deadly dust
and it's high time for a comprehensive standard.

		OSHA's proposal is a significant step in the right direction.  And
while I believe the recommendations I've made today and that appear in
my written comments are critical to providing the best protections for
workers, the single most important thing the Agency could do with this
rule is get it published and start enforcing it as soon as possible.

		Thank you again for the opportunity to testify.

		JUDGE PURCELL:  Thank you, Mr. Shudtz.

		Ms. Greenberg, if you're ready.

		MS. GREENBERG:  Thank you, Your Honor.  And thank you, Panel, for
giving us this opportunity to provide testimony on this important
proposal.

		My name is Sally Greenberg.  I'm Executive Director of the National
Consumers League.  The league has been dedicated to worker health and
safety since our founding in 1899.  Florence Kelley, who led the league
for our first 32 years, focused during the 1920s on phasing out worker
exposure to tetraethyl gasoline and radium poisoning in the making of
luminous watches.  The radium rotted out the jaws of workers.

		Frances Perkins, herself, who got her start with the National
Consumers League, also exposed the problems of workers inhaling dust in
pearl button factories.  During the 1913 era, these pearl button
factories produced dust from grinding the shells.  This process was both
a health and fire hazard, damaging the lungs, and particles in the air
that could cause an explosion.

		Perkins worked with cooperative companies, who agreed to install
ventilating systems with hoods directly over benches where the buttons
were cut and polished.  The floor was kept moist so that the dust would
stick when it settles.  All employees wore uniforms and caps and there
were good washrooms and clear aisles to provide fireproof door openings
and three fireproof enclosed stairways leading directly to the street. 
Not all companies were cooperative, I should point out, and those
factories were highly hazardous to workers.

		So we are struck by the fact that we are here today talking about the
very same kinds of issues that were resolved, for the most part, 101
years ago in many conditions where workers' lives and health were put at
risk.

		In that spirit, we want to express our support for OSHA's proposal to
protect silica-exposed workers.

		Breathing tiny particles of silica can damage the lungs and cause
silicosis.  Sufferers can't get enough oxygen, they become weak; there's
no cure.  Workers can encounter silica dust while doing all kinds of
jobs, from mining to manufacturing to construction.

		So OSHA's proposal for proposing a new standard limiting exposure to
this known carcinogen comes at a very important time.

		As demonstrated by the extensive evidence compiled by the Agency, the
current standard is badly outdated and does not adequately protect
workers from exposure.  We encourage OSHA to adopt the American
Conference of Governmental Industrial Hygienists and the National
Institute of Occupational Safety and Health's recommendations for a 50
µg range of exposure air limit for all respirable crystalline silica.

		The current OSHA personal exposure limit, or PEL, is badly outdated
again and does not adequately protect workers.  We believe OSHA's
recommendations are based on the best available evidence and the Agency
acted appropriately in giving greater weight to those studies with the
most robust designs and statistical analysis.

		NCL agrees with OSHA that exposure to silica at the current limit is
associated with malignant and nonmalignant respiratory disease as well
as renal disease.

		We note with concern, however, that the evidence suggests that workers
exposed to the proposed permissible PEL will continue to face
significant risk.

		According to the American Public Health Association, this lifetime
risk includes six to as many as 26 deaths per 1,000 from lung cancer, 32
deaths per 1,000 from renal cancer, and as many as 43 deaths per 1,000
from nonmalignant respiratory disease.

		Given the substantial risk that will exist even after the 50 µg
standard is set and the PEL is implemented, secondary needs to protect
workers' health are clearly warranted.  And OSHA's standard to protect
silica-exposed workers is a form of primary prevention.  Secondary
prevention measures, such as exposure monitoring and surveillance, do
not prevent disease but may allow for early detection and medical
intervention to limit or eliminate progression.

		We agree with OSHA's further proposal for monitoring requirements when
silica exposures are at or above that 25 µg range.

		There are several other points that we want to make before we close. 
We support a requirement for the employer to post a warning sign at each
regulated area.  This requirement would be consistent with OSHA's other
health standards that address toxic substances.

		The warning sign should, at minimum, include the following information
in languages appropriate for all workers on the site:

		"Danger.  Silica dust causes damaged lungs.  A carcinogen.  May cause
lung cancer.  Authorized personnel only."

		And when applicable, the warning sign should note that respiratory
protection and protective clothing are required.

		We urge OSHA to prohibit the use of silica sand for abrasive blasting.
 According to international experts, many countries have banned the use
of silica sand in abrasive blasting, including Great Britain, Germany,
Sweden, and Belgium.  These industrialized nations have demonstrated
that abrasive blasting can be done effectively without the use of sand. 
The U.S. Navy, the Air Force, the Coast Guard, and 23 state departments
of transportation have also banned the use of silica in abrasive
blasting.

		We strongly disagree with some commentators who insist that OSHA
should allow only the use of respirators to protect silica-exposed
workers.  This fails to recognize those factors that make respirators
unreliable as the first line of defense.  These include special
responsibilities for employers, such as ensuring the respirators are
individually selected and fitted for each worker, ensuring workers who
wear respirators are refitted periodically, ensuring that respirators
are worn properly each and every time, and ensuring that respirators are
maintained precisely as directed by the manufacturer and replaced
accordingly.

		Moreover, if employers fail to provide the required medical
examinations to assess workers' fitness to wear respiratory protection,
workers are at risk of suffering harm.

		We agree with OSHA that in too many workplaces employers are unable to
diligently and consistently meet these requirements.

		In addition, workers offer their own reasons why respirators are not
and should not be the primary source of protection from silica,
reporting that it's difficult to breathe, especially when engaged in
physical labor, wearing a respirator.  And wearing a respirator, instead
of controlling dust at its source, means that coworkers in close
proximity are still exposed to silica dust.  Workers are also
uncomfortable.  As I stated, the respirators are uncomfortable to wear,
especially when working in a hot environment.  It's also difficult to
communicate with coworkers when wearing a respirator.

		We agree that it's important for OSHA to develop and make available
training materials to employers, and urge OSHA to develop materials
written specifically for workers who are exposed or potentially exposed
to respirable silica.  Materials should explain the health effects of
silica exposure, explain provisions of the rule in terms of what
employers are required to do, including requirements for training, and
describe measures workers could take if employers are failing to comply
with the rule.

		The recommendations of the U.S. Preventive Task Force for screening
individuals at high risk of lung cancer have recently been released. 
And I have a link for that in my written remarks.  We recommend that
OSHA reserve the ability to require lung cancer screening, in the time
before this rule is adopted, to specify relevant levels and duration of
silica exposure and other carcinogens.  Radiographic testing should
target only the relatively few workers reaching appropriate risk levels.
 These tests should use appropriate protocols, quality control
mechanisms, and low-dose radiation exposure to minimize the potential
for adverse effects from screening.  And workers, of course, should have
the ability to opt out.

		Finally, OSHA's final silica standard for general industry and
shipyards must include provisions for medical removal and protection for
workers who have evidence of respiratory disease.  Workers should have
the right to be transferred to a less dusty job at no loss of pay,
consistent with the Federal Coalmine and Safety Act of 1969, and NIOSH
regulations as well.  And they should suffer no penalty or retaliation.

		Workers should be able to exercise this right at the time of their
choosing by providing the employer with a written medical determination
by a physician or a licensed healthcare professional of their own
choosing.  OSHA should explicitly state, in the regulatory text, that
discriminating against workers for exercising this right is prohibited
and will be deemed a violation of the standard.

		We appreciate this opportunity to provide comments on this vitally
important proposed occupational health standard.

		Thank you.

		JUDGE PURCELL:  Thank you, Ms. Greenberg.

		With that, I'll open it up to questioning.  Before I do that, let me
just note for those who have come in after the hearing started, present
on the dais right now are Matthew Shudtz from the Center for Progressive
Reform and Sally Greenberg of the National Consumers League.  Public
Citizen representatives weren't here when we started, so we'll take them
next.

		But let me ask how many people from the audience have questions at
this point.  If I can see a show of hands.  I see one, two -- okay. 
And we'll start over here.  If you'd like to approach the lectern and
state your name and affiliation.

		MS. SEMINARIO:  Good morning.  

Peg Seminario from the AFL-CIO.

		Thank you both for your testimony this morning.

		Mr. Shudtz, I appreciate your review of the issues regarding
feasibility and cost/benefit analysis and cost-effectiveness analysis
with respect to OSHA.  I note that in your written comments, in addition
to yourself, they were authored by 

Thomas McGarity, Sid Shapiro, and Martha McCluskey.

		Could you tell us a little bit more about the Center for Progressive
Reform and the work that you do and particularly the expertise of
Mr. McGarity and Mr. Shapiro in this area of occupational safety and
health law and regulation?

		MR. SHUDTZ:  Sure.  I'll start with CPR as a whole.  It's an
organization that's primarily a group of law professors from around the
country who continue their day jobs as law professors but provide pro
bono guidance to a small staff at CPR.

		And Professors McGarity and Shapiro have an extensive history with
OSHA's implementation of the Act, including having written -- sort of
written -- the book on OSHA and the Act, and that book is Workers at
Risk.  I think the subhead is The Failed Promise of the OSH Act, or
something like that.  But that book came from work that they did for
ACUS in the early '90s.

		So their background on both OSHA's implementation of that statute and
the statute itself is extensive and really helped form the basis of both
comments.

		MS. SEMINARIO:  So CPR and Mr. McGarity and Mr. Shapiro have
extensive experience and expertise in this area of regulatory policy and
law regarding the OSH Act and its regulations?

		MR. SHUDTZ:  I couldn't have said it better myself.

		MS. SEMINARIO:  Right.  Thank you.

		JUDGE PURCELL:  Thank you, Ms. Seminario.

		Next questioner, please state your name for the record and spell your
last name and identify your affiliation.

		MR. MATUGA:  Sure.  It's Rob Matuga.  It's M-a-t-u-g-a.  I'm with the
National Association of Home Builders and I believe I testified -- was
it yesterday?  I'm getting all of these days mixed up.

		JUDGE PURCELL:  Me, too.

		MR. MATUGA:  I just really wanted to follow up with Mr. Shudtz, as
well.  I'm not really familiar with the Center for Progressive Reform,
and I think that your last answer gave me a little bit better idea as to
the makeup of your organization.

		I guess my first question is, is that you talked about small
businesses and sort of the size standards -- you know, the Center for
Progressive Reform.  Can you explain a little bit about the makeup of
your organization?  Are they in the best place to actually speak for a
small business, in terms of do you all represent many small businesses?

		MR. SHUDTZ:  My comments about the Small Business Administration were
focused on the way the SBA developed its size standards.  And as I said
in response to Ms. Seminario's question, our organization has extensive
expertise in the rulemaking process and the development of various
agencies' rules and standards.

		And so to that extent, I think we have a valid point to make about the
way those standards were developed and how they relate to OSHA's
responsibilities under the Reg Flex Act, the SBREFA, and other
analytical requirements.

		MR. MATUGA:  So you really don't represent any small businesses?

		MR. SHUDTZ:  We don't represent small businesses.

		MR. MATUGA:  Okay.  So you really can't speak on their behalf, then?

		MR. SHUDTZ:  I'm not here to speak on small businesses' behalf.

		MR. MATUGA:  Okay.  All right, just one other question, as well.  What
about your expertise in terms of evaluating the proposed rule on the
construction industry?  Can you explain a little bit about your
expertise in terms of commenting on the impacts on the construction
industry?

		MR. SHUDTZ:  Once again, our comments focus on the regulatory design
more than the precise impacts on any given firm.

		MR. MATUGA:  Okay, that's all I had.  Thank you.

		JUDGE PURCELL:  Thank you, Mr. Matuga.

		Any further questions from the audience?

		(No response.)

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

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

		And thank you, Mr. Shudtz and 

Ms. Greenberg, for appearing and testifying this morning.

		Tom Mockler will begin OSHA's questioning.

		MR. MOCKLER:  Hi, Mr. Shudtz.  I have two questions for Mr. Shudtz. 
The first one was, in the written comments it was proposed, in the
context of establishing a significance of risk, that we provide wage and
salary data, and I'm not sure I fully understood the concept there.  I
was wondering if --

		MR. SHUDTZ:  Yeah, sure.  Thanks for the question and the opportunity
to clarify that.  The context in which that came up was that we made the
recommendation that OSHA, in finalizing this rule, clarify that
significant risk is not simply a quantitative analysis of health
impacts; that under the Supreme Court's reading of Section 6(b)(5) --
actually, I'd like to -- so I don't flub this, I want to read the quote
exactly.

		The Supreme Court said that "the OSH Act was not intended to subject
OSHA to a mathematical straightjacket, and while the Agency must support
its finding that a certain level of risk exists by substantial evidence,
its determination that a particular level of risk is significant will be
based largely on policy considerations."

		And so the reason we suggested providing wage and salary data is that
the significance of risk connected to silica exposure isn't just the
health risk, but also the sort of broader context in which that risk
exists.

		And so when a worker suffers from the health consequences of silica
exposure, that happens in the context of their income, their assets,
their available health benefits, et cetera.

		And so these other issues affect the sort of policy considerations
that may suggest that the risk is more significant than just what is
available in terms of excess deaths.

		MR. MOCKLER:  Okay.  My other question had to do with -- you had
proposed that we incorporate some sort of broader value questions into
the benefits analysis, including dignity and equity; and in the end, the
suggestion seemed to be that they were non-monetizable.  I was wondering
what's your suggestion of how we should incorporate those into our
benefits analysis.

		MR. SHUDTZ:  Again, thank you for the question.  I think it's a fair
and justifiable way to address these by simply describing them
qualitatively.  It's not necessary to quantify all benefits and that
qualitative benefits are equally important in assessing the benefits of
the rule.

		MR. MOCKLER:  Okay, thank you.

		MR. O'CONNOR:  This is Dave O'Connor.

		Mr. Shudtz, you indicated in your written submission that
construction industry employers should be required to assess exposures
even when they're following Table 1.

		We've heard from a number of participants in these proceedings who
indicated that -- in construction, in particular -- exposures are
highly variable and that it doesn't serve much purpose to do exposure
monitoring because by the time they get results back from their exposure
monitoring, they're doing something different; they're working with
different materials in a different location and the circumstances are
different.

		And I was wondering if you still saw value in exposure monitoring
under those circumstances and if so, why?

		MR. SHUDTZ:  Yes, thank you.  I think the variability just heightens
the importance of doing exposure monitoring.  You know, as we stated in
the comments, this isn't necessarily the last time OSHA will create a
regulatory proposal related to silica exposure.  And so the additional
data about the variability of exposure could help inform future
rulemaking.

		MR. O'CONNOR:  Thank you.

		MS. ROBINSON:  Mr. Shudtz, my name is 

Kim Robinson, and I'm with the OSH division here in the Solicitor's
Office.  I just have a few questions for you, with respect to your
written comments.

		The first one has to do with some of your comments about the economic
cost that will be borne by individual workers, their families, and their
communities.  You specifically note the ability to work, engage in
family and community life and otherwise be productive members of
society, as problems that people afflicted with silica-related diseases
have.

		And I'm wondering if you have any other information that you will be
able to submit to the record, maybe in post-hearing comments, so it
would help OSHA sort of quantify these issues.

		MR. SHUDTZ:  Yeah, I don't have anything in front of me, but I'd be
happy to add something in post-hearing comments.

		MS. ROBINSON:  Great.  And sort of in a similar vein, you mentioned
different treatments that people afflicted with silicosis have to
undergo; physiotherapy treatments, for example, and their monetary
costs.  And I'm wondering if you could also submit data to OSHA
regarding these specific costs, if you have any.

		MR. SHUDTZ:  Yeah, I'll do the best I can.

		MS. ROBINSON:  This is around page 13 of your comments.  You suggest
changing the requirements that exposure assessment represents
foreseeable conditions, not expected conditions.  And these are similar
terms, but there's obviously a nuance in their definition; there's a
difference between the two definitions.  And you include some examples
of what you think of when you think of foreseeable.  But I'm wondering
if you could provide a more, sort of, concrete definition of
foreseeable.

		MR. SHUDTZ:  That's an excellent question.  I'm afraid, off the top of
my head, I can't do that.  But, again, I'd be happy to add that to our
post-hearing comments.

		MS. ROBINSON:  And one final question.  You state -- again around
page 13 -- that you'd like clarification of the exposure assessment
provisions to further define duties of employers who hire workers on a
temporary or contingent basis.  You note that you'd like staffing
agencies to obtain exposure data for employees and I'm wondering if you
sort of can elaborate on this.  How would you propose this be done?  And
also would you like staffing agencies to have any additional duties?

		MR. SHUDTZ:  I think the issue of how staffing agencies gather this
data is a difficult one.  Obviously, I think that's probably why the
proposal doesn't have a detailed explanation of it.  I think I'd like to
address that again in my post-hearing comments.

		But I would just like to point out now that one of the things that
makes that so difficult is the prospect that contingent laborers and
contingent workers get sort of blacklisted based on their previous
exposures and the potential that they're reaching that stage of when
medical surveillance might be required.

		MS. ROBINSON:  Thank you.

		MR. SHUDTZ:  Thank you.

		MR. O'CONNOR:  This is Dave O'Connor again.

		Ms. Greenberg, you indicated in written comments that OSHA should
have a requirement for the employer to post a warning sign on regulated
areas that includes some specific language.  And I was wondering if you
could expand on why you think we should require specific language on
such a warning sign and what the value of that would be.

		MS. GREENBERG:  The language tracks other warning language that's
provided to workers in other contexts.  I'm going to have to go back to
my written comments to you to get the specifics on that.  Obviously, we
want workers to understand that they're being exposed to potentially
dangerous silica dust and we want to ensure that they are properly
informed.  And that just doesn't happen in the way that it should.  So
this is an effort to make sure that workers are provided with that
sufficient forewarning and information.

		MR. O'CONNOR:  Thank you.

		I think that concludes the questioning from the OSHA Panel.  Again,
I'd like to thank the panel for appearing this morning.

		JUDGE PURCELL:  Thank you, Mr. Shudtz and Ms. Greenberg.  I
appreciate your willingness to jump ahead in the program.  Thank you for
your testimony.

		Let me ask if either Keith Wrightson or Amit Narang are here for --
okay -- Public Citizen.  We skipped ahead since you weren't here at
9:30, but if you're ready now, you can come up.

		Mr. Narong, is it?

		MR. NARANG:  It's Narang.

		JUDGE PURCELL:  Narang.  Let me ask you, do you have a written copy of
your testimony that you'd like to submit into the record?

		MR. NARANG:  Unfortunately, I only have the copy that I'll be reading
from.  May I be able to --

		JUDGE PURCELL:  Certainly.  When you finish, I'll mark that as Hearing
Exhibit 135 and admit it into the record.

		Is Mr. Wrightson here, or do you intend to proceed without him?

		MR. NARANG:  I'll be proceeding without him.  So unfortunately my
colleague, Mr. Wrightson, was called away this morning on an urgent
business matter.  So let me state at the outset that his expertise in
this matter is with respect to workplace health and safety; mine is not.
 So there is a possibility that I'll have to defer questions to him to
answer in the post-hearing comments, and I regret any inconvenience that
that might cause.  I also apologize for being late this morning.

		JUDGE PURCELL:  No problem.  I understand that lots of people had
trouble getting into the city, and I was one of them, but I got here
anyway.  But if you're ready, you may proceed.  Introduce yourself and
your affiliation.

		MR. NARANG:  My name is Amit Narang.  I am Regulatory Policy Advocate
at Public Citizen.  Public Citizen is a national nonprofit public
interest organization with over 300,000 supporters and members, and we
welcome the opportunity to testify here in support of the proposed
standard on occupational exposure to respirable crystalline silica.

		We applaud OSHA for putting forth a new standard limiting exposure to
the known carcinogen, silica.  As demonstrated by the sensitive evidence
compiled by OSHA, the current silica standard is badly outdated and does
not adequately protect workers from exposure to silica.

		The current OSHA personal exposure limit for general industry is based
on a 1971 formula recommended by the American Conference of Governmental
Industrial Hygienists.  Current PEL for construction and maritime is
based on particle-counting technology, which is considered obsolete.

		For this reason, Public Citizen has been pointing to the need for a
new silica standard for several years, and we encourage OSHA to adopt
either the ACGIH or the National Institute of Occupational Safety and
Health recommendation to set the level at 50 µg/m3 and 25 µg/m3
exposure limits, respectively, for exposure to respirable crystalline
silica.

		While we are generally supportive of OSHA's proposed rule, we believe
there are ways to improve and strengthen the rule that we identify in
further detail in our submitted public comment and as I'll outline
briefly below.

		We believe it is crucial that OSHA adopt the most protective standard
with respect to silica exposure, and we encourage OSHA to consider and
adopt our recommendations that we believe are fully within OSHA's
authority and responsibility under the Occupational Safety and Health
Act.

		Additionally, we implore OSHA to finalize the updated silica standard
on the appropriately expedited timeline.  This standard has been subject
to an enormous and unprecedented delay, even beyond the significant
delays detailed in a recent GAO study, that have traditionally hindered
OSHA in the development of new rules.

		We recognize that the delays thus far cannot be solely attributed to
OSHA, given that the regulatory review of the standard at the Office of
Information and Regulatory Affairs, also known as OIRA, within the
Office of Management and Budget, spanned over two years, far beyond the
90-day review period authorized under Executive Order 12866 and one of
the longest review periods in OIRA history.

		The sensitive data cited by OSHA makes clear that hundreds of workers'
lives will be saved every year once the updated standard is put in
place.  It is imperative that OSHA finalize the standard in a timely
fashion in order to save lives and prevent further harm to worker
health.

		The proposed occupational exposure to respirable crystalline silica
rulemaking is long overdue.  But upon closer inspection, it is also
clear that the proposal doesn't go far enough to protect construction
industry workers.

		Though the rule has a number of problems, one example we will
highlight in more detail here is the fact that the proposed standards do
not contain the commonsense requirement for a written exposure control
program.

		Written exposure control plans have long been a part of many of the
health and safety standards promulgated by OSHA.  Such plans are a
systematic way for employers to assess if a hazard exists at their
workplaces; which occupations or tasks expose employees; and what steps
will be taken to eliminate or control exposure to the hazard.

		Public Citizen is deeply concerned that OSHA has not included this
simple measure to protect construction workers from silica dust. 
Creating a written program is hardly a burden on the industry and the
results could save many construction workers' lives.

		The ACM standards recommend that where there are regulated areas with
persistent exposures or tasks, tools, or operations that tend to cause
respirable crystalline silica exposure, the employer will conduct a
formal analysis and implement a written control plan or an abatement
plan on how to bring the process into compliance.

		OSHA should require all construction industry employers, who
anticipate exposure to crystalline silica, to develop and implement a
written exposure control plan.  If OSHA would require a written exposure
control plan, workers would be well informed as to the engineering and
work practice controls, air monitoring, hygiene procedures, et cetera.

		Furthermore, a written exposure plan would provide workers and
management a list of tasks for employees to perform which may result in
exposure to silica dust.

		Public Citizen finds it concerning that OSHA is not considering a
written control plan feasible as an appropriate method of compliance,
especially with workers' lives at risk.

		The way forward for OSHA is clear.  The final rule must include a
silica exposure control plan, and Public Citizen is supportive of the
specifics as outlined by the American Federation of Labor-Congress of
Industrial Organizations' (AFL-CIO) Building Trades Department in their
proposed regulatory language.  We've also made that language available
in our public comment.

		Let me turn to hydraulic fracturing.  OSHA identified an industry,
hydraulic fracturing, that would be impacted by the proposed standard.

		Hydraulic fracturing, sometimes called fracking, is a process used to
extract natural gas and oil deposits from shale and other tight geologic
formations.  In the fracking industry, workers have high levels of
contact with crystalline silica, and by doing so it puts their lives in
jeopardy.  As the gas and oil fracking industry continues to experience
explosive growth, it is clear that this proposed standard is necessary,
as more workers will be potentially exposed to the harmful effects of
silica.

		A recent report from NIOSH claimed that a two-year assessment of the
chemical health risk in the fracking industry identified a high level of
worker exposure to silica.  Many of these exposures were well in excess
of permissible and recommended levels -- that's a quote from the
report -- putting workers in danger of the catastrophic effects of
crystalline silica.

		Although silica and its effects can be found in many industries, such
as construction, foundry, and metal, the demand for silica in the
hydraulic fracturing industry is a growing concern.  NIOSH has stated
that massive quantities of silica sand are used in the hydraulic
fracturing process, up to four million pounds per well.  As the
hydraulic fracturing industry continues to expand, more workers will be
subject to the hazards of silica.

		High levels of silica exposure are generated at many points in the
hydraulic fracturing process, including a release from all sand-moving
operations, loading operations, and sand-transfer activities.  Exposure
to silica is affecting a large amount of workers through these segmented
occupations during the material-handling process.

		Finally, I want to turn to various claims from commenters concerning
the need for another small business review panel under the Small
Business Regulatory Enforcement Fairness Act.

		I am not aware of any other instance in which the Small Business
Administration's Office of Advocacy has conducted two distinct small
business review panels for one proposed or final rule.  And Public
Citizen believes that this would be a dangerous and unwelcome precedent
to set, given the already inefficient regulatory process that OSHA has
to currently comply with.

		The SBA Office of Advocacy, in their submitted comments on the
proposed silica rule, praised OSHA for considering and including in
their proposal many of the recommendations that were made by the SBA
Office of Advocacy through the small business review panel process.

		And of course, the SBA Office of Advocacy has a different statutory
mission than OSHA and the Department of Labor, more generally.  And so
it is concerning if there are indications that OSHA is not fulfilling
their statutory mission by overstepping and seeking recommendations from
the SBA Office of Advocacy that are generated due to the Office of
Advocacy's statutory mission.

		I will say that, in terms of the actual review process, it is a
lengthy review process and it did generate, by the SBA Office of
Advocacy's own admission, helpful recommendations to OSHA and included
quite a bit of participation with small businesses.

		Again, Public Citizen applauds OSHA for its efforts to update badly
outdated exposure limits to respirable silica.  Nevertheless, we believe
that OSHA could significantly strengthen the new standard by requiring
exposure control plans in writing and by focusing particularly on the
dangers of silica exposure in the fracking industry.

		We appreciate OSHA's consideration of our testimony and look forward
to OSHA finalizing and instituting a new silica standard in a timely
fashion.

		JUDGE PURCELL:  Thank you, Mr. Narang.

		Let me ask a show of hands from the audience.  Anyone have questions? 
One.

		Ms. Seminario.

		MS. SEMINARIO:  Good morning.  

		Peg Seminario, AFL-CIO.

		Thank you for your testimony.  Mr. Narang, I understand that you're
not the safety and health expert with Public Citizen, but you are a
regulatory policy expert.  So the area that I'd like to ask you about is
the last issue that you talked about in your testimony and that is the
small business review under the SBREFA Act.

		So is it your understanding that, under the Small Business Regulatory
Enforcement and Fairness Act (SBREFA) -- so OSHA, EPA and now, I
believe, the Consumer Financial Protection Bureau are required to submit
their draft proposed rules and a preliminary regulatory analysis for
review; is that correct?

		MR. NARANG:  That's my understanding, yes.

		MS. SEMINARIO:  And so that is done at the early stage of the process;
is that correct?

		MR. NARANG:  That's right, and early stage meaning before the proposed
draft rule or proposed final rule is available for public comment.

		MS. SEMINARIO:  Right.  And in the current proceeding here, moving to
a proposal -- going back to the SBREFA process, that process is
designed specifically to get input from small business.  So it's a
limited process focusing on a particular set of issues and impacts; is
that correct?

		MR. NARANG:  That's right.  My understanding is it's not open to all
public stakeholders and it is designed to identify small business
concerns.

		MS. SEMINARIO:  And the proposed rulemaking process, which is the
stage that we are now in, is one that is established, for the procedures
today, under the Administrative Procedure Act and the Occupational
Safety and Health Act.  And those are different than the procedures
under SBREFA; is that correct?

		MR. NARANG:  That's my understanding, yes.

		JUDGE PURCELL:  Ms. Seminario, are you coming to the question?

		MS. SEMINARIO:  My question is that the current proceedings are open
to everyone; is that correct?  And the interested party?

		MR. NARANG:  That's right.  Are you referring to both public comment
and the testimony period?

		MS. SEMINARIO:  Yes.

		MR. NARANG:  The public hearing period?

		MS. SEMINARIO:  Right.

		MR. NARANG:  That's right.  There is a distinction between the ability
for all public stakeholders to weigh in with their comments, and once
the rule is proposed in its official format in the Federal Register and
at public hearings, that is distinct from, relatively and comparatively,
a closed process when it comes to the small business review panel
process.

		MS. SEMINARIO:  Thank you.

		JUDGE PURCELL:  Thank you, Ms. Seminario.

		Any further questions from the audience?

		(No response.)

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

		MR. O'CONNOR:  Thank you, Your Honor.  And thank you, Mr. Narang, for
appearing this morning.

		Jessica Schifano will begin OSHA's questioning.

		MS. SCHIFANO:  Thank you so much for your testimony.  I just have one
quick question.

		In your comments today, and in your written testimony, you suggest
that we should adopt a requirement for a written exposure control plan
for the construction industry and the fracking industry, specifically. 
Is there some reason why all of general industry, you're not suggesting
exposure control plan requirements for that sector?

		MR. NARANG:  Thank you for the question.  I believe this is going to
be one of those questions I'll have to refer to my colleague.  We will
try to answer in as expedient a fashion as possible.

		MR. O'CONNOR:  And this is Dave O'Connor.

		This may be something you'll need to follow up on as well, again
getting at the recommendations for an exposure control plan for silica. 
I was just wondering what your rationale was for advocating for a silica
exposure control plan.

		If an employer is implementing the appropriate engineering and work
practice controls and, if necessary, the appropriate respiratory
protection, do you see value in having an exposure control plan, as
well?  Or is the exposure control plan really something you view as a
mechanism to ensuring that the appropriate controls are in place?

		MR. NARANG:  So I regret to inform you that I'll probably have to get
back to you on that, as well, after conferring with my colleague.  But I
thank you for the question and we'll do so in as fast a fashion as
possible.

		MR. O'CONNOR:  Okay, thank you very much.  We appreciate that.  And I
think that concludes our questioning for this morning.  And, again,
thank you for appearing and testifying today.

