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 4, 2014

9:30 a.m.

Frances Perkins Building Auditorium

200 Constitution Avenue, N.W.

Washington, D.C. 20210

	

BEFORE: 	STEPHEN L. PURCELL

	   	Chief Administrative Law Judge

 

U.S. DEPARTMENT OF LABOR (DOL):

ANNE RYDER

Attorney, Office of the Solicitor

ALLISON KRAMER

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

JOSEPH COBLE, Sc.D., CIH

Director, Office of Technological Feasibility

ROBERT BURT

Acting Deputy Director, Directorate of Standards and Guidance	

ANNETTE IANNUCCI

Health Scientist, Office of Chemical Hazards 

- Non-Metals

DALTON MOORE

Office of Technical Feasibility

NEIL DAVIS

Office of Chemical Hazards - Non-Metals

TIFFANY DeFOE

Office of Chemical Hazards - Metals

ROBERT BLICKSILVER

Office of Regulatory Analysis - Health

PATRICIA DOWNS

Office of Technologic Feasibility

AMERICAN PETROLEUM INSTITUTE (API):

WAYNE D'ANGELO	

Attorney, Kelley, Drye & Warren

STEVEN CROOKSHANK

Senior Economist

ASSOCIATION OF ENERGY SERVICE COMPANIES (AESC):

KENNY JORDAN

Executive Director

SANDBOX LOGISTICS:

JOHN OREN

Chairman

ALLAMAKEE COUNTY PROTECTORS:

ROBERT NEHMAN

LABORERS' HEALTH AND SAFETY FUND OF NORTH

AMERICA:

SCOTT SCHNEIDER, CIH

Director of Occupational Safety and Health

WALTER JONES, CIH

Associate Director

TRAVIS PARSONS	

Senior Safety and Health Specialist

JAMES MELIUS, M.D.	

New York State Laborers' Health and Safety Fund

Laborers' Health and Safety Fund of North America

EDDIE MALLON	

Laborers Local 147

KEN HOFFNER

Assistant Director, New Jersey Laborers' Health and Safety Fund

TOM NUNZIATA

LIUNA Training and Education Fund

PORTLAND CEMENT ASSOCIATION (PCA):

THOMAS HARMAN

Safety Director/Senior Director of Regulatory Affairs

RYAN LANGTON 

Health and Safety Manager, Lafarge U.S.

NATIONAL READY MIXED CONCRETE ASSOCIATION (NRMCA):

ROBERT GARBINI 

President

PRECAST/PRESTRESSED CONCRETE INSTITUTE (PCI): 

JAMES TOSCAS 

INTERLOCKING CONCRETE PAVEMENT INSTITUTE (ICPI):

RANDALL PENCE

Government Relations Counsel

CHARLES McGRATH 

Executive Director

DAVID SMITH

Technical Director

OTHER PARTICIPANTS:

PEG SEMINARIO

Safety and Health Director, AFL-CIO 

CHRIS TRAHAN

Building and Construction Trades Department, AFL-CIO 

ELIZABETH NADEAU

Attorney, International Union of Operating Engineers 

BILL KOJOLA

National Council for Occupational Safety and Health

STEVE MITCHELL

INDEX

										PAGE

		

INTRODUCTION

Judge Stephen L. Purcell					   	  PAGEREF a1Purcellopening \h  4021 

AMERICAN PETROLEUM INSTITUTE (API); ASSOCIATION 

OF ENERGY SERVICE COMPANIES (AESC)

	API - Wayne D'Angelo				   	  PAGEREF b1DAngelo \h  4022 

	API - Steven Crookshank 				  	  PAGEREF b2Crookshank \h  4042 

	AESC - Kenny Jordan 				  	  PAGEREF b3Jordan \h  4058 

	Questions							  	  PAGEREF b4questions \h  4065 

SANDBOX LOGISTICS

	John Oren							 	  PAGEREF c1oren \h  4136 

	Questions							 	  PAGEREF c2questions \h  4147 

ALLAMAKEE COUNTY PROTECTORS

	Robert Nehman						 	  PAGEREF D1Nehman \h  4164 

	Questions							 	  PAGEREF D2questions \h  4173 

LABORERS' HEALTH AND SAFETY FUND OF NORTH

AMERICA

	Scott Schneider, CIH				 	  PAGEREF F1Schneider \h  4179 

	Walter Jones, CIH					 	  PAGEREF F2Jones \h  4186 

	Travis Parsons						 	  PAGEREF F3Parsons \h  4196 

	James Melius, M.D.					 	  PAGEREF F4Melius \h  4201 

	Eddie Mallon						 	  PAGEREF F5Mallin \h  4209 

	Ken Hoffner						 	  PAGEREF F6Hoffner \h  4212 

	Tom Nunziata						 	  PAGEREF F7Nunziata \h  4217 

	Questions							 	  PAGEREF F8questions \h  4223 

INDEX

										PAGE

PORTLAND CEMENT ASSOCIATION (PCA); NATIONAL 

READY MIXED CONCRETE ASSOCIATION (NRMCA)

	PCA - Thomas Harman 				 	  PAGEREF G1Harman \h  4301 

	PCA - Ryan Langton, CIH, CSP			 	  PAGEREF G2Langton \h  4302 

	NRMCA - Robert Garbini 				 	  PAGEREF G3Garbini \h  4309 

	Questions							 	  PAGEREF G4questions \h  4317 

PRECAST/PRESTRESSED CONCRETE INSTITUTE (PCI); 

INTERLOCKING CONCRETE PAVEMENT INSTITUTE (ICPI)

	PCI - James Toscas 					 	  PAGEREF H1Toscas \h  4349 

	ICPI - Randall Pence 					  PAGEREF H2Pence \h  4366 

	ICPI - Charles McGrath 				 	  PAGEREF H3McGrath \h  4372 

	Questions							 	  PAGEREF H4questions \h  4376 

ADJOURNMENT							 	  PAGEREF I1adjourn \h  4415 

EXHIBITS

EXHIBITS		DESCRIPTION				 	PAGE

Exhibit 148	API PowerPoint					  PAGEREF ex148to151 \h  4042 

Exhibit 149	Mr. D'Angelo's testimony			  PAGEREF ex148to151 \h  4042 

Exhibit 150	Mr. Crookshank's testimony		  PAGEREF ex148to151 \h  4042 

Exhibit 151	Mr. Jordan's testimony			  PAGEREF ex148to151 \h  4042 

Exhibit 152	Mr. Oren's testimony			  PAGEREF ex152 \h  4136 

Exhibit 153	Mr. Nehman's testimony			  PAGEREF ex153 \h  4164 

Exhibit 154	Frack proposed schedule			  PAGEREF ex154to157 \h  4177 

		

Exhibit 155	Wisconsin frack map				  PAGEREF ex154to157 \h  4177 

Exhibit 156	PM2.5 chart					  PAGEREF ex154to157 \h  4177 

Exhibit 157	Mr. Nehman's video				  PAGEREF ex154to157 \h  4177 

Exhibit 158	Mr. Schneider's testimony		  PAGEREF ex158to159 \h  4179 

Exhibit 159	Mr. Schneider's PowerPoint		  PAGEREF ex158to159 \h  4179 

Exhibit 160	Reserved - Ms. Nadeau's

			orange mud prevention item		  PAGEREF ex160reservedNadeau \h  4252 

Exhibit 161	AIHA white paper				  PAGEREF ex161 \h  4301 

Exhibit 162	Mr. Langton's testimony			  PAGEREF ex162to163 \h  4308 

Exhibit 163	Mr. Harman's testimony			  PAGEREF ex162to163 \h  4308 

Exhibit 164	Mr. Garbini's testimony			  PAGEREF ex162to163 \h  4308 

Exhibit 165	"Nine Ways to Give Drum Chippers 

			Nine Lives"					  PAGEREF ex165 \h  4331 

Exhibit 166	Mr. McGrath's testimony			  PAGEREF ex166 \h  4366 

 

P R O C E E D I N G S

(9:31 a.m.)

		JUDGE PURCELL:  Good morning, ladies and gentlemen.  My name is
Stephen Purcell, and I'm the Chief Judge at the U.S. Department of
Labor.  Welcome to Day 14, the final day of the public hearings for the
proposed rule on occupational exposure to respirable crystalline silica.

		The agenda has the first speakers this morning, Wayne D'Angelo and
Steven Crookshank from the American Petroleum Institute.  Also joining
them at this time will be Kenny Jordan with the Association of Energy
Service Companies.  

		Prior to starting, Mr. D'Angelo gave me a copy of their PowerPoint
presentation that he will use during the program, and I have marked that
as Hearing Exhibit 144.  I also have a copy of his testimony, which I'll
mark as Hearing Exhibit 145; a copy of Mr. Crookshank's testimony,
which I'll mark as Hearing Exhibit 146.  Also, Mr. Jordan has given me
a copy of his testimony, which I'll mark as Hearing Exhibit 147.  And
each of those exhibits will be admitted into the record.

		Mr. D'Angelo, if you're ready, you may proceed.

		MR. D'ANGELO:  Thank you, Your Honor.  Good morning everyone.  I
appreciate the opportunity to provide testimony today.  This is my cover
slide.  I'll refer to it as Slide 1 and identify the slides by number
hereafter.

		My name is Wayne D'Angelo.  I am an attorney with the law firm Kelley,
Drye and Warren.  I am testifying today on behalf of the American
Petroleum Institute.  I am joined by Steven Crookshank, who is a Senior
Economist at the API.  My comments will be on the proposed rule
generally with a particular focus on its technological feasibility in
the hydraulic fracturing industry.  Mr. Crookshank will focus on the
economic feasibility of the proposed rule also in the hydraulic
fracturing industry.

		API is a national trade association representing over 570 member
companies involved in all aspects of the oil and natural gas industry. 
API's members include producers, refiners, suppliers, pipeline
operators, and marine transporters, as well as supply and service
companies that support all aspects of the industry.

		Slide 2.  API and its members are dedicated to protecting their
employees and meeting environmental requirements while economically
developing and supplying energy resources for consumers.  The oil and
gas industry's commitment to employee health and safety has resulted in
rates of injury and illness that are not only far below the average
private industry rates, but below the rates for analogous industries.

		In addition to the extensive programs in place at API member
companies, companies work through API to increase worker safety though
research, information sharing, and through the development of standards.
 This slide, which is a bit of an eye chart, has --

		MS. RYDER:  Mr. D'Angelo, will you speak up a little bit?  I think
people are having problems hearing.

		MR. D'ANGELO:  Oh, I apologize.  That's usually not a problem.  

		This slide here, which is a bit of an eye chart, has a list of a
number of the standards that API has developed related to safety and
best practices, etc.

		Slide 3.  API and its members voluntarily participate in the National
Service Transmission Exploration and Production Safety Network, the
STEPS Network.  Perhaps many of you at OSHA have worked across the table
with a lot of our members.  Also, the American Industrial Hygiene
Association, the American Conference of Governmental Industrial
Hygienists, the Society of Petroleum Engineers, the American Society of
Safety Engineers, and the American Society for the Testing of Materials
International.  And they have worked constructively with OSHA on this
proposed rule.

		JUDGE PURCELL:  Mr. D'Angelo, I think you need to move the mike a
little closer.

		MR. D'ANGELO:  More?  I'm sorry.  All right, now I can hear myself.

		JUDGE PURCELL:  Thank you.

		MR. D'ANGELO:  API fully participated in this rulemaking process from
the time OSHA first identified the hydraulic fracturing industry as a
potentially impacted industry just last year.  It submitted extensive
comments with the Independent Petroleum Association of America and
submitted comments through its participation in the American Chemistry
Council's Silica Panel.

		Given the breadth of the activities conducted in the energy industry
and the ubiquity of silica, API members in all segments of the industry
are likely impacted in some way by this proposed rule.  Our testimony
today, however, focuses on the segment of the industry that conducts
hydraulic fracturing.

		Slide 4.  Hydraulic fracturing is a well stimulation technology that
fractures resource-containing rocks and other impermeable structures
through application of high pressure fluid.  The fluid that is used in
hydraulic fracturing is accompanied by proppants, typically particles of
sand which are carried into the newly fractured rock and keep the
fractures open so that the hydrocarbon resources can flow.

		While hydraulic fracturing is not a new technology, its use in
conjunction with technologies such as horizontal drilling is more
recent.  Without question, the intersection of these technologies has
changed the way the world looks at energy and has delivered tremendous
benefits to the U.S. economy.

		Slide 5.  Not only has hydraulic fracturing helped make the United
States the world's top hydrocarbon producer, this helped create
high-paying jobs, a renascence of domestic manufacturing and historic
lows in our nation's trade deficit.  At the same time, the increased use
of natural gas has helped reduce America's greenhouse gas emissions to
levels previously considered unattainable.

		In addition to the unquestionable importance of hydraulic fracturing,
I am today focusing my testimony on this industry for two primary
reasons which taken together raise significant concerns about OSHA's
feasibility analysis for the proposed rule.

		First, the hydraulic fracturing industry would be uniquely impacted
because the fracturing process requires use and movement of volumes of
silica-containing sand that far exceed other industries also impacted by
this proposed rule.

		Secondly, in spite of this rule's widely disproportionate impact on
the hydraulic fracturing industry, for the majority of this protracted
Facilities Management process OSHA never studied the hydraulic
fracturing industry, its exposures, or its compliance options.  The
entirety of OSHA's analysis was appended in late 2013 to the extensive
preliminary economic analysis under which each other impacted industry
was examined.

		As a consequence of this rushed addition of the hydraulic fracturing
industry to the PEA, OSHA did not meet its requirements under the OSH
Act to base its proposal on substantial evidence with respect to
hydraulic fracturing.  OSHA's conclusions on the technological and
economic feasibility of the proposed rule on the hydraulic fracturing
industry in fact were largely unsupported.

		OSHA could have found additional support and provided a more informed
proposed rule by initiating proceedings with stakeholder engagement
under the Small Business Regulatory Enforcement Fairness Act.  OSHA's
prior SBREFA proceedings significantly predated the widespread expansion
of hydraulic fracturing.

		Slide 6.  Slide 6 shows the steep increase in hydrocarbon resources
developed in large part with hydraulic fracturing.  And the dates show
just how quickly and how precipitously that increase was undertaken. 
While other industries may be subject to a rule that is based on
exceptionally dated SBREFA analysis, the hydraulic fracturing industry,
arguably the most profoundly impacted industry under this proposed rule,
will potentially be subject to a new rule without an SBREFA analysis at
all.

		That process matters, because these procedural missions led to
substantive errors in OSHA's PEA.  Understanding the technological and
economic feasibility of a proposed rule on an industry takes time and it
requires engagement with that industry.  But the drafters of the
feasibility analysis for the hydraulic fracturing industry were provided
neither time nor the opportunity for engagement when they were asked to
quickly pull together a feasibility analysis that could be appended to
an already drafted PEA.

		Slide 7.  It is, therefore, entirely expected that Appendix A's
analysis was flawed.  Our critiques of the propound flaws therein should
not be imputed to the OSHA employees and contractors who were provided
an unrealistic deadline and deprived of a SBREFA process.  API's view is
that OSHA's flawed feasibility analysis is likely the product of an
unwise decision to withhold from the authors of Appendix A the time and
the tools necessary to write a legally sufficient feasibility analysis
for the hydraulic fracturing industry.  

		Importantly, this is not an empty platitude.  You've been here for
three weeks.  No one is doubting the hard work and effort that OSHA has
provided here.  In fact, just as a side note, I changed my slides two
days ago and sent an email to the docket saying -- or to the email
address for the hearing, hey, can I get these changed?  I got an email
back at 10:30 at night.  I mean no one is doubting your hard work.

		But we would like to examine the technological feasibility analysis
because we do think it shows a flawed process.  That's Slide 8.

		And Slide 9, bringing together some quotes to leave on, noting the
uncertainty with respect to technological feasibility and a NIOSH
conclusion that effective engineering controls are not yet available.

		From both an economic and technological perspective, most of OSHA's
errors derive from the fact that OSHA viewed the hydraulic fracturing
industry as just another industry subject to the proposed rule.  But the
hydraulic fracturing industry is not the same as other industries.

		The hydraulic fracturing industry works in uncontrolled and widely
differing outdoor environments that change weekly, if not more
frequently.  And no two workplaces or equipment configurations are ever
the same.  If you have been to one hydraulic fracturing site, you've
been to one hydraulic fracturing site.  It is this same type of
variability that led to a compliance alternative for the construction
industry and an exclusion for the agricultural industry.  

		Not only is the work environment in the hydraulic fracturing industry
different in its high variability, it is different because it is a work
environment that requires use and movement of volumes of
silica-containing sand that are not likely seen in any other industry. 
Engineering and work practice controls that may be effective and
feasible in controlled indoor environments may not be effective in the
hydraulic fracturing industry.

		Further, while other industries have testified here on their continual
decades-long process improvements, design information sharing
refinement, the rapid ascent of modern hydraulic fracturing has not
provided our industry this similar lead time.  

		Hydraulic fracturing is also different because OSHA seems to know less
about this industry than any other.  This is certainly the case with the
industry exposure profile.

		Slide 10.  Appendix A's exposure profile for the hydraulic fracturing
industry is limited, in fact not even sufficient to meet the proposed
rule's requirements for representative sampling in a single workplace. 
However, even that profile portrays an industry faced with high ambient
silica levels and significant compliance challenges.  

		API members are meeting these challenges by utilizing a hierarchy of
controls that includes effective respiratory protection programs.  They
do so because, despite significant efforts to develop and deploy
silica-containing technologies and strategies, there is presently no
combination of controls that effectively protect hydraulic fracturing
workers without the use of respirators.

		And I just want to amplify and punctuate this point.  We will be
talking a lot about exposures and a lot about workers.  The hydraulic
fracturing industry is protecting workers.  They are using respirators. 
The exposures we're talking about are exposures that are monitored
outside the breathing zone, outside the respirator.  But those workers
are being protected with respirators.  It was noted in the NIOSH
reports.  It was noted by OSHA's contractors.  And it is an important
point for us.

		Slide 11.  Appendix A's conclusions otherwise regarding the
availability and efficacy of controls have no merit.  OSHA suggests that
through utilization of four types of controls, the hydraulic fracturing
industry can control 94 percent of all exposures, all exposures up to
1,400 µg/m3 without the use of respirators.  The reality is that
despite considerable efforts of numerous companies with dedicated IHS
personnel, supported by sophisticated engineering departments committed
to achieving such controls, they are presently unattainable. 

		More specifically, Appendix A's combination of controls assumes that
local exhaust ventilation, LEV, for thief hatches will reduce all
exposures by 50 percent.  Then LEV for conveyors, drop points, and
hoppers will reduce exposures by an additional 66 percent.  Then use of
wetting methods will further reduce exposures by an additional 63
percent.  Then, finally, use of dust booths will reduce exposures by an
additional 45 percent.  As much as we would like it to be so, that is
simply not the way things work.

		Assuming for the sake of argument that each of these controls
technologies were available and 100 percent as effective as OSHA
assumed, their control efficacies are not additive.  If an emissions
source is controlled with 50 percent efficacy by Control Technology 1,
application of Control Technology 2 will not deliver the full efficacy
as if it were used alone.

		Further, some of these technologies cannot be used in combination. 
For instance, if an emission source is both enclosed and controlled
through local exhaust ventilation, then how can a water misting system
also control the same source?  Even viewed independently, however, OSHA
has set unrealistic expectations for the success of its proffered and
untested control technologies.

		Slide 12.  Take LEV for thief hatches, the cornerstone of OSHA's
combination of controls.  OSHA assumes it will reduce exposures by 50
percent.  OSHA's basis for this estimate is the visual impression from
photos and videos taken from a website from a company that sells LEV for
thief hatches.  So the visual impression is that 50 percent of dust
emissions come from thief hatches at hydraulic fracturing sites.  And
because OSHA assumes 50 percent of emissions are from thief hatches and
LEV can control 50 percent of exposures, OSHA implicitly assumes that
the LEV will be 100 percent effective in controlling thief hatch
emissions.  LEV is never 100 percent effective.  

		In no other industry examined by OSHA did it find LEV to be 100
percent effective.  Even in those industries with controlled indoor
environments, static emission sources, and the ability to precisely
calibrate LEV and leave it in place, OSHA did not assume 100 percent
efficacy.  It is unclear, but also unsupportable that they did so for an
industry that works outdoors, that must set up and deconstruct its
equipment, and control technology weekly, if not more frequently, and
has not yet successfully deployed LEV.

		It is also unclear why OSHA assumed that visual impressions from
videos on a website were sufficient to demonstrate that 50 percent of
silica emissions were from thief hatches.  Nor did OSHA explain how it
jumped from a conclusion of 50 percent of emissions came from thief
hatches to a conclusion that 50 percent of silica exposures came from
thief hatches.  Exposure is a function of proximity to the emission
source.  But as OSHA acknowledges, some employees work close to the
thief hatches, but many more do not.

		Slide 13.  Nor did OSHA show that LEV for thief hatches was
commercially available.  Instead of pointing to two companies, one which
makes a bolt-on LEV for purchase and one which provides LEV control
services, for the for-purchase LEV, OSHA simply noted its existence,
provided no technological feasibility analysis at all.  No monitoring
data, no testing data, no information about commercial availability or
applicability.

		OSHA did, however, find the for-service option to be commercially
available despite its own docket noting at the time that the company had
two new units in the field and one in production.  I am told the company
has increased its availability since then, but I've also been told that
they still do not have the capability to handle even the fleets of a
single larger hydraulic fracturing company.  And, incidentally, it still
has not yet been fully tested.  Incidentally, also, ERG, the contractor,
noted an annualized cost of $140 million per year for this unit.

		Slide 14.  Again, noting the flawed analysis OSHA applied to LEV for
thief hatches is not an empty gesture.  It matters.  OSHA relied on the
efficacy and availability of this control to conclude that 88 percent of
hydraulic fracturing workers, the most highly exposed job categories
identified by OSHA, can meet the proposed PEL without use of
respirators.  The same type of analytical flaws, however, pervades
OSHA's analysis of each of the three remaining control technologies in
its combination of controls.

		Slide 15.  In estimating that enclosures and LEV for conveyors, drop
points, and hoppers would reduce exposures by 66 percent, OSHA relied on
a study of controls on rock crushing machines in Iran. When the PEA
examined the technological feasibility of this proposed rule on the
domestic rock crushing industry, however, OSHA dismissed the study as
too deficient and the Iranian rock crushing equipment as too dissimilar.
 

		Why the study was deemed sufficient and similar enough for the
hydraulic fracturing industry, which does not use rock crushing machines
or any equipment remotely similar to rock crushing machines, and has in
fact vastly different equipment and silica levels, is unclear.  But,
again, it is also unsupportable. 

		Indeed, enclosure and LEV are not commercially available for use in
hydraulic fracturing conveyors, drop points, and hoppers.  OSHA
identified only one company with a stated capability to enclose and
install LEV for these emission points, the same company that had two
units in the field and one in production when OSHA determined that this
rule was technologically feasible for the hydraulic fracturing industry.

		Slide 16.  For its estimate that water misting, the third of OSHA's
four proffered combination of controls, OSHA concluded misting systems
would reduce exposures by 63 percent.  Once again, OSHA relied on a
study of rock crushing equipment, this time equipment in India.  And,
once again, when OSHA evaluated the same study for its technological
feasibility analysis for the rock crushing industry here, it discounted
it as too deficient and the equipment too dissimilar.  

		The photo I have up on my slide is a picture of the rock crushing
equipment that was studied in the Indian study and a complex modern
hydraulic fracturing site.  Not only is the equipment dissimilar, the
exposures are dissimilar, the employee interactions with the emissions
are far different.  Too dissimilar for the analysis to the exact same
industry, the rock crushing industry, and yet this was similar enough
for an industry that does not even use rock crushing equipment.  How is
such a conclusion supportable?  We cannot even tell what emission points
OSHA suggests will be controlled with 63 percent efficacy with water
misting.

		OSHA and NIOSH identified seven silica emission points at hydraulic
fracturing sites.  We know the Appendix A analysis is not proposing
misting to be used on thief hatches or side-filled ports because OSHA
assumes that those are enclosed and they are already being controlled
with 100 percent efficacy.  We know Appendix A is not referring to four
other emissions points, because OSHA later concludes that reductions in
addition to the 60 percent could be realized by misting of those points.
 Also, Appendix A assumes that such emission points are already enclosed
and, therefore, potentially not amenable to water misting.

		The only remaining type of silica emission on a hydraulic fracturing
site that could conceivably be controlled through misting is dust from
truck traffic.  But then why is the Appendix A analysis based on
efficacy of equipment-based controls and why is it described as
equipment-based.  Surface wetting data is available in the record and
was used in analysis for other industries.  

		Why does Appendix A conclude that companies will realize the full 63
percent efficacy when it elsewhere concludes that 10 percent of
companies are already using water misting?  And how is such a control to
be utilized to protect workers when temperatures are at or below
freezing?  One could envision that that would create risks, additional
risks, and profound risks.

		Appendix A's economic feasibility analysis does not help our
understanding of the assumed role for water misting, either.  It simply
notes OSHA's assumption that the single fixed price water misting system
could control all emission sources on site.  Such a system, however,
does not exist.  Respectfully, there is no evidence in the record that
even OSHA knows what emissions it assumed would be controlled through
water misting.

		Slide 17.  The final technology in Appendix A's combination for
controls for the hydraulic fracturing industry is the operator
enclosure.  OSHA assumes that it will reduce silica exposures by an
additional 45 percent.  That assumption is not based on any evidence of
dust booth use in the hydraulic fracturing industry, any evidence of a
particular amount of time a hydraulic fracturing worker would actually
spend inside such an enclosure, and no consideration of the practical
implications of attaching a heavy operator enclosure on equipment that
is already quite close to maxing out gross vehicle weight restrictions.

		Even assuming, however, that operator enclosures were feasible and as
effective as OSHA presumed, the Appendix A analysis was still deficient
because it attributed the assumed 45 percent reduction to all workers
regardless of whether they are in an enclosure.  A dust control booth is
more analogous to a respirator.  It is only being helpful to the person
who is using it.  It is not a control at the source.

		Appendix A's economic analysis states the enclosures will only be used
for sand movers, but that only benefits the sand mover operator and
only, again, for such time as the sand mover operator can remain with
inside the booth.  Why does OSHA then assume that other highly exposed
job categories will be similarly protected?  We don't know and Appendix
A never explains.

		Slide 18.  Appendix A's technological feasibility analysis is the
produce of an abbreviated regulatory review.  And, respectfully, the
rush to regulate is evident.  For each individual proffered control,
Appendix A failed to demonstrate the feasibility.  Instead, it was based
on unsupported analogy studies elsewhere rejected as flawed or
unrepresentative, unsupported assumptions, and overly conclusive
statements.  

		Moreover, Appendix A only compounded these errors by compiling them
into a combination of controls, combinations which in some cases are
technologically impossible and in all cases which rely on an erroneous
assumption that each control efficacy would be additive to the prior.

		This proposed rule is not technologically feasible for the hydraulic
fracturing industry.  OSHA has provided no evidence that there is a
combination of controls that would obviate the need to protect workers
through the use of respirators.  API, therefore, urges OSHA to withdraw
the proposed rule and undertake a new feasibility analysis in
conjunction with the industry that not only bring relevant expertise,
but which also share OSHA's deep interest in protecting workers and
reducing occupational exposure to respirable crystalline silica.  I
really appreciate the opportunity to testify here today and I'd be happy
to take any questions.

		JUDGE PURCELL:  Thank you, Mr. D'Angelo.  And Mr. Crookshank, before
we start with you, I need to make a correction on the record.

		We finished yesterday with 147 exhibits, so the first exhibit today is
148.  Based on that, I have renumbered the PowerPoint presentation as
Hearing Exhibit 148, Mr. D'Angelo's testimony as Exhibit 149,
Mr. Crookshank's testimony as Hearing Exhibit 150, and Mr. Jordan's
testimony as Exhibit 151.

(Whereupon, the documents referred to as Hearing Exhibits 148 through
151 were marked and received in evidence.)

		JUDGE PURCELL:  So if you are ready, Mr. Crookshank, you may begin.

		MR. CROOKSHANK:  Thank you.  I appreciate the opportunity today to
provide testimony on OSHA's proposed rule on occupational exposure to
respirable crystalline silica.  My name is Steve Crookshank.  I am a
Senior Economist with the American Petroleum Institute.  Today, I am
presenting API's views on OSHA's analysis of the economic feasibility of
the proposed rule on the hydraulic fracturing industry.

		To evaluate OSHA's assessment of the economic feasibility of the
proposed rule, I examined relevant documents in the document Appendix A
to the preliminary economic analysis and the ERG report upon which it
was based.  I worked closely with API member companies, who are
industrial hygienists, and other technical experts.  I also worked
closely with Stu Sessions from Environomics, who testified earlier, and
who is the primary developer of the workbooks that underlie API's review
of OSHA's economic feasibility analysis.  

		The views I express here today are based on over 20 years of work as
an economist for API.  Throughout my tenure at API, I conducted numerous
economic analyses of potential impacts of existing and proposed
regulatory and legislative actions. 

		Of particular relevance here, I have conducted economic analyses of
proposed occupational health and safety standards, as well as analyses
on a wide variety of legislative and regulatory proposals on segments of
the oil and gas industry that either conduct or utilize hydraulic
fracturing to stimulate well production.  

		Having conducted numerous economic analyses analogous to the one on
which I am testifying, I fully understand the difficulty of conducting
such analysis under constraints with which OSHA's economic analysts
operated.  To better understand the potential economic impacts of the
proposed rule, I was able to draw on 20 years of experience working in
the oil and gas industry.  More importantly, as an employee of a trade
association, I was able to draw on the knowledge of many experts in the
industry.  Unfortunately, OSHA's economic analysts were deprived of
similar insights because of the decision to rely on SBREFA proceedings
that did not include the hydraulic fracturing industry.

		While I believe that OSHA's economic feasibility analysis for the
hydraulic fracturing industry contains some significant errors, I do not
fault the analysts who were forced to examine the hydraulic fracturing
industry under unduly aggressive time constraints.  In fact, in many
instances, I think OSHA utilized very reasonable assumptions to overcome
significant data gaps.

		Take, for instance, OSHA's profile of the hydraulic fracturing
industry.  In order to assess the economic feasibility of the proposed
action, OSHA needed to understand the industry's size, structure, as
well as the demographics of and economic pressures faced by industry
participants.  Without this, it is impossible to conclude anything about
the potential impacts of the regulatory costs on the industry or assess
the potential for dislocation, consolidation, or competitive
restructuring.

		To develop a hydraulic fracturing industry profile, OSHA looked first
to the Bureau of the Census' economic data.  Since this data for the
hydraulic fracturing industry, however, falls within a six-digit NAICS
code that aggregates data from a number of industries that are similar
and that are all a part of the oil and gas services industry, but
otherwise are very heterogeneous.  Absent any census statistics such as
firm size, number of employees, revenues or profits that are particular
to the hydraulic fracturing industry, I believe OSHA made an
inappropriate decision to look to alternative sources to build its
profile.

		Based on conversations with industry sources and analytic review, OSHA
estimated that the hydraulic fracturing industry consists of about 200
entities, of which there are about 150, "very small fracturing firms,"
and that these firms, "handle only minor, low pressure fracturing jobs
on conventional oil and gas wells."  At API, we discussed this profile
at length with our member companies and concluded that OSHA's profile of
a 200 entity hydraulic fracturing industry with 150 very small firms was
a rational and supportable estimate.  

		It is unclear though why after making this estimate, OSHA then based
on subsequent analyses on a profile that still includes 200 firms in
total but now only includes 100 small firms defined by OSHA as those
with 10 to 19 employees.  We do not know whether the switch from 150 to
100 is simply a typo or OSHA was opting to not analyze companies with
less than 10 employees, despite acknowledging that they do in fact
exist.

		While we believe that OSHA's initial estimate of 150 small entities is
most accurate and in fact the only estimate of the two that was based on
ERG's industry contacts, in many ways it does not matter whether small
entities constitute 100 or 150 of the entities in the 200-firm hydraulic
fracturing industry.  Regardless whether small businesses comprise 50 or
75 percent of the industry, there is no question that small businesses
make up a huge portion of the hydraulic fracturing industry.

		Indeed, the economic feasibility of this rule hinges on the cost
impacts of the proposed rule on these small businesses.  The extent to
which regulatory costs could adversely impact small businesses requires
those costs be measured against those businesses' revenues and profits.

		In examining the revenues for these small entities, OSHA again needed
to overcome the lack of specific and recent census data.  OSHA did so by
building an estimate based on the revenue small hydraulic fracturing
businesses can generate per job and multiplying that number by the
number of jobs a small entity can do per year.  We believe this approach
was both necessary and reasonable.  

		Based on its contractor's research, OSHA concluded that these small
firms can only conduct low pressure refracts of conventional wells. 
Again, this is a reasonable conclusion.  The equipment required to
conduct high pressure or compact hydraulic fracturing is quite expensive
and, as stated by OSHA, likely a significant barrier to entry for
smaller, less capitalized businesses.  It is highly likely that the
lower cost and lower horsepower equipment available to small businesses
would constrain their well service offerings to low pressure refracts of
existing conventional wells.

		OSHA then estimated that small hydraulic fracturing companies charge
about $25,000 for each job.  Again, our research suggests that this
estimate is both rationale and supportable.  We disagree, however, with
the second step in OSHA's analysis where OSHA assumed without any
support that these small companies conduct these $25,000 jobs, 219 times
per year, which this assumption is based -- the assumption is that 219
jobs per year represents a modest utilization rate of 60 percent.  But
it is far from modest and there is no support for concluding that small
entities could maintain a 60 percent utilization rate as is defined here
by OSHA.

		OSHA's sole basis for this rate is a 2012 press release from PacWest
Consulting, estimating a 75 percent capacity utilization rate.  OSHA
assumed that if all sizes of fleets have a utilization rate of 75
percent, then surely it is rational to assume that the smallest fleet
can maintain a utilization rate of 60 percent.  While such a discounting
for smaller fleets may be appropriate, OSHA's interpretation of capacity
utilization rate is not.

		OSHA interpreted the capacity utilization rate to mean the number of
jobs or stages the company could complete per year.  However, capacity
utilization has nothing to do with number of stages or jobs a company
can fracture per year.  According to PacWest, capacity utilization rate
represents a level of demand for fracturing services relative to
available supply.  The 75 percent rate relied upon by OSHA actually
means that at any given time, three-quarters of the hydraulic fracturing
industry is working and another quarter is waiting for the phone to
ring.  If you're a hydraulic fracturing company, this is not a
particularly welcome statistic.  

		Further, the press release cited by OSHA went on to state the capacity
utilization in the hydraulic fracturing industry is trending downward
due to oversupply of equipment, far from being evidence of a fantastic
job completion rate.  The PacWest data upon which OSHA exclusively
relied suggests that the hydraulic fracturing industry is dealing with
overcapacity and an insufficient demand to warrant fantastic rates of
job completion even if such rates of job completion were achievable from
a practical perspective.  But 219 jobs per years is unachievable from a
practical perspective, as well.

		OSHA estimates low pressure refracting of conventional wells is
typically accomplished in a single day.  API concurs.  The actual
refracture may be accomplished in a single day; however, that does not
mean that a small company operating a single fleet can knock out
fractures at different wells day after day, after day.  Hydraulic
fracturing requires site preparation, equipment assembly, and equipment
dismantling between each site.

		And what about transportation?  One would assume that in order to
maintain a sufficient base of potential clients, small hydraulic
fracturing companies may need to be willing to travel some distance. 
Building and transport, assembly, and dismantling, there simply aren't
enough days in a year for a small company to accomplish 219 individual
fracture jobs, let alone when realities such as employee leave, supply
coordination, and maintenance are considered.

		In our written comments, API recommended that OSHA assume an 80
percent utilization ratio for small entities.  Importantly, we are
recommending 80 percent based on industry's definition of a utilization
rate which is the percent of time the equipment is deployed, that is in
transport, being constructed, dismantled, or in actual use. 

		Under this real-world 80 percent rate, which accounts for travel,
setup and breakdown, crews are deployed 292 days per year and complete
97 fractures per year.  Such a utilization rate remains ambitious
considering the overcapacity noted by PacWest and cited by OSHA.  

		Small businesses completing these 97 fractures per year at OSHA's
estimated $25,000 per fracture generate $2.4 million in revenue, more
than reasonable given their size and significantly within 12 percent of
the census revenue data for small firms in the six digit NAICS code. 
Therefore, the evidence strongly suggests that a small hydraulic
fracturing firm generates $2.4 million in revenue, not the $5.5 million
OSHA estimated based on an unrealistic number of jobs per year.

		Understanding profits for these small businesses is significantly more
difficult.  OSHA has said as much and we certainly agree.  We do not
agree, however, that it was rational for OSHA to accept the 10.31
percent profit ratio based on census data as both older and more
aggregated than the data that OSHA rejected as unreliable and are
representative when examining revenues.  That being said, API can offer
no better insight into the profit rate for these small businesses.  And,
therefore, for purposes of this analysis, accept OSHA's proffered rate
of 10.31 percent. 

		Therefore, accepting literally each and every one of OSHA's
assumptions and conclusions, except misapplied utilization ratio, the
small hydraulic fracturing companies which make up between 50 to 75
percent of all hydraulic fracturing companies, on average, generate $2.4
million in annual revenues and about a quarter million in annual
profits, $250,000.  It is against this more accurate, better supported,
more rational profile of the hydraulic fracturing company that OSHA must
assess the cost of its rule.  

		So what are the costs of the proposed rule?  The answer is that OSHA
has no idea.  In fact, nobody does.  As noted in API's comments and by
Mr. D'Angelo earlier, OSHA has not met its burden of showing that the
suite of controls it offers as a technologically feasible solution to
silica exposure at hydraulic fracturing sites will be effective at all
in meeting the proposed PEL.

		Until such time as someone figures out a technology or a combination
of technologies that is capable of controlling exposures at hydraulic
fracturing sites to within the proposed PEL, no one can credibly
evaluate the cost of such controls.  Moreover, whereas OSHA assumed it
would require use of four technologies to meet the proposed PEL, OSHA
analyzed the cost of only two of those technologies, LEV controls at
thief hatches and dust booths.  OSHA attributed no costs at all for
installation of water misting systems or LEV for conveyors, drop points,
and hoppers, technologies OSHA elsewhere considers essential for
compliance with the PEL.  

		OSHA simply reclassified those technologies as already necessary to
comply with the present PEL.  But OSHA knows that controlling the
present PEL isn't feasible without the use of respirators, and some
exposure profiles for the hydraulic fracturing industry demonstrates as
much.  OSHA knows that companies are, for instance, not using LEV on
conveyors, drop points, and hoppers because OSHA also knows that such
technology is not presently commercially available and not demonstrated
to be a feasible control.  Declining to account for known costs is not
rational and certainly is not reliance on best available evidence.  

		In addition to arbitrarily basing its economic feasibility analysis on
only half the controls it deemed necessary to comply with the PEL, when
OSHA did calculate compliance costs for the hydraulic fracturing
industry, it underestimated costs significantly.  The workbooks that
accompany API's written comments contain precise details of each of
these underestimations.  

		API remains eager to discuss them with OSHA, but time does not allow
me to discuss these here.  Instead, I will simply note some of the more
obvious sources of OSHA's underestimation, all of which derive from a
misapprehension that the hydraulic fracturing industry is like any other
industry. 

		Consider dust booths, one of two technologies OSHA evaluated for
economic feasibility purposes.  For technological feasibility purposes,
OSHA states that such booths are necessary for each job category with
potential exposure at or above 770 µg/m3.  But for the economic
feasibility purposes, OSHA assumes that such booths will only be
necessary for sand mover operators, not water operators, not pump truck
operations, for which NIOSH recorded exposures in excess of the 770, or
for blender tenders or any of the other job categories that are
statistically within the range of 770.

		Consider maintenance costs for and useful lives of controls.  Sand is
extremely abrasive and the hydraulic fracturing industry uses tremendous
volumes of it.  Yet, OSHA relied on a standard general industry
assumption that such equipment will have useful lives of 10 years, and
that maintenance and repair costs will only amount to 10 percent of
operating costs.  OSHA's conclusions are not rational or supported when
applied to the hydraulic fracturing industry.

		Consider transportation, assembly, and dismantling costs.  OSHA
assumes that, just like in the static workplace found in general
industry, the hydraulic fracturing industry need only bolt on its
emission controls once and will incur no further costs despite
constantly moving equipment on a per job basis.  The reality is that
control equipment would need to be transported separately, and will need
to be assembled and dismantled at each different hydraulic fracturing
site.  These are not one-time costs.  These are costs incurred on every
job site.

		Consider the compliance cost for the various ancillary provisions. 
OSHA assumes that the hydraulic fracturing industry cost to comply with
exposure monitoring and medical surveillance requirement would be the
same as those for general industry, which are themselves underestimates.
 The hydraulic fracturing industry, however, frequently works in remote,
less accessible locations far from infrastructure.  Hiring a hygienist
to travel to and sample in such locations comes with a considerable
premium; transporting employees from remote locations for medical
surveillance costs more.  These are known facts, just of few of the many
overlooked by OSHA. 

		When OSHA's full combination of controls is considered, not the
arbitrarily, too, and accounted for, OSHA's other sources of
underestimation, each of which is discussed at length in API's written
comments and the underlying workbooks, small hydraulic fracturing
companies will likely incur in excess of $352,000 per year in compliance
costs.  Recall that based almost exclusively on OSHA's own findings,
these small companies generate only $2.4 million in revenue and $250,000
in profits per year.

		This proposed rule, therefore, would potentially impose compliance
costs in excess of 14.5 percent of revenues and 141 percent of profits,
more than an order of magnitude more than OSHA's rule of thumb for
assessing economic feasibility.  Indeed, these revenue and profit
impacts would be devastating for the companies.  

		Recall, also, OSHA has acknowledged that these small companies make up
between 50 percent to 75 percent of all hydraulic fracturing companies,
by no means a marginal segment.  How can OSHA conclude that this rule
would not lead to "massive dislocation"?  How will this proposed rule
not profoundly alter the competitive structure of the hydraulic
fracturing industry?  How will the inevitable demise of so many small
businesses not increase concentration in the industry?

		Unfortunately, the economic feasibility analysis never addressed these
important and mandated inquiries.  Perhaps due to the lack of SBREFA
proceedings with the hydraulic fracturing industry, the analysis
mistakenly inflated job completion rates to unreasonable levels,
underestimated costs, and thereby ends up at results that allowed OSHA
to avoid answering the above questions.

		Available data provided by API and, in many cases, OSHA's own data
suggests that this proposed rule would have a devastating impact on 50
to 75 percent of all hydraulic fracturing companies.  Moreover, across
all hydraulic fracturing companies, large, medium, and small, API
estimates annual compliance costs in excess of $366 million.  Once
again, these costs are calculated in great detail in the workbooks
submitted with API's written comments.

		This proposed rule is not economically feasible for the hydraulic
fracturing industry; far from it.  Under all measures of economic
feasibility, this rule devastates the hydraulic fracturing industry and
particularly those 100 to 150 small businesses within it.  API
respectfully requests that OSHA withdraw this proposal and undertake a
new, more informed feasibility analysis.  I would be happy to take
questions related to my testimony.

		JUDGE PURCELL:  Thank you very much, Mr. Crookshank.  Next on the
agenda is Mr. Kenny Jordan of the Association of Energy Service
Companies.  Mr. Jordan?

		MR. JORDAN:  Thank you, Your Honor, ladies and gentlemen of the panel.
 My name is Kenny Jordan.  I am the Executive Director of the
Association of Energy Service Companies.  We represent over 800
companies involved in the upstream oil and gas service industry
throughout the U.S.  We would like to thank OSHA for receiving public
comments on the proposed silica rule, as well as schedule hearings on
this important issue.  

		Many of our member companies are engaged in fracking operations that
have resulted in unprecedented economic development and employment
growth, while greatly expanding our country's oil and gas production. 
This production, I might add, has decreased our dependence on foreign
imports and has led to the possibility that the United States may be
energy independent once more.  

		For the past five years, the AESC has been on the NORA NIOSH Oil and
Gas Extraction Council.  The council has recommended improvements that
have increased worker safety.  For instance, the council was at the
forefront of building awareness of the silica at the well site issue,
particularly among those working in fracking operations. 

		With the assistance and blessings of OSHA, the industry formed a
silica focused workgroup that addressed numerous issues brought forward
by the NORA NIOSH silica study.  First, the industry created and
distributed fact sheets and bilingual video productions to alert
employees to silica exposure.  Second, the industry formed an
engineering controls workgroup to study and evaluate new silica dust
suppression systems.  And, third, our industry collaborated with
industrial hygienists from the IH monitoring team to develop monitoring
best practices.

		We believe industry's proactive approach to the silica issue shows our
commitment to a safe work environment for all of our workers. 

		In addition to the initiatives mentioned earlier, our industry is
using SafeLand orientation courses and internal training courses that
include instruction on silica exposure.  At the conclusion of SafeLand
training, participants are issued a SafeLand card that is available to
any of the E&P companies as an indicator of successful completion of
that safety orientation.  To date, over 570,000 SafeLand cards have been
issued to workers in this industry.

		Also, the recently developed OSHA 5810 course includes Module 3, which
is titled Health Hazard and Industrial Hygiene.  In this module, there
is a summary of the NIOSH report, along with the NIOSH recommended
levels.  Within Module 3 of the student workbook, stakeholder also
included the full NIOSH report and the guidelines for minimizing
respirable silica exposure in hydraulic fracturing.  In summary, our
industry has been consistently proactive in its approach to this issue.

		After discussing our safety programs, it might be useful to remind
OSHA also that fatalities in silicosis has fallen dramatically.  In
OSHA's own preliminary reports, fatalities attributed to silicosis have
fallen from 1,156 deaths in 1968 to 161 in 2005.  It is our belief that
the current standard is very effective and such a conclusion can be
supported by the substantial decrease in fatalities.  

		We are convinced that enforcement needs to be emphasized, rather than
a push for a new lower exposure standard.  With enforcement of the
current standards, we could very well see a continued and potentially
greater reducing in silicosis.  Trends from the past 30 years would
support this conclusion.

		In terms of OSHA's estimate of engineering control compliance, as a
workgroup, even as of this date, we have not identified a universal
engineering control that would resolve the numerous -- we have yet to
identify the greatest methods of control for silica.  Therefore, we
question OSHA's cost estimates for engineering control compliance.  How
can OSHA put a figure on engineering controls when our industry has not
yet identified a universally applicable engineer control system?

		In addition to our concerns with universal engineering controls, the
industry is worried that an undue burden from the proposed rule will
fall on small businesses.  It's a little known fact, according to Karen
Kerrigan, president and CEO of the Small Business and Entrepreneur
Council, 90 percent of the companies involved in the oil and gas
industry are small business.  

		A decade ago, only a handful of operators could perform fracking
operations.  Most of them were large and international in scope.  As of
2014, there are probably over 150 companies now involved in fracking,
both high pressure and low pressure applications.  Many are small to
medium sized enterprises. 

		Some of the requirements of the proposed rule are more burdensome only
for small enterprises.  For example, the proposed rule requires
evaluation by an industrial hygienist.  It would be safe to say the
majority of our members do not have this specialist on staff and have to
contact these services.  

