their contract, even the basic contract itself, nor have we seen their
memoranda or reports on various aspects.

		We've not seen even an attempt to analyze or release OSHA's current
exposure data.  OSHA has about five to seven years' worth of exposure
data that they collected, both at regulated sites and at -- with their
own inspectors, that should be released for public analysis and review.

		We have not seen lab performance review, that surprised me as I was
sitting here the other day, and one of OSHA's personnel testified that
they had a new lab performance review study.  Why wasn't that given to
the public, and why wasn't it made available for these rulemaking
hearings?  It's perplexing.

		We have been prohibited as members of the regulated community from
meaningful questioning of witnesses and limited to time, very limited
amounts of time, while the OSHA panel is asking unlimited number of
questions for unlimited amounts of time.  We object.

		The same for NIOSH, we were prohibited from asking important questions
for NIOSH witnesses and stopped.  We have had a very difficult time
trying to get the information that would be useful for a fair record to
be made in this proceeding.

		We object to a number of the analyses.  The hydraulic fracking
industry analysis procedurally is flawed.  It was added at the last
minute, and there was no SBREFA review, and it is extraordinarily
flawed.

		Let me just see if I have this slide to show you what Dr. Gerhard
Knutson was talking about.  This is the worksite that OSHA used to
compare to the American hydraulic fracking industry to determine
potentially feasible engineering controls.  And another worksite with
similar conditions.

		This is not acceptable in rulemaking in the United States to draw
feasibility conclusions from these types of conditions.  We just don't
look at primitive worksites and say it's feasible from their use of a
control to our use of a mechanized mechanical system.  It doesn't work.
And I wanted to show that to you as an example of some of these concerns
we have that are procedural concerns.  It's not only that the analysis
is wrong, it's that the analysis is procedurally flawed.  Right.  It's
both.

		We object that OSHA continually relies on the ACGIH, a non-consensus
group, by admission of their own.  I was glad to have Dr. Mirer here to
confirm that the current assistant secretary and Dr. Mirer and I sat on
a panel together when Dr. Mirer and the assistant secretary endorsed
the ACGIH TLV, predetermining the end result of this rulemaking.  And
this use is a problem.  The use of the ACGIH TLV by this agency is a
problem, because you're supposed to use consensus standards, not
non-consensus standards.  This is a procedural flaw as well as a
substantive flaw.

		We object that the Judge's description of loaded questions, that the
OSHA panel's been asking them nonstop and using the questioning for
testimony.

		JUDGE SOLOMON:  Did you object?

		MR. CHAJET:  I did, Your Honor, and I object again.

		JUDGE SOLOMON:  Yeah, I don't think you did, but that's okay.  Go
ahead.

		MR. CHAJET:  We have serious concerns about this rulemaking being
rushed, being pushed through in order to allow a decision before the end
of the administration, as opposed to having a rulemaking that really
seeks a proper answer for the question:  Is this rule justified?  Is it
based on a significant risk?  Does it produce significant benefits?
Does it produce technologically and economically feasible results?
These are substantive questions that have been raised over the last few
days of testimony.

		The CDC numbers were not properly analyzed.  There was no study done
by OSHA of the data.  They could have sought first date of employment.
They could have sought length of exposure.  They could have sought
industry relationship to those data.  None of that was done.

		The current 100 µg PEL has been demonstrated by a number of witnesses
to be protective with a threshold above that.  There has been no
substantive demonstration by OSHA with direct evidence that these --
this information is rebuttable.  Instead, the CDC number is attempted to
be shot down with an analysis that is all hypothetical and no direct
real evidence.  So we have a concern about that analysis.

		We are concerned about exposure assessment from the first exposure
assessment in the field, where you heard that OSHA's own performance in
their laboratory can produce results that range from 55 percent to 165
percent of the true value.  These are not our numbers.  These are the
round-robin numbers that OSHA participates in.  They're in the comments.
 We'd like OSHA to release all of its round-robin results for all of the
public to be able to review them.  They are far from accurate, and yet
accuracy is assumed in all of the exposure assessments and risk
assessments.

		We don't think OSHA can take a sample at 25 or 50 and produce an
accurate result.  You heard the testimony of some of the leading
laboratory personnel in the United States that you can't get there.  If
you can't have a feasible analysis, you can't have a feasible rule.

		What really is taking place here is that OSHA is converting a
compliance problem -- they have 30 percent or more of their samples
above the 100 µg PEL, and they're converting a compliance problem into
a reason to regulate.  Right.  There's no demonstration whatsoever that
any new regulation is going to solve the compliance problem.  There's
not even an analysis of that question.