		JUDGE PURCELL:  Thank you, Mr. Narang.  I saw you making notes on
your written copy of your testimony.  Do you want to submit a clean copy
after the hearing?  If you would, like I said, I've 

pre-marked that as Hearing Exhibit 135.  So if you'll submit it either
to Ms. Robinson or somebody on the OSHA Panel, then they can include it
in the record.

		Thank you very much for your testimony this morning.

		MR. NARANG:  Thank you.

		JUDGE PURCELL:  On the agenda, the next two speakers are Charles
Gordon and John Marchese, I believe.  I apologize if I mispronounced
those names.  Are both --

		MR. GORDON:  Charles Gordon.

		JUDGE PURCELL:  Charles Gordon.

		Is Mr. Marchese here?

		(No response.)

		JUDGE PURCELL:  All right, Mr. Gordon.  If you're ready, you may come
up.  And let me ask you if you have a copy of your testimony?

		MR. GORDON:  Yes, I do.

		JUDGE PURCELL:  Okay.

		MR. GORDON:  Give me a second now and I'll get it for you.  Those are
two copies.  Thank you very much.

		JUDGE PURCELL:  I'm going to mark this as Hearing Exhibit 136, and
that's admitted into the record.

(Whereupon, the document referred to as Hearing Exhibit 136 was marked
and received in evidence.)

		JUDGE PURCELL:  And take your time.

		MR. GORDON:  Thank you, Your Honor.  Could it be given a separate
exhibit number, maybe 136A or something, a certain regulatory text that
I'll be proposing to OSHA?  And maybe you could give a copy to --

		JUDGE PURCELL:  I'll certainly do that.  I'll go ahead and mark it as
Hearing Exhibit 137.

(Whereupon, the document referred to as Hearing Exhibit 137 was marked
and received in evidence.)

		JUDGE PURCELL:  And as I said, when you're all set up, you may
proceed.

		MR. GORDON:  My name is Charles Gordon.  I'm a retired attorney.  I'm
just representing myself.  I've given you two copies of my written
testimony, which include the three attachments.  It's somewhat corrected
from the version I submitted January 27th.  It also includes a copy of
Exhibit 2, which I gave in the first day of the hearing, which is about
OSHA's authority to force technology -- and also, as 137, proposed
regulatory text which I'm proposing for OSHA.  The copies of my
statement outside do not include the attachments.

		I won't be reading my statement.  I will be reading a summary of it.

		I spent 32 years in the Office of the Solicitor regulating toxic
chemicals.  I probably have more experience doing that than anyone else
participating in this hearing, although Peg Seminario probably is close.

		JUDGE PURCELL:  Mr. Gordon, could you pull the mic over a little
closer to you?

		MR. GORDON:  Um-hum.

		JUDGE PURCELL:  Thank you.

		MR. GORDON:  I've been involved in regulating arsenic, cotton dust;
air contaminants, cranes -- a number of regulatory negotiations, like
cranes -- and voluntary agreements.

		Since I spent one hour and a half on the Red Line this morning, like
Your Honor apparently did, I need to start off with a few jokes.

		First, on the opening day, I commented that government economy meant
that you only got paper name plaques, whereas I got a brass one with my
name in plastic at least, and I'm recommending that you adopt this in
the future.  But I have to cover it up because it will be an ethics
violation if I have Office of the Solicitor on there.  So that's what
I'll do.

		And I did bring -- I wish Neil King was here, who represents the
American Chemical Association, I think it's called.  This is a picture
of Jan Pendergrass, Neil, myself, somebody from Public Citizen.  I have
a picture of you, too, Peg, in a different picture.  This was at the
cotton dust mark II signing ceremony, and it was nice that industry, the
unions, and OSHA all agreed the second time around, and there was no
litigation and --

		JUDGE PURCELL:  Mr. Gordon, if you'd like to make that an exhibit,
I'll be happy to do so.

		MR. GORDON:  All right.  I brought an extra copy to give to Neil.  I
see he's not here.

		JUDGE PURCELL:  All right, that's Hearing Exhibit 138, and it's part
of the record.

(Whereupon, the document referred to as Hearing Exhibit 138 was marked
and received in evidence.)

		MR. GORDON:  Yes.  And I have one piece of advice.  I don't know
Ms. Robinson from the Solicitor's Office, but one advice to solicitors.
 Always wear a better suit than the industry attorneys, and make sure
it's American made/union made.  I'm wearing a suit that's American
made/union made.

		Now, I don't know whether women -- there are any women's suits that
are available that are American made/union made, but there are men's --
Hickey Freeman, and this is Tallia Uomo.

		I'll be reading a summary of my testimony.  OSHA's proposal will save
lives and substantially improve the current situation.  It's based on
excellent health and economic analysis.  The technical feasibility
analysis, however, does not take into account easily developed new
technology.

		And also the OSHA standard leaves much too high a remaining risk and
has far too weak industrial hygiene and medical provisions.

		OSHA must issue a 25 µg PEL, which is feasible, as I will explain and
is in my written testimony.  And that will save hundreds of extra lives
per year, along with much tougher industrial hygiene and medical
provisions.

		The remaining risk:  If you look at page 4 of my testimony and pages
56320-21 of the Federal Register document, the remaining risk at the
proposed 50 µg limit is 97 deaths per 1,000 workers.  That's 22 lung
cancer deaths, 43 silicosis deaths, 32 renal fatality deaths.  That's a
slight over-counting, which I corrected, as a layperson.  And the
corrected version would be 94 excess deaths per 1,000 workers exposed
over a working lifetime of 45 years.

		That's an incredibly high remaining risk.  It's 100 times greater than
the risk that the Supreme Court said was significant in the benzene
decision.  It's 10 times higher than the remaining risks that OSHA ever
left before, except in the case of chromates under the Bush
Administration, where it left the remaining risk of 10 to 50.  So it's
still much higher than that.

		And it's actually higher than the combat risk of death for American
soldiers in Afghanistan.  And I explain how that figure is derived in my
written testimony.  It's a risk rate -- and I'm not saying that the
risk of a soldier, any individual soldier spending a two-year tour, but
it would be the combat risk of death over 45 years of combat, and that
risk is 90 per 1,000 over 45 years.

		And I just think it is wrong for OSHA to leave a remaining risk of 50
µg when much can be done to lower that risk.

		I also believe that OSHA should provide in its final preamble a
combination of the total risks of mortality and morbidity.  It does not
do that.  It just provides, for example, "the lung cancer risk here, the
renal risk there."  It never combines them.  It should do that for both
mortality and morbidity so the public can see how high the remaining
risk is.

		I also think, in the final, that OSHA should talk about the history of
silica and the deaths that it has caused.  Two of the most tragic events
in worker history are Barre, Vermont and Gauley Bridge -- Barre,
Vermont in around 1910; Gauley Bridge in the late '30s -- where
thousands of workers died from acute silicosis.  I think that belongs in
the preamble to give context to this regulation.

		Industry claims that silicosis deaths are dropping, and they may be,
but the data it relies on is death certificate data and death
certificate data greatly underestimates the actual number of deaths from
silicosis.  A worker dies 20 years after final exposure from silicosis,
or 10 years, the death certificate can report his death from COPD or
heart disease.  Unless they do an autopsy or an x-ray or have a really
good work history, they're not going to pick up the fact that the
initial cause was exposure to crystalline silica.

		And also there are a number of University of Michigan studies, which
OSHA is aware of, that show that occupational injury and illness rates
for Workers Comp purposes are underreported by a factor of 5 to 10.  And
I'm sure that would be applicable, if anything more, for crystalline
silica, since there's a long lag period.

		If OSHA lowered the PEL to 25 µg:  By its figures in its preamble, it
would save 335 lives annually, a very significant benefit.  The
remaining risk would be still too high at 61 per 1,000, but better
industrial hygiene and medical surveillance provisions would probably
lower that.  And although OSHA does not do cost-benefit analysis, it
notes that the net benefit of going to 25 µg would be 

$5.7 billion a year, which is a very large net benefit.

		A 25 µg level is economically feasible.  OSHA gives so many economic
numbers that I can't go through them, but I'll look at page 56411 of the
preamble.  It shows that the cost, the annualized cost, per small
employer, going from 50 µg to 25 µg, would go from $800 a year to
$1600 a year.  That's readily economically feasible and it's even more
economically feasible because the costs are going to passed forward.

		The construction services are highly inelastic, and as long as OSHA
can enforce the standard and all small businesses have to obey the
standard, they'll all pass their costs forward to the public.  And the
amount of money is an infinitesimal amount of the $1.5 trillion a year
that we spend on construction services.

		The total cost of the OSHA standard estimated by OSHA seems large at
$.5 billion a year.  But in relationship to the two million workers
exposed and several hundred thousand employers covered, the actual cost
per employer/per worker is very low in relationship to the revenues of
the employer and his labor costs.

		And a more technical term which I discussed at length in my comments: 
OSHA gives a 3 percent and a 7 percent discount rate for discounting
benefit.  It should not present a 7 percent discount rate.  There's
nothing in the economic literature to justify that.  That number came
only about because in the early Reagan years OIRA wanted to minimize
benefits and it was a time of high interest rates.

		The economic literature indicates that the social discount rate should
be 2 percent or 3 percent.  But I believe the social discount rate
should be zero, because if you were asked the question, do you want
yourself saved from crystalline silica exposure or do you want your
son -- from silicosis death -- or do you want your son to be saved
from crystalline silica death 20 years from now, you could not answer
that question.  You could not give a preference.  And that's why OSHA
should use a zero discount rate as the preferred discount rate for
crystalline silica benefits.

		Technical feasibility:  Twenty-five micrograms per cubic meter is
capable of being done.  It's capable of being done with current
engineering controls and respirators.  OSHA gave the wrong legal test in
the preamble.  The proper legal test was set by the Supreme Court in the
cotton dust decision.  It's capable of being done.  Twenty-five
micrograms is capable of being done.

		And OSHA does have some policy discretion.  Obviously respirator use,
especially in the construction industry, is difficult and it might want
to balance setting a lower limit with increasing the percentage of
workers wearing respirators.  That's a legitimate policy concern.  And
OSHA has used that before, but it has not used it in situations where
the remaining risk is 94 per 1,000.  And that overwhelms the policy
benefit of reducing respirator risk.

		In addition, OSHA has authority to force technology.  Exhibit 2, which
is attached to my statement, which is a quote from the Mintz, quotes
Justice Clark, that OSHA has authority to force technology.

		You know, OSHA has issued standards that drop limits from 500 to 10,
500 to 1 on vinyl chloride; 500 to 10 in arsenic.  We're only going from
100 to 50 or 100 to 25.  It's a factor of four.

		Many of the construction operations are small scale, easily controlled
by local ventilation, by water mists.  And there are many small
businesses out there that make safety equipment which would easily
develop safety equipment to lower exposures below 50.

		In fact, in NIOSH's testimony, they said they quickly developed new
control technology to reduce worker exposures to crystalline silica in
fracking operations and asphalt grinding.  And I'm sure it could be done
throughout the construction industry.

		In addition, you could combine local exhaust and water.  You could use
ultrasound techniques, electrostatic charges to either capture the
particles or force them to combine to above respirable size, and many
others.

		In addition, it's the whole OSHA experience that the actual cost of
this technology goes down when OSHA issues a requirement, because then
it pays business to increase production and they know they have sales
and there's competition, and costs go down.

		One quick example is ethylene oxide.  After OSHA issued a standard,
the industry quickly developed a new sterilizer to meet the OSHA
standard and it cost less than the old sterilizer.  That's in the OSHA
records.

		One problem with Table 1, which I did support, is that it will freeze
technology.  The employers will just use all their old equipment and say
they're following Table 1 and there won't be any lowering of exposures,
really.

		And therefore I am proposing a new (f)(2)(B) which would provide, if
an engineering control device or devices are developed that can achieve
a 25 µg limit as a time-weighted average, pursuant to the testing
protocol specified in appendix dash and so certified by an NRTL -- a
nationally recognized testing laboratory -- for an operation or
operations specified in Table 1, then those devices shall be used for
those operations rather than the devices specified in Table 1.  At least
that will give some technology forcing.

		In addition, a few more quick examples:  A trenching standard in
construction after OSHA issued it -- the cost of shoring dropped and
the development of trenchless technologies increased, so that the total
cost of the industry dropped.  And there was no negative effect on the
construction industry or the trenching industry.

		Cotton dust is my favorite example because the standard cost
one-quarter of what industry predicted, one-half of what OSHA predicted,
based on a retrospective study of every cotton textile mill in the
country.  After all, OSHA is dealing with proposed numbers.  And
especially industry -- but also OSHA contractors -- refuse to ever be
accused of underestimating the cost of anything.

		And as a result, the existence of byssinosis was reduced greater than
OSHA predicted.  The industry became more competitive.  Worker salaries
went up faster than industry that developed after the standard.  And
also productivity growth increased after OSHA issued the standard
because the industry adapted new and better technology.

		And I would request OSHA to put into the record the retrospective
Section 610 reviews, or look-back reviews, which are available on the
OSHA website, which shows that OSHA standards have always cost less than
predicted.  They've never disrupted business.  They've always achieved
their safety and health goals.

		And this is based on retrospective information, not predictions
beforehand.  I'm not good enough in technology to do it myself, but OSHA
could easily switch for the stuff that it now has on its webpage into
the docket and I would request that they do that.

		All right.  I'd like to go on now to industrial hygiene and medical
monitoring provisions.

		The crystalline silica proposal includes the weakest medical
monitoring and industrial hygiene provisions OSHA has ever issued,
despite the fact that the remaining risk is the greatest that OSHA has
left.

		For example, the medical surveillance is only proposed every three
years and at exposures above the PEL.  In every other standard, OSHA has
required medicals every one year and at exposures above the action
level.  And the only justification OSHA gave for that is that it would
save industry money.

		And I think I would recommend that, first, OSHA consider CT scans as
part of the medical, even though the NIOSH witness, who I asked about
it -- I mean, there's a recommendation out that CT scans can reduce
lung cancer risk dramatically for high-risk people.  Silica-exposed
people are high-risk people, but not as high risk as the heavy cigarette
smokers who the study was based on.

		But I still think OSHA should consider -- consult Dr. Melius and
other experts.  And I think it's likely there will be a dramatic benefit
if OSHA includes it for older workers who have been exposed above the
PEL.

		All right.  Now I do, in my written comments, say that the regular
medical surveillance provisions are difficult for the construction
industry to apply because the workers change jobs so frequently.  And I
have made suggestions in there of how it can be carried out by the use
of a medical card and pro rata charges to employers and a central --
either a union, trade association, or a private doctor setting up the
program for a given area.  And that's in my written testimony.

		A regulated area should be at the action level, not at the PEL, as
OSHA proposes.  In every other standard it's at the action level.  And
workers need to be able to protect themselves, since there's such a high
risk even at 25, at 61 per 1,000.

		Therefore, I suggest that all workers in the area -- if OSHA does not
go to a 25 µg PEL and leaves the 50 µg PEL, all workers exposed over
25 µg should be permitted to request from the employer the use of a
respirator.  And specifically, a powered air-purifying respirator which
is more effective in the construction environment, where negative
pressure respirators, absent a really good program, often do not work
because the worker takes the respirator off his face, rests it on his
chest, and then it picks up crystalline silica dust and when he puts it
back up on his face, he breathes it in.

		In addition, all workers over the PEL should be able to request a PAPR
if it meets the appropriate protection factors.  That's what OSHA did in
the asbestos standard, where the remaining risk was actually less than
the remaining risk in crystalline silica.

		Now, the regulated area should be demarcated by signs, and those signs
are necessary so that employees know the high level of risk.  And those
signs should say, Danger.  Crystalline silica.  Cancer, lung cancer. 
Lung and kidney disease hazard.  And in areas where you're over the PEL,
respirator use and protective clothing required.  OSHA does not have any
such provision in the proposal.  It had such a provision in the asbestos
standard.

		And frankly, it's a violation of law for OSHA not to include a sign
that says that, because Section 6(b)(7) says, in part, warnings as are
necessary to ensure that employees are appraised of all hazards to which
they are exposed.

		And labels won't work here because the crystalline silica often does
not come in bags and boxes.  In fact, it usually does on dump trucks or
in the dirt on the land.

		Monitoring:  It is feasible to monitor to 

25 µg.  OSHA, at one place, says it is; at another place, says it
isn't.  But monitoring can always be improved to monitor to a lower
level.  There was no need to monitor to 25 before, so nobody developed
such a technique.  But it's OSHA experience that when you set a lower
level and you need a monitoring technique, somebody will develop it --
and quickly.

		In the arsenic standard there was a question about the level.  We paid
an assistant professor of chemistry at the University of Florida $2500
and he developed a technique that could measure arsenic to a lower
level.

		When we issued the air contaminants standard, there weren't proper
monitoring techniques for a number of chemicals.  We asked NIOSH to
develop them and NIOSH very quickly did develop appropriate monitoring
techniques.  NIOSH testified that they are working on lowering the
levels that meet its very high standards of precision of accuracy, in
their testimony.

		And let me say that OSHA has assessed very high levels of precision
and accuracy for monitoring.  But if it's a question of protecting
workers, I think you could make those criteria slightly less strict and
it would still be fair to employers, as well as much protective to
employees.

		Now, most importantly in monitoring, especially in construction, OSHA
needs to encourage the development of real-time monitoring devices so
that you have -- right there.  And then you know how much the employee
is exposed to, since the construction worker will move on and by the
time a traditional monitor result is received, he won't be there and the
conditions have changed.

		NIOSH, in its testimony, stated that there are some real-time
monitoring devices available and that they would be happy to develop
better ones if they were given the resources to do so.  And that would
be not only a benefit to employees, but employers who would have a
quicker method of doing it.

		And it's very interesting.  OSHA, in the lead standard, didn't require
real-time monitoring, but an individual monitoring company developed a
real-time monitoring device for lead.  I read about it in the Wall
Street Journal.  It's probably cited in the lead Section 610 look-back
review, that particular thing.

		Abrasive blasting:  You know, NIOSH testified that many countries have
banned abrasive blasting, including England did 60 or 70 years ago.  So
I don't see why it's infeasible.

		But if OSHA does not want to go that far -- it's not on this sheet,
but it's in the full-length testimony -- I recommend that OSHA include
a provision which says that an employer first must consider whether
there is a non-crystalline silica abrasive blasting media that can be
used, and if he believes there is not one that will give him an
appropriate surface, that he keep a record of that, at least to force
employers to consider whether non-crystalline silica -- I used to see
the Park Service clean the monuments, the one here on 4th Street.  The
one on 7th Street they used walnut shells instead of crystalline silica.

		I incidentally did include -- I skipped it over -- a new Paragraph
(d)(9) for real-time monitoring:  "At such time as a real-time
monitoring device is developed that has a precision of 'blank' and an
accuracy of 'blank,' that device or other real-time monitoring device
meeting that precision and accuracy shall be used to demarcate the
regulated area and may be used for other monitoring required by
Paragraph (d), if located within three feet of the monitored employee's
breathing zone."

		One more thing about the table which I forgot to mention.  NIOSH
testified that if the controls that OSHA lists in the table are not
properly used, workers could be exposed to terribly high levels. 
Therefore, I have in here regulatory text to carry out NIOSH's
recommendation that a competent person has to evaluate the controls used
under Table 1 to see whether they're working properly.

		And agreeing with the Public Citizen witness, there should be at least
once a year -- semiannually, I put down -- at least once a year an
employer has to do monitoring, when relying on 

Table 1I, just to make sure that those workers are not exposed to really
high levels.  Because otherwise, if you have a control specified by OSHA
and you're getting really high levels, nobody's going to know about it
unless an OSHA inspector visits and takes a personal sample, which he
may not do because the employer will say well, I'm following Table 1I.

		All right.  Finally, OSHA has leaned over backwards to use performance
language.  Economists, who know nothing about industrial hygiene or
industrial health, love performance language.  But the reality is that
employers do not like -- especially small employers -- do not like
performance language.  They like to be told what is done.  That's why
Table 1 is there.

		And, in addition, performance language is very difficult for OSHA to
enforce and it's crucial that OSHA be able to enforce the crystalline
silica standard, not only to protect workers, but to protect employers,
because if some employers follow it and other employers don't and OSHA
can't effectively enforce, then those employers are getting away with it
and they are unfair competition to the employers who are following the
standard.  And there are a number of places in the standard where much
too permissive performance language is used.

		And OSHA proposed an extremely pro-industry standard, as pro-industry
as the standard could possibly be.  And I do not understand why there is
such strong industry opposition.  They should have shaken Assistant
Secretary Michaels' hand and said well, we think this includes a safety
factor that's unnecessary but great job, Michaels.  I don't know why
they didn't do it.

		Not only that, they've been lobbying against it in Congress.  They got
a really nasty Wall Street Journal editorial.  The head of the Silica
Sand Association, although he wrote -- he tried to tame down the Wall
Street Journal editorial a little bit in his follow-up letter, but he's
been writing op-ed pieces in all the small newspapers throughout the
country, saying how terrible the standard is.  And it's very unfair to
OSHA, which has bent over backwards to minimize the impact on industry
at the expense of worker protection.

		And, secondly, perhaps -- you know, that doesn't necessarily have to
be the case.  The picture, which is now an exhibit, shows that industry
often, if it wants to, can work with OSHA and unions and come up with
protective standards that they can live with.  And that certainly would
be the case here.

		And I think OSHA has to learn a lesson, that it should not bend over
backwards to do everything industry wants, unless it knows industry is
going to go along with it.  Otherwise propose a strong standard.  I know
OMB stands in the way, but I spent many years fighting with OMB on
behalf of OSHA's behalf and we won.  And OSHA can win, too.  I know it's
hard, but if OSHA is willing to yell and scream in those private
meetings with OMB, it will get its way more often than not.

		And 10 years from now, if OSHA issues a tough standard, a 25 µg
standard, it will work.  New technology will be developed.  Productivity
will increase.

		And when OSHA does a Section 610 review, industry will say to OSHA,
gee, the standard is great.  The only thing, is you didn't need to issue
it.  We'd have done it voluntarily.  And that's exactly what happened,
the grain-handling industry fought OSHA tooth and nail.  When we did the
retrospective review, they said to us oh, it's a great standard.  We're
following it; we love it.  But you didn't need to issue the standard. 
We'd do it voluntarily.

		And the best example in construction is hard hats.  In the early '70s
when OSHA issued the hard hat standard, the construction industry and
construction workers fought it tooth and nail.  Now the hard hat is the
badge of the construction industry.  No one in the construction industry
would ever go on site without his hard hat.  I couldn't bring my hard
hat because it was a little too bulky.  But anyhow.

		And one last thing.  This is post-issuing the standard, but Angus
Crane from NAIMA is going to testify later this afternoon.  He
represents the fiberglass industry.  OSHA and the fiberglass industry
negotiated a voluntary agreement, which recommended a stricter standard
but in addition, included that industry would develop a lot of training
materials, a training video.

		They would go to Home Depot and Lowe's and set up training centers for
construction workers and so Home Depot and Lowe's could sell the
relevant equipment.  And they do run training seminars for construction
workers right now.  I think OSHA should do that, and that would be
something constructive for the Silica Sand Association to do.

		One last thing which I forgot to mention.  The signs have to be in
Spanish as well as English, since more than half of construction workers
in the country are Spanish speaking.

		And that concludes my testimony.  Thank you very much.

		JUDGE PURCELL:  Thank you, Mr. Gordon.

		Let me see a show of hands in the audience as to individuals who have
questions.  One, two, three.

		Okay, Ms. Trahan, if you want to start.

		MS. TRAHAN:  Hi.  Chris Trahan with the Building Trades.

		Thank you for your testimony.  I was hoping you could explain, in
layperson's language, this concept that OSHA has the ability to force
technology and what the basis for that is and how it's been used before.

		MR. GORDON:  Oh, I will read the relevant paragraph.  This is Justice
Clark sitting in the Court of Appeals, and this is the vinyl chloride
case, and it's on page 301 of the Exhibit 2 to this, which is taken from
the Mintz book on occupational safety and health.

		And he said, "In the area of safety, we wish to emphasize that the
Secretary is not restricted by the status quo.  He may raise standards
which require improvements in existing technologies or which require the
development of new technology, and he is not limited to issuing
standards based solely on the devices already fully developed."

		So that's OSHA's legal authority.  And it happened in cotton dust and
it happened in trenching.  And I'm sure it happened other places.  I
just can't speak to that.  Trenching, which is a construction standard,
you know about trenchless -- I mean, they used to dig trenches to put
cables and pipes and things.

		MS. TRAHAN:  And things.

		MR. GORDON:  Now they drill underground so they don't have to drill a
hole and wreck your lawn when they do it.  It doesn't wreck your lawn
when they do it.  But, anyhow, a much safer technology.

		Cotton dust is the most dramatic example.  The industry went --
because of the OSHA standard, they went from -- your traditional loom
had a hard shuttle that went back and forth, which, of course, made a
lot of noise and created a lot of dust.  They went to air jets and water
drops, which took the thread back and forth and they had built-in
ventilation because it was necessary for the looms to work.  And these
made better textiles.  They lowered exposures to workers.  It was more
productive for industry.

		And we never took credit for it, but the old-fashioned looms were
really noisy.  The workers all lost their hearing.  These looms were
much quieter.  So there was a tremendous benefit that way.

		So OSHA has the legal authority.  It has done it, it has worked, and
it's much easier in the construction industry because the scale of many
of these operations -- not all of them.  Tuckpointing and -- you know,
cutting with saws pieces of tile that are very small scale.

		And even in big-scale ones, I negotiated with NIOSH and the
construction unions and the manufacturers, the road-building companies
and the manufacturers of asphalt pavers, an agreement where asphalt
paving machines -- a big machine -- were to be designed with built-in
ventilation and other controls to reduce worker exposures to asphalt
fumes.

		And NIOSH testified that they just negotiated another agreement to
reduce exposure to -- with engineering controls when grinding asphalt,
which is part of the road-building technique.

		MS. TRAHAN:  Yeah.  And NAPA testified and it was very, very good
testimony.

		So you talked a little bit about how this concept of technology
forcing could be applied to engineering controls in construction --

		MR. GORDON:  Um-hum.

		MS. TRAHAN:  -- and also to laboratory analysis of samples.

		MR. GORDON:  Correct.

		MS. TRAHAN:  Were there other areas regarding silica that you think
the concept could be applied?

		MR. GORDON:  Well --

		JUDGE PURCELL:  Mr. Gordon, I hate to interrupt, but could you move
the mic over in the direction you're facing?  I know you tend to face
the individual asking questions.

		MR. GORDON:  Okay.

		JUDGE PURCELL:  So it will pick up better that way.  Thank you.

		MR. GORDON:  Thank you, Your Honor.

		Well, I think regular air filtration respirators don't work well on
construction sites and I think it's not beyond the development power of
man to develop self-cleaning respirators that automatically cover the
inside when you take them off and automatically open when you put them
on.  You know, little sensors and motors are so cheap now, that
everything that used to be mechanical is now electrical.

		Powered air-purifying respirators are an old technology, but I think
that those would be much less likely to get interior dust on a
construction site, and I recommend that employers be required to provide
them.  But respirator technology certainly could be forced.

		And NIOSH certifies respirators.  And I'm sure NIOSH would be willing
to work with OSHA to come up with new protocols for new kinds of
respirators --the respirator manufacturers will not make a respirator
unless they get NIOSH approval.

		MS. TRAHAN:  Thanks.  I was very interested in the area that you
described about Table 1 being technology freezing, and the Building
Trades have suggested potential ways that OSHA could update 

Table 1 over time, where you're suggesting a really different approach.

		This proposed paragraph (f)(2)(B) that you have, I was wondering if
there was something more you could say about that.  You mentioned that
the use of a nationally recognized testing laboratory would be
appropriate.  Can you describe if there are nationally recognized
testing laboratories at this time?

		MR. GORDON:  Okay, I think there are three questions there.

		MS. TRAHAN:  Okay.

		MR. GORDON:  First, the reason I suggested this way is yes, OSHA could
update the table periodically, but the rulemaking process is now so
difficult that it won't happen, certainly in my lifetime.  You're much
younger; probably in your lifetime.  First.

		So secondly -- I got lost in my --

		MS. TRAHAN:  The concept of using a nationally recognized testing
laboratory.

		MR. GORDON:  Okay.  OSHA frequently uses nationally recognized testing
laboratories to certify that safety equipment or engineering controls
are working right.  You have to give criteria for them to do it, but
OSHA -- and it's all over the place in safety standards, as you know. 
OSHA has specific rules for nationally recognized testing laboratories
and they have to be certified by OSHA first.  But it means that the new
technology can be certified much quicker rather than waiting for an OSHA
rulemaking.

		And I want to give an example.  It's not in the construction industry.
 But in cotton dust, the vertical elutriator, which was the monitoring
device, was very awkward to use.  OSHA specified certain criteria and
said that if a manufacturer could develop a better device meeting those
criteria, it could be used for cotton dust.  And a manufacturer did
develop that device.  And so OSHA has experience with this in the past.

		MS. TRAHAN:  Thank you very much.

		MR. GORDON:  You're welcome.

		JUDGE PURCELL:  Thank you, Ms. Trahan.

		Ms. Seminario.

		MS. SEMINARIO:  Peg Seminario from the AFL-CIO.

		MR. GORDON:  I have a picture of you many years ago.

		(Laughter.)

		MS. SEMINARIO:  Oh.  Did you bring a copy for me?

		MR. GORDON:  No, I don't have a copy of that, but I'll run one off.

		MS. SEMINARIO:  Thank you, Chuck.  Again, thank you very much for your
testimony.  It's very useful and very important to provide some
historical context in this rulemaking, because what has happened before
on other substances does have, I think, real applications and provide
lessons for the current rulemaking.

		In that regard, you mentioned in your written comments and your
testimony today, you talked about the 610 look-backs that OSHA has
conducted.  Could you explain a little bit of what those are?  What is a
610 look-back?

		MR. GORDON:  Okay.  In 1980, something called the Regulatory
Flexibility Act was passed, which required agencies to review
regulations, which had a significant impact on small business.  No one
ever did those.  But when SBREFA was passed, one of its requirements was
to toughen up the requirements for agencies to do look-back reviews of
standards that are 10 years old, that might have had a significant
impact on small business.

		Some agencies just have not really done them well, but OSHA has done
them well.  I think we've completed seven or eight now.  It depends on
how much money we have to spend.  These take money.  But OSHA has
reviewed not only cotton dust and lead and trenching but
lockout/tagout -- I can't offhand remember the other ones.