		OSHA estimates that it will cost between $225 and $412 per sample. 
This projection greatly underestimates compliance costs totally.  The
specific cost will vary from location to location.  But when one
accounts for the visits by the professional, travel time, sample
analysis, laboratory work, reporting, and other related costs, the
compliance expense for our members could be much higher than the
estimates put forward by OSHA.

		If the proposed rule is to become a new standard, we would ask OSHA to
consider a longer time frame for initial medical surveillance.  The
proposed rule requires a medical examination for a new employee within
30 days of initial assignment.  Employee turnover in our industry is a
continual challenge.  It's not uncommon for companies to experience 50
to 100 percent turnover in certain jobs among the well-servicing
community.  

		We believe that the proposed rule should expand the initial
surveillance requirement from 30 days to a more feasible window of
initial examination somewhere between 90 to 180 days.  This longer
surveillance time frame would account for reality of excess turnover.

		As an additional remedy for the frequent changes in employment
undertaken by workers, our industry calls for an individual record of
medical surveillance that would follow the employee as he or she moves
from job to job.  This efficient solution would offer a permanent
record, thus saving the cost of needless additional medical exams and
risks of additional hazardous exposure to repeated x-ray radiation.

		In conclusion, we believe enforcement of the current standard should
be one of the incentives to bring companies into compliance.  Several
private entities are still pursuing solutions to engineering controls
issues to determine how to best address the silica dust issue on
location and assist in the prevention of exposure to our employees. 
NIOSH has also proposed a commercialization request for the bag
technology that they have helped to develop to eliminate silica dust on
location.

		We appreciate the work that NIOSH has done to emphasize this issue
within the industry.  Through industry education, employee training,
engineering controls, appropriate use of PPE, and monitoring of well
sites, employee exposures can be minimized.

		Once again, we appreciate the opportunity to submit these comments.  

		JUDGE PURCELL:  Thank you, Mr. Jordan.  With that, I'm going to open
up the questioning.  Could I see a show of hands in the audience of
individuals who have questions for any of the panel members?  All right,
I see two on this side and one down here.  So we'll start with
Ms. Seminario.

		MS. SEMINARIO:  Can Mr. Jones go first?

		JUDGE PURCELL:  Or Mr. Jones, that's fine.  And, also, let me ask the
panel members if the questioner doesn't name a specific individual that
he is posing the question to, to identify yourself for the record so we
get a clear record.  Go ahead and identify yourself, sir, and your
affiliation.

		MR. JONES:  How are you doing?  Walter Jones, J-o-n-e-s.  I'm with the
Laborers' Health and Safety Fund.  I'm glad to hear API's concern about
workers and that's really fantastic, and I'm glad you support protecting
workers.  I'm interested in knowing a few answers here.  When did your
member companies begin to recognize the issue associated with silica
exposures from sand during the fracking operations?

		MR. D'ANGELO:  It's difficult to answer that universally because OSHA
has -- I mean API has over 570 members.  When individual companies
began to recognize is not something I can answer.  I can tell you that
the NIOSH effort certainly raised this issue significantly for all of
industry.

		JUDGE PURCELL:  And that was, for the record, Wayne D'Angelo.

		MR. D'ANGELO:  I messed up, my first time, I apologize.  

		MR. JONES:  And I'd like to follow up.  In your comments today and in
your stated comments here to the docket, you said the industry supports
a traditional use of hierarchy of controls to protect workers.

		MR. D'ANGELO:  Yes.

		MR. JONES:  And you also put up on the slide earlier in your
presentation that API put a lot of different standards.  Does anyone of
them deal with silica?

		MR. D'ANGELO:  There's none that are directly relevant to silica,
although -- this is Wayne D'Angelo answering again.  I'm sorry.  There
is no API standard that currently addresses silica directly, although
they do have standards for respiratory use.  API's efforts, a large part
of their efforts were participating with the STEPS Network.  A wide
variety of companies, API, Mr. Jordan and his organization, OSHA,
NIOSH, and within there I think Mr. Jordan could speak to a lot of the
industrywide efforts, but information sharing, videos both English and
Spanish, best practices that can be done, things that can be done now in
the absence of these --

		MR. JONES:  What type of best practices are you currently doing?

		MR. D'ANGELO:  Mr. Jordan has been part of the STEPS Network.  He
could perhaps answer that better.  I can give you a more generic answer,
but Mr. Jordan can give more details.

		MR. JORDAN:  This is Kenny Jordan.  Some of what we're starting to see
is area restriction, where we're restricting the areas on location where
when fracking operations are going on, we make sure that only the people
that need to be in that area are in that area and that they do have
access to respiratory protection.  We make sure that the areas are
completely clear of all other personnel.

		Anybody coming on site that might have any inclination of being
exposure, we do -- almost all the companies perform a job safety
analysis before they start the operation, itself.  So all the employees
on that site are made aware of what all hazards are, not just silica but
any hazards for that particular day, for that particular operation
that's happening.

		MR. JONES:  Okay.  And so what type of controls are being used besides
respirators?

		MR. JORDAN:  Right now from an engineering controls standpoint, we
still have numerous companies that are experimenting with different
types, from an engineering control standpoint.  We have, again, yet to
see a universal, something that would work for every company that's
commercially available.  So you have different companies trying
different things.  Most of what's happening now is being done through
monitoring and through PPE.

		MR. JONES:  Is there anything being done for anyone then, if there is
no general overarching control being used?  Are there specific examples
of what has been useful in specific incidences?

		MR. JORDAN:  Again, Kenny Jordan.  Yes, we've looked at a lot of the
system.  The bag technology that NIOSH has experimented with is one of
them.  We have some companies that have tried misting systems.  We
haven't found anything that is just 100 percent effective.  

		So what we have companies doing is putting some of those controls in
place to at least minimize the exposure levels.  But at the end of the
day, right now what most all companies are relying on is PPE fallback.

		MR. JONES:  Okay.  In your comments and even today you talked about a
lot of monitoring you're doing.  Have you supplied any of that to the
record or are you willing to share any of that data?

		MR. D'ANGELO:  This is Wayne D'Angelo.  API, as a trade association,
has no monitoring data of its own.  Through the STEPS Network, it has
been engaged in an effort with an independent company to put a call out
to industry to provide exposure data in sufficient quantity that could
be blinded and presented on an aggregate basis for the rulemaking.  I
don't precisely know where that stands.  I know that API has now kept
the -- we're working on our third extension of the data request.  

		The timing of this happened at the same time that OSHA proposed this
rule.  And often, many of these companies, it's the same person that
would be providing the input on this rule and the monitoring
requirements.  And I can't speak to individual companies' decisions why
or why not they have been able to provide sufficient exposure data to
that effort.

		MR. JONES:  But we are putting folks in respirators.  What are we
basing that decision on?

		MR. D'ANGELO:  Well, there was a NIOSH hazard alert and they did
sampling, it was referenced in the comments, indicating that there was
high ambient silica concentrations at hydraulic fracturing sites.  And,
in fact, members have done sampling.  Maybe you misinterpreted me.  I
didn't say that there was no exposure data.  I just said that API does
not do exposure monitoring, because we don't do any hydraulic
fracturing.

		MR. JONES:  Do you collect any data for the member associations?

		MR. D'ANGELO:  Again, that was the -- API has not.  API has shared
information with members to do so through the STEPS Network, which is
the voluntary organization that Mr. Jordan participates in directly. 
API does, but not -- I don't participate in those.  

		MR. JORDAN:  Again, Kenny Jordan.  We had sent out an email to all of
our membership asking them.  There is a third party that is collecting
this information.  I'm not privy to that information because it was
blind.  They were asked to send their information directly into this
third party for analysis.  To date, I don't have any information on how
many have been submitted, who has submitted, or anything to that effect.

		MR. JONES:  So when we put workers in respirators, we're just doing it
based on the NIOSH alert?  We're not following the OSHA respiratory
program?

		MR. D'ANGELO:  No.

		MR. JONES:  No?

		MR. D'ANGELO:  No.  I believe that was stated.  No, there is
monitoring going on.  There is exposure monitoring.  Companies are doing
it and they are using respirators that are appropriate.  If you read the
NIOSH reports, they note that.  If you read the ERG report, the
contractor report on which this entire rulemaking is based, they are
noting widespread and appropriate use of respirators.

		There is nothing that we said here that should be interpreted as
saying that there is no proper respiratory program.  Everything we're
saying is it was, in fact, proper.  It's noted by NIOSH.  It's noted by
ERG.  It's in OSHA's record.  I hope that was unambiguous.

		MR. JONES:  Okay, thank you.  Just one last question, are you familiar
with the comments by Knutson Ventilation they had submitted to the
docket?

		MR. D'ANGELO:  Yes.  I've read them.

		MR. JONES:  Yeah, I've read them as well.  And they make a couple of
very interesting cases about how difficult it is to characterize the
entire scope of what's going on in sampling, in fracking.  But they also
point out that as a CIH, as I am and most industrial hygienists are,
that the most obvious sources are the low hanging fruit when you want to
attack this problem.  And they point out that that may well be a
pneumatic delivery of sand part and then the secondary sources, the
thief hatches and whatnot, where we're getting the really large visual
or potential sampling exposures.  Do you know anything that's being done
about pneumatic sand delivery?  Because there are folks like FracSand
(ph.) and Apoco (ph.) that have products out there that they claim for
no additional cost can actually control some of these emissions.  What
are your positions on those?

		MR. D'ANGELO:  I think that, yeah, we've certainly been noticing that
there has been more -- the attention that's brought by this rule has
brought about more innovation or more folks that are coming forward with
solutions.  And Kenny's group and others are looking at these.  The
person that innovates and figures out the solution to this problem,
industry is going to welcome that solution.  But so far there have been
impediments to each technology or strategy that has been proffered be
they the durability of them, their efficacy data.  

		I mean a lot of those that you mentioned, I don't know that there
hasn't been exposure monitoring data that have been completed for those
and the availability.  One of those that you mentioned, at the time that
this docket was -- at the time that this rule was proposed, two in the
field, one in position description.

		MR. JONES:  Right.

		MR. D'ANGELO:  That's not a technology that the oil and gas industry
can now have on site.

		JUDGE PURCELL:  For the record, that was Wayne D'Angelo.

		MR. D'ANGELO:  I'm sorry.

		MR. JORDAN:  Kenny Jordan here.  I might add a little to that.  The
respirable silica group, we still meet twice a year.  And during each of
those, we've asked a lot of those companies that have developed a
commercial application to come forward and we are very open for them to
give introductions.

		Unfortunately, most of them that have come forward have told us we're
in the prototype stage, we're trying to test, we're trying to get it
right for your application.  We've got another meeting coming up here I
think in April is our next meeting, if my memory serves me right, April
or June.  But, again, everybody that's come forward for us is we're
trying to take what we maybe use in the technology in another industry
and trying to adapt it to your industry.  And so I think some of them
are having some engineering issues in that respect.  But during
prototyping, they can come in and say, look, this is the prototype done,
we can reduce your exposure to zero or at least to an acceptable level,
we're certainly sharing all that information with everybody in our group
and with all the trade associations.

		MR. JONES:  You are sharing it.  I just want to come back to one last
issue as I finish here, because I am a member of the AIHA oil and gas
workgroup.  Last year in Montreal, AIHA had a ton of sessions on
fracking, oil and gas, and every IH I talked to at least talked about
the numerous amounts of sampling that they companies are doing, the
controls they're sampling against to see how effective they are.  Yet,
we don't see the results of any of this.  Is there any way we can get
your group, the STEPS group, or my group, the AIHA oil and gas workgroup
to blind this data and put it out there so that OSHA can use this to
move forward on?

		MR. JORDAN:  Kenny Jordan, again.  I'll be glad to pass the
information on to any and all of our companies, and through other
industry organizations.  I will say participation sometimes from some of
the companies, at the end of the day, that's what we've got to rely on
and so we're really depending on them saying, yes, we'll share, or no,
they won't, at the end of the day.  But in terms of getting the
information out there and asking the questions, we're more than willing
to do that.

		MR. JONES:  Thank you.

		MR. D'ANGELO:  This is Wayne D'Angelo speaking for API.  I can't speak
to individual companies' decisions, but if you are perceiving a
potential disinclination to share exposure data that's going to show in
many ways that there are exposures that are above the existing PEL
that's going to be used in a regulatory circumstances for a
regulatory -- before the regulatory agency for which there has been
enforcement actions, I think you can understand that there is a sort of
an institutional reluctance to do so regardless of confidentialities or
blinding.

		So as the trade associations, we continue to encourage it.  Kenny and
API, they've supported this.  They have brought on the independent
contractor.  Efforts are underway.  I think that a lot of companies
doing this under the threat of enforcement perhaps is chilling
participation.

		MR. JONES:  Thank you.

		JUDGE PURCELL:  Thank you.  Ms. Seminario?

		MS. SEMINARIO:  Good morning.  My name is Peg Seminario from the
AFL-CIO, and thank you very much for your testimony this morning. 
Mr. Jones asked many of the questions I was going to ask.  So I have a
couple of follow-ups in areas that he was talking about.  One is in the
area of exposure data. 

		As you indicated, the STEPS Network silica group has been doing a
survey of members for exposure monitoring data.  And I saw it was up on
your website and I downloaded the survey form.  And thank you for
seeking this information.  I think it will be very useful.  As I
understand it, that effort is being coordinated by API, at least what
was up on the STEPS Network was an inquiry coming from API and I think
authored by someone by the name of Amy Emert (ph.).  

		And so the question that I have is, is API then the party that would
be able to get this data?  I understand it is being blinded.  Bureau
Veritas is collecting it, but who actually has the control over the
data?  That isn't clear and if you could clarify that, that would be
useful.  It's being collected through an effort here, but who has the
control over this and who is paying Bureau Veritas for this effort?

		MR. JORDAN:  Kenny Jordan here.  I can't speak to who is paying Bureau
Veritas to collect.  Ultimately, who controls the data is going to be
the oil and gas company on that site that's allowing them to do the
sampling on location or the service company that is collecting that
data.  Ultimately, it is going to be their decision whether they submit
the data or not.

		MS. SEMINARIO:  I understand the submission.  But once it is
collection -- it's being collected into a database for use and it's got
a lot of very useful information on the samples, exposure levels, PPE,
control measures, and, you know, we can submit the form into the record.

		And so having that information would be most useful for the purposes
that we're here today, which is to examine what exposures, what kind of
feasible controls, the whole focus of your testimony.  So is it API that
is in control of the decisions on that data?

		MR. D'ANGELO:  This is Wayne D'Angelo.  I haven't been closely
involved in that and we'd be happy to provide an answer for that.  Just
we're not the people that know that answer.  But you're absolutely
right; I mean this is useful data.  That's why we're seeking it.  And
we'll continue to seek it.

		The aggregated data or the ultimate product of all this, you know,
obviously the inputs, the exposure inputs, that's controlled by the
individual companies.  API, nor any of the associations that are
participating here, are not receiving any data, themselves, at all. 
It's all going to a consultant.

		MS. SEMINARIO:  Yeah, Bureau Veritas, I see.  Yes.

		MR. D'ANGELO:  Yes, correct.  Now among the various associations that
are participating, who is the singular owner of the data or is it shared
ownership, I don't know.  That's probably answerable, but --

		MR. JORDAN:  We're not seeing it.

		MS. SEMINARIO:  No, that's fair.  And I'm not trying to put you on the
spot.  I'm just trying to figure out how this data is being collected
and, as you indicated, it was coincident with the rule coming out.  And
it would be very useful for purposes of the rule feasibility
determinations and all of that.  So --

		MR. D'ANGELO:  This is Wayne D'Angelo.  We believe it warrants -- it
should have warranted an extension of the rulemaking period so that we
could have more time to provide this data.

		MS. SEMINARIO:  But whatever you have now, the original request went
out in August --

		JUDGE PURCELL:  Ms. Seminario, I think you have made --

		MS. SEMINARIO:  Okay.  But that would be most useful.  Turning back to
a couple of other issues that you raised, Mr. Jordan, one of the things
that you mentioned in your testimony was that one of the means by which
you are trying to limit exposure is by limiting the numbers of people
who are in the exposure area.  Could you give some sense, information
about on a site, how many people are directly involved or what
proportion of the work crew would be directly involved and have silica
exposures, versus those who don't, again trying to look at the
population at risk here.

		MR. JORDAN:  Yeah.  Frack sites are such a wide variety of animals,
depending on how many phases you're pumping.  You saw the location site
up there, that's a fairly large location.  Once everything is put in
place and once the pumping operation starts, there are only a couple of
exposure areas, the thief hatches, the sand mixers.  So it has been
mainly identified by job title, the scope, where those particular areas
are.  And the rest of the employees, you might have three other service
providers on that location that don't necessarily work for that frack
company, but they know during the JSA, the first part of the meeting,
that they are to stay out of those areas.  Usually, they will rope those
areas off and just say you have no business in here, you have no job
function in here, don't go in here.

		MS. SEMINARIO:  All right.  So what would be the job titles that would
be the high exposure job?

		MR. JORDAN:  It was on the NIOSH report, but it's usually the -- it's
the sand mixers, it's the ones who are working on top of the tanks
closer to the vents.  We use some strange terminology in our business. 
It's close to the dragon's tail.  

		MS. SEMINARIO:  And the dragon's tail would be what?

		MR. JORDAN:  That's where the sand moves from the hoppers into the
blender.

		MS. SEMINARIO:  Thank you.

		MR. D'ANGELO:  This is Wayne.  At API, we as representing them were
learning the language a bit as well and we worked through some of the
NIOSH sampling results, and job category and job title identifications,
and generally found that NIOSH had -- there is a mixed use of
terminology, generally what you find in those six NIOSH report were
identifying appropriately those that are in sort of the central sand
zone.  So the limitations on employee exposures are both special and
temporal.  

		So hydraulic fracturing happens for a snapshot in time in the
development of a well.  So when folks that are not necessary for the
actual hydraulic fracturing are not -- you know, for those aspects of
the development that aren't happening at that time, those personnel
generally are pulled back and restricted.  

		But then there is sort of -- there is differing special exposures
based on those that are very close to the sand movers, the conveyor
T-belts, and the blender.  This is basically wherever the sand moves
from the delivery truck, to the sand mover, to the conveyor, to the
blender, to down well, there are exposures associated with those areas. 
And then as you move out further from those, the exposures generally
drop, you know, the universe of categories generally drop.  

		The truck traffic, you know, a lot of times they are working in areas
where the natural ground is silica-containing, so truck traffic, as
would anywhere, has a potential for silica exposure impact.

		MS. SEMINARIO:  All right, thank you.  Turning to the NIOSH report and
I guess the initial presentation on that was sometime in the spring of
2012, so only 2 years ago, and I believe in that report, they reported
that there were 47 percent of the samples that they took were over the
existing PEL.  And that PEL for your industry is currently around 100
µg?  You're covered by the general industry standard; is that correct?

		MR. D'ANGELO:  Yes.

		MS. SEMINARIO:  I just wanted to be clear, because we've been dealing
with both general industry.  So 47 percent were over the general
industry standard.  And you indicated that since that time there have
been some initiatives, different control measures being applied to try
to reduce exposures.  And you mentioned the mini baghouses as being one
that had been used.  

		Have these measures that you've seen to date, even if they are limited
in their application, have they been helpful in lowering the dust
exposures?

		MR. JORDAN:  Again, Kenny Jordan.  I think what we have seen is
they've been helpful.  Have they been able to eliminate, no.

		MS. SEMINARIO:  All right.  Any sense of the level of reduction or
proportion, again, not looking at the specific sampling data, but some
of the exposures are really, really high.

		MR. JORDAN:  Right.  Again, Kenny Jordan.  I've seen some of the data
and I honestly don't recall some of that.  The respirable silica focus
group, when we meet, we publish all those notes.  I'd be more than happy
to send you all the notes from the last meetings.  And I think that some
of that data might be in there.  But a lot of that was when they were
just in conception phase for some of the engineering controls that were
put in.  But if I can get your contact information, I'll be glad to
supply you all the past notes from the respirable silica group meeting.

		MS. SEMINARIO:  That would be great and if you could submit them to
the record so that they can be shared as well, that would be wonderful.

		MR. D'ANGELO:  This is Wayne D'Angelo.  I could just add onto that. 
There is one actual set of notes in there.  And there is an all-hands
discussion of the efficacy of one of the controls.  And they don't give
a number, but they did say that employees still needed to be -- use
respirators, which implicitly indicates that they were still above
the 100.

		MS. SEMINARIO:  Right.

		MR. D'ANGELO:  And I'm sort of glad that this code is still up there
because, I mean, NIOSH is not in the business of inventing controls that
are already in existence.  I think the fact that they are developing
this baghouse and still in the proof of concept phase suggests that they
are observing the same sort of lack of an efficient and feasible control
that our members have reported to us.

		MS. SEMINARIO:  Just turning back to that issue with respect to the
controls and as you indicated, the industry is currently operating under
the current general industry standard, which is 100 µg/m3.  But that
standard also includes a hierarchy of controls, the requirement for use
of engineering controls, work practices, and then if those aren't
capable of reaching the exposure limit, then supplemented by respiratory
protection.  Is that correct?

		MR. D'ANGELO:  Yes.

		MS. SEMINARIO:  And that's the proposed standard goes to the 50 µg,
but it also has the same hierarchy of controls and so it does require
where feasible to use engineering controls -- use feasible engineering
controls where practices, supplemented by personal protective equipment.
 Is that correct?  That's what's in the proposed standard; is that
correct?

		MR. D'ANGELO:  Yes, to my recollection, yeah.

		JUDGE PURCELL:  That was Wayne D'Angelo responding.

		MS. SEMINARIO:  Thank you, Mr. D'Angelo.  So the difference between
the two rules in that area is that one has a level of 100 µg/m3 and the
proposed standard goes to 50 µg.  But the hierarchy of controls that is
included in both the existing and the proposed rule are the same.

		MR. D'ANGELO:  I don't have it in front of me, but I don't recall any
difference between the hierarchy of the controls.  This is Wayne
D'Angelo speaking.

		MS. SEMINARIO:  All right, I just wanted to be clear on that.

		MR. D'ANGELO:  I mean but, yeah, so the institution of the hierarchy
of controls, right, so it begins with elimination, elimination of the
hazard.  The hazard here, we're probably talking about proppant.  You
eliminate the proppant, you eliminate hydraulic fracturing.  And then
you go to substitution, right, and substitution -- well, this was
looked at.  There is a substitutable material that can be used in very,
very narrow circumstances and it's a ceramic proppant.  OSHA looked at
it.  ERG looked at it.  NIOSH looked at it.  It costs about $13 billion
a year.  So they've gone through that step, too.  

		Engineering controls, well, NIOSH has sort of noticed that they are
not feasible and that's sort of borne fruit within the record here, as
well.  The administrative controls, that's all the efforts that are
being undertaken.  And so what industry has fallen back on is the only
thing that they can find that is known and proven to be effective,
because they do want to protect their workers and that's respirators.

		MS. SEMINARIO:  No, I appreciate that comment.  But one other, just to
explore, within the industry and the technology of hydraulic fracturing
or fracking and the real growth in the industry, that has really come
through the application and innovations of technology to enable the
extraction of the gas or the oil from the earth; is that correct?  So
there has been new technologies and innovations to be able to develop
these very productive means of energy production.

		MR. JORDAN:  That's correct.  Kenny Jordan, again, sorry.  Fracking
has been around for 60 years.  But what really started it all was the
Barnett Shale in Fort Worth, you know, 10, 15 years ago when the
fracking operation started there.  And the technology has grown quite a
bit over that period of time.  But we're looking at really a 60-year
migration of fracking, too, in terms of technology.

		On this side here, we're only looking at a couple of years.  I believe
there will be a solution found eventually.  Can I give you a time frame?
 I don't know.

		MS. SEMINARIO:  When you say a solution, a solution to the silica
exposure?

		MR. JORDAN:  Some of the engineering controls, I think.  Somebody is
going to be innovative enough to find out a way to get us at an
acceptable level where we can work without relying on respirators as
long as we're doing the monitoring and the other things beforehand. 
We'll depend on good old American ingenuity.

		MS. SEMINARIO:  And just one last question.  You indicated that in the
industry there is encouragement in that many of the operators are
conducting exposure monitoring, they are doing training.  Is there any
medical surveillance that is currently underway or recommendations for a
medical surveillance program in the industry?

		MR. JORDAN:  Kenny Jordan, again.  I don't know of any that are
ongoing now.  I know from our industry's standpoint, most everybody is
hired with a physical drug test, initial physical, initial drug test. 
Certain jobs require some ergonomic analysis, too.  They do respirator
fits, things like that.  

		But the proposed medical monitoring with exposure x-rays and all, to
my knowledge, I don't think it's being done in the industry unless maybe
one of the individual companies has adapted it somewhere in their
individual programs.

		MR. D'ANGELO:  This is Wayne D'Angelo.  I don't have any direct
knowledge of that, but API's members, you know, we're all over the
industry, refineries, the upstream and downstream.  I'm sure we can
provide information.  We just don't know if offhand.

		MS. SEMINARIO:  All right.  Well, thank you very much.

		MR. D'ANGELO:  Thank you.

		JUDGE PURCELL:  Thank you, Ms. Seminario.  

		There was an individual over here.  Sir, if you would like to come up.
 Identify yourself for the record, spell your last name, and identify
your affiliation.

		MR. STANGLER:  Hi, my name is Cole Stangler.  I'm a reporter with In
These Times magazine.  

		JUDGE PURCELL:  Mr. Stangler, have you filed a Notice of Intent to
Appear?

		MR. STANGLER:  No.

		JUDGE PURCELL:  Okay, right now I think we're limiting questioners
just to those individuals who have filed a Notice of Intent to Appear. 
So if we have time at the end of the day and these individuals are
available, then we can allow questions.

		MR. STANGLER:  Okay, thanks.

		JUDGE PURCELL:  Thank you.  Any further questions from the audience at
this point?  Seeing no additional hands, I'll turn it over to the OSHA
panel.

		MR. O'CONNOR:  Thank you, Your Honor.  And thank you, Mr. D'Angelo,
Mr. Crookshank, and Mr. Jordan for appearing and testifying this
morning.  Joe Coble will begin OSHA's questioning.

		DR. COBLE:  Good morning, and thank you for being here. 
Mr. D'Angelo, I'd like to start with you.  Regarding your review of the
Appendix A, did you consult any other sources of information other than
the appendix when drawing your conclusions about the adequacy of the
analysis?

		MR. D'ANGELO:  Yes.  We worked through API, who API is in-house, sort
of technological experts and those that are familiar with the hydraulic
fracturing industry.  Through API, I worked with and had numerous calls,
in-person meetings and discussions with API committees that are staffed
by people that are IHS experts, that work directly with hydraulic
fracturing, and even some market side folks.

		DR. COBLE:  These were just -- oh, excuse me.

		JUDGE PURCELL:  Mr. D'Angelo, when you're facing this way the mic is
not picking you up.

		MR. D'ANGELO:  I apologize.  

		JUDGE PURCELL:  Thank you.

		DR. COBLE:  But no reports or written documentation regarding exposure
levels at these fracking sites?

		MR. D'ANGELO:  I did not review any exposure data.  The exposure data
I looked at was the NIOSH.

		DR. COBLE:  So you relied principally on the NIOSH reports?

		MR. D'ANGELO:  Yeah.  And, in fact, our comments, the feasibility, the
conclusions that are based off of it are based on those NIOSH reports.

		DR. COBLE:  Okay, yes, thank you.  And you were, in your comments,
fairly critical of this NIOSH survey.  This survey recently won an award
for -- the outstanding Jonathan Swift award based on review of its
peers for the high quality of the work.  Were you aware of that?

		MR. D'ANGELO:  I wasn't, but I don't want any of my -- the comments
that I helped prepare to be -- it wasn't a criticism of NIOSH.  NIOSH
provided a sampling effort and the sampling effort had 111 samples which
by OSHA standards, taking out those that didn't meet the full day
sampling and those samples that were known to have faults, which is a
factor in sampling, just ended up with a small number of exposures from
which OSHA used to characterize an extremely large number of workers. 
No fault to NIOSH, they provided good work product.  There are evidences
of biases in this, but those types of biases can tend to be worked out
with more robust sampling and more data.

		DR. COBLE:  But you feel that the quality of the reports is good?

		MR. D'ANGELO:  In some ways, yeah, I was able to draw some conclusions
from it.  I think most of our conclusions and most of our concerns were
with the number of data points from which very broad conclusions with
respect to technological feasibility were made.  So perhaps the
criticisms go to the use of the NIOSH data and not the NIOSH data.

		DR. COBLE:  Okay, thank you.  You looked at this example in the PEA
regarding would it be possible to reduce exposures for the highest
exposed worker using a series and combination of controls.  I think the
basic premise that OSHA puts forth is that there is no single bullet
here and that the only way exposures can be reduced as much as feasible
is through a combination of controls.  

		So that's where we lay out four possible controls that could be
applied and we provide a scenario in which given some assumptions about
effectiveness, they could reduce someone who is exposed to as high as
770 down to the proposed PEL.  Could you follow OSHA's reasoning on that
example?

		MR. D'ANGELO:  You lost me on the actual question.  I understood your
statement, though.

		DR. COBLE:  You were somewhat critical of OSHA's approach of
estimating effectiveness and then applying that estimation to
demonstrate how an exposure could be reduced from what was measured down
to what's proposed.  You were able to follow OSHA's example on that?

		MR. D'ANGELO:  I understood what OSHA was trying to say.	 We disagreed
with it profoundly, as you know.

		DR. COBLE:  You feel that OSHA did an adequate job of identifying
assumptions and uncertainties involved in making that calculation?

		MR. D'ANGELO:  No.

		DR. COBLE:  You pointed out several that we cited in the paper,
itself.  Are there any additional assumptions that OSHA made, that you
feel we didn't adequately identify?

		MR. D'ANGELO:  There are a number of assumptions.  I mean I'll
characterize our comments, briefly.  The additive effect of the
controls, the technological ability of different controls to be used at
the same time, the baseline of what was in place, the technological
feasibility of each individual control, the availability of each
control, is this answering your question?

		DR. COBLE:  No, no, I guess the question was we might debate the
assumption, but the fact that these assumptions were made is clearly
described in the paper.  So how we got from A to B, you could follow
that?

		MR. D'ANGELO:  No.  I'll give you an example, all right?  I'll give
you an example.  The LEV for thief hatches, right?  I understand the
fact that you looked at websites and saw, and that made a visual
impression of 50 percent of emissions coming from there.  Whether I
agree with it or not, set that aside.  

		There is no -- I have no understanding of why that 50 percent of
emissions equated to a 50 percent of exposures.  That's one example. 
You know, there are a number.

		DR. COBLE:  Okay, sure.  Now I --

		MR. D'ANGELO:  So, generally, I would say, no, I don't think that all
of your assumptions were explained.

		DR. COBLE:  The basis for the assumption.  But the fact that this is
an assumption was made clear, would you agree?

		MR. D'ANGELO:  No.

		DR. COBLE:  Okay.  

		MR. D'ANGELO:  Again, that was just, hey, 50 percent exposures -- I
mean 50 percent emissions, 50 percent exposures.  It was just the word
changed without any explanation.  There was no assumption.  There was no
quantification of proximity.  I was just we picked up that the word
changed and we noted it and I think appropriately.

		DR. COBLE:  With regards to the use of control booths, you initially
stated that we stated they would be needed for all workers, where when
you go and read the PEA, the control booths were only presented in the
event all other controls had been applied to get the sand workers down
to where they could comply with the PEL.  So I think there was -- it
was incorrect to state that all workers would have to be in the booths. 
To fairly characterize what's presented --

		MR. D'ANGELO:  I'm sorry.  If I said that, I misspoke.  I was
suggesting, however, that I think OSHA's assumption was you've got the
first three controls and, but, for the final, for those workers that
were above 770, I believe, they were going to need dust booths.  But all
the workers identified by NIOSH as being above 770, it was not limited
to just sand mover operators.  Our critique was what about all the
others that were above 770 in the NIOSH sampling, don't they need dust
booths as well and where is the cost for them.

		DR. COBLE:  Well, there were very few others above 770 and then they
were basically sand workers, so the ones we identified in our example. 
And the example was meant to present a worst-case scenario where even
the highest exposed worker could be reduced.

		MR. D'ANGELO:  But the highest exposed workers here, there were two
job categories that were profoundly above 770 and others that were
statistically pretty close, so if sand booths are necessary for anyone
over 770, the cost of those dust booths for everyone over 770 ought to
have been considered.

		DR. COBLE:  I think they were.  But what --

		MR. D'ANGELO:  They were not.

		DR. COBLE:  Okay.  My next question relates to the STEPS Network.  Did
you consult with anybody from the STEPS Network in preparing your
testimony?

		MR. D'ANGELO:  No.  I have talked to API's participants on it, but not
directly.  I did review some of their minutes, particularly the ones
that you had in the docket.

		DR. COBLE:  And then on the API website, on the STEPS program, it
provides some guidance to the members on mitigating respirable silica
exposure to hydraulic fracturing.  And they have what they call quick
fix suggestions.

		MR. D'ANGELO:  Yeah.

		DR. COBLE:  The first one says to develop a written plan to describe
company actions to reduce or prevent respirable silica exposures.  Is
that something you feel would be an appropriate provision for the
standard, a written exposure control plan?

		MR. D'ANGELO:  I can only, you know, I am speaking on behalf of a
client and the client is speaking on behalf of their 570 clients.  So
the positions that have been given me are built through consensus.  I
can only tell you the consensus we've built for purposes of the rule. 
Now we didn't object to any parts of that within our comments.  I don't
recall any specific objection to that, but that's a question we can ask
specifically and supplement the record.  It's just I need sort of
authority.  I can't --

		DR. COBLE:  Sure, okay.

		MR. D'ANGELO:  -- API positions.

		DR. COBLE:  And then regarding this quote here, is it your position
that until these controls are confirmed to be effective that we
shouldn't proceed with rulemaking?

		JUDGE PURCELL:  For the record, Mr. Coble, you're referring to the
last side in the PowerPoint presentation, the 2013 quote?

		MR. D'ANGELO:  API's position is that OSHA should do a do-over here,
should initiate a SBREFA process, should engage the stakeholders that
can inform this rulemaking.  We are concerned not only about the
efficacy of controls, but the availability of controls.

		DR. COBLE:  Okay, thank you.

		MR. D'ANGELO:  Thank you.

		MR. BURT:  This working now?  I think so, okay.  I just wanted to
start by asking a couple of questions about your membership.  I know
that both associations have many members who are customers of hydraulic
fracturing firms.  I just wanted to confirm that you have -- do you
have members first for API and then the second is do you have members
that actually engage in hydraulic fracturing?

		MR. D'ANGELO:  This is Wayne D'Angelo answering on behalf of API. 
Yes, they do have members that engage in hydraulic fracturing.

		MR. JORDAN:  This is Kenny Jordan.  We have a number that actually
perform fracking services.

		MR. BURT:  Do either of you -- do you now have any members that are
in the class of the very small fracturing firms that Mr. Crookshank
talked about at some length?

		MR. JORDAN:  This is Kenny Jordan again.  We may have some.  Some of
these companies I will say perform multiple types of services.  You
might have a tool rental company that might be doing a fracking type
service over here.  Many of them sometimes don't even have a website. 
And most of them are very geographically regional.  They all only work
very close hand.  

		I'm trying to think through our membership list.  I can't think of any
very, very, of the small low pressure companies that we have.

		MR. BURT:  Thank you.  I want to ask a few questions about baselines
for some of these things.  As I understand it, you argue that for
respirators, agreeing with ERG that the baseline is full use of all
necessary respirators.  Is that correct?

		MR. D'ANGELO:  This is Wayne D'Angelo.  Yes, that's correct.

		MR. BURT:  For the engineering control -- well, first, oh, with
respect to proppants, you objected to our use of one site that had
non-silica proppants as part of the exposure profile.  But isn't it the
case that at least as OSHA suggested that about 10 percent of the
industry does use non-silica proppants?

		MR. D'ANGELO:  This is Wayne D'Angelo answering.  The actual
percentage, I don't have that in my head.  But, you know, we objected to
the use because they are minimal, but, again, the precise percentage I
couldn't put a finger on right now.  But, certainly, the proportion of
samples on which within the NIOSH study was well more than you would
have seen in industry.

		MR. BURT:  But it would be appropriate to consider some baseline, even
if it was as high a percentage as the NIOSH -- as they were of NIOSH,
that is to the extent there are people using low silica proppants?

		MR. D'ANGELO:  This is Wayne D'Angelo.  For purposes of monitoring the
workers' exposure to silica, I think that that would probably be
appropriately based on hydraulic fracturing that was using
silica-containing sand.  Is that -- am I missing your question?

		MR. BURT:  Yes, thank you.  

		(Cell phone rings.)

		MR. BURT:  I'm sorry, I don't know what's wrong with this.

		MR. D'ANGELO:  You're a popular guy.  

		MR. BURT:  I'm very sorry.  

		(Pause.)

		MR. BURT:  I'm sorry.  I apologize, Your Honor.  It was set to mute. 
I don't know what it's doing now.  There is no one here, goodbye.

		(Laughter.)

		MR. BURT:  I'm very sorry.

		MR. D'ANGELO:  No worries at all.  

		MR. BURT:  Are any of the engineering controls -- what engineering
controls do you think are currently in use.  And I am also concerned
with what level of engineering controls were assumed in the cost
estimate.  By the way, I'm Bob Burt.  I don't know if I introduced
myself when I started the questioning.

		MR. JORDAN:  This is Kenny Jordan.  I can talk a little bit about
that.  I've seen some of the presentations.  The baghouses is one
engineering control that we've seen.  Augur movement of the sand
closed-loop systems, misting systems, clean-up systems after the fact,
those are kind of where most of the technologies are kind of being based
around.  Anything that will keep sand movement to a minimum seems to be
kind of rising to the forefront by different movement methods.

		MR. BURT:  Okay.  And these methods are not sufficient to get to 100,
at this time, is that correct, without the use of respirators?

		MR. JORDAN:  We have not seen anything presented through the
respirable silica focus group that I know of that has got us completely
to that level, one technology.

		MR. BURT:  You keep emphasizing one technology.  Are there multiple
technologies that would work?  I mean I'm just not quite sure what the
meaning of that emphasis is.

		MR. JORDAN:  Again, Kenny Jordan.  It could be and I'm trying to think
back at the multiple meetings that we've had whether anybody has
introduced a multiple approach to things.  I don't recall anybody doing
that, in that respect, as you were talking about earlier.  Putting an
augur system in with a bag system at the same time and then doing
sampling, I don't recall that being looked at.  I mean I just don't
recall.  It could have been, but I'm not sure.

		MR. BURT:  But I believe you said earlier in response to a question
that there is continuing work and you hope that at some future time you
can find appropriate engineering controls.  Is that correct?

		MR. JORDAN:  That is correct, yes.

		MR. BURT:  I want to ask, pursue a little further the statement about
treating different engineering controls as additive.  I can certainly
understand that it's not logically necessary.  I can even imagine
circumstances where it would be incorrect.  But as I understood you, you
just said this was all wrong or always wrong.  Aren't there
circumstances when that would be a plausible thing to do?

		MR. D'ANGELO:  In the abstract, I mean the concept of attacking a
complex industrial hygiene -- this is Wayne D'Angelo speaking --
hygiene problem with multiple tools I think conceptually is right and
appropriate because these are very complex scenarios.  But it's not the
case the way OSHA did that -- I mean the thief hatch is 100 percent
controlled and enclosed.  Misting stops being effective for that
emission, at that point, it would seem.  And Gerhard Knutson, I believe,
provided some comments sort of mathematically about how additive
controls are not, in fact, additive.  

		But, you know, from a practicality standpoint, sometimes they are
technologically infeasible.  And, again, the best example I can give of
that is thief hatches.  It's the low hanging fruit by OSHA's estimate,
50 percent of all exposures come from it.  Control 1 has it 100 percent
controlled and enclosed.  Control 2 is going to have zero percent
efficacy.  

		So in the abstract, I guess my answer is, yes, combinations of
controls are appropriate for complex problems, but it's not what I've
observed in the combination of controls in the proposal.

		MR. BURT:  Thank you.  Turning again to the economic analysis and the
number of dust booths used, as I understand it, you say and I think
correctly that OSHA sued dust booths only for sand movers.  But in your
revised cost estimate, I believe you used them for six occupations.  Is
that correct?  For all persons in six -- at every site for six
different occupations, there would need to be dust booths; is that
correct?

		MR. CROOKSHANK:  I believe that's the correct number.  Let's see,
we've got --

		MR. JORDAN:  That's Mr. Crookshank.

		MR. CROOKSHANK:  Sand mover operator, conveyor tender, blender tender,
hydration unit operator.

		MR. BURT:  Okay.  And you applied those to all persons, at all sites,
if I understand your model correctly in those occupations?  And I may
not understand your model correctly.  I'm sorry.  I haven't had time to
study it as much as I would like.  I appreciate the amount of
documentation you provided.  Sorry to interrupt.

		MR. CROOKSHANK:  No, that's fine.  I believe that is correct.  My one
hesitancy is I'm not sure for the small operators that we made the
assumption that there is a hydration unit operator at those.  I would
have to check the details.  But, in general, yes.  In general, if the
fleets had those occupations, then we included them.  We might not have
had --

		MR. BURT:  You also have much higher estimates for, and I'm going to
ask about a couple of these, exposure assessments, part of that was you
suggested a cost I think of $2,500 per visit.  What is the basis for
that?

		MR. CROOKSHANK:  Steve Crookshank here.  It was talking with the
industrial hygienists for some of our member companies and how much they
are currently paying to bring someone on site.  And it's the rates are
much, much higher than what they are in a more urban setting.

		MR. BURT:  Okay.  So it's based on conversations with your hygienists.

		MR. CROOKSHANK:  Correct.

		MR. BURT:  Then there is still an awful lot more exposure assessment
than OSHA would have estimated.  Do you think this is because of what is
driving this is that since no one is below the PEL, you're going to need
to do assessments quarterly?

		MR. CROOKSHANK:  Steve Crookshank here.  I will have to get back to
you on that one.  That one I am not -- I do not know as intimately as
the other sections.  So I'm not -- Wayne, do you have -- I mean I
know -- are you talking about the individual, the per unit cost or the
universe of --

		MR. BURT:  I was looking at the universal cost.

		MR. CROOKSHANK:  Okay, well, I can say a little bit of that.  I mean
some of that is because we have a 45 percent -- so the number of people
in the hydraulic fracturing industry we estimate at 45 percent higher
than OSHA does.  Now so from two different -- sorry, can everyone hear
me?  

		It's from two different factors, one of which is the large fleets.  We
have estimates that there are more people working at those large fleets
than OSHA does.  In particular, I think our number is 24 where OSHA is
16.  We also account for midsize fleets, which OSHA did not.  And then
our small fleets I believe are the same size as your small fleets. 
Okay, so that's one source of variation there.

		The second source is what we did was you have 2012 numbers for the
number of fleets.  And what we did, the number of fleets based on
hydraulic horsepower, the 2013 data that's come out is higher.  And so
we have adjusted the number of fleets from 530 in your estimate to 553
in our estimate.  So between those two, we end up with a number of
around 25,000 employees, whereas you had 16 something employees, 16,000
something employees.  So that there is a -- you're going to change our
results.

		MR. BURT:  Yes.  But the change is -- the numbers are much larger
than would be explained by either of those two factors and that's
why --

		MR. CROOKSHANK:  I said that --

		MR. BURT:  -- I think what you're doing is doing a quarterly
assessment for almost everyone.  But I'd be curious to find out, thank
you.

		JUDGE PURCELL:  Just so we have a clean record, make sure that the
questioner finishes before you start responding and vice versa.

		MR. CROOKSHANK:  Sorry.

		MR. BURT:  Sorry, Your Honor.  You bring up the issue in your written
testimony about transportation costs and especially the additional
weight that some of these would attach.  Could you give us some
perspective on the weight that they are already carrying versus what
they would need to have with the new controls?

		MR. CROOKSHANK:  Steve Crookshank here.  The baghouse, the estimate
is -- first we know from, again, talking with our members that they are
operating pretty much at their limit, okay.

		MR. BURT:  Which is roughly what?  That's what I was trying to fill
in.

		MR. CROOKSHANK:  You know that's not in our -- my spreadsheet here.

		MR. BURT:  I know.

		MR. JORDAN:  It's going to be around 80 -- I'm sorry, Kenny Jordan. 
It's going to probably be around 80,000 pounds.

		MR. BURT:  Okay, thank you.

		MR. CROOKSHANK:  And then the estimate, this is from OSHA data that
the baghouse would add approximately 1 ton to the weight of that sand
mover.

		MR. JORDAN:  That's Mr. Crookshank.

		MR. BURT:  Thank you.  I'm going to turn to the very small firms
again.  You basically argue, as I understood it, whereas OSHA assumed
the typical small fracturing job would take a day, you argued that it
would take three days.  Could you explain a little bit more the basis
for that?

		MR. CROOKSHANK:  This is Steve Crookshank.  Yes, we, again, talking
with some of our operators, it has been their experience that it would
take about a day for establishing the site, getting the equipment on
site, getting it hooked up, a day to do the frack and a day for
dismantling.  So it would take a three-day period.  And that also
includes the time to get to the next location.  So in those three days,
you're driving to the site, you're setting up, you're doing the frack,
you're dismantling, you're driving.

		MR. BURT:  Okay.  So it's basically based on conversations with
members?

		MR. CROOKSHANK:  Yes.

		MR. BURT:  Thank you.

		MR. D'ANGELO:  This is Wayne.  Also, it is sort of borne out by the
utilization, well, by the utilization rates that were demonstrated in
the data that OSHA utilized, but in fact misinterpreted, showing that
the numbers are a little bit -- no, I'm sorry.  I'm sort of
misremembering that.  I guess I was going into a critique of OSHA's
utilization rate, but that's not necessary.  It's in the comments.  I
apologize.  I was a little bit off key on that.

		MR. CROOKSHANK:  Steve Crookshank here.  Actually, following back up
on your exposure monitoring?

		MR. BURT:  Yes.

		MR. CROOKSHANK:  Again, that was I recall we had, one, larger
population and, two, we adjusted the cost for getting the workers to a
medical facility.  Again, they're working in areas where the facilities
are not easily accessible, so you have more down time.  It just costs
more to get the person there, too.

		MR. BURT:  Right, I understood that.  Thank you.  But I appreciate
your clarification.  These small firms, these very small firms, as I
followed it, you argue that they are even smaller than OSHA thought,
that some of them might be less than 10 people.  Am I understanding that
correctly?

		MR. CROOKSHANK:  We're just using OSHA's own words.

		MR. BURT:  Okay. 

		MR. CROOKSHANK:  I have that here.  I thought I brought it up with me.
 Yeah, it's in the document where it says that they could be -- Steve
Crookshank here.  It's in the Appendix A and there is a line in there
that states that these firms might be as small as five or six.

		MR. BURT:  No, I was just trying to follow, I think we used a small
firm as typically 16; 10 to 19 employees, with an average of 16.  And I
believe you used something somewhat smaller as the smallest firm, am I
understanding you correctly there or did I misunderstanding?

		MR. CROOKSHANK:  Steve Crookshank here.  I don't think we've
changed --

		MR. BURT:  Okay.  