		So all of us, I invite us all to go down to the construction sites
that are within 10 blocks of this office and to look at them and see the
real world in play and see what OSHA's going to do to solve any issues
in that real world, as opposed to theoretically demonstrating or trying
to demonstrate that there is a problem with the PEL.  It's not.  It's a
compliance problem.

		Dr. Borak showed you the latency of this disease.  If there's any risk
remaining, if there's any new cases occurring, it's cases with very high
exposures with very long time frame exposures.  There's no evidence that
has been shown that that 100 level is not protective.

		The definition of crystalline silica is another problem that I'm going
to stop on when I'm done.  But this definition is not a definition of a
crystalline silica rule, and that's part of the problem here.  OSHA's
not regulating crystalline silica.  OSHA's regulating any dust that gets
into one of these approved samplers as long as the sampler is designed
to collect a certain type of dust.  And then you take it to the lab,
where the ability to detect crystalline silica is interfered with by a
variety of other minerals that are in the same location as the
crystalline silica, and you can't for sure identify it unless you take
certain steps that OSHA doesn't take, like analyzing a bulk sample.

		And you don't define the regulated substance, so what you're really
doing is you're regulating something else.  Perhaps OSHA wants to do a
regulation on particulates not otherwise regulated, for which the
current exposure limit is 15 mg of total and 5 mg of respirable.  But
that's not what this rulemaking has done, but that's what it really does
because of the definition and their inability to measure.  And we would
suggest that OSHA needs to start over again if they want to regulate
this other material.

		They also don't tweak out the effects of those other dust materials on
health, and they combine all those effects and say it's crystalline
silica.  But their studies repeatedly show, as does their own language
in their analysis, that they can't tweak out the effects of the other
materials or of smoking.

		So we have a serious problem with this rulemaking because it's not a
crystalline silica rulemaking, although that's what it was intended to
be and that's what it started off as.

		So I say to you that this rulemaking needs to be looked at carefully
so that we can really achieve benefits if there's a new rule.  And some
of the best benefits that can be achieved in this process is to find a
way to address the 30 percent overexposures that OSHA has quantified,
and to find a way to provide practical easy solutions where there are
overexposures, like respirators and air helmets.

		So join me.  We'll go out and look at one of these sites that's close
by here, or maybe OSHA wants to, to compare the real world to the world
that they hypothesize, which doesn't exist.  And that's the conclusion
of my remarks of trying to summarize the supporting testimony that
you've heard for the last few days from our expert witnesses.  Thank
you.

		JUDGE SOLOMON:  Okay.  Ms. Kramer, do you want to comment on the
objection?

		MS. KRAMER:  No, Your Honor.  I think we're okay.

		JUDGE SOLOMON:  Okay.  Let me just state that's not really a legal
objection.  Historically in the law there was something called the
general demurrer, and that's pretty much what you just heard.

		Rulemaking is governed under 5 U.S.C. Subsection 503, and it's also
part of the Administrative Procedure Act.  And in this case, the rules
were amended -- besides our rules from the Department of Labor, they
were amended at 29 C.F.R. Subparts 1910, 1915, and 1926, and they were
entered into the Federal Register.

		So normally in cases that involve me, if there's an objection, I would
have to rule on the objection, and I could kick out some of the
evidence, but under these rules we can't do that.  There is no mechanism
to do that because this is just rulemaking.

		So there are amendments and agreements to the -- to how the evidence
would be elicited, and I understand that you've made this statement, but
there is another two weeks of rulemaking hearings that are going to take
place, so all the evidence isn't in yet.  I understand that you're going
to reduce all this to writing; is that right?

		MR. CHAJET:  Yes, Your Honor.  And we would welcome the opportunity to
ask more questions of the OSHA panel and the NIOSH panel.  If --

		JUDGE SOLOMON:  There is a mechanism.  I don't want to give you any
unsolicited advice, but there is a mechanism, and I am not empowered to
make a ruling one way or the other.  I believe I told you that before.
Because of the amendment to the rules, the Assistant Secretary, who is
Dr. Michaels, probably has the authority, but I am not empowered in any
way, manner, shape or form to render any advice on either side of this
issue.

		So do you have any -- are you going to give us some exhibits, I take
it?

		MR. CHAJET:  Well, you have this exhibit, Your Honor.

		JUDGE SOLOMON:  Okay.

		MR. CHAJET:  Which -- already.

		JUDGE SOLOMON:  Ms. Kramer, you have -- do you have copies of all of
this?