		In addition, there have been several other retrospective reviews, one
on vinyl chloride by MIT, one on cocoa vent emissions by OSHA and 

Ruth Ruttenberg.  And these have the great benefit that we know what
really happened, not what people predicted.  And as you know, industry
often predicts that some minor standard will cause the end of the world
as we know it.  And all of these look-backs have shown that that has not
happened, that the standards have worked.

		In addition to the way we do it, we actually take public comments and
we have a docket and we hire a contractor to study the issue and then we
publish these.  Now, nobody ever seems to read them but me.  But they're
there on the OSHA webpage.  It's a little hard to find, but they're all
there and they show that OSHA standards have worked.

		And I think OSHA, now that it has what, 40 years of experience and
eight look-backs -- seven, eight look-backs -- is in a position where
it can say its experience is such that all of these horrible things that
industry says will not happen because we've been through this before and
it hasn't happened before and there's no reason why it will happen now. 
This will show that a tougher silica standard was feasible and will
work.

		MS. SEMINARIO:  You somewhat anticipated my next question.  So under
the OSH Act, the Agency is supposed to set its standards based upon the
best available evidence.  And a question that I have is whether you
think that what has been conducted in the 610 look-backs would
constitute sufficient evidence for the Agency to rely on, in this rule,
for certain policy decisions and certain treatment of certain data and
information that's come into the record.

		MR. GORDON:  Okay.  First, for economic feasibility, there's no
problem whatsoever.  The cost per employer is very low, readily feasible
in every construction sector and in most manufacturing sectors.  There
may be some manufacturing subsector where the economic cost and where
there's Chinese competition, it may be more difficult to pass costs
forward.

		But not only are the costs low per employer, but in the construction
industry, all of those costs can be passed forward.  You don't have to
worry about Chinese competition and the increased cost, if there is any,
will be paid by the people who build buildings and build roads.  But
reality is that the new technology will increase productivity faster, so
that the actual costs will be much less than predicted.

		Now, OSHA did look mostly at old technology, but it's not hard --
we're only lowering exposures by a factor of 2 to 50 and by a factor of
4 to 25.  If an employer wants to be certain that he's at 100, he really
has to be approaching 50 right now.

		All right.  So for sand, maybe the guy isn't using local ventilation
when he's cutting tile or whatever has crystalline silica in it.  You
could use local exhaust ventilation.  That could be improved.  A water
mist could be used along with -- in fact, you have to wet the sand,
anyhow, and wet the saw blade, anyhow.

		I mean, these are all operations where it's easy to develop newer
controls.  It's not like a blast furnace where it's very difficult, or a
copper smelter where it's very large scale, high temperature. 
Construction isn't like that.

		And OSHA's whole experience is that people will develop better
controls if OSHA asks them to.  If OSHA sets a requirement and creates a
market, those controls will be developed.

		I mean, look at asphalt pavers, that was a voluntary agreement.  That
was a pretty big-scale operation.  But the industry and the union and
OSHA and NIOSH worked together and they developed better asphalt pavers
to control asphalt fumes.

		So the answer is that OSHA has the experience.  And there is the case
law, which I quoted before, to show that OSHA can force technology and
the record is good enough to support it.

		And I'd like to add an aside, I forgot to say it:  In my initial
notice of intention to appear, I had some doubts about whether OSHA had
given adequate notice for a 25 µg level, because the Federal Register
document is 200 pages long and I was reading the wrong pages.  But it
really has given adequate notice.  It's just located in a different spot
up front that I had forgotten by the time I got to the end, I guess.  It
has given adequate notice and it has cost to 25 µg.

		So the answer is yes, I do think there is a record and a legal basis
to issue a 25 µg standard.

		MS. SEMINARIO:  Okay.  Just one other area I wanted to explore with
you, and that has to do with the issue of residual risk, which you
talked about -- you reviewed in your written comments and in your
testimony today, in comparing the residual risk that exists under the
proposed PEL for crystalline silica and the residual risk that exists
under other standards.

		And you also, I think, mentioned in your written statement that one of
the standards that had residual risk at the PEL was the asbestos
standard.

		MR. GORDON:  Um-hum.

		MS. SEMINARIO:  And there's a table on page 56335 of the proposal,
which is Table VII-4.  It's 56335.

		MR. GORDON:  I'm getting there.

		MS. SEMINARIO:  Um-hum.

		MR. GORDON:  Okay.

		MS. SEMINARIO:  And the table is selected OSHA risk assessments for
prior and current PELs and it lists a number of different standards: the
risk prior to the PEL and then the risk at the current PEL.  And for the
current PEL, it is the standards that have been set in the case of
crystalline silica, the proposed 50 µg limit.

		And I just want to call your attention specifically to asbestos, which
is the second one, and it says the risk at the current PEL was 6.7 per
1,000.  But the Federal Register date that is cited there is June 20th,
1986.  And my recollection was when the final standard was issued by
OSHA in asbestos to 0.2 fibers per cc -- and when you compare that risk
of 6.7 per 1,000 to the residual risk of crystalline silica for lung
cancer, it's in the same range.  Six to 26 per 1,000 is what OSHA has
here.

		MR. GORDON:  Um-hum.

		MS. SEMINARIO:  But isn't it also the case that after the asbestos
standard was issued in 1986, it was challenged and that there was a
challenge that the risk that remained, at 0.2 fibers, was significant
and that OSHA was ordered to reduce the standard?

		MR. GORDON:  Yes.  In my written testimony I refer to the Court of
Appeals case which ordered OSHA to say that there was remaining risk and
OSHA needed significant risk and that OSHA needed to do things to lower
risk.

		And for example, the example I gave in my written testimony was brake
repair workers, where actually the risk was -- excess risk was
relatively low for brake repair workers.  But there was new control
technology available and the court said OSHA needs to consider it and
incorporate it and OSHA did, pursuant to lower risk that was far -- it
was lower than six.  I can't remember what it was for brake workers, but
it was lower than that and the court actually ordered OSHA to lower that
risk further.

		MS. SEMINARIO:  And is it the case with OSHA that modified the
standard in response to the court decision --

		MR. GORDON:  Yes.

		MS. SEMINARIO:  -- that the standard was -- the PEL was reduced from
0.2 fibers per cc to 0.1 fiber per cc, but it was for all workers
exposed to asbestos; is that correct?

		MR. GORDON:  That's correct, too.

		MS. SEMINARIO:  All right, thank you.

		JUDGE PURCELL:  Thank you, Ms. Seminario.

		There was one other individual who had questions.  Please state your
name for the record, spell your last name, and identify your
affiliation.

		MR. BEAVER:  The name is Donald Beaver, 

B-e-a-v-e-r, just like the animal.  And I'm with HalenHardy Company,
H-a-l-e-n-H-a-r-d-y.

		MR. GORDON:  And what's your name?

		MR. BEAVER:  Donald Beaver.

		Chuck, I don't think we've ever met before, but I just wanted to know,
do you have any pictures of me?

		(Laughter.)

		MR. GORDON:  No, I don't.

		MR. BEAVER:  Okay, good.

		MR. GORDON:  But I have many other pictures.

		MR. BEAVER:  I'm sure you do.  And maybe we could pose for a little
selfie afterwards and you can save it.

		MR. GORDON:  This is a Ford industrial truck.

		MR. BEAVER:  There you go.

		MR. GORDON:  That's not you, though.

		MR. BEAVER:  That's not me, either.  Maybe in a former life.

		First of all, as it relates to crystalline silica, it sounds like
you're pretty familiar.  But thinking of all the other dangerous
workplace dust, asbestos, hex-chrome, most of them seem to be in places
where there's a fixed-based operation.  So I go into a school, I remove
the asbestos from the ceilings.  You know, I go into the hold of a ship
and I'm taking if off the pipes.

		So the areas for demarcation can be sort of a fixed asset, if you
will.  You can put up signs and there are doorways leading into these
places, so it's pretty easy to monitor.

		According to OSHA's statistics, it looks like more than 80 percent of
the crystalline silica exposure is with highly mobile workers.

		So how do you notify people that they're entering a potentially
dangerous area, especially when the air is floating this very tiny
particulate almost like pollen and it's floating around?  How do you
demarcate?

		MR. GORDON:  Okay.  First, with real-time monitors, one could quickly
use them and take one-hour readings or something to demarcate an area
and one could have signs and stanchions.  They could be moved
appropriately.  So that would be a good way to narrow it down.

		But then employers could -- where crystalline silica is widely
present on a worksite, the employer could just use a wider area.  Even
though some subareas in that would be lower than the PEL, others would
be above the action level, you know.  But an employer can always
demarcate a bigger area as opposed to a smaller area.

		MR. BEAVER:  Right.

		MR. GORDON:  I mean, it's certainly true that on construction sites
crystalline silica can be scattered all about and it can change from day
to day.  And this is why I think it's important for OSHA to force
technology, so that engineering controls can control it.  That way you
don't have to worry about demarcating --

		MR. BEAVER:  Right.

		MR. GORDON:  -- regulated areas.  I mean, one plus of a strong
signposting requirement by OSHA is that industry doesn't want to tell
workers "this is a dangerous area."  They'll put pressure on their
equipment suppliers to devise better controls to meet the 25 µg PEL,
and then not have to signpost and then the problem goes away.

		MR. BEAVER:  Right.

		MR. GORDON:  That's my hope, and I think it's my prediction, and it's
all of OSHA's experience, that that will happen.

		MR. BEAVER:  Well, I think the industrial sand industry has proven
that you can start to limit the scope of the problem, and they're more
in a fixed-base type of operation.  But I think the engineering controls
required -- it won't happen overnight, I guess, is my point.  And so in
the meantime, should there be something in the standard that says there
has got to be movable stanchions --

		MR. GORDON:  That would be fine with me.  I would agree with that. 
There certainly could be that and OSHA may want to consider it.  They
had a one-year delay for engineering controls.  It may want to have a
phase-in for engineering controls, the ones that are readily available
now, at one year and for others that have a two-year interval.  OSHA has
often done things like that.

		And also, if industry has complained that they haven't quite reached
it, when the time has passed, OSHA in the past has frequently extended
time.  But you understand, some deadline is necessary, otherwise people
won't do anything.  So you need a deadline and then if people say gee,
we're making progress but we're not there, I think that it's perfectly
appropriate to ask OSHA to extend the deadline.  And OSHA has often done
that and they'll have to consider that.

		MR. BEAVER:  Right.  My father, rest his soul, used to say nothing
focuses your mind like knowing you'll be shot at sunrise.

		MR. GORDON:  Um-hum.

		MR. BEAVER:  And I think that's what you're saying.  The illustration
of taking the respirator off and resting it on a dusty chest --

		MR. GORDON:  Um-hum.

		MR. BEAVER:  -- and then contaminating the inside presupposes that
the clothing is dusty.

		MR. GORDON:  Yes.

		MR. BEAVER:  So would you see that being a part of the standard, to
clarify the clothes-cleaning process so that it's not so ambiguous with
terms like grossly contaminated or excessively contaminated?

		MR. GORDON:  OSHA has considered this in various standards.  It's very
difficult to do.  In the beryllium standard, which has never come out,
OSHA did a lot of work on surface contamination and using wipe samples
and things.

		And also one of the controls, which is to vacuum clothes, doesn't work
very well and is very slow and workers don't want to do it.  We went
through this in the arsenic standard and, I think, Sarco very reasonably
proposed an air shower.  Unfortunately, OSHA didn't accept it, but I
thought it was a good idea.

		It's very hard to do that and I think OSHA would be open to
suggestions from industry, people who have experience, how to do that. 
It's just that OSHA has tried.  I know, in beryllium, a lot of time was
spent on it -- Bill was there, grinning.  So it's difficult to do and I
can't do it right now off the top of my head, I'm afraid.

		MR. BEAVER:  Stick around for my testimony.

		MR. GORDON:  Oh, okay.  I would hope people would have constructive
suggestions

		MR. BEAVER:  I hope NIOSH has a fixed-base system for mines, using
compressed air, that they've proven effectively helps; but it's a
fixed-base, bulky type of thing.  I believe it was mentioned in three or
four other testimonies.  ASSE, for example, said that some type of
downdraft booth, air shower, if the technology -- as you said,
technology will advance when a student is ready to teach --

		MR. GORDON:  Sarco developed one after we issued the arsenic standard.
 I thought it was very good and very constructive of them and I thought
it was unfortunate that a particular person at OSHA did not agree with
me and did not want to authorize it.  But they have been developed and
it's a good idea.  I hope you do give some good testimony on that.

		MR. BEAVER:  Thank you.

		JUDGE PURCELL:  Thank you, Mr. Beaver.

		I'll turn it over to OSHA, unless there's -- I think we covered all
three that had questions.  I don't see any further hands.  So OSHA.

		MR. O'CONNOR:  Thank you, Your Honor.  And thank you, Mr. Gordon, for
appearing and testifying this morning.

		I wanted to let you know that as soon as we get this photograph added
to our rulemaking docket, we will make sure that Mr. King gets his
copy.

		MR. GORDON:  Okay, thank you.

		MR. O'CONNOR:  Tom Mockler will begin OSHA's questioning.

		MR. MOCKLER:  Yes.  I'd once again like to thank Mr. Gordon for
appearing as a private citizen and taking the effort to digest the
record on this.

		My first question is sort of looking backwards, trying to -- and you
had had some -- you alluded to this previously in question-and-answer,
but if you look at -- you, being someone with decades of experience and
a student of the rulemaking process, is there anything unusual about
this proposal that would seem to pose economic feasibility problems
beyond what we've seen on some past rulemakings?

		MR. GORDON:  No, I think it has less problems than many, because many
of the operations to be controlled are small-scale and there's less
likelihood that the controls won't work.

		And, secondly, in the construction industry, certainly, the costs --
as long as OSHA can successfully enforce, every employer will have to
increase his costs by one-tenth or one-half a percent, or whatever it is
as a percentage of revenue.  It's a very low percentage.

		You know, your feasibility analysis is 1402 pages and I wasn't able to
read it all.  But just the examples I looked at showed that the costs
are very low as a percentage of revenue.  And so I think it would be
easier -- very easy for the industry to pass on costs, and that's what
industries have done in the past, except for the fact that often the
technology gain has reduced the need to increase costs.

		MR. MOCKLER:  My other question really was looking forward.  Sort of a
recurring theme in some of your comments has to do with technological
progression, and you indicated that frequently new technologies emerge
in reaction to the new rules and that this has the effect of lowering
costs in unforeseen ways.  I wonder if you would have some suggestions
about how we might capture elements of that in our analysis.

		MR. GORDON:  Well, I think first you can lower -- look at our 610s
and you'll have some data there.  Obviously, vinyl chloride is the best,
where the industry estimated $20 billion and two million jobs.  The OSHA
contractor estimated $1.5 billion and the actual cost was about $150
million.  Now, the industry number was obviously exaggerated for effect,
as they always do, but compare it to the OSHA estimate if you want to be
more realistic.

		And the technology that was developed was better valves and better
maintenance and coming by with grease and greasing the valves all the
time.  I mean, it didn't take very much to develop that.

		And you can look at other regulations.  I mean, one that I know about,
the specific numbers, is air bags.  When NHTSA first issued air bags,
they were estimating $750 per air bag.  Sometime in the late '90s Forbes
ran a story on TRW, which manufactured air bags and was making vast
profits at selling them $45 per air bag.  So the cost came down by a
factor of what, almost 20.  And I'm sure air bags are much cheaper now.

		Look to the cost of pollution controls on cars.  You know, electronic
engine controls -- you know, the primitive controls of 1975 cost a lot.
 Now, with multi-valve heads, which are not that cheap, but electronic
engineering controls which are, they achieve higher power and better
fuel economy and much lower emissions.  And I think there's enough data
in the auto side of it that you could actually do an estimate of -- you
know, do graphs of how much better was achieved than what was predicted
in the first place, because you have multiple points as the controls
were included.

		And then cotton dust, look at the 610 review of cotton dust.  I mean,
I had a great interest in that, but I'm quite sure I included in the
cotton dust a lot of statistics and a lot of studies that weren't done
by OSHA to support what was done, and the specific citations are in the
cotton dust look-back.

		So that, I think, would provide a vast amount of data on how it
worked.  That's a pretty long answer.  Maybe I should stop now.

		MR. MOCKLER:  Okay, that's fine.  If you have any further spots, feel
free to put them in a post-hearing comment.

		Thank you.

		MR. GORDON:  Thank you, Tom.

		MR. O'CONNOR:  This is Dave O'Connor.

		Mr. Gordon, you had indicated that OSHA should require signs on
regulated areas that included some specific language.  OSHA had proposed
a performance-oriented requirement essentially indicating that employers
should use any means or any manner that would adequately alert
employees.  Do I gather from your testimony that you don't think the
proposed language is adequate?

		MR. GORDON:  No, I don't.  It's not adequate because an employer could
do practically nothing and OSHA couldn't cite them.  It violates the
statute, Section 6(b)(7), which I quoted earlier.

		But, in addition, you have to let the workers know clearly what the
hazard is, like OSHA did in asbestos.  And with such a high remaining
risk, they have to be able to take care of themselves and the only way
that they will understand it -- and in this, you will obey it and OSHA
can enforce -- is if OSHA specifies the specific language like OSHA did
in asbestos.

		MR. O'CONNOR:  Thank you.

		MS. ROBINSON:  This is Kim Robinson again, from the Solicitor's
Office.

		I have a question about your discussion of respirators, which both
came up in your written comment and also today.  You state that if OSHA
maintains the 50 µg PEL, it should provide that employees may require
employers to provide them with respirators in areas above the action
level.

		MR. GORDON:  Yes.

		MS. ROBINSON:  So how do you see this playing out in practice?  How,
for example, would a foreign language-speaking employee, which you
mentioned -- you said half the construction workforce these days is
Spanish speaking -- on, say, a short-term construction project, require
his or her employer to provide him or her with a specific respirator? 
And do you have any concerns about an adverse action by the employer
against these employees who exercise this right?

		MR. GORDON:  Well, we'll get to that question -- the last part of
your question -- last.

		First, OSHA requires it in the asbestos standard, so it's done it
before.  If, at the action level, you have a sign saying, "crystalline
silica, danger," then -- you know, the employee has to be trained.  So
the employee will be trained that in areas above the action level, you
know, the employer can't require him to wear it; he can request one.

		When the employee sees that sign -- and incidentally, the training
has to be in Spanish for Spanish-speaking workers.  Look at the cranes
proposal and final to see the figures on how high a percentage of the
construction workforce is Hispanic speaking in the whole range of jobs.

		So the employee will have his training, he'll see the sign, and
employers will have to carry around PAPRs because they don't have to be
fit-tested.  That's another advantage for them.  And the employee can
say I want a respirator, and the employer would have them because he
would travel with two or three.  It depends on how big his workforce is.
 But if he has 10 workers, he can carry one or two, if he has 100
workers, 5 or 10.  And he'd carried these PAPRs around with him.  He'd
only have to buy them once.  And if a worker asked for them, he'd give
it to the worker and the worker would not have to be fit-tested because
of the fact that it's a supplied air respirator.  So I think it can be
carried out practically.

		Now, whether workers would take advantage of it, whether they would be
worried about being discriminated against or fired, that's a difficult
question.  Frankly, the worker is going to have make that decision
himself.

		Theoretically, OSHA can protect him, if you're fired for making a
safety request or a safety complaint.  Under 11(c) of the OSH Act, OSHA
can take an action against the employer, fine him, and make him rehire
the employee.  But I realize that's not a practical remedy for many
workers, a theoretical one.

		I think that's not a problem I know how to solve, but at least we
should make it available.

		I would say, on union worksites, the worker will be adequately
protected.  The union wouldn't let the worker be fired.  On non-union
worksites, it's going to be a tough decision for the worker to make, but
at least I think he should have the opportunity to make it.

		MS. ROBINSON:  Thank you.

		MR. O'CONNOR:  That concludes OSHA's questioning.  Again, thanks for
coming in, Mr. Gordon.

		MR. GORDON:  Thank you very much for listening.

		JUDGE PURCELL:  Thank you, Mr. Gordon.  Your testimony was both
informative and entertaining.

		The next individual on the agenda this morning is John Marchese.  He
wasn't here earlier.  Has he arrived?

		(No response.)

		JUDGE PURCELL:  I don't see any indication that he has.  So that will
conclude the morning portion of the program.

		The time is now 11:40, approximately.  We'll break until 1:00 p.m. and
resume at that point.  We're in recess.

		(Whereupon, at 11:40 a.m., a lunch recess was taken.)

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

(1:38 p.m.)

		JUDGE PURCELL:  If I could ask you all to go ahead and take your
seats, we're ready to resume the afternoon portion of today's program.

		The first speaker up this afternoon is 

Dr. L. Christine Oliver with Collegium Ramazzini.  I don't know if I'm
pronouncing that right.

		DR. OLIVER:  Yes, you are.

		JUDGE PURCELL:  The other two speakers listed on the program will not
be here.

		So, Dr. Oliver, whenever you're ready, you may proceed.

		DR. OLIVER:  Sure, thank you.

		JUDGE PURCELL:  Oh.  And just for the record -- I'm sorry.  You gave
me, right before we started, a copy of your testimony.  I marked that as
Hearing Exhibit 139, and I'll admit that into the record.

(Whereupon, the document referred to as Hearing Exhibit 139 was marked
and received in evidence.)

		DR. OLIVER:  Okay, thank you.  Good afternoon.  So as Judge Purcell
said, I'm here to speak on behalf of the Collegium Ramazzini.

		The Collegium Ramazzini is an independent academy of 180 scientists
from countries around the world, recognized for their work in
occupational and environmental health.  The academy was named in honor
of Dr. Bernardino Ramazzini, the so-called father of occupational
medicine.

		One of the founders of the Collegium Ramazzini was Dr. Irving
Selikoff.  The Collegium was founded in 1982.  Dr. Selikoff, as I'm
sure everyone in this room knows, was a pioneer in the area of asbestos
and also asbestos-related diseases.

		The mission of the Collegium Ramazzini is "to advance the study of
occupational and environmental health issues, and to be a bridge between
the world of scientific discovery and the social and political centers
which must act on the discoveries of science to protect the public
health."

		A principal focus of the Collegium is the identification of
occupational and environmental risk factors and the prevention of
related diseases.  The purpose of protective standards promulgated by
OSHA is the same; that is, to prevent work-related illness and disease.

		Permissible exposure limits are aimed at primary prevention and are
established taking into account technologic feasibility and cost.

		Medical surveillance provisions are designed for secondary and
tertiary prevention; namely, the detection of disease at an early and
potentially curable stage, and the prevention of worsening once disease
becomes manifest.

		On behalf of the Collegium Ramazzini, I am here today to testify with
regard to OSHA's proposed rule on occupational exposure to respirable
crystalline silica.

		I am an Associate Clinical Professor of Medicine at Harvard Medical
School, and associate physician at the Massachusetts General Hospital in
Boston.  My appointment at the Massachusetts General Hospital is in the
Department of Pulmonary and Critical Care Medicine.  I have conducted
research in the area of occupational lung disease, including
silica-related lung disease.  I have a clinical practice at the MGH with
an emphasis on, and particular interest in, occupational lung disease. 
As part of my clinical responsibilities there, I interpret and sign off
on pulmonary function tests performed at the hospital.  I was a
NIOSH-certified 

B reader from 1980 to 2005.

		Drs. Frank and Landrigan, who unfortunately could not be here today
but participated in the creation of our comments and testimony, have
worked for decades in the area of occupational health and safety, with
the overarching goal of preventing work-related illness and disease. 
Our activities -- and by "our," I mean the members of the Collegium, as
well as the members of the panel -- include academic research,
teaching, and medical surveillance of at-risk workers.

		Silica was recognized as a health hazard for exposed workers by
Dr. Ramazzini in the 16th century.  In his treatise De Morbis
Artificum, or Diseases of Workers, published in 1713, he wrote, "We must
not underestimate the maladies that attack stonecutters, sculptors,
quarrymen, and other such workers."

		He says, too, that he was told by a master stonecutter that when he
was chiseling stone, a dust arose, so fine that it penetrated the ox
bladders hanging in the workshop.  In fact, in the course of one year he
found that a handful of dust had accumulated inside the bladder.  The
man declared that the dust would gradually prove fatal to stonecutters
who took no precautions.

		This is indeed a prescient statement.  We find ourselves here, three
centuries later, discussing a rulemaking that will protect workers --
hopefully protect workers -- from silica-related disease and fatality
associated with that disease.

		The health hazards of occupational exposure to respirable crystalline
silica are well described in the rulemaking, itself, and include most
prominently silicosis, other nonmalignant respiratory diseases such as
chronic obstructive pulmonary disease -- or COPD -- renal disease, and
lung cancer.

		Excess mortality attributable to each of these diseases is documented
in the proposed standard and summarized in Table VII-2.

		The Collegium Ramazzini strongly supports the need to regulate silica
exposure and is grateful to OSHA for its action in this regard.

		My testimony will address medical surveillance, Section (h), 1910-1053
and 1926-1053.  Specific issues that I will address are content and
periodicity of medical exams, interpretation and communication of
medical findings, the appropriate trigger for initiation of medical
surveillance, and medical removal protection.

		The general industry standard differs in certain respects from the
construction standard with regard to regulatory provisions for medical
surveillance.  Where there are differences, my comments address the
general industry standard.  Others have addressed and will address the
same issues as they relate to workers covered under the construction
standard.

		My comments are organized around specific sections and paragraphs in
the standard, as requested in the preamble, and I will address questions
and issues raised in the issues section of the preamble.

		To summarize our key points:

		(1) The initial baseline medical examination, as set forth in the
proposed standard, must be provided by the employer within 30 days of
assignment to a silica exposure area, as defined by the standard.  To
allow as baseline an examination performed at some point within the
preceding three years by someone other than the employer is
unacceptable.

		(2) A standardized medical and exposure and work history must be
developed by OSHA and attached as an appendix to the proposed standard. 
The medical history should address not only respiratory health effects
of exposure to respirable crystalline silica, but also non-respiratory
health effects such as renal disease and connective tissue disorders.

		(3) Just CT scans and HRCT are not "equivalent diagnostic studies" for
purposes of medical surveillance for nonmalignant respiratory disease
performed pursuant to the proposed standard.

		(4) Spirometers and methodology used to perform lung function testing,
pursuant to the standard, must be standardized and compliant with
criteria established by the American Thoracic Society, or ATS.

		(5) Interpretation of pulmonary function test results must include
comparison of current test results with all prior test results.  A
year-to-year decline in FEV1, which is forced expiratory volume in the
first second of greater than 8 percent or 330 mL should prompt referral
to a pulmonary physician, pursuant to the proposed standard.

		(6) The use of low-dose chest CT scans (LDCT) to screen for lung
cancer in workers covered under the standard is appropriate for those at
particularly high risk, a determination to be made on the basis of
duration of silica exposure, the presence of silicosis or COPD, and a
history of cigarette smoking.

		(7) Medical and exposure history and pulmonary function testing should
be obtained on an annual basis.  The same is not true for chest x-ray
and physical examination.

		(8) Details of the results of the medical examination provided for in
the rule should be provided to the employee, not the employer. 
Information about workplace restrictions should be provided to the
employer only in the context of medical removal protection for covered
workers.

		(9) Occupational exposure to respirable crystalline silica at the
action level (.025 mg/m3) should be the trigger for medical
surveillance, not the permissible exposure limit of 0.5 mg/m3.  And this
comment applies only to the general industry standard.

		(10) Provision for medical removal protection must be included in the
general industry standard.

		(11) Smoking cessation programs for current smokers must be a part of
the overall program.

		And now I'll address specific sections in the preamble.

		Paragraph (2) of Section (h):  Initial Medical Examination.

		Under Paragraph (h)(2) of the proposed standard, employers are
required to make medical examinations available to employees exposed to
respirable crystalline silica at or above the PEL for 30 or more days
per year.  The examination shall be made available within 30 days of
assignment to work in a silica exposure area, unless a comparable
examination has been performed within the preceding three years.

		With regard to the initial medical examination, it is the position of
the Collegium Ramazzini that the standard, as written, will not provide
an adequate baseline against which to compare subsequent medical data
collected pursuant to the standard, with the possible exception of the
chest 

x-ray.

		First, a three-year window in time between a "comparable" examination
and initial assignment to a silica exposure area, as defined, is too
long.  Medical and exposure histories can change significantly over
three years.

		Lung function data obtained as many as three years earlier may not
reflect lung function at the time of assignment to a silica-exposed job,
particularly in someone who has underlying lung disease from another
workplace exposure and/or tobacco use.

		The results of initial spirometry performed at a site other than that
of the employer would not provide a reliable baseline for judging change
in lung function going forward, in the absence of provision for
standardization and quality control of testing equipment, methodology,
and interpretation.

		The ATS and the European Respiratory Society, or ERS, have established
criteria for the standardization of spirometry.

		Compliance with the standardized performance criteria must be required
by OSHA, if medical surveillance is to provide reliable and useful
information about existing abnormalities in lung function and changes in
lung function over time.  OSHA appropriately requires that technicians
performing spirometry be NIOSH certified.

		With regard to interpretation of test results, the use of the same
gender- and race-specific reference standards is advisable; that is, the
use of a common reference standard, given that the use of different
reference standards for FEV1 and FVC by different facilities will likely
result in different interpretations of spirometric data by the physician
or other licensed healthcare provider, the PLHCP.

		The Collegium Ramazzini recommends that the proposed standard require
that all medical examinations, including the initial baseline exam, be
provided by the employer within 30 days following assignment to a
silica-exposed job.

		An exception is the chest radiograph.  If there is a preexisting chest
x-ray within the three-year window of time and that x-ray is acceptable
in quality, that chest x-ray could suffice, understanding that the
worker's second chest x-ray, given that a three-year window in time is
allowed for repeat testing following assignment to a silica exposure
area, could be as much as six years after the first chest x-ray.

		There are caveats.  If a prior chest x-ray shows evidence of
pneumoconiosis and/or the employee has had workplace exposure to other
lung toxins in the interim, a new chest x-ray must be obtained within 30
days of assignment to a silica exposure area.

		Paragraph (2)(i) in Section (h):  Medical and Occupational History.

		The proposed standard requires "a medical and work history with
emphasis on past, present, and anticipated exposure to respirable
crystalline silica dust and other agents affecting the respiratory
system; any history of respiratory system dysfunction, including signs
and symptoms of respiratory disease; history of tuberculosis; and
smoking status and history."