		MR. CROOKSHANK:  -- the definition of small firm at all.

		MR. BURT:  Okay.  

		MR. CROOKSHANK:  We at least tried to be consistent.

		MR. D'ANGELO:  This is Wayne D'Angelo.  I could provide I think a
clarification.  We spent a lot of time struggling with there was this
sort of recognition of 150 --

		MR. BURT:  Um-hum.  That wasn't the question I was asking, though.

		MR. D'ANGELO:  And then OSHA's analysis then uses 100.  So we were
trying to figure out is this apples to apples, where did the other 50
go.  And so we were noting that OSHA does recognize that there are some
hydraulic fracturing firms that may be less than your smallest
threshold.  Perhaps they were being attributed there.  So that's sort of
why we were trying -- we were just trying to figure out the difference
between those numbers.

		MR. CROOKSHANK:  Steve Crookshank here.  Right, because in both --
OSHA is consistent with saying there's 200 firms.  At one point, it says
there's 200 firms and 150 of these are small firms.  And later it says
there's 200 firms, 100 are small firms.  So it's what happened to the
50.  We were just trying to understand that.  

		And as far as the other comment, Page A-9, where it says a very small
fracking -- as very small fracking jobs might be accomplished with as
few as 5 or 6 workers, so --

		MR. BURT:  Yes.  That's what I was after.

		MR. CROOKSHANK:  Okay, yeah, that's Page A-9.

		MR. BURT:  Is it possible in your cost estimates -- and in ours we
used the same costs for all small firms.  Is it possible that some of
these very small firms might have at least some of these costs scaled
down a bit or did you think about that at all?

		MR. CROOKSHANK:  Steve Crookshank here.  Can you give -- sorry, I'm
not allowed to ask questions.  I am not aware of any cost that would be
scaled -- I mean most of these are all scaled off of sand movers or the
number of people in the fleet.  And so those are already scaled to the
small fleet size.

		MR. BURT:  Okay.  

		MR. D'ANGELO:  This is Wayne D'Angelo.  Just to add on that, like I
think within our -- I don't think we made any changes for purposes of
smaller businesses.  But certainly from a negotiating standpoint, they
would probably have the less power to negotiate favorable costs for
equipment purchases, LEV purchases, exposure monitoring, medical
surveillance.  But I don't think those numbers are even accounted for as
additional costs for small people.  Steve, correct me if I said
something wrong.

		MR. CROOKSHANK:  You're correct.

		MR. BURT:  Thank you.  The small firms, I think we both -- perhaps
you could tell us a little more and feel free to go on from things that
were already in the written comments.  What market did these small firms
serve?  I gather it isn't largely the market that we mostly talked about
here that's going to save the country $1.6 trillion and so forth, but is
a much more limited market.  Could you tell us more about that?

		MR. JORDAN:  I can speak to some of this.  Kenny Jordan again.  Most
of the wells in the United States, 90 percent of the wells are drilled
by small oil and gas firms, themselves.  So what you see within the
marketplace is that a lot of these smaller oil and gas companies that
might be just family operations many times, they are the ones that are
going to employ more of the local smaller companies.  

		I don't want to use company names, but, you know, there is the Big
Three that have been around forever.  Most of those companies aren't
going after that small market.  So what you have the tendency to do is
XYZ Oil Company in the middle of the Utica Shale, in a small town, is
going to use his friend down here who owns a service company that might
perform that small frack for them.   

		What you tend to see are the larger operators, and again I don't want
to use names, but the ones you typically think of, those are the ones
that are going to use your larger firms because a lot of times, from a
market perspective, these are multi-service companies so they're
contracting not only for the fracking operation, but they're contracting
for the wire line portion and they have one company that can provide the
whole thing.  These smaller companies like we're talking about maybe can
only provide one or two services.

		MR. BURT:  Thank you.  That concludes my questioning.  And thank you
for coming by and for your helpful comments.

		MS. IANNUCCI:  Hi, good morning.  This is Annette Iannucci from OSHA. 
I just had a few questions for Mr. Jordan.  First of all, Mr. Jordan,
you mentioned that there is a high turnover rate in your industry.  Can
you please elaborate some more on that?

		MR. JORDAN:  Within our industry, especially in what I'll call our
blue collar jobs, the jobs for kids that are coming out of high school
and looking for work, it's long hours.  It's long days no matter what
the weather, what time of day.  We find a lot of people think they want
to do this job till they get out there and don't get to go home for 48
hours.  And so we get a lot of turnover within those companies.

		Also, when times are good, what you see is he might work for one
company maybe for only a couple of months.  He might get offered another
job maybe doing the same thing in another company for a quarter more an
hour.  He's going to move down the road and so something there. 

		So it's turnover in two respects.  It's, one, they are moving onto
other companies.  And, two, this just isn't the business for them.

		MS. IANNUCCI:  What is the average rate of turnover would you say?

		MR. JORDAN:  Oh, on an average, I'm going to say -- I've had
well-servicing contractors, I'm not talking fracking companies, I'm
taking well-service rig companies and these are floor hands, drillers,
derrickmen.  I know of two companies specifically right now that have
already this year experienced 75 percent turnover.  I'm going to wag a
guess here and say we're probably in the 50 to 60 percent range overall
for incoming employees.

		MS. IANNUCCI:  Okay.  On average, how long do employees stick around
would you say per company?

		MR. JORDAN:  You know without surveying the membership and asking, I
couldn't give you an exact example.  If you look at -- we monitor some
of the injury reportables and we see in some of the injury reportables a
lot of the injuries happen within the first six months to a year.  So we
see a lot of that.  I'm going to say you're going to probably find a
year to three years, kind of in that area somewhere.  And, again, I'm
going off memory here.

		MS. IANNUCCI:  Okay, thanks.  And my next question, I think I heard
you say during your testimony that when workers receive training, they
are often given a card and they can take this card from employer to
employer as proof that they have had the required training.  Is that
correct?

		MR. JORDAN:  The card that I'm talking about is called a SafeLand
card.  This was something that was put together some years ago.  What
was happening was it you might have -- you might we working for 15
different oil companies and each of them had an orientation program. 
And every one was different.  So if you wanted to work for XYZ, you had
to do their orientation program.  If you wanted to work for ABC, you had
to go to their orientation program.  

		So what we found was, is that we were sending a lot of employees to
all these orientation programs that there wasn't very much difference
in.  So we got several of the E&P companies together.  This is less
standardized on what you want to see in an orientation program.  And so
we did that.  We developed a curriculum for that.  It's called SafeLand.
 It's an eight-hour -- it's not a training course.  It's an
orientation.  

		MS. IANNUCCI:  Okay.  

		MR. JORDAN:  So when they go through that orientation course, they are
given a SafeLand card.  Many times when they get to a location, if that
particular oil company accepts or demands that they have that card, they
have to have that card with them in order to work for that contractor. 
But it does show to them that they have been through certification
program and they have had that orientation to well sites.

		MS. IANNUCCI:  Okay.  And can you explain more about how this works in
terms of what your association contributes to this and what the member
companies contribute?

		MR. JORDAN:  In terms of the SafeLand, itself?

		MS. IANNUCCI:  Right.

		MR. JORDAN:  We helped develop the orientation class itself with the
eight hours.  It not only -- I will say it has only just recently added
the silica exposure, but before we dealt with fall protection.  We dealt
with transportation.  We dealt with PPE, confined space, lock out/tag
out.  Those are the kind of things that we worked on.  It was both
service companies, and oil and gas companies that were on the board that
developed this curriculum.  Presently, we've got both contractors and
operators that continually evaluate that curriculum, adjust the
curriculum as we go forward.  

		MS. IANNUCCI:  Okay.  And is the concept of the portability of the
SafeLand card what you had in mind when you said that there should be
electronic medical records that can be transferred as the worker goes
from job to job?

		MR. JORDAN:  I'm just staying that there needs to be come mechanism by
which that if, again, if the rule does go forward and requires the
x-ray, the monitoring, if there was some way that they could follow that
employee, it would certainly make a lot of sense to companies as they
move.

		MS. IANNUCCI:  And do you see your association as playing a role in
this?

		MR. JORDAN:  We could help facilitate it, for sure.

		MS. IANNUCCI:  Okay.  And what kind of information do you think would
be appropriate to go from employer to employer?

		MR. JORDAN:  There are so many ERISA rules and everything that you've
got to be careful of here.  But I think the one thing we were concerned
with most of all was the x-ray.  If you've got an employee that quits
and goes to work for another company, you know, he might go through four
companies in a year, and might go through six in two years, and
continues to have an exposure.  Anything that we can do to limit that,
and honestly to cut the cost, too, would help tremendously, too.

		MS. IANNUCCI:  In terms of the x-ray, is what you are interest is
verification that the employee has had it or that you want to see the
actual results?

		MR. JORDAN:  I think, and correct me if I'm wrong, I think OSHA's
intent was to have a baseline when an employee goes to work.  So that
within the three years, when they redo, to monitor his progress and see
if there's any issues associated with exposure.

		MS. IANNUCCI:  Okay.  Is this something you feel would be more
appropriate for a neutral party to do versus the employer?  I just want
to get your thoughts on it.

		MR. JORDAN:  I think you're going to have to leave that up to the
medical community to do.

		MS. IANNUCCI:  Okay, thank you.  That's been very helpful.

		MR. O'CONNOR:  This is Dave O'Connor.  Do I understand correctly that
the panel members view not only the proposed PEL of 50 µg/m3 as
infeasible in hydraulic fracturing operations, but also the current PEL
of approximately 100 µg/m3?

		MR. D'ANGELO:  This is Wayne D'Angelo.  We believe it's infeasible to
meet -- in many cases infeasible to meet the current PEL without use of
respirators, yes.

		MR. O'CONNOR:  Mr. Jordan, do you hold that view as well?

		MR. JORDAN:  I say given that the history and as we've seen the cases
of silicosis decrease, I haven't seen the most recent numbers, that the
current level of 100 has been bringing that down for a number of years. 
So our argument is why change it when what's in place seems to be
getting us to a point -- no death is acceptable, but at least getting
us a point as we lower.  So our preference would obviously be to leave
it where it is.

		MR. O'CONNOR:  Yes.  But do you believe that engineering and work
practice controls can currently achieve a level of 100 µg/m3 of air in
hydraulic fracturing operations?

		MR. JORDAN:  From what we have seen so far from an engineering control
standpoint, no, not without the use of respirators.

		MR. O'CONNOR:  Thank you.  In API's testimony, you indicated what you
saw as some deficiencies in OSHA's analysis.  For example, on Slide 12,
you indicated that OSHA's estimate that thief hatch emissions account
for 50 percent of all silica emissions was not sufficiently supported.

		I was just wondering if API had alternatives to suggest, whether you
saw, you know, 25 percent, or 75 percent, or some other number as being
appropriate, or whether it was just that you felt OSHA's analysis was
deficient?

		MR. D'ANGELO:  This is Wayne D'Angelo answering.  I didn't get from
any of my member conversations any different quantification, but we're
simply noting, you know, sort of the insufficient basis for this
determination.  But I think that's some information that's attainable
through a SBREFA process and we hope you'll provide one.  And we can
certainly ask members to the extent that they have such information, if
they have quantified and measured the relative emissions from the
various sources identified by NIOSH and others.  We can certainly ask
for that information.  And we will supplement the record if we have it. 
I don't have it.

		MR. O'CONNOR:  Yes.  I would like to reiterate that.  I think it came
up in earlier questioning, but would certainly like to emphasize that
data is extremely useful to us.  So to the extent that any of the member
companies of the associations that are on the panel are able to provide
information that would reflect current exposures, use of controls, and
the effectiveness of those controls, it would be very helpful to us.

		Do I understand that hydraulic fracturing is conducted in essentially
all weather conditions year-round?

		MR. JORDAN:  24/365.  Kenny Jordan, sorry.

		MR. O'CONNOR:  And to the extent wet methods might be used to control
silica exposures, how would below freezing temperatures affect that?

		MR. JORDAN:  Again, Kenny Jordan.  In freezing conditions like that,
you wouldn't be able to mist or do anything with.  Now the rain causes
other issues.  A lot of times, you'll see them put tarps up just to keep
water out of or freezing water out of certain places.  

		When this operation starts, you're talking about pumping tons and tons
of sand in a very, very, very short period of time.  So we've seen
instances where you've had to have heaters on location sometimes to keep
water from freezing and doing things.  Weather will shut down some
operations, but given the current environment that we're in, we've seen
them running pretty hard here the last few years.

		MR. O'CONNOR:  Thank you.  In API's written comments, and I'm
referring here to Page 35 of those written comments, there is an
indication that NIOSH's sampling is not representative and that it
features relatively few of the geologic basins where hydraulic
fracturing occurs and goes onto indicate that differences in the
geography account for variability in exposures.  And I was just trying
to understand why that is and what the basis is for indicating that
there are differences in exposure based upon the geology?

		MR. D'ANGELO:  This is Wayne D'Angelo answering.  And I'll let
Mr. Jordan follow up because he's spent a lot more time on hydraulic
fracturing sites than I have.  But our basis for this part of the
comments is to discuss the high variability of these various conditions.
 In NIOSH's sampling, 7 of the 11 samples were from one basin.  

		But being in an outdoor environment, you would expect that things like
wind is going to be a significant factor that would impact the efficacy
of controls and the exposures that are monitored there; moisture levels,
because as OSHA appropriately identifies, you can wet dust to keep dust
down; as well as sort of de facto enclosures.

		Some of these were noted in NIOSH's reports.  You know, a box canyon,
there may be working in a box canyon could cause an impediment to the
dissipation of exposures.  So there is just a lot of various -- a lot
of variables that lend to increased reliance or we would hope increased
reliance on a broader data set.

		MR. O'CONNOR:  Okay.  Is this based on a perception that those factors
are going to affect exposures or is there sampling data to support that?

		MR. D'ANGELO:  This is Wayne D'Angelo answering.  I think that they
are referenced in the NIOSH data, as they identify the sites and
identify the sites that they did not or the types of topography that
they did not sample in.  I don't have any additional data.  Again, I
don't have any additional exposure data, so I don't have anything
particular to add there.  Kenny, I don't know if you have any?

		MR. JORDAN:  No.  This is Kenny Jordan.  We don't have any additional
data, either.  You will find that there are some subtleties from basin
to basin because of just the way the frack, the geology and the way the
pressures that are pumped, the grain sizes, some things change subtly
from area to area, too.  And a lot of that is called out by the NP
company when they design their frack.  They have to take the geology in
to account when they design that frack in terms of what size sand, how
much sand, how much additive.  So it's like mixing a cocktail a lot of
times.  It could change from whether you're in a 6 percent dolomite or a
20 percent sandstone process.  So it changes in that respect.

		MR. O'CONNOR:  Thank you.

		MR. BURT:  I'm sorry.  I had one more question I wanted to ask.  In
costing -- Bob Burt.  In costing regulated areas, you had a fairly high
cost for things like an air shower and HEPA vacuums to clean clothes. 
Why do you think that was required by the regulation?

		MR. D'ANGELO:  This is Wayne D'Angelo answering.  Those I believe are
mentioned within the proposed regulation.  Again, I can't call up cite
and verse, but there is a prohibition on gross accumulations of finely
divided particulates for those.

		MR. BURT:  Yes.  What it says is potential for employees' work
clothing to become grossly contaminated.  And it's your interpretation
at least at the cost analysis that everyone in a regulated area would
have clothing grossly contaminated?  Is that my understanding?

		MR. D'ANGELO:  I don't know how we attribute, whether we attribute
that to all workers, but I can follow-up and let you know.  I don't know
precisely the cost factor, whether it's a per person, but we can
certainly provide that information, unless you have it on hand?

		MR. CROOKSHANK:  Steve Crookshank here.  I don't have that.  I mean
it's in the spreadsheet.  It's in the workbook that you have.

		MR. BURT:  Okay, I will check that.

		MR. CROOKSHANK:  It has a couple of paragraphs on assumptions and
calculations and I think it's embedded in there.

		MR. BURT:  And I ask this not only as a cost question, but because I
think OSHA may not have intended this provision to go as far as you, I
think, interpreted it to go.  And I would be curious about alternative
language that might clarify OSHA's intent, which is where dust would be
an appreciable fraction of a person's total -- off the clothing would
be an appreciable fraction of a person's total exposure is what I think
we're looking for there.

		And any suggestions you might have on how we could keep you from
thinking, and you aren't alone in this, and thinking that everyone has
to have this kind of clothing and so forth.

		MR. D'ANGELO:  This is Wayne D'Angelo.  We would love to discuss that
provision with you further.  Thinking further on your previous question,
though, I think the costs here are, you know, for having the vacuum on
site, for having the air shower on site, so it wouldn't, and perhaps I'm
missing the point, I don't think that is a per person cost.  It's just
noting if you have a regulated area and there is the potential for these
gross accumulations.  

		Now maybe we are interpreting that differently than, you know, in
order to comply, one would expect the OSHA inspector is going to want to
see the HEPA vacuum or the air shower there.

		MR. BURT:  One more question.  What is your current practice on work
clothes?  Currently, is there any tendency to require any specific type
of work clothing on these sites?

		MR. JORDAN:  On frack sites, what you will find now is that you will
find almost 100 percent of them in FRC.

		JUDGE PURCELL:  That was Mr. Jordan.

		MR. JORDAN:  I'm sorry.  Yes.  But most of them are contracting.  They
are coveralls.  But almost all compliance is within FRC because of the
potential exposures to flash fire.

		MR. BURT:  Thank you.

		MS. RYDER:  This is Anne Ryder.  I have a few questions for you all. 
My first question I think is for Mr. D'Angelo and maybe Mr. Jordan,
also.  And I have a question about some of the technology that is
currently being developed.  I saw on the STEPS website that there has
been a liquid dust suppressant that has been developed made with a
hydro-finished waxy oil.  Do you have any familiarity with this?  If so,
can you tell us a little bit about that as a control?

		MR. JORDAN:  This is Kenny Jordan.  I remember sitting in on that
presentation and thinking that that was an awful fancy name.  But I
don't recall anything specific about that technology.  I could go back
and get you that information about it, if you'd like.

		MS. RYDER:  That would be excellent, yes.

		MR. JORDAN:  Okay.

		MS. RYDER:  Mr. D'Angelo, do your members not use this, know anything
about it?

		MR. D'ANGELO:  I don't.  I mean I presume that it is in all to make
water more effective as a misting?

		MS. RYDER:  It's actually an -- you add it to the sand, I believe, is
that right?

		MR. JORDAN:  This is Kenny Jordan.  It's actually an additive to the
sand to keep the dust down is what it is.

		MR. D'ANGELO:  This is Wayne D'Angelo.  It's not something that has
been raised by my members, nor have I seen that technology.

		MS. RYDER:  Okay.  Mr. Jordan, if you are able to get more
information on that and whether people are using it, how effective they
are finding it, that would be really helpful.

		MR. JORDAN:  I will make that happen.

		MS. RYDER:  Okay, thank you.  And I guess just to follow up to that,
are there other either engineering or work practice controls that OSHA
hasn't identified that you've heard that your members are trying out? 
And if they can -- if you could provide any information about how they
have been using these techniques?

		MR. JORDAN:  This is Kenny Jordan.  I think what we are finding is a
lot of them are looking for us for guidance right now, especially some
of the smaller companies.  Some of the larger companies have the means
by which to develop some internal controls and doing some things,
themselves, that, you know, at the end of the day, they might keep as
proprietary information, I don't know.  

		But we are trying.  They're trying to ask us where is this going, what
are we going to have to do from that standpoint.  We're trying to give
them an overall picture, here is where you are today, here is where you
might be if this goes forward, but you need to be prepared for somewhere
so make preparations, if you aren't doing it already.

		MS. RYDER:  Mr. D'Angelo, do you have anything to add?

		MR. D'ANGELO:  The technologies that have been raised with me were
very consistent with those that were in OSHA's docket, you know, the
LEV, trying to control through capture.  The only thing that I can add
is just based on research I did in preparation for this hearing is
noting, you know, a gentleman who will be testifying later today that
another option that is currently out there being explored is ways of
sort of minimizing dust sources or compartmentalizing.  I'm not going to
attempt to characterize this technology.  But you asked and I am aware
of that technology, and I look forward to hearing about it.

		MS. RYDER:  Okay, great.  Thank you.  I have another question about
something that you mentioned, Mr. Jordan, about the medical, certain
degree of medical tests that are being done upon initial hire right now.
 I think you mentioned fit testing, a drug test, sometimes some
ergonomic evaluation.  Is that something that's being done wherever
you're hiring the individual, or are you hiring someone, bringing them
out to the site, and the conducting those evaluations at the work site?

		MR. JORDAN:  Most of them are having to do their physicals and drug
tests as a requirement of employment.

		MS. RYDER:  And where is that happening, I guess?  

		MR. JORDAN:  It depends on where they are going to be assigned.  You
might have somebody walk into Odessa, Texas, who is going to work in
Odessa.  They will have a place there that they will do all that
testing.  You might have a corporation headquarters a lot of times where
they have to go in, where they might have an assignment in some part of
the country.  They might do the testing there and then send them on.  So
it varies company to company and how they get hired.

		MS. RYDER:  Okay.  Just to follow up on that, if someone was being
hired in Chicago and they were going to be sent to somewhere remote in
North Dakota, where would all of that happen?

		MR. JORDAN:  If they were hired, if they did their interview -- I'm
going to make an assumption here.  If they did their interview in
Chicago, they would probably do other testing there before somebody paid
for them to go to North Dakota and find out he can't pass a drug test.

		MS. RYDER:  All right.  And one other follow-up for you, Mr. Jordan. 
You talked a little bit about the SafeLand training and how you recently
incorporated some silica training.  If you haven't already submitted, if
that's in written form and could be submitted to the docket and if you
haven't done it already, would you be willing to do that?

		MR. JORDAN:  This is Kenny Jordan.  I will submit the entire
curriculum for you.

		MS. RYDER:  Okay.  That's all I have.  Thank you all very much.

		MR. O'CONNOR:  That concludes OSHA's questioning.  Again,
Mr. D'Angelo, Mr. Crookshank, Mr. Jordan, thank you for appearing
this morning.

		MR. JORDAN:  Thank you.

		JUDGE PURCELL:  I thank you as well, appreciate your time and
testimony.  

		The next presentation on the agenda is by SandBox Logistics, John Oren
and Josh Oren.  Are they both here?  All right, Mr. Oren, I'm going to
take a five-minute break just to allow you time to get set up and
anybody else that needs it to take advantage of it.

		(Off the record at 11:53 a.m.)

		(On the record.)

		JUDGE PURCELL:  If you call can take your seats, I think we're ready
to resume.  If you have any questions or you want to carry on
conversations, please step outside the auditorium.  And as I said, the
next -- we need some quiet, please.  Thank you very much.  

		The next item on the agenda, as I indicated, is Mr. Oren from SandBox
Logistics.  Mr. Oren has provided me with a copy of his presentation. 
What was the next exhibit, please?

		MS. KRAMER:  152.

		JUDGE PURCELL:  I'll mark that as Hearing Exhibit 152 and that will be
admitted into the record.

(Whereupon, the document referred to as Hearing		 Exhibit 152 was marked
and received in evidence.)

		JUDGE PURCELL:  Mr. Oren, thank you for your patience and whenever
you are ready, you may proceed.

		MR. OREN:  Thank you, Your Honor.  Good morning or close to good
afternoon.  My name is John Oren.  I am Chairman of the Board of
SandBox Logistics, based in Houston, Texas.  I'm pleased to be here this
morning and presenting testimony in support of OSHA's proposed rule.

		I am here to talk about the technological and economic feasibility of
the proposed rule within the hydraulic fracturing industry.  

		So the technology currently exists that will allow the hydraulic
fracturing industry to meet lower permissible exposure limits for silica
dust, and it is commercially available now.  I thought the earlier
testimony was pretty interesting as a lot of it had to do with what is
commercially viable today in the industry to help reduce or eliminate
silica dust exposure.

		This technology is economically viable and produces direct savings for
the industry, rather than increasing the costs.  SandBox Logistics
provides this technology, which is already being adopted within the
hydraulic fracturing industry.  And we support the proposed rule and
believe that industry now has an economically viable tool to comply with
more rigorous silica dust regulations.  So my testimony will explain the
re-engineered processes and equipment that will allow the hydraulic
fracturing industry to meet, if not surpass the proposed PEL.  

		SandBox Logistics -- let's see if I can get this to move.  We are a
logistics business.  We have been in the industry for well over 35
years.  We own and operate the Pinch Group of Companies, which is
dedicated to the movement of oil field equipment.  And we also operate
today a conventional frack sand delivery service both in the Bakken and
in the Eagle Ford.

		We are also the inventors of a revolutionary new process for end to
end containerization and the delivery of frack sand that is safer, more
efficient, and more cost-effective than current processes, and
dramatically reduces silica dust levels throughout the sand supply
system.

		And so why do we support this proposed ruling?  Because it will be in
the best interest of the workers, the residents, and neighboring
well-site communities, and the hydraulic fracturing industry as a whole.
 It is viable.  It is economical, feasible, and it is commercially
available. 

		So we are in support of a safer work site both at the sand mine where
sand is -- frack sand is produced, or wherever it is along the
logistics chain, in fact, all the way to the frack site or to the well
head. 

		So our focus has been on these three points, 11, 12, and 15, and we'll
be focused on these matters.  

		The Question 11, have there been technological changes within your
industry that have influenced the magnitude, frequency, or duration of
exposure to respirable crystalline silica, or the means by which
employers attempt to control such exposures?  The answer is yes.

		Has there been an effort in our firm to reduce or eliminate respirable
crystalline silica from production processes, products, and services? 
Emphatically yes.

		And so we are here because you request information regarding
engineering and work practice controls to control exposure to silica
dust in the workplace or industry.  So we are here to talk about the
containment of silica dust and how we do it at SandBox.

		JUDGE PURCELL:  I think you're a slide behind, Mr. Oren.  I'm sorry.

		MR. OREN:  Am I?  Very good, thank you.  So we have re-engineered the
existing commercial processes and equipment in a way that substantially
reduces or eliminates silica dust.  By doing this, we've removed
unnecessary steps throughout the supply chain and reduce costs for the
industry at the same time.  And we have created a safer, healthier work
site.  

		We have done this by completely eliminating the pneumatic transloading
process, which is the primary cause of silica dust.  At the same time,
we have increased the operating efficiency for the industry.  And we
have done this by creating a full end-to-end solution that will shine a
positive light on an industry that is suffering from a negative stigma. 


		Some of the ancillary benefits of our solution, reduces diesel
particulate emissions dramatically.  It reduces noise pollution at a
frack site, improving the working conditions of the people there.  We
eliminate the numbers of people operating near a frack site location. 
And we also improve the condition of the sand or the proppant.  And we
also reduce the congestion on the local highways, as well.

		So how do we do this?  Sand-containing silica is loaded at sand mines
and remains contained in our SandBoxes which is ready for transport to
the railhead.  SandBoxes then are shipped to a well pad, where they
serve as storage vehicles.  At no time is the sand transloaded to silos
or conveyed to other methods of storage.  Sand is conveyed directly from
the SandBox into the blender hopper by gravity feed.  It is not
pneumatically transferred and so pneumatic sand transfers are completely
eliminated.  And the handling requirements are quite a bit minimized. 
And the supply chain has been greatly streamlined.

		So let me see if I can do a better job of explaining it.  There was a
movie that came out was called Transformers.  So if you kind of keep
that in mind here.  If you can imagine putting frack sand in a SandBox
and never touching it again until it actually is delivered into the
blender hopper at the well site.  

		So the SandBox becomes a silo storage unit.  It then is, because it is
modular, because it is mobile, it then can be easily put on a railcar,
which SandBox had had to design and patent.  And then it is picked off
of the railcar and put on a chassis that is designed specifically for
this 10 foot by 8 foot box, in a way in which that box, when it is
filled with frack sand, weighs approximately 53,250 pounds, which
matches what a pneumatic truck currently transfers.  And then it is put
on a cradle or a conveying system where the frack sand is gravity-fed on
a proprietary belt and fed directly into the blender hopper.  So this
technology -- or this portrays how the technology makes it a far safer,
more efficient, and less costly sand delivery process.  

		So, once again, this is how it works.  It gives a better idea of who
the product transforms itself from these different modes of storage and
transportation.

		I think one of the most important things that might be noted here and
there has been a lot of discussion about thief hatches, but the SandBox
completely eliminates the thief hatch.  It removes the sand king or the
sand mover from the frack sand in its entirety.  And the sand is not
delivered pneumatically or under pressure, which creates the plume of
silica dust at a frack sand, so that is completely eliminated.  

		So sand, once again, is shipped by rail or truck in closed containers.
 The containers are loaded from railcars to trucks at the railheads. 
Trucks unload containers into highly concentrated storage areas at the
well head.  And the result is no proppant or sand transloading is
required ever.  Reduced steps, which means there are safer processes in
place and there is a great deal of reduction in handling costs. 

		So exposure to silica dust is all but eliminated throughout the
transportation stage of this supply chain under the SandBox solution.

		As it relates to storage, sand is stored in closed containers using a
very minimal footprint.  Need for wellpad storage silos and sand movers
is totally eliminated, as I said.  Results, no need for expensive, just
in time delivery requirements for a frack job.  There is less capital
investment required for equipment used at a frack site.  There are fewer
steps, which are more economical.  And there is improvement in the
proppant quality.  There is no proppant degradation.  Reduced handling
costs.

		One very important point I'd like to make is that SandBox completely
eliminates a very high cost at the well site, which is the demerge,
demerge of the trucks at the railroad depots, demerge of the sand hopper
cars.  That is eliminated.  And congestion on roads are eliminated
during the frack job.

		At the well head, the cradle, which is the conveying system that we
have invented, holds four containers, allowing for a continuous flow at
the most aggressive flow rates.  The container can empty, if required,
in less than two minutes, where it delivers 46,000 pounds of natural
sand, greater than that if you are managing ceramic products.

		There is a higher quality sand fed by gravity feed onto a conveyor
belt and then, in turn, into the blender hopper.  And so a forklift
operator loads and unloads these containers in a very, very short period
of time, less than 4 minutes, as compared to 89 minutes on the average
for one truck pneumatic delivery.  So there is a dramatic improvement in
efficiency at the well site.  Less traffic at the well site, fewer
people on the well pad, and the elimination of the pneumatic usage in
the frack sand delivery supply site.  So our specially designed cradle
dramatically reduces silica dust typical to conventional methods and
processes. 

		And so going to what NIOSH has identified as the top sources of silica
dust at a frack site, the top access ports on the sand movers, known as
thief hatches, side ports on sand movers, and the transfer belts under
sand movers.  The sand kings or the sand movers are completely
eliminated.  There are no sand movers required.

		Transfer belt between the sand mover and the blender, top end of sand
transfer belt, which is known as, what we refer to as the dragon tail. 
So this belt design that we use on the cradle is a very unique design,
designed to eliminate at high rpms the vibration of dust on the sand
belt.  And so with our design, it moves it very efficiently, with very
little vibration causing silica dust.

		There is also dust generated by heavy equipment moving on the pad
site, grinding mud and dirt into a very fine powder.  Because our trucks
can be on the site and off the site in four minutes, you know, what is
generally a 20-truck to 30-truck operation to supply sand at a frack
site, SandBox is able to do that with 7 to 10.

		And there is a great deal of dust that is released from the worker
clothing.  Greatly reduced amounts of dust on well pad result in reduced
exposure.  

		So our supply chain solution addresses each of the eight major areas
of concern identified by NIOSH regarding exposure to silica dust at the
well site.  And, in several cases, the offending process is eliminated
altogether.  

		So these are common occurrences.  Silica dust in the air at well
sites.  Respirators are proving to be ineffective protection.  SandBox
endeavors to eliminate all of these scenarios.

		JUDGE PURCELL:  And for the record, there are four photographs shown
on the slide.  Starting from the top left-hand corner, it says top of
storage, pneumatic delivery, transfer belt, and sand mover.

		MR. OREN:  So improved technology is commercially viable and available
now, and it does reduce silica dust exposure, medical expenses due to
illness, injury, and dust exposure; proppant degradation and the amount
of capital investment in equipment required at the well head; reduces
diesel particulates and hazardous noise levels, congestion on local
highways, demerge, and costly shutdowns due to a lack of sand or
proppant.

		So we improve by creating a safer work site, a healthier work site, a
more environmentally friendly work site, and a more efficient and cost
effective work site.  

		We are just receiving news, in fact, this past week where we have been
taking samples.  We intend to publicize the results of the testing by an
industrial hygienist.  The early results are supposed to be from what
I've been told remarkable.  The solution is currently implemented in the
Bakken Shale.  We intend to have operations in the Niobrara Shale region
in the next 100 days and also in the Eagle Ford within the next 120
days.  

		So we're moving forward with extensive professional hygienic testing
that will measure and document the drastic reduction in levels of silica
dust throughout the supply chain.

		And so, in conclusion, the SandBox management team is confident that
the ability to satisfy the proposed PEL is both economically and
technologically feasible for the hydraulic fracturing industry.  In the
hierarchy of controls to prevent exposure to silica dust, the most
effective and preferred method is elimination of the source.  We have
drastically reduced and in most cases eliminated the source of silica
dust in the proppant supply chain.  So promulgation of the proposed rule
is in the best interest of workers, residents, and the neighboring well
site communities, and the hydraulic fracturing industry.  

		I might make a note that it has been 76 years since Frances Perkins,
then Secretary of Labor under President Franklin Roosevelt, committed
the Labor Department to eradicating silicosis in the United States. 
SandBox has taken an important step forward in fulfilling that
commitment within the hydraulic fracturing industry.  Thank you.

		JUDGE PURCELL:  Thank you, Mr. Oren.  With that, I will open it up
for questions.  Can I see a show of hands?  Ms. Seminario and a
gentleman over here on the left.  We'll start with Ms. Seminario.

		MS. SEMINARIO:  Good morning.  My name is Peg Seminario from the
AFL-CIO.  Mr. Oren, thank you very much for your testimony.  When was
this technology, the SandBox technology developed?

		MR. OREN:  Well, I am the co-inventor and I began the process about
almost three years ago.

		MS. SEMINARIO:  And what motivated you to explore this technology?

		MR. OREN:  We are in the frack sand delivery business.  And we
experienced a great deal of problem in getting frack sand put into our
pneumatic trucks, and a great deal of problems meaning that
transportation is all about efficiency.  So there is very inefficient
ways to get great amounts, great volumes of frack sand loaded on
thousands and thousands of trucks daily.  

		To give you some point of reference, close to 70 billion pounds of
frack sand were consumed in 2013.  That's over 9,000 truckloads per day.
 So there was a shortage of equipment, a shortage of drivers, long lines
both at the distribution centers and at the well sites.  And we saw a
need for ourselves to try and streamline the logistics chain.  And so we
began to really leverage our past experience in transportation and
storage to the frack sand delivery industry.

		One of our businesses was in the movement of containers throughout the
United States.  We owned and founded a company called RoadLink USA.  And
that business allowed us to really understand the railroad modes of
transportation, steamship line modes of transportation, the systems
themselves, and as a container goes from a steamship line, to a
railroad, to a truck, we were steeped in the industry. 

		And we felt like the containerization would bring great efficiencies
to the fracking industry.  And so we began to think in terms of applying
that principle of containerization to frack sand.

		MS. SEMINARIO:  Thank you very much.  I think in one of your slides,
you stated that this technology is currently commercially available and
that it is being used in the Bakken Shale area.  Is that correct?

		MR. OREN:  Yes.

		MS. SEMINARIO:  How many different frack companies or operators are
you working with these days?  I understand that may be propriety
information, but just trying to get a sense of the scope of your work
and the availability of this technology.

		MR. OREN:  Well, no, it's not proprietary.  We have been marketing
this system within the last six months.  So it is very young.  We've
spent a lot of time, money, and effort just in the research and
development, trying to understand the entire logistics chain from the
sand mines to the well heads.  You can imagine that there is, even
though the end result is a fairly simple and elegant solution, you have
to do a great deal of study to figure out the minute things.

		For example, what is the property of sand riding along on a highway at
an interchange at 85 miles an hour.  What happens?  You have to engineer
that.  You've got to figure that out.  You also have to -- I'll say it
this way.  We endeavored to take on the entire logistics chain and come
up with a solution that improves all of the stakeholders along the
logistics chain from the sand mine owners or suppliers to the railroads,
to the transloading and storage folks, along with the last mile delivery
people and the hydraulic fracturing people, themselves.  

		So we had to come up with a full end to end solution.  Then we had to,
you know, as a business, a for-profit business, we had to come in with a
competitive price.  We couldn't -- we didn't feel like we would have a
commercially viable system if we came and it was something that's pretty
effective, but it's at a higher price.  We wanted to be the last guy
standing if the price of oil or gas collapses.  And we've done that.

		MS. SEMINARIO:  So on the price issue, how does the cost of say the
amount or volume of sand delivered in this process compared to the more
traditional delivery of frack sand.  You said it's competitive.  Is it?

		MR. OREN:  Yes.  Well, we, you know, if we are able to win an account
that wants us to provide an entire logistics chain solution, that is
from the sand mine all the way through the well site, we -- our cost
comparative analysis is giving a conservative estimate of a savings of
26 percent.

		MS. SEMINARIO:  So it's actually a savings using your system?

		MR. OREN:  Yes.

		MS. SEMINARIO:  Just to be clear, SandBox Logistics is providing the
whole service, that is from acquiring the sand at the mine, to the
transport, to the delivery.  And then at that point, do the containers
leave the site and are they reused, or is there also storage of
containers on site?  I wasn't clear about that.

		MR. OREN:  We are a logistics firm.  So we are offering our services,
you know, which quite flexibly, we can do a turnkey service, providing
all those functions that you just mentioned, with the exception of
supplying the sand.  We do not own the sand.  We just move and manage
the sand through the logistics chain.

		MS. SEMINARIO:  Okay.  So the containers that you were showing here
are part of your service and they are your property.  You don't like
sell the containers?

		MR. OREN:  No, we do not.  It is our property.  It is our proprietary
equipment.  These are pieces of equipment that are patented, not patent
pending, but patented issued, and so we do not sell the SandBoxes.  But
we put them out for lease, as we do the other pieces of equipment.

		MS. SEMINARIO:  And recognizing that this technology is relatively
new, what is your sense or your best estimate of the ability to scale up
the application of this technology?  Let's say if the standard goes into
effect, there is a demand for reduction in exposures, what would be the
ability of your firm to scale up to provide the technology on a
larger -- to a larger customer base?

		MR. OREN:  Well, that's about two years of research to try and figure
out an answer to that.  We have done I think a tremendous job of
planning for explosive growth, because we believe that our system will
be in very high demand.  So we have sought high quality manufacturers
domestically and foreign.  

		These manufacturers are folks that are in the business of building
these kinds of equipment and have been for a long, long time, so we know
their quality.  We know of their ability to meet certain quantities that
we were required -- that we require of them.  But I think we have some
limitation to scaling.  I mean we are a company that has limited
resources.

		MS. SEMINARIO:  And one last area of questioning and that has to do
with the industrial hygiene evaluation that is ongoing currently with
respect to the exposures with this control technology.  I think you
mentioned in your presentation that the results of that initial
evaluation would be available in Quarter 2 of 2014.  By my calculation
sometime I guess earlier this week we entered Quarter 2 of 2014.  Do you
have a better sense of when that data would be available?

		MR. OREN:  Well, I'm hoping that we will have this report in our hands
within the next week.  We'll evaluate it.  And then we'll be discussing
how we disseminate the information into the marketplace with our
customer in the Bakken.  But our customer and SandBox, you know, we're
highly motivated to get the information out.

		MS. SEMINARIO:  All right, well, thank you very much.

		MR. OREN:  Thank you.

		JUDGE PURCELL:  Thank you, Ms. Seminario.  Mr. D'Angelo?  Please
state your name for the record.

		MR. D'ANGELO:  Sure, Wayne D'Angelo; Kelley, Drye, and Warren.  I
appreciated your presentation.  I thought it was very interesting.  The
testing, can you just talk a little bit more about the exposure
monitoring that you are conducting?

		MR. OREN:  Our customer has, in conjunction with SandBox, has hired a
third party industrial hygienist who came into a frack site and did
their own independent testing.  I shouldn't say independent, it would be
we hired them to do the testing.

		MR. D'ANGELO:  Fair enough.  Just to get a better understanding of it,
you own the boxes, you own the trucks, you are in the logistic chain all
the way to the end.  The device that elevates those boxes that are fed
into for funneling proppant into the well, is that your device or is
that purchased by the hydraulic fracturing company?

		MR. OREN:  It's our device.

		MR. D'ANGELO:  It's your device.  So the -- I'm trying to assess the
cost for companies that want to adopt this.  Are there equipment
purchase costs?  Are they going to need, for instance, I've seen on the
website that there is a forklift.  Is that theirs or is that yours as
part of the logistic chain?

		MR. OREN:  It depends on if the customer wants SandBox to operate this
equipment on a turnkey basis or if they would prefer their own personnel
at the frack site to operate certain pieces of the equipment, for
example, the forklift operation or the cradle operation.  So we can do
that for a fee or they can do that.  

		The customer, you know, early on as we build our business up and we
want to transfer capital investment expenses and manage that balance
sheet issue, ourselves, we would like to see our customers buy the
cradles.  We would like to see the customers buy the forklifts.  We then
supply and lease the SandBoxes.  We supply transportation services for a
fee, just like pneumatic carriers do.  So we take on that
responsibility.

		As it relates to the railcar, that is a negotiated process.  Does the
sand supplier purchase or lease the railcars or do the pressure pumpers,
who are in the region and need to have a consistent supply of sand,
would they do that.  So would we participate in that arrangement in a
joint venture, for example.  So there is a great deal of flexibility in
the way that we manage the capital expenses for these pieces of
equipment.

		MR. D'ANGELO:  Interesting, thank you.  If someone were to buy the
cradle under that option, can you approximate or ballpark a cost for the
cradle?

		MR. OREN:  $350,000.

		MR. D'ANGELO:  $350,000.  And, again, the incremental cost over
typical sand delivery, you're saying you're delivering sand at 25
percent less than the cost of typical sand delivery?

		MR. OREN:  What I said, Mr. D'Angelo, was that if our customer avails
them self to the entire logistics chain services, that is allowing
SandBox to provide the movement of sand via rail, providing the
transload and storage function in the Shale Region, and then the last
mile delivery of the sand to the frack site, and then also using the
cradles to convey the sand directly into the blender hopper, eliminating
the cost for T-belts and sand movers, then we peg conservatively a
savings of 26 percent.

		MR. D'ANGELO:  So it nets out the cost of not purchasing a T-belt at
all, not purchasing a sand mover at all?

		MR. OREN:  Correct.

		MR. D'ANGELO:  Okay.  And so right now you're in the Bakken and 120
days you're going to add two more basins, is that right?

		MR. OREN:  Yes.

		MR. D'ANGELO:  Long term, I assume you're looking at long-term
projections for going nationwide.  Have you forecasted any sort of time
for being able to grow into many of the other basins in the United
States?

		MR. OREN:  Yes.  We measure our -- our projections are based upon the
number of frack spreads that are operating in the United States today
which are over 600.  So we sell our services to hydraulic fracturing
companies based upon allowing us to manage their sand delivery mechanism
to the blender hopper.  So we hope to contract frack spread by frack
spread.  So our projects through 2014, we're hoping to have four to six
contracts.  We have expectations of being at 15.

		The difficult thing, and I alluded to this earlier, is trying to gauge
the demand.  We're relatively new at this.  But we are at 100 -- we're
3 for 3.  Every time that we go into the field and we actually frack a
well with this system, it has resulted in a new contract.  So we're 100
percent.  

		We are beginning to get the attention of senior executives in
hydraulic fracturing companies and also the attention of senior
executives in integrated oil and gas firms.  So our fear is being
overwhelmed by demand.  That is, I think, our largest challenge today.

		MR. D'ANGELO:  Well, I wish you the best of luck.  I thought it was a
very interesting --

		MR. OREN:  Thank you.

		MR. D'ANGELO:  -- presentation.  And I thank you for your time here.

		MR. OREN:  Well, I hope you tell all of your constituents about
SandBox.  

		MR. D'ANGELO:  There are anti-trust prohibitions about how I approach
my members but --

		MR. OREN:  We can figure a way around that.  I hope that's not in
testimony.

		JUDGE PURCELL:  Take a commercial break now and ask if there are any
other questions from the audience?  Seeing no additional hands, I'm
going to turn it over to OSHA.

		MR. O'CONNOR:  Thank you, Your Honor.  And thank you, Mr. Oren, for
appearing today.  Joe Coble will begin OSHA's questioning.

		DR. COBLE:  I appreciate your testimony and a good example of American
ingenuity that we heard about earlier.

		MR. OREN:  Thank you.

		DR. COBLE:  Have you communicated with the STEPS Network at all?  Are
you familiar with what was described earlier about the API sponsored
group looking at dust control?

		MR. OREN:  No.

		DR. COBLE:  Okay.  One other question I have on these boxes, what's
involved in terms of maintenance prior to refilling?  Would it be your
employees that would maintain these things, and prepare them to be
refilled?  I mean have you evaluated potential for exposure to people
during the transport of the sand?

		MR. OREN:  What was that last part, Mr. Coble?

		DR. COBLE:  Oh, I'm sorry.  Well, I guess it was really two questions.
 The first was what sort of maintenance is required on these prior to
turning them around to refill it.  Is it necessary to get inside or is
there potential for exposure when --

		MR. OREN:  No, the maintenance on these SandBoxes are minimal.  They
are very durable with a life of more than 10 years.  The sand empties
completely out of the box.  And there is no maintenance to it.  I guess
you might have to paint it every once in a while, paint the box every
once in a while.  But, no, you do not have to get inside it.

		DR. COBLE:  Have you assessed the potential for exposure to employees
that are transporting these boxes?

		MR. OREN:  There is no exposure.

		DR. COBLE:  Okay.  That's all my questions.  Thank you.

		MR. BURT:  Just a couple of questions.  Bob Burt, OSHA.  I just want
to confirm some understandings of things that you wrote.  Currently, you
have one site where this is fully operational or is there more than one?

		MR. OREN:  We're operational commercially in the Bakken today, in the
Bakken Shale.

		MR. BURT:  And that's one operation?

		MR. OREN:  Well, that's one shale region today.

		MR. BURT:  But there might be more than one operation in that region
you're working on?

		MR. OREN:  Yes, there are more than one operation.

		MR. BURT:  Oh, okay.

		MR. OREN:  We have two operations.

		MR. BURT:  Okay.  And then you mentioned two additional installations
in progress.  Can you explain what that means exactly?

		MR. OREN:  Well, we've been successful in negotiating contracts with
two other pressure pumpers with multiple frack spreads.  So it's
equivalent to about another six contracts, which would put us in the
Niobrara or DJ Basin, and in the Eagle Ford within the next 100 to 120
days.

		MR. BURT:  Okay, that covers what I had.  Thank you.

		MS. RYDER:  Okay, sure.  Hi, my name is Anne Ryder.  I have a question
for you.  I think you already talked about the exposure monitoring that
you did in the Bakken Region, but I just wondered if you would be able
to tell us a little bit about maybe just anecdotally or based on your
observations how much the box has been able to reduce exposures once you
get onto the site?