		MR. CHAJET:  And you have the vials with the amount of silica in them.
 And --

		JUDGE SOLOMON:  And you have the demonstrative evidence that you
brought.  You have the helmet --

		MR. CHAJET:  And we will bring you a photograph of that.

		JUDGE SOLOMON:  Unless you want to give us the helmet?

		MR. CHAJET:  No, Your Honor.  You know, one of the things that OSHA
could do is encourage their use, bring the price down and spread them
around, and provide them to workforces or even the small dust masks
would be a good thing to give to employees as OSHA drives around town
and sees potential exposures.  Those kind of things might be real
effective in bringing down exposures.

		But this exhibit, and I thank you for reminding me, shows exactly what
one of our issues is.  This Agency wants to regulate this much dust, the
amount shown in that little teaspoon, in a room 30 by 20 by 15.  Right.
You can't measure it accurately.  It's covered all over the Earth, beach
sand and everywhere else, and it's used in hundreds of millions of tons
of material.  So you've got a very significant problem in terms of
trying to get to where the Agency wants to go.

		JUDGE SOLOMON:  So let me --

		MR. CHAJET:  And maybe they need to look at a new way to do this.

		JUDGE SOLOMON:  So let me just say that it's up to you how you want to
present your evidence.  Your statements -- you are a lawyer, and your
statements are partly testimony and partly argument.

		MR. CHAJET:  I would consider them all argument, Your Honor.

		JUDGE SOLOMON:  It's all argument, okay.  So there's no responsive
pleadings.  There's none of that here, so --

		MR. CHAJET:  No, I was just, I was just trying to summarize.

		JUDGE SOLOMON:  Is there anything else before we let the public ask a
few questions?

		MS. KRAMER:  Your Honor, I'd like to go ahead and mark the
PowerPoints.  Dr. Sabry's PowerPoint could be marked as Exhibit Number
35, Hearing Exhibit Number 35, and Mr. Chajet's PowerPoint could be
marked as Hearing Exhibit Number 36, and admitted, if that's all right
with you?

		MR. CHAJET:  I have no objection.

		JUDGE SOLOMON:  Okay.  So 35 and 36 are hereby admitted into evidence.

(Whereupon, the documents referred to as Hearing Exhibits 35 and 36 were
marked and received in evidence.)

		MS. KRAMER:  And I'd like to reserve Hearing Exhibit Number 37 for the
picture of the air helmet.

		JUDGE SOLOMON:  Right.  There's more than one way to do that.  I mean,
I get cases where we have like heavy machinery, you know.

		MR. CHAJET:  I could send you some documentation on a few of them.

		JUDGE SOLOMON:  The long wall from, let's say, mining or something,
we're not going to put the whole thing in, so -- okay.

		All right.  So how many people are going to ask questions?  We have
lots of people.  So let's start at the first -- this is the lowest row
here.  If you'll come around, please, and stand behind the microphone.
Okay, the gentleman with the computer is with the lowest row.

		MR. GLUCKSMAN:  Lowest rung?

		JUDGE SOLOMON:  Right.  You have somebody tailing you, so -- state
your name for the record.

		MR. GLUCKSMAN:  Dan Glucksman.

		JUDGE SOLOMON:  And who do you represent?

		MR. GLUCKSMAN:  The International Safety Equipment Association.  And
the last name is

G-l-u-c-k-s-m-a-n.

		JUDGE SOLOMON:  Okay, go ahead.

		MR. GLUCKSMAN:  And a quick question, or clarification for Greg.

		MR. SIRIANNI:  Sure.

		MR. GLUCKSMAN:  You were talking about the way the PAPRs, powered
air-purifying respirators, are tested.  But I wanted to make clear that
it's the manufacturer of the device that tests it for the APF of 1,000,
not the employer that's purchasing them.

		MR. SIRIANNI:  Right.

		MR. GLUCKSMAN:  And so that if an employer does want a powered
air-purifying respirator with an APF of 1,000, they just need to ask the
supplier to provide that --

		MR. SIRIANNI:  Sure.  And they are available.

		MR. GLUCKSMAN:  Yeah.

		MR. SIRIANNI:  You know, they are available at 1,000, too.  There are
some of these that have bibs or other things right out of the box that
you can be provided with something that attains those levels
specifically as tested.

		MR. GLUCKSMAN:  Yeah.

		MR. SIRIANNI:  And then there's others that, you know, like the one
here, all the recent research indicates that they are attaining those
levels.

		MR. GLUCKSMAN:  And just the employer would have to ask the
distributor or manufacturer