		In order to standardize data collection and ensure comprehensive
medical and occupational histories, the Collegium Ramazzini recommends
that OSHA develop and attach to the proposed standard, as an appendix, a
standardized medical and exposure work history similar to the one that's
attached to the asbestos standard.  Because respiratory symptoms may be
the early sign of developing silica-related lung disease, a standardized
and comprehensive medical history is particularly important.

		Paragraph (2)(iii) of Section (h):  Chest X-Ray, Equivalent Diagnostic
Study.

		The proposed standard requires, as part of the medical examination "a
chest x-ray interpreted and classified according to the International
Labor Organization classification of radiographs of pneumoconioses by a
National Institute for Occupational Safety and Health certified B
reader, or an equivalent diagnostic study."

		Queried in the preamble, Paragraph 79 in the issues section, is where
the computer tomography and high-resolution computer tomography, or
HRCT, could be considered equivalent diagnostic studies.

		Chest CT scan and HRCT have been shown to be superior to chest
radiography in the detection of interstitial lung disease, including
interstitial lung disease caused by occupational exposure to silica.

		For example, Talini et al. found that HRCT was more reproducible, with
more robust agreement between readers and high correlation with lung
function abnormalities in silica-exposed workers.

		Low-dose chest CT scans, or LDCT, are also superior to chest
radiography in the detection of early interstitial changes in the lung.

		Considerations in determining whether CT scans and HRCT are
"equivalent diagnostic studies" in the context of the proposed
rulemaking include the following:

The purpose of the study

The amount of associated radiation 	exposure

Accessibility

Interpretation

Unexpected consequences, and

Cost

		The purpose of chest radiography and/or tomography in medical
surveillance of workers, as set forth in the proposed standard, is to
screen for silicosis.  Both chest CT scan and HRCT are likely to be
useful in the diagnosis of silicosis.  Their advisability for screening
is the question at hand.

		Radiation exposure is greater for chest CT scans than for chest x-ray.
 For chest x-ray, the average dose is 0.1 mSv.  For chest CT scan, the
dose varies depending on the size of the individual, with more radiation
being required for larger people.  The amount of radiation generally
ranges from 3 mSv to 

8 mSv.

		Chest x-rays are readily accessible under most circumstances, whereas
availability of chest CT scanning is more limited, particularly in rural
areas.

		Interpretation of chest CT scan is best done by a trained radiologist.
 Presently, we don't have the analog of the NIOSH B reader for chest CT
scans, and presently there is no analog of the ILO system of
classification to guide and standardize interpretation of chest CT scans
for pneumoconiosis.

		Unexpected consequences of chest CT scans include the detection of
small non-calcified pulmonary nodules and/or other non-silica related
pulmonary abnormalities that then require medical follow-up.  While this
may prove beneficial to the employee, in the long run it has the
potential to expand the scope of medical surveillance, as set forth in
the standard, and will likely complicate the job of the PLHCP.

		Chest CT scans are more expensive than chest x-rays by orders of
magnitude.  LDCT is significantly less expensive than conventional CT
scans and is more sensitive in detecting interstitial lung disease than
chest x-ray.  It delivers less radiation than a conventional CT scan,
with a range of 0.5 mSv to 1.7 mSv.  However, LDCT comes with some of
the same unexpected consequences of conventional chest CT scans.

		Taking these mitigating factors into account, it is the Collegium
Ramazzini's position that at the present time, chest CT and HRCT scans
are not equivalent diagnostic studies for purposes of medical
surveillance for nonmalignant respiratory disease, pursuant to the
standard.

		The Collegium agrees with OSHA that the digital chest radiograph is an
equivalent diagnostic study.  NIOSH has examined digital radiography
with regard to accessibility, quality of digital images, and inter- and
intra-reader variability and compared the digital radiograph to the
conventional radiograph in the evaluation of workers at risk for
pneumoconiosis.

		NIOSH has published the NIOSH guideline application of digital
radiography for detection and classification of pneumoconiosis, NIOSH
Publication Number 2011-198.  In September 2012, NIOSH published final
regulations authorizing the use of digital radiography and the coworkers
health screening program, effective October 15th, 2012.

		Paragraph (2)(i)(B) of Section (h):  Pulmonary Function Testing.

		Occupational exposure to respiratory crystalline silica is an
important risk factor for the development of silicosis, COPD, and other
nonmalignant respiratory disease.  OSHA estimates expected excess deaths
from nonmalignant respiratory disease at 83 per 1,000 in workers exposed
at the current PEL of 0.1 mg/m3 and 43 per 1,000 workers exposed at the
proposed PEL of 0.05 mg/m3, summarized in Table VII-2 of the proposed
standard.

		Among the earliest changes in the development of obstructive lung
disease is a decrease in airflow in the small airways of the lungs,
forced expiratory volume at 75 percent of vital capacity.  These
abnormalities, as well as decrease in forced expiratory volume in one
second, or FEV1, may be detected in the absence of radiographic evidence
of silicosis.  Accordingly, pulmonary function testing plays a critical
role in medical surveillance of silica-exposed workers.

		The proposed standard requires pulmonary function testing in the form
of spirometry and requires that spirometry be performed by a
NIOSH-certified spirometry technician.  However, as previously noted,
the standard does not require standardization of the spirometric
equipment used to perform the test.

		The ATS and ESR have published detailed criteria both for the
standardization of spirometry and the interpretation of test results. 
These apply to the spirometer itself and to test performance, and
include criteria for acceptability and reproducibility of test
maneuvers.

		Quality of test performance relates directly to the reliability of
test results and must be taken into account in test interpretation. 
Failure of test results to meet criteria for acceptability or
reproducibility should be noted in the interpretation so that the person
who is reading the interpretation understands -- has some way to gauge
the quality of the testing that was done.  Such steps will provide for
spirometry, but the ILO system of classification and the NIOSH-certified
B reader provide for the chest x-ray.

		The importance of the quality of spirometry to the reliability of test
results is emphasized by Hnizdo and Wang and Petsonk, among others.

		Hnizdo cites the quality of spirometry as one of the factors affecting
within-person variability in FEV1 test results in longitudinal studies
of healthy working populations.

		Within-person variability must be taken into account in judging the
significance of change in lung function over time, both in the clinical
setting and in epidemiologic studies of working populations.

		Wang and Petsonk cite "equipment, technician training, and the various
technical considerations such as method of calculation, ambient and
equipment temperatures, and instrument calibration," as variables to be
considered along with age, gender, height, and race, in the selection of
appropriate referent groups and the interpretation of change in lung
function.  And in their case they looked at change in lung function over
a relatively short period of time, 6 to 12 months.

		The proposed standard is silent on the choice of reference standards. 
The ATS/ERS have recommended the use in the United States of reference
standards derived from the Third National Health and Nutrition Survey
(NHANES III).  These standards were derived from 7,429 asymptomatic,
lifelong nonsmoking participants, age 8 to 80, living in 81 counties
across the United States.

		Participants belonged to three ethnic groups: Caucasian, African
American, and Mexican American.  These reference standards are more
representative of the population of workers covered under the proposed
standard, than other commonly used reference standards such as Morris,
1971, which the population upon which these standards were based was
Mormons living in semirural areas at low altitude, and Crapo, 1981,
Mormons in urban areas at high altitudes.

		Sood et al. had compared interpretation of spirometry using these
reference standards, the interpretation using the NHANES III standards,
and found differences in terms of determination of abnormality and
assessing severity of the abnormality.

		For employees covered under the proposed standard, consistency of
interpretation is very important, particularly for construction workers
who may have testing done at a number of different sites in different
parts of the country by different employers.

		The proposed standard does not require that the results of spirometry
performed at one point in time be compared to prior test results.  Such
comparisons are necessary to the early detection of declining lung
function.  They are required by OSHA's cotton dust standard, which
states, "A comparison shall be made between the current examination
results and those of previous examinations and the determination made by
the physician as to whether there has been a significant change."

		For monitoring lung function over time, the ATS/ERS task force
recommends the use of the FEV1 as "the most repeatable lung function
parameter and one that measures changes in both obstructive and
restrictive types of lung disease."

		Excessive loss of lung function may indicate early development of
silica-related disease, even in the absence of an abnormal test result. 
So spirometry at one point in time may be normal, but compared to the
baseline of that individual, there may have been a decline.  So even
though the test result itself is normal, it doesn't mean that there is
not something going on with regard to that individual's lung function.

		In the clinical setting a year-to-year change of 15 percent or
greater, even in persons with relatively normal lungs, is considered
significant.

		Wang and Petsonk examined change in lung function over a 6- to
12-month period in a group of 389 white male coalminers and working
non-miners examined over a five-year period.

		Two groups were selected as referent groups:  stable without excessive
decline in FEV1 -- excessive decline being defined as greater than 90
mL per year over the five-year period -- and healthy, consisting of
nonsmoking subjects without development of bronchial hyporesponsiveness
or respiratory symptoms during the five-year period.

		In the total population only 0.6 percent of the 2,511 observations of
12-month changes in FEV1 were declines of 15 percent or greater.  For
the participants classified as stable and healthy, that is, the referent
groups in this particular study, 12-month declines in FEV1 of 8.1
percent or 330 mL and 7.4 percent or 320 mL, respectively, were in the
lower fifth percentile and therefore considered abnormal.

		The authors concluded that in a population of healthy male workers,
year-to-year declines of greater than 8 percent or 330 mL should not be
considered normal.

		The Collegium Ramazzini agrees with the Agency that requiring
performance of spirometry by a NIOSH-certified spirometry technician
increases the likelihood that administration of the test will be
consistent with ATS criteria.

		In order to further ensure the reliability of spirometry performed
pursuant to the standard, the Collegium recommends that, in addition,
the proposed silica standard requires the use of spirometric equipment
that is compliant with the ATS/ERS criteria.

		The Collegium recommends that OSHA require the use of NHANES III
reference standards for the interpretation of test results.

		The Collegium recommends that OSHA require a comparison of current
test results with prior test results to assess change in lung function
over time.

		A year-to-year decline in FEV1 of greater than 8 percent or 330 mL
should prompt referral to a pulmonary physician by the PLHCP, pursuant
to the proposed standard.

		There is precedent for this level of oversight of quality and accuracy
of laboratory testing in OSHA's lead standard.  This standard requires
that analysis of blood lead levels in exposed workers be accurate at a
95 percent confidence level within 15 percent or 6 µg per 100 mL,
whichever is greater.  Testing of blood samples is to be conducted by
laboratories licensed and approved by the CDC.

		Paragraph (2)(vi) of Section (h):  Any Other Testing Appropriate.

		The medical surveillance provisions provide for any other "tests
deemed appropriate by the PLHCP."

		Silica is a recognized human lung carcinogen.  Screening for lung
cancer is not addressed in the proposed standard.  Screening for lung
cancer is a timely issue.

		A randomized controlled trial of the use of LDCT versus chest x-ray to
screen for lung cancer was conducted by the National Institutes of
Health.  The outcome of interest was lung cancer mortality.  Results
showed a 20 percent decrease in lung cancer mortality in the group
screened with LDCT compared to the group screened with chest radiograph.
 In this study, risk was defined and subjects were chosen on the basis
of exposure to tobacco smoke.

		Since the completion of the NIH study -- I think the results were
reported in 2010 -- a number of professional organizations have
released position statements advising the use of LDCT to screen at-risk
populations for lung cancer.  These include the American Lung
Association, the National Comprehensive Cancer Network, the American
Association for Thoracic Surgery, and the U.S. Preventive Services Task
Force.

		All of these expert bodies define risk on the basis of cigarette
smoking.  Two of them, the National Comprehensive Cancer Network and the
American Association for Thoracic Surgery, also define risk on the basis
of cigarette smoking and a second risk factor such as occupational
exposure to a lung carcinogen.

		There are distinctions between the two groups with regard to
eligibility for screening; that is, the group whose only risk factor is
cigarette smoking and the group that has as risk factors cigarette
smoking plus one additional risk factor.

		For the most part, it has been recommended that lung cancer screening
with LDCT take place in healthcare institutions with experienced
radiologists and technicians and in the context of a primary care
physician-patient relationship.

		There are exceptions.  Dr. Steven Markowitz, a fellow of the
Collegium Ramazzini, and colleagues have investigated the use of LDCT
for lung cancer screening in populations of workers at risk for lung
cancer as a result of the exposures incurred during the course of their
work in the manufacture of nuclear weapons.

		A description of methods and results with regard to screening for
nonmalignant asbestos-related lung disease has been published and
demonstrates that such a screening program is feasible.

		In the group of silica-exposed workers covered by the standard, there
are some who are at greater risk for the development of silica-related
lung cancer than others.  Risk depends on intensity and duration of
silica exposure, the presence of exposure-related nonmalignant
respiratory disease, and history of cigarette smoking.

		It is the position of the Collegium Ramazzini that the use of LDCT to
screen for lung cancer in workers covered by the proposed standard is
appropriate for those with more than 20 years of occupational exposure
to respirable crystalline silica in those with exposure-related,
nonmalignant respiratory disease, specifically silicosis and COPD, and
in those with a history of cigarette smoking.

		Longer durations of silica exposure are associated with greater lung
cancer risk.  Risk is higher in exposed workers with silicosis.  COPD is
an independent risk factor for lung cancer, as is cigarette smoking,
with data suggesting an interactive effect of exposure to both silica
and cigarette smoke that is greater than additive in a couple of
studies.  It appears to be multiplicative.

		The Collegium recommends that such screening be carried out, to the
extent feasible, in experienced multi-specialty institutions with the
full understanding of the employee and the active participation of the
PLHCP and/or the employee's primary care physician.

		Paragraph (3), Section (h):  Periodicity of Medical Examinations.

		The proposed standard requires that medical and occupational history,
physical examination, pulmonary function testing, and chest radiography
be obtained every three years or more frequently if recommended by the
PLHCP.

		For chest radiographs or their equivalent, this frequency is
appropriate, given the normally slow rate of radiographic progression of
silicosis.

		In the absence of new onset respiratory symptoms or significant change
in FEV1, physical examination on a tri-annual basis is appropriate.

		For medical and exposure history and pulmonary function testing, the
Collegium Ramazzini recommends annual examinations.

		Medical history is advised on an annual basis because symptoms of
cough, phlegm, wheeze and shortness of breath may be early signs of
silica-related airway inflammation and lung disease.

		Our own study of nonmalignant respiratory disease in 317 tunnel
construction workers exposed to silica revealed cough and phlegm
consistent with chronic bronchitis in 10.7 percent of study
participants, wheeze consistent with asthma in the absence of
physician-diagnosed asthma in 25.6 percent, and shortness of breath in
29 percent.  None of the participants had radiographic evidence of
silicosis.

		Bronchitis and asthma are diseases of the airways.  Latency for
certain diseases of the airways is short compared to the relatively long
latency period characteristic of silicosis.  For example, a two-year
history of cough and phlegm is sufficient for a diagnosis of chronic
bronchitis, and it is particularly these diseases with short latency
periods that require more frequent medical history.

		Exposure history reveals information about job- and task-specific
changes in silica exposure over time.  Some of these exposures may have
been temporary and short term, particularly in the construction
industry.  Episodic excessive exposure to silica may thus be forgotten
or otherwise missed if exposure history is obtained only every three
years.

		With regard to lung function testing, if FEV1 is declining at an
excessive rate, an interval of three years could allow a loss of close
to a liter in FEV1 before detection, using the data from Wang and
Petsonk.

		Further, analysis of longitudinal spirometric data from working
populations indicates that data precision and reliability depend not
only on the quality of spirometry, but also on the frequency of testing.
 Greater frequency improves stability and predictability for excessive
loss of lung function of the data.  The data become useful in predicting
excessive decline in the long term, only after the fourth or fifth year
of follow-up in a study that was carried out by Hnizdo et al.

		If spirometry is performed tri-annually on covered workers, at the end
of six years a given worker could have been tested only twice, which
does not give great reliability and stability to the longitudinal data.

		Paragraphs (5) and (6):  Employer Written Opinion.

		The proposed standard requires that the PLHCP provide to the employer
his or her written opinion within 30 days of the medical examination of
the employee.  This written opinion is to include "a description of the
employee's health condition as it relates to exposure to respirable
crystalline silica," and "any recommended limitations upon the
employee's exposure to respirable crystalline silica or on the use of
PPE such as respirators."

		Additional requirements include if the PLHCP determines that referral
to a pulmonary specialist is in order.

		The Collegium Ramazzini objects to the inclusion of information
related to the employee's health condition in the PLHCP's written
opinion, whether or not the details of the health condition are related
to asbestos exposure.

		And, parenthetically, the term "description" is ambiguous.  It's not
entirely clear what "description" means.

		Any details of the results of the medical examination should be
provided to the employee, not to the employer.  Specific details about
findings during the course of the medical examination by the PLHCP or by
the pulmonary specialist should be provided to the employer only with
the written consent of the employee.  Such protection of privileged
medical information respects and protects the privacy of the employee
and is consistent with the Federal Health Insurance Portability and
Accountability Act, or HIPAA.

		Specific details about the health status of the employee are not
needed by the employer in order to make a decision about job placement. 
What the employer needs to know is (a) whether there is a recommended
limitation on employee exposure to respirable crystalline silica and/or
the use of PPE, and (b) that a medical evaluation by a pulmonary
specialist is recommended, if that is the case.

		It is the position of the Collegium Ramazzini that information
regarding recommended workplace restrictions for a given employee should
be provided only in the context of medical removal protection.

		The Collegium Ramazzini further recommends that in addition to written
results of the medical examination, the employee be provided with his or
her chest x-ray on CD-ROM when digital radiography is used to obtain the
image.  This will allow the employee's medical records, including chest
x-ray, to travel with him or her and be available to a new medical team
in the event of a change of employer.  This is particularly important, I
think, for workers covered under the construction standard.

		The asbestos standard promulgated in 1994 established a PEL of 0.1
fibers per cubic centimeter and requires that the written opinion of the
PLHCP include "a statement that the employee has been informed by the
physician of the increased risk of lung cancer attributable to cigarette
smoking and to the combined effect of smoking and asbestos exposure."

		The Collegium Ramazzini recommends that a similar provision be
included in the proposed silica standard, namely, that the employee has
been informed of the increased risk of lung cancer attributable to
silica exposure, a risk that is compounded by exposure to cigarette
smoke.

		Paragraph 77 under Issues:  Appropriate Trigger for Medical
Surveillance.

		OSHA has proposed that medical surveillance conducted pursuant to the
standard be initiated or triggered by occupational exposure to
respirable crystalline silica at or above the PEL for 30 or more days
per year.

		It is the position of the Collegium that occupational exposure to
respirable crystalline silica at or above the action level for 30 or
more days per year is the appropriate trigger for medical monitoring. 
This position is based upon the following:

		(1) There is significant risk for adverse health effects from
occupational exposure to silica at the proposed PEL.  In Section 16,
Summary and Explanation of the Standards -- the definitions -- the
Agency states that its "preliminary risk assessment indicates that
significant risk remains at the proposed PEL of 50 µg/m3."

		OSHA further notes that "at least one court has held that OSHA has
duty to impose additional requirements on employers to eliminate
remaining significant risk when those requirements will afford benefits
to workers and are feasible."

		OSHA preliminarily concludes in this section "that the action level
will result in a very real and necessary further reduction in the risk
beyond that provided by the PEL alone."

		The Collegium Ramazzini concurs with this assessment and believes that
using the action level of 0.25 mg/m3 to trigger medical monitoring will
benefit workers by increasing the likelihood of early detection of
disease.  And it is feasible by OSHA's own determination.

		(2) Economic benefit to employers who maintain silica exposure below
the action level is cited by OSHA as a rationale for the use of the
action level to trigger exposure monitoring.  The same logic applies to
medical monitoring.  The economic benefit will be even greater for
compliant employers, if both exposure and medical monitoring were
triggered by the action level, thus providing greater incentive to keep
exposures low.

		This economic benefit would derive from, among other things, lower
employee health costs in the short and the long term, decreased
absenteeism, and lower premiums for workers' compensation insurance.

		(3) Use of the action level to trigger medical monitoring is
consistent with previous OSHA standards.  Restricting medical
surveillance to workers exposed at or above the PEL is without precedent
in OSHA rulemaking.  Standards that establish an action level use that
level to trigger medical monitoring.  These standards include 

chromium-6, methylene chloride, cadmium, lead, MDA, inorganic arsenic,
vinyl chloride, and laboratory workers exposed to hazardous chemicals.

		Paragraph Number 80 in the issues section:  Medical Removal
Protection.

		In this section, OSHA requests comments on whether the proposed
rulemaking should include a provision for temporary medical removal
protection and on the maximum duration of MRP benefits.

		In Section 16, Summary and Explanation of the Standards, Section (h): 
Medical Surveillance, the Agency discusses the reasoning behind its
decision to omit MRP from the proposed standard.

		The primary reason given for including MRP in earlier standards is to
encourage employee participation in medical surveillance.  Other reasons
are to prevent new onset disease and prevent worsening of existing
disease.

		The basis of OSHA's decision in the present standard appears to be
that silica-related diseases are chronic and not likely to regress with
temporary removal from silica exposure.

		The Collegium Ramazzini believes that MRP is necessary to workers'
full participation in medical surveillance provided for in the proposed
standard, and that such participation is necessary to the early
detection of silica-related disease.

		Accordingly, the Collegium Ramazzini strongly urges the Agency to
include provisions for MRP in the proposed rule.  The bases for this
position are as follows:

		(1) There is nothing about this standard that is different from
previously promulgated standards with regard to worker reluctance to
participate in medical examinations that may result in job loss.  The
risk of job loss should a silica-related medical condition be discovered
is real and for many workers covered by the standard, not worth taking
without job and benefit protection.

		(2) Among the components of the medical examination, the medical
history is likely to be most affected by lack of MRP.  Workers must feel
free to discuss respiratory and other symptoms with the PLHCP.

		As noted earlier in this commentary and by the Agency itself in the
preamble, respiratory symptoms of cough, phlegm, shortness of breath and
wheeze may be the initial manifestation of early lung disease associated
with silica exposure.  These may occur in the absence of demonstrable
abnormalities on spirometry or chest radiograph.

		(3) Temporary removal of workers with silica-related lung disease is
advisable under certain circumstances.  Although silicosis is a chronic
disease, other silica-related nonmalignant respiratory disease, while
chronic, has periods of exacerbation that may benefit from temporary
removal from workplace exposure to silica.  These conditions include
bronchitis, airway hyporeactivity, and COPD.  Such exacerbations are
generally short term but may last for weeks and may require
hospitalization.

		Temporary removal is advisable in the case of an employee who is
referred to a pulmonary specialist for further medical evaluation as a
result of medical examination.  The benzene standard provides precedent
in this regard.  The standard provides for medical removal and
protection of benefits as follows:

		"When a physician makes a referral to a hematologist/internist, as
required under 

Paragraph (i)(5)(ii) of this section, the employee shall be removed from
areas where exposures may exceed the action level, until such time as
the physician makes the determination under Paragraph (i)(a)(ii) of this
section."

		Section (i)(9)(ii) of the benzene standard provides for maintenance of
"current wage rate, seniority, and other benefits of the employee, as
though the employee had not been removed."

		There is precedent in previously promulgated standards for MRP for
work-related chronic disease and for medical conditions requiring
permanent removal.  These standards include asbestos, cotton dust, and
benzene.

		The asbestos standard states that no employee must be assigned to a
job that requires the use of a respirator if the examining physician has
determined that the employee is unable to wear a respirator.  The
standard provides that in this case, the employee must be assigned to
another job or position whose duties she or he can perform.  If such a
job or position is available, it must be with the same employer, in the
same geographic area, and with the same seniority, status, rate of pay
and other benefits.

		The cotton dust standard has similar provisions with regard to medical
removal based on ability to wear a respirator.  An employee working in
an area in which concentrations of cotton dust are in excess of the PEL,
who is unable to wear a respirator, must be given the opportunity to
transfer to a position available at that time or later, with retention
of rate of pay and other benefits.

		The benzene standard provides for MRP in the event that permanent
removal is recommended by a physician, stating that the employee "shall
be given the opportunity to transfer to another position which is
available, or later becomes available, for which the employee is
qualified or can be trained in a short period," and where benzene
exposure is at or below the action level.  "The employer shall assure
that such an employee suffers no reduction in current wage rate,
seniority, or other benefits as a result of the transfer."

		That concludes my comments.  The Collegium appreciates the opportunity
to be here today.  And I'm happy to take any questions.

		JUDGE PURCELL:  Thank you very much, 

Dr. Oliver.

		At this point I'll open it up for questions.  Can I see a show of
hands from the audience, of people interested in questioning?  Two on
this side.

		Okay, Ms. Trahan.

		MS. TRAHAN:  Hi.  Thank you for testifying.  Chris Trahan with the
Building Trades.

		You know, in construction we have a little bit more difficulty than in
industries where it's the same employer dealing with the same worker
population over a long period of time.  And I found that your comments
regarding the need to compare the results of spirometry from year to
year demonstrate that there's going to be a challenge there in the
construction industry.

		But in your opinion, if the ATS guidelines on the standardization of
equipment test performance and interpretation are required in the OSHA
standard, could you see the results being portable and interpreted if
different licensed healthcare practitioners were being used over time
for an employee?

		DR. OLIVER:  Well, I think there are two issues there.  One is whether
the equipment is standardized or not.  And if the equipment is
standardized, then that provides a commonality and sort of guarantees
baseline reliability, which would apply in the construction trades and
general industry everywhere.  And that would be the purpose of requiring
standardization of the equipment and the interpretation.

		If you have the reference standard guiding the interpretation, then
you could expect that the interpretation received by one PLHCP should be
similar to that received by a PLHCP in another geographic area or with
another employer.

		MS. TRAHAN:  Um-hum.

		DR. OLIVER:  Now, with regard to being able to compare current test
results with prior test results, I think one way to deal with that
problem -- and I work with the construction trades, so I am familiar
with some of the issues -- would be to give the employee a copy, not
only of the details of his or her medical examination contained in a
written opinion but also, as I testified, their chest x-ray on a CD-ROM
if a digital image is obtained.

		And also you could give the employee a copy of his or her spirometric
results -- in the construction industry -- that they could then take
with them along with this other medical information.  And I'm sure there
must be ways to digitize this and make it more convenient for the worker
to keep and carry.

		So that would be one way to deal with it.  But at a minimum, even if
the worker were not able to carry the spirometric -- well, that's the
only way you can deal with the issue of comparing results over time,
unless there's a central database.  You know, maybe the unions could --
I don't know.

		MS. TRAHAN:  Yeah.

		DR. OLIVER:  But you either have to have a central database or you
have to give these test results to the employee to take with him or her
from one site to another.

		MS. TRAHAN:  Okay, thanks.  And then you talked a little bit about
your 2006 study of the tunnel workers.

		DR. OLIVER:  Yes.

		MS. TRAHAN:  Over what years were those workers exposed to silica? 
Was it in the 10 years prior to the study, 20 years or --

		DR. OLIVER:  No, it was either -- I can tell you exactly.  It was
either in 2000 or 2001, so relatively recently -- let's see -- because
I think it was in 2000.  It was in 2000.  Yeah, they were exposed in
2000 and we did the study in 2001.

		MS. TRAHAN:  Okay, thank you very much.

		JUDGE PURCELL:  Thank you, Ms. Trahan.

		Ms. Seminario.

		MS. SEMINARIO:  Peg Seminario, AFL-CIO.

		Good afternoon.  Dr. Oliver, thank you very much for your testimony
today and the contributions of your colleagues, as well.

		One of the issues that has been raised repeatedly in these
proceedings, and that a number of the industry groups have pointed to,
is data from the Centers for Disease Control that's compiled by NIOSH,
dealing with mortality information on silicosis as a disease.  And I
don't have a copy with me today, but there is a chart -- a graph that
is presented by NIOSH on its website -- showing over time that the
number of silicosis deaths that are reported has declined.  Are you
familiar with that information?

		DR. OLIVER:  Not in detail.  I'm aware of it.

		MS. SEMINARIO:  As a more general matter, for the mortality data, what
is the source of that information when NIOSH is reporting cases of
silicosis in its mortality data?

		DR. OLIVER:  Well, I think mortality data come from epidemiologic
studies of workers.  There is physician-based reporting of mortality. 
There are hospital discharge data that are used.  So there are a number
of different sources for mortality data.

		JUDGE PURCELL:  Dr. Oliver, could you pull that microphone on your
right a little closer?

		DR. OLIVER:  Oh, sure.  Yeah.

		JUDGE PURCELL:  Either one.

		DR. OLIVER:  I mean, for example, in Massachusetts there is something
called a Sentinel Event Notification System Occupational Registry
system, or SENSOR, which is present in five states and physicians are
required to report cases of work-related disease.  And the Department of
Public Health, in working with NIOSH in Massachusetts, tracks both
incident cases or -- I guess, in the case of silicosis -- prevalent
cases and also looks at mortality.  So NIOSH gets a lot of its data from
these kinds of activities by departments of public health.

		MS. SEMINARIO:  Okay.  In your testimony, a couple of the specific
issues that you spoke about, you made a recommendation with respect to
surveillance with the use of low-dose CT scans potentially being useful
for the early detection of lung cancer.  And I just wanted to ask you
just for a clarification on that.  It's on page 70 of your statement.

		It says "It is the position of the Collegium Ramazzini that the use of
low-dose CT to screen for lung cancer in workers covered by the proposed
standard is appropriate for those with more than 20 years of
occupational exposure to crystalline silica in those with
exposure-related NMRD, nonmalignant respiratory disease, specifically
silicosis and COPD, and in those with a history of cigarette smoking."

		On the issue of cigarette smoking, is that recommendation linked to
the recommendations that have come from the Preventive Services Task
Force for a certain amount of smoking, or would it be any cigarette
smoking with silica exposure?

		DR. OLIVER:  I think that would depend -- I think that depends.  I
don't know the answer to that question.  I think that's the kind of
thing that would need to be worked out by OSHA, because these
organizations -- for example, the U.S. Preventive Services Task Force
was focused only on cigarette smoke.  And if there's a greater-than
additive or multiplicative effect between two agents, then certainly the
amount of smoking required to be eligible for screening, under some of
these guidelines -- for example, the U.S. Preventive Services Task
Force -- might not apply.

		And as I stated earlier, the National Comprehensive Cancer Network and
the American Association for Thoracic Surgeons have two sets of
eligibility criteria, depending on whether a given individual has more
than one risk factor for lung cancer.  For example, younger ages and
fewer packs of cigarette smoking are required for eligibility if there
are two risk factors as opposed to one.