		MR. OREN:  Let me comment a bit on that.  We want more testing.  This
costs money.  So we have made application for an SBIR grant that is
making its way through the National Institute of Health, OSHA, NIOSH
process, and the grant application is specifically for money to do the
testing, more testing that we want.  Because we want to prove it.  We
want to prove the efficacy of the system.  And we think good data is
going to be very important to us.  And so that's what we want to do, we
want to supply this information.  But from my own observations, the
results are remarkable.

		MS. RYDER:  And you say that because you're not seeing the plumes or
can you elaborate on that a little bit more?

		MR. OREN:  We're just not seeing the silica dust.

		MS. RYDER:  Okay.  And you mentioned that you are working on
publishing the data.  You are hoping to get the results this week. 
Would you be able to submit that data during the post-hearing comment
period, even if it is still in somewhat of a raw form?

		MR. OREN:  The answer is I don't know.  I have to collaborate with my
customer, who is going to dictate to what extent they want to -- how
widely they want to publicize the information.

		MS. RYDER:  Okay.  Well, I think it's something OSHA would be really
interested in, even if you can blind, if you can redact their name or
whatever the case may be.

		MR. OREN:  I'd be happy to do that.

		MS. RYDER:  All right.

		MR. O'CONNOR:  Yes, absolutely, I'd like to reiterate that that
information would be of value to us and identification of the source,
the company names, anything of that nature is really not relevant to us,
so if that's redacted, the data is still valuable to us. 

		And that concludes OSHA's questioning.  Again, I'd like to thank you
for coming in today and testifying.

		MR. OREN:  Thank you.

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

		MR. OREN:  Thank you, Judge.

		JUDGE PURCELL:  Next on the agenda and the last presenter for this
morning -- this afternoon, now, is Robert Nehman from Allamakee County
Protectors.  I'm not sure if I pronounced that right, but Mr. Nehman,
I'm sorry.

		Mr. Nehman, if you have a copy of your testimony you would like to
offer the record, I'll introduce that.  Thank you.  And the next exhibit
number is Hearing Exhibit 153.  That will be entered into the record.  

(Whereupon, the document referred to as Hearing		 Exhibit 153 was marked
and received in evidence.)

		JUDGE PURCELL:  Are you going to do a video?  Is that part of your
presentation?

		MR. NEHMAN:  Correct.

		JUDGE PURCELL:  Okay.  And if you would during the presentation
describe what's being shown on the screen so the record itself will be
clear.

		MR. NEHMAN:  Sure.  That's in my testimony, itself.  So as the video
is playing, it will be described.  

		JUDGE PURCELL:  Great.  Thank you, Mr. Nehman.

		MR. NEHMAN:  Thank you for listening to my testimony this morning.  My
name is Robert Nehman, and I am here today representing my group, the
Allamakee County Protectors.  We support stricter limits on levels of
crystalline silica exposure at occupational sites and do feel that
lowering the exposure limits to 50 or even stricter limits at 25 µg/m3
will help protect individuals not only at crystalline silica occupation
sites, but also at occupational sites directly affected by the industry.

		My family and I live in the beautiful Driftless Region of Northeast
Iowa, along the Mississippi River, just across from Wisconsin and south
of Minnesota.  Over the past few years, the tri-state region has seen
increased levels of fugitive airborne crystalline silica dust due to the
rapid increase of the extraction of particular silica sandstone
formations.

		The video you are seeing today is a highly compressed representation
of the actual scale of crystalline silica exposure to the workers,
general populous, and other occupational sites within my region.

		These pure silica formations that are more than 500 million years old
are being extracted at an alarming rate in order to be used as proppants
which hold open fissures and shale formations where hydraulic fracturing
is taking place.

		I am not here today to talk about a fracking mining site or particular
operations associated with a mining site.  I do understand that MSHA
regulates the actual mining site and its safety measures.  Today I want
to talk about the workers, the communities, and indirectly related
occupations that are being exposed to elevated levels of crystalline
silica dust while it is being transported through their areas.

		Wisconsin, in 2010, had five industrial silica sites producing silica
for a number of applications.  Today, there are more than 120 permitted
proposed and active crystalline silica operations.  Many workers,
home-based businesses, such as farms, bed and breakfasts, and other
employers not related to the crystalline silica industry have been
impacted.

		Many people along these transportation routes can no longer put
clothes out to dry on the clothesline without crystalline silica and
diesel fumes coating their fresh laundry.  Some people dust several
times each day to keep up with the layers of dust.  

		At a school in New Auburn, Wisconsin, the Wisconsin Occupational
Health Lab measured an increase in crystalline silica found in air
filters from less than 1 percent to 5 percent in only one year.  This
school is located in close proximity to crystalline silica operations. 
Currently, the school has an indoor air filtration system and is
required to routinely change the filters to keep the staff and the
children from being overexposed to indoor crystalline silica.  How do
you protect the children on their playground?

		I do feel, as does my group and many other individuals, that there is
a gray area where the general public, home-based businesses, and other
occupational sites are suffering from crystalline silica dust exposure
caused by the rapidly expanding silica sand industry.

		Bagley, Wisconsin, sits just across the Mississippi River from
Pattison Sand Company, who operates in Clayton County, Iowa.  The
prevailing winds often blow the silica particulates across the river.

		Because the small, sugar-like grains are so fine, they often slip
through the cracks in haul trucks and rail cars, and are leaked along
roads and railroad tracks.  Railcars and trucks are seen leaving a
stream of fine sand behind.  The crystalline silica is continuously
stirred up by the traffic and is in the ambient air.  

		Bicycle routes have also been affected.  Trempealeau County,
Wisconsin, worked for many years building rural bicycle routes into
their community.  The tourism they were promoting has been impacted
greatly due to increased ambient silica dust created by haul trucks.  

		It is the invisible dust of 4 microns or less that is the most
dangerous to inhale and has been associated with silicosis and other
respiratory ailments.  Only six states currently have crystalline silica
exposure limits to protect the health of their citizens.

		By creating stricter OSHA limits at crystalline silica occupational
sites, along haul routes, and their destination points, the general
public, along with other nonrelated occupations could be better
protected.  

		I do realize that silica is used as an ingredient in many products. 
But with the increase of hydraulic fracturing, communities are being
left in a cloud of dust in an attempt to transport crystalline silica to
its destination.  I do feel that there are reputable companies within
the crystalline silica industry that can and will work within the
regulatory limits set by OSHA.

		Stricter limits on crystalline silica exposure not only will save
lives at the industry sites, but also benefit the general public.

		Standards that my group support are but not limited to respirators
required to be worn by all employees dealing with silica sand, including
large machinery operators, truck drivers along haul routes, and railroad
workers and barge operators.

		Sealed, not just covered trucks, barges, and railroad cars in order to
contain the fine dust particles.  

		Air monitoring at home-based businesses, public areas, including
schools, libraries, community centers, located within a defined radius
of the transportation grid. 

		Air filtration systems at occupational sites and public areas where
elevated levels of crystalline silica particulate matter are found.

		And continuous monitoring of employees' health since silicosis takes
years to develop.

		My group and I do feel that there is a potential here for a public
health epidemic.  In the future, we may look back and understand this
issue in the same way that we now directly relate asbestos exposure to
mesothelioma.   

		Some of the related industries may say the cost is too high to have
stricter limits on crystalline silica exposure, but what will it cost in
the terms of public health of workers and others that were exposed to
elevated levels of crystalline silica dust.  The future could be
determined right now by approving stricter limits that will protect
thousands of workers, their families, and neighbors.  

		In conclusion, I would like to introduce Jane.  Jane has several young
children and a home-based business, and has been directly affected by
the crystalline silica operations.  Her family lives and has been
dramatically hurt -- her family's lives have been dramatically changed
and they are constantly living in a cloud of silica sand dust.

		So it will be one second and Jane will pop up.  

		(Video begins.)

		JANE:  I'm talking to you from my garage as sand trucks are going by. 
I am literally 300 feet away from sand trucks that go by.  I'd estimate
a number of 4,000 trucks a week, and that's just the haul trucks, the
trucks that haul the sand, 4,000 trucks a week.  It's kind of paralyzed
what we've been able to do as a family.  We're not able to ride bikes
anymore.  We're not able to walk as a family anymore.  My kids are only
allowed to pay outside -- these haul trucks go on all night long, all
day, all night.  So I feel that my health and safety have been impacted?
 Absolutely.  I mean even if you don't look at the long-stand effects of
the mine itself, if you just look at the amount of traffic that's around
here and what I have to live with, even if you just look at the
emissions from all these trucks, you know, they've installed some air
monitors at the mine site itself to finally start monitoring some of
these air quality issues, but do I have concerns about it?  You bet I
do, because, you know, the mine itself regulating its air emissions, so
I have no way of knowing if their data is accurate or not.  I have no
way of knowing what the longstanding impacts are.  My family and myself
are all guinea pigs in a big experiment.  We don't really know -- and so
they ruin the road.  The asphalt that they laid in October only made it
about eight weeks and had to be redone.  And so there is always either a
paving crew out here, or haul trucks, or both.  And they don't stop the
haul trucks to even repave, so they pave as trucks haul.  So there is no
break.  Sundays are about the only day we get a break.  And so we're
really limited in the summer what we can do as a family at our house. 
We've got a 160-acre farm that we used to be able to -- limited our
ability to run our business.  It has limited our ability to spend time
with the family.  It has eliminated our sense of safety and peace and
quiet that we -- every day I put myself on the line just by walking out
the door, and these were things I took for granted until these sand
trucks were put in.  And so do I know what the answer is?  I think that
we certainly needed to proceed with caution before we allowed this to
happen, because the citizens had no input in this at all.  And now I'm
forced to live with the consequences.

		MR. NEHMAN:  How do you feel your land values have been affected?"

		JANE:  Well, yeah, well, a fine example is my home.  My home was worth
about $120,000 before the sand mine came through.  They did an
assessment, the town did an assessment last year and now my home is
worth $60,000.  So in a matter of two years, my house lost half of its
value.

		(Video ends.)

		JUDGE PURCELL:  All right, thank you very much for that presentation,
Mr. Nehman.  I appreciate you coming here all the way from Iowa.

		MR. NEHMAN:  Thank you.

		JUDGE PURCELL:  With that, I am going to open it up for questions. 
Are there any questions from members of the audience?  Seeing no hands,
I'll turn it over to OSHA.

		MR. O'CONNOR:  Thank you, Your Honor.  And thank you, Mr. Nehman, for
testifying today.  Are you aware of any sampling that has been conducted
in workplaces where exposures are occurring because of these sand mining
operations or operations related to the movement of sand, the
transportation of sand?

		MR. NEHMAN:  Yes, I do.  I do know of studies being conducted right
now as we speak.

		MR. O'CONNOR:  Are you aware of the results or can you submit any of
that information to the rulemaking record?

		MR. NEHMAN:  I am allowed 45 days after this testimony to submit that.
 It's the University of Iowa and the University of Wisconsin that are
actually doing the studies.  Their preliminary studies are out and I
have them with me currently.  I could probably submit those, but I am
not speaking on behalf of the universities and I am not speaking on
behalf of any of my elected officials.

		MR. O'CONNOR:  All right, thank you.  That information would be useful
to us.

		MR. NEHMAN:  Okay, thank you.

		MS. RYDER:  Hi, Mr. Nehman.  My name is Anne Ryder.  Thank you for
coming here today.  Throughout the hearing, people have talked about
fugitive or local dust ordinances dealing with various types of silica
dust and other types of dust, too.  Are you aware of anything like that
in Iowa or Wisconsin, Minnesota, that would address some of these issues
or concerns?

		MR. NEHMAN:  Of practices at the mining companies or their
transportation?

		MS. RYDER:  Or local ordinances related to ambient dust and dust in
the air?

		MR. NEHMAN:  Right.  Currently, the DNR in the state of Wisconsin and
the state of Iowa do not regulate and I have that with me today.  They
don't necessarily regulate it.  It's kind of a self-regulating industry,
at this point.

		MS. RYDER:  Okay, all right.  That's all the questions I have.

		MR. O'CONNOR:  Thank you again, Mr. Nehman.  We appreciate your
testimony.

		MR. NEHMAN:  Sure.  And then I enter this to the --

		JUDGE PURCELL:  Yes, if you have different exhibits other than your
testimony, let me have those, and if you can identify them for the
record, I'll mark them.  The first one will be Hearing Exhibit 154.

		MR. NEHMAN:  Will be the frack sand mining project proposed schedule
for the University of Iowa and the University of Wisconsin that was
started in November of last year and will be concluded July of this
year, 2014. 

		I also have the map of all the facilities, the transload facilities in
every county that have the actual 78 active mines, along with there is
120 permit proposed and active mines in my area.  

		And then I will -- the next one will be the particulate matter 2.5
levels along rail lines that were initially conducted by the
universities.

		And, once again, I am not speaking for the universities.  This is
preliminary data that's out for the public's knowledge.

		And then I will also be submitting the video testimony that you saw
this afternoon.

		JUDGE PURCELL:  Okay, thank you, Mr. Nehman.  The proposed schedule
for the frack sand mining project, I've marked as Hearing Exhibit 154. 
The map of the frack sand facilities in Wisconsin, I have marked as
Hearing Exhibit 155.  The chart showing the PM2.5 levels along the rail
line, I've marked as Hearing Exhibit 156.  And the video will be marked
as Hearing Exhibit 157.  All those exhibits will be admitted into the
record.

(Whereupon, the documents referred to as Hearing Exhibits 154 through
157 were marked and received in evidence.)

		JUDGE PURCELL:  Ladies and gentlemen, that concludes the morning
portion of the program.  The time now is 5 minutes to 1:00.  We're going
to take an abbreviated lunch and resume at 1:30.  With that, we are
adjourned.

		(Whereupon, 12:56 p.m., a lunch recess was taken.)

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

		JUDGE PURCELL:  Good afternoon, ladies and gentlemen.  My name is
Stephen Purcell.  This is the afternoon session of the final day of the
14-day hearing for the proposed rule on occupational exposure to
respirable crystalline silica.  

		The next group on the agenda is the Laborers' Health and Safety Fund
of North America.  There are several individuals up here, including
Scott Schneider.  I'll ask Mr. Schneider to introduce himself and the
others.  And then do you intend to proceed in the same order as the
agenda?

		MR. SCHNEIDER:  I am not sure.  I think it will be something similar
to that.  I will be myself, Mr. Jones, Mr. Parsons, Dr. Melius,
Mr. Mallon, and then Mr. Hoffner, and then Mr. Nunziata.

		JUDGE PURCELL:  All right, if you would as you go along,
Mr. Schneider, just introduce the next panel speaker.  

		MR. SCHNEIDER:  Okay.

		JUDGE PURCELL:  And whenever you are ready.  I have received a copy of
your written testimony and marked that as Hearing Exhibit 158.  And also
a copy of the PowerPoint presentation, marked as Hearing Exhibit 159. 
Both of those exhibits are admitted into evidence.

(Whereupon, the documents referred to as Hearing 	 Exhibits 158 and 159
were marked and received in evidence.)

		JUDGE PURCELL:  And you may proceed when you are ready.

		MR. SCHNEIDER:  Thank you, Your Honor.

		Good afternoon.  My name is Scott Schneider.  I am the Director of
Occupational Safety and Health for the Laborers' Health and Safety Fund
of North America.  The Health and Safety Fund is a joint
labor-management trust fund affiliated with the Laborers' International
Union of North America, or LIUNA.  LIUNA represents approximately
500,000 workers in the U.S. and Canada, most of whom do construction
work.  

		The Health and Safety Fund was created 26 years ago to help LIUNA'S
members improve their health off the job and to help signatory
contractors improve safety performance on their construction sites.

		I have been the Director of the Occupational Safety and Health
Division for almost 16 years and have worked in occupational safety and
health for various unions for the past 32 years.  I have participated in
numerous OSHA rulemakings, starting with the asbestos hearings in 1984.

		I have been a member of the OSHA Advisory Committee on Construction
Safety and Health and the NIOSH Board of Scientific Counselors.  I am a
certified industrial hygienist.  I am also a fellow member of the
American Industrial Hygiene Association, and was awarded the William
Steiger Award by the American Conference of Industrial Hygienists in
2010.

		I have published numerous, peer-reviewed scientific papers and book
chapters on a variety of topics such as occupational epidemiology,
construction ergonomics and noise.  

		We greatly appreciate the opportunity to testify at this hearing. 
Laborers have some of the highest exposures to silica among the
construction trades because of the nature of their work.  Laborers use
jackhammers to break up concrete.  They cut concrete, brick, and block. 
They do demolition work, highway work, building construction and
pipeline work, as well as renovation.

		They also do cleanup work, which involves sweeping up dust that has
been generated by uncontrolled processes.  They often work adjacent to
dust-generating operations.  

		We have long been concerned about the hazards of silica and have been
disturbed by the long delays in promulgating this standard.  NIOSH
proposed a comprehensive standard 40 years ago and OSHA published a
Federal Register notice that same year requesting feedback on whether
the permissible exposure limit, or PEL, should be reduced to 50 µg/m3.

		No actions were taken until the late '90s, when OSHA began working on
a comprehensive standard.  In the past 40 years, our knowledge about the
dangers of silica and the ways to control it has grown tremendously.  

		Recent studies show a clear danger from exposures at the current PEL. 
Studies in Holland, which have been submitted to the record, show early
signs of silicosis among 10 percent of 1,339 construction workers
screened who had only 19 years of exposure at an average age of 42. 
Among these construction workers, 2.9 percent had 1/1 x-rays.  The Dutch
exposure limit is only 75 µg/m3.  

		These studies showed a clear dose response curve.  While we might be
sympathetic to those willing to institute all the other provisions of
the standard and leave the PEL at 100, the data show a disturbing risk
at that level, making that position untenable.  

		This isn't some theoretical or hypothetical problem.  It is a very
real one.  Despite all the claims that silicosis is disappearing in this
country, the only reason that appears to be the case is that we haven't
looked for it.  

		We have no real surveillance system in this country for occupational
lung disease.  Construction workers who change jobs frequently certainly
are not being screened for it.  I was disturbed at these hearings last
week when a company which seemed to be doing all it could to protect its
workers, including giving them medical exams, failed to give them chest
x-rays as part of those exams.  A few years from now should workers from
that company discover they have silicosis, they are going to wonder why
it was not identified earlier.  I suspect there might be some liability,
at that point, as well as some regrets.

		The employer associations who have testified at this hearing who are
convinced that silicosis is a thing of the past have been deceived by
the silicosis mortality data.  They haven't looked at all the data,
which tells a very different story.  And this is before we even go into
the evidence on lung cancer and renal disease, etc.

		Likewise, they have been convinced that a 25 µg action level is
unmeasurable.  Yet, for years, ACJH has had a 25 µg limit, as have some
jurisdictions like the Province of Alberta.  A 50 µg standard is easily
measured using current 1.7 liter pumps and 4.2 liter pumps are widely
available.  They draw over twice as much air per minute and,
consequently, can easily measure half of the 50 µg limit level.  It is
simple math.

		Industry claims the standard is economically infeasible.  The
arguments made by industry to try and inflate the costs have been almost
laughable.  To suggest that OSHA has to consider the cost incurred by
2.5 million self-employed workers in construction just doesn't hold
water.  Just about every OSHA standard has had a look-back that has
shown the cost to be greatly overestimated as industry has innovated to
meet the new standard.  These claims probably should be considered just
that, claims with little to support them.

		So the issue boils down to technological feasibility.  We have
reviewed the data in the record carefully.  From our reading, we are
convinced that most operations can meet the 50 µg standard most of the
time.  This is particularly true as many of the tasks are not performed
for a full day.

		OSHA acknowledged that in Table 1 by allowing the use of controls
without respiratory protection for many operations of four hours or
less.  We believe a new OSHA standard with a lower PEL will spur
innovation in the construction industry to meet the challenge.  We have
already seen how industry can partner with labor and manufacturers to
reduce exposures successfully in NAPA's testimony on the asphalt milling
partnership.

		Could other sectors duplicate this effort?  Absolutely.  Every month,
we see trade magazines touting new tools with dust collecting equipment
to "help employers comply with the proposed OSHA rule."  This will only
increase.

		With a lax standard and little enforcement, many uncontrolled
operations are exposing thousands of construction workers every day to
dangerous clouds of silica.  This standard will help shift the industry
to controlling exposures as the norm and simultaneously change the
culture from a lack of regard for worker health to concern and attention
to it.

		Right now, workers are suffering the impact of this neglect.  By
changing the culture through a new standard, we can preserve worker
health, help construction workers lead longer and healthier lives, and
based on much of the testimony to date, likely make work more productive
in the process.

		We fully support this effort.  We also support the comments from the
Building Construction Trades Department and the AFL-CIO, both of which
we work closely with in developing their comments.  

		We would also like to echo the comments of the International Union of
Operating Engineers about the need to reconsider how demolition work is
approached and how it might be covered in Table 1.  Demolition, by its
nature, involves the crushing of construction materials which contain
silica.  Operators can and should be protected in air-conditioned cabs
with filtered air.  Laborers who assist operators on the ground may have
higher exposures.  

		In addition, LIUNA's members are involved in shotcreting and guniting
operations where concrete is basically sprayed onto surfaces.  These
operations are generally done in closed or confined spaces, so even
though they are wet operations, there is potential for high exposures. 
These operations need to be reviewed by OSHA before the final rule is
promulgated.

		Now I'd like to introduce the rest of our panel, who will address
specific elements of the proposal.  Next, we'll hear from Walter Jones
of the Health and Safety Fund, who will discuss control technology. 
Travis Parsons will then speak from the Health and Safety Fund on the
competent person requirements.  Dr. Jim Melius, from the New York State
Laborers' Health and Safety Fund and the Laborers' Health and Safety
Fund of North America, will discuss the medical surveillance
requirements.  Eddie Mallon from Laborers Local 147 in New York City
will discuss his experiences as a sandhog.  Ken Hoffner of the New
Jersey Laborers' Health and Safety Fund will discuss the work of the
silica partnership in New Jersey.  And Tom Nunziata, from LIUNA Training
and Education Fund, will discuss the training requirements.  Thank you.

		MR. JONES:  How you doing?  My name is Walter Jones.  I'm the
Associate Director of the Laborers' Health and Safety Fund.  I'm a CIH. 
I've been doing construction here, industrial hygienist in construction,
I don't know, for maybe 12 to 15 years now.

		For the last plus six years, spanning two different administrations, I
have served as an employee representative on the OSHA Advisory Committee
on Construction Safety and Health, or better known as ACCSH.  I have
co-chaired the ACCSH silica workgroup with Matt Gillen of NIOSH and
various ACCSH employer reps.  

		Most of our early work from 2007 through about 2010 focused on
development of a task-based approach to controlling silica exposure and
the use of objective data in substitute for sampling.  Our workgroup
meetings were heavily attended by construction industry stakeholder,
many of whom are in this room today or have been participating in these
hearings.  

		Although the rules did not require the workgroup to not only reach
consensus, we also began by making sure -- whenever we moved forward on
a topic of any contention, we made sure we had a sense of the room
before moving forward.  The one thing about this ACCSH silica workgroup
is that we work with our industry folks and other industry stakeholders
on what were the best approaches of moving forward on addressing silica.
 Many, many, many of the stakeholders talked about a non-complicated way
of addressing silica exposures and tying tasks to exposures, and getting
away from hiring industrial hygienist to come out and doing monitoring,
and thus this concept of Table 1 was born.

		Although it was a part of the original SBREFA process that OSHA
instituted in 2003 regarding the silica rule, we pushed it forward to
see if we could get total buy-in from most of the folks in the room
today.

		ACCSH members and all the construction industry stakeholders all
agreed it would be more effective and efficient to tie silica control to
worker tasks and activities.  We used the Georgia Tech OSHA consultation
program, their matrix; we looked at the ASTM silica standard, and a
bunch of different other silica matrices so we can look at tying tasks
directly to exposures.  And we proposed all of this at the main table at
ACCSH many different times to see if OSHA would buy into this concept.

		At the December 2009 ACCSH meeting, the OSHA Director of Standards and
Guidance Panel, Director Dorothy Dowry, Deputy Director Bill Perry, and
David O'Connor provided a PowerPoint presentation describing their most
current thinking on the requirements currently under consideration for
the proposed silica standard, with an emphasis on the areas where they
were changing from what they previously prepared for the SBREFA panel
review back in 2003.

		After the presentation, I moved that the ACCSH support the expanded
concept of Table 1 from the 2001 SBREFA draft, the inclusion of
competent person requirement into the proposal, and an exemption of
employers from monitoring requirements if they implement specific
controls from Table 1.  All of this passed unanimously.

		So what we are talking about is something most of us have already
agreed on in terms of Table 1 and construction requirements.

		As I move on, as we look across the country, we see that state
municipalities are all passing laws to protect their citizens and
workers from silica-containing dust, just like the presentation we heard
right before we went to recess from what's going in in Iowa.  The states
of California, New Jersey, the cities of Boston and Chicago, they now
prohibit dry cutting and pulverizing without ventilation and wet methods
or respirators.  

		Many, many more states and local municipalities require control of all
fugitive dust.  On a project at the Harvard Fog Museum in Boston, who
were trying to look at silica controls and smoking cessation programs,
workers reported that dust control use was basically based on whether
the project was within Boson city limits or not.  

		At a CPWR silica control workgroup meeting in Chicago, researchers
documented the unusual prevalence of dust control use within the city of
Chicago.  Recently, a couple of months ago, I toured the Bay Bridge
demolition project in San Francisco where it is required that all forms
of dust be captured and controlled and not allowed to fall into the bay,
neighboring properties, or on the ground below the bridge.  

		I recently toured the new 49ers project in Santa Clara.  On that
project, subcontractors and contractors reported that dust control
efforts, whether environmental, or occupational, or common place, and
were treated equally.  The concept of just letting dust float freely is
not something that contract owners of projects are allowing contractors
do to, at least in major urban markets.

		As a matter of fact, dust control on construction projects is already
an important responsibility for contractors and it's really not a new
concept, as has been reported here a lot of times or at least over the
last three weeks.  As a matter of fact, we can only expect efforts to
intensify in the future.  Therefore, it is time that we look at evening
the playing field to hold all parties to the same standard, whether
we're talking about noncompliant contractors, rural communities, or
workers' health.  

		Many localities have rejected the idea that contractors are not
responsible for dust plumes created during their construction
activities.  Contractors are not allowed to let dust plumes plow into
neighboring yards, streams, and sewers.  I cannot impress upon you the
concern expressed by signatory contractors and affiliates throughout the
years that I've been doing industrial hygiene because dust plumes rain
down on cars or the fear expressed when these contractors have to deal
with the fact that pedestrians may have to walk through these plumes.

		Whenever I have had to help out on a project to abate these
environmental concerns, worker exposures were seldom brought up.  It was
up to me to make the case that controlling dust at the source through
ventilation or water instead of opting to the default position of the
enclosure of the project; it was up to me to make that case.  And I ask
many of you out there how many times do you see in response to
environmental concerns that workers are facing for a contractor to
button up the project into a plastic balloon to protect nearby cars and
pedestrians.

		Often, this only increases worker exposures and that's why we fall
back to Table 1.  I find the beauty of Table 1 is in its ability to be
both pragmatic and forward-leaning.  Occupational dust control is as
much an art as it is a science.  For example, exposures can easily go
from compliant to hazardous based solely on the operator, contractor,
experience, maintenance level of the equipment.  It is vitally important
that OSHA not only automatically require activities for every task and
control, but also enforce the note section of Table 1 to prevent uneven
application of compliance activities that may easily turn hazardous.

		Table 1 not only makes compliance in my eyes easier to determine,
enforce, and teach, it also assures acceptable levels of healthfulness. 
At its core, the proposal is a technology-forcing standard without which
we would be stuck listening to folks tell us that the hierarchy of
controls is outdated.  The future of worker health is respirators, I've
heard say here over and over again at these hearings.  To them I say,
you know, I've got a bridge in Brooklyn for sale. 

		But our brothers and sisters on the environmental side, they don't
have to deal with such a lack of concern about the problem. 
Environmentalists do not have to ask Americans to walk around wearing
respirators because it was infeasible to move lead from gasoline or
because it would cost jobs.  Instead, they fought to have lead removed
from gasoline, which became probably one of the greatest public health
successes of our lifetime.

		Around the globe, other rich industrialized countries choose to side
with the infeasibility argument which forces their citizens to walk
around with respirators through murky clouds of dust and particulate
matter and pollution.  I believe OSHA's forward-leaning proposal will
create an environment where equipment and manufacturers can aggressively
develop and promote all the existing new control technology, as Ken
Hoffner will talk about later during his presentation.  

		We worked to develop a jackhammer with dust control protocol that
works.  But in spite of what I am testifying today, equipment
manufacturers continually tell us that there is no market for this.  And
to me there always seems to be this tacit compact between equipment
manufacturers and for that matter everybody in construction sometimes it
seems of not using worker health and safety to a competitive advantage.

		I am often told by equipment manufacturers that the demand does not
exist for safer equipment or that they do not want to assume some
perceived liability after the abatement does not work as advertised.  I
guess I understand what they are saying, but to which I normally reply
manufacturers have never been to a health food store where every product
promises strength, vitality, and long life.  Imagine that, you know.  

		Earlier this week, you know, the MCAA reported here that the diamond
blade saw suppliers, you know, diamond blades are normally used wet, the
suppliers reported that the are declaring that the water used to keep
their products maintained and long life has nothing to do with dust
control.  They are running away from this concept that there are
ancillary benefits associated to a well-maintained device.

		Equipment manufacturers seem fearful of bringing this silent compact
on worker safety and willing to continue to wait on the sidelines until
OSHA requires their participation, which I am asking OSHA to do.  When
equipment manufacturers start fully participating, probably only for
compliance only, they're not going to say it's safe, they're just going
to say this is OSHA compliant, but that works for me because there is a
lot of products out here that control dust and dust capture.  

		I am convinced that the dust capture and control market will take off
with just a little prodding.  Can you imagine the free market if they
just applied 10 percent of the technology used in my phone to dust
control, to make products more responsive, companionable, and
comfortable.  Greater production, use and protection would be ensured if
we did that.  Thank you.  I'll take questions afterwards.

		MR. PARSONS:  Good afternoon.  My name is Travis Parsons.  I am the
Senior Safety and Health Specialist at the Laborers' Health and Safety
Fund of North America.  I have worked as a safety and health
professional at the Laborers' Health and Safety Fund for about 12 years
now.  I provide an array of safety and health services to the members
and the signatory contractors of the Laborers' Health and Safety Fund of
North America on issues concerning workplace safety and health, on a
multitude of work sites throughout the United States and Canada.

		I would first like to thank OSHA for the opportunity to testify today
and commend the Agency for moving forward on such a very important
standard for LIUNA's members and the whole construction industry.

		I have participated in OSHA's rulemakings before for hexavalent
chromium, cranes, confined spaces in construction, and a couple of
others.  I am also an OSHA master instructor for OSHA 500 and 502
courses with the Building Trades in the construction industry.  And,
lastly, I am also a subject matter expert on a panel within our training
fund that is developing a competent person training right now as we
speak to respond to this standard when it is promulgated.

		I have been on many work sites and have seen firsthand that many
construction workers are repeatedly exposed to excessive amounts of
toxic silica dust, which is a known human carcinogen. 

		In a statement to the Center for Public Integrity, OSHA itself called
silica one of the most pervasive hazards found in the workplace.  

		In my testimony now, I am going to shift and I am going to focus on
one question, Question 35 from OSHA's identified issues within the
proposed rule.  I am not going to read the whole question to you, but
basically they ask if OSHA should include competent person provisions in
the new rule.

		To me, including competent person provisions in the new rule are a
no-brainer.  Almost every organization that I have heard testify over
the past three weeks have mentioned something about the variability in
the construction industry and the transient nature of the workforce. 
This, alone, exemplifies the need for stronger competent person
requirements in the silica standard for the construction industry.

		OSHA defines a competent person as one who is capable of identifying
existing and predictable hazards in surrounding working conditions which
are unsanitary, hazardous, or dangerous to employees, and who has
authorizations to take prompt, corrective measures to eliminate them. 
That is exactly what a competent person is.

		By way of training and/or experience, a competent person is
knowledgeable of applicable standards, is capable of identifying
workplace hazards relating to specific operations such as silica, and
has the authority to correct them. 

		Some standards add additional requirements which must be met by the
competent person.  For example, in asbestos and lead, they might have
different qualifications to become that competent person versus a
physical hazard, like a scaffold or excavation.

		When it comes to silica, a competent person is needed to ensure that
controls are working properly to protect all workers on the site. 
Competent person requirements are especially useful also for health
standards because of the unique training and knowledge a person will
need to be a suitable competent person.

		Furthermore, if contractors rely on Table 1 for compliance, there may
be a need for respirators as a last means of defense.  This is another
reason to have a capable competent person on site that can make an
impervious decision to protect their fellow workers.

		The competent person is also a powerful tool to reduce exposures in
environments that are especially hazardous such as abrasing -- abrasive
blasting, excuse me, and regulated areas.

		As a matter of fact, in a 2013 recent paper published by the American
Industrial Hygiene Association, titled "Recommended Skills and
Capabilities for Silica Competent Persons," states that a key component
in preventing over-exposure to silicon subsequent disease is to have one
individual on the work site who is capable of recognizing and evaluating
situations where over-exposures may be occurring, who knows how to
evaluate the exposure potential, and can make initial recommendation on
how to control this exposure.  This is, again, a competent person.

		In a 2009 meeting, OSHA's own advisory committee, ACCSH, which Walter
just recommended, recommended that OSHA utilize a competent person
approach for silica particularly.  

		Competent person provisions were also in the original 2003 proposed
standard and should be included in the final rule.

		Now, I'm just going to do a little summary.  It might sound a little
bit redundant right now what I'm saying competent person, competent
person, competent person, but that's why it is a no-brainer.  As
previously mentioned, construction work is fluid.  It changes on a daily
basis and from work site to work site.  Numerous OSHA regulations, we
count 19, already account for this by investing the power and authority
in a competent person and the silica standard for construction should be
no different.

		The use of a competent person has been a longstanding staple of safety
and health in the construction industry and in construction standards,
and is also commonly used by conscientious contractors, OSHA, and the
American National Standards Institute, ANSI, for construction
regulations and best practices.  

		Competent persons can ensure controls are being used effectively, and
know when to call in a qualified person such as an industrial hygienist
for more complex or unusual scenarios.

		As the silica proposal rightly placed heavy emphasis on proper use of
controls, exposures can greatly vary, as it has been pointed out, if
controls are not used properly.  A competent person is essential to
ensure that these controls are used properly and make the appropriate
decisions.

		A competent person can monitor water flow rates, the functionality of
local exhaust ventilation, and any other control that's needed on the
worksite.  

		We recommend that OSHA include and strengthen the competent person
provisions in the final rule.  And we believe that competent person is
one of OSHA's most vital and effective safety and health tools in the
construction industry and it must be part of a new standard.  Thanks.

		DR. MELIUS:  Good afternoon.  My name is Jim Melius.  I am an
occupational physician, epidemiologist, working.  I think Scott
introduced me earlier.  I want to spend more time on that.  But in my
testimony I want to focus on two different things, initially on the
medical surveillance provisions of the standard, and then I want to talk
specifically about tunnel construction work.

		As mentioned in previous comments, our union members are exposed to
silica in a variety of different types of construction work.  We know we
have experienced as a result of this exposure they have an increased
risk of developing silicosis and other illnesses.

		The proposed standard includes provisions for medical surveillance,
which we believe to be a very important addition to the regulation and
enforcement of silica exposure.  Given the serious risk of lung disease
and cancer among silica-exposed workers, obviously this is an important
element of the proposed standard in providing protection for these
members, we think, particularly in the construction industry.

		Although we support major elements of the medical surveillance
provisions in the proposed standard, there are a number of issues with
that standard that we believe need to be addressed and in the final
regulation. 

		I'm going to focus mostly on the construction parts of the standard,
though I think many of these issues also relate to the general industry
section of the standard.

		First of all, the trigger for medical surveillance.  Given the
structure of the proposed construction standard, using the proposed PEL
to trigger medical surveillance we think is the most practical approach.
 However, given the widespread nature of silica exposures in the
construction industry, frequent employer and job rotation, and the
difficulties of documenting individual silica exposures in construction,
the 30-day requirement for exposures above the PEL may be difficult to
administer.

		We suggest that this requirement either be eliminated or certainly at
least clarified so that there are clear instructions for the employers
in terms of when medical surveillance is required and when it needs to
be done.  It's a difficult area, but I think some further clarification
would be very helpful.

		Secondly, frequency of medical examinations.  We support the
provisions requiring an initial examination in 30 days and then once
every 3 years.  However, in certain circumstances, we believe that the
examination should be more frequent.  This includes when a shorter time
period is recommended by the examining healthcare provider, when the
person has abnormal pulmonary function testing, or when the employee
reports indications that they may have a silica-related illness.  In
those situations, we don't think that the three-year schedule is
appropriate and a more timely medical examination needs to be done in
order to address any developing health problem.

		We also have, on the other hand, we also know that construction
workers frequently change employers and may have multiple employers
within a single year.  This could lead to a situation where an employee
could end up with multiple examinations within a year or over a period
of years, far above the three-year periodicity included in the standard.

		We think it is important that OSHA should provide provisions or
instructions that encourage the ability of contractors or contractor
associations to pool resources to provide examinations for a group of
workers working for their members of the association, who may rotate
among these employers.  

		Such programs have been successfully implemented by union contractor
associations for respirator fitness, drug testing, other required
medical examinations such as asbestos exposure, and we think would be a
useful and cost effective way for providing silica surveillance.  At the
same time, they would eliminate unnecessary chest x-rays and other
examinations, unnecessary examinations for silica-exposed construction
workers. 

		I noticed I believe people from the hydraulic fracturing industry also
mentioned this issue earlier in their testimony.  And I think it would
be a very helpful addition.  It is allowed, I think, currently by OSHA,
but it can be difficult to get these kinds of arrangements set up and
approved.

		Content of examinations.  We support the proposed content of the
medical surveillance examinations; however, there needs to be a clear
provision for ensuring that pulmonary function testing is done properly
in order to appropriately detect changes over time, should meet the ATS
or similar guidelines, and there needs to be guidelines in the standard
or within the instructions for the standard for evaluating changes in
individuals' pulmonary function over time, which can be an early
indicator development of silica-related lung disease.

		Silica-exposed workers are also at risk of developing lung cancer. 
There is now good scientific evidence supporting the use of low dose CT
scans for the early detection of lung cancer.  We believe these should
be added as a required part of the silica medical surveillance standard.
 These have been recommended by the U.S. Preventive Services Task Force
for screening for the general population in relationship to cigarette
smoking.  

		Although their guidelines do not include detailed recommendations on
occupational lung cancer risk, I think the basic justification based on
the occurrence of disease, the rate of concurrence of disease among
population of different age groups would also apply to occupational
exposures or occupational exposures in conjunction with cigarette
smoking.  

		We believe that as the specific guidelines for this testing are being
developed the standard should provide the ability to adopt these newer
guidelines as they become available.  It's an important outcome from
long-term silica exposure and I think availability of a screening method
can be important in at least reducing the ultimate disease from
long-term silica exposure.

		Finally, I think the most important concern we have about the medical
surveillance standard is the confidentiality provisions.  We believe
these current confidentiality provisions are woefully inadequate and
would place our members at significant risk of being discriminated
against in hiring and job retention.

		We see this as a growing trend among our members being denied work
based on poorly justified so-called fitness guidelines or fitness
standards which have no basis in sound medical science.  The current
provisions of this standard would only aggravate that situation by
providing personal medical information to the employer, which some
employer might then use as a rationale for not hiring a worker or for
not retaining them in their current employment.

		We believe that all individual medical information should only be
shared with the employee being examined, not with the employer.  Similar
to other provisions in the black lung rules, for example, the examining
physician should only provide the employer with this information as to
the employee's ability to wear a respirator.  

		The standard must also include language to prohibit any retaliation
against the employee based on the results of the medical program, their
participation in the program, or their decision on what personal medical
information, if any, to share with the employer.

		Now, I'd like to go on and talk about tunnel construction.  Some of
the potential for our most severe exposures for our union members are in
tunnel work, where the confined nature of the work, the often-limited
ventilation, and the ability of tunnel boring machines and other tunnel
equipment to generate dust from excavating large amounts of material can
lead to substantial silica exposures for our members working in tunnels.

		The beryllium silicate content of the ground being tunneled can
substantially change as the tunnel is being bored and this can then lead
to changes in silica exposure for workers.  Often this change in silica
content may not be detected without proper monitoring.

		Many members of our local union in New York City that performed only
tunnel work, this is Local 147, have developed silicosis and have
actually received compensation for this work-related illness.  We
recently conducted a small medical screening of 13 members of this
union, actually did the screening focusing on some dermatological
disease and found that 5 of the 13 members had findings of silicosis
based on CT scan.  The median job duration for these workers was less
than 10 years, so these were not just long-term workers who had been
exposed in the distant past.  Many of these people had only been exposed
within the last 10 years.

		This screening was conducted by an occupational health clinic at a
large university medical center.  And while not maybe totally
representative of the population of this union, we believe it does
provide indication of the potential hazard.

		I have with me today Eddie Mallon, a long-time member of our New York
City tunnel workers' local, who will testify about his experiences with
tunnel work and silicosis.  Mr. Mallon?

		MR. MALLON:  How do you do?  My name is Eddie Mallon.  I am a
70-year-old.  I worked in the tunnel business in New York City for 50
years.  I mainly did construction work underground.

		In the last six years, I have been a business agent and my job was to
go on the job sites and watch out for the welfare of the men.  

		Last year, my doctor advised me to stop work.  He diagnosed me with
silicosis and advised me to avoid the job sites.  I could not be exposed
to silicosis any longer, so I had to leave that business.  I did not
want to leave that time.  I enjoyed doing what I do.

		In the 40 years plus I worked underground, many hazards including very
dusty environments and exposure to silica and concrete burns have gotten
worse.  I will tell you that the overall safety on the job has gotten
much better.

		When I first came into the business, I worked on a job called
Watertown.  We had 26 men die on that job.  Since that time, the
improvements on the job site as far as OSHA is concerned, north time
(ph.) actions are about as good as they can get.  Everybody is involved
with it today because of north time actions.  That is one of the
problems with silica, you don't see north time.  The north time you see
is at the end of your life.  There is no north time actions on that.  So
the dust control situation today is way behind in technology.

		JUDGE PURCELL:  Mr. Mallon, I'm sorry to interrupt, could you move
that back a little bit?

		MR. MALLON:  The technology down the hole -- maybe you can hear me if
I just don't use it.

		JUDGE PURCELL:  No, just move it back.

		MR. MALLON:  The technology in the hole is not keeping up with what's
going on down there.  Years ago when I first started this business, we
would have a drilling chute.  We would go in there and dynamite the
drilling chute.  The smoke would come out.  The silica would be in the
air.  It would be sucked up with a pipe.  If the pipes weren't working,
the ventilation system wasn't working, we'd go back to the line or we'd
leave the tunnel. 

		Today's environment, there is no going back to the line.  You are in
there for eight hours.  These machines are running for eight hours.  If
it is not the machine that's running, it's a road hare (ph.) that's run.
 That's worse than drilling, actually cutting into the rock.

		If that's not going on, then we're down the hold and we're
shotcreting, either a wet mix or a dry mix, which could be actually
worse than the machines.  So the exposure in the tunnel business as of
today is a terrible situation.

		I strongly believe OSHA needs to implement strong silica standards. 
We need them and especially in my industry.  I do believe that 50 years
down the line, you will never see a 70-year-old man sitting up here
talking about silica if things don't change.  These young kids today,
what they're going to face down the hole is nothing what I did.  For the
first 30 years of working the tunnels, it was bad with the silica, but
nowhere near what it's like today. 

		Today's situation in the tunnels where they want progress so they
don't stop the machines.  They need progress.  I'm working on a job
right now on east side access.  It is one of the biggest jobs in New
York City.  We wanted more ventilation in the hole.  We were told we
couldn't have it.  They didn't have the electricity to supply us, to
give us better ventilation in the hole.  And I think we have to have a
lot of changes in that.  I think a big change could be if a government
puts out a job for $100 million or $200 million, they can put an OSHA
inspector on the job that understands silica, that can take the tests,
that can keep the men protected.  Outside of that, I don't see anything
really helping us right now.  

		That's about all I can say on that.  If you have any questions, I'll
be glad to answer them.

		MR. HOFFNER:  Good afternoon.  My name is Ken Hoffner, and I'm the
Assistant Director of the New Jersey Laborers' Health and Safety Fund. 
For over 15 years, the New Jersey Laborers' Health and Safety Fund has
been involved in a partnership to reduce construction silica exposures
in New Jersey.  The partnership emerged from a Rutgers University work
zone safety and health task force to reduce fatalities, injuries, and
illnesses in road construction work.  

		Then New Jersey silica partnership includes participants from
academia, from labor, road construction contractors, contractor
associations, and state, federal, and local transportation and safety
officials.  In 2006, this partnership signed an agreement with OSHA to
become known as the New Jersey Silica Outreach and Research Alliance, or
SOAR, we call it.

		From the outset, our silica partnership has worked together to
identify, evaluate, and control crystalline silica hazards on road
construction sites in New Jersey.  Over the years, we have sampled
crystalline silica exposures for road construction workers and
collaborated to reduce these exposures.  

		In some specific operations listed in Table 1, we have identified
existing controls that achieve compliance with the proposed PEL.  An
example is wet saws.  And in other operations, we worked together to
develop new controls that can be easily implemented.  

		One such example is the jackhammer water spray control we developed
that reduced respirable dust levels in jackhammering by 90 percent.  Our
work corroborates that the application of wet controls and respiratory
protection for the jackhammer and impact drilling activities listed in
Table 1 will achieve compliance with the recommended PEL.  

		If you want to see what this jackhammer spray looks like, just Google
how to make your own jackhammer dust spray control.  We actually tried
to get it out there by making the plans available to all the contractors
who were interested.

		We know that wet controls for concrete and masonry saws are so
effective in reducing silica exposure below the proposed PEL that in
2004 the New Jersey Laborers' Health and Safety Fund joined with other
stakeholders in getting a law passed in New Jersey that prohibits the
dry cutting of brick, block, and other silica-containing building
materials.  That law is NJSA 34.5-182.

		Since that time, the majority of construction contractors that I work
with around the state have purchased and routinely used wet saws to cut
masonry materials virtually eliminating those activities as a source of
silica exposures to workers.  Many contractors have dealt with the usual
concerns about what to do in the winter by wrapping gutter heat tape
around 55 gallon drums to make sure the water stays liquid in freezing
temperatures.

		The proposal OSHA silica standard is extremely important to our
Laborers' union member.  A few months ago, I received a call from a
Laborers' Local 77 member, who I'll call by his initials, S.B.  S.B. is
an immigrant worker who was employed for a contractor at a university
construction site using a handheld disk grinder to remove the raised
seams in the concrete left from the form work.  

		In the five and a half months he did the work, S.B. reported there
were no local exhaust ventilation controls used in the grinding, nor was
he required to use a respirator by his employer.  Even obtaining a
half-face disposable respirator for voluntary use at the job site was
difficult for S.B.