		And so I really can't answer that question sitting here today.  I
think it's something that would need to be thought about and considered.
 But I think the criteria that apply when there's only one risk factor,
and that's tobacco smoke, probably would not apply here.

		MS. SEMINARIO:  Okay.  And also on the issue of low-dose CT, your
recommendation is, is that for workers who have more than 20 years of
occupational exposure to respirable crystalline silica.

		Dr. Steven Markowitz, who you mentioned also in your testimony, did
testify at these hearings.  I believe he was here last week, and he also
recommended the use of low-dose CT scans.  But he had an alternative
proposal, that instead of using specifically years of exposure, that a
criterion would be the worker's age.  I think it was for workers over
50.  And I think part of his rationale was sometimes it's difficult to
assess how many years of exposure where age is a clear criterion.

		Would age perhaps be an appropriate factor for use as a criterion
for --

		DR. OLIVER:  Well, I think you could use age or you could use duration
of work in the industry, you know, and without -- I think that's a good
point that you make about silica exposure.  And so you could use age. 
You could also use how many years a person has worked in the industry,
the construction industry or in another industry where there's excessive
exposure to silica.

		MS. SEMINARIO:  Thank you.  I believe when you were introducing
yourself you stated that you are still a practicing occupational
physician with a specialty in pulmonary medicine.  So you do see and
examine workers on somewhat of a regular basis; is that correct?

		DR. OLIVER:  Yes, I do.

		MS. SEMINARIO:  For occupational disease and occupational exposure
conditions?

		DR. OLIVER:  Yes.

		MS. SEMINARIO:  Is it your experience that workers who may be
experiencing an occupational disease due to their job may be reluctant
for any adverse health effects information to be shared with their
employer?

		DR. OLIVER:  Yes, yes.  I think that most definitely is the case
because there's a very real concern about their job and whether they
will be able to keep their job if certain information is shared.

		And I never -- well, I'm prohibited from sharing information by HIPAA
anyway, but I would never share medical information with an employer
without the written consent of the employee.  And I -- in addition to
seeing patients in a clinical setting -- have done screenings and
epidemiologic studies and those data I consider to be part of that
individual's medical record, and it's my practice not to share that
information with the employer without signed consent.  I don't believe
that I could.

		But the answer to your question is yes, there are often cases in which
an individual does not want information he or she has shared with me, or
information in the medical record, to be shared with his or her
employer.

		MS. SEMINARIO:  So would there be -- absent a written consent by the
worker/patient, would any of the information from that visit or
diagnosis be shared with the employer?

		DR. OLIVER:  No.  In my clinical practice, no.  I screen Boston public
school custodians for asbestos-related disease.  I've been doing that
for quite some time.  And in that screening I submit an "employer's
written report," but all it says is that 

-- it doesn't give any details of that person's medical history.

		MS. SEMINARIO:  What would be included in that report?

		DR. OLIVER:  The only thing that would be included in that report
would be whether this person is allowed to wear a respirator or not.

		MS. SEMINARIO:  That's the only information, okay.  I think those are
my only questions.  Thank you very much.

		DR. OLIVER:  Thank you.

		JUDGE PURCELL:  Thank you, Ms. Seminario.

		Any other questions from the audience?

		(No response.)

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

		MR. PERRY:  Yes, this is Bill Perry.  Thank you, Your Honor, we do
have a few questions.

		MS. GORSE:  Hi, Dr. Oliver.

		DR. OLIVER:  Hi.

		MS. GORSE:  My name is Joanna Gorse.  I just have one quick question.

		You mentioned that it's important for OSHA to develop a standardized
medical and exposure work history to add as an appendix.  Do you have
any specific suggestions of what that should include?  I know you
mentioned similar to the asbestos standard, but from a physician's
standpoint, what should it include?

		DR. OLIVER:  Well, I think it should include some of the questions
that are outlined in the preamble and I think, ideally, standardized
questions; that is, questions that are taken from preexisting
standardized questionnaires be used.  I think the asbestos questionnaire
is a good starting point.  I think it might -- and I think the asbestos
standard does a pretty good job of asking questions.  The questionnaire
does a pretty good job of asking questions about that person's
respiratory health.

		Questions about kidney disease are difficult.  It's probably worth
just -- because the symptoms are very nonspecific, you could just ask
about presence or absence of kidney disease in that person's past
medical history.

		Connective tissue disorders.  I think, for example, you could have a
list of various connective tissue disorders and ask if this individual
has a history of any of these.  You could ask questions about symptoms
of joint pains, skin changes, things like that.

		But I think the asbestos questionnaire is pretty good on respiratory.

		MS. GORSE:  Okay, great.  Thanks.

		MR. SCHAYER:  Hi, Dr. Oliver.  My name is Steve Schayer with OSHA.  I
just had a couple of questions on low-dose CAT scanning.

		DR. OLIVER:  Sure.

		MR. SCHAYER:  So the first was that you had mentioned that some of the
unexpected consequences include detection of small non-calcified
pulmonary nodules or other abnormalities.  So I was just wondering, from
your practice, if you have any information on how often these are
detected and ultimately turn out to be unconcerning.

		DR. OLIVER:  It's my recollection that, in studies that have been
done -- the NIH study and other studies looking at low-dose chest CT
scanning to screen for lung cancer -- I think the prevalence of these
small calcified pulmonary nodules is around 6 percent.

		MR. SCHAYER:  Okay.  Okay, great.  Thanks, that's very helpful.  And
the other question.  I was just wondering if the Collegium, at all, has
examined any quantitative estimates of radiation risk from LD CAT
scanning for occupational populations.

		DR. OLIVER:  No.

		MR. SCHAYER:  No, okay.  Thank you very much.  That's all I had.

		MR. PERRY:  Yes, this is Bill Perry.  And Dr. Oliver, thank you so
much for coming today to testify and spending an afternoon with us. 
It's been very informative.  I have a few questions for you.

		The Collegium is recommending that OSHA include -- if I understand
this -- an equipment requirement for pulmonary function testing, that
the equipment be compliant with ATS and European standards, is that --
that's correct.  I heard that, right?

		DR. OLIVER:  Yes.  Yes, that is correct.

		MR. PERRY:  And as you know, we proposed a requirement that the
spirometry be conducted by NIOSH-trained technicians.  How often does it
happen or how common is it that a NIOSH-certified technician would be
using equipment that does not conform to those specifications?  Is that
very common?

		DR. OLIVER:  I would expect that it would be uncommon.

		MR. PERRY:  Okay.

		DR. OLIVER:  And so I think requiring a spirometry technician is --

		MR. PERRY:  Don't push your button.

		DR. OLIVER:  Oh.

		MR. PERRY:  That turns it off.

		DR. OLIVER:  Was a very good thing for OSHA to do.  But it could
happen that a NIOSH-certified spirometry technician is working with
equipment that doesn't meet these ATS/ERS criteria.  And if -- well, I
mean it could happen.  So that's our recommendation.  It's obviously a
decision that OSHA has to make.

		MR. PERRY:  Okay, which is fine.  I was just trying to get an idea of
how big a change this would be over what we proposed, and it sounds like
we're pretty close to being maybe where you would think we need to be
but just need to go that one little step further.

		DR. OLIVER:  I think probably not a big change.  I think you're right.
 I think --

		MR. PERRY:  Okay.

		DR. OLIVER:  -- a NIOSH-certified technician would most likely be
using standardized equipment.  On the other hand, the technician is not
the one who has control over what equipment is used.

		MR. PERRY:  A good point.  Thank you, I appreciate that.  Just a
clarification.  On page 7 of your written testimony, you say that --
this is in reference to low-dose CT scanning as a screen for lung
cancer.  And you say the Collegium recommends that such screening be
carried out, to the extent feasible, in experienced multi-specialty
institutions with the full understanding of the employee and active
participation of the PLHCP or a primary care physician.  So could you
talk a little bit about what is meant by experienced multi-specialty
institutions?

		DR. OLIVER:  Experienced multi-specialty institutions are hospitals
that have experienced radiologists, experienced pulmonary physicians,
experienced thoracic surgeons.  The studies that have been carried out,
looking at LDCT to screen for lung cancer, have been carried out by such
institutions.

		And this was one of the recommendations of the NIH following
completion of their study.  And I think it's a reasonable recommendation
because of the unintended consequences.  You know, you just want to make
sure that if somebody is found to have one or more non-calcified
pulmonary nodules that then need further evaluation, they're in good
hands for that further evaluation because the range of options is large
and some of those options don't always benefit the individual.

		An additional recommendation by other organizations looking at LDCT
screening is that, as I indicated in my testimony, it's important that
the individual employee have the option to discuss LDCT screening and
what it means, either with his or her primary care physician or with the
PLHCP.  You know, there needs to be a baseline physician involved in
this decision to undergo LDCT screening because most of the studies
indicate that it significantly reduces morbidity and mortality from lung
cancer.  But there are other issues that need to be considered when
someone makes the decision to go forward to LDCT screening.

		MR. PERRY:  Okay, thank you.  Very good.  Let's see.  You
mentioned -- and I think this might have been in response to a
question -- that you do work with construction workers who are exposed
to crystalline silica on the job.

		DR. OLIVER:  Yes.

		MR. PERRY:  Is it very often or very common that you see meaningful
declines in pulmonary function, even absent radiographic evidence of
silicosis?

		DR. OLIVER:  Yes, yes.

		MR. PERRY:  Okay.  So if there are criteria for medical removal based
on these declines in pulmonary function, is it important to know exactly
what the etiology of that pulmonary function decline is?  Or is medical
removal necessary even if the etiology is uncertain?

		DR. OLIVER:  I think it's important to understand what the etiology
is, to the best of one's ability to do so.  It's a little hard to answer
that question in the abstract, but I think it's important to understand
what's going on, because maybe there's a decline in lung function due to
some temporary lung condition that will then get better.

		MR. PERRY:  Okay.

		DR. OLIVER:  And so then the question is, well, maybe you need medical
removal and then the question is for how long.  And that depends on --
it does depend on what the etiology is.  So yes, I think it is important
to understand that.

		MR. PERRY:  Okay.

		DR. OLIVER:  And I presume that's the basis for the provision in the
proposed standard for referral to a pulmonary physician.

		MR. PERRY:  Yes, in part.  And I suppose I was thinking more if it
appears that the pulmonary function decrement is more of a chronic
condition that is not -- one can rule out that it's temporary in the
sense that's due to lung infection or that kind of cause.  But whether
there would be a smoking history, exposure to other dusts, I mean, is it
important to know that the pulmonary function, in fact, is attributed to
the silica exposure, specifically?

		DR. OLIVER:  I think not necessarily, because if a person has
declining lung function from whatever cause, it probably is not a good
idea for that person to continue to be exposed to any vapors, gases,
dusts, and fumes, whether it's an obstructive defect or whether it's a
restrictive defect.

		And we understand a lot more now about airways disease, including COPD
and asthma, and its relationship to workplace exposures, through this
broad category of vapors, gases, dust, and fumes, than we did 10 years
ago.  And data demonstrate that there is an association between
workplace exposure and COPD.  Twenty years ago that was a lot less well
understood.

		MR. PERRY:  Okay, very good.  That's a helpful answer, thank you.  I
think I just have one more question.  Well, actually two, one real
simple one.  You cite, in your written submission, about a dozen or 20
or so references.  Do you know if you've provided those to the record? 
Were those submitted with the written testimony or --

		DR. OLIVER:  No, but I would be happy to provide them.

		MR. PERRY:  Okay.  Yes, we would ask that.  There were certainly --
particularly updated studies on your list that I'm not completely
positive are in our record now, so that would be helpful.

		DR. OLIVER:  Okay, sure.  And as I was preparing for this testimony
today, I came across a couple of others, so I'll include all of them.

		MR. PERRY:  I would invite you to do that, absolutely.  Thank you.

		You mentioned a study by Hnizdo from a couple of years ago, that she
demonstrated that excessive declines in pulmonary function can be
detected or usually detected after the fourth or fifth round of testing.
 So if I understand, if one is conducting PFTs on an annual basis, then
you'll catch that in four or five years as opposed to, as you point out,
a dozen or more years before you see it.  Could you explain how that
works?

		DR. OLIVER:  Well, actually what her study showed was that increased
frequency of testing and the quality of the spirometry itself were
important to obtaining data that were robust enough to predict future
decline in lung function.  And what they found based on their study was
that after the fourth or fifth year of follow-up, the data appear to be
sufficiently robust that they could predict a future decline in lung
function.

		Now, in some of these people, obviously there was some decline in lung
function that was detected during the course of the follow-up.  But the
principal value, as I understood it, from this study was its usefulness
in predicting future excessive decline in lung function.

		MR. PERRY:  Okay, all right.  That explains it quite well and I
appreciate that.  That's all I have.

		Ms. Lindberg.

		MS. LINDBERG:  Hi, Dr. Oliver.

		DR. OLIVER:  Hi.

		MS. LINDBERG:  Kristen Lindberg from the Office of the Solicitor.  I
just had one question.

		In your written comments, you recommend that it's only in the presence
of medical removal protection provisions that information regarding
workplace limitations should be provided to an employer from the
healthcare provider.

		How would this recommendation change in the context of the proposal as
it's written, which doesn't provide for medical removal protection? 
Would you then recommend that absolutely no information be conveyed from
the healthcare provider to the employer?

		DR. OLIVER:  I realize, from a practical point of view, that would be
very difficult to do.  I think it potentially is placing a worker at
risk.  And in order to -- so obviously MRP protects that worker and
makes him or her more willing to participate in medical surveillance.

		But I also understand the other side of the coin, that employers --
if an individual cannot wear a respirator and therefore is unable to
work in a silica exposure area, I think the employer needs to know that.

		But from the worker's point of view, it's better just not to
participate and better not to have lung function testing and better not
to find out than to lose his or her job.

		So it's a difficult question.  And so I think my answer would be, in
the absence of medical removal protection, it's better -- probably
better not to give that information over to the employer.

		MS. LINDBERG:  Okay, thank you.

		MR. PERRY:  That's all the questions we have, Your Honor.

		And, again, Dr. Oliver, thank you very much for appearing today.

		DR. OLIVER:  Thank you.

		JUDGE PURCELL:  Yes.  Thank you very much, Dr. Oliver.

		Next on the agenda is HalenHardy, LLC.  I know Mr. Beaver is here. 
Mr. Beaver, any companions with you?

		MR. BEAVER:  No.

		JUDGE PURCELL:  Okay, so you're it.

		MR. BEAVER:  These are all my friends.

		JUDGE PURCELL:  Okay, if you'll come up.  Let me ask you, do you have
a written copy of your testimony that you want to submit?

		MR. BEAVER:  I don't know if we've already provided it, but I can
afterwards.

		JUDGE PURCELL:  That's fine.

		MR. BEAVER:  Pretty much my statement adheres to what we already sent
in.

		JUDGE PURCELL:  And are you going to be using any kind of PowerPoint?

		MR. BEAVER:  Yeah.

		JUDGE PURCELL:  Okay.

		MR. BEAVER:  I'll bring that up.

		JUDGE PURCELL:  And if you have a written copy of that -- a printed
copy, rather, I'll mark that as an exhibit and ask you, when you go
through it, if you will, just for the record, make sure you are
describing what's on the screen at any given time.  Thank you.

		Mr. Beaver, I was just handed -- I think it's a flash drive with a
video on it.  Would you describe for the record what that is?

		MR. BEAVER:  Yes.  The flash drive has a copy of the one-minute video
that we're going to be playing, showing a downdraft booth air shower in
operation.

		JUDGE PURCELL:  Okay.  And I'll mark that as Hearing Exhibit 140, and
that will be admitted into evidence, as well.

(Whereupon, the object referred to as Hearing Exhibit 140 was marked and
received in evidence.)

		MR. BEAVER:  Thank you, thank you.  Well, thanks so much for allowing
us to testify.  I've learned a lot so far today.  I didn't know there
was a Chuck Gordon rule, so I actually had to go into the men's room and
close a stall door and check my clothes.

		My shirt and jacket are from Canada.  My watch is from Switzerland,
and my pants are from Honduras.  My shoes are an unknown source.  My
jockey shorts are made in Costa Rica, and the socks are made in North
Carolina.  My silk tie is made in Boulder, Colorado, and I can introduce
the tie as an exhibit, but my wife would kill me.

		JUDGE PURCELL:  I don't think that's necessary.

		MR. BEAVER:  Okay.

		JUDGE PURCELL:  Thank you.

		MR. BEAVER:  So I now know the Chuck Gordon rule.

		But thanks for allowing us to testify.  My name is Don Beaver, and I'm
CEO of HalenHardy, LLC.  And regrettably I was the backup, and Bob
Glenn, who many of you know, our chief scientist, could not attend.  He
actually appeared here in the first week of testimony on behalf of the
brick association and he went to his son's house, fell down the steps,
slip, trip, and fall, and broke his leg.  He's in surgery as we speak. 
It took him that long to get scheduled for plates.

		So Bob offers his regrets that he couldn't be here, and he especially
offers his regrets that I'm doing this instead of him.

		But with your indulgence, I'm going to read the testimony, which
generally follows our comment letter.  And that was dated on February
11th.  And then I'll be happy to respond to any questions you may have.

		Let me briefly describe HalenHardy's business.  We provide products
and services that help protect industrial workers from dangerous dust,
including respirable crystalline silica.  I'm going to refer to it as
RCS from here on out because I say it too many times.

		Our silicosis prevention advisors division provides consulting
services, including development of silicosis prevention programs; and
our equipment division, we address the need for worker clothing -- to
clean working clothing contaminated with RCS.

		We address that particular need with the downdraft booth that we call
MASH.  MASH is an acronym for mobile air shower by HalenHardy.  And as
you know, air showers have been used in various industries for quite
some time, back to the early 1950s, to the best of our knowledge.  And
our MASH unit is not only effective in cleaning worker clothing, but it
doesn't use compressed air.  And it was designed, rather than being
stationary, to be fully mobile.  That was our original mission with
this, was to eliminate compressed air and to be fully mobile.

		And the main reason is, we were called into action with our customers
in the hydraulic fracturing industry -- and they move every few
weeks -- and so we anchored to that challenge.  We soon discovered that
what we knew was true about construction, too, is they're always on the
move.  However, we designed it so it could be placed permanently, too,
and stationary, if you wish.

		And I'd like to show you a short 60-second video that demonstrates the
effectiveness of the MASH unit in removing dust from clothing.  And it
also will show you a time-lapse video of the standard method using a
HEPA vacuum cleaner.  We actually have two guys doing the process
because it's almost impossible to get your back by yourself if you're
using a HEPA vacuum -- and a lot of the dust resides on your shoulders
and back -- and so it can be resuspended easily.

		So we're showing two guys in the vacuuming side of the video and then
the air shower, side by side.

		So this is a worker entering the booth, pressing the button, and the
air is coming out.  You can see the dust blowing off.  This is happening
in about 12 seconds.  And then it goes through a HEPA filter and in
literally 20 seconds he's done.

		And so this is the time-lapse photography showing a MASH mobile air
shower on the left and two guys trying to get vacuumed off on the right
and the number of workers going through the cycle.  And what you'll see
is, in the time it takes both the workers to get done -- and this is
trying to be thorough.  We recognize that most people, especially most
guys on construction jobs, aren't thorough.

		But nonetheless, if we're going to follow the spirit of the idea that
perhaps contaminated clothing is a challenge, it's important that we
show the thorough ways of doing it based on the current recommendations.

		We understand that there are concerns from members of industry about
the overall cost of compliance with the OSHA proposal.  And as
demonstrated in the video, MASH can clean workers' contaminated clothing
in about 20 seconds.  We say less than 30, but it's about 20 seconds.

		So this can result in substantial time savings and increased worker
productivity.  And employers should actually experience a reduction in
overall costs using MASH for cleaning contaminated clothing versus HEPA
vacuuming, if they're doing the HEPA vacuuming correctly.  And we'll
talk a little bit more about that.

		But before getting any further into our testimony, let me briefly tell
you about who the key folks are in our business.

		HalenHardy's chief scientist, Bob Glenn, has spent more than 40 years
practicing in industrial hygiene, specializing in occupational lung
diseases and health effects of mineral dust exposure.  You probably know
Bob, and he testified earlier.  He served as director of the division of
respiratory diseases at NIOSH.  He also was president and CEO of the
National Industrial Sand Association.

		And while he was with NISA, Bob and the industrial sand industry
developed a silicosis prevention program that led to major reductions in
silicosis in the sand mining industry.  And this prevention program has
been well documented and recognized by OSHA, MSHA, and NIOSH as a very
successful industry intervention program.

		I, on the other hand, spent my career cleaning up crappy situations. 
My industrial cleaning teams worked with high levels of exposure to
hazardous dust beginning in the '70s, and it includes silica, asbestos,
lead, cadmium, bismuth, hex-chrome.  You name it, we cleaned it up,
crawling around on crane rails to get it clean, so the crane electricity
wouldn't arc.

		But while working in these environments -- I live in a small town and
most of the folks I work for, I go to ballgames with their husbands and
have to deliver them home safe and sound and there's nowhere to hide. 
So your employees are your friends and their wives are your wife's
friends.

		So we really took the hazards associated with our work very seriously.
 As it turns out, starting in the '80s, I shifted from being in the
cleaning business to developing effective tools to make my guys' jobs
easier, and it just turned out, a lot of other people wanted to buy it,
too.  So we've spent, since the early '80s, addressing worker health,
safety, and environmental concerns in every area, from spill cleanup to
this dust area.

		First and foremost, our testimony derives from that deep knowledge of
our team on dangerous dust and including respirable crystalline silica. 
We also spent a considerable amount of time reviewing the existing OSHA
standards for the following hazardous dust: lead, asbestos, cadmium,
inorganic arsenic, and hex-chrome.  We looked at the provisions in those
standards that we thought would be applicable to and enhance the
protection of workers against RCS.

		Further, our testimony is based on various studies, including those
referenced in the three documents that I enclosed on the February 11th
comment letter.  And while our comment letter contains cites to these
studies where applicable, given the time limitations today, I'm
generally going to go discuss them in our testimony rather than
specifically.  But it's available.  You already have it and if you need
more, let me know.

		NIOSH, first of all, has made a substantial contribution to our
understanding of the health hazards associated with RCS.  They conducted
a study whereby it concluded that worker clothing is one of the eight
primary sources of RCS in hydraulic fracturing.

		They started out with seven.  And then 

Eric Esswein, as we've discussed, as he started to progress -- I
mentioned the fact that I thought clothing would be a problem and that
we were able to find the Cicala study that pointed out that in the
mining industry it was indeed a problem.  So they added the eighth about
a year after they published the first seven for hydraulic fracturing.

		And as you know, inhalation is a primary route for harmful exposure to
RCS.  The problem is that dust from clothing can cause an exposure
hazard due to the resuspension of the dust into the air.

		The primary objective of the OSHA proposal is to reduce the average
amount of RCS that a worker is exposed to over the course of an
eight-hour day.  And whether you pick 50 µg or 25 µg, the objective is
to reduce it from where it is now.  And it will be accomplished, as
we've heard, by a whole lot of different methodologies, from just good
occupational health programs and engineering controls and administrative
controls, and perhaps the use of respirators and other protections for
the workers who are exposed.

		What is not generally understood or recognized is that according to
the Bureau of Mines study, which is now part of NIOSH -- cited in our
comment letter -- bagging machine operators in silica mining can
experience a tenfold increase in dust exposure over the workday when
they're exposed to resuspended crystalline silica on their contaminated
clothing.  The reason for this is that the resuspension of RCS often
occurs in the worker's breathing zone.

		And Chuck did a great job of describing it, but watch somebody taking
a respirator off sometime.  With a 90 percent reliability, it happens
the same way all the time.  It drops down usually near a shoulder or
right in front.  Every once in a while they'll spin it around backwards,
but most of the time it drops down here.  The second thing they do is
this, and the lightest weight stuff goes up into that 12-inch breathing
zone.  I found myself doing it baling hay last summer.  I took the
respirator off and did the same thing.

		So we call it the drop-and-slap method, and as Chuck pointed out, the
inside of the respirator is now contaminated, too, and then you put it
back on.

		If clothing contaminated with RCS is not effectively cleaned, the
increased exposure -- according to NIOSH, up to tenfold -- can
constitute a large percentage of the cumulative amount of RCS that a
worker can be exposed to during the work shift.  In fact, some of the
exposure levels in the study, which is included, would say that in the
course of a day you can get a week's worth of overexposure if you're not
careful.

		So in cases where contaminated clothing are not dealt with correctly,
it's highly likely that the combination of contaminated clothing,
together with the worker's other exposures during the work shift, will
cause the average exposure to exceed not only the current PEL but
especially any one of the new PEL proposals.  The effect of failing to
correctly deal with contaminated clothing can undermine other control
measures to reduce workers' exposure to RCS.

		Given the critical importance of dealing correctly with contaminated
clothing, I'd like to wind up with three key points.

		First, the words "grossly" or "excessive" should be eliminated as
qualifiers of the level of contamination.  And here's why:  The words
"grossly" and "excessive" should be eliminated because, given up to a
tenfold increase in exposure from contaminated clothing, it must be
addressed under any circumstances.

		Please note that the studies cited in our comment letter do not
distinguish among levels of clothing contamination.

		The second reason why the words "grossly" or "excessive" should be
eliminated is that they appear under the regulated area and access
control section.  Inherent in the definition of the regulated area or
access control is the fact that the employee's exposure to RCS exceeds
or can reasonably be expected to exceed the PEL.  So by the very
definition, you're working in an area where there's stuff floating
around and getting on your clothes.  Levels of silica dust in excess of
PEL are already deemed dangerous to worker health.  Thus, workers should
be required to clean their clothing upon exiting these areas.

		And the third reason why "grossly" and "excessive" should be
eliminated is they are ambiguous.  There's no definition of "grossly" or
"excessive" contained anywhere in the proposal and the use of these
words creates a loophole in the proposal.  Employers can avoid requiring
workers to clean their clothing by taking the position that contaminated
levels were not gross or excessive, thereby shifting the burden for OSHA
to prove otherwise.

		So that's our first point.  Our second point is that cleaning of
worker clothing -- is that the OSHA proposal should specify vacuuming
and a downdraft booth air shower for cleaning worker clothing.

		When it comes to cleaning contaminated clothing, the proposal simply
requires employers to use "Any other means to remove excessive silica
dust from contaminated clothing that minimizes employee exposure to
RCS," and employers must ensure that such clothing is cleaned upon
exiting the regulated area and before respiratory protection is removed.

		We don't believe that that language is sufficient and will basically
be inadequate for protecting workers.

		In addition to the addition of specific dust removal methods in the
proposal, such as requiring the use of a HEPA filter downdraft booth or
HEPA vacuuming, would help ensure that workers do not exit regulated
areas or access control zones with potentially dangerous amounts of RCS
on their clothing.

		The existing OSHA standards for five other hazardous dusts -- lead,
asbestos, cadmium, inorganic arsenic, and hex-chrome -- all specify
means for dust removal of worker clothing.

		In fact, OSHA's lead standard specifically lists vacuuming and
downdraft booths as suggested means for lead dust removal.  So we
believe that OSHA's approach on lead is correct and should be adopted
when it comes to RCS.

		Third is on the cleaning of worker clothing.  The OSHA proposal should
go on to prohibit dangerous means of dust removal from clothing.  It's
important to prohibit the types of cleaning that are very dangerous to
workers, such as blowing it off.  We actually saw guys using leaf
blowers on a frack site to blow each other off while a guy was standing
right behind them without his respirator on.  We weren't allowed to take
pictures.

		These methods resuspend the silica dust back into the air and they're
currently used on a daily basis around both the construction industry
and the fracking industry, that we're familiar with.

		OSHA's standards for other hazardous dust -- lead, asbestos, arsenic,
cadmium, hex-chrome -- currently contain similar language.

		And then I just have a little parenthetical here.  Please note that
OSHA regulations already provide that compressed air shall not be used
for cleaning purposes, except where reduced to less than 30 psi, which,
with compressed air is problematic, because who measures it?  How do you
know that for sure?  And only then with chip guarding.

		We wondered what chip guarding was and we looked into it and we
realized that compressed air mostly goes through black iron piping.  And
in the process of doing it, the moisture in the air starts to rust the
inside of the pipes, which creates little rust chips which could go into
your eye.  So that's what chip guarding was meant to do.  And you should
wear your personal protective equipment.

		So compressed air, other than being totally regulated under 30 psi --
and we'd submit that the intention of that wasn't to blow it off in an
open environment.  You should be somewhere where you're isolated when
doing that.

		Having addressed the cleaning of contaminated work clothing, I have
just one more item to add, which is the warning signage around the
regulated areas and access control zones.

		We believe that employers should be required to prominently post
specific signage around regulated areas and access control zones that
warn of the health hazards of respirable crystalline silica.  I won't
repeat the words.  We really aren't specifying any particular words as
much.

		But given the serious risks associated with RCS which are going to be
addressed in Section (i) of the OSHA proposal -- the section is
entitled "Communication of Respirable Crystalline Silica Hazards to
Employees" -- workers should be reminded of the hazards when they enter
the regulated area and access control zones.

		The merits of this suggestion are supported by OSHA standards, again,
in lead, asbestos, cadmium, arsenic, all of which have sections
requiring employers to post specific signage warning of applicable
health hazards.

		And I would suggest that since RCS is in a highly mobile workforce --
over 80 percent of people with RCS exposure, according to the studies,
are in mobile industries.  They're moving all the time.  I would suggest
that -- Chuck used the word "stanchion," but some form of easy to move
barricade systems for demarcation, I think, would be a very helpful
thing.

		We counted in the comments on the docket at least nine different other
organizations that have said the same thing, urging OSHA to require
warning signage, as well.

		This concludes my testimony.  We did attach our written comment to
Exhibit 1, and this followed pretty darn closely.  We also sent in a
redline version of the OSHA proposal, setting forth how this language
might be incorporated.

		I appreciate very much your time today and I'm ready to entertain any
questions.

		JUDGE PURCELL:  Thank you very much, 

Mr. Beaver.

		Let me see a show of hands in the audience, people with questions. 
One.  Mr. Gordon.  Let me know ahead of time if it has to do with
clothing.

		MR. GORDON:  Yes.  Mr. Beaver, how much --

		JUDGE PURCELL:  Please identify yourself for the record.

		MR. GORDON:  Oh.  Chuck Gordon, just representing myself.

		Mr. Beaver, how much do your portable booths cost, approximately?

		MR. BEAVER:  Our preliminary studies have it down to -- basically,
we've entered into exclusive agreements with certain customers, so we're
not at liberty to share the exact numbers.  But it works out to
somewhere around -- between $1 and $4 a worker a day, based on an
eight-hour shift, to deploy it for 20 or more workers on a job site.

		MR. GORDON:  Oh, you rent them out; is that right?

		MR. BEAVER:  Right, sort of like a Porta-Potty on steroids.

		(Laughter.)

		MR. GORDON:  Now, the construction industry is very large, so if
medium-sized employers wanted to purchase it, would you be in a position
to manufacturer them?

		MR. BEAVER:  We are, we are.  You know, we've been manufacturers for
the last 30 years and have a good team on the lean side of things.

		MR. GORDON:  I think the OSHA economists would like to know some rough
idea, if they include your requirement, a rough figure of how much this
would cost an employer.

		MR. BEAVER:  We're currently conducting two sets of studies, one with
Dr. Jeremy Slagely at the Indiana University of Pennsylvania.  He came
out of the hex-chrome program as a lieutenant colonel in the Air Force,
and he's doing studies right now that really is nailing that number
down.  And then Dr. Jose Palacios, an aeronautical engineer Ph.D. at
Penn State.  So we're really nailing those numbers down as we speak.

		MR. GORDON:  Okay.  If you get them before the close of the comment
period, it would probably be helpful to OSHA if you would submit them.

		Secondly, what about worker acceptance of air showers as opposed to
vacuuming at the end of a shift, how does it compare?

		MR. BEAVER:  Excuse me just a second, I'll write down what you just
said.

		The comparison of workers' acceptance so far has been extremely high,
because -- I'm not sure if it's a novelty factor, the fact that it just
works, but it takes seconds and it's very simple.  So we're seeing
almost instant acceptance.

		Where we're seeing pushback is at the employer level.  The employers
are saying, if I put this in, I'm admitting I have a problem and we're
going to go to work on the engineering controls and we're going to wait
until the RCS standards are done.  We're going to wait until somebody
tells us we have to do this.

		So actually, employees love it.  If you pull up to a frack hotel where
workers come out of a job van, 15 of them pour out and they've all be
sitting on their respirators, bouncing down the road in Texas.  They
come out of the frack hotel, they jump right in one of these because it
cools them instantly while it cleans them off.  And so workers like it.

		MR. GORDON:  Thank you very much.

		MR. BEAVER:  Thank you.

		JUDGE PURCELL:  Thank you, Mr. Gordon.

		Any further questions from the audience?

		Ms. Nadeau.

		MS. NADEAU:  Liz Nadeau, International Union of Operating Engineers.

		When you had the booths up and then you compared it to the shower, you
said that it was 20 seconds to go through the booth, and I guess you had
18 people go through the showers?

		MR. BEAVER:  Well, it took two guys to vacuum off thoroughly.  It's
like a 9:1 ratio.

		MS. NADEAU:  So how much time actually is it to go through a shower
thoroughly?

		MR. BEAVER:  The air shower, thoroughly, is about 20 seconds.  The
vacuum is nine times that much, so 180 seconds.  About three minutes to
go through the vacuuming process where you get your front and then
somebody gets your back and then they turn around and you get their
back.

		MS. NADEAU:  And how many times during the course of a day does an
employee need to have his or her clothes cleaned?

		MR. BEAVER:  Well, it depends on the level of exposure.  But the
biggest challenge that we see is the current practices.  Whether it's
abrasive blasting of lead paint on bridges, whether it's the frack
industry, whether it's construction, most people aren't doing it the
currently accepted right way without the vacuuming.  They're basically
taking their mask off.  If they're real dusty up here, they're dropping
their -- if they have a work coverall, they're dropping the work
coverall, tying it around their waist if it's a hot day, which billows
more stuff in their face.

		So it's really hard to get a comparative of how many times people are
doing it or should do it.  Our recommendation is, since it takes less
than 30 seconds, why not do it every time you take a break?  You know, a
midmorning break, a noon break, a mid-afternoon break, and end of shift.
 It's really less than two minutes a day.

		MS. NADEAU:  So you're talking about four or five times a day?

		MR. BEAVER:  Yeah, four or five times.  In the fracking industry it
might be -- they're working 12-hour days, you know, 14 days on and 7
off.  So in that industry, they might go through five or six times a
day.

		MS. NADEAU:  So, potentially, it could be 15 minutes per day per
employee, in terms of time saved as compared to --

		MR. BEAVER:  Right, that's a very good -- about a quarter-hour a day
saved.

		MS. NADEAU:  Thank you.

		MR. BEAVER:  You're welcome.

		JUDGE PURCELL:  Thank you, Ms. Nadeau.

		Any further questions from the audience?

		(No response.)

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

		MR. PERRY:  Yes, thank you.  This is 

Bill Perry.

		Mr. Beaver, thank you very much for appearing today.  This is very
interesting.  We do have some questions for you, starting with
Dr. Coble.

		DR. COBLE:  Yes, good afternoon.

		MR. BEAVER:  How are you?

		DR. COBLE:  Thank you very much for coming here today.  And we're very
interested in your technology there.

		Have you seen these in operation at a construction site?  Have you
sold these to construction --

		MR. BEAVER:  You know, currently, we started totally focused on
fracturing --

		DR. COBLE:  Yeah.

		MR. BEAVER:  -- on the hydraulic fracturing.  And because of a little
slower adoption than we wanted, we joined ABC and we started working
with their large contractors, many of whom also own quarries, so they
were aware of the fact, as highway builders and handling lots of
concrete and sand and gravel.  So we've had it out on probably 30
different job sites around -- between fracturing and construction. 
Just now at this point --

		DR. COBLE:  Just fracturing and construction, then?

		MR. BEAVER:  Yeah, yeah.  So construction.  In construction the
highest use right now seems to be around blasting lead paint off of iron
and steel bridges.  And we happen to live in the state with the most
iron and steel bridges, Pennsylvania.  In the world, actually.  And of
course, Pittsburgh Steelers.  So we're finding a lot of adoption at the
end of the spectrum.

		DR. COBLE:  Um-hum.

		MR. BEAVER:  More so than the sand folks right now.

		DR. COBLE:  And we've had some testimony this week that reflect your
comments regarding confusion on what constitutes contaminated clothing.

		MR. BEAVER:  Right.

		DR. COBLE:  And we, in the preamble summex (ph.), tried to provide
some guidance.

		MR. BEAVER:  Right.

		DR. COBLE:  You said there was no --

		MR. BEAVER:  Well, yeah.

		DR. COBLE:  -- definition in there, but I think we have tried to make
it clear that these provisions for contaminated clothing wouldn't apply
to any possible contamination.  In other words, just entering a
regulated area, if your clothes don't visibly get any dust on them, you
would not be expected to vacuum yourself off upon entering that area. 
Only if there was some substantial accumulation, such that there would
be release of dust moved around.

		MR. BEAVER:  Right.

		DR. COBLE:  Does that sound consistent with what you would expect
to --

		MR. BEAVER:  Well, not quite, because I wish I had brought my gallon
jar with frack sand in it and show you the Coanda or the light
refraction effect.  I can't remember the exact name of it.

		But essentially, you can shake the jar with a few ounces of sand in
it, which is a 20/40/100 mesh blend.  When you shake it up and hold it
up, no one in this room can see the dust until you turn a light on --
turn the lights off and put a flashlight through it and then you see the
suspended invisible stuff.

		So I would suspect it's the lightest stuff that hurts you and it's the
stuff you can't see that hurts you.  And it's just like pollen.  I would
liken it to pollen, in the size of the stuff.  So I think a visual
inspection is not a good standard, whatsoever.

		DR. COBLE:  So what would be?  If you're not going to go on visual
evidence, how would you determine whether clothing are contaminated?

		MR. BEAVER:  You set up your regulated area based on your
recommendations.  You enter that area and when you come out you get
cleaned.

		DR. COBLE:  Regardless of the duration?

		MR. BEAVER:  Regardless of the duration.

		DR. COBLE:  At construction sites a lot of workers get dirty and their
clothes are dirty all of the time.

		MR. BEAVER:  Um-hum.

		DR. COBLE:  And so how would that work in terms of whether you were
working on a highway crew that had a written access control plan?

		MR. BEAVER:  Right.

		DR. COBLE:  How are they supposed to know whether it's silica dust or
some other kind of dust?

		MR. BEAVER:  It's like a hard hat, almost.  You know, the more places
that you can assure that you're helping the workers be more comfortable
and get cleaned up, when they go grab a bite to eat, whether it's silica
or not, there's an advantage to showing your workers you care.  And to
treat it like a habitual thing is the best way to get adoption.  If you
start to segregate people -- and actually it will drive the cost down,
because the more people that use it, the lower cost per use.  So I would
say that when in doubt, take a 20-second shower.

		DR. COBLE:  Um-hum.  But there would have to be some sort of
significant risk in order to impose that requirement.

		MR. BEAVER:  Well, I think it goes back to the regulated area.  If you
work in a regulated area and you've determined that that's at an action
level, then you just assume that they should go through it.  If you work
outside the regulated area, don't worry about it.

		DR. COBLE:  Okay, that sounds reasonable.  You have a lot of
experience implementing dust controls.  I mean, you did it for a living
and you've cleaned up --

		MR. BEAVER:  Right.

		DR. COBLE:  -- hazardous dust.

		MR. BEAVER:  Right.

		DR. COBLE:  What's your overall feeling regarding the effectiveness of
engineering controls for short-term maintenance tasks?

		We've had a lot of testimony regarding flexibility.  You know, there's
the hierarchy where you would use all feasible controls.  But when
you're into a situation in which you are required to use respirators,
it's because the controls couldn't get you there.

		MR. BEAVER:  Right.

		DR. COBLE:  Has that been your experience, that you just can't get low
enough using controls?

		MR. BEAVER:  Yeah.  In the frack industry, the guy who is the belt
maintenance mechanic, the conveyer belt -- it's moving 40,000 pounds of
frack sand a minute.  When one of those belts break, just the spillage
alone, just to crawl underneath and start unbolting things, I mean, you
get grossly contaminated there.  Changing out filters in bag houses. 
Changing out seals on pneumatic hoses.

		There are series on frack sites where the maintenance folks will
always be exposed, in my opinion, because it's almost like grinding
equipment and stuff.  You can talk about it a lot, but there's still a
lot.  You know, there's always stuff at that point of impact and the
maintenance guys get the worst.

		DR. COBLE:  And what is a frack house?  You said bag house.

		MR. BEAVER:  I'm sorry.

		DR. COBLE:  No, no.  You said something about the workers coming out
of a frack hotel.

		MR. BEAVER:  Oh, a frack hotel.

		DR. COBLE:  Yeah, what is a frack hotel?

		MR. BEAVER:  Well, basically, they're cropping up in these oil boom
areas like around Canonsburg, Pennsylvania, where a group of investors
got together and said we're not going to cater to traveling salesmen,
we're not going to cater to oil and gas executives.  We're going to
cater to oil and gas workers.

		And so what they've done is they've dedicated two or three rooms on
the first floor for decontamination and laundry.  You know, basically,
before you walk in and traipse through their hotel, you can -- a locker
room -- so you can actually get changed and get showered, throw your
stuff in the laundry.  They have 24-hour food service in a Hampton Inn,
which is unheard of, but because of the way the shifts operate.  So they
call them frack hotels because they've grown up wherever oil and gas is
growing.

		DR. COBLE:  Thank you for that clarification.

		MR. BEAVER:  Sure.

		DR. COBLE:  That's it.

		MR. PERRY:  This is Bill Perry.

		Just one clarification, when you were talking before about your
recommendation for our regulatory language.  And I appreciate you
submitting the redline --

		MR. BEAVER:  Okay.

		MR. PERRY:  -- suggestions on our regulatory text.  You talked about
or recommended to us that we require vacuuming and use of a downdraft
booth.  But it's either/or, correct?

		MR. BEAVER:  And or.  Yes, either/or.  Yeah.

		MR. PERRY:  That's what I'm reading here.  I just wanted to make sure.

		MR. BEAVER:  That they carry an equal level of efficacy and then let
the employer decide which one provides a better value.

		MR. PERRY:  Certainly, okay.  All right, thank you.  I just wanted
to --

		MR. BEAVER:  Yeah.

		MR. PERRY:  -- clear that up for the record.

		MR. BEAVER:  Thank you.

		MR. KUCZURA:  Hello.  My name is 

Greg Kuczura.  I believe Chuck Gordon actually asked a couple of the
questions that I was going to and I just wanted to go over it real
quick.

		Is it currently that they're only for rent, the use of the showers?

		MR. BEAVER:  Currently, yes.  Yes, we wanted to control the
maintenance and use.  We wanted to study the filter cycle times.

		MR. KUCZURA:  So the maintenance, is that paid for with the rental fee
or --

		MR. BEAVER:  Right, right.  It's built in.

		MR. KUCZURA:  Okay.  So if you were to have a cost of the product when
you sell it, then you'd be able to give a percentage of the maintenance
each 

year --

		MR. BEAVER:  Right.

		MR. KUCZURA:  -- that it costs to run it?

		MR. BEAVER:  Right, right.

		MR. KUCZURA:  Okay, that would be a consideration that would be
helpful.

		MR. BEAVER:  Yeah.  And that's part of what we're working on with
Dr. Slagley at Indiana University of Pennsylvania.  This summer, one of
his master's students is doing a paper on just this whole idea of what's
the long-term cost of running this.

		MR. KUCZURA:  Okay.  Okay, great.  Yeah, that's my other question. 
Besides that, you mentioned that per worker it was -- you had a price
per worker?

		MR. BEAVER:  Yeah.  I mean right now, again, this is preliminarily. 
We're narrowing down on it.  But if you have about 20 workers going
through it four times a day, it works out to about four bucks a worker a
day.

		MR. KUCZURA:  Oh.

		MR. BEAVER:  If you had 50 workers, it's almost cut in half.  And if
you had 100 workers, it's a little less than a buck a day a worker.  And
that includes electricity you consume.  That includes filter changes.

		MR. KUCZURA:  Oh, it does include the filters?

		MR. BEAVER:  Yeah, that includes the filter changes, based on our
current knowledge of how often we have to change the filters, based on
about an ounce of dust on each worker going through the process.

		MR. KUCZURA:  Okay, thank you very much.

		MR. BEAVER:  You're welcome.

		MS. LINDBERG:  Hi, Mr. Beaver.

		MR. BEAVER:  Hi, Kris.

		MS. LINDBERG:  Just a couple of questions from me.  Have you done
exposure monitoring to evaluate the levels of silica exposure that are
caused by contaminated clothing?

		MR. BEAVER:  We're relying on the NIOSH study that was done in --
it's attached to our comments.  Dr. Slagley.  That's what he is doing
right now.  So we're comparing not doing anything, vacuuming, and using
an air shower.  And he's doing it with the Air Force, in conjunction
with the hexavalent chromium study.

		But we're able to -- based on the amount of dust and the size of the
particles, we're able to draw some pretty decent conclusions about a
full range of respirable dust.  So we'll have that done this summer.

		MS. LINDBERG:  Okay.  And that should have some information about
silica in it?

		MR. BEAVER:  Yes, yes.  We think that one challenge with the NIOSH
study was they took a pair of work overalls, cotton and polyester work
overalls, and they smeared it with limestone dust and then they weighed
it, and then put it through an air shower and a vacuum system and they
weighed it again.

		Well, the weight of the actual garment was so great compared to this
almost weightless dust that it didn't provide the kind of data that we
feel would be reliable.  So we're doing it.  We're literally counting
particles and measuring it the whole way through, independent of the
weight of the clothing.  So we should be able to provide some really
strong data by the end of summer.

		MS. LINDBERG:  Okay, thank you.  And then just one more.  Does your
company do, or have access to, exposure monitoring data for silica, sort
of generally?

		MR. BEAVER:  Well, Bob Glenn has been involved in doing this for 40
years and we currently are engaged with a number of companies on a
proprietary basis, helping them monitor.  But there's a database being
built and if Bob were here he could speak to it.  API, I believe, is
building a big database.  And the granite folks, perhaps.  And I'm not
sure about NISA.

		But there's a mass -- the National STEPS Network, Rick Ingram at BP,
and the fracking industry, they've been trying to get everybody to put
the data into a blind pool, and it's sponsored by API.  You have to be
an oil and gas producer or a frack company to participate, which we're
not.  Only participants get to see the data.  But for the good of the
order, you know, that would be a good resource because they've been
accumulating it since late last summer.

		MS. LINDBERG:  Okay, I think API is testifying tomorrow.

		MR. BEAVER:  Okay.

		MS. LINDBERG:  So maybe we can ask them.

		MR. BEAVER:  Yeah, I would ask them about -- it's the National STEPS,
S-T-E-P-S, Network.

		MS. LINDBERG:  Okay, thanks a lot.

		MR. BEAVER:  Surely.

		MR. PERRY:  Yes.  In fact, OSHA does participate with that
organization, too.

		MR. BEAVER:  On the standout.

		MR. PERRY:  The steps, yeah.

		MR. BEAVER:  Right.

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

		And thank you again, Mr. Beaver, for appearing this afternoon.

		MR. BEAVER:  Thanks for having me.

		JUDGE PURCELL:  Thank you, Mr. Beaver.

		Next on the agenda is John Schweitzer from the American Composite
Manufacturers Association.

You're representing the American Composite Manufacturers Association.

		Mr. Schweitzer, you gave me a copy of your testimony before we
started.  I've marked that as Hearing Exhibit 141, and I'll admit that
into the record.

(Whereupon, the document referred to as Hearing Exhibit 141 was marked
and received in evidence.)

		MR. SCHWEITZER:  Thank you, Your Honor.  I am John Schweitzer, Vice
President of Government Affairs of the American Composite Manufacturers
Association.  ACMA and its members very much appreciate this and other
opportunities to work with OSHA to improve workplace health and safety
in our industry.

		Compared to the previous two speakers, my presentation is very light
on data and long on policy, but mercifully, it's a short presentation. 
So don't get too upset.

		ACMA precipitated formal comments to the docket for the respirable
crystalline silica or silica rule back in September.  And I'm going to
take this opportunity to highlight a few of the critical issues we
identified in the formal comments, and briefly describe a composites
industry initiative that we hope will help our industry's many small
companies affordably provide effective protection for their employees.

		The first concern I'd like to address is the proposed exposure limit
and that the proposed exposure limit and action level appear to be near
or below the limit of detection for the analytical procedure.

		If the objective is worker health protection and not just compliance,
it concerns us that it may take several exposure tests to determine with
a reasonable level of confidence that actual exposures are below the 50
µg/m3 work level that meets OSHA's reasonable risk level without having
to take further control or protective action.

		For the many small businesses manufacturing, in my industry, highly
silica-filled polymer products such as utility vaults and engineered
stones, there's often only one employee in the company who is
potentially exposed to silica.  This is the employee who takes the bags
of sand and pours them into the mixing vessel, and at that point liquid
resin is added in.  And until there's -- you know, often that's the
only silica exposure in the plant and there's one employee.

		So the proposal talks about having an industrial hygienist come in and
do five tests at once.  That often is not going to be the case here. 
We've got one employee.

		So compared with the uncertainty in the exposure testing and the fact
that the small businesses may only have one employee who's exposed, this
can be an expensive and uncertain proposition for business owners.

		Our second concern today is the proposed requirement to install
engineering controls.  OSHA's approach, as everybody knows, would allow
employers to have employees use respirators to meet the PEL only when
engineering controls have been shown to be infeasible.

		For small business owners, however, the design and installation of
effective control equipment can itself be, again, a very uncertain and
expensive proposition.  These are companies without in-house engineering
staffs and without the resources or even the knowledge necessary to find
and hire a qualified engineer with experience in designing ventilation
systems.  I'm talking here about the exposures where wet cutting or
something else isn't going to do it and where ventilation will be
required as the best option.

		In fact, regulatory requirements for ventilation are often translated
into installed equipment by local HVAC contractors.  These are not folks
typically, in our experience, who are good at getting dust out of the
air.  That's simply not what they do.  And often this installed
equipment proves either to be ineffective in reaching the target level
or, frankly, is a much bigger, more powerful system than they need.

		And so not only is the upfront cost higher, but it draws a lot more
air into the device and out of the plant, meaning that the electricity
costs are higher and the heating cost for the makeup air during the
winter is higher as well.  So this is a risky business for small
business owners.

		So these employers who find themselves with test results indicating
exposures above the PEL may have no certain path to compliance.  The
employer may have no choice but to install a ventilation system and hope
subsequent silica exposure tests show it to be effective in achieving
the PEL.

		In these cases we suggest that the effectiveness and reliability of
respiratory control may be superior.  OSHA's proposed approach, as I
mentioned, would allow respirators if engineering control can be shown
to be infeasible.  But at what point does the employer attempt to show
lack of feasibility, and how would they do this?

		In our view, we're concerned that the proposed exposure test --
install control, exposure test again, maybe install more control,
exposure test again, et cetera -- approach may be, just from the outset
and by definition, infeasible or certainly stress the feasibility for
smaller companies.

		And if you'll forgive a brief aside here, we recall OSHA's recent
proposal to modify its enforcement policy for noise hazards, which
again, in our view, would have established a similar highly uncertain
feasibility test before employers could use personal protective
equipment instead of engineering controls.

		Now, on a different hazard, one of my member companies reported to me
recently having to spend $100,000 for a ventilation system for a
temporary field construction project because OSHA would not allow the
use of respirators to meet the PEL for the volatile organic compounds in
use at his site.

		At the same time many of our companies with longstanding requirements
for all employees in process areas to use respirators report that they
are reliable and effective in protecting workers against excessive
exposures.  For small business, OSHA's implementation of its hierarchy
of control policy seems highly unreasonable and, frankly, often lessens
the willingness of employers to work with OSHA on the shared objective
of protecting employee health and safety.

		And I would like to suggest that, apart from its silica rulemaking,
the Agency consider an effort to work with stakeholders to reassess this
feasibility of control issue and how it's implemented.  And we would
certainly be very willing to participate in that.

		But despite these and other concerns, our industry wants to provide a
constructive response to the potential for silica exposures to impact
the health of our employees.

		Consequently, ACMA has just begun to develop what we call a silica
toolkit that our smaller composites manufacturers can use to affordably
and reliably provide the appropriate workplace protections and hopefully
comply with the final OSHA requirements.  We are now reviewing the
limited silica exposure data already that we have in our industry, and
it is very limited.  And through the balance of this year we're going to
conduct a number of worst-case exposure tests at typical composites
plants.

		So the fellow that I described emptying the bags of sand into the
mixer will inquire to the plant owner -- you know, what if you were
running all out?  How many bags will you do a day -- and try to
replicate the highest exposure and make sure that we know what those
exposure results are.

		The results of our first round of tests will reveal any hotspots for
silica exposure among our typical operations, and we will conduct
additional exposure tests at these sites using control options that we
have come to believe should be affordable and effective, such as wet
cutting of cultured stone slabs or ventilation control where that
appears to be the best option.  We're going to provide OSHA with
frequent updates on our test program and all of the resulting test
reports from the IH consultants and the resulting analysis by our
engineer.

		We anticipate or we are planning that the completed toolkit will
contain exposure factors that our smaller companies will be able to use
as objective data, as allowed under OSHA's proposed approach, to prepare
reliably conservative exposure estimates, thereby avoiding expensive and
uncertain exposure tests.

		So I may have 250 plants in our industry where somebody dumps bags of
sand into a mix vessel.  We're hoping to show that there's no reason for
all of them to do exposure tests if we have data to show that there's a
band of exposures for that operation -- and it is reasonably
conservative -- that they can use to estimate emissions.

		For those operations found in our testing to result in excessive
exposures, the toolkit will describe the controls, demonstrated through
our testing, to reliably provide sufficient exposure reductions.

		So if again using my example of the employee emptying bags of sand, if
we find that an airflow of -- I'm making this up -- 50 feet per minute
through the breathing zone is sufficient to keep the exposures below,
that information will be provided in our toolkit and will give the
business owner a head start in putting in ventilation control or wet
cutting of engineered slabs, et cetera.

		Our silica toolkit will reduce compliance burdens for many smaller
composites manufacturers and, compared to OSHA's proposed approach,
increase workplace protection for employees.

		And I think this is a point -- and I mentioned this earlier -- that
bears repeating.  In our experience, small business owners are much more
likely to embrace and fully implement a health protection and compliance
program that promises at the outset to provide a reliable path to
affordable protection for employees.  To a very large extent, these are
employers and business owners who really want to provide safe workplaces
and they're much happier if the OSHA approach is workable, protective,
and protects against compliance difficulties.  And if that approach
appears not to be workable, then it's hard for them to get past that and
to get on to the other things that they need to do.

		So, in summary, we appreciate the willingness of OSHA to work with us
in the development of our silica compliance toolkit and for the Agency's
flexibility in considering a cost-effective approach to protecting the
employees of smaller companies.

		And I do thank you very much for this opportunity to provide these
comments.

		JUDGE PURCELL:  Thank you very much, 

Mr. Schweitzer.

		I'll open it up to the audience for questions.  Let's see a show of
hands.  Anyone have any questions?

		(No response.)

		JUDGE PURCELL:  Seeing none, I'll turn it over to the OSHA Panel.

		MR. PERRY:  Thank you, Your Honor.

		And, Mr. Schweitzer, thank you very much for appearing today and
testifying.  So, yes, we do have a few questions for you.

		MR. KUCZURA:  My name is Greg Kuczura.  I just have one question.

		You mentioned that you're reviewing the objective data that you
received from companies.  Have you noticed any occurrence in this where
the exposures are above the current PEL?

		MR. SCHWEITZER:  Again, it's very limited data, it's from a small
handful of plants, and I can't even attest to the quality of the
sampling because we were not involved in that.  One of the things we
want to do with our test program is to have supervision on the site of
the collection samples, et cetera, to make sure that the procedure is
being done.

		Most of the exposures are considerably below 50 µg/m3, but we have a
few cases that I've seen where just on a casual review it seems that if
this plant was running full out and this employee was doing this for an
eight-hour shift, we would be in danger of crossing that 50 µg/m3 line.
 But again, it's such a small set of data that I have no idea how
representative that is across our industry.

		Many of the composite products, like what we call polymer concrete,
are highly filled with sand and/or crushed quartz and they're often
ground or cut as part of the fabrication process.  So we're aware of the
potential for airborne silica in these facilities and we want to make
sure we get the right answers.

		MR. KUCZURA:  All right, thank you.

		DR. COBLE:  This is Joe Coble.  And I very much appreciate the
testimony you submitted.  You gave a nice description of your process
and your manufacturing involved with silica.  You talked a little bit
about fillers and that would be the --

		(Crosstalk.)

		MR. SCHWEITZER:  Well, there's a -- right, there are a number of
composite products.  Typically, a composite is a reinforcing fiberglass
or carbon and an engineered polymer system, epoxy, polyester,
polyurethane, thermoplastic polymers.  In many applications it makes
sense to add an inorganic filler.  Aluminum trihydrate provides fire
resistance.

		For a lot of applications that are not truly structural applications,
like residential tub/showers, you don't need the strength that you do in
a highway bridge beam, for example, and you can essentially bulk out the
resin with a filler.  It could be calcium carbonate, calcium sulfate. 
Some of the calcium carbonates that are available, which is limestone,
really do contain up to 5 percent crystalline silica just as a natural
presence in the limestone formation.

		And so again, we want to make sure that -- and something like a
typical tub/shower unit that you would buy to remodel your bathroom, the
formula for that is up to 50 percent filler.  It helps with the fire
retardants for a residential installment.  And so there's a fair amount
of filler; calcium carbonate in this case, possibly, or calcium sulfate.
 And if it has 5 percent -- if that would have 5 percent crystalline
silica in it and the plant is using quite a bit of that material, again,
we want to be -- we want to make sure we know whether or not that 5
percent silica contamination level in the filler can trigger an exposure
concern.

		In other cases I mentioned, the filler itself is a silica material,
like sand or crushed quartz, and a lot of these materials are used
interchangeably, depending on the needs of the customer.  It's not
unusual to find a plant that today is making vanity tops for bathrooms
and they're using all kinds of special fillers to provide an aesthetic
appearance, and then the next week they'll be making utility vaults that
are going to go underground for phone line junctions and that kind of
thing.  And that's almost always sand and there are really no aesthetic
requirements for that at all.

		You know, there are a lot of different combinations of materials that
we want to be concerned about and make sure that we understand.  We
don't want to be in the position of implying to our industry that
something is not a concern only because we haven't tested it.  So we
want to be careful that we identify at least most of the potential
silica exposure scenarios in our plant and provide a reasonably
exhaustive set of data, a comprehensive set of data, so business owners
have some certainty that if they rely on it, that it's reliable.

		DR. COBLE:  And did I understand that it was your intention, once that
data is compiled, to submit for the record what the results were?

		MR. SCHWEITZER:  Yes, I anticipate that at the end of phase one, where
we're going to test our -- try to find and test worst-case scenarios,
then we're going to come in and sit down with the Agency and go over
that.  First of all, it's to make sure that before we go out and do more
testing, that we're not missing some opportunities that you could help
us identify to make sure that we're providing a reasonably complete
product.  I don't know if that's going to be in time for it to be on the
record, technically, but we'll -- you know, it just takes a while to
get these things going.

		I do have at this point a list of about a dozen facilities that have
volunteered to participate.  I have a consultant on board who is
starting to set up.  They're all over the country, so he's got to find
IH people locally and try to qualify them to make sure that they can do
the testing properly, et cetera, and then get in to do the testing and
everything.  It just is going to take a while.

		DR. COBLE:  Oh, sure.  And it's mostly for your own purposes, not so
much to support the rulemaking at all.  You just want to know what those
levels are and you're doing that to dig a base that your members --

		(Crosstalk.)

		MR. SCHWEITZER:  Correct, correct.

		DR. COBLE:  Okay, thank you.  What types of dust controls are
currently in place in these operations?  I mean, you mentioned a bagging
operation where they're dumping.  And is that a ventilated --

		MR. SCHWEITZER:  We do, for a lot of our products, grinding and
cutting of the molded product and there's a lot of dust.  So it's not
uncommon to have a ventilation system, either a grinding booth with a
bag house attached to it or a general ventilation system.

		But frankly, that's been more from a housekeeping perspective than an
employee health protection perspective.  So I don't know -- we don't
know at this point to what extent those would protect against, you know,
the 50 µg/m3 silica level.