		He reported that the concrete grinding dusts were so high in this work
that he began to have problems with his eyes and with his respiratory
system.  After leaving the job site, he sought medical attention from
his own doctors.  He was unaware of the worker's compensation system. 
And he subsequently had to have eye surgery because the dust levels were
so high that he was exposed to they blocked and obstructed his tear
ducts, according to his doctors.  He is currently being evaluated for
potential damages to his respiratory system, including silicosis. 

		There are thousands of workers every day in the U.S. exposed to
similar conditions on the job.  And we need this new standard to offer
better protection to these men and women for silica exposures in
construction.

		Through our participation in the silica partnership for over 15 years,
New Jersey Laborers' Health and Safety Fund concludes that controlling
crystalline silica in construction is just not that difficult with the
three W's.  The three W's are water, sprays; wind, local exhaust
ventilation; and the third is a will to act.  

		What has been mostly lacking is the will and the motivation to control
exposures.  And we believe that the proposed standard will provide an
impetus for employers to implement the simple controls and work
practices necessary to greatly reduce exposures.  One thing we know
about the construction industry is that our workers and our contractors
are creative, innovating, and clever when confronted with a need to
overcome a problem, including crystalline silica exposures in
construction.

		The New Jersey Laborers' Health and Safety Fund does not believe the
proposed construction standard presents any insurmountable obstacles to
reducing worker exposures to the proposed PEL and below, and we urge
OSHA to quickly publish a final rule on silica.  Thanks.

		MR. NUNZIATA:  Good afternoon.  My name is Tom Nunziata, and I am a
curriculum developer, training coordinator, and master instructor for
the LIUNA Training and Education Fund.  LIUNA training is a 501(c)(3)
labor-management training trust fund and the training arm of the
Laborers' International Union of North America.  Established in 1969,
LIUNA training's mission is to provide its affiliate training funds with
products and services designed to improve the lives of LIUNA apprentices
and journey workers, and a competitive position of LIUNA and its
signatory contractors.

		LIUNA training develops and provides up to date innovative training
curriculum, instructor training and certification, professional
consultation, technical support, and direct training assistance to more
than 70 affiliate training sites across North America.

		Each year, approximately 120,000 LIUNA journey workers and apprentices
employed in commercial and residential construction, heavy and highway
construction, environmental remediation, demolition, deconstruction, and
restoration projects, and construction supervision receive training
developed by LIUNA training through its network of affiliate training
sites.

		LIUNA training's construction craft laborer training is
learner-centered, activity based, and designed to enhance job skills,
keep workers up to date on new technologies, increase job opportunities
and, most importantly, provide information on the job site hazards so
they may work safely.

		LIUNA training is pleased to be here today and to express our strong
support for OSHA's effort to promulgate a final standard designed to
protect workers from crystalline silica in the construction industry.  

		As with all OSHA construction standards, the silica standard is being
developed with one primary goal in mind, to protect the American
construction worker from known hazards on the job site.  And like other
OSHA standards, proper worker training and education on hazards they
face on the job is a vital component in seeing that OSHA's goal is
reached.

		Today, I would like to express LIUNA training's position in regard to
the training component of the proposed silica standard.  As drafted,
OSHA's proposed silica and construction standard, which includes a
communication of hazards and training component, is a good start.  

		Providing information and training to workers on the hazards to which
they are exposed on the job goes a long way in protecting a worker's
health.  However, other OSHA standards which address harmful substances
such as asbestos and lead include more detailed training requirements
that employers must follow in order to keep their employees safe.

		So, too, it must be with the silica and construction standard, as it
has been well documented that exposure to crystalline silica causes
respiratory distress and disease, affects the immune and renal systems,
and most importantly is a known human carcinogen.

		OSHA's proposed silica and construction standard should take a
stronger stance in providing the training and information workers need
in order to perform their jobs safely.  The training proposed by OSHA
first references the hazard communications standard and includes a
number of provisions so that workers understand what types of operations
may cause exposures above the permissible exposure limit; procedures the
employer has implemented to protect workers including work practices and
the use of personal protective equipment and respirator protection; the
content of the standard, and the purpose and description of the medical
surveillance program.

		Although this is a good starting point, the pervasiveness of silica on
construction sites is a significant health risk, mandates that training
must be more substantial as the effectiveness of engineering controls
used to limit silica exposure is heavily dependent upon how the controls
are used, and the care and skill exercised by the worker.

		Therefore, it is imperative that workers directly engaged in
dust-generating operations receive task and equipment specific training.
 It is LIUNA training's experience that the best approach to training a
worker in the proper operation of a tool and associate engineering
controls is through hands-on training.  This assures an individual is
proficient in performing an operation safely by demonstrating their
ability to use the tool and engineering controls correctly.  Therefore,
LIUNA training supports the idea that each worker directly engaged in
silica dust reducing tasks receives hands-on training on the engineering
controls and work practices associated with the specific task an
employee is performing.

		With regards to the training of the competent person, OSHA should
mandate the training include, at a minimum, the same level of training
for those workers performing silica dust-generating tasks, including
hands-on training addressing the safe operation of tools and associated
engineering controls.

		Because by definition the competent person is one who is capable of
identifying an existing, predictable respirable crystalline silica
hazards in the surroundings or working conditions, and has the
authorization to take prompt corrective measures to eliminate them, it
is imperative that they have a detailed knowledge in the safe operation
of the tools and engineering controls being employed on the job, and be
capable of identifying when the controls are not functioning or being
employed properly.

		Workers on site who are not directly conducting silica dust-producing
operation but are potentially exposed simply by being in the area of a
silica-generating operation should receive training so that they may
recognize and avoid exposure.

		Although this training may not be as extensive as training for workers
directly involved in silica dust-generating tasks or include a hands-on
component, it should at a minimum identify the specific tasks in the
workplace that could result in exposure to respirable crystalline
silica, the health effects of crystalline silica, the procedures the
employer has implemented to protect employees from exposure including
engineering controls and appropriate work practice controls that will be
used on the job, and use personal protective equipment such as
respirators and protective clothing.

		This training should also address the employer's silica exposure
assessment and written exposure control plan, including identification
of the competent person on the project.

		As with other OSHA standards addressing hazardous substances, LIUNA
training feels it is important that training be provided prior to or at
the time of initial job assignment, require annual refresher training,
and additional training when modification of tasks or work procedures,
or new tasks or work procedures are implemented.

		In conclusion, LIUNA training feels that by implementing a strong
training component within the silica construction standard, OSHA will
provide lasting and effective protections to American construction
workers who have been exposed to this deadly substance far too long. 
Thank you.

		JUDGE PURCELL:  Thank you, Mr. Nunziata.  

		MR. SCHNEIDER:  That concludes our presentation. 

		JUDGE PURCELL:  Okay, thank you, Mr. Schneider.  With that, I'll open
it up for questions.  Can I see a show of hands of individuals in the
audience who have questions?  Two, three, four, five, okay.  We'll start
with Ms. Trahan.

		MS. TRAHAN:  Thank you, Your Honor.  Chris Trahan with the Building
Trades.  Thank you for your testimony.  Mr. Nunziata, since you are up
front, I wanted to ask you a couple of questions regarding training. 
The first one is can you describe the national training program that the
Laborers have, part of what you work in, just a little bit about it?

		MR. NUNZIATA:  LIUNA training is the parent organization of training
funds located across the United States and Canada.  Each training fund
is a 501(c)(3) labor-management training trust fund.  They receive goods
and services from us in the development of curriculum and the training
of the instructors.  What else?

		MS. TRAHAN:  So they're a joint labor-management fund, so they are
funded collectively by the employers in a given area?

		MR. NUNZIATA:  That's correct.  So they are all independently owned
and operated.  They provide training to their local members at the local
level.

		MS. TRAHAN:  So collectively the workers in that area get training and
that's delivered on behalf of all of the employers who are
participating?

		MR. NUNZIATA:  Yes, all the signatory employers who pay into the fund
are signatory to those local unions, the workers receive training
basically free of charge at the local training fund.  And the training
funds also have the ability of going on the job sites to provide
training if they are not available to come to the individual training
sites.

		MS. TRAHAN:  Thank you.  Do you know if there are other similar
programs in other Building Trades unions?

		MR. NUNZIATA:  A lot of the other Building Trades unions have the same
network of arrangement with training sites.  To my knowledge, there are
some 1,700 or so training sites located throughout the United States,
representing all building trades.

		MS. TRAHAN:  All right, thank you.  And the Laborers' education and
training fund provides silica training at this time?

		MR. NUNZIATA:  Yes.  We actually received a grant back in 1998 from
OSHA when they had a special emphasis program at that time.  And the
grant program called for lead and silica impingers.  We developed the
program.  And after the grant, we separated the two topics so that we
may have an awareness program in lead and an awareness program in
silica.  And to this day, that program, the silica awareness program is
still being conducted at many of our training sites.  

		MS. TRAHAN:  And as far as general silica awareness program or perhaps
training under the final rule once it is finalized, who should get the
training?  Who should get silica awareness training?

		MR. NUNZIATA:  Well, anyone on the job site where there is silica dust
being produced.  And then anyone who is conducting a task, a job task
where they are actually generating the dust.

		MS. TRAHAN:  We talked a little bit about the need for a competent
person and that there may be similar training required of that person
than a general worker on the job site.  If that's -- is that something
that the training infrastructure that you have already described could
provide?

		MR. NUNZIATA:  Oh, yes, very easily.  We're set up to do that.  We
provide all sorts of training.  We have training programs in
environmental construction and safety that there's probably 50 different
courses in our catalog at this time.

		MS. TRAHAN:  Okay, thank you.  Dr. Melius, I had a couple of
questions for you.  The question on medical examinations, how are other
medical examinations that are required handled in your view in the
construction industry?

		DR. MELIUS:  Well, it can be quite varied.  When it's done by
individual employers, some are pretty careful about trying to follow to
the letter of the regulation.  As I mentioned in my testimony, people
end up with multiple examinations for the same provision within a
calendar time period.  I think they have gotten better recently about
sharing some of that information so it's not quite as bad as it was say
10 years ago, but it is still a problem.

		What a lot of the -- what I mentioned in my testimony is that a
number of our contractor associations and actually some of our training
funds have developed programs to try to provide required medical
examinations in conjunction either with training or as a contractor
association.  So everybody working for contractors and that contractor
association would receive medical surveillance, and those records would
be shared.  The fact that examinations were done and the appropriate
results of those examinations as required by different standards would
be shared. 

		I think the most common one has been for respirator clearance, but
also for drug testing.  As I mentioned, we've done it for asbestos and
hazardous waste, and in other areas.  It is much more efficient and it's
a way of, again, avoiding unnecessary exams.  Also, it provides
assurance that the examinations do get done.  You're not allowed on the
job site unless you've had the examination.  

		And those apply not just to our own members, but to members of other
trades working for those in similar types of work for those
associations.

		MS. TRAHAN:  Thanks.  Do you have an opinion as to if workers will go
and get medically screened under a surveillance program if the
information was not kept confidential?  Do you have any sense of what
that would do to the participation rate?

		DR. MELIUS:  I can say in my experience and in dealing with many of
our members that without -- unless it is, you know, they somehow think
it's required as part of the job or something, they are very leery of
having to get the surveillance because their experience has been that if
you get surveillance and have any sort of a positive finding, you end up
without -- you lose your job.  And, again, it may not be all employers,
but it can be with many employers.  

		And when you're dealing in a multi-employer environment, you're never
sure who the next employer is going to be.  So it can be difficult.  So
confidentiality is I think extremely important and becoming more
important as people see discrimination against their fellow workers.

		MS. TRAHAN:  Thank you.  Mr. Hoffner, you talked about a ban in New
Jersey on dry cutting.  How is that working or how well is that working?

		MR. HOFFNER:  It's working pretty well.  As I said, it has been in
place for 10 years now.  And I think that the word has gotten around. 
The Department of Labor actually assigned two inspectors to enforce this
law, one for the northern half of the state, one for the southern half
of the state.  And when the issue comes up, they will go and actually
visit the job site and say, hey, were you aware of this law.  Now one of
the things that's easy is there is an easy fix for it, you know, use wet
saws.

		MS. TRAHAN:  Okay.  So you talked a little bit about the use of water
in cold weather and I wasn't really clear on what you meant.  Can you
elaborate on that a little bit?

		MR. HOFFNER:  Sometimes contractors will say, well, what do I do in
the cold weather?  What happens when it freezes, if you're going to use
water as some kind of control?  I've seen contractors deal with that,
especially with the wet saw issue where you have the ability to plug
into an AC circuit.  They'll just wrap electric gutter tape around
55 gallon drums, and plug those in, and then that keeps the water
liquid at night.  So they come in, in the morning, and they just take
that liquid water and fill their wet saw, and start without too much
trouble.

		MS. TRAHAN:  So that's when you have a plug.  What if you don't have
electricity or water on the job?

		MR. HOFFNER:  Well, we've talked about that.  I think we have one
contractor on a road construction site that was using our jackhammer
sprayer and was concerned about that.  And they actually got some kind
of environmentally friendly antifreeze kind of thing that they just
added to the water.

		MS. TRAHAN:  Okay.  And there is a mike, so I don't know if you -- I
did have a question for Mr. Mallon.  Did I say your name?  Mr. Mallon,
you talked -- I noted something that I've heard through this hearing
from other people that the technology in tunnels has changed and you
think the exposures are higher now than they were perhaps when you
started out.  But what kinds of controls are being used now in the
tunneling operations?

		MR. MALLON:  Some of the controls that we use are water, they can use
water on a mole, in the head.  They can use foam, which I understand is
better than water, but the expense is higher, so I've never seen any
used on a job site that I've been on.  Water is the main thing.  But the
problem with water in the tunnel business, it causes -- it spills over
and causes a mess.  You've got to pick it up and it costs time.  So even
though it's there, you'll see the, well, we'll go down one night and
we'll make sure the water valves are all working.  We'll go on another
shift and we'll see that they haven't been turned on.  And there is
nobody really policing that type of work.

		MS. TRAHAN:  All right.  A couple more?

		JUDGE PURCELL:  Well, we have several questioners, I think, so if you
can, Ms. Trahan, maybe one or two more.

		MS. TRAHAN:  Okay.  I think this question is for Mr. Parsons.  So you
talked about competent person.  And, you know, we've heard through this
hearing and other folks say that there is a great deal of variability in
exposures and it's very difficult to control on construction sites.  In
your view, is there something a competent person or is there a role a
competent person could play in reducing that variability?

		MR. PARSONS:  Yeah, absolutely.  They could, if done correctly, almost
eliminate that variability when it comes to silica exposures, maybe not
variability on the job or the transient nature of the job, that's
inherent, but when it comes to silica in particular, they could help
eliminate that problem.

		MS. TRAHAN:  Thank you.  And another thing that we've heard about in
the hearings is the fact that there are a lot of operations that go on
at the same time, and laborers work alongside of other trades while
there are dusty operations going on.  How does that play into
controlling the hazard?  Or how can people benefit from controls in
those situations?

		MR. PARSONS:  I think that's just pure communication between trades. 
They need to have that communication between each other and share
information with each other about what exposures they are giving to each
other.  And also, again, back to the competent person, they would be
responsible for making sure that happens.

		MS. TRAHAN:  Okay, thank you.  Oh, I'm sorry.

		MR. JONES:  If I may follow up on that, Chris?  That's why it is
important that we use control in the first place, because a lot of times
our folks are not going to be -- they're not operating the equipment
per se, but they are helping the person operating the equipment.  So the
person operating the equipment, they're in the respirator program,
they've got -- everything is protected for them.  But the laborer
isn't.  And he's the one that's being exposed to the dust.

		So if we were to control the dust at the source that protects everyone
on the work site.  You know I'm looking at some of these pictures up
here and just seeing the dust that's around the area on the ground is
just frightening.  But that's what we would be -- we are exposed to on
a regular basis, because we're not all -- we're just the helper. 
That's pretty much what the laborer is called.  We're the helper.  So
we're not always in the respirator program.

		I've heard folks here testify all week about that and that's the
problem.  That's why controlling at the source whether it's wetting,
ventilation, and work practices.  That's why it's so important to us.

		MS. TRAHAN:  Okay, thank you very much.

		JUDGE PURCELL:  Thank you, Ms. Trahan.  Ms. Seminario?

		MS. SEMINARIO:  Peg Seminario from the AFL-CIO.  Good afternoon and
thank you for your testimony.  I just want a few questions in the area
of controls.  Mr. Hoffner, you mentioned in your testimony that the
laborers working with others in a partnership in New Jersey had
developed, I think you said it was the jackhammer spray dust control
unit.  And I did what you suggested which was to Google it on my phone
and saw a description of it, but I couldn't bring up a picture of it. 
Could you describe what this unit is and how it controls the dust?

		MR. HOFFNER:  Sure.  Kind of the way it got started was one of our
members of the team worked for a contractor who had a quarry.  And they
were well used to using water sprays as a control of dust.  So we ended
up developing just a system that we used a nozzle for a furnace fuel oil
spray and at that time we were using compressed air to press, you know,
to push water through that and just create a spray that was aimed at the
point, the jackhammer point.

		We subsequently decided that using compressed air to move the water
wasn't quite so safe, so we went to a system that you can buy of the
shelf from Northern Tools or whatever.  It was an agricultural spray
unit, just a plastic tank, fill it with water.  It's got a 12 V pump on
top, provides a constant 40 psi flow of water.  We used the same little
spray heads that were aimed at the point.  And we found out that
that -- average jackhammering exposures were about 3.8 times the PEL
when we started and we were able to control those, reduce those
exposures by about 90 percent and get it to below the current PEL.

		MS. SEMINARIO:  And when you're talking about the PEL, you're talking
about the construction PEL or the --

		MR. HOFFNER:  The 100 µg.

		MS. SEMINARIO:  So it's the 100 µg, not the 250, just to be clear. 
And so with this invention, how much does this cost?

		MR. HOFFNER:  I've got it on my line, if you Google that, I've got a
parts list that you can get the parts from McMaster Carr, and the cost
of each of those.  I haven't updated it in a couple of years, but it
was -- it's less than, it's about $350.

		MS. SEMINARIO:  $350 for --

		MR. HOFFNER:  That will run several jackhammers.  In other words, you
can manifold that and run up to I think we fed six jackhammers off the
same spray unit.

		MS. SEMINARIO:  And so this has been in use for some time now?

		MR. HOFFNER:  Yeah.  In fact, I created it on the New Jersey Turnpike.
 One of the early adopters was the New Jersey Department of
Transportation and they actually went above and beyond what we did and
developed a big system that they put in the back of their trucks.  And
they use the system now to supply water to jackhammering, to spray saw
operations, anywhere that they need water to actually control dust
exposures, they're using this.  They even adapted it so that -- one of
the big exposures is cleaning off dust after something has been done. 
They had an air lance and they actually injected spray into that to cut
the dust levels down.  We weren't able to measure how effective it was,
but they're being pretty innovative with it.

		MS. SEMINARIO:  And do you have any information on how long this unit
lasts, like what's it shelf life in use?

		MR. HOFFNER:  I've been running them for at least eight years now.  I
have a unit that I lend out when we have contractors who don't need it
or don't want to buy it on their own, they'll just say can we use that. 
I mean I've never had to do anything to it.

		MS. SEMINARIO:  So it is still the original unit?

		MR. HOFFNER:  Um-hum.

		MS. SEMINARIO:  And does it need much maintenance?

		MR. HOFFNER:  No.  It's just a plastic tank with a 12 V pump on top
with some rubber hose.

		MS. SEMINARIO:  Very good.  You also talked about in your testimony,
in response to questions from Ms. Trahan, about the changes that you
saw in New Jersey with the adoption of the ban on dry cutting.  Could
you describe in a little bit more detail the kind of control measures or
the kind of tools that are being used now compared to those that were
being used before to comply with the law?

		MR. HOFFNER:  Well, a lot of times, especially in building
construction, they would have taken just what we call a chop saw, it's a
handheld chop saw with a masonry blade on it, and use that to do pretty
much all their cutting for brick, and block, and things like that.

		One of the changes I saw was, with the passage of the law in New
Jersey, is people went ahead and bought table saws, masonry table saws. 
It has a little water tray in the bottom.  Has a little pump that picks
up the water and then it actually sprays onto the blade.  And you'll see
workers in construction sites and they just set that up on the
construction site, and they'll cut all the block and brick that they
need right there on the site.

		And like I said, the one thing that they were concerned about was
keeping the water liquid in the winter.  And a lot of our contractors
have just decided to keep a water tank with -- the sell that gutter
heat tape at Home Depot, and they just wrap that around and it keeps it
liquid during the night.

		MS. SEMINARIO:  So would one of the differences be the table saw would
be at a more fixed location and the chop saw would be more --

		MR. HOFFNER:  It is.  It's also more efficient to use a table saw. 
You can get a lot more -- many more cuts done.  And so that was another
selling point.  There are often unintended consequences to some of the
controls that we have.  And one of the unintended consequences I think
was in going to that they were more efficient in their cuts.  They still
have to use portable chop saws on some points like in building corners
and some places where they can't make the kinds of cuts that they need. 
But I've seen anywhere from people hooking up water lines -- almost all
portable chop saws now have a water fitting on them.  You didn't see
that many years ago.  

		But I don't think you can buy one now without that water fitting. 
Some people use it, some people don't.  But you don't even have to hook
that up.  I've seen people take those sprayers for extermination and
actually just take the wand and while they're using the cut they just
spray that, and it's actually pretty effective.

		MS. SEMINARIO:  Interesting you mentioned that.  The picture I was
going to introduce to the record, in my local neighborhood hardware
area, somebody in the street that was doing work and had a little pump
operation and there wasn't any dust.

		MR. HOFFNER:  Yeah, no visible dust.

		MS. SEMINARIO:  And similar questions for Mr. Jones.  You mentioned
some of the job sites that you had been on in I think the Boston area,
Chicago, and then also in California, where there are ordinances that
exist with respect to dust control.  What kind of controls have you seen
put in place to reduce dust exposures in those operations, in those
cities?

		MR. JONES:  The two primary uses were local exhaust ventilation.  As
Ken mentioned earlier, a lot of our saws are now coming if not with the
attachment for the water hose, they're already coming with vacuums
already hooked into the saw through a shroud to suck the dust directly
that's being generated during the cut or pulverizing during grinding.

		In California, you will find that you cannot find any saw or device
without some sort of local exhaust ventilation or wet method being
attached to it and being run that way.  Jobs are specked out that way
because of the environmental and occupational requirements.  

		And as I mentioned, in Boston and in Chicago, most of the urban areas,
especially in the city areas because the control of dust is so
important, these devices are specked into the process by the owners.

		MS. SEMINARIO:  And do you have any information on the cost of the use
of these controls as to whether buying equipment that has a local
exhaust ventilation or comes with --

		MR. JONES:  I don't have current dollar figures off the top of my
head.  But what I will say is this, that the attachments that come with
hoses and with local exhaust ventilation, they are a little pricier than
without.  But what we've seen is that the market price for all these
devices has been dropping.  And so it's not like it's more costly, it
seems like nowadays, because when you bought your original saw, you paid
X dollar and if you buy another saw, to buy it with the attachment is
now almost like this price you bought your original saw, itself.  I
don't know that the cost is the big issue.  It's more about getting
folks used to using them.

		MS. SEMINARIO:  And with this equipment, I think you indicated in your
testimony that the impetus for it in many of these cases was dealing
with the public and environmental exposures.  Is that correct?

		MR. JONES:  In my experience, it seems that environmental or public,
primarily public exposure, but environment exposures moves the dial.

		MS. SEMINARIO:  Okay.  But with the controls at the source, you would
also be capturing the dust and so you wouldn't have to deal with
clean-up or any costs that were attached.

		MR. JONES:  I've heard through these hearings, I've actually even
heard people testify to increased productivity on a work site as a
result of not having to clean up.  We had the Bricklayers here a few
days ago and they were talking about their ability to work till 3:00,
because they did not have to clean up.  Instead, when they use non-dust
controlling or capturing devices, they would have to stop right after
lunch in order to begin cleaning up.  So we're looking at adding a few
more hours to the workday.  So to me, in my mind, they're way more
productive.

		MS. SEMINARIO:  And Mr. Mallon, just a couple of questions for you. 
In the tunneling operations, you mentioned that water was used as one of
the control measures.  And you had mentioned that previously there had
been some ventilation that had been used.  Is there still any kind of
ventilation, either general ventilation or local exhaust ventilation
that's used to control dust in tunneling?

		MR. MALLON:  Oh, yes, there's all types of ventilation that they have
in the tunnels.  And what happens a lot of times they start off with the
best intentions.  They buy the best equipment.  They don't keep it up on
the jobs.  I mean they don't keep it, the dust becomes a problem.  And
that usually happens with the ventilation.  And like in New York City,
where I worked, there was a section where they had to take the dust from
the tunnel and pump it up through grates.  Well, what was going up
through the grates was going up to Park Avenue.  That's the best part of
New York City. 

		If you would have seen what they had in that area for ventilation
control, it would be amazing.  It would have looked like this
downstairs.  So it can be done if the will is there.  But the will is
not there.

		Now, on my own job, our dust was not -- the readings that we were
getting, they looked just too good.  And I can tell by going down the
hole, the dust was too hard.  So we hired our own hygienist to come down
the hole.  He spent three or four weeks down the tunnel with us.  His
readings sometimes were 100, 200 times what we were getting before.  

		And then we noticed that when the readings started coming back from
who the company hired, their readings were starting to come up show the
true level of dust we had in the hole.  So it helped us to go out,
ourselves, and get independent.  That's why I was saying it would be
nice if an independent, on some of these jobs, they are so big, they're
five-year jobs, if the federal government would have somebody on the job
site who would monitor the job site, not the union and not the
contractor.  Someone who is watching out for only one thing, the
environment in tunnels.

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

		JUDGE PURCELL:  Thank you, Ms. Seminario.  You're all set, great. 
Ms. Nadeau?

		MS. NADEAU:  Hi, my name is Liz Nadeau, N-a-d-e-a-u, and I represent
the International Union of Operating Engineers.  Yesterday, there was
testimony from a person named Mr. Beaver from HalenHardy, and he
testified about booths for cleaning clothes.  But he also gave us this
after the hearing and I wanted to ask Mr. Schaffer, since you're an
industrial hygienist -- Mr. Schneider, excuse me, what you think would
this be useful in terms of eliminating or reducing the amount of dust
brought into enclosed cabs?

		JUDGE PURCELL:  Ms. Nadeau, you're going to have to describe for the
record --

		MS. NADEAU:  What it is, okay.  It is designed by HalenHardy to reduce
mud that would be on the bottom of a boot.  And it's hard plastic and it
has a lot of prongs going up, probably over 100 of them, and it's
designed to have the boot put on, directly on the device.  It's called a
mud slinger.  And the boot goes back and forth, and it takes some of the
mud off of it, and so that when the person walks into the enclosed cab,
presumably some of the dust would have been removed or most of the dust
so that you prevent the recycling of dust through the enclosed cab.

		The other design for the features, as I understand it from the
advertisement, is that it also prevents slipping and sliding on the work
site because you remove a lot of the mud from under your booth.

		JUDGE PURCELL:  It's about 14 inches in diameter.

		MR. SCHNEIDER:  And I will point out it's LIUNA orange, too.  Yes, I
mean it seems like a good idea.  I have never seen it on a job site or
tried it out, but I mean I think if you're going to be removing some of
the dust so it doesn't get tracked around in clean areas, for example,
it is certainly going to help.

		MS. KRAMER:  Your Honor, just to make sure the record is clear, if
Ms. Nadeau would not mind submitting a picture of this item to the
record later?

		MS. NADEAU:  I was actually going to give you one if you wanted.

		MS. KRAMER:  We'd love that.

		MS. NADEAU:  Okay.  I promised the firefighter who was here the other
day that he could bring it back for use among them, so I can't give you
the one I have now.  But I will give you one in the next week or so.

		MS. KRAMER:  We certainly would accept another one.

		MS. NADEAU:  Great, okay.  I have questions regarding tunneling.  In a
tunnel, what other crafts are down there besides the laborers?

		MR. MALLON:  Operating engineers.

		MS. NADEAU:  And in terms of the dustiness, is there times when you
have to cease work to allow the dust to settle?

		MR. MALLON:  Yes.

		MS. NADEAU:  And how frequently does that happen and what is the
duration that you have to cease the work?

		MR. MALLON:  For use to cease work in the tunnel, it would have to be
over a period of time, if I couldn't see those people in the back of the
room, that might be a sign that they would stop work.  But it's like
pulling teeth to have a job stop.

		MS. NADEAU:  And in terms of what type of heavy equipment is located
down there and what's your proximity?  How far are you from the heavy
equipment with all the dust and the darkness?

		MR. MALLON:  Sometimes, you're right next to it.  I mean in a tunnel
job, you have to go to the heading, where the heading is at the mole
that spins.  You have to go in there and change the cutters, and there
is always dust from in there.  And if a mole would cut down mostly on
the dust, the water -- they would spray water on it.  But what they do
is they cut down on the spraying of the water because, like I said
before, water creates a problem in the tunnels.  It's not like on the
outside where you can take it, pick it up.  Getting rid of water and
muck in the tunnel is not easy.  So they cut down on the water.

		MS. NADEAU:  And so how far in front of the operator is his or her
visibility?

		MR. MALLON:  The operator can be on like a road header, a road header
machine which grinds away at the rock.  He can be 10 feet away.

		MS. NADEAU:  I have a question regarding the Operating Engineers write
in their comments about the importance of maintaining the integrity of
an enclosed cab, and NIOSH studies talked about making sure that windows
are closed during operations that produce a lot of dust.  

		I was wondering if anybody can address the ability of the operating
engineers and the laborers to communicate when operations are noisy. 
Are windows open some of the time or how does it work, how do you
communicate in these dusty, noisy operations?

		MR. MALLON:  We have ways of doing it.  Usually, the operating
engineer, he's inside an enclosed cabin.  He's in that cabin, but the
rest of the laborers are not enclosed in any type of cabin.

		MS. NADEAU:  So how do you communicate?  You have to work in
connection with the --

		MR. MALLON:  If it's safety, we have a man up on top that will
communicate directly with the operator.

		MS. NADEAU:  I have a couple of questions regarding the Operating
Engineers testified about hoe ramming and they said that attached to the
excavator would be a jackhammer.  And I was wondering how that would
compare in terms of dust production to using a jackhammer by hand.

		MR. MALLON:  We do the same thing that one of the gentlemen mentioned.
 If he's in there chopping away with the hoe ram, we usually have a
laborers stand with him with a water hose.  Water is the best way in a
tunnel to control all the dust.

		MS. NADEAU:  Okay, I have a couple of more questions for
Mr. Schneider.  How does the Table 1 approach compare with what OSHA
has done on other health standards in construction?

		MR. SCHNEIDER:  Well, 30 years ago, when I testified on the asbestos
standard, and we -- well, basically, what we did was we recommended and
OSHA came up with basically different categories of work and said, well,
we know what the exposure levels are going to be for asbestos removal,
versus a maintenance operation, versus a glove bag operation, and it
came up with various specific criteria.  These are the controls you have
to use when doing these operations based on what we know about the
exposure levels.

		So I think it's very similar.  And the other thing is for those
operations, they also required certain work practices like using wet
methods that we know are important for controlling asbestos exposures
and also prohibiting like the sweeping and blowing dust around.  So I
think there are a lot of similarities to these approaches.

		I think we've just taken it one step farther here and also by dividing
the table up, we can get more people out of respirators by saying people
that have short-term exposures and will be below the PEL averaged over
an eight-hour day that they don't -- that we can have less people have
to wear a respirator.

		MS. NADEAU:  And how does that compare with the approach in New Jersey
and in California?

		MR. SCHNEIDER:  Well, I think one of the things is, I think, to me one
of the problems with the standard is right now it is sort of a backdoor
method in the sense the say, okay, you use Table 1, use these controls,
and you don't have to do air sampling, okay, which is important, because
I think because of the limitations of air sampling in construction.  

		But, on the other hand, in California and New Jersey, they just say,
look, you can't cut, unless it is infeasible, you can't cut dry, which
is more of a mandated approach which I think makes a lot more sense
because it's very simple.  It's not sort of like, well, if you cut wet,
then you don't have to do air sampling.  Here, you're basically just
saying you have to do it.  And I think that's a much more
straightforward approach.  I think it's also more understandable for
contractors.  It's easier for them to comply with.

		MS. NADEAU:  A couple of more questions about Table 1.  In some of the
operations that involve heavy equipment, I was wondering if you could
identify, and anyone can answer the question, how many laborers would be
involved on the project as well as operating engineers.  So if we can
start with rock drilling and concrete drilling, I guess there is
milling, rock crushing, and heavy --

		MR. JONES:  That's not enough?  I'm sorry.

		MR. SCHNEIDER:  This is Scott Schneider.  I think in general, I mean
it varies, obviously, by operation, but usually there are a couple of
laborers for each operator, maybe three or four, I don't know.  Maybe,
Ken, do you want to --

		MR. HOFFNER:  It just depends on the size of the job.

		JUDGE PURCELL:  For the record, that was Ken Hoffner.

		MS. NADEAU:  And one final question for Mr. Schneider.  How should
the standard address exposure variability in construction?

		MR. SCHNEIDER:  We hear a lot about, oh, exposures are variable, and
we can't predict them, and I think the whole purpose of sort of a task
based approach is that we know there are certain variables that are more
important than others.  And if you can control those variables and say,
well, if you do the operation this way under these conditions, then we
pretty much can predict what the exposure is.  It may not be exact, but
we have a good range. 

		So I think the goal of controlling exposure variability is to limit
the number of variables to the most important ones and set limits or
parameters on those.  And if you do that, you can predict what the
exposures are going to be pretty much.  I mean it's never going to be
exact, but I think we can identify those.  Ken, do you want to add
something?

		MR. HOFFNER:  No, I think that's a pretty good summary.

		MS. NADEAU:  Thank you.

		JUDGE PURCELL:  Thank you, Ms. Nadeau.

		MS. KRAMER:  Your Honor?  Could we reserve Hearing Exhibit 160 for
Ms. Nadeau's orange mud prevention item?

		JUDGE PURCELL:  Hearing Exhibit 160 is for Ms. Nadeau, okay.

		The next questioner, Mr. Kojola?

		MR. KOJOLA:  Good afternoon.  My name is Bill Kojola, and I am here
representing the National Council for Occupational Safety and Health.  I
want to thank the entire panel for your testimony.  I have first a
couple of questions for Walter Jones and then a couple of questions for
Travis Parsons.

		Walter, there has been much discussion about Table 1 and the
construction standard.  How does Table 1 help increase the feasibility
of the standard for the construction industry?

		MR. JONES:  Interesting question.  I think, and in my mind, it seems
like it's just easy to enforce, easy to comply with if you know what
have to do --

		MS. KRAMER:  Mr. Jones?  

		JUDGE PURCELL:  I don't think the mic is on.

		MR. JONES:  I'm sorry.  In my mind -- your question was how does it
improve feasibility. 

		MR. KOJOLA:  Correct.

		MR. JONES:  To me, it seems, to take a word out of Travis' mouth, like
a no-brainer.  If you associate task with control, it makes it easier to
determine whether you're in compliance and determine enforcement.  And
it's easy for workers to just know what the heck they have to do.  And
that's where I, like I keep saying the beauty of Table 1 is where we're
getting away from this idea that you've got to pay me $250 an hour to
come in and sample, to determine what the exposures are, and then send
it off to a lab, and analyze it, and go through all of that, when all
we've got to do is just to make sure that this guy is using local
exhaust or using local exhaust at a certain cubic feet per minutes, or
making sure they're using water and putting it at the point of contact
between the blade.  

		We're looking at reducing visible dust exposures.  That seems a lot
easier to me and more feasible for contractors to comply with than
trying to determine, and then remember Table 1 is based on objective
data, data that, you know, scores of different industrial hygienists,
contractors, researchers have all decided that, you know, if you're
going to be grinding indoors, this is your likely exposure range and
this is how we can reduce exposure.  

		So it seems a lot more feasible to me than, and given the variability
of construction tasks in that if we're going to tear down this wall, by
the time you call me up, I fly in, I do the sampling, get it analyzed,
the wall is gone.

		MR. KOJOLA:  Thank you.  There are some notes associated with the
proposed Table 1.  What role do you think the notes in Table 1 play and
how important are they?

		MR. JONES:  Well, there a lot of reasons.  But let me just point out
one thing that hasn't been discussed here.  You know a lot of us are not
in agreement with OSHA in that we kind of believe that if you're
complying with Table 1, then you are opted out of OSHA enforcement.  And
OSHA kind of disagrees.  According to my reading of the standard, they
could still come and cite you.

		But the notes section is why we believe that that -- 

		JUDGE PURCELL:  Pull the mic up a little closer.

		MR. JONES:  The notes section is why we believe that may be too
onerous, because if the employer is complying with the notes section,
and that gets back to making sure that they're determining whether the
local exhaust ventilation bag is being properly -- the filters are
being properly changed.  We're looking at making sure that these devices
are running according to manufacturer specs.  We're making sure that
folks are complying when we're putting the shroud up, when we're putting
a grinder up against a wall where we've got it close to the wall because
just pulling it back by two or three inches you get higher dust plumes. 


		That is how we ensure that we get a certain range of exposure
probabilities and that's why we feel that if you're complying not only
with Table 1 but the notes section of Table 1, we feel a little better
about not having OSHA coming in and on top of citing someone for not
being in compliance.  That's why we think it's important to have the
note section of Table 1, without which then I can understand OSHA's
point.

		MR. KOJOLA:  Okay.  A couple of questions for Mr. Parsons.  Is it
your position that you would like to see a competent person on every
construction site?

		MR. PARSONS:  I would like to see a competent person on any cite that
has potential over exposure to silica dust or, as a matter of fact, any
exposure to silica dust.  So if there is silica dust exposures,
especially when they exceed the PEL, wherever it ends up, yes.

		MR. KOJOLA:  Okay.  Most of the construction industry is made up of
small employers, not large employers.  Do you think having a competent
person on those small employers adds an undue burden on small
contractors? 

		MR. PARSONS:  No.  I actually think that small employers don't hire
industrial hygienists and a lot of times don't even have a safety
professional, so that's exactly the reason you need somebody on the work
site that has been assigned that responsibility as a competent person to
mitigate dust exposures and silica.

		MR. KOJOLA:  And so by having a competent person that would actually
improve the health and safety conditions on that work site?

		MR. PARSONS:  Yes.

		MR. KOJOLA:  Okay.  Thank you very much.

		JUDGE PURCELL:  Thank you, Mr. Kojola.  Any further questions from
the audience?  I don't see any hands, so I'll turn it over to OSHA.

		MR. PERRY:  Thank you, Your Honor.  This is Bill Perry.  First, I
would like to thank the Laborers' panel for appearing this afternoon and
testifying.  It has been very informative testimony and I appreciate
your doing this.  We will start with Dalton Moore has a few questions
for you.

		MR. MOORE:  Good afternoon.  This is Dalton Moore.  My first question
is for Mr. Jones.  In reference to Table 1, can you discuss the role of
visual observation for assessing the effectiveness of controls on site? 
And can you talk about if you think that these visual observations are
practical?

		MR. JONES:  That's a tough one there.  When you say visual
observation, I would assume you mean whether they are complying with all
the requirements of the notes section and they're complying with all of
the requirements of the manufacturer's specs associated with the
machinery that they are using. 

		And, yes, I think that would definitely do it.  I agree, yeah, that
visual inspection would be enough, yeah, if you're visually inspecting
whether they are complying with notes and complying with manufacturer's
specs.

		MR. MOORE:  And because laborers tend to work near or in the silica
hazard, what commonly triggers the use of a respirator?

		MR. JONES:  For a laborer?

		MR. MOORE:  Yes.

		MR. JONES:  That's a tough one.  The contractor, really, and the
contractor's commitment to safety is probably the best answer, I would
say.  We had some folks in earlier talking about, I think it was Miller
and Long, where they were talking about the folks that are their
respiratory program are primarily the folks actually doing the grinding.
 

		And there are components of this rule if we looked at restricted work
areas it would bring a whole lot of other folks into the program.  So I
would assume that what's meaning meant by that is that the grinders are
the ones that are in the respiratory program and that expanding the
restricted area would bring us laborers in.  

		But, no, it all depends on the commitment to safety by the contractor
would be my honest answer to that one.

		MR. MOORE:  Okay.  You talked about California and New Jersey, and how
they banned dry cutting.  And I was just hoping you could talk a little
bit about have there been any notices of like differences in quality or
have there been any differences in like the amount of time, any
complaints like that?

		MR. JONES:  This project I was on at the San Francisco 49ers stadium,
I don't know what Jerry Jones has got going on in Dallas, but this thing
in San Francisco is awesome.  And so I don't know what you mean by a
lack of quality.  This project was amazing.  

		And then a couple of days later we were in Cal Berkeley, where they
are basically building a super computer lab on the side of a mountain,
and so it's an engineering marvel.  And because it is an engineering
feat that they're doing, at the same that school was going on, so you've
got thousands of kids who don't pay attention to where the heck they're
going all around this project.  

		So I would imagine that quality increases when you take advantage of
or when you try to control according to the measures that we're talking
about, at least in my experience.  Because you look at the Bay Bridge
project, you know, I'm walking around the project and they're not
allowing any dust to fall into the water.  They've got covers over the
dirty.  I mean it's amazing what we are willing to do to protect the
environment.  

		And the good thing for my members is that as a result of this care for
the environment, we are being protected as well.  So, in my mind,
quality only increases.  I look at the pictures that are going up here
and I'm looking at dust plumes that are just all over the place and they
make the work site look like a mess.  And my understanding of OSHA
enforcement is they show up to a work site that looks like a mess,
you're more likely to get cited.  If it looks great, regardless if
you're not always in compliance, they're going to probably cut you
slack.  I don't know how true that is, but that's what I've heard. 

		MR. SCHNEIDER:  I should point out that what Mr. Jones was referring
to is a PowerPoint presentation showing pictures of uncontrolled
silica-generating tasks.  And we have given a copy of this presentation,
a printout of it, to Judge Purcell and he has marked it as an exhibit
already.

		JUDGE PURCELL:  That's correct.  And for the record that was Scott
Schneider.

		MR. MOORE:  My next question is for Mr. Hoffner.  You discussed the
jackhammer water spray control that you developed.  Has there been
anything within like the last five years that you have developed or you
are currently working on?

		MR. HOFFNER:  No.  What we have been really trying to do is go from
innovation to implementation and that's a really hard thing, trying to
get more acceptance of the use of this. 

		We've done a lot of demonstrations.  I carry it around and we show it
off at different things, like our UTCA contractors' association,
Utilities Transportation Contractors' Association has meetings and we'll
do demonstrations there, things like that.  But what really sells it
mostly is people that use it and it works for them.  And that's actually
how it has gotten best implemented.

		MR. MOORE:  Okay.  And this is just a question, I was looking at your
letterhead from the letter you submitted back in January, and you had a
general contractor that's on the board.  I was just wondering how that
partnership works and if that general contractor has been embracing the
use of the new control technologies.

		MR. HOFFNER:  Yeah.  As I said, actually, the initial idea came from
one of our contractor partners.  His name was Joe Sugar at Tilcon in
Mount Hope, New Jersey, and he came up with the original design for the
jackhammer spray.  And we were able as a group to kind of improve on his
original idea, I think.

		And we, you know, we regularly collaborate, I think, on these things. 
As far as our letterhead goes, like the National Laborers' Health and
Safety Fund, we're a joint laborer management fund, meaning I report to
a board of directors that his half construction company officials,
owners, association people, and half union folk.  And so we actually
exist to provide safety and health services to both our contractors and
to our members.

		MR. MOORE:  Thank you.

		MR. DAVIS:  I have a few questions.  My name is Neil Davis.  I guess,
Mr. Hoffner.

		MR. HOFFNER:  Yes.

		MR. DAVIS:  Do you believe that the regulated areas are appropriate in
most, if not all construction sites?

		MR. HOFFNER:  I think regulated areas are helpful because there is a
lot of different people on site who may not have the big picture of
what's going on.  And when you have a lot of different trades and you
have a lot of different people coming onto a site, I think a regulated
area is actually a very visible indicator that this is a hazard zone.

		MR. DAVIS:  Are there some examples where a regulated area would not
work?  And I'm speaking specifically of a controlled access plans, the
option?

		MR. HOFFNER:  I think if a situation arose where a regulated won't
work, a controlled access plan is probably a very good idea, sort of
like we have them in fall protection and roofing, things like that.

		MR. DAVIS:  Okay.  This is probably to the three industrial hygienists
up there, certified industrial hygienists.  Have you ever -- I guess
you can round robin this one.  Have you ever used rec-reading (ph.)
respirable dust monitors to help define a regulated area or on a job
site?

		JUDGE PURCELL:  If you are going to respond, if you would please
identify yourself?

		MR. HOFFNER:  This is Ken.  We haven't used them for defining a
regulated area.  But we have done a video exposure monitoring to
actually use as a teaching tool to say, okay, these are the kinds of
exposures that you have.  And you can actually correlate the use of
controls and things where you put side-by-side video exposure
monitoring.  But I think it would be a great idea.

		MR. DAVIS:  Yeah, it has been suggested by a couple of people.  I was
wondering if anybody else had some experience.

		MR. SCHNEIDER:  This is Scott Schneider.  I haven't had any experience
with it, but I think it's a rapidly developing technology.  I think it's
becoming more useful, easier, and less expensive, and could be used for
that purpose.  I think the other alternative is to create some sort of
objective data so you know that if you're doing a certain operation that
if you're 20 feet away, you're probably going to be, you know, not going
to be exposed to significant levels.  And that way you can, you know, by
doing some exposure monitoring, you could actually predict that and then
set up some sort of regulated area or limited access area based on that
data.

		MR. DAVIS:  And this kind of flows into my next question.  On Page 3
of 4, of your initial submittal, you argued, and this is to Scott
Schneider, you argue that that objective data, if carefully defined, can
offer a way to update information on Table 1.  Could you explain that a
little bit more?

		MR. SCHNEIDER:  Yeah.  I mean the way I see it is that Table 1 is
based on objective data, that there is data that supports the
recommendations and the requirements that are in that table.  We know
that based on past studies that's going to produce a certain exposure
level and, therefore, a respirator is or isn't required if you're doing
it a certain number of hours.

		So it seems to me that objective data is sort of another way to add to
that table.  So if someone else comes up with another task that's not on
the table and says here is the data that we have, we know that under
these conditions, this is the exposure we get, and you will not need a
respirator if you're doing it using these controls.  

		And OSHA could then not either add to the table, and I don't know if
that would require a rulemaking, or the alternative that I suggested was
that OSHA published letters of interpretation all the time.  They are
all on the web.  And through their website, they could post letters of
interpretation saying that this objective data meets the criteria and,
therefore, respirators are or aren't needed, or these controls have to
be used under these conditions.  It's almost like a variance.  And then
people would know that and it would be public, and it's effectively
adding to Table 1 in an indirect way.

		MR. DAVIS:  This should be my last question.  Are any of you familiar
with the Operating Engineers proposal to do pre-characterization of soil
and rock for silica content as part of the geotechnical sampling prior
to initiating a project?

		MR. SCHNEIDER:  I'm not familiar with it, but it sounds like it could
be helpful to know that ahead -- this is Scott Schneider, helpful to
know that ahead of time.  I mean, obviously, like in our tunnel
operations, depending on where you're tunneling and as you're tunneling,
the silica content may change and it may affect what your potential for
exposures is.  But, then again, you cannot -- I don't think we can
expect employers on every operation, whatever they're cutting or
drilling into, to take a bulk sample first.  It's not practical.

		But I think if they're already doing soil sampling, then clearly that
would be a useful piece of information to have.

		MR. DAVIS:  Thank you.

		MS. DeFOE:  Hi, I'm Tiffany DeFoe.  My first question relates to
Mr. Schneider's testimony.  Mr. Schneider, you mentioned some recent
studies in Holland of construction workers who developed silicosis or
some of whom developed silicosis.  And you did say these were submitted
to the record, correct?

		MR. SCHNEIDER:  I know I submitted at least the initial study of chest
x-rays to the record.  And they did a series of follow-up studies
including CT scans on 79 of the construction workers to look for micro
nodules.  It's some amazing work.  It was done in about 1999, published
in 2002, 2003, and some more recent papers.  And we will submit those to
the record after.

		MS. DeFOE:  Thank you.  And I'd appreciate that a lot.  And it looks
like they in fact take exposure samples?

		MR. SCHNEIDER:  They did exposure estimates based on job titles and
years of exposure, and they came up with a cumulative exposure index,
and found that the existence of 1/0 x-rays was directly correlated with
their cumulative exposure index.

		MS. DeFOE:  Thank you.  Are you aware of any comparable studies of
U.S. construction workers?

		MR. SCHNEIDER:  Unfortunately, no.  I think in America we don't really
have the kind of surveillance that they do in Holland.  And so we don't
have that many studies of -- I don't know of any studies of
surveillance for lung disease among construction workers.  The only one
that I know about was this one, this postmortem study that Goodwin did. 
She went back and looked at x-rays of construction workers who had dusty
jobs, who had died of respiratory disease, and found about 8 percent of
them had silicosis that was not diagnosed.

		MS. DeFOE:  Would you be willing to submit that to the record, if you
have it?

		MR. SCHNEIDER:  I think it is already in the record, but we could make
sure.

		MS. DeFOE:  Was there any -- it sounds like there's some discussion. 
Were there any other people that wanted to speak to this question?  No,
okay.

		Let's see here.  You also mentioned that the trend in -- the
declining trend in silicosis mortality did not necessarily indicate an
end to the problem.  I was wondering do you have any insight or does
anyone on the panel have any insight into whether the total number of
workers exposed to silica may be a factor in the declining trend?

		DR. MELIUS:  This is Dr. Melius.  Certainly, I think we know that
certainly on the general industry side the number of foundry workers and
so forth has diminished over time and there is certainly a major
population.  I think it's harder to judge in construction and I don't
think we know.  Certainly, as construction has gotten more mechanized,
the number of workers has dropped down.  I don't think we have good data
to really understand how that affects numbers with silicosis because I
think as Mr. Mallon has said and others have testified here that some
of the mechanized approaches actually may generate more dust and more
exposure.  So how that balances out, I just don't think we have adequate
data on.

		MS. DeFOE:  Thank you.  Also, OSHA has received various comments over
the course of the past few weeks stating that the definition of a
working lifetime that we use in our analyses of 45 years is far longer
than any worker's actual working lifetime.  I was wondering if you can
provide any insight into among construction workers, over the course of
their work history, how long do they on average or may they remain in
silicosis-exposed jobs?

		DR. MELIUS:  Mr. Mallon is an example of one.  But certainly we have
significant numbers of workers working into their late fifties and
sixties and many of them start at an early age.  I'd have to look at
some of our enrollment or membership figures.  But it certainly tends to
be a long-term occupation.  And to some extent, the mechanization of
construction has helped to allow people to work longer, to some extent. 
So I think, again, I don't have direct statistics off the top of my
head, but I think it certainly tends to be -- that probably is a good
estimate of working lifetime in construction, at least for a large
proportion of the people.  And they would be exposed to silica
throughout their working lifetime.  They tend to stay in the same
general type of construction.  It's an ubiquitous enough exposure in
many different types of construction that certainly for our union and I
think for the other unions with silica exposure that it would be over
their working lifetime.

		JUDGE PURCELL:  For the record, that was Dr. Melius.

		MR. SCHNEIDER:  This is Scott Schneider.  Let me just add the study in
Holland, they found 10 percent with 1/0 x-rays.  They had an average of
exposure of 19 years.  So I think, I mean I think even with only 19
years of exposure, you have a significant fraction of the population, 10
percent, with some sort of signs of silicosis.  It means that I think we
need to be very conservative about that.

		MR. MALLON:  In my industry, the tunnel industry, you know, most
workers may only work 10 years because the jobs may only last 5 or 10
years, and then they're building no tunnels in that industry, so they
tend to leave to go other places.  But I would say 20 percent of the
workers working for me maybe have 35, 40 years in the business.

		JUDGE PURCELL:  For the record, that was Mr. Mallon responding.  

		MR. MALLON:  Just about every one of them will have a silicosis
problem.

		MS. DeFOE:  I see.  When you say they go to other places, do they tend
to stay within the construction industry?

		MR. MALLON:  I would say they stay in the construction industry, yes.

		DR. MELIUS:  This is Dr. Melius.  To indicate, because I'm familiar
with his local and the other construction locals in New York City, many
of them go to work in other heavy and highway locals that do involve
significant exposure to silica, maybe not all, but that's where they
pick up -- tunnel work tends to be feast or famine.  It's often they
have large jobs and then the jobs stop for a period of time, so they
look for other work.  But many of them do stay in construction.  Many of
them stay in heavy construction since some of the same contractors are
involved.

		MS. DeFOE:  Thank you.  It sounds like some record that you have might
be helpful to us in terms of describing work history and length of
exposure.  Would you be willing to follow up with us about perhaps
sharing some of those data?

		DR. MELIUS:  Yes, we would be glad to.  Dr. Melius, again.

		MS. DeFOE:  Thank you.  I only have a couple more.  Dr. Melius?

		DR. MELIUS:  Yes.

		MS. DeFOE:  You mentioned a small-scale study of union members with
silicosis.  And I wonder have those data or that study been submitted to
the record already?

		DR. MELIUS:  No, but I thought I had indicated, if not I will indicate
now that we will submit that to the record.  We have a report to that.

		MS. DeFOE:  Thank you.

		DR. MELIUS:  And I'll also indicate that we will submit to the record,
Mr. Mallon referred to an industrial hygiene study on the East Side
access project, a monitoring study, and we will also submit that to the
record.

		MS. DeFOE:  Thank you.  Mr. Mallon?

		MR. MALLON:  Yes.

		MS. DeFOE:  I apologize if this covers ground that you have already
spoken on, but would you mind stating again when were you first
diagnosed with silicosis and how advanced was it when you were
diagnosed?

		MR. MALLON:  I was first diagnosed with silicosis, I think it was
2002.  I was coughing a lot around the house.  I went to the hospital
and they took a CAT scan, and the doctor told me that I had problems
with the silicosis.  I kept working till this last year.  I couldn't
afford to go out at that time.  And I wasn't in the tunnel trade.  I was
up on top mostly.  But you kind of always know you have it, even though
you have not, you know, if you're there long enough, you know you have
it.  And the younger ones today are going to be much worse than what I
am because their exposure is eight hours a day to silicosis.  Mine, on
the average, was maybe four hours, three hours.

		MS. DeFOE:  I see.  And you said that you kind of always knew you had
it.  About how long do you estimate you had had silicosis by the time
you go the diagnosis?

		MR. MALLON:  I would say maybe 10, 15 years after you're in the
business you know that.  When you walk up steps, you have a hard time. 
And the older Stenhouse (ph.), when they come around and they take a fit
test, they can't wear those masks.  They can't breathe with them.

		So when you say that you have a project going on where if just a mask
would be fine, a lot of these guys who have been doing it for the past
20 years, they cannot work 8 hours in a mask.  It will affect their
hearts.  It'll affect other organs.  It's just impossible.  A young kid
could probably put a mask on for eight hours a day without a problem.

		MS. DeFOE:  Would you be willing to elaborate a little bit on how
having early stage silicosis affected your quality of life?

		MR. MALLON:  Well, yeah, I loved playing sports, but I can't do that
with the silicosis.  It's a problem.  I like working around the house. 
It affects me.  Playing with my grandchildren affects me.  It has all
different ways to affect you.  I mean, you know, I'm 70.  I may look at
little younger than what I look, but my lungs, I'm sure, are a lot older
than that.  It's a hidden disease, silicosis.  And what I was saying
before, the biggest problem on all the job sites, safety is tremendous
on the jobs.  Every company's inter-safety, if you walk five feet
without a harness on, you'll get fired.  But silica is something that is
not seen.  

		And I ran a job, I was the general shop steward on a job for eight
years.  Never was there a complaint from the contractor that the men
were not wearing a vest.  There was all kind of complaints about not
wearing eyeglasses and not wearing ear things, or not wearing safety
hats, all these things that show up on the record that lost time is on
their mind.  But like I said before, silicosis is lost time.  You know,
you get silicosis, you're going to have lost time down the line.

		MS. DeFOE:  Thank you very much.  And thanks to all of you.

		MR. BLICKSILVER:  Bob Blicksilver.  Just one question.  Scott -- or
Mr. Schneider, in your testimony, you spoke about changing the culture
through a new standard would help preserve worker health and likely make
work more productive in the process.  We have heard some examples of how
engineering controls have improved worker productivity in the questions
and answers that have been given this afternoon.  Could you speak please
to how the other provisions of the standard are likely to affect worker
productivity?

		MR. SCHNEIDER:  Well, I mean just as one example, I think when workers
are well trained, they can do their job more productively.  They have
the skills.  They have the knowledge.  And they have the experience from
doing the training and being skilled at the trade to do the job better. 
So that's just one example.

		I think when I was talking about changing the culture, you heard from
what we were saying earlier about New Jersey and California, that's how
business is done now.  And I think that's really what we're getting at. 
When you control the dust and you don't have -- you're not breathing it
into your lungs, but you're also not spraying it all over the
construction site, all over the sidewalk, and you have to clean it up,
there's a lot of other costs involved in not controlling.  So I think
we're going to realize those benefits by implementing the standard.

		MR. BLICKSILVER:  Thank you.  If you have any other thoughts to share
in post-hearing comments, if you could provide those to us, that would
be helpful.

		MR. SCHNEIDER:  Okay, of course.  Thank you.

		MS. IANNUCCI:  Hi, good afternoon.  This is Annette Iannucci.  My
first question is related to something that came in Dr. Melius'
testimony and others on the panel might have some ideas.  You mentioned
that task based triggers might be more appropriate for medical
surveillance.  Do you have any idea what those tasks might be?

		DR. MELIUS:  Well, certainly something could be constructed from Table
1 as a way of providing some sort of a way of listing what a worker had
done and what should then trigger medical surveillance rather than it's
the pure 30-day one.  But we can certainly give some more thought to
that and submit it in post-hearing comments.  

		I think there are just a variety of different approaches that could be
used as instruction.  It's not a simple issue to deal with.

		MR. SCHNEIDER:  This is Scott Schneider.  I think we live in a
practical world and we have a transient population, and it's difficult
to trigger things based on number of days that they're working or years
that they have worked.  I mean in an ideal world, we could come up with
a better scheme maybe of how to do it.  

		And, in fact, in one study they did with the Dutch population, they
actually looked at what are the main predictors for finding silicosis on
the x-ray.  And they came up with four or five factors including how
many years they have worked, and their age, and things like that.  And
in an ideal world, we could do that.  And practically speaking, in the
U.S., we can't really do that, but it would be nice.

		MS. IANNUCCI:  Okay, thank you.  My next question is related to your
suggestions that contractors could pool their resources for offering
medical surveillance.  And also we talked about there might be cases
where you would recommend more frequent medical surveillance, such as
based on the results of a pulmonary function test.  

		I was wondering would this mechanism of pooling of resources be a way
to offer more confidentiality to workers, like if the healthcare
provider tells them they need more frequent exams, that they don't have
to go back to the employer and ask for it?

		DR. MELIUS:  Yes.  I believe it would, certainly could assist with the
confidentiality.  And the agreements that we have worked out that I'm
familiar with have provided that.  It also provides, I think, more
confidence on the part of the participating worker.  They understand the
rule is the same every time they're offered a medical surveillance
program, so they know what to expect in terms of follow-up.  And I think
at the same time, the contractor may not be quite as focused on those
particular results knowing that there is this pooled approach that's
taking care of it.

		So this is as we have implemented it both in New York and across the
country where I'm familiar with it, it has worked very well.

		JUDGE PURCELL:  That's Dr. Melius.

		DR. MELIUS:  Sorry, yeah.

		MS. IANNUCCI:  Do you have anything written up on this system and how
it works?

		DR. MELIUS:  Yeah, I can provide the information on both our -- some
of our programs in New York as well as ones in other parts of the
country.

		MS. IANNUCCI:  That would be great, thank you.  And also we have
learned recently of databases, portability databases where maybe like
your medical exams that you've received could be tracked or
certifications.  I was wondering if you're familiar with this and if you
see them being useful for the construction industry?

		DR. MELIUS:  Pardon.  I missed the beginning of that.  Scott was
whispering in my ear about something, another suggestion.

		MS. IANNUCCI:  Okay.  We've learned recently about databases where you
could keep records like medical exams that workers have had and
certifications, that kind of thing, training.  And I was wondering if
you would see something like this being useful in construction?

		DR. MELIUS:  I think it can be useful in construction.  I've been
involved in either evaluating or trying to initiate some of these. 
There are lots of obstacles to it, including what system works best, and
confidentiality issues in terms of who can access it, and so forth.  I
think it has a ways to go yet.

		I think where it has worked well is within a very specific type of
construction, sort of in a closed set where a specific certification is
required and specific kinds of testing, drug testing, or whatever.  I
think it's more difficult to apply to a more general population of
construction because requirements can change and you end up with a wider
involvement of people.  

		Not only is there a lot of turnover in construction workers, there is
a lot of turnover in construction companies.  And I think it's sort of
hard to maintain that.  But I think it's something worth looking into.

		MS. IANNUCCI:  Are there any other possibilities, like maybe issuing a
card saying what medical surveillance you've had or any other ideas?

		DR. MELIUS:  Yeah, the card and we have systems now where we use cards
particularly in the area of training and so forth.  I've seen them used
for respirator clearance and so forth.  Again, there are issues, people
are concerned about the forging of cards and so forth.  Like electronic
forms, there is concern about what do you need to do to access those,
the kind of hardware that may be required.  

		What is available at a work site is not always -- not every work site
has instant internet access, so that's a limitation, also.  Again, I
think it's something that can be developed, but I think it can be
difficult and has to be done very carefully, and it will take some time.

		MS. IANNUCCI:  Okay, that's it for me.  Thank you.

		MR. PERRY:  This is Bill Perry.  I have a couple of areas I'd like to
cover.  First, Mr. Schneider, on Page 4 of the written testimony, the
Laborers' written testimony, you make reference to an American
Industrial Hygiene Association white paper dealing with training of
competent persons.  Was that something that was -- did you submit that
to the record at the time or could you?

		MR. SCHNEIDER:  I don't know if we have submitted it, but we can.  I'm
sure the Building Trades probably --

		MR. PERRY:  There is someone behind you waving their hands.

		MR. PARSONS:  I have a copy with me.  This is Travis Parsons.  I have
a copy with me.  I'll be happy to submit it after.

		MR. PERRY:  Great, thank you very much.  Let's see, could you describe
how in your mind ideally, how would the training of a competent person
differ from training a worker who is going to be doing many of the kinds
of tasks we've been watching on these slides that involve silica
exposure?  What's the difference?

		MR. PARSONS:  Well, basically, you take a worker and assign them the
competent person responsibility.  And they should have years of training
experience and skill sets.  And the skill sets should be things like
checking the water flow, the ventilation systems, recognizing when
visible dust is apparent and making controls, make sure somebody is
collecting the slurry.  The circumstance the gentleman talked about in
the tunnels, you know, if you had a competent person on that work site,
they'd be able to turn on and off that water.  But if you don't assign
accountability and responsibility to somebody, then everybody is just
going to point fingers at somebody else.  Does that answer your
question?

		JUDGE PURCELL:  That was Travis Parsons responding.

		MR. PARSONS:  Travis Parsons.

		MR. PERRY:  Yes, thank you.  You mentioned years of experience as
being part of that training.  Did I hear that right?

		MR. PARSONS:  Yes.

		MR. PERRY:  How many, roughly?

		MR. PARSONS:  I don't have an answer for that, but years of
experience.

		MR. PERRY:  And you kind of -- oh, I'm sorry.

		MR. SCHNEIDER:  This is Scott Schneider.  I think if you look in the
AHA white paper, it lays out the different areas that people need.  I
think when you're training somebody to do work, a silica-generating task
and you're going to train them on that particular piece of equipment or
how to use the controls, etc., but the silica competent person is going
to have a much broader training so they are familiar with all the
different equipment and also they have the authority.

		But they are sort of a person who can then fix things.  If things are
going wrong, they can intervene and say, hey, we need to stop this
operation and make sure this gets maintained, etc.

		MR. PARSONS:  Travis Parsons again.  They can also call in a qualified
person or a more advance degreed person, like an industrial hygienist
and/or some other engineer if needed, so they to be on site to make that
call.  They might not always have to have the CIH certification, but
they can make that call.

		MR. PERRY:  Sure, okay.  And then I presume with the requisite
experience and training, a worker that is going to a job site to perform
a task can, in fact, also serve as the competent person, correct?

		MR. PARSONS:  Yes.  Travis Parsons.

		MR. PERRY:  Okay.  Because we heard testimony earlier that, in fact,
with some small contractors, they will often be sending maybe just one
of their employees to a job site to do work.

		MR. PARSONS:  Yes.  Travis Parsons again.  If there is one employee,
they would need to be the competent person.  And I remember yesterday,
the residential construction contractor who was up here, I heard him use
the word competent person more than once.  And I also heard a
contractor, Miller Long, use the word competent persons on multiple
occasions.

		MR. PERRY:  Okay, excellent.  I need to make sure that at least I'm
really clear on what the Laborers' are recommending to OSHA with respect
to Table 1.  I think, Mr. Schneider, I heard you kind of express a
preference to the approach taken by California, which was really a very
simple mandate, no dry cutting without any more specification.

		Mr. Jones, though, you seem to really like our notes on the Table,
which would suggest a greater degree of specification.  So I guess my
question is, and this is something that I think there has been a lot of
discussion in the last three weeks, just how much or how little
specification does there need to be in order for this approach to
provide clear direction to employers and to workers?

		MR. SCHNEIDER:  This is Scott Schneider.  I think what it is, is that
I -- I think it's important to set parameters.  You have to have some
sort of notes as to how to properly implement the controls.  For
example, if you say use wet methods, I didn't mean to say you don't need
notes, because I think you have to specify.  In some cases, you may want
to specify a certain flow rate.  Like I don't know in Ken's situation
what the flow rate is, but if you don't maintain a certain flow rate,
then the controls are not going to work properly.

		Now, you could just sort of punt on that and say, well, just leave it
up to the competent person to figure out.  But if you actually have a
flow rate, then everybody knows that this is what we have to maintain
and how much water we need, etc.  So I think the notes are very useful
in terms of helping the employer implement the controls successfully.

		MR. PERRY:  Okay, that's very helpful.

		MR. HOFFNER:  350 milliliters a minute.  This is Ken.  

		MR. PERRY:  350 milliliters per minute, okay got it.

		JUDGE PURCELL:  That was Mr. Hoffner responding.

		MR. PERRY:  All right, that's very helpful clarification, actually. 
And then we have also heard a lot of testimony the past couple of weeks
about, in fact, on a point like that, if we were to specify a flow rate
or freezing technology, that means that it would be incumbent on OSHA to
periodically update the Table as new products, new technologies are
developed down the line, as it appears -- I mean they are all the time
from what we've been hearing the last few weeks.

		My question here I guess is it has been suggested that maybe OSHA
could lay out a set of criteria under which equipment, dust control
equipment could be tested in laboratory or controlled field kinds of
situations, that there would be some parameters laid out, so that if a
particular product or device met those parameters, it would be deemed
acceptable.

		I think yesterday or the day before someone even suggested independent
third party testing, like such as through our National Testing Research
Labs.  

		Is that anything that you all have thought of in terms of what kind of
criteria might be useful out there to help OSHA identify effective
technology that comes on down the line?

		MR. JONES:  Well, if you look at what NIOSH is doing, I believe --
Walter Jones, how you doing.  If you look at what NIOSH is doing, I
believe it's Chuck Hayden and his folks are doing, where they are
actually asking manufacturers to bring -- it's in noise, it's not in
dust control, but it's in noise control technology.  They are actually
asking manufacturers to supply equipment and they are doing what can be
seen or looked at as independent testing.

		The problem is they don't have the hook to get more manufacturers to
supply more equipment and so it has kind of like stalled, if you would
ask me.  

		And if you look at the New York City noise ordinance rule as well,
where instead of going by decibel exposure, what they are doing is if
you use certain codified equipment and they have a process by which your
equipment could get on their list, you can get your jackhammer on a list
as being 106 decibels, and then the contractors now know that if they
are using the Atlas Cop-Co XYZ, they're in compliance with the
environmental noise ordinance.

		So I think if we look out in the laboratories of the country, there
are some opportunities.

		DR. MELIUS:  This is Dr. Melius.  If I can just add, I was involved
in starting the silica milling machine project.  And I think we wrestled
with that issue at that time, we had previously done one with asphalt
exposure and paving machines, but I think what really drove that was
what could become the PEL.  

		And basically when we first had the meetings about that, we just said
let's aim for what was at that time the NIOSH recommended exposure
level.  We didn't know where OSHA was going to end up.  But that really
gives the direction for people to go.  

		And then I think it becomes, as you said, there needs to be thought
about how do you approach it, what is effective methods.  I don't think
you can be too directed, because you want people to come up with
innovative solutions, too.  You don't want to write Table 1 before
you've got the technology to do that.  And there may be combinations of
approaches in how something is used in different industries.  I actually
think the PEL will drive a lot of it.

		MR. PERRY:  All right, very good.  That's all the questions I have. 
Thank you.

		MS. KRAMER:  Hi, this is Allison Kramer.  I just have a few questions
for you guys.  My first question is similar to a question that
Ms. DeFoe asked earlier.  I was wondering if any of you know anyone who
was diagnosed with silicosis before they started having symptoms.  And
if so, how did that affect the worker's life, that diagnosis.

		DR. MELIUS:  This is Dr. Melius, again.  I actually know some people
right now in the construction industry relatively recently diagnosed.  I
really can't say how it affected their lives yet.  I think the question
will be how it affects, as Mr. Mallon has said, how it will affect
their ability to do work as they go forward in time.

		But it certainly is something that does affect them.  And we know it
is progressive and it certainly makes them concerned.  I've been
spending the last several years dealing with people with post World
Trade Center with progressive pulmonary disease, and for them it is very
devastating and very worrisome in terms of what it means for their
future career and ability to provide for their family, even if it is not
at a point where they have significant symptoms yet but only have maybe
some early pulmonary function changes or x-ray changes.  So it is a
significant burden on them and can't be ignored as being something
that's benign.

		MR. MALLON:  I would say it's very similar to smoking.  If you started
smoking at 20 years old --

		JUDGE PURCELL:  Mr. Mallon, if you would talk into the mike?

		MR. MALLON:  If you started smoking at 20 years old, by 40 or 50 you
would feel the effects.  But the difference between smoking and
silicosis is that if you started smoking at 20 years old, and you
stopped at 40, 20 years later your lungs would be in pretty good shape. 


		If you've worked in the tunnel business or any other construction
business and you were in contact with silicosis, again 20 years and you
walked away, it wouldn't help.  It would be you have the disease and
there's no way around it.

		MS. KRAMER:  I was wondering if anyone could talk a little bit about
the benefits of early detection.

		DR. MELIUS:  Well, obviously, I think early detection is important in
terms of recognizing that, I'll say in this case you have some sort of
lung disease, you have some compromised lung function say that part of
the medical advice to somebody in that situation would be that if you
develop a chest cold or you should be aware that you're -- an upper
respiratory infection, you are much more likely to go on and develop a
more serious problem, you know, bronchitis or pneumonia, you are much
more prone.  So you need to be aware of that and maybe see a physician a
little earlier than you normally would. 

		So that a benefit.  There is also the increased risk of tuberculosis
from silicosis, which is again important in terms of prevention, maybe
not as common a disease now as it used to be, but certainly something
that people do come in contact with and we do see still occurring in our
country.  

		And certainly for lung cancer, obviously, early detection is
lifesaving.

		JUDGE PURCELL:  That's Dr. Melius responding.

		DR. MELIUS:  Yeah.  And similarly for silicosis.  Overall prevention,
but detection is one way of giving a person some options as to how long
they want to continue with working and how that may affect their future
health.  And they should have the right to make that decision.

		MS. KRAMER:  Along a similar vein, I was wondering if anyone had an
opinion on whether there is a need for a medical removal protection.

		DR. MELIUS:  Again, Dr. Melius.  We've had a number of discussions on
this issue.  Certainly, I think within the general industry, I think
medical removal protection would be appropriate, with appropriate
confidentiality, would be appropriate for people in general industry.  

		I think for construction it is much more problematic in a practical
way, as many other things are, because of the job rotation issue and so
forth, and accountability issues.  And for that reason, we have not
advocated it in our testimony.

		MS. KRAMER:  Again, I believe, for Dr. Melius, you mentioned in your
testimony that you have seen a growing trend of members being denied
work based on poorly justified fitness guidelines which have no basis
and sound medical science.  I was hoping you could say a little more
about that?

		DR. MELIUS:  Yes.  There is a trend within the construction industry
and I believe in other industries to provide some sort of pre-job
screening.  That's ostensibly saying can you meet the requirements of
doing a kind of work.  And this keeps coming up in various parts of the
country, various large contractors.  

		There are companies that claim they have fitness criteria for doing
construction work.  As best I can tell, they have no scientific basis
for that as to what really is required for doing the work of a laborer
or an operating engineer, another construction worker.  That's simply a
way of having a medical excuse to deny a person, an older person or a
person maybe with a history of a back problem that for some reason they
think is more prone to affect their worker's compensation, to deny them
a job.

		Now I participate in developing good, sound job-based requirements,
for example, for firefighters.  You know, that's possible to do.  It is
very difficult to do, but it can be done.  I think maybe it's possible
to do it in construction or other jobs, but in something where there is
a variety of tasks and a variety of types of work, it is difficult and
certainly nothing I have seen provided any sort of good basis for doing
that.

		That's why I worry where employers, you know, certain employers, where
they would get information on someone having pulmonary function changes
or early signs of silicosis would use that as some way of saying that
person was no longer fit to be able to do the work they do, and be able
to dismiss them, trying to avoid their liability for the development of
the disease.

		MS. KRAMER:  Completely different subject now.  Some commenters have
suggested that the use of wet methods can cause a hazard because either
the water freezes on the ground and someone could slip or, you know,
water is slippery, so someone might slip on that, or that it could cause
problems in a roadway by causing a slippery slurry.

		Could you guys talk about that?  Is that something that happens in
your experience?

		MR. HOFFNER:  I mean I can tell you that was a big concern.  It was. 
We heard that when we were developing -- this is Ken Hoffner, by the
way -- when we were developing the jackhammer spray.  

		And one of the things we tried to do is see how little water we could
use to actually get the kind of control that we needed.  And in a lot of
cases, at least with jackhammering, if it's a warm day, if it's the
typical summer type of job, the area where you use the wet spray has
evaporated within the space of about 5 to 10 feet from where you
started.  So it was continually evaporating.  We didn't have problems
with runoff, because runoff is a problem on road construction sites. 
The amounts of water that we were using just were not giving us any
runoff problems. 

		MR. PERRY:  Actually, one quick follow-up on the MRP issue.  I think
what we did propose was a worker being -- well, making available to the
worker, if necessary, a consultation with a pulmonologist or we've heard
in these proceedings an occupational physician as well.  Would that make
sense if the employee requested such a consultation?

		DR. MELIUS:  Absolutely.  I believe I put it in my written comments,
maybe I forgot --

		MR. PERRY:  And I might have just missed it, so, okay.  Very good.

		JUDGE PURCELL:  That was Dr. Melius.

		MR. HOFFNER:  This is Ken, just to follow up on your water question. 
I was just recently talking to a major New Jersey construction
contractor about who would use the water spray.  His problem was not
with the runoff, it was that some of the workers didn't like getting
their feet wet.  And so we talked about rubber boots.

		MS. KRAMER:  One final question.  We have talked a lot with you guys
about the training programs, the combining of resources.  When you
submit information to the record on the training programs, could you
make sure to include any information on the fees that the employers
might be paying in order to have their employees or their potential
employees participate in the training, the timing for the training, and
how much you would recommend, how long a period of time you would
recommend someone needs to be trained on silicosis or silica, things
like that.

		MR. NUNZIATA:  This is Tom Nunziata.  The training provided to a LIUNA
member is part of a negotiated contract and it is part of their benefit
package.  So if you look at -- if someone gets paid, they get paid
twice, once in the pocket, that's what they're taking home, and once to
pay for their healthcare, their dentist, and to pay for training.  And
that varies.  It is negotiated across the country.  So it can be
anywhere from 25 cents an hour to $1 an hour per individual working for
that contractor.  

		What was the other part of your question?

		MS. KRAMER:  The kind of time aspect of the training.  Like are we
talking 5 hours of training, 40, 300?

		MR. NUNZIATA:  It's been our experience, and I have some data because
I looked at how much -- a silica awareness training had been conducted
over a number of years, and from 2004 to 2012, I can document 1,303
people trained, which if you're training 120,000 people a year through
our programs, that's not a lot.

		Now what drives that is usually contractor request; there is a need
for someone to be trained, to go through some sort of silica awareness
type of training.  And what may drive that is a visit from an OSHA
compliance officer on a job site saying that you really ought to be
training your people in that, and that would get them into the door. 
It's a lot different than say like having an OSHA 10-hour card, which
contractors' mandate you have to show up on the job.  

		In some instance, though, you know, with our apprenticeship programs,
that type of training is appropriate and part of apprenticeship training
through their prescribed programs, however they have them written in
that area of the country.  So if there is anything I can provide you, I
certainly will.

		MR. MALLON:  I will say one thing on the training.  I've sat in a lot
of training when the contractor first starts the job.  I've sat in a lot
of films where they show all the hazards.  They never show the hazards
of silicosis.  I just saw a picture up there of lungs.  If a young man
came in the business at 20 years old and you show them if you don't wear
your protection and you work environment with that type of dust, this is
what's going to happen with your lungs, I think if a contractor did that
it may help a little bit with some of these younger fellows coming in.

		JUDGE PURCELL:  That was Eddie Mallon responding, for the record.

		MS. KRAMER:  Thank you.

		MR. PERRY:  I think that concludes our questioning, Your Honor.  And,
again, thank you to the Laborers' panel for appearing here and
testifying today.

		JUDGE PURCELL:  Thank you very much, gentlemen.  Next on the agenda is
the Portland Cement Association represented by Thomas Harman and Ryan
Langton.  Also, I think -- also joining the Portland Cement Association
during the panel will be Robert Garbini of the National Ready Mixed
Concrete Association.  If you all will come up?	

		MS. KRAMER:  Your Honor, would you mind if we take a five-minute break
to kind of get situated?

		JUDGE PURCELL:  The time is 4:05.  We'll reconvene in five minutes.

		(Off the record at 4:06 p.m.)

		(On the record.)

		JUDGE PURCELL:  One of the panel members gave me a copy of the white
paper that was referenced during the testimony.  I have marked that as
Hearing Exhibit 160 and that will be admitted into the record.

		MS. KRAMER:  Your Honor, I believe the orange item is 160.

		JUDGE PURCELL:  You are correct, so if you will change the exhibit
number on that to 161.

		MS. KRAMER:  Thank you.

(Whereupon, the document referred to as Hearing		 Exhibit 161 was marked
and received in evidence.)

		JUDGE PURCELL:  Next on the agenda as I indicated before the break is
Thomas Harman from the Portland Cement Association, with Ryan Langton;
and, also Robert Garbini with National Ready Mixed Concrete Association.
 Mr. Harman, if you would like to start?

		MR. HARMAN:  Thank you, Your Honor, OSHA representatives, and members
of the public.  My name is Tom Harman.  I am the Safety Director and the
Senior Director of Regulatory Affairs for the Portland Cement
Association, or PCA.  On behalf of our members, I appreciate the
opportunity to address the public hearing about the proposed crystalline
silica rule.

		PCA is the trade association that represents U.S. portland cement
manufacturers.  When mixed with water and aggregates, cement makes the
concrete that goes into roads, bridges, and residential and commercial
buildings, and other basic infrastructure.

		We appreciate and support OSHA's work to protect the safety and health
of America's workforce.  PCA's Occupational Health and Safety Committee
also works to improve the safety and health of our industry by
proactively developing safety and health systems, and sharing best
practices.

		PCA also has an alliance with the Mine Safety and Health
Administration, which has been very helpful in benchmarking performance
objectives in education and training.

		PCA is part of the Concrete and Masonry Related Associations, also
known as CAMRA.  CAMRA's members participate in the crystalline silica
panel of the American Chemistry Council and we fully support the
comments and statement it provided in these proceedings.  At this time,
I will yield the remainder of our time to my colleague,
Mr. Ryan Langton.

		MR. LANGTON:  Good afternoon, Your Honor, OSHA representatives, and
members of the public.  My name is Ryan Langton.  I am the Health and
Safety Manager for U.S. cement operations for Lafarge U.S., an operating
unit of Lafarge North American Incorporated, based in Chicago, Illinois.
 I am also an active member of the Portland Cement Association's
Occupational Health and Safety Committee.  I am a certified industrial
hygienist, a certified safety professional, and have a master of science
degree in industrial hygiene.  I have nearly 10 years' experience as a
health and safety professional in the construction building materials
industry and have spent approximately the last three years with Lafarge.

		I appreciate the opportunity to provide testimony here today on behalf
of the Portland Cement Association.  At this time, I would like to share
the results of a recently conducted industrial hygiene survey of
multiple cement distribution facilities in the U.S. to assess worker
exposure to respirable crystalline silica, specifically quartz.  The
survey was commissioned by the Portland Cement Association and was
conducted by a nationally recognized environment health and safety
consulting firm. 

		The PCA identified three cement terminals operated by member
companies, one located in Detroit, Michigan, and two others co-located
in Houston, Texas.  Cement terminals, which are regulated by OSHA,
typically have three to five employees depending on the volume of cement
supplied by the terminal.  The primary operational function of these
sites is to offload cement from vessels, barges, or railcars and
transfer it to storage silos.  Cement is then loaded into customer
trucks for downstream use in the construction industry.

		Some terminal locations also package cement into bags as well.  The
survey at the Detroit terminal was conduct on January 29, 2014, and the
survey at the Houston terminal was conducted on February 4, 2014.  

		On the day of the Detroit survey, weather conditions included
temperatures of 5 to 15 degrees Fahrenheit, with partly cloudy skies. 
In addition to loading customer trucks with bulk cement, this site also
has bagging operations.  Employees also perform maintenance and
housekeeping around the terminal and in the warehouse.  During the
shift, the Detroit terminal processed 24½ tons of bag Type 3 cement and
shipped 170 tons of bulk cement.  The bulk cement consisted of 29 tons
of Type 1 cement, 20 tons of slag, and 121 tons of an 80 percent Type 1,
20 percent slag mixture.

		On the day of the Houston survey, weather conditions included
temperatures of 35 to 55 degrees Fahrenheit with periodic misting
precipitation.  Work was done both indoors and outdoors at the
terminals.  Employees at the Houston site spend their shifts loading
customer trucks, and performing maintenance and housekeeping around the
terminals.  During the shift, the east terminal shipped 1,858 tons or 72
truckloads of Type 1 and 2 portland cement, and the west terminal
shipped 480 tons or 19 truckloads of Type 1 and 2 portland cement. 
Shipping tonnages at both terminals are considered representative
shipment amounts.

		At the Detroit, Michigan terminal, air sampling was done using Gilian
GilAir 3 sampling pumps.  And in Houston, Texas, SKC AirChek 52 air
sampling pumps were used.  All pumps were calibrated at 1.7 liters per
minute.  Sensidyne Dorr-Oliver cyclones equipped with 37 mm diameter
2-piece cassettes with 5 micron PVC filters were used.  Air sampling
pumps were calibrated before and after the sampling session using a
precision rotameter and multipurpose calibration chamber.  The rotameter
was calibrated with a TSI standard calibrator. 

		The samples were analyzed by an American Industrial Hygiene
Association accredited laboratory.  Field blanks were submitted with
each of the two sets of sample for quality control purposes and to
account for potential contamination from sample handling, storage, and
shipment.  	The samples were analyzed in accordance with NIOSH
Analytical Methods 0600 and 7500 for respiratory dust and crystalline
silica, respectively.

		At the Detroit site, personal air samples were collected from three
warehouse employees, two office employees, and one maintenance
employees.  Sampling duration for the six samples ranged between 448 and
504 minutes.  Laboratory results indicated levels of crystalline silica,
specifically quartz, for all samples were below the laboratory's
reported 10 µg level of quantification.  There were no detectable
concentrations of respirable crystalline silica present on any of the
samples, meaning all exposures were below the proposed action level of
25 µg/m3 of air as an 8-hour time weighted average.

		At the Houston site, personal air samples were collected from one
terminal operator and three maintenance employees.  Sampling duration
for the four samples ranged between 444 and 473 minutes.  Laboratory
results indicated levels of crystalline silica, specifically quartz, for
all four samples were below the laboratory's recorded 10 µg level of
quantification.  There were no detectable concentrations of respirable
crystalline silica present on any of the samples, meaning all exposures
were below the proposed action level of 25 µg/m3 of air as an 8-hour
time weighted average.

		To further support the industrial hygienist survey commissioned by
PCA, it should be noted that the sampling results obtained are
consistent with those collected by PCA member companies, including
Lafarge for similar facilities and job classifications.  

		In 2013, Lafarge conducted industrial hygiene surveys at 20 cement
terminals in the U.S. to assess exposure to respirable crystalline
silica and other industrial hygiene agents.  These surveys produced
sampling results for more than 50 employees and all results obtained
were below the proposed action level of 25 µg/m3 of air.

		Your Honor, OSHA representatives, and members of the public, that
concludes our remarks.  Again, we appreciate the opportunity to address
this group and we'll be happy to answer any questions.

		JUDGE PURCELL:  Thank you, Mr. Langton.  Before I go to Mr. Garbini,
let me ask you and Mr. Harman if you want to offer copies of your
testimony, and have them marked as exhibits and admitted in the record. 


		Okay, this is Mr. Langton's testimony.  I'll mark that as Hearing
Exhibit 162 and that's admitted into the record.  And Mr. Harman's
testimony, I've marked as Exhibit 163 and that's also admitted in the
record.

(Whereupon, the documents referred to as Hearing		 Exhibits 162 and 163
were marked and received in evidence.)

		JUDGE PURCELL:  And, Mr. Garbini, maybe before you start, do you wish
to do the same thing?

		MR. GARBINI:  Thank you.

		JUDGE PURCELL:  And that will be marked and admitted as Hearing
Exhibit 164.

(Whereupon, the document referred to as Hearing		 Exhibit 164 was marked
and received in evidence.)

		JUDGE PURCELL:  And you may proceed when you are ready, Mr. Garbini.

		MR. GARBINI:  Thank you, Your Honor, members of OSHA.  My name is
Robert Garbini.  I am the President of the National Ready Mixed Concrete
Association in Silver Spring, Maryland.  I am pleased to be here today
to present comments on OSHA's proposed rulemaking on the occupational
exposure to respirable crystalline silica.

		JUDGE PURCELL:  Can you pull the mic over a little closer to you? 
Thank you.

		MR. GARBINI:  NRMCA was founded in 1930 and today represents 2,200
companies and subsidiaries that employ more than 125,000 American
workers who manufacture and delivery ready mix concrete, that which is
delivered in the familiar rotating drums that you see.  

		The association represents both national and multi-national companies
that operate in every congressional district in the United States.  The
industry currently includes over or close to 70,000 concrete mixer units
and 5,000 ready mix concrete plants.  The ready mix concrete industry
manufactures a construction material vital to constructing our built
environment.

		In 2013 alone, the industry produced more than 300 million cubic yards
of concrete, close to 1 cubic yard per person, representing a value of
$30 billion.  Virtually, every construction project in the United
States uses some kind of concrete.

		NRMCA is currently a member of the Concrete and Masonry Silica
Coalition with eight other concrete, cement, and masonry industries.  In
this capacity, the coalition is a member of the American Chemistry
Council Silica Panel.  

		NRMCA and its members support and agree with the necessity for having
and maintaining a silica standard to protect the American workers. 
However, the concrete industry disagrees with the need to change the
current standard and permissible exposure limits.  As current data shows
the silica regulations currently in place have worked extremely well in
protecting workers in the concrete industry and continue to do so today
with the need for further enforcement, the continued compliance -- and
with enforcement of current silica regulations, engineering controls,
personal protective equipment used, and properly effectively limiting
workers silica exposure, and result in downward trends of U.S. silicosis
rates.

		The concrete manufacturing industry goes to great lengths to protect
its worker from silica exposure by understanding the industry's hazards
and by understanding the industry worker makeup, two critical elements
necessary for safeguarding a set of workers, both of which OSHA has
entirely characterized incorrectly in its proposal.  

		NRMCA believes the current PEL should remain unchanged and an action
level is entirely unnecessary.  The current standard has proven to
reduce and nearly eradicate silicosis in the U.S. as shown by the CDC
and the U.S. Department of Labor.  NRMCA objects to OSHA basing the
necessity for and science behind the proposal on outdate and inaccurate
materials.  Many of them inaccurately draw a correlation between silica
exposures and certain industries such as the ready mix concrete industry
with the necessity for silica standard changes for all industries.

		Specific to the concrete industry, OSHA has included information in
its proposal, which is inaccurate and depicts an industry overexposed to
silica.  This OSHA data and information is far from the truth and
wrongly characterizes our industry.  The proposed data establishes
specific exposure limits for different concrete industry worker
positions.  As well, OSHA's proposal establishes a total number of
workers in the industry and the amount of workers that are exposed at
different exposure levels.  

		According to OSHA's stated numbers in this proposal, a simple
extrapolation of those numbers would mean that at most there are about
30,000 concrete mixer drivers and all are exposed to silica levels above
the proposed standard, and this is incorrect.  This data differs
dramatically from the concrete industry's data we collect every year,
much of which is made public.  

		Each year in working to expand the industry's self-awareness, NRMCA
conducts a number of industry surveys.  One such survey, our 2013 fleet
benchmarking survey, determines the number of concrete mixer truck
drivers and trucks currently employed around the country.  The most
recent survey results establish the number of concrete mixer trucks and
drivers in the U.S. at close to 70,000 each, a difference of over 38,000
according to OSHA's data, meaning that the OSHA data does not account
for nearly 40,000 drivers.

		Moreover, OSHA's data on mixer driver exposure is based off of
assumptions that all mixer drivers take part in the practice of drum
chipping.  This practice and process, although conducted, is not done by
a vast majority of mixer drivers.  One of NRMCA's surveys reports that
approximately 85 percent of concrete companies are third-party
contractors that chip out their mixer drums or use hydraulic cleaning
methods.  This data leaves only about 15 percent of the mixer drivers
actually doing any drum chipping, a dramatic difference from OSHA's
erroneously established 100 percent of the industry drivers doing
chipping.

		Also, OSHA's numbers note that there are just over 107 workers in the
concrete industry, instead of the 125,000 we actually have.  The ready
accessible information on the concrete industry demographics and OSHA's
failure to obtain it, especially given the fact that the industry is
just one of 25 industries specifically affected by the proposal begs the
question as to whether or not OSHA has properly, and thoroughly, and
effectively, and accurately assessed the necessity for a new silica PEL,
and how it truly needs to be applied to various industries since OSHA
has clearly not done its homework, how this proposal is not premature. 

		Currently, the concrete industry has resources and practices for
compliance with the current silica standard that are proven to work. 
Following the leader, the federal OSHA, the Illinois Department of
Commerce and the Illinois Ready Mix Concrete Association developed a
specific guide with verified testing for approaching silica exposure at
concrete plants and while chipping out drums.  

		The test result from the guide showed that employees can perform drum
cleaning for up to six hours without being exposed to particulates
containing silica which exceed the OSHA PEL.  The guide's test results
are continually confirmed as NRMCA members across the nation implement
such practices and procedures.  For companies that do hire third party
contractors that chip out their mixer drums, they, too, follow strict
practices and procedures to ensure that the concrete company and the
contractor's employees do not exceed the PEL requirements. 

		NRMCA members also use other manuals for ensuring the safety and
health of their workers to reduce silica exposure.  Specifically, NRMCA
members frequently refer to NRMCA's mixer drum cleaning guide and a
publication distributed by the University of Georgia Tech which both
illustrate the practices needed to remain compliant with the current
regulations while emphasizing the importance of maintaining a high level
of safety and health.  

		Concerning other concrete industry workers who do not drive mixer
trucks or chip out drums, OSHA has again missed the mark.  Industry
monitoring data through 2003 to 2012 show a very different exposure rate
than OSHA.  Exposure for batch plant operators was only 20 percent of
the PEL, maintenance operators was 26 percent, and material handlers was
32 percent.  These low exposure limits are not indicative of
necessitating a restructuring of the current standard and PEL.  

		To further ensure a safety and healthy work environment, common and
best management practices at concrete plants are strictly adhered to. 
NRMCA believes that OSHA has not met its statutory burden or
demonstrated that lowering the PEL from its current limit will increase
worker's safety and health, or even is achievable by the industry.  As
well, NRMCA believes a new Small Business Regulatory Enforcement
Fairness Act panel should be needed to provide more complete, accurate,
timely, and relevant information on how small businesses will be
affected.  The 2003 panel information and recommendations received by
OSHA for use in the proposal contain incomplete data and information
which are, at best, a decade old.

		In the period since the 2003 panel was finalized, the U.S. has seen
dramatic changes in economic conditions, economic industry growth and
retraction, technology advancements, large population growth, and
extraordinary medical innovations, all of which should be considered
when crafting a large, costly, burdensome standard.

		As an industry that is specifically identified in the proposal as
being 1 of the 25 general industries' subsectors that are affected by
the proposal, it is poor practice and ill-advised for OSHA to further
regulate an industry that was not included in the 2000 panel, which is
now comprised of 85 percent of small businesses.  It is crucial and
critical that OSHA obtain and utilize complete information about an
industry before further regulating it.  What's more, the concrete
industry is 1 of at least 13 other industries identified in the proposal
as being affected by the proposal, but which are not included in the
2003 panel.

		In conclusion, NRMCA and the concrete industry looks forward to
maintain a silica standard to protect American workers; however, change
from the current standard PEL and added action level are unwarranted and
indefensible.  This is proven by current data and the industry's
adherence to the current regulations.  That concludes my comments and I
thank you for the opportunity.