		DR. COBLE:  Um-hum.  And you indicated that there is some use of
respirators now.

		MR. SCHWEITZER:  We use a lot of respirators for organic vapor
protection.

		DR. COBLE:  Okay.

		MR. SCHWEITZER:  We have not used them except, again, as sort of to
protect against nuisance dust -- for dusts -- and that it would be
just the paper mask filters that the employees would want to use just
for their own comfort at this point.

		DR. COBLE:  And what about the downstream users of these products. 
Countertops, I think, come to mind in terms of a contractor drills that.
 Have you evaluated the potential for exposures there from those?

		MR. SCHWEITZER:  No, but some of that happens in our manufacturing
plants and that will be part of our testing.  So we will have data about
that.

		You know, the dust from the grinding and sanding of the molded product
is also combustible.  We've already started to get in the habit of
talking to our customers about combustible dust hazards, and if it turns
out that there's a silica exposure hazard, then we'll get on board with
that, as well.

		Most of our products, to the extent that they're mechanically worked
downstream, it's on a job site.  You know, the contractor will come in
with a countertop and he'll have to drill a hole in it for the soap
dispenser.  It's not an assembly line thing where there's going to be a
lot of dust generated over a period of time, so hopefully those
exposures will be low enough that we don't need to be concerned about
that.  But we're going to try to find out.

		DR. COBLE:  Okay, thank you very much.  That's it for me.

		MR. PERRY:  Yes, this Bill Perry.  I do have a few questions for you.

		I think in your written testimony you say that you have 200 -- there
are 200 establishments that make the kinds of products that you are
talking about.

		MR. SCHWEITZER:  I think I said there were 200 that made what we call
highly filled cast polymer, like engineered stone.

		MR. PERRY:  Yes, yes.

		MR. SCHWEITZER:  And then there's another 100 that make, like,
tub/shower units that are fiberglass laminates with a high filler
content.  So there would be 300 facilities in the country, to our
knowledge, that are likely to use, in one way or another,
silica-containing materials.

		MR. PERRY:  Okay.  And those are all members of your association?

		MR. SCHWEITZER:  Oh, no.

		MR. PERRY:  No, they're not.

		MR. SCHWEITZER:  Looking at, when we've been able to do so, the
customer lists of some of our supplier companies, we estimate that there
are 3,000 business locations that are in the business of making
composites.  There are probably a lot more than that when you think that
a lot of large plants have a fiberglass shot-back to do repairs and that
kind of thing, but they're not in the business of making a composite
product.

		So 3,000 companies and 3,000 business locations.  So there are 3,000
facilities.  And we have about 500 member companies.  So we've got 

maybe --

		MR. PERRY:  Okay.

		MR. SCHWEITZER:  -- one-sixth, which I'd have to say, as an
association staffer, that's pretty good.

		MR. PERRY:  Agree.  Okay, thank you.  And so all of these companies
are using a variety of different fillers.  You mentioned calcium
carbonate, was it?

		MR. SCHWEITZER:  Yes.

		MR. PERRY:  That's one of the common --

		MR. SCHWEITZER:  Right, calcium carbonate, which is limestone.  Many
of the limestone formations have crystalline silica naturally occurring
in them.

		MR. PERRY:  Okay.  Do they all use what I would consider to be high
quartz-containing materials like sand or --

		MR. SCHWEITZER:  No, no.  The companies that use a lot of sand are for
applications such as utility vaults and engineered stone products more
for industrial applications.  You're not likely to make a vanity top
highly filled with sand.  It's not going to look pretty.  So there's
probably a small fraction of those 200 highly filled cast polymer
companies that use sand.

		The trick is, though, that a company that's making vanity tops with a
non-silica containing filler can have somebody wander in and say, hey,
can you make 100 of these utility vaults for me?  He's got all the
process equipment and he knows how to make the system work and he could
be in the sand processing business in a couple of weeks.  You know, it's
hard to say specifically which plants do this and which don't.

		MR. PERRY:  Okay.  All right.  So you're doing this exposure study now
for your members.  So it sounds like you found your members to be pretty
receptive to ACMA kind of coordinating the study --

		MR. SCHWEITZER:  Yes.

		MR. PERRY:  -- and collecting all of the data --

		MR. SCHWEITZER:  Right.

		MR. PERRY:  -- through a database to be used by the members.

		MR. SCHWEITZER:  One of the things that we try to do for our industry
that's primarily comprised of small companies is to be their EH and S
resource to the extent that we can.  So we have an ANSI standard that
allows companies to estimate their output smokestack emissions of many
of the substances.  And we put that together and then our small
companies can use that to file -- to apply for air permits or their TRI
reports or whatever.

		And so I think for a couple of decades we've been in the business and
our industry has come to appreciate that.  So yes, I think there's a
high degree of acceptance of us being in that role.

		MR. PERRY:  Okay, very good.  Let's see.  Do you know if any of your
members have used OSHA's consultation program to address --

		MR. SCHWEITZER:  Yes, yes.

		MR. PERRY:  -- silica exposures?

		MR. SCHWEITZER:  Oh, for silica exposures.

		MR. PERRY:  I mean for silica specifically.

		MR. SCHWEITZER:  No, I doubt it, because I think, frankly, aside from
the handful of companies that are, on a regular basis, processors of
sand and crushed quartz, that none of them have ever thought about
silica exposures before now.

		MR. PERRY:  Right.

		MR. SCHWEITZER:  So I'd be surprised to find that to be the case.

		MR. PERRY:  Okay.  The last thing I'll ask you to think about -- you
know, I don't expect that you would want to give me an answer right now.
 But one thing that OSHA will typically consider at this stage in our
rulemaking -- and we've heard it from a few other people during these
proceedings -- is the use of a phase-in for the engineering control
requirement.

		OSHA has often done that in past standards so that you don't have to
have your engineering controls in, in 90 days.  I think we proposed one
year.  We've heard from a few people that in some situations that may
not be enough time.

		So I would just ask you maybe to give that some thought and check with
your members and we would invite you to comment on, in post-hearing
comments, what kind of a phase-in you think would be helpful.

		MR. SCHWEITZER:  I will.  You know, because we have experience both
with ventilation and respirator control because of organic vapors, our
employers know that ventilation control, where it's practical and
feasible, is preferable.  You come in and you turn the switch on and
then you don't -- you know, you've got to change the filters and check
the airflow, et cetera, but it's fairly reliable.  And even with the
most understanding and willing workforce, keeping a respiratory
protection program going is a job.

		You know, I made a pitch for allowing us to use respiratory
protection.  I'm not saying that would be easy for us to do and not a
big pain, but I'm saying that's likely to be more effective for
protecting employees than throwing the business owner in this possibly
no-win situation of taking a guess and installing ventilation control
that may or may not work at great expense.

		MR. PERRY:  Okay.

		MR. SCHWEITZER:  We will talk about the phased-in approach, too. 
Thank you.

		MR. PERRY:  Yes, that would be helpful to us.

		MR. SCHWEITZER:  Yes.

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

		And thank you again, Mr. Schweitzer, for testifying today.

		MR. SCHWEITZER:  Thank you very much.

		JUDGE PURCELL:  Thank you, Mr. Schweitzer.

		Next on the agenda is the North American Insulation Manufacturers
Association -- Angus Crane.  Mr. Crane.  Thank you.  And, Mr. Crane,
I'll ask you to introduce yourself and your colleague.

		MR. CRANE:  Your Honor, OSHA Panel, and ladies and gentlemen, my name
is Angus Crane.  I'm Executive Vice President and General Counsel for
the North American Insulation Manufacturers Association, or NAIMA.  And
with me is Steve Aldridge from Knauf Insulation, one of NAIMA's members.
 And Steve is Knauf's Regional Environmental Health And Safety Manager
for all of Knauf's U.S. facilities.

		JUDGE PURCELL:  Thank you, Mr. Crane.  And do you have a PowerPoint
presentation associated with your presentation?

		MR. CRANE:  No.  No, Your Honor.

		JUDGE PURCELL:  Whenever you're ready, you may proceed.

		MR. CRANE:  Okay.  And you received my comments, correct?

		JUDGE PURCELL:  Yes, I did.

		MR. CRANE:  Or my testimony.

		JUDGE PURCELL:  In fact, I've marked that as Hearing Exhibit 142, and
that will be admitted into the record.

(Whereupon, the document referred to as Hearing Exhibit 142 was marked
and received in evidence.)

		MR. CRANE:  Okay, thank you.  We greatly appreciate the opportunity to
present this testimony before OSHA, and to tell specific issues that
this industry has with the proposed crystalline silica exposure
standard.  We also recognize that this is a unique opportunity that not
all federal agencies allow.  And so OSHA, we're particularly grateful
that we have the opportunity not only to submit written comments but to
then present this testimony.

		We are here on behalf of NAIMA's fiberglass insulation manufacturers
and that includes CertainTeed, Guardian Building Products, Knauf
Insulation, Johns Manville, and Owens Corning.  And we also are here on
behalf of our rock and slag wool insulation manufacturers, which include
Armstrong World Industries, Industrial Insulation Group, Johns Manville,
Rockwell Manufacturing, Roxul, Thermafiber, Owens Corning, and USG
Interiors.

		Essentially, I'm going to, during this presentation, make six main
points and our first point is that the mineral wool industry cannot
reduce all worker exposure levels through engineering and work practice
controls.  And this is based on our thorough analysis of the industry
and our collection of silica exposure data.

		We want to point out that when OSHA did analyze the mineral wool
industry, they did not actually have any data that was directly from
this industry, but instead they included our industry within a general
glass industry category which was not representative of the mineral wool
industry.

		Fiberglass insulation manufacture workers are potentially exposed to
crystalline silica in two different ways.  First, we use a silica sand,
which is an essential raw material to make glass.  So that's the first
potential exposure.  And the second is the infrequent rebuilding of
melters and furnaces with refractories that may contain varying amounts
of crystalline silica.

		And as detailed in NAIMA's written comments, the industry has already
implemented many of OSHA's identified engineering controls and work
practices that are feasible, but yet still have some workers with
short-term infrequent exposures above the proposed PEL.

		I want to talk about two different categories of potential exposures
and specifically the proposals that OSHA has made.

		One is with what I would call our typical manufacturing process.  In
that category, OSHA has identified various engineering controls and work
practices, including one using clean larger rounded grain sand
containing fewer fine particles.  A second is enclosing and ventilating
all sand conveyers and transfer points, and third, installing pneumatic
sand conveyance systems instead of conveyer belts.

		With regards to the second category where there is potential exposure,
which is the furnace rebuilds, OSHA identifies various engineering
controls and work practices, including substitution of high silica
refractories with low silica-content refractory materials and precast
refractory shapes.  And I'd like to address those specific proposals.

		From our perspective, none of these identified controls are actually
technologically feasible and OSHA has presented no evidence to the
contrary.

		First, the industry already purchases washed sand and has evaluated
the optimal grain size and shape necessary to efficiently and safely
operate and correctly manufacture specific products.  So our perspective
is that the industry has been at this for 80 years and we know what kind
of sand we have to use in order to make our different products.  And
we're not really in a position to substitute.  What we're using is the
best we can do and it's for a specific purpose.

		With regards to the other proposal on enclosing conveyers and transfer
points that transport batch raw materials from unloading to the furnace,
facilities needing to add ventilation to these conveying systems will
actually trigger environmental permitting requirements for point-source
emissions and this requires significant lead time for engineering
design, procurement, and regulatory permitting.  And so in addition to
that, we've got many of our facilities that are already using that kind
of enclosure.

		Third, with regards to installation of the pneumatic conveyance
systems, the conveyance systems 

-- the pneumatic conveyance systems are not necessarily a superior or
even feasible alternative to the enclosed mechanical conveyance systems.
 In fact, while some of our companies do use them, we had one facility,
who was using them, actually remove the pneumatic conveyance systems
because of a variety of performance problems.

		I'm going to ask Mr. Aldridge to share that experience with you on
the pneumatic system.

		MR. ALDRIDGE:  Just a few points to make.  Mechanical systems --

		JUDGE PURCELL:  And for the record, this is Mr. Aldridge speaking.

		MR. ALDRIDGE:  Just relative to mechanical conveyance systems, they're
more reliable when compared to a pneumatic system, where there would be
a higher frequency of maintenance, which potentially would have a higher
frequency of exposure due to the maintenance activities.

		Pneumatic conveying causes size segregation and then, therefore,
material segregation.  As the material is moving through the system,
smaller and lighter gets separate from larger and heavier.  A 

non-homogeneous batch delivered to the furnace drastically impacts
quality and chemistry of the glass.

		Over the last years, large investment has been made in more efficient
modern mechanical conveyance batch houses.  Modern mechanical batch
houses have dust control at the material transfer points.  And while
pneumatic systems aren't necessarily more costly to install, they are
significantly more expensive to operate due to the high use of
compressed air, meaning more energy, and there higher maintenance costs
due to the transfer pipe erosion and so on -- and reliability, as
mentioned.

		MR. CRANE:  Thank you, Steve.

		And the comments that Steve has just shared with you will be included
in our post-hearing comments and we'll give those details.

		With regards to the other item that we were talking about in
connection with the furnace rebuild, we would like to point out that
OSHA actually lacks the legal authority to require mandatory
substitution of universally used high silica refractories with low
silica refractories.

		Refractories vary as to their chrome and silica content, and for a
reason.  Refractories are designed to withstand high temperature and the
corrosive nature of the glass melt.  And thus, the refractories used in
furnace channel and four-hearth construction are based on their ability
to withstand this harsh environment and for longevity of use.  And this
ultimately protects workers from an outbreak of molten glass.  And in
some instances that will mean the refractory is almost entirely chrome
and others may be a combination of chrome and silica.

		But the content of the refractories cannot be modified without
compromising their intended function, which is containing a molten glass
and protecting the workers.

		And, again, this is something that we've been at for 80 years and
we've worked it out so that we know what the refractories need to
contain.

		So what we're asking on these specific things that we've just
addressed is that OSHA recognizes that we have done everything that we
can, and the sand and the refractories and these other things that we're
talking about, we have gotten it down to a science and it can't be
tampered with.  So we ask that OSHA forego imposing any of these
additional engineering controls and recognize that what we're doing is
very effective.

		Also we would like to point out that the respirable crystalline silica
exposure for some tasks that occur infrequently and are of short
duration -- and that's maintenance tasks and furnace rebuilds -- have
not been eliminated and cannot be feasibly eliminated with further
engineering controls.  And for these operations, respiratory protection
and work practices are necessary in order to protect the workers.  So
that's our first point.

		Our second point is with regards to the requirement to implement
engineering and work practices controls.  And this I'm going to do in
two different phases.

		What we would like -- because we have these short-term tasks and
infrequent jobs, we'd like for there to be, for our industry, a 30-day
trigger; that if the job or the work doesn't go beyond 30 days, that
there is no need to implement the engineering controls.  We would use
respiratory protection and other work practices for these non-routine or
infrequent jobs such as maintenance work.

		Now, in November of last year, NAIMA began the creation of a database
for collection of respirable silica exposure for the fiberglass and rock
and slag wool industry, and thus far NAIMA has collected -- we say in
this several hundred, but this is an ongoing process.  We're up to over
500 and we will continue to grow this database.  And it shows the
varying durations and dating back more than 10 years in complying with
this database.

		Now, NAIMA members' exposure monitoring demonstrates that certain
non-routine and infrequent job functions and tasks involve exposures to
crystalline silica that exceed the proposed action level and PEL.  And a
preliminary review of the samples approved for database inclusion
indicates that, on average, exposures for routine day-to-day
manufacturing operations are below the proposed PEL, and that certain
non-routine and infrequent jobs and tasks have exposures which may
exceed the proposed PEL.

		And there are also some routine jobs of limited duration that may
exceed the PEL, such as batch house maintenance and specific repairs and
then all of the things that are associated with a furnace rebuild.  And,
again, we're using respirators while the workers are doing these kinds
of tasks.

		So I'm going to identify some very specific short-term jobs that have
this exceedance of the proposed PEL.  They include the hot-end repairs. 
And the hot end is where the glass is actually being melted and any kind
of mechanical work that would be done in that hot-end area; also batch
house cleaning in the batch houses where the raw materials are mixed and
put into the furnace for melting; also bag house maintenance and then
furnace demolition, cleanup and rebuild.  Those we've identified.

		So despite NAIMA's use of extensive engineering and work practice
controls and other preventative measures, employees in certain
activities -- these that we've just identified -- with respiratory
protection are exposed to levels of respirable crystalline silica that
sometimes exceed either the proposed action level or the PEL.

		Our third main point is with regards to the one-year compliance
deadline for engineering controls.  And so the bottom line, which is set
forth very plainly in our written comments, is that the mineral wool
industry needs more time, and so we would greatly appreciate the
phased-in approach on these engineering controls.

		Specifically, we're proposing that there be a five-year phased-in
approach for all industry and that there be an eight-year phased-in
approach for small businesses.  And a number of our rock and slag wool
companies qualify as a small business with the Small Business definition
of a small business.

		So flexibility is needed in order to match the business cycles of
furnace and melter rebuilds.  That's the most critical issue for us
because a lot of these engineering controls cannot be implemented until
there is -- maybe it's time for a furnace or melter rebuild.

		So implementations of specific controls require sufficient lead-in
time -- in fact, far more than 12 months -- to not only design the
engineering controls and prepare the applications for and receive any
additional or modified environmental permitting -- fully enclosing and
ventilating all conveyers and transfer points used in sand handling
triggers environmental permitting requirements at point sources.  And
this requires significant lead-in time for regulatory permitting,
engineering design, procurement of the materials, and also installation,
which in some states may take longer.

		And it will not surprise you to tell you that we're going to identify
California as a state that it will take a lot more time, typically two
years, and it could take much longer if there's an onslaught of these
types of requests based on the proposal of this rule.

		Second, we ask that you keep in mind that the mineral wool industry
has suffered and it's just now beginning to recover from the worst
building downturn since building statistics were first assembled in the
1950s.  In other words, we've gone through a very rough time.  We need
additional time for that reason also.

		The next reason for this phased-in approach is that the implementation
of engineering controls need to coincide with furnace rebuilds that
occur as infrequently as once in every eight years.  And facilities
should not be forced to shut down and then restart, which is a lengthy
and expensive process that takes up to six to eight weeks to install
additional engineering controls.

		And to properly shut down a furnace and to minimize the damage to the
refractory, it requires an extended cool-down period, at least one week,
and then when restarting it, yet another lengthy gradual process to
reheat the furnace to operating temperature, which is upwards of two
weeks, all of that time losing very valuable productivity.  It could
actually be the end of a company if they were forced to do that, because
essentially they're losing all production.

		The furnace rebuild is a very complicated and significant event in the
glass industry and particularly for the rock and slag and mineral wool
industry.

		So, again, based on those things, we're asking that NAIMA -- that
NAIMA is asking OSHA to allow this five-year phase-in approach for all
industry and then the eight for the small businesses.

		And also we ask that OSHA create a hardship-based category or some
kind of administrative mechanism to anticipate scenarios where some
regulated entities cannot realistically meet the initial deadlines even
with the phased-in approach or because of the issues regarding the
furnace rebuilds and so forth.

		Our fourth main point is with regards to exposure assessment and
monitoring requirements, and in this we have two different things that
we're asking for.

		First, we're asking that we would be allowed to rely upon data that is
older than 12 months, and also that you limit the testing that is
required on the silica polymorphs.  I'll get into more details.  But,
essentially, we would like to be able to rely upon this silica exposure
database that we're creating, which will continue to be populated.  It
is reliable historic objective data.

		I was told by Chuck Gordon that in his testimony earlier this morning
he mentioned our health and safety partnership program, which he helped
us with.  It was an OSHA-approved database.  That database, which
monitors fiberglass or fiber exposure, is still in place after we did
the eight-year program with OSHA, and then we've maintained it.  It's a
very effective exposure database.  We have a very stringent QA/QC
protocol that is used to qualify this data.  That is exactly the same
program we're using for this silica data.  So the silica database will
be able to be used by the industry and we'll continue to populate it.

		And what's important, I think, for us to emphasize is that there are
not changes in the fiberglass and rock and slag wool industry.  This
data is representative of what was happening 10 years ago, 20 years ago,
30 years ago.  There have not been revolutionary changes in the way we
melt the glass and the raw materials that we're using.  It's the same. 
Some might think that that's really disappointing and not dramatic, but
nonetheless we've got something that works and it works well for us.

		And so the data that we have from long ago is representative and it
helps inform us of what the nature of the industry is.  So we're asking
that we would be able to rely on this historic data, knowing that we are
going to continue to create this database.

		Then with regards to the testing of the polymorphs, all of the
companies in NAIMA have essentially done a lot of testing and they know
what kind of polymorphs they have and it's really limited to quartz.  So
they are frustrated with a potential requirement that they would have to
test on a regular basis for all three polymorphs.  We know that the
other two are not there and it seems like a waste of resources and time
to have us testing all three polymorphs when based on the materials
analysis that we've done and this very long history of knowing what our
materials are.

		So we're asking OSHA to recognize this and allow for some kind of
exception in the rule that an industry can, knowing what their materials
are, limit their regular monitoring and testing to the polymorphs that
are relevant to that industry.  And in this case it would be the quartz.

		Also we're asking that OSHA modify the proposed rule to lessen the
burden for each shift and to better address the 12-hour shift
monitoring.  With respect to initial exposure assessments, the proposed
rule is very specific about personal sampling for each job shift and
work area, and NAIMA requests that each shift not be required where
conditions and exposures are reasonably expected to be the same across
all shifts.  And that's certainly what it is throughout the industry.

		Moreover, we believe that OSHA should allow for extended work shifts. 
OSHA has not proposed any adjustment to the PEL or the action level for
extended work shifts beyond eight hours.  And I think it's important to
recognize that there are some facilities within the mineral wool
industry that have 12-hour work shifts.

		And to address these shifts, the exposure assessment should follow the
standard practice of measuring any contiguous eight-hour period in a
shift that is representative, or allow using multiple samples to sample
the entire extended shift and selecting the eight hours which represents
the highest potential exposure.

		And then, lastly, on that particular topic, we're asking that OSHA
broaden the types of medical and health professionals that can perform
medical surveillance.  The proposed rule's medical surveillance
requirements would in some instances require, let's say, for the chest
x-ray to be interpreted by a NIOSH-certified B reader.  Given that the
number of B readers is generally limited and declining, NAIMA requests
that OSHA also permit board certified radiologists to review x-rays.

		I'm going to make just kind of a casual observation here.  When we
first brought all of the companies together to talk about the proposed
rule and I asked them to identify the things that they were concerned
about, every company said there aren't any B readers left.  They're all
disappearing.  We can't rely on them.  So this was something very
unanimous and very loud from all of the companies.  And so I'm just
telling that anecdote so that you will understand that it's something
that we immediately recognize as a potential problem.

		Similarly, the requirements to be examined by a pulmonary specialist,
specifically an American Board certified specialist in pulmonary
disease, is also unnecessary.  And so we're asking that OSHA would
permit a board certified occupational medicine physician to do this
work.

		Now, my fifth point is with regards to some of the additional
housekeeping methods, and specifically what we're asking is that OSHA
would permit us to use compressed air.  And I will explain why.

		The proposed rule mandates that all surfaces contaminated with
crystalline silica be cleansed by a HEPA filter vacuuming or some other
method that would minimize exposure, and in some instances it's just not
technologically feasible to completely avoid the use of compressed air
for a cleanup.  In some instances there are tight spaces and
hard-to-reach crevices, and this is particularly true in the furnace
rebuild.  And the only way that they can be effectively cleaned would be
with compressed air.  And that's true also of maintenance activities.

		And so NAIMA is requesting that OSHA permit compressed air when that
cleanup follows OSHA's guidance on the use of compressed air.  And we
want to thank you and remind you that you afforded us that same
flexibility in the hex-chrome standard and we're asking that you do the
same for us here.  And we were grateful that you did that.

		My very last item is to thank OSHA for making the distinction between
amorphous silica and crystalline silica.  This is a distinction that has
many precedents and it's important for our industry.  And OSHA's
treatment of amorphous silica is certainly consistent with the weight of
the scientific evidence.  And OSHA is joined and their action is
confirmed by NIOSH, IARC, EPA, and California's OEHHA.  We appreciate
that that distinction is very helpful to our industry.

		So, again, I thank you for this opportunity to have presented this
testimony, and I will answer any questions that you -- or I hope I can
answer them.

		JUDGE PURCELL:  Thank you, Mr. Crane and 

Mr. Aldridge.

		I'll open it up to questions from the audience at this point.

		Ms. Trahan.

		MS. TRAHAN:  Hi.  Chris Trahan with the Building Trades.

		So my question is really kind of going to the refractory furnace
demolition, cleanup, and rebuild.  And I believe that your testimony
focused on the furnaces used within your production plants; is that
correct?

		MR. CRANE:  That is correct.

		MS. TRAHAN:  Do you typically contract out that work or is done by
in-house employees?

		MR. CRANE:  It is my understanding that that is typically contracted
out.  Sometimes the employees will do the prep work, but it would vary
by each facility.

		MR. ALDRIDGE:  Yes, that's right.

		MR. CRANE:  Yeah, I really do think that it is contracted out.

		MS. TRAHAN:  Okay.  Do you have exposure monitoring data for that
work --

		MR. CRANE:  Yes.

		MS. TRAHAN:  -- for the contract employees?

		MR. CRANE:  Yes.

		MS. TRAHAN:  And is it submitted to the docket as part of the record?

		MR. CRANE:  We have not submitted that.  That is part of the exposure
database that we've created and we can include in our post-hearing
comments a summary of that exposure data that we've already collected.

		MS. TRAHAN:  Thank you.  Now, are you aware if medical surveillance is
done for the workers who are doing the demolition, cleaning and rebuild?

		MR. CRANE:  It is my understanding that it is, but let me -- I've got
to be careful in speaking for many companies, so I will confirm that. 
But it is my understanding that yes, it is done.

		MS. TRAHAN:  And would you also --

		(Crosstalk.)

		MR. CRANE:  Otherwise they wouldn't be upset about the B reader rule.

		MS. TRAHAN:  Would it be possible if, while you're looking into it, to
identify any particular medical tests or outcomes that the employers are
seeing who do that work for your firms?

		MR. CRANE:  I will pursue that with my companies.

		MS. TRAHAN:  Thank you.  And similarly, your products are used as
insulation.

		MR. CRANE:  That is correct.

		MS. TRAHAN:  So they're going to be used across all industries --

		MR. CRANE:  Yes.

		MS. TRAHAN:  -- for that purpose.

		MR. CRANE:  Right.

		MS. TRAHAN:  Does your organization have exposure data for --

		MR. CRANE:  The fibers themselves?

		MS. TRAHAN:  No, for silica exposure after 

-- perhaps during rebuild, but particularly during demolition of
furnaces or other high temperature environments where the product is
spent.

		MR. CRANE:  Okay.  I think that I'm going to make this observation. 
That's why we were so grateful that OSHA made a distinction between
amorphous and crystalline silica.  And once the silica is melted, it
becomes amorphous and there's not the exposure potential.  And so there
would not be exposure to silica in a finished product.

		MS. TRAHAN:  I thought there was cristobalite when the mineral wool or
rock wool was heated to about 1800.

		MR. CRANE:  I'm not familiar with that.

		MS. TRAHAN:  No?  Okay.  Well, perhaps I'm mistaken.  I think,
likewise, I was just wondering if there was medical surveillance
conducted on your own in-house employees, and if you could provide any
details as far as the type of medical examinations that are --

		MR. CRANE:  Yes, any kind of detail I would provide would have to come
from an agreement from my company.  So I will inquire as to whether
they're willing to share that data.

		MS. TRAHAN:  Thank you, I appreciate it.

		MR. CRANE:  Okay, thank you.

		JUDGE PURCELL:  Thank you, Ms. Trahan.

		Any further questions from the audience?

		(No response.)

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

		MR. PERRY:  Thank you, Your Honor.

		This is Bill Perry.  And thank you very much for appearing today. 
This is very --

		MR. CRANE:  You're welcome.

		MR. PERRY:  -- helpful and interesting testimony and we do have a few
questions for you.

		MR. CRANE:  Okay.

		MR. KUCZURA:  My name is Greg Kuczura.

		You mentioned that the average is once in eight years that they do a
rebuild.  And is that just per company, if they only have one refractory
rebuild per company?  Or would they have -- I mean, the implication was
that when they shut it down and they do the rebuild, that the company
shuts down.  Do they have a second one?  I'm just addressing --

		MR. CRANE:  It all depends on the facility.  And I'm basing this on my
visits to many of the facilities.  There are a number of facilities that
have one furnace.  And so when there is a rebuild, they are shut down
and are not producing any product.  There are other facilities that
would have two or three furnaces.  I think the thing that is important
to recognize is that each furnace is most likely dedicated to a
different product line.

		MR. KUCZURA:  I see.  And my other question was once in every eight
years and that it takes a week to cool down at the time.

		MR. CRANE:  Can I emphasize to you that when I say every eight years,
that's the average.  There are some that would be four to five years. 
Yeah.  And some more and some maybe even less.

		A furnace rebuild is probably the most competitively sensitive
information that our companies have.  And so the reason is, is they
don't want their competitors to know when they're shut down and not
producing product.  And so I'm not intentionally being vague.  My
companies are being vague because they don't want to be real specific
about it.

		Does that make sense?

		MR. KUCZURA:  I understand, and I appreciate that very much.  And so
the actual rebuild, it's for what period of time?  I know that it's once
every eight years and that it has to cool down for a week, but the
amount of time that it takes for the actual rebuild.

		MR. CRANE:  I'm going to say a month, month and a half.

		Is that correct?

		MR. ALDRIDGE:  Thirty to forty days for a typical rebuild.

		JUDGE PURCELL:  That last comment was by 

Mr. Aldridge.

		MR. CRANE:  And that, based on my many years in the industry, is
consistent throughout the industry, the 30 to 40 days.

		MR. KUCZURA:  Thank you.  And my last question is, do you have any
training in regards to silica, right now, that's being instituted?

		MR. CRANE:  The member companies do.  NAIMA itself does not do any
training on silica, but the member companies do.

		MR. KUCZURA:  Okay, thank you very much.

		MR. CRANE:  You're welcome.

		DR. COBLE:  Yeah.  Hi, this is Joe Coble.

		MR. CRANE:  Hi, Joe.