		JUDGE PURCELL:  Thank you, Mr. Garbini.  With that, I'll open it up
to questions.  Could I see a show of hands in the audience?  One, two. 
Ms. Trahan?  And, gentleman, if you respond to a question that hasn't
been directed specifically to you, it would help if you would identify
yourself when you are responding.

		MS. TRAHAN:  Thank you, Your Honor.  Chris Trahan with the Building
Trades.  I've got a couple of questions for Mr. Garbini regarding the
comments particularly on chipping out drums.  I think you talked about
the air sampling results you see -- you have in your batch plants.  Do
you have any air sampling results from cleaning out the drums?

		MR. GARBINI:  We don't have any information on cleaning out the drums,
no.

		MS. TRAHAN:  And in your comments that I reviewed, you indicate that
you believe that your member companies contract out 85 percent of that
work.

		MR. GARBINI:  Correct.

		MS. TRAHAN:  So drivers don't do that work?

		MR. GARBINI:  That's correct.

		MS. TRAHAN:  And that you also qualify contractors before any work is
performed.  Can you describe a little bit about the qualification
process your member companies go through?

		MR. GARBINI:  Well, I'm sure that they want to make sure that the
contractors --

		JUDGE PURCELL:  Can you pull the mic over?  I'm sorry, Mr. Garbini.

		MR. GARBINI:  This is Robert Garbini.  I'm sure because of the
liability issues, they want to make sure that the companies that are
going to be doing the work are certified and conform to all the OSHA
standards for the PELs.

		MS. TRAHAN:  But specific qualification procedures, I mean other than
just adhering to OSHA's standards --

		MR. GARBINI:  Well, I think -- well, let me answer there's 2,200
companies around the country.  There is not specifically a standard
other than that's probably in our NRMCA guide on drum cleaning other
than recommending that they do make sure those agencies or those
companies are qualified.

		MS. TRAHAN:  Okay.  So regardless of if it's contracted out or if it's
done in-house by the drivers --

		MR. GARBINI:  Correct.

		MS. TRAHAN:  -- for the companies, do you have an idea of how long it
takes to complete the process for each vehicle?

		MR. GARBINI:  If it's again done by hand, it's probably going to take
four hours for a drum.

		MS. TRAHAN:  Okay.  Now, you talk a little bit about the limitations
of the amount of time that can be spent on it based on noise.  Can you
explain that?

		MR. GARBINI:  Well, it's a confined space.  I think everybody in the
audience has probably seen a ready mix truck with a rotating drum.  So
there are other OSHA requirements that we have to comply with as
confined space.  It's got to be locked, the drum has got to be locked
out and everything else.  Plus, you're inside the drum, so there is a
noise issue there as well.  There is noise, confined space, and also the
dust.

		MS. TRAHAN:  If a job goes for more than four hours, what kind of
action is taken?

		MR. GARBINI:  I don't think the requirement of four hours is -- that
was probably my best estimate how long a drum takes.  If the drum takes
a little bit longer, I don't think that there is any specific, as long
as they're in compliance with ensuring that the sound noise, that the
drum is still locked out, there is a spotter outside, all those kinds of
things are under the general enforcement for OSHA for that kind of work.
 So it's not specifically limited to a four-hour period, if that's your
question.

		MS. TRAHAN:  Okay, thanks.  I guess the last thing is if your member
companies, do you have any information on exposure to the workers who
are actually doing the chipping out, if you could provide that to the
record?

		MR. GARBINI:  We'll look to see that.  We do have one company that did
some specific things and we'd have to get permission from them to
provide that.

		MS. TRAHAN:  Okay.

		MR. GARBINI:  And we'll see if we can do that.

		MS. TRAHAN:  Thank you very much.

		JUDGE PURCELL:  Thank you, Ms. Trahan.  Ms. Seminario, yes, you had
some questions.

		MS. SEMINARIO:  Peg Seminario from the AFL-CIO.  Thank you for hanging
in there and for your testimony.  Just to follow up on a couple of the
questions that Chris Trahan was asking, starting with Mr. Garbini, you
had indicated that 85 percent of the work for cleaning out the drums had
been contracted out to third parties.  What types of contractors are
doing that work?  Your folks might not be doing it, but who is doing it
and what makes NAICS code or SIC code would they be in?

		MR. GARBINI:  This is Robert Garbini, again.  I couldn't tell you the
specific SIC code that they would be in.  It would certainly go to fall
under the general, I think, instruction.  But there are probably
organizations, companies that have, are well-equipped with the air
quality safety equipment, the hearing -- the sound equipment, and of
course the extra people that are capable of locking the unit out and
everything.

		One of the most important things to remember is a ready mix concrete
driver, they don't want the drivers in the drum chipping them out.  For
the most part, because of the reduction or the economy downturn since
2007 that we've had, a lot of companies were using the drivers, that 15
percent I was probably talking about, are using those drivers just to
keep them working.  So rather than laying a driver off, because these
guys are delivering a perishable product that requires very specific
engineering things to do, so they don't want to just jeopardize those
individual just cleaning out a drum, but they don't want to let them go,
as well.

		MS. SEMINARIO:  Thank you for that information.  Do you have any sense
of how many people would be involved in this --

		MR. GARBINI:  The industry?

		MS. SEMINARIO:  In the drum cleaning part of it that's now not part of
your industry, because those individuals would have some potential
exposure and so --

		MR. GARBINI:  Well, if -- to understand your question, let me restate
it again.  So how many companies are actually involved in that kind of
industry?

		MS. SEMINARIO:  And how many workers.  You had talked about how 85
percent of it is not done -- is done on a contract basis, so how many
workers do you think that would involve, even if they are not within the
ready mix industry, itself.  Any sense of that?

		MR. GARBINI:  That would be a guess on my part.  Of the drums, the
drums probably don't require cleaning except maybe every, anywhere
from -- depending on the amount of concrete that's been delivered,
three to six months, maybe a year.  Of course, through the recession,
some of them were sold.  So it would just be a guess on my part.  

		But I mean we have a number of associate companies that are members
of -- associate members that are members of the NRMCA.  There is only a
handful of them, a couple that are members of NRMCA.  I couldn't really
guess at the total size, sorry.

		MS. SEMINARIO:  No, that's fair.  And for the individuals who are
still doing this work who are employed in the industry as drivers or in
some other capacity, about how many people would there be who are
employed by your members who are doing this kind of work with this
potential exposure?

		MR. GARBINI:  You're talking about the number of drivers that are
doing chipping?

		MS. SEMINARIO:  Doing chipping, right.

		MR. GARBINI:  Well, again, you know the 15 percent estimate, you know,
you can do the simple math, 15 percent of say 50, 60,000 drivers.

		MS. SEMINARIO:  Okay.  And as you indicated, they would be doing this
work, if they're doing it at all --

		MR. GARBINI:  To keep them working.

		MS. SEMINARIO:  Right.  But once every three months?

		MR. GARBINI:  Three to six months.

		MS. SEMINARIO:  Three to six months, all right.  Well, thank you, that
is helpful information.  And Mr. Langton, you presented some very
useful information, some exposure monitoring data for the Portland
Cement Association.  Do you have any information of what kind of
controls are in place now in the transfer operations where you were
monitoring that are limiting the dust exposure?  And how are they
managing those exposures and what kind of controls are in place?

		MR. LANGTON:  Sure, that's a great question.  I think one comment I'll
make is generally speaking the terminals are a fairly closed loop type
system.  We have a pneumatic transfer of material.  There's socks are
present at the discharge point.  And I guess if anyone doesn't know what
a sock is, it's kind of a device that hangs down to minimize the escape
of fugitive dust from the hatch of the truck or vessel.  So I think by
and large they are not exposed conveyors.  There is not transfer points.
 Material is not being dropped or allowed to fall freely.  It's all
within enclosed ductwork, piping, silos, that type of setting.

		MS. SEMINARIO:  All right.  And in these terminals, is there
maintenance that's required to this equipment that might expose people
on occasion to some higher exposure levels of the dust?

		MR. LANGTON:  I would say the potential exists there, yes.  It's like
any other mechanical environment.  There are going to be breakdowns,
failures within equipment, and trying to isolate the area and allow the
employees to work there is the priority so they can get in there, in
those type of upset type conditions.

		MS. SEMINARIO:  But the conditions that you were monitoring were
basically the typical operation of the facility that didn't involve
upsets, as far as you know, in the time that you were doing your
exposure monitoring both I guess in Detroit and in Texas.

		MR. LANGTON:  That is correct.  The results obtained were indicative
of a typical operation, no breakdowns during either of those days.

		MR. HARMAN:  Maybe if I could just add to that.

		MS. SEMINARIO:  Sure.

		MR. HARMAN:  Some of the engineering controls that you asked about
there would include, and these are included in our comments to the
record, covered conveyor systems, local exhaust ventilation at belt
transfer points, and also plastic sleeves that are used to place into
bags, which along with the socks that come down off of the transfer
points, reduce the amount of dust.  Those are some of the types of
controls I believe that you were talking about.

		JUDGE PURCELL:  And that's Tom Harman responding.

		MR. HARMAN:  Yes.

		MS. SEMINARIO:  Thank you, Mr. Harman.  And this question is for both
associations.  Do you know if your -- does the association have any
recommendations for any kind of medical surveillance for workers, either
in portland cement or in ready mix concrete?

		MR. HARMAN:  We don't collect the data and we don't have
recommendations for it, per se.  We discuss these issues.  We are
currently, for example, in the process of developing an industrial
hygiene manual, but we don't have recommendations for that.

		MS. SEMINARIO:  Okay.  And?

		JUDGE PURCELL:  Tom Harman, again.

		MR. GARBINI:  This is Robert Garbini.  I'm a former contractor here in
the Washington, DC, area.  I made a comment during the break that I was
very surprised that there was no one here from the insurance industry
testifying.  

		Quite frankly, we worked, as a contractor, worked very closely with
the insurance industry.  There is one thing that is going to make sure
that a contractor is going to do everything possible to reduce the
exposure to liabilities and that is having your insurance company bring
those elements up.  I think if anything the insurance industry ought to
be brought into this whole process as well.  That's my recommendations.

		MS. SEMINARIO:  All right.  And, Mr. Garbini, just to go back to
another item that you raised in your testimony today you spoke about it
was either a manual or guidance, I wasn't quite clear what the
terminology was, of practices that had been developed I think by you and
Georgia Tech in collaboration.  Could you just explain a little bit more
about what that is and what it's being used for?

		MR. GARBINI:  Yes.  Robert Garbini, again.  Our association has an
operations committee.  So it's a compilation of ready mix concrete
representatives from around the country, they work through to develop
this manual on drum cleaning and issued it.  That was kind of a best
practice guideline for ready mix companies.  The work at Georgia Tech I
think was independent, but it also addressed the same kinds of thing. 
So for companies that are doing their own drum cleaning, that's what we
are trying to provide for them.

		MS. SEMINARIO:  And have you provided that to the record?  And if not,
could you?

		MR. GARBINI:  Yes, we will.  We will provide a copy of that document
to you and the Georgia Tech document as well.

		JUDGE PURCELL:  Thank you, Mr. Garbini.

		MS. SEMINARIO:  Thank you all for your testimony.  

		JUDGE PURCELL:  Thanks, Ms. Seminario.  Mr. Schneider, I think, has
a question.

		MR. SCHNEIDER:  Scott Schneider with the Laborers' Health and Safety
Fund.  Do you produce a magazine called "Concrete Producer," is that one
of your magazines or -- no, okay.  I have an article from "Concrete
Producer" about a research project that was done with the Illinois Ready
Mix Concrete Association in the late '90s, with the OSHA consultation
program, where they looked at concrete at chipping the inside of a mixer
drum, and they developed a spray nozzle basically for the concrete
chipping hammer which apparently reduced the exposures by 95 percent. 
Are any of you familiar with this or have you --

		MR. GARBINI:  That's the article I referenced in my testimony.

		JUDGE PURCELL:  That's Robert Garbini responding.

		MR. SCHNEIDER:  Oh, okay.  And is this the article, "Nine Ways to Give
Drum Chippers Nine Lives."

		MR. GARBINI:  I haven't seen that article.  Again, that magazine is
not -- this is Robert Garbini.  That magazine is not ours.

		MR. SCHNEIDER:  Oh, okay.

		MR. GARBINI:  It's probably the same document.

		MR. SCHNEIDER:  It says parts of this modified chipper are probably
sitting around any plant and it tells you how to make it, basically.

		MR. GARBINI:  I'm guessing so.  I haven't seen the article.

		MR. SCHNEIDER:  Okay, okay.  Well, is this being used?  I mean this
came out like 15 years ago, this project was 15 years.  Is anybody using
these modified chipping hammers with spray nozzles?

		MR. GARBINI:  I would be willing to -- I see my staff down there
nodding yes at me, so I'm willing to bet that our operation departmental
safety committee, that word got spread out, so they're probably --
that's the best way to get that kind of safety stuff spread around
through our committee work.  I'm sure it's, you know, just seeing that
nodding head --

		MR. SCHNEIDER:  Okay, yeah.

		MR. GARBINI:  I don't know the extent of it, but once the see
something good like that they will glom onto it.

		JUDGE PURCELL:  And, again, that's Robert Garbini responding.

		MR. SCHNEIDER:  So you think it has been adopted pretty widely?  I
mean this came out 14 years ago.

		MR. GARBINI:  I would say so.  I'm willing to bet it is.

		MS. KRAMER:  Your Honor, if I may?  Allison Kramer.  Mr. Schneider,
I'm sure, based on my colloquy with Ms. Nadeau earlier, you might
imagine that we would love to have a copy of that piece of paper.

		MR. SCHNEIDER:  Why don't I give this to you?

		MS. KRAMER:  That would be great.  

		MR. SCHNEIDER:  Okay.  

		JUDGE PURCELL:  I'm going to mark that as Hearing Exhibit 165 for the
record and that is admitted.

(Whereupon, the document referred to as Hearing 		 Exhibit 165 was
marked and received in evidence.)

		MR. SCHNEIDER:  Okay, thank you very much.

		JUDGE PURCELL:  It's not quite as colorful, but we'll take it.  Any
further questions from the audience?

		MR. MITCHELL:  May I ask a question?

		JUDGE PURCELL:  Can you come up and identify yourself for the record?

		MR. MITCHELL:  I am Steve Mitchell.  I'm with Ashgrow Schmidt Company
(ph.).  This is mostly for Ryan.  Ryan, how much crystalline silica is
typically in portland cement?

		MR. LANGTON:  I think if you would reference material safety data
sheets that are presently available, you know, I'll speak for the one
for Lafarge, my organization.  I think we list somewhere in the
neighborhood of .2 to .3 percent crystalline silica in our finished
cement products.

		MR. MITCHELL:  Do you have any products that have zero or below .1
percent crystalline silica?

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

		MR. MITCHELL:  Do you think -- I know that our company has products
that have less than .1 percent crystalline silica, portland cement, so
probably others have the same thing.  I just want everybody to know it's
not everybody is above .1 percent in the products that they sell.

		One of the other engineering controls, you talked about closed systems
when they offload from a truck into a silo, they blow that off into a
closed system; is that correct?

		MR. LANGTON:  Yes.

		MR. MITCHELL:  And then from there it is pneumatically conveyed or
free-flowed sometimes into a rail car, where it's offloaded out of a
railcar and then it's put in a customer truck.  It's pretty much in a
closed system.  And you have dust collection systems as well that are
required by the Environmental Protection Agency's --

		JUDGE PURCELL:  Mr. Langton, I saw you nodding your head.  If your
answer is affirmative to that, you need to indicate for the record.

		MR. LANGTON:  Yes.  This is Ryan Langton.  Yes, that's true.

		MR. MITCHELL:  So it's not exactly local exhaust ventilation systems
that we're using when we're controlling dust emissions in distribution
terminals.  We're using large dust collectors as well to collect any
fugitive dust during the loading process.

		JUDGE PURCELL:  Sir, if you would please confine your questions to
questions, rather than statements.

		MR. MITCHELL:  Okay.  Is that correct, Ryan?

		MR. LANGTON:  Yes, this is Ryan.  That is correct.

		MR. MITCHELL:  Okay, that's all I want to know.  Thanks.

		MR. GARBINI:  This is Rob Garbini.  I'd just like to comment that the
same procedures apply at ready mix plants when the cement dust is
blowing into the silos.

		JUDGE PURCELL:  Okay, thank you, Mr. Garbini.  Any further questions
from the audience?  Seeing no additional hands, I'll turn it over to
OSHA.

		MR. PERRY:  Yes, sir.  This is Bill Perry.  First, thank each of you
for coming in this afternoon.  I know it's getting late on a Friday and
I appreciate very much your hanging around and providing us with this
very useful testimony.  So thank you for that.  We will start with Patti
Downs.

		MS. DOWNS:  Thank you.  This is Patti Downs.  This first question is
for Mr. Langton.  You mentioned sampling and you provided us copies of
information and the study that you conducted.  Do you know what other
companies have been doing sampling and for how long?

		MR. LANGTON:  This is Ryan Langton.  Yes, you know, I can speak for my
own company, what we have been doing in the area of monitoring employee
exposures to crystalline silica.  I can speak for my previous employer
in the industry that that's a common practice of monitoring employee
exposure.  But beyond that, I may have to defer to Tom just to -- from
a broader PCA membership perspective.

		MR. HARMAN:  Yeah, PCA, we don't collect the exposure sampling data,
but we mentioned the Occupational Health and Safety Committee in our
comment here.  And we meet semi-annually, and that's always a topic of
discussion.  Our larger business parts or cement manufacturing plants
which are regulated by MSHA, and MSHA, as you know, inspects at least
twice a year and they collect these samples.  And our members I believe
generally collect these samples so that they know what their exposure
levels are among employees.  So I feel relatively safe in saying that
the majority of our members, if not all of our members collect this
data.  But we don't collect it from them.

		MS. DOWNS:  So it's safe to assume then that these members have been
collecting data alongside MSHA inspections for the past 30 years or so
since the Mine Act was enacted?

		MR. HARMAN:  Something like that, yeah.

		MS. DOWNS:  Do you have any idea what the general exposures tend to
be?  I mean the stuff that you submitted in the appendix are pretty much
non-detect for silica, respirable silica.  Is that pretty typical of
your results and findings?

		MR. HARMAN:  It's typical of cement terminals, as you have heard.  We
have not analyzed the samples at cement plants, at this point.

		MS. DOWNS:  Okay.  And then I guess based on those sampling exposures,
what do you think your obligations under the proposal are as far as
controlling silica dust and exposure monitoring, implementing controls?

		MR. HARMAN:  As part of our comments originally, we also talked about
some of the other standards within the proposed rule that cover or
overlap, if you will, some of the proposed standards in 1053, items such
as the requirement for personal protective equipment, for respirators to
be used for overexposures, for hazard communication, for example.  So we
believe that an analysis of compliance with those types of standards
would be another good starting point or another consideration in
determining what the overall compliance responsibilities are for cement
terminals.

		MS. DOWNS:  Great, thank you.  I'm going to move onto Mr. Garbini
then.  You stated that the OSHA exposure profile, the data differs
drastically from what the ready mix concrete has collected already.  And
then you talked a little bit about drum chipping.  Are there any other
major differences that you've noticed?

		MR. GARBINI:  This is Robert Garbini again.  The drum chipping is the
major area where any worker would be exposed.  The other areas, I think
the testimony from the Portland Cement Association has already submitted
concerning the transfer of bulk cement into silos which are contained
and have the similar socks and everything else on them, and the air
control standards, those limits actually, just thinking back to some
work that our research foundation did a number of years ago that we can
submit to OSHA.  And I think they were well below any -- they were done
really for air quality, not so much silica exposure, but we can submit
that data as well.  But the drum chipping is the only area that I could
really point to.

		MS. DOWNS:  Okay.

		MR. GARBINI:  Everything else is automated, by the way.

		MS. DOWNS:  Okay.  And so then do you feel that drum chipping, that
should be a completely separate task broken down under the ready mix
concrete section of the economic analysis?

		MR. GARBINI:  I would say that it should be.  I mean we're -- the
limits that are being proposed here, we don't feel are sufficient or
they go way beyond where we believe the current industry, on the ready
mix side, is being exposed, I mean to the worker.  As long as I think
the protection is being taken care of for any drum chipping, whether
it's being done by the ready mix companies, themselves, or by an
independent contractor, I want to make sure and I think all the
producers as well want to make sure that their workers are protected.

		I think one of the best technologies that I mentioned, it was
hydraulic cleaning, which goes right to the whole water thing where
nobody even enters the drum.  An instrument is inserted into the end of
the drum and high-pressure water removes the concrete.  It's a little
more expensive, obviously.

		MS. DOWNS:  So what other sources of exposure do you think are there? 
I know you said the plant is automated.  So you're not seeing any
exposure when you're adding the aggregate into the cement to make the
concrete?

		MR. GARBINI:  The process of manufacturing concrete, you'll have your
cement and your other cementitious materials like fly ash are contained.
 They need to be protected from the water, from rainfall and so forth. 
A lot of the aggregates are also protected.  It all depends on what's
being manufactured.  

		When the concrete is batched, it does come up on conveyor belts.  Some
of those times, those opportunities, the aggregate, whether it's large
aggregate or whatever size it is, is actually watered down in a lot of
cases to keep the dust down.  And you'll see on a ready mix site, water
trucks and everything moving around just because you're getting a lot of
dust as the trucks move around the site.  So they want to keep the dust
down, so you see a lot of watering activity going on.

		So there is every attempt to keep, again using that beneficial water
application, to reduce the exposure for any kind of dust, whether it's
silica dust or just from the road dust.

		MS. DOWNS:  Great, thank you.  And then lastly you had referred to
some sampling percentages.  You said that batch plant operators were
only exposed to 20 percent of the proposed PEL, maintenance operators
were 26 percent, and then material handlers were 32.  I just want to
confirm that you are referring to the general industry PEL of 100 µg?

		MR. GARBINI:  Yes.

		MS. DOWNS:  Okay.  Do you have any idea how many samples those
percentages are based on?

		MR. GARBINI:  I don't.  This is Robert Garbini, again.  I don't right
at this moment, but we can research it and provide that back to the --

		MS. DOWNS:  And then are those percentages the mean of all the samples
taken?

		MR. GARBINI:  I don't have an answer to that, but we'll come back to
you with that.

		MS. DOWNS:  Okay, if you could get that, that would be great.  That's
all the questions I have.

		MR. DAVIS:  Hi, I have a few questions for Mr. Garbini.

		JUDGE PURCELL:  Identify yourself for the record, please.

		MR. DAVIS:  I'm Neil Davis.  And these questions are for Mr. Garbini.
 There are a few items that have been referenced and I think the first
three have been provided already, but Footnote 17 and 18 refer to some
other data in your original testimony.  Could that also be provided for
the record?

		MR. GARBINI:  This is Robert Garbini.  Whatever footnotes that we have
in there, we will provide the data.  I don't know specifically what they
are without looking at that hard copy, but we will, if it's referenced
there.

		MS. KRAMER:  It's referenced in the written comments that you provided
to the record.

		MR. DAVIS:  You noted that you subcontracted -- your members
subcontracted 85 percent of the drum cleaning process.  Are there any
other in the concrete industry --

		JUDGE PURCELL:  Could you pull the microphone --

		MR. DAVIS:  I'm sorry.  Are there any other activities in the concrete
industry that people subcontract out, high exposure processes that
you're aware of?

		MR. GARBINI:  This is Robert Garbini, again.  I think what your
question is in the manufacturing of concrete use and ready mix concrete,
where there could be exposure to silica, I can't think of anything. 
Again, because your manufacturing process is automated, all of your
aggregates, your cement, your cementitious materials are provided into
either the truck, directly, with the driver removed from any exposure,
and is the operator of the plant and the same thing what they call
central mix plant.  Everything is batched into a central mixture.

		MR. DAVIS:  Thank you.  I think this is the reference, 17 and 18,
there is survey data done from 2003 to 2012 showing I guess it was one
of your members that was a big contractor.  Would we be able to get the
raw data on that, not the summary data that you provided, like midpoint
data?

		MR. GARBINI:  This is Robert Garbini, again.  I'm not sure about that
without having a look at the data and get permission from that
particular entity to submit it.

		MR. DAVIS:  Okay.

		MR. GARBINI:  But we can explore that with them.

		MR. DAVIS:  Thank you.  And I believe I just have one question for --
well, I'll let it pass.

		MR. BLICKSILVER:  Bob Blicksilver.  Mr. Harman, Mr. Langton, you
mentioned that concrete distribution terminals would be affected by this
proposed OSHA silica standard.  Are there any other operations that your
organization oversees that would be affected by this proposed rule?

		MR. HARMAN:  Not represented by Portland Cement Association, no.

		MR. BLICKSILVER:  Thank you.  You mentioned some job categories that
could potentially be affected by this rule, bagging, maintenance,
housekeeping, drivers, I think you mentioned.  I wonder if in a
post-hearing comment you could provide us with a sort of profile of the
job categories.  If you could describe these job categories, how they're
affected by respirable crystalline silica and the sorts of controls that
are in place or could be feasibly put in place to protect those workers?

		MR. HARMAN:  Yes, we can address that in post-hearing comments.  And
those are all in the concrete terminals.  All those jobs are in concrete
terminals.

		MR. BLICKSILVER:  Good, thank you.  Mr. Garbini, I think you
mentioned you would be providing the NRMCA ready mix concrete industry
data report to the record, or if you haven't, you will be providing
that?

		MR. GARBINI:  Yes.  This is Robert Garbini.  Yes, we will.

		MR. BLICKSILVER:  Oh, great, okay.  Now with regard to the contracted
drum chipping workers, could you in a post-hearing comment -- I'm
trying to sort out our profile with what you are putting forth as an
estimate of affected workers.  And so if you could please clarify or
identify who these industry groups are involved in drum chipping, even a
NAICS code, if possible.  I'm guessing it's some sort of business
service in general industry.  It doesn't sound like construction work or
am I incorrect in that?

		MR. GARBINI:  This is Robert Garbini, again.  I would not characterize
those kinds of companies as a typical construction worker.  That's a
supplement to the ready mix concrete industry manufacturing side and we
will do that.

		MR. BLICKSILVER:  Thank you.  Also, were you aware that in our profile
we did estimate 44,000 affected employees in your NAICS Code 327320, so
I just wanted to -- again, in a post-hearing comment, if you could look
at the number of workers who will be directly affected.  You refer to
your mixer drivers as apparently affected and yet you say that this work
is contracted out.  So would these mixer drivers actually be subject to
the proposed OSHA standard?

		MR. GARBINI:  This is Robert Garbini, again.  We're actually disputing
the idea that there is that many drivers that are exposed to this.  What
we're suggesting is that, number one, the numbers were wrong in terms of
how many drivers that are in the industry.  But, then also the number of
drivers that are actually employed doing any kind of drum chipping is
erroneous.  So we want to go back and say, look, the drivers -- there
is a larger pool of drivers, but then the number of drivers that are
exposed to it are far less than is being implied.

		MR. BLICKSILVER:  Okay.  

		MR. GARBINI:  And I think the other thing to keep in mind, again, I'll
say it again, through this past recession, so many companies -- a
driver is a very specialized type of individual because you're
delivering a perishable engineering product and so a lot of these guys
are just kept on chipping drums just so they didn't lose them when the
recovery started. 

		But we will come back and clarify those numbers to give you a better
idea of what kind of industries we think are involved, what kind of
companies that are involved in that kind of cleaning, that 85 percent
that we're talking about.

		MR. BLICKSILVER:  Thank you.  My final question, Mr. Garbini, in your
written comments, you mention the URS cost model.  You say that it
assumes 50 percent of the workers currently exposed over the existing
PEL of 100 will remain exposed over the new PEL of 50 µg/m3 after all
engineering controls have been installed.  Do you believe that this
assumption accurately characterizes ready mix concrete?  You were
referencing the URS cost model and this is -- I don't have a page
number in your written comments.

		MR. GARBINI:  Let me make comments after the hearings so I can look
and see specifically what you're referring to.  This is Robert Garbini,
again.

		MR. BLICKSILVER:  Okay.  It's on the page headed by proposal
underestimates actual compliance costs in your written comments.

		MR. GARBINI:  Okay.  We'll come back to that.

		MR. BLICKSILVER:  Thank you.

		MR. PERRY:  Hi, this is Bill Perry.  Just one quick question for
Mr. Langton.  So all of the laboratory results that you got from those
sites were less than limited detection, which I see from your appendix
were all 10 µg/m3 was the reported limit of detection; is that correct?

		MR. LANGTON:  Well, or 10 µg.

		MR. PERRY:  10 µg, that's what I meant, sorry, 10 µg/m3.

		MR. LANGTON:  Yes.  This is Ryan Langton.  In terms of the mass, the
mass of ammolite (ph.) on there.  So it was just expressed as µg, not
as µg/m3.

		MR. PERRY:  Okay, I understand.  Did the laboratory report any kind of
confidence interval or upper confidence limit on what the measurement or
what the mass could have been?  Did you get any statistic from the lab
that gave you a measure of the precision of that?

		MR. HARMAN:  We'll look at the laboratory report and see if there is
one there.  And if it is, we can provide the record.

		MR. PERRY:  Okay, if you could submit that, I would very much
appreciate that.  Thank you.

		JUDGE PURCELL:  That was Thomas Harman responding the last time.

		MR. HARMAN:  Sorry.

		MS. KRAMER:  This is Allison Kramer.  I also only have one quick
question and then we'll let you go.  This is for Mr. Garbini.  In your
written comments, you noted that one of the common and best management
practices at ready mix concrete plants included closed vehicle windows,
and keeping them rolled up, and keeping the air conditioning on or the
heat on, depending.  

		We've had a lot of commenters that have said that having closed cabs
or having closed vehicle windows is inhibited committee.  Clearly, your
members have surmounted this problem.  I was wondering if you could tell
us a little bit how they're doing that.

		MR. GARBINI:  This is Robert Garbini, again.  What they're using is
the Nextel phones, also hand signals up to the operator and back from
the operator down to the closed cab.  And a lot of them use
walkie-talkies, as well.

		MS. KRAMER:  Thank you.

		MR. PERRY:  I think that concludes our questions.  So, Mr. Harman,
Mr. Langton, Mr. Garbini, thank you very much for appearing this
afternoon.

		JUDGE PURCELL:  Thank you, gentleman.  Have a good afternoon and a
good weekend.

		Next on the agenda is Precast/Prestressed Concrete Institute
represented by James Toscas and Sidney Freedman.  All right, I've just
been told that the next group would like to appear as well, and that's
the Interlocking Concrete Pavement Institute represented by Charles
McGrath and Randall Pence.

		MR. TOSCAS:  Mr. Freedman couldn't make it.  He's got family issues.

		JUDGE PURCELL:  Sorry to hear that, Mr. Toscas.  That's with --

		MR. SMITH:  Interlocking Concrete Pavement.

		JUDGE PURCELL:  And the name again?

		MR. SMITH:  David Smith.

		JUDGE PURCELL:  Okay.  Do you all have written testimony that you want
to submit?  And, Mr. Toscas, do you have testimony you want to submit?

		MR. TOSCAS:  We have submitted some already, too.

		JUDGE PURCELL:  Okay, so you don't have anything.

		MR. TOSCAS:  But I'm going to be giving a condensed version of the
written.

		JUDGE PURCELL:  Okay.  Since Precast/Prestressed Concrete is first on
the list, I'm going to go ahead and ask Mr. Toscas to start.

		MR. TOSCAS:  Thank you, Judge Purcell, representatives from OSHA, and
the general public here.  Precast/Prestressed Concrete Institute,
otherwise known as PCI, is pleased to have the opportunity to comment in
these hearings.  PCI was founded in 1954.  We are based in Chicago, and
we are the technical institute for the precast concrete structures
industry, which is the industry that designs, fabricates, and erects
buildings, bridges, and other structures using precast concrete.

		There are nearly 30,000 -- 3,000, excuse me, individual and corporate
members of PCI and about 30,000 people in our industry, comprised of
engineers, academics, architects, government officials, members of
academia, and so on.

		PCI formed a silica committee to consider the proposed rulemaking from
OSHA.  And our testimony that we submitted to OSHA is kind of a
compilation of the ideas and thoughts of that committee.

		In our industry, some fabrication processes potentially expose workers
to crystalline silica and the industry shares OSHA's commitment to a
safe and healthful workplace.  We commend OSHA for its initiative in
raising awareness within the U.S. industry of this potential hazard and
for establishing a permissible exposure limit, or PEL, for crystalline
silica.  And we also note that, at least partly because of efforts in
our industry and other industries to measure and control exposure,
deaths attributed to silicosis in the U.S. have declined by an order of
magnitude since the early 1970s.  And we anticipate that this trend will
continue maybe not as rapidly.

		However, PCI strongly disagrees with OSHA's proposal to make
fundamental changes to an apparently successful effort by significantly
reducing the PEL for crystalline silica.  We agree with and endorse the
position of the American Chemistry Council Crystalline Silica Panel in
this regard.

		Our basic reasons are as follows:  First, we don't feel that OSHA has
properly demonstrated that the present hazard level posed by workplace
crystalline silica exposure is, quote/unquote, significant.  Second,
OSHA's proposed approach to reducing exposure to crystalline silica we
believe is conceptually flawed.  Third, OSHA's proposed approach we
don't believe will significantly reduce worker risk from exposure to
crystalline silica.  And, finally, industry's efforts to comply with
OSHA's proposed rule would likely be costly and would unlikely be
successful.

		Just to go through these four points, first about properly
demonstrating that the present hazard is significant, the U.S. Supreme
Court defined the conditions that must be met in order for OSHA to
reduce the permissible exposure limits in a case, Industrial Union
Department AFL-CIO v. the American Petroleum Institute.  

		In this case, OSHA's action to reduce the permissible airborne
concentration of benzene from 10 parts per million to 1 part per
million, which is a very similar action to the one being proposed in
this situation, was overturned because, in the words of the court
opinion, the record contains no direct evidence showing that a
concentration of, in this case 1 ppm, poses any risk nor that lowering
the limit will increase worker safety.

		OSHA based its decision to lower the standard on its policy of
limiting exposure to carcinogens for which there is no known safe
exposure level, to the lowest level that can feasibly obtained by
industry, again similar to this situation.  The court concludes that
this reasoning is based on a misinterpretation of the Occupational
Safety and Health Act.

		This is kind of tough testimony because we agree with what you are
trying to do, but not the way you're trying to do it.  That's basically
where we're coming from.  

		OSHA's justification for reducing the crystalline silica PEL is based
on an extrapolation using several relative risk models of mortality data
sets for selected worker cohorts.  This is a very indirect method.  The
evaluation of risk was based on a modified extrapolation of in some
cases unrelated data and not on direct evidence.

		OSHA's use of modeling to extrapolate the selected data down to lower
levels of exposure can only be founded on the unstated assumption that
there is no known safe exposure level for crystalline silica, because
you are extrapolating below your data.  Furthermore, OSHA reinforces its
argument to lower the crystalline silica PEL through an exhaustive
analysis purporting to show that exposure levels can be reliably
measured at the proposed lower level. 

		Besides stating and then ignoring the significant uncertainties in
this analysis, making such an argument indicates that the regulatory
philosophy behind the proposed PEL reduction is to reduce exposure to
the lowest level that can feasibly be attained by industry.  These two
branches of the rationale demonstrated in OSHA's justification, in other
words that there is no known safe exposure and that the PEL should be
reduced to the lowest level that can feasibly be attained, are precisely
what the Supreme Court found to be a misinterpretation of the
Occupational Safety and Health Act.

		In short, I guess in a nutshell, it is OSHA's mandate to eliminate
significant workplace hazards.  It is not OSHA's job to reduce workplace
risk to near zero levels.  Where there is no significant hazard, there
is no role for OSHA, according to the actual Act, as we understand it.

		OSHA's evaluation of risk due to crystalline silica exposure was based
on a modeled extrapolation of data that was at least in part not
directly applicable to the U.S. workforce in the first place.  OSHA
applies exhaustive statistical analysis to give the impression of
greater certainty than in fact exists with such a methodology.  

		Absent a more reliable method, such an indirect approach might
arguably be acceptable under the conservative assumptions provision in
the above-cited Supreme Court decision, but there is a more reliable
method.  And that reliable method is that we have proven superior data
for our own workforce that has been collected over the past several four
decades.  

		OSHA has at its disposal not only a superior method, but the best
possible tool which is the actual measured results in the entire
affected population, over 40 years of regulatory controls, at the
present PEL.  These results should clearly be given far more weight than
those of the convoluted approach chosen by OSHA.

		According to the CDC, the annual number of silicosis deaths in 1968
was 1,157, which is 8.91 per million persons above 15 years of age.  By
2002, this had decreased 93 percent to only 148, or .66 per million, a
remarkable decline equivalent to an average annual decrease of 13
percent, although it didn't go down annually but over those years.

		Since 2002, the rate of decline has leveled off.  The most recent data
from NIOSH, which is 2010, shows deaths from silicosis below 100, which
for the 8-year period from 2002 through 2010 would be an equivalent to
an average annual decrease of about 1 percent.

		However, while the decline in silicosis mortality has certainly
slowed, there is no indication that it has stopped; in other words, the
process is still working.  We believe two main factors are responsible
for this major drop, and actually you could call it a very successful
regulatory approach. 

		First, OSHA's actions in the early 1970s transformed the industrial
climate by making industries aware of crystalline silica exposure. 
Number two, by setting clear and practical measurable limits.  And,
number three, by providing support and, as needed, enforcement action to
drive the point home.

		Second, industry responded responsibly with significant improvements
in worker protection from exposure to silica.  This performance is
exactly what we should expect from an effective regulatory program, so
why are we changing it?

		This brings me to Point 2, which is OSHA's proposed approach to
reducing exposure is conceptually flawed.  The basis of OSHA's proposed
approach is essentially to require the employer to create a work
environment whose concentrations of airborne crystalline silica are set
at or below the lower threshold of practical measurement such that
workers in the area do not require protective equipment.  OSHA considers
respiratory protective equipment as a last resort after all possible
engineering controls or work practices have failed to achieve the PEL.  


		There is no precedent or rational basis for such a regulatory
approach, particularly with the availability of protective equipment of
proven effectiveness.  Employees and workers have found personal
protective equipment to be a cost-effective method of limiting silica
exposure.  OSHA discourages using PPE because workers might not wear the
PPE or it might not be properly maintained.  But if an employer is
incapable of maintaining personal protective equipment and properly
training employees in its use, how can that same employer be expected to
install, manage, and maintain the much more complex engineering controls
that OSHA proposes.

		OSHA's own analysis determined that most of the time, engineering and
work practices would not be sufficient to limit silica exposures to a
maximum of 25, the action level µg/m3.  And it proposed an action level
for exposure monitoring one-half of the PEL -- I'm getting lost in my
notes here -- which is below the lower limit of reliable measurement.

		There is another problem we have with this in that you're getting to
the point where actions and accountabilities are being based on levels
whose measurement is difficult.  There is not a consistent laboratory
capability across the country.  And the variability in that measurement
could easily make a huge difference in the outcomes of adversarial
processes with OSHA, between industry and OSHA.

		OSHA states that one of the purposes of requiring expensive monitoring
is to motivate employers to implement controls.  Well, first, that
attitude is kind of insulting to a responsible industry that is
interested in the health of its workers as much as any governmental
agency.  And, second, from the industry's standpoint, it is risky to
invest in expensive equipment and controls with no guarantees that they
will actually do the job and still be accountable for ultimately meeting
a very low PEL.

		Third, if additional controls have been demonstrated to be infeasible
or ineffective, continuing quarterly or semi-annual monitoring would
waste resources that would better be applied to other safety and health
concerns, for example, annual medical surveillance that was mentioned
before.  Finally, this kind of requirement tends to punish the compliant
while not having an effect on the noncompliant.  

		This brings us to the third point that OSHA's proposed approach will
not significantly -- we believe will not significantly reduce worker
risk from exposure to crystalline silica. 

		From OSHA's own data, it would appear that inspection and enforcement
of the current regulation has been sporadic.  Enforcement data from 1997
through 2002, the first 5 years of the SEP for silica, shows that for
the construction industry, 42 percent of the industry was exceeding the
current PEL and 24 percent was exceeding it by a factor of 3 or more. 
That is the construction industry.  The performance is even worse than
for general industry.

		From January 20, '03, to December 2009, the construction industry
showed improved compliance, better than general industry, with 25
percent exceeding the PEL and only 14 percent exceeding it by a factor
of 3 or more.  Those aren't really numbers to be proud of, but they are
improving.

		The persistent levels of noncompliance indicate that there is still
opportunity for reduction of silica-related risk through enforcement. 
Implementation of more stringent PELs and action levels will not affect
already noncompliant workplaces where workers will continue to be
overexposed to silica.  They will only affect compliant firms.  If 30 to
50 percent of the industry can't comply with the current PEL, how is it
feasible that they would suddenly comply with reductions of 50 to 75
percent in PELs and action levels?  

		So the question that must be answered is really how many lives could
be saved and how many cases of silicosis could be prevented by a more
widespread compliance effort under the current PEL.

		Logic dictates that in a market-driven economy to reduce the frequency
of noncompliance, you need to reduce the cost of compliance and/or
increase the cost of noncompliance.  OSHA's approach with the PEL set to
the lower limits of reliable measurement would increase the cost of
compliance, but it wouldn't affect the noncompliant.

		Final point, industry efforts to comply with OSHA's proposed rules are
likely to be costly and unlikely to be successful.  Current methods for
measuring silica concentrations have a reliable minimum detection limit
reliable of 100 µg/m3.  The most advanced labs can do better than this,
but we have to look at what's available typically in the construction
industry are not always the most advanced labs.

		OSHA determined that 50 µg/m3 is the lowest concentration that is
technologically feasible to measure.  And I think maybe it is lower than
that based on some of the testimony I heard before where people come up
with lower numbers.  But at concentrations below about 50, the
measurements are so imprecise as to call into question their validity. 

		The most recent published round of proficiency analytic testing, or
PAT, indicated that for a sample spiked with 113 µg/m3 of silica, the
lab analysis would be within plus or minus 25 percent -- 29 percent, 95
percent of the time.  At 63 µg/m3, the results would be within plus or
minus 32.7 percent, 95 percent of the time.  Neither of these results
meet the NIOSH precision limit of plus or minus 25 percent.  

		I'll get a little bit into the cost, but I have to say our argument is
not based on cost.  It's based on these other factors.  But as far as
cost, in our industry, sandblasters are probably the most common job
that would expose workers to crystalline silica.  And we do sandblasting
in order to create different kinds of finishes on the surface of special
architectural concrete.  

		In some cases, wet sandblasting is not possible because the finish is
being created by visual feedback; in other words, they will sandblast
and then they will look to get a certain graininess that has to match an
architectural sample and, of course, the water would cover that finish
and they wouldn't know how much to sandblast.  So they have to do it dry
in order to get the effect they are looking for.  

		But all these sandblasters participate in a respirator protection
program.  They're required to use Type CE respirators and are properly
trained in both respiratory protection and hazard communication.  They
are required to comply with all the current OSHA requirements.  

		Now, to take a different approach where we would forego the respirator
and create an environment that met the PEL, the initial cost, and this
is guessing because nobody has done it yet, but the initial cost of
compliance would be significant.  Each affected plant would need to
establish a demarcated controlled access area around the sandblasting
activity.  And the extent of such an area has yet to be determined.  I
mean if you took the current extent of area we use for sandblasting and
just covered that, it would be impractical.  So they probably have to
figure out a way to condense the actual area the sandblasters use. 

		But a plant with limited yard space doing outdoor abrasive blasting
would have to enclose the work area with a building or some other kind
of enclosure at an estimated cost of anywhere from $300,000 to $1
million, this is a one-time initial cost, plus maybe about $20,000
associated with dust collection and other operations that go along with
that structure.  Ongoing costs would also be significant.  And we have
kind of enumerated some of those in our attachments to our written
testimony.  

		But, again, as I mentioned, it is not about the cost because to be
honest with you our committee that was looking at this, which had many
producers on it, said we can meet this, it might be expensive, but we
can meet it.  What they were concerned about is that only the good guys
are going to meet it and spend the money.  And their competitor, who is
violating the OSHA requirements, is going to save all that money.  I
mean this is the fairness thing, so this gets us back to the
noncompliance issue.

		When you lower the PEL like you are proposing, the lack of precision
in measurement would make reliable monitoring difficult and compliance
would be unverifiable and, therefore, enforcement would become more
arbitrary.  

		In summary, our industry can and does comply with the existing PEL of
100 µg per meter cubed; however, efforts to achieve consistent
compliance at the proposed PEL of 50 are likely to be costly, but
unlikely to be successful.

		To summarize our recommendations, we feel that the crystalline silica
PEL should remain at 100 with monitoring every 6 months.  We believe
that an employer should be allowed to use at its own discretion any or
all mitigation methods to achieve PEL compliance, including personal
protective equipment with appropriate verification of equipment
condition, worker training, and so on.  

		Engineering controls, a combination of the PPE engineering controls
and work practice measures, rather than being forced to invest in the
engineering solution with no guarantee that you're going to really get
to where you're trying to go.

		We note that technically feasible does not mean economically
practical.  OSHA should clarify that the performance option allows an
employer to reduce or suspend monitoring when it has been determined
that it is infeasible to reduce exposure below the PEL, e.g., you know,
abrasive blasting, tuck pointing, grinding, that kind of thing.  

		But more importantly, OSHA should enhance its enforcement efforts,
concentrating on industries that have posed the greatest risks to
workers, and increase the cost of noncompliance for those who are not
following the rule.  

		The precast concrete structures industry is committed to the health of
its workers and is willing to work with OSHA to achieve real reductions
in worker exposure to silica.  We see the proposed rule as reflecting,
however, an impractical regulatory philosophy which is possibly using
flawed science, but a generally adversarial attitude toward industry,
which we don't think is consistent with the successful record of this
program in the past.

		That ends my testimony and I thank you for the opportunity.

		JUDGE PURCELL:  Thank you, Mr. Toscas.  Up next are Mr. McGrath and
Mr. Pence of ICPI.  They have also been joined by David Smith.  And I'm
sorry, I didn't note Mr. Smith's title.

		MR. PENCE:  His title is Technical Director, Judge.

		JUDGE PURCELL:  Thank you.  Mr. McGrath, I have received a copy of
your testimony, which I have marked as Hearing Exhibit 166 and that is
admitted into the record.

(Whereupon, the document referred to as Hearing 		 Exhibit 166 was
marked and received in evidence.)

		MR. PENCE:  Judge, good afternoon, and thank you very much.  On behalf
of the Interlocking Concrete Pavement Institute, also known as ICPI, we
thank OSHA this day for the opportunity to offer testimony on this
issue.

		My name is Randall Pence.  I am ICPI's Government Relations Counsel. 
And I am joined today with Charles McGrath, ICPI's Executive Director,
and as you mentioned, Judge, Mr. David Smith, Technical Director at
ICPI.  We are glad to have David here today.  We think he will be of
instrumental help answering questions by the audience and by the staff
today.

		ICPI represents small contracting businesses that install interlocking
concrete pavements, also known as ICP, as well as small to large
manufacturers of the same product.  Thousands of concrete paver
installers are small businesses and the proposed ruling will affect
these companies as well in major ways.

		ICPI would like to supplement its written testimony today regarding
the impact of the proposed silica exposure rules on ICPI manufacturers
and installers.  As you will hear in a few moments, ICPI has always
promoted worker safety while manufacturing and installing our products.

		First, we would like to frame the proposed rules in the context of the
benefits that our products provide to users and to our local
communities.  And then I would like to turn the testimony over to
Mr. McGrath at that point.

		But in the video we are about to display, we clearly see the proposed
rules severely impacting what our industry currently offers to
increasing human health beyond ICPI manufacturing and installation.  The
following short video explains these products and those benefits, and we
can discuss further after the video is completed.  Thank you.

		(Video begins.)

		Sometimes, the things we take for granted can have a great impact on
our lives.  Consider rain, for instance, a basic ingredient for all life
on earth.  Now consider our streets and parking lots.  They get us where
we need to go and wait for our return.  Unfortunately, they create storm
water runoff every time it rains.  While this runoff is being carried
away through curbs and culverts and storm drains, it not only carries
with it oil, grease, and other harmful chemicals, it can create flooding
problems from overloaded storm water systems.

		We are essentially seeing the rain falling on those impervious
services and being carried directly to the receiving water bodies.  So,
in effect, what happens is we have greater runoff volumes, greater peak
flow rates, and greater gluten loads entering our surface waters.

		As we, as a society, continue to develop and we see more and more
development, and more and more people, our water resources are going to
become very stressed if we continue to just develop the way that we have
been developing.

		Consider a better way to manage storm water runoff.  Permeable
interlocking concrete pavement has proven successful at reducing annual
runoff by up to 100 percent for parking lots, roadways, and other low
speed driving areas.

		So, in effect, the permeable pavement is doing a much better job of
replicating that natural environment than a typical impervious surface. 
Permeable pavement is going to be a much better environmental option
than using standard asphalt or concrete when you look at it from a storm
water management perspective.

		Permeable interlocking concrete pavement works by using solid concrete
pavers installed on top of an open grated base and sub-base.  This
aggregate base allows water to pass through.  The joints or openings are
filled with an even smaller aggregate, which makes this system 100
percent permeable.  The base and sub-base become a reservoir that not
only filters the water as it runs through the system, it also holds
storm water runoff until it can naturally infiltrate into the aquifer.

		The difference with permeable pavements is that surface is actually a
permeable surface, so it is similar to what you would have in a natural
watershed where you can allow that water to filter through the surface
and eventually infiltrate into the ground.  It will be attenuated and
slowly discharged.

		Because permeable pavement introduces water back into the soil, it can
help communities that rely on ground water for drinking water.  It
offers a variety of advantages to developers, allowing them to reduce or
eliminate retention in detention areas, create more green space, and
maintain predevelopment runoff flows.

		Low impact development is a storm water management and sustainable
site design approach that has a goal of replicating predevelopment,
hydrologic conditions, or achieving a targeted watershed goal through
the use of small-scale distributed green techniques.  Permeable pavement
is a very important part of the low impact development toolbox.  What it
does is allow us to take parking lots, roads, and sidewalks, and make
the surfaces permeable so we can infiltrate or filter the runoff.

		Permeable pavement fits into practically all municipal storm water
management plans.  For example, an older, highly urbanized area may have
almost no drainage capacity remaining in their storm sewers.  Permeable
pavement could help reduce demand for that drainage capacity and
minimize flooding, while it helps municipalities control their storm
water issues created by paved parking lots and low speed driving areas.

		Permeable pavements are an important, low impact development
technique, especially in very highly dense, urban areas.

		Permeable pavement has been at work in thousands of installations
nationwide.  And it is helping people feel good about their environment.
 Permeable interlocking concrete pavement is a simple, commonsense
solution for controlling storm water runoff and its effects.

		Permeable pavements will have a very big part in doing this.  Because
taking care of the environment isn't just up to all of us, it's up to
each of us.

		For more information, visit the Interlocking Concrete Pavement
Institute at icpi.org.

		(Video ends.)

		MR. McGRATH:  As you have just witnessed, our industry is deeply
involved in developing products and systems that reduce runoff and water
pollution.  The products are designed to help state and municipalities
conform to the requirements of the national pollutant discharge
elimination system.  We feel strongly that the proposed OSHA rules and
related cost increases impact our industry's competitive ability to
effectively support national efforts mandated by the EPA, whose mission,
like OSHA's, is to protect human health.

		The proposed rules will erode our industry's ability to support
countless state and local agencies in their efforts to increase the
health benefits we all enjoy from clean drinking water from aquifers,
lakes, and rivers.  Likewise, we are supporting such agencies in
achieving cleaner estuaries and bays that produce seafood.  

		Let's return to Mr. Pence's first point about what our industry does
to promote a safe workplace.  ICPI educates manufacturers and
contractors on workplace safety.  Since 1996, more than 25,000
installers have taken the ICPI concrete paver installer course.  A
portion of the course focuses on safety, providing information on
implementing company safety programs and how to avoid typical
construction hazards.  The course specifically addresses using personal
protective equipment for protection against hazards on job site dust
inhalation.

		We recognize that the proposed rules mean that installers wear
respirators continually during -- due to the nature of ICP construction
and other construction tasks as well.  The un-intending consequence will
be workers not able to instantly shout or hear warnings to fellow
workers to avoid accidents.

		As noted in our written testimony, we ask that OSHA not change the
current PEL and instead help us educate more installers about silicosis
and how to meet the current regulations.  OSHA appears better positioned
to enforce current regulations in support of our industry, and we ask
you to do just that.

		Let's turn to the manufacturing side of our industry.  Paver plants
mix containerized cement, pigments, and aggregates with water, and use
machines to form concrete paving units.  The units harden for 24 hours,
then are inventoried outside the plant for shipment to a job site.  With
regard to plant dust control, practically all manufacturers sweep
factory floors to remove production debris.  

		There are no other viable options to removing debris.  Air pressure
spraying is useless because it increases dust concentrations, pushing it
to other locations.  Spraying likely doesn't reduce respirable silica
concentrations.  

		Almost all plants operate vacuum devices to remove dust from specific
manufacturing processes that generate it.  However, their use depends on
plant design, production demand, and the season.  Local micro climatic
winds are used to reduce dust concentrations as most plants have large
lift doors open to the outside air at least part of the year.  In warm
climates, the doors are open almost all year.  There are locations
within factories where vacuum collection is simply not feasible.  It
cannot be engineered.  Respirators are used by employees in these
places.

		While ICP manufacturers make efforts to control dust, the cost for
compliance to the proposed exposure limits are significantly higher than
OSHA estimates in the rationale for the new rules.  One ICP manufacturer
reported it would cost $150,000 to acquire and install highly efficient
plant vacuum and water dust control systems.  Other manufacturers have
reported similar burdensome costs for compliance to the new proposed
regulations with no assurance that the expense will reduce the
likelihood of workers contracting silicosis.  

		Like with installer education, we would like OSHA to take a supportive
role to help us to educate the people who manufacture our products. 
This would be far more effective than an adversarial role that OSHA
would certainly create by instituting exposure limits that in most cases
are simply impossible to meet.  

		In conclusion, ICPI respectfully submits that the proposed regulations
significantly underestimate productivity losses with related costs while
not specifically quantifying benefits to worker health.  In addition,
the proposed regulations don't recognize the technical infeasibility of
measures required to meet them.  

		We respectfully request that the proposed rules be withdrawn and that
OSHA assist us by fulfilling its mission to protect workers' health by
enforcing existing PELs and assisting us in providing education and
training to the ICP industry.  Thank you for your kind consideration.

		JUDGE PURCELL:  Thank you for your testimony.  Let me ask you,
Mr. Pence or Mr. McGrath, have you all submitted a copy of the video
already into the record?

		MR. PENCE:  I'd address this to the staff.  Do you have that to your
satisfaction?

		MS. KRAMER:  We do, thank you.

		JUDGE PURCELL:  Okay, so no need to make that a separate exhibit. 
With that, I'll open it up to questions.  Ms. Trahan, Ms. Seminario?

		MS. TRAHAN:  Chris Trahan with the Building Trades.  Thank you for
your testimony.  I do have a few questions both for the Interlocking
Concrete Paving Institute, as well as, sorry, PCI.  I'll start with PCI.
 I guess what I'm trying to understand is how your business is broken
up.  And maybe I'll just try to summarize how I understand it and you
can correct me if I'm wrong.

		That you have a manufacturing side and you have an installation side. 
And the manufacturing side takes place in plants and the installation
side takes place on construction sites.

		MR. TOSCAS:  That's correct, so far.

		JUDGE PURCELL:  And, gentlemen, when you respond --

		MR. TOSCAS:  Oh, this is Jim Toscas.

		JUDGE PURCELL:  Thank you, Mr. Toscas.  

		MR. TOSCAS:  Ms. Trahan is correct.

		MS. TRAHAN:  Thank you, Mr. Toscas.  The activities that take place
in the plant from your written comments include creating the precast
units, which a silica-generating task would be to clean the forms, and
sandblasting of those units, and drilling holes within those units to
attach the -- I'm forgetting the word of the things that you hang them
on.

		MR. TOSCAS:  Well, maybe I can --

		MS. TRAHAN:  If you can summarize that and correct me?

		MR. TOSCAS:  Yeah, I can summarize it.  I had mentioned the
sandblasting because that is by far the greatest source of silica
exposure.  However, as with any plant that handles materials that are
scraped, or abraded, or swept, dust is created.  Plants use, in fact,
very commonly use water to mitigate dust, all types of dust.  This work
is done in a -- these plants are very large as far as the open space
within them, so there is not really the kind of confined space issue. 
And the dust levels in the plants are very low.

		However, in the sandblasting, for those types of plants that produce
what we call architectural precast concrete, where there is an extra
premium finish put on it, it could look like brick, or stone, or
anything else, one of the processes used to do this is sandblasting, and
that's where you are generating a lot of silica-containing dust and
that's where we obviously focus our efforts to protect workers more than
any other way.  Otherwise, in the plant, you'll see the typical dust
control measures, you know, people wearing the paper face masks as
they're sweeping the floor.  

		Generally speaking, the cleaning of the forms doesn't generate that
much dust.  It's done by, you know, hand scrapers, like an ice scraper,
and the flakes come off are solid.  They are not usually dusty. 
Sweeping the floor will, some other activities will.  The production of
concrete within the plant is handled in most cases through a complete
automated batch plant so that the process that could generate dust is
removed from workers and usually contained within the machinery that
creates the concrete.

		So these are all pieces of it.  The other thing is the embedments that
you are alluding to are cast into the concrete.  However, there are
times when in the installation side, if you take the concrete components
out to a construction site and there is some issue with interference or
fit-up problem, there could be some field work done which could include
drilling or sawing the concrete to make it fit.  And in that case, you
have that work site issue of the potential for silica dust at the site. 
And then that process is conducted within the, if you will, the control
framework of the contractor that's doing the construction.

		MS. TRAHAN:  I was actually going to try to limit the first part to
the in-plant operations.  And I think you have explained what I guess
are the most exposures on the in-plant side.  Do you have exposure data
for the sandblasting operations or some of your member companies?

		MR. TOSCAS:  I believe some of our member companies have tracked
exposure.  PCI doesn't collect that information from them.

		MS. TRAHAN:  Would it be possible to request that information so you
could provide it to the record?

		MR. TOSCAS:  Yes, what we could do and we will do in response to your
request is to ask, put a bulletin out to our members and ask if they
have data that they have collected that they'd be willing to share with
us, and therefore with you.

		MS. TRAHAN:  Thank you.  You talk about respiratory protection
programs being I place.  Are they in place for people other than the
folks who are doing the abrasive blasting?

		MR. TOSCAS:  No, they are not.  The blasting is typically done out in
the yard, relatively far from the rest of the plant.  They use distance
as a matter of isolating the work area.  The work areas are not usually,
although on a couple of occasions it is done within a building for
several reasons, not just this, but mostly it's out in the yard where
just the distance from the other workers is what isolates them from
exposure.

		MS. TRAHAN:  And for the respiratory protection programs for those
workers who are engaged in abrasive blasting, is medical surveillance
conducted?

		MR. TOSCAS:  Not as a rule, although that could be a question I could
add to my inquiry to see if anybody is actually doing medical
surveillance.  It's certainly not the norm.

		MS. TRAHAN:  And just to add to that, if possible, to provide
information on the actual types of tests such as barometry or chest
x-rays for that population of workers.  If they would provide that to
you, I think it would help.

		You talk about a few other operations in your comments and I am
assuming that most of these are actually happening on the construction
site, because I see it as really two separate operations.  There is the
erection of the precast elements.  

		How often do the precast components have to be modified in the field? 
And I ask that question because some people have told me that in the
ideal situation they don't have to disturb the material once it is on
site and the exposures are minimal.

		MR. TOSCAS:  That's true.  It's not typical for any fit-up work to be
done that involves sawing or drilling concrete in the field.  When that
happens, it is usually because there was an error in the plans.  For
example, there is a pipe coming down and the plans said the hole was
supposed to be here for the pipe and the plant put that hole there, but
the pipe is actually a foot over, so somebody has to drill a hole.  

		It doesn't have to be somebody from our industry that does that work,
but somebody does it.  So from the standpoint of controlling exposure,
there is a human being out there making a hole in a piece of concrete. 
And that's why I said it's usually done under the purview and whatever
controls that the contractor at the site is applying.

		MS. TRAHAN:  As far as the installation side, that would be a
construction activity.  Have you taken a position on Table 1 and the
controls recommended therein?

		MR. TOSCAS:  We have not taken a position on Table 1.  But if you want
us to delve into it more, we will.

		MS. TRAHAN:  Well, I'm just curious if you think the controls that are
identified according to the task, particularly since you're saying that
the tasks done on the construction site are intermittent, if they would
be appropriate and good enough to keep the workers below the PEL.

		MR. TOSCAS:  That's the consensus of our committee, which are not
experts at this, they're just people that run plants, appear to be that
these were doable, I guess that's the best word to do it.  Obviously, to
the extent it involves investing in major equipment or something, you
know, that brings up the other issue I mentioned before about
enforcement.  People don't mind, at least in our industry, we don't mind
spending a lot of money improving operations, especially if it's going
to improve health and safety, as long as we feel that the industry as a
whole is doing it and not just one or two good guys who say, okay, we're
going to do it, and as a result our prices are going to be higher, for
example, than everybody else's.  And then that's where the enforcement
issue comes in.

		So nothing was technologically undoable.  I think the consensus of the
committee was that these requirements could be met.  There was some
question as whether they were necessary, whether they would actually
result in reduced exposure.  And that's the essence of our testimony.

		MS. TRAHAN:  Thank you.  One last thing is you mentioned enforcement
activity on one of your member sites where OSHA came in and including
air sampling.  I was wondering if you could provide details on the
results of that air sampling and what was looked at for the record. 
This was, I believe, an in-plant activity.

		MR. TOSCAS:  If would help if maybe afterwards you can tell me
specifically what you're looking at.

		MS. TRAHAN:  It's on Page 11.

		MR. TOSCAS:  Page 11, okay.

		MS. TRAHAN:  The last paragraph of your --

		MR. TOSCAS:  All right, thanks.  

		MS. TRAHAN:  Thank you.  For the Interlocking Concrete Paving
Institute, you mention on Page 3 of your comments that you conducted a
member survey where you expand upon some of the results you got.  In the
member survey, how many of your members were surveyed?

		MR. McGRATH:  Well, this was actually --

		JUDGE PURCELL:  Please identify yourself for the record.

		MR. McGRATH:  Oh, I'm sorry.  This is Charles McGrath.  This was a
combined survey with the National Concrete Masonry Association, so we
have a lot of similar members, so we did a joint survey, together.

		MS. TRAHAN:  Was that a paper survey, an internet survey?

		MR. McGRATH:  I believe it was an internet survey, but they actually
collected the results of that survey and this was just some of the
comments from that survey.

		MS. TRAHAN:  Do you know anything about the sample size or the
statistics of respondents?

		MR. McGRATH:  No, but I can put that in my comments after.

		MS. TRAHAN:  Yeah, because I was curious like how many of your members
out of a total were asked to respond, the number of responses, and
how -- it helps establish the validity of the information collected. 
And do you have a survey instrument for that survey?  And, if so, is
that something that could be provided to OSHA and any results from that
survey other than the summaries?

		MR. McGRATH:  Well, since it is a joint survey with the National
Concrete Masonry Association, I would have to ask them if it was okay
for us to provide that.  But I would assume that would be fine.

		MS. TRAHAN:  I might have asked them about their survey, I don't
remember.  It's been three weeks.

		MR. McGRATH:  Yeah, they testified on Monday.

		MS. TRAHAN:  That was a long time ago.  And the last question I had
for you is if there was -- you identified, well, it's not the last
question.  

		JUDGE PURCELL:  Are we coming close?

		MS. TRAHAN:  Yeah.  I guess you identify a list of tasks that you
identify as high exposure tasks in your industry.  And what I was
wondering is if you had any exposure data that shows that the exposures
or the exposure profiles would be different from what was identified in
Chapter 4 of the PEA?

		MR. McGRATH:  Well, I don't know what Chapter 4 of the PEA is.  But
there were a number of items that we had identified that aren't in Table
1.  And, really, more our concern is that, you know, those be included
so we know where OSHA stands as to those activities and how we should
properly protect our workers.

		MS. TRAHAN:  Yeah.  I guess when I looked at the tech-feas for the
standard, I looked at the preliminary economic technical feasibility
assessment document, which is called the PEA for all the people in the
room.  And they talked about a lot of the tasks that I think you have
listed here and the feasibility of those tasks.  So I don't know if you
had a chance to review that.

		MR. McGRATH:  No.  No, I haven't.

		MS. TRAHAN:  Do you have any exposure data on those tasks?

		MR. McGRATH:  It's very limited, because most of our contractors are
small, like 10 or less people, so they typically don't have, you know,
an internal or a hygienist monitor them as they go through doing these
tasks.  But it's something that we, you know, we want to do more
research on and educate more of our members and contractors about.

		MS. TRAHAN:  Okay. 

		MR. McGRATH:  But, really, the biggest item is cutting, which has been
talked a lot about.

		MS. TRAHAN:  Yeah, I think that's been pretty well characterized.

		MR. McGRATH:  And, you know, really we have been, you know, pushing
our members to both use water or vacuum-based cutting machines.

		MS. TRAHAN:  Well, actually, that reminds me, what are the -- the
pavers that are cut, what are they made out of?  Concrete?

		MR. McGRATH:  Yes.

		MS. TRAHAN:  Do you know the silica content or a range of content of
the concretes of the pavers?

		MR. McGRATH:  Dave, do you know that?

		MR. SMITH:  It's difficult to answer because the aggregates come from
various places and they may have high or low silica content, and the
cement contents vary as well.  But we do know they have silica in them. 
The silica content is stated in some MSDS sheets or MS -- safety data
sheets by the individual manufacturers.  Some of them do that.

		JUDGE PURCELL:  Gentlemen, again, I'd ask you to identify yourselves
for the record.

		MR. SMITH:  David Smith.

		JUDGE PURCELL:  Thank you.

		MS. TRAHAN:  I just, you know, if there is something that is
significantly different about pavers than about concrete or brick or
block, that might help inform the record, so maybe that's something
that --

		MR. SMITH:  Yeah, just in response to that quickly, I would say it's
very similar to concrete, as to ready mix concrete.  

		MS. TRAHAN:  Okay, thank you very much, I appreciate it.

		JUDGE PURCELL:  Thank you, Ms. Trahan.

		MR. TOSCAS:  Could I add one thing?

		JUDGE PURCELL:  Go ahead.

		MR. TOSCAS:  I forgot one activity we do in the precast concrete plant
that I failed to mention in my list and I wanted to make sure I didn't,
is saw cutting hollow core, which is a long -- produced in a long
continuous --

		JUDGE PURCELL:  Pull the mic a little closer, Mr. Toscas.

		MR. TOSCAS:  And it's wet saw, and it produces virtually no dust, but
it is an activity that I should have mentioned when I listed the
activities.

		MS. TRAHAN:  Okay, thank you very much.

		JUDGE PURCELL:  Ms. Seminario?

		MS. SEMINARIO:  Peg Seminario from the AFL-CIO.  Thank you very much. 
I just actually have a couple of questions because Ms. Trahan covered
most of the territory I was going to.  

		For both the PCI and the Interlocking Concrete Pavement Institute, for
both of your organizations, you have operations that are both the
manufacturing side and the concrete side, is that -- that's correct for
both organizations?

		MR. McGRATH:  Yes, we have both members that are manufacturers and
what we call installers or contractors.

		JUDGE PURCELL:  Identify yourself for the record.

		MR. McGRATH:  Oh, sorry, Charles McGrath from ICPI.

		MS. SEMINARIO:  And, Mr. Toscas, is that --

		MR. TOSCAS:  This is Jim Toscas.  You said the manufacturing and the
concrete side?

		MS. SEMINARIO:  I'm sorry, the manufacturing and the product side, and
then also the installation side.

		MR. TOSCAS:  Right.  And these can be different companies or they can
be the same company.

		MS. SEMINARIO:  That was going to be my next question as to whether or
not they tended to be integrated companies or separate.

		MR. TOSCAS:  Some of our producers, who are the fabricators, also do
erecting.  And others contract their erecting to specialized companies
who do nothing but erect.

		MS. SEMINARIO:  Mr. Toscas, you mentioned in some of the
manufacturing facilities, that they may be large facilities, at least
the square footage.  Any estimates on the size of employment on the
manufacturing side of those facilities, how many workers are typically
involved?

		MR. TOSCAS:  In the U.S. precast plant, you'll have -- I assume you
mean in the plant itself, not the front office.

		MS. SEMINARIO:  Right, the plant itself.

		MR. TOSCAS:  It can range from 12 to 150.  It depends on the size of
the plant and also depends on the level of production activity that's
going on.

		MS. SEMINARIO:  Okay.  Do you know offhand which NAICS code is that
industry in?  I was trying to -- when I was looking at the list of the
covered industries and just trying to figure out where you might sit.

		MR. TOSCAS:  I honestly don't know the answer to that, but we could
try to find out for you.

		MS. SEMINARIO:  I think that would be, you know, that would be
helpful.  And the same question here for the Interlocking Concrete
Pavement Institute, I think, Mr. McGrath, you mentioned that some of
your installers are very small contractors.  The manufacturing side of
the house, so to speak, how big are those operations?  How many
employees?  Would they be similarly sized or would they be larger firms?

		MR. McGRATH:  Again, they vary depending on the manufacturer.  And we
have seen a lot of consolidation in the manufacturing side.  They could
range as far as somebody in the plant at a facility from -- it's very
automated on the concrete paver manufacturing side.  You might have 5 to
10 people in a plant.  But some of the companies might have 3 to 500
people because they have a number of facilities.

		MS. SEMINARIO:  Right.  And do you have any information, any sense in
your industry how many manufacturing facilities there are, actual member
locations?  What's the size of the industry?

		MR. McGRATH:  Yeah, we have -- I might as Jessica.  Yeah, 400
facilities, but that's in both the U.S. and Canada.  Do we know just the
U.S.?  

		JUDGE PURCELL:  You need to say that --

		MS. SEMINARIO:  About 300?

		MR. McGRATH:  Yes, this is Charles McGrath, again.  About 300 in the
U.S.

		MS. SEMINARIO:  Thank you very much.  Are these operations, again,
would they be the same owner/operator for both the manufacturing side
and the installer side, or are they different entities?

		MR. McGRATH:  This is Charles McGrath, again.  I would say 99 percent
are separate companies.

		MS. SEMINARIO:  Okay, that's all the questions I have.  Thank you very
much.

		JUDGE PURCELL:  Thank you, Ms. Seminario.  Ms. Nadeau?

		MS. NADEAU:  Liz Nadeau, N-a-d-e-a-u.  And my organization is the
International Union of Operating Engineers.  There was a comment about
how there would be an erosion of the industry's ability to help states
and agencies producing a safer environment, safer estuaries.  And is
there a formal arrangement?  Is there a cooperative agreement or a
government contract, or is that just something that you have taken upon
yourself, sort of perceiving yourself as helping them?

		MR. McGRATH:  Again, Charles McGrath from ICPI.  There is basically
three permeable pavement systems.  One is made out of asphalt, one is
made out of ready mix concrete, and one is permeable pavers, which are
units that have small rocks between them.  Basically, all three of those
organizations or three of those groups are assisting to create a more
permeable system for pavement.  And that is how we're helping.  

		It is, you know, more and more states are putting in storm water
regulations requiring no more pavement on new developments, that they
have to have permeable systems as part of that.  So it's not a formal,
let's say, regulation or grant, it's just more of an effort that states
are putting forward to have more permeable pavements.

		MR. PENCE:  This is Randall Pence.  Let me supplement that answer with
the fact that EPA also does officially list permeable pavers as a best
management practice on its website.  So it is a part of official policy
on EPA going forward with regard to storm water management and its means
for addressing these issues.

		In addition to that, EPA has an active program underway at this moment
to work with certain municipalities around the country to encourage them
to use permeable pavements for this purpose.

		MS. NADEAU:  The picture that you had up at one point showed a
tremendous amount of rainfall and I was just wondering how much rainfall
it would cause to create that amount of water on the pavement?

		MR. McGRATH:  Again, this is Charles McGrath.  It might be better,
Dave, can you tell her how many inches per hour penetrate permeable
pavement?

		MR. SMITH:  This is Dave Smith -- David Smith.  New installations
usually take in between 300 and 800 inches per hour, so way above any
conceivable rainstorm.  So it's a very, very efficient and effective
system.

		MS. NADEAU:  And how does that compare with the normal materials that
are used on roads in terms of the ability to absorb?

		MR. SMITH:  Almost all rainfall that falls on roads and parking lots
ends up as runoff and 95 percent is typical.

		MS. NADEAU:  And how much rain would there need to be in order for the
95 percent to cause runoff?  How many inches?

		MR. SMITH:  Very little, very little, a fraction of an inch.  It's
usually an eighth to a quarter of an inch of rainfall has to fall and
then the regular impervious surfaces generate runoff.

		MS. NADEAU:  Thank you.

		JUDGE PURCELL:  Thank you, Ms. Nadeau.  Any further questions from
the audience?  I don't see any hands.  I'll turn it over to OSHA.

		MR. PERRY:  Thank you, Your Honor.  This is Bill Perry.  And first of
all, I'd like to thank you all for wrapping up our hearing late on a
Friday.  I really appreciate your patience sitting and waiting for your
turn.  It has been very helpful testimony.  So we'll turn it over to
Patti Downs for a few questions.

		MS. DOWNS:  And given that it's after 6:00 on Friday, I'll try to
limit my 3 pages of questions.

		JUDGE PURCELL:  I know they thank you and I do, too.

		MS. DOWNS:  And this is Patti Downs.  I just want to start with the
ICPI.  Kind of a little housekeeping issue.  You state in your written
comments the following observations suggest improvements and additions
that OSHA should make to Table 1 with specific respect to ICP.  And I'm
not sure if it's the formatting in the table maybe when you submitted it
online and it was converted to Adobe, I couldn't find any changes.  It
appeared that some of the cells had been cut off, but the only
differences I noted were drywall finishing and earth moving with heavy
equipment was omitted.  Is that the way you intended it?

		MR. PENCE:  No.  This is Randall Pence.  We anticipated that when we
saw how it came out.  It is a formatting issue, a technical issue.  ICIP
is participating in the SIC coalition, Construction Industry Safety
coalition, so their updated information that they submitted already is
correct.  Please use that in place of.

		MS. DOWNS:  Okay, all right.  Thank you.  In your written comments,
you also list the 12 activities for setting pavers.  I know Ms. Trahan
touched on a little.  One of those that you list as having a potential
to expose workers to silica dust is excavating.  We had some testimony
earlier, I believe, last week, that excavating isn't always a
significant source of silica exposure, it really depends on the soil
content, how much you disturb it, and how deep you dig.  Can you just
please give me your thoughts on that?

		MR. SMITH:  David Smith, here.  I would concur with your observations.
 When excavation involves rock and certainly with blasting, clearly
there is dust and possible silica exposure.  But generally excavating
does not present a risk.  Perhaps if it is very dry, maybe there is
dust; but, in most cases, the soil is damp beneath the surface of the
earth and there is not much dust.

		MS. DOWNS:  Do you typically have to or do you occasionally have to
blast rock or go that deep in order to place pavers in these drainage
systems?

		MR. SMITH:  Generally, no.

		MS. DOWNS:  Okay.  

		MR. McGRATH:  There is a case when --

		JUDGE PURCELL:  Please identify yourself.

		MR. McGRATH:  I'm sorry, this is Charles McGrath.  There is a case
when we replace let's say a concrete driveway with concrete pavers,
there would be concrete dust from that excavation.

		MS. DOWNS:  Okay.  So just from breaking up whatever existing concrete
there is and removing it?

		MR. McGRATH:  Right.

		MS. DOWNS:  Okay.  In your written comments, you also say that wet
sawing, wet cut sawing has a potential to reduce silica exposure levels
to the current standards, but has yet to be proven to be able to reach
the proposed levels.  And you say the same thing for vacuum saws.  Do
you have data to support this or is this kind of speculation and your
own thoughts?

		MR. SMITH:  We have asked --

		JUDGE PURCELL:  Identify yourself.

		MR. SMITH:  David Smith.  We have asked our contractor members to
provide data.  We got a few data points, not enough to say that we could
reliably say we can meet the new proposed standards or rules.  So we're
not confident based on the limited data we have.

		MS. DOWNS:  And have you guys shared any of that data?  Did you submit
it into the docket at all or can you share it?

		MR. SMITH:  We'd have to ask the people who provided it.

		MS. DOWNS:  Okay.  We also heard earlier through a couple of other
industries that when they add wet cutting to their process, they have
actually had an increase in productivity and that's because they plan
their jobs and do all of their cutting at once.  I know in your written
comments you say that you actually anticipate a 50 percent productivity
penalty -- it must be Friday.  Can you just talk a little bit about
that and do you think it's possible to plan your cuts in advance so you
can take care of them all at the same time and not have to go back and
forth, back and forth, as you say in your comments?

		MR. SMITH:  David Smith here.  The nature of the actual paving that
occurs precludes the ability to cut everything at once.  The pavers are
installed either manually, one at a time, or with machines that pick up
about a square yard in the final laying pattern and place them every 20,
30 seconds.  And so as the paving progresses to the opposite side of the
pavement, that edge of the paving is resolved either cut or uncut just
as it happens.  And so that cutting has to be done at the point of
getting to the edges, if you will, or getting to the ends or edges of
the pavement.

		MS. DOWNS:  Okay.  But you can't figure out in advance if you have X
number of feet, and your pavers are going to take up this many, and you
need a piece that's three or four inches long to finish it?

		MR. SMITH:  No.

		MS. DOWNS:  You don't really know that in advance.

		MR. SMITH:  No.  The reason is the edges which are typically concrete
curbs are never placed exactly.

		MS. DOWNS:  Okay.  Let's see, you also talk a little bit about joint
sand stabilizers and add mixtures that you use.  Can you tell us a
little bit about those, what they typically are, how they work, how you
activate them?

		MR. SMITH:  Yeah, they are generally -- David Smith.  They are
generally polymer substances that are activated with water.  A lot of
them are in the acrylics family.  When I say activated by water, imagine
the pavers being laid out.  The joints are empty.  The joints have this
sand with these polymer substances into them.  They are generally swept
into the joints.  And then a very light spray is put on the surface and
that activates the materials, the polymer materials mixed in with that
sand and causes it to stiffen. 

		The reason why that's done many times is to prevent erosion, say from
downspouts or from concentrated flows.  It also helps mitigate weeds and
ants. 

		MS. DOWNS:  How long does it usually take for that to set up?

		MR. SMITH:  Twenty-four hours.

		MS. DOWNS:  Okay.  Is it possible then to dampen the sand before you
sweep it into the joints?

		MR. SMITH:  No.  What happens is because the polymer materials is --
David Smith, again.  Because the polymer material is sticky, if there is
any of it on the surface of the pavers and it is dampened, it sticks to
the surface of the pagers.  And so one has to, frankly, very painfully
take a wire brush and scrub it off.  Generally, it is put into the
joints, the surface is swept clean, and then dampened.

		MS. DOWNS:  Okay.  And then you also state in your written comments
that it would be difficult to restrict access among trades when you guys
are on work sites.  What types of other workers do you usually have in
your job areas?  I can't imagine you wanting people to walk through
where you have just laid aggregate or just tamped down sand.

		MR. SMITH:  Correct.  Where we see trades, if you will, interfere or
at least come into where we are placing sand and compacting pavers,
which does, particularly if there is sand in the joints, generates dust.
 There is kind of this desire perhaps, maybe beyond desire by other
trades on the site to use the pavement immediately, because unlike ready
mix concrete or asphalt, as soon as it is put down, it's ready to use,
so they want to put their trucks on it, put their materials on it.  They
are envious of it.

		MS. DOWNS:  Great, thank you.  And I just have a couple of questions
for Mr. Toscas and then I'll wrap up my part.  You make a
recommendation in your written comments that OSHA should clarify the
performance option and allow an employer to reduce or suspend monitoring
when it is determined that it is infeasible for them to reduce the
exposure below the PEL and they have an adequate plan for respiratory
protection in place. 

		I'm just curious as to what type of evidence you think would be
appropriate for an employer to show and exactly how you think they
should be exempted from the monitoring?

		MR. TOSCAS:  There would be probably something where they would put a
proposal in and they would have to, on a case by case basis, justify
with appropriate measurements and data, and basically sit down with OSHA
and say, you know, here is what we're proposing for this particular
situation.  Just to make that a possible option is what we're really
asking for.

		MS. DOWNS:  Okay.  So submit some sort of request for a variance or a
waiver?

		MR. TOSCAS:  Well, a variance based on the specifics of a particular
situation versus the one size fits all that says everybody has to fit
into this box.  To accommodate, open up the avenue for innovation and
some new ideas on how to address a problem or to also allow for
those -- we expect here and there, there will be a situation where some
of the technological options may be technically feasible but just
economically would destroy the whole operation.  And to sit down and
say, all right, let's work out a plan that gets us where we're trying to
go, you know, OSHA and the company.  Do you see what I mean?  It's just
we're asking for the flexibility for that as an option.

		MS. DOWNS:  Okay.  So then you're not saying that it should be
something on a permanent basis due to advances in technology, that it
should be revisited to look at maybe future engineer controls and the
possibility of that or --

		MR. TOSCAS:  Well, I think what would happen if we did what I
suggested or what we're suggesting is that as new advances and ideas
came up, they would become approved, if you will, on a certain case
because of, wow, this is great, no one thought of this before, and it
wouldn't take long for other people to catch on.  And then, of course,
OSHA could update its own approach to say this is a new approach that we
now have enough information where we can support it.

		MS. DOWNS:  Okay.  And then my last question, you stated that OSHA
considers respiratory protective equipment as a last resort, after all
possible engineering controls or work practices have failed to achieve
the PEL.  And you say that there is simply no precedent or rational
basis for such a regulatory approach.

		Can you please elaborate on that, especially considering that we have
included the hierarchy of controls in almost every rulemaking?

		MR. TOSCAS:  Well, I guess, okay, I think that the flavor that we got
from the proposed rule was that the impetus would be for technological
solutions that would reduce the entire environment.  You know, actually,
I think it was Mr. Jones was saying attack the problem at it source and
make the work practice clean.  That's great.  And we do this at our
plants, you know, there is good, sound practice.  

		The question is, though, that that's not an OSHA thing anymore.  You
get into environmental.  You're getting into other types of things that
maybe there should be legislation on.  So this is really aimed at, all
right, within the constructive, what OSHA's mission is, what's the
appropriate approach.  And I think what we are reading -- may be
reading between the lines and I apologize if we misread it, was that the
structure of the proposed rule, the way it approached appeared to say
that every technological option should be exhausted before you would
resort, if you will, to respiratory protection.

		And we're saying that there should be a mix that depends on the
situation which could be, there could be technical factors, economic
factors, factors that we sitting here couldn't even anticipate.  But
rather than put a bias in that says that, you know, essentially
respirators are -- I understand what Table 1 is saying, but it seems to
be that, you know, in your words, don't line up with what Table 1 is
saying.  You know the words seem to imply that the regulatory philosophy
is to exhaust all feasible technological aspects prior to, you know, and
then if that fails, look at respiratory protection or some other
personal protection option.

		And if that's a misreading of your philosophy, then accept my
apologies.  But that's the way we read it.  And so the comment was
predicated on that interpretation.

		MS. DOWNS:  Great.  Thank you, gentlemen.

		MR. PERRY:  Neil?

		MR. DAVIS:  Yeah.  Neil Davis.  I just have a couple of questions for
ICPI.  You have these operations listed.  And in the tamping part, is
that a handheld tamper?

		MR. McGRATH:  Typically not.  Typically, we use a compactor.

		JUDGE PURCELL:  Identify yourself for the record.

		MR. McGRATH:  I'm sorry.  Charles McGrath from ICPI.  Typically, we
use a compactor.  And on the edges, we'll use a tamper.

		MR. DAVIS:  Okay.  Is that handheld or is it a vehicle?

		MR. McGRATH:  Sometimes, they're like a jack that goes along the edge
when you can't use a larger compactor.

		MR. DAVIS:  So you were describing the operations and some were small
scale and done without vehicle, and some are large scale and done with
vehicles.

		MR. McGRATH:  Yeah, again, Charles McGrath.  Seventy-eight percent of
our industry is residential, so that means patios, driveways, walkways. 
Typically, that's not done using mechanical equipment, because that's
usually for large jobs like ports and parking lots, and those type
things.

		MR. DAVIS:  Thank you.

		MR. BLICKSILVER:  Bob Blicksilver.  Just one question, maybe a
follow-up for ICPI, please.  On Page 11 of your written testimony, and
also I think you mentioned it in your oral testimony that one ICP
manufacturer reported it could cost $150,000 to acquire and install
highly efficient vacuum and water dust control systems.  Would that type
of system be typical of your manufacturers?  Where would you place that
in the ranges of costs that you received in response to your survey?

		MR. McGRATH:  I refer to Dave.

		MR. SMITH:  I would place that in the midrange.  We have asked,
through survey and just personal communications, some of our
manufacturing members what kinds of costs would they be looking at on a
per plant basis to put in more vacuum controls, more dust controls.  And
the 150, the 150,000 is a midrange.  I do recall hearing numbers larger.
 And, of course, several of our members I would say, you know, a
majority of our members have more than one plant manufacturing concrete
pavers.  So that would be multiplied.

		JUDGE PURCELL:  For the record, that's David Smith.

		MR. SMITH:  Yes, David Smith.

		MR. BLICKSILVER:  Okay.  So you would say that this -- does this
actually represent the incremental cost associated with complying with
OSHA's proposed rule?  That's really what I'm wondering.  Or is this an
overall cost for dust control in these manufacturing plants?

		MR. SMITH:  The latter.

		MR. BLICKSILVER:  Okay.  You indicated -- a final question or
request, you indicted that you were going to review the record and
update your preliminary data.  I'd request that you return to us or
submit into the record median values.  You mentioned you believe it's a
midpoint.  If you could please check the range of estimates that you
received, and if there is any follow-up work as well on the survey data
for post-hearing comments, provide median values for us, again
incremental to what they are currently doing, incremental in relation to
the OSHA proposed rule.

		MR. SMITH:  Yes, we can do that.  Again, as Charles McGrath said, the
survey was done in conjunction with NCMA, so we'll check with them and
hopefully we can get data back to you that's meaningful.

		MR. BLICKSILVER:  Sure, thank you.  That's all.

		MR. PERRY:  This is Bill Perry.  I just have a question or two. 
Mr. Toscas, I just want to clarify, your remarks both in your written
submission and your oral testimony here regarding the science behind
OSHA's proposal, that is the health science, our assessment of risk, and
the basis for our proposed PEL, is that pretty much derived from the
position of the ACC, American Chemistry Council, or did your
organization do any independent --

		MR. TOSCAS:  That's just from reading the impact document, how the
studies were described there.  And the way we interpreted that was that
data from several other studies that were generally related but not
specific to this type of industry, including from Japan and elsewhere,
were modeled and there was an extrapolation in a downward direction from
where the actual data for the studies existed.  And modeling, of course,
is, you know, hard as much as science, and there is nothing wrong with
extrapolating downward, but it carries with it, and if, again, if that's
not what you did, then what I'm about to say doesn't apply.  

		But when you extrapolate downward from the actual data, you are
carrying with it some assumptions, one of which is that the model holds
at lower levels when there is no information.  A lot of times, the human
body's response to certain insults asymptotically decreases, not
linearly, when it gets to low levels.  

		And then implicit in that is that there is no safe limit.  And that's
okay.  That's not an invalid regulatory position.  But it has
consequences and when you, you know, now if we're wrong about that,
because we're not experts.  You know, we're experts at making concrete,
not at studying epidemiology.  

		MR. PERRY:  I just wanted to clarify whether the, you know, your
association actually looked at what we did and did an assessment.  It
sounds like --

		MR. TOSCAS:  No, we didn't do an assessment, for example, to retain
somebody that's a professional in this area to examine it.  This is our
impression from the description that was given.  And if --

		MR. PERRY:  Okay, very good.

		MR. TOSCAS:  So take it at face value.

		MR. PERRY:  All right.  That's helpful.  I appreciate that.

		JUDGE PURCELL:  Try not to talk over each other.

		MR. PERRY:  And then I think on Page 5, you kind of touched on this I
think.  Going back to your sandblasting operation, because in your
written statement, you are saying that our proposal would essentially
require you to enclose the sandblasting operation in a building in order
to I guess prevent other employees from being exposed to dust generated
in that operation.  

		But then a little while ago I heard that, in fact, your members do use
distance as a means of preventing bystander exposure.  And so in essence
you do operate or they do operate kind of a controlled access area.

		MR. TOSCAS:  That statement in the written testimony, and I think I
orally repeated it, was that in a smaller plant, which is more tightly
configured, that would be the case.  In a large plant where you have
acres of space, it would be very easy to put the sandblasting operation
farther out where that would not be an issue.  Now it could be an
environment issue.  That's a whole different animal. 

		MR. PERRY:  Right.  Well, what's the practice of the smaller plants
now to minimize exposure of other workers when there is blasting
operations going on?

		MR. TOSCAS:  Well, that's an interesting thing.  Generally speaking,
they avoid working anywhere near that area.  Even if people had been
working there, they leave while sandblasting is going on.  So they
schedule it at a time when the only people there are the ones that are
directly involved in the process.  And it's not the most desirable
situation, but that's what they have to do because they don't have
anywhere else to place the operation.

		MR. PERRY:  Okay, that's --

		MR. TOSCAS:  Even building -- I saw one plant that was so small that
even if they had built a confinement structure, that same area was used
for other things when they weren't sandblasting, because they didn't
sandblast that often.

		MR. PERRY:  Sure.

		MR. TOSCAS:  Okay.  So when they had a project where they needed to
sandblast, they scheduled it maybe late in the afternoon, everybody left
and they sandblasted.  And then they put it away and they went back and
used that same area for something else.  So that's not a common thing. 
Most plants are big enough to handle the distance issue.

		MR. PERRY:  Okay, very good.  I appreciate that.  That really helps. 
That's all that I have.

		MS. KRAMER:  This is Allison Kramer with the Office of the Solicitor. 
You may be relieved to know that I have narrowed down my questions to
one topic.

		UNIDENTIFIED SPEAKER:  But how many pages?

		MS. KRAMER:  One, now.  This is for the Interlocking Concrete Pavement
Institute.  I believe you mentioned earlier that you have some Canadian
members, perhaps a number of them.  Do you know if any of those members
have plants or facilities in British Columbia?

		MR. McGRATH:  Yes, we do.

		JUDGE PURCELL:  Identify yourself.

		MR. McGRATH:  I'm sorry, Charles McGrath.  Yes, we do.

		MS. KRAMER:  Do you know whether those companies are having any
difficulty meeting British Columbia's occupational exposure limits for
crystalline silica?

		MR. McGRATH:  I can't answer that question.  I don't know the answer
to that question, I should say.

		MS. KRAMER:  Would you mind looking into that and if you find out an
answer, submitting that to our post-hearing comments?

		MR. PENCE:  Randall Pence.  Is it affecting construction or general
industry, or both in British Columbia?  What are we looking for?

		MS. KRAMER:  We believe it's both.

		MR. PENCE:  You believe it's both?

		MS. KRAMER:  We do.

		MR. PENCE:  Okay, thank you.

		MS. KRAMER:  And, gentlemen, that is my last question. 

		JUDGE PURCELL:  And just for the record, I'm not sure either
Mr. McGrath or Mr. Pence said they would submit that information.

		MR. McGRATH:  Well, we will check with them.  You know, I don't know
if there is any data, that's really the question.  But I will check with
our British Columbia members.

		JUDGE PURCELL:  Okay, thank you very much, Mr. McGrath.  That
concludes the testimony of the scheduled witnesses this afternoon.  I
appreciate all your patience and your effort in preparing for the
hearing.

		I'd like to remind participants who filed notices of intent to appear
that they may submit additional evidence and data relevant to the
proceeding within 45 days of today, which will be Monday, May 19th.  At
that point, the record will close for the receipt of information and
data, but will remain open for an additional 45 days, until Thursday,
July 3rd, for the submission of final briefs, arguments, and summations.

		Early next week, OSHA will send out information to hearing
participants explaining how to file post-hearing submissions.  The
Agency will also publish some post-hearing submission instructions on
its website at   HYPERLINK "http://www.osha.gov/silica" 
www.osha.gov/silica .

		This public hearing on the proposed rule on occupational exposure to
respirable crystalline silica is concluded.  Let the record show that
all persons and organizations who filed timely notices of intent to
appear have been extended the opportunity to do so.  Let the record also
show that in every instance following the prescription of oral -- I'm
sorry, the presentation of oral comments and testimony, an opportunity
has been extended for questioning of the witnesses by public hearing
attendees and members of OSHA's panel.

		On behalf of the Department of Labor, I wish to publicly thank all
these people who gave their time and thought, and expended their own
funds to attend and contribute to this hearing.  

		Further, I want the record to reflect the department's appreciation
for the promptness, preparation, and attention exhibited by the OSHA
panel.

		To all participants, thank you for your interest in this important
matter.

		MR. PERRY:  Your Honor, if I may? 

		JUDGE PURCELL:  You may.

		MR. PERRY:  Late breaking news, I'm terribly sorry.  Assistant
Secretary Michaels has asked me to just pass on a message actually to
all the participants of this proceeding, even though most of them I know
are not here right now, but they will read it in the transcript.  But he
very much appreciates and thanks everybody who spent time with us the
last three weeks giving their testimony, answering questions, and
debating some of these issues back and forth.  We learned a great deal
over the last three weeks that we would not have been able to learn any
other way.  

		So Dr. Michaels just wanted everybody know that and know how much the
Agency appreciates and values the input from all the participants.  So
thank you.

		JUDGE PURCELL:  Thank you, Mr. Perry.  And with that, the hearing is
adjourned.

		(Whereupon, at 6:36 p.m., the hearing was closed.)

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 4, 2014

Washington, D.C. 

were held as herein appears, and that this is the original transcription
thereof for the files of the United States Department of Labor,
Occupational Safety & Health Administration.

			      						         					____________________________

			         	ED SCHWEITZER

			         	Official Reporter

		

_________________________

		Continued

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