		DR. COBLE:  And I just wanted to talk a little bit more about your
experience with mineral fibers and that your industry took that on as a
challenge.

		MR. CRANE:  Yes.

		DR. COBLE:  And you now have a voluntary limit where you're
controlling it down to one fiber in your operations.

		MR. CRANE:  One fiber per cc, that's correct.

		DR. COBLE:  And you did that primarily through engineering controls?

		MR. CRANE:  I think that there are a variety of ways that they do it. 
I mean, those exposures are with regards to both installation and also
in the factory.  And so the factories would be work practices and -- I
think largely work practices.

		DR. COBLE:  And that currently in your facilities, based on your
monitoring thus far, your levels during routine operations are below the
proposed PEL and in many cases the action level.

		MR. CRANE:  Let's say that they're below the proposed PEL.  And what
our concern is, is that there are these infrequent or non-routine jobs
where that is not the case.

		DR. COBLE:  But that you have effective respiratory protection
programs in place, based on --

		MR. CRANE:  That is correct.

		DR. COBLE:  -- long periods of dealing with dust, that you feel are
adequate for the purposes of just short-term --

		MR. CRANE:  Yes.

		DR. COBLE:  -- non-routine tasks.

		MR. CRANE:  Yes.

		DR. COBLE:  But on a daily basis you wouldn't need respirators.

		MR. CRANE:  That is correct.

		DR. COBLE:  Okay, thank you.

		MR. PERRY:  Yes.  Hi, I'm Bill Perry.

		MR. CRANE:  Hi, Bill.

		MR. PERRY:  I have a few questions.  Actually one for Mr. Aldridge. 
You were talking about conveyer systems before and I wasn't quite sure I
caught what you said.  You made some reference to modern conveyance
systems, but they're not pneumatic.  What I was interested in is what
kind of equipment or steps are taken now to minimize leaks and conveyer
failures.

		MR. ALDRIDGE:  Well, most of our -- we've converted.  I can only
speak for Knauf, but we've converted all of our raw material and batch
house systems to manual conveyer systems from pneumatic, and at each one
of those transfer points -- most of the conveyers are enclosed and each
at transfer point there is a dust collection system where one conveyer
dumps onto another.  There's a dust collection -- you know, a capture
of stuff going through a dust collector -- all the way through from
unloading the railcar or the truck to the actual arrival at the furnace
storage bin where the material is stored before it goes into the
furnace.

		Does that answer your question?

		MR. PERRY:  Okay.  Are they belt or screw conveyers?

		MR. ALDRIDGE:  Belt, belt. 

		MR. PERRY:  Belt conveyers?

		MR. ALDRIDGE:  Yeah.

		MR. PERRY:  Okay.

		MR. ALDRIDGE:  Bucket and belt.  To get it up, it's just typically a
bucket and then it pours it all.

		MR. PERRY:  Of course, understood.

		MR. ALDRIDGE:  Yeah.

		MR. PERRY:  It's hard to get things off with a belt conveyer.

		MR. ALDRIDGE:  It would be a little tough, yeah.

		MR. PERRY:  If I can get to the topic of phase-ins, because you were
asking for five- and eight-year phase-ins to coincide with the business
cycle to match it up with particularly the furnace rebuild cycle. 
You're requesting those phase-ins in the event that OSHA, in its final
rule, requires installation of feasible engineering controls for those
maintenance operations, correct?

		MR. CRANE:  That is correct.

		MR. PERRY:  So if we did something different in our final rule, then
you wouldn't need that.  There's nothing to phase in at that point,
because it sounds like you're already using respiratory protection for
those kinds of things; is that right?

		MR. CRANE:  That's correct.  Our concern is these proposed engineering
controls that you're contemplating.

		MR. PERRY:  Okay, very good.  I think I appreciate your comments on
the exposure assessment requirements and it's clear to me that I think
OSHA maybe needs to clarify something in the final rule and maybe you
can make some suggestions in post-hearing comment.  But, in fact, we
would not intend, certainly, for employers to have every exposure sample
analyzed for all three polymorphs.

		MR. CRANE:  Okay.

		MR. PERRY:  Frankly, for tritonite, that's a particular problem
because there isn't even really standard reference material for
calibration out there for that.

		MR. CRANE:  Right.

		MR. PERRY:  So I think our intent was that you would analyze samples
based on your knowledge of what polymorphs were present or likely to be.
 But I wanted to check.  Have you tested for cristobalite in your
furnace rebuild operations and not found it?

		MR. CRANE:  My recollection is that, in talking about having quartz
and testing only for quartz, it would be in our batch operations and our
routine operations.

		MR. PERRY:  Okay.

		MR. CRANE:  With regards to the furnace rebuild, that would be a
testing for both.

		MR. PERRY:  Okay, fine.  I think I would've expected that.

		MR. CRANE:  Yeah.

		MR. PERRY:  But that's why I was curious about it.  And also, maybe
you could ask us on this idea of sampling the eight hours of highest
exposure potential over a novel shift, like a 12-hour shift.

		MR. CRANE:  Right.

		MR. PERRY:  We actually do have enforcement policies in place that
instruct our field how to deal with novel work shifts such as that.  So
it might be helpful if you were to suggest that OSHA discuss that or
bring that forward in the final rule somehow.

		MR. CRANE:  Okay.

		MR. PERRY:  Just because it sounds like that may be another point of
clarification for others out there that have novel work shifts as well.

		I think that's all I had.  I understand 

Dr. Coble has one more question and then we'll --

		MR. CRANE:  Okay.

		DR. COBLE:  Yeah, I do have one more question that occurred to me when
we were talking about the use of compressed air for housekeeping.

		MR. CRANE:  Yes.

		DR. COBLE:  And I've always wondered why -- it's just moving the dirt
around.  It doesn't really clean as much as just spread it.  But what
sort of limitations would there be on the use of compressed air?

		MR. CRANE:  You know, I wish I could remember, but I know that when we
did this on the hex-chrome, OSHA had very specific guidelines on the use
of compressed air.  And so it tried to minimize the exposure, but there
was an implicit recognition that sometimes compressed air is actually
needed to have to clean up.  And I would have to go back to the
hex-chrome standard and look.  I mean, I've read it, but I'm just not
recalling the details of it.

		DR. COBLE:  So to the extent that it would be for limited purposes --

		MR. CRANE:  Right.

		DR. COBLE:  -- that are explicitly described so workers
understand --

		MR. CRANE:  Right.

		DR. COBLE:  -- that, as a general rule, it's prohibited, but there
are exceptions.

		MR. CRANE:  And that is exactly kind of the scenario that was given to
us with the hex-chrome and that's what we're asking for now.  We're not
asking for some kind of a blanket license to get carried away with
compressed air.

		DR. COBLE:  So in your post-hearing comments, would you be able to
maybe provided 

examples --

		MR. CRANE:  Yes.

		DR. COBLE:  -- of the specific language that we might consider in
allowing it for specific uses where no other means are possible?

		MR. CRANE:  Okay, I think that would be a good opportunity.  Thank
you.  Yes, we will do that.

		DR. COBLE:  Thank you.  I'm through.

		MS. LINDBERG:  Hi there.

		MR. CRANE:  Hi.

		MS. LINDBERG:  Kristen Lindberg from the Office of the Solicitor.

		MR. CRANE:  Hi, Kristen.

		MS. LINDBERG:  Just one or two questions.  It sounds like your members
already have respiratory protection programs in place.

		MR. CRANE:  That is correct.

		MS. LINDBERG:  How do they decide when to put their workers in
respirators?

		MR. CRANE:  I think that it is triggered by the information that they
have on exposures.  I know that with our exposure database, respiratory
protection is triggered based on the data.  They recognize the tasks and
the jobs and the scenarios where there is potential going over a PEL.

		MS. LINDBERG:  Okay, thank you.  And what types of respirators are
used?

		MR. CRANE:  It would be the N95 series.

		MS. LINDBERG:  Okay.  Is the working environment in these
manufacturing facilities hot?

		MR. CRANE:  I think that the hot end would be hot, but the workers who
work in the hot end are, in reality, almost the entire day in a
climate-controlled control room and the melt and the furnace are all
monitored by television screens and computers.

		When I've gone to visit the plants, I look forward to this opportunity
to be really up against all the heat and have this manufacturing
experience and I had to go into this climate-controlled room and it was
disappointing for me.

		MS. LINDBERG:  Have you ever seen workers in PAPRs?

		MR. CRANE:  In what?

		MS. LINDBERG:  The powered air-purifying respirators.

		MR. CRANE:  No, not that I can recall.

		MS. LINDBERG:  Okay.

		MR. ALDRIDGE:  That's very seldom.

		MR. CRANE:  Yeah, okay.

		MR. ALDRIDGE:  That would be a special case.  I don't know of anybody
that's wearing them.

		JUDGE PURCELL:  Mr. Aldridge, you need to pull the mic over.

		MR. ALDRIDGE:  Yeah, that would be very unusual in a special
circumstance.  I can't even think of anything right now.

		MS. LINDBERG:  Okay, thank you.

		MR. PERRY:  One quick follow-up.  Do you know whether any employees
have requested to use powered air-purifying respirators if they were
assigned a negative crusher device?

		MR. CRANE:  I can't answer that question.  I don't know.

		MR. PERRY:  It's of interest to us, the extent to which that occurs,
whether it occurs.  If that's something you can go back to your
members --

		MR. CRANE:  I will.  I'll do that.

		MR. PERRY:  -- and see what information you can get for post-hearing
comment, that would be great.

		MR. CRANE:  Okay.

		MR. PERRY:  So, again, thank you both again for testifying.

		MR. CRANE:  Thank you.

		MR. PERRY:  It's been very helpful.  Thank you.

		MR. CRANE:  Thank you for the opportunity.

		JUDGE PURCELL:  Thank you, Mr. Crane and 

Mr. Aldridge.

		And the final presenter on the program today is Paul Mellon with --
is it Noveetus Solutions?

		MR. MELLON:  Novetas, Your Honor.

		JUDGE PURCELL:  Novetas.  And, Mr. Mellon, I have a copy of your
PowerPoint presentation.  Did you also wish to submit a copy of your
testimony?

		MR. MELLON:  No, Your Honor, I'm just going to talk to the PowerPoint.

		JUDGE PURCELL:  All right, that's fine.

		MR. MELLON:  I do have a few exhibits that I can submit as I'm going
through that.

		JUDGE PURCELL:  Okay, if you want to hand those to me now, I'll go
ahead and mark them and admit them into the record.  And let me just
identify each of these for the record.

		The first one, as I indicated, is the PowerPoint presentation.  That's
identified as Hearing Exhibit 143.

		The next is a letter dated February 15th, 2012, to Harasco Minerals in
Mechanicsburg, Pennsylvania, from --

		MR. MELLON:  Harsco, Your Honor.

		JUDGE PURCELL:  I'm sorry?

		MR. MELLON:  Harsco.

		JUDGE PURCELL:  Harsco.  That's H-a-r-s-c-o Minerals -- from the U.S.
Department of Labor, Occupational Safety and Health Administration.

		The next exhibit I've identified as Hearing Exhibit 145, and it's
OSHA's Notice of Proposed Rulemaking for beryllium, a PowerPoint
presentation dated December 5th-6th, 2013, directive of standards and
guidance.

		The next document is marked as Hearing Exhibit 146, and it looks like
a transcript of the Advisory Committee on Construction Safety and
Health, dated December 5th-6th, 2013, Transcript 2 of 2, 1:03 p.m. to
4:00 p.m. on Wednesday, December 6th.

		Those exhibits will be admitted into the record.  And if you're --
oh, I'm sorry, one final exhibit marked as Hearing Exhibit 147, and it's
a hazard alert sheet for beryllium.

		Do you want to describe that further for the record?

		MR. MELLON:  Your Honor, this beryllium alert was put out by the CPWR,
which is a research part of the Building and Trades.

		JUDGE PURCELL:  Okay, thank you, Mr. Mellon.  Each of those exhibits
are admitted into evidence, and you may proceed when you're ready.

(Whereupon, the documents referred to as Hearing Exhibits 143 through
147 were marked and received in evidence.)

		MR. MELLON:  Your Honor, I appreciate the opportunity to come here
today to speak to you -- good to see you again, Bill -- and a good
opportunity to speak again with OSHA here today.

		For the audience, I realize this is a hard spot for me to be in, since
I'm the only thing separating everyone in here from a long day of
hearings and happy hour, so I'll try to be brief.  The good thing is I'm
from Philadelphia, so I do tend to talk fast.  And I've got a PowerPoint
with some pictures.

		JUDGE PURCELL:  And as you go through each slide, if you would
identify what's shown during the presentation, it would be helpful.

		MR. MELLON:  Yes, Your Honor.

		This is Slide 1.  This is just the opening slide introducing that I'm
making a presentation today about the proposed new silica rule as it
pertains to the abrasive blast industry.

		This is a business overview and a background of who I am and why I'm
here today.  My name is Paul Mellon.  I'm President of a company called
Novetas Solutions.  We market and sell various glass products, one of
which is a product called "New Age Blast Media."  It is made of 100
percent recycled bottle glass.

		We're a small company based in Philadelphia, Pennsylvania.  We have
various plants around the country that we sell the products from.  We
pride ourselves on selling a fact-based branded product, and we have a
particular focus on worker health and environmental safety.

		This next slide is an overview of the sandblasting market.  As you can
see here, when you talk about sandblasting -- some people call it grit
blasting.  It's been called sandblasting for a number of years,
obviously because it used to be dominated by silica sand.  And in part,
thanks to the silica rule from basically starting in the 1970s, there's
been a major shift away from sand.  And, in fact, as you can see here,
of the two million tons of sand that are -- two million tons of
abrasive grit that are used each year, a significant amount of that
that's actually used is not sand, it's alternate blast media.

		And, in fact, the United States government is one of the largest users
of blast media in the country.  And if you think about it, it's because
of the U.S. military.  Large ships are typically sandblasted with grit
media.  The DOTs around the country, many of them specify that you have
to use various types of grits on bridges and tanks.

		This next slide here is really some quotes from page 618 of the
proposed OSHA rule for silica.  And basically what this is doing it
trying to give an overview.  OSHA is giving an overview.  In the silica
rule, they discuss abrasive blasting -- and sandblasting
specifically -- and that's what I wanted to talk to you about today, is
some of the things that I think need to be changed in the wording and
the way the OSHA is presenting what's going on in the silica rule,
particularly as it relates to the beryllium rule, because I believe they
are both very much interrelated.

		You can see here that OSHA makes a statement that about 1.5 million
tons of silica sand was used back in 1996.  This number was actually
even much higher.  If you go back to 1985, there's about three million
tons of silica sand that was used for sandblasting.  In fact, there was
very little other alternate uses and it was because, in part, of the
enforcement of the silica rule in the sandblasting industry that there
was a major push to move away.  By 2007, OSHA notes that there's about
500,000 tons or so.  That number can be flexible, but that's pretty much
in the right direction.

		OSHA makes a number of comments that I think are important to look at,
because they're basically saying here that this might reflect -- in
other words, the shift away from silica sand might reflect the fact that
there were alternative abrasives and alternative types of blasting done.
 And they reference water jetting and they also reference all of the
other types of alternates that are out there -- coal slag, copper slag,
nickel slag, garnet, staurolite, olivine, steel grit, crushed glass.

		In reading this you would get the impression that that one million
tons was just kind of shifted equally, potentially, among all of these
various types of abrasive blasting or ways of water jetting, but I think
that the facts will state otherwise.

		As you can see, this is a recap back from 2005-2006.  And this is a
pretty stable market, the abrasive blasting.  As you saw, it has changed
significantly.  And as you can see, coal slag and copper slag, when you
combine them, represent about one million tons a year of blasting.  Sand
still is widely used, but interestingly enough, it's not used in almost
virtually any federal and state blasting project because it's banned.

		And so what you're looking at here is that shift of one million tons. 
As you can see, a significant portion of it really went to coal slag. 
In fact, if you were to add up some of the alternate types of blast
media that are out there, they're a fraction of coal slag.

		So when the silica rule says that there's been a shift, they're
correct, there has been a major shift away from silica sand.  But the
shift has been to coal and copper slag abrasives.  And so the question
is, if that shift has occurred, is, in fact, the coal and copper slag
abrasives safer than silica sand?

		OSHA addresses the issue, but they address it in a very generic way,
again, similar to the way they talked about the market.  You can see
some of the comments here.  OSHA admits that they're not necessarily
going to ban silica sand because they have some questions about some of
the alternative products that are out there being used.  Now remember,
by far and away, the number one product being is used is coal slag.

		One study that is referenced -- OSHA references -- in terms of why
the alternative blasting media may not be as safe as sand, or better, is
that there was a study done by NIOSH in 2000.  This study was actually a
dust study, so it was not even a carcinogen study.  The study was also a
two-week study done on rats and did not pertain to humans.

		And as you can see, the dust study basically said that if you put
enough dust in a rats lung over a two-week period of time, there will be
some sort of pulmonary decrease in function.  And, in fact, every
abrasive showed a various degree of some sort of pulmonary problems.

		The other study that's cited by OSHA is the KTA study in 1998.  This
study actually did look at the toxicity of the individual abrasives. 
And as you can see, OSHA correctly states that, for arsenic, cadmium,
beryllium, chromium, lead, most of the abrasives did in fact show some
levels of toxicity of these toxins.

		Two points here.  You'll notice that glass was not shown on any of
these toxins.  And, in fact, this study specifically said that crushed
glass would be a good alternate to coal and copper slag abrasives.  It
just was not in wide use or widely made.

		Now, one of the issues I want to draw your attention to is beryllium,
because if you were to read this, there's nothing really in this that
would alert anyone to the fact of what beryllium is and why it's so
toxic and particularly how it pertains to coal and copper slag
abrasives.

		There's been a number of shifts in the last few years in terms of what
OSHA now knows about the true toxicity of coal slag abrasives, which is,
in fact, the number one replacement for silica sand in the market today.

		Specifically, in 2012, after an investigation that was actually
initiated by 

Dr. Michaels, who happens to be a beryllium expert and in fact,
developed the Department of Energy's beryllium prevention program --
which is really the model of the federal government -- OSHA took a look
at the internal data that they themselves have had since 2007 and had
determined that, on average, the amount of beryllium emitted from the
dust in coal and copper slag abrasives exceeds the current PEL for
beryllium.  That's significant because, as we're going to see in a
moment, ironically, OSHA is now proposing a new beryllium rule that will
lower the PEL.

		As you can see, letters were sent out to the coal and copper slag
abrasive companies.  The rationale for the letters is given.  This is a
quote from the letter and it's an exhibit that I submitted, the entire
letter, for the record.  And basically OSHA is saying that when the
product is used as intended, for blasting, the beryllium levels that are
contained in coal and copper slag abrasives do in fact exceed the PEL.

		And, in fact, last year, 2013, OSHA announced that they are going to
implement their beryllium rule.  In fact, I believe that the date was
actually this month that we were going to get the proposed rule.  I
don't know -- I haven't seen it -- if that's still going to happen.  I
know there have been a couple of pushbacks of the rule.  But this was
the presentation that, in 2013 December, OSHA gave to their construction
committee at the Department of Labor in this building, in which I was in
attendance.

		One of the key factors that OSHA put out in the new beryllium rule is
that, for the construction industry, they made the determination that
the application of the new beryllium rule will apply most in the
construction industry to those who are doing abrasive blasting with coal
and copper slag abrasives.  Upwards of 23,000 workers, OSHA is saying,
are potentially involved in using coal and copper slag abrasives and
could be affected.

		I have submitted the full presentation from the December 6th meeting
for the record, as well as the comments that were made by Tiffany DeFoe
that were also about the presentation.  So the full comments are also on
the record.

		But there are a couple of things here that I think that Ms. DeFoe
said that are very important, again, in clarifying what OSHA now knows
about the beryllium issues with coal and copper slag abrasives.  And you
can see that she makes the statement that it is, in fact, a
contaminant -- beryllium -- in blasting media, primarily in coal slags
like black beauty and copper slags, both of which are most often used in
open-air blasting.

		And then there's the admission that yes, even though it is a minor
contaminant -- and by this, typically, we're talking about weight,
which is always what has been understood to be the hazmat definition. 
However, she says that it can get to levels that are above the current
PEL.  And that's the key.  When you exceed a PEL, the OSHA hazmat
regulations specifically state, it does not matter the percentage of
weight.  If you exceed the PEL you would treat it exactly as if it is at
an unacceptable weight.

		So why is this a problem?  When you talk about beryllium -- you've
actually had a number of people today talk about silicosis and I'm sure
that you've heard over the hearings in the last three weeks specifically
why silicosis is so bad, what it does to the lungs.  So what is the
issue with beryllium as you would compare it to silica?

		What I chose to do is take the new silica proposed rules and compare
it to what the current rules are for beryllium, to give you an idea that
shifting one million tons of silica sand to coal slag abrasives may not
have been the best way to help workers out in the field.

		As you can see, the action level of the new silica rule is 25 µg,
which I believe is half of what it currently is.  However, that's the
action level.  OSHA is saying that at 50 µg is when you have to look at
respiratory protection, which in the blast world typically means a full
helmet with an air-fed respiratory.

		Now let's compare that to beryllium.  The action level for beryllium
is 2 µg.  The protection level -- in other words, when you need to
have a hood on and you need to have an air-fed hood -- is 2 µg.  So
you can see, just from the respiratory protection alone, the difference
is quite dramatic, 50 µg for silica sand, 2 µg for beryllium.

		In fact, OSHA actually says that at no time should 25 µg ever be
exceeded for beryllium exposure.  And, in fact, some of the data that
OSHA had submitted or OSHA used to have the companies put the beryllium
on the MSDS showed that there were many cases that 25 µg were actually
exceeded when using coal slag.

		JUDGE PURCELL:  Mr. Mellon, your voice carries very well, so if you
could just stand back from the mic a little bit so it doesn't overload. 
Thank you.

		MR. MELLON:  Okay.  So what I want to do is very brief.  Why is
beryllium dangerous?  Beryllium is a very different animal when it comes
to lung disease as opposed to, say, silicosis or asbestosis or a lot of
the other dust type of diseases.  Sand, in and of itself, is not
necessarily toxic.  If it were, people wouldn't be going on beaches. 
The issue is the amount of sand that comes into your lungs, as the
amount of sand, as it builds up, causes the scarring because it doesn't
come out of your lungs, particularly if it's in small particles, which
is why abrasive blasting is such an issue with getting silicosis.

		However, beryllium is very different.  This is the slide on beryllium.
 And this slide, let me just say real quickly, comes from the National
Jewish Health Science Training Center, and this is off of the OSHA
website.  They are one of the research arms for OSHA on beryllium.

		So as you can see, when you become sensitized to beryllium and it
turns into chronic beryllium disease, it isn't lung disease.  But what
it is, is your white blood cells actually become sensitized.  Your white
blood cells create what's called granulomas, and the granulomas actually
build in your lungs and eventually you wind up choking to death.  And
it's something that there's no cure for and it's not something that you
can stop once it starts.

		But it's a very interesting disease, in that you could become
sensitized with beryllium.  It's a genetic disease and it's a
combination of genes as well as exposure.  But you could be sensitized
with beryllium and show no symptoms for years.  It can incubate in your
body for 10 to 15 years.  Not everybody who gets sensitized does develop
into beryllium disease.  But if it does go to chronic beryllium disease,
there is no cure and typically you've got a very significant chance of
dying once the disease goes to chronic beryllium disease.

		As I said, most exposed workers, according to the slide, won't get it.
 But the question is nobody really knows who that is because, as I said,
it's a genetic disease.

		So, again, this is a slide that just kind of basically says what I
just talked about.  It's a combination of your genes and beryllium
exposure.  Less than 1 percent to 16 percent of workers have beryllium
sensitivity.  But, again, because people aren't tested and it's such a
unique type of disease, it's a major issue, in that they just simply
don't know how low the exposure levels are.  And there are estimates
that you could be exposed for one month or two months and become
sensitized.

		So basically to summarize what I'm saying today is that I believe that
OSHA has done the right thing with the new beryllium rule.  I think that
the changes that have been made, the changes that were announced to the
construction industry -- and I hope that the rule is actually posted in
April -- are pretty much exactly what needs to be done, because I think
it really summarizes the potential dangers of using coal and copper slag
abrasives for the industry.

		And the education part of this is critical, and that's why I believe
the current silica rule -- I believe the language in the rule should
align with what OSHA already knows about coal and copper slag abrasives.
 And the reason is, it is the number one abrasive that is being used and
the fact is that until that education starts -- and I would also say
that even from an enforcement standpoint.  I'm not even sure if a lot of
the OSHA inspectors are fully aware of some of the changes that have
happened, because there has not really been any enforcement out in the
field and I do believe part of that is because this is an education
process that needs to happen.

		Whether you lower the silica PEL or not, the good news is, OSHA has
done a very good job of having the industry -- industry as a whole --
that use sand to realize the dangers of crystalline silica.  Now, it
looks like we're talking about refining it even further, but the
education part of it has been done over the course of three decades.

		The beryllium issue is really something new in terms of educating
workers, employers and even, like I said, I believe, your own inspectors
as well as other inspectors -- paint inspectors, military
inspectors -- that simply are not aware of the potential dangers of
beryllium in coal and copper slag abrasives.  And I think that starting
with this rule, what I would ask is that some of the language when you
talk about alternate abrasives, I think, be more reflective of the
reality of what is currently going on in the market.

		I thank you for your time today, and I'll take any questions.

		JUDGE PURCELL:  Thank you, Mr. Mellon.

		Let me ask, are there any questions from the audience?

		(No response.)

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

		MR. PERRY:  Thank you, Your Honor.  This is Bill Perry.

		Thank you, Mr. Mellon, for appearing today.  It's good to see you
again.  I have a couple of things.

		On the slide that's up there now, which is titled Novetas Summary of
Silica Rule, when you refer to what you called the current silica rule,
you mean the permissible exposure limits that have been in force since
1971 or do you mean the rulemaking?

		MR. MELLON:  No, I mean the current rule that you're proposing.

		MR. PERRY:  Okay.  So I just want to make sure.  What you're arguing
is that this transition from sand to the slags has occurred since about
the late '90s when OSHA first announced its intent to work on a silica
rule, because prior to that, of course, we didn't have any.

		MR. MELLON:  Well, there was a silica standard.

		MR. PERRY:  Well, there's been a silica permissible exposure limit on
the book since 1971 that we have been enforcing.

		MR. MELLON:  Well, when I say original rule, then I'm saying the
original -- when OSHA first labeled it as a toxin in the 1970s.  Like
you said, I would call that -- that's the initial rule, that's your
first ruling on whether or not silica is a toxin.  And from that point
on, as you said, you have been enforcing that.  And so the industries
that are using silica began to understand that there was enforcement of
this rule and that's when that started.

		MR. PERRY:  Okay.  Okay, very good.  Let's see.  Have you talked to
major manufacturers of respiratory protection equipment about alternate
blasting agents?  I'm just curious if you had any discussions with them
about the use of alternate blasting agents with respect to the blasting
hoods and helmets that they manufacture and market.

		MR. MELLON:  In what context would I have conversations?  I'm not sure
what you're asking.

		MR. PERRY:  Well, I mean, they've expressed concerns to us over the
years about people using silica sand because they're subject to
liability.  And, in fact, they've been dragged into some lawsuits
concerning the use of silica sand, some tort liability.  But I'm
wondering if they've had that kind of similar experience, as there are
similar concerns about liabilities for customers that are using slags.

		MR. MELLON:  You know, Bill, that's an excellent point.  In fact,
that's the point I made to the director of enforcement, believe it or
not, in that OSHA's -- the template that OSHA used on silica sand, I
believe, should be the standard that is being used for coal slag.

		What had happened is, you're right, some of the manufacturers of
PPE -- and I've talked to distributors who were part of this -- they
did get sued, you're right.  And that's why if you try to buy a bag of
silica sand pretty much anywhere in the United States today, for
industrial use it will say "do not use for sandblasting" and it will
have a silicosis warning on the bag.

		And I pretty much have asked, you know -- and that, by the way, does
help with the liability because the people who sell the PPE gear now say
don't use this for silica sand.  And they learned the hard way because
of those lawsuits.

		Ironically, that is not the case with coal slag and copper slag.  You
can walk into retail stores today and buy coal and copper slag abrasives
off the shelf -- regular retail customers.  It will not say a word
about beryllium.

		So I specifically said to OSHA, I think the next step of this -- it's
great that the MSDS has changed, but the average person doesn't read an
MSDS.  But they do see on a bag if it says, "Caution.  Beryllium can
cause" --

		MR. PERRY:  Right.

		MR. MELLON:  -- "lung cancer or chronic beryllium disease."  And any
assistance that you could have in getting that message through the ranks
would be great.

		MR. PERRY:  Okay.  Just one final question.  Have you done any
research or know what is used in other countries, particularly like the
U.K. -- United Kingdom, Europe, Canada?  Because we have heard
testimony at various times through this hearing that a number of these
countries, actually for several decades now, have banned the use of
silica sand as a blasting agent.

		MR. MELLON:  Um-hum.

		MR. PERRY:  But we have very little information on what is actually
happening and what people are actually using.  Is that something you
might have looked into?

		MR. MELLON:  I have.  You're correct.  In the early '50s, most of
Europe did ban -- outright banned the use of sand because of silica
issues.  They have used -- for instance, England -- and still, I
believe, do use copper slag, but they have had some issues with copper
slag with some of the toxicity issues.  My understanding is, on the
continent of Europe primarily, they do use garnet as well as coal slag. 
So coal slag is still used.

		But they have some of the same issues and I've heard the same thing,
that the EU is looking at the fact that they've got issues with some of
the same toxic issues that are in coal slag, which again, of course, is
coal combustion waste.  So they've got the same issues about regulating
it as well.

		MR. PERRY:  Okay, very good.  I think that does it, unless there's
anything else.  I think that does it for our questioning.  Thank you
again, 

Mr. Mellon, for appearing to testify today.

		MR. MELLON:  Thanks, Bill.  I appreciate it.

		MR. PERRY:  Interesting as always.

		JUDGE PURCELL:  Thank you very much, 

Mr. Mellon.  I appreciate your testimony.

		And with that, that concludes Day 13 of the OSHA rulemaking hearing,
and we'll resume tomorrow morning for Day 14 at 9:30 a.m.

		We are adjourned.

		(Whereupon, at 4:50 p.m., the hearing was continued, to resume the
next day, Friday, April 4, 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 3, 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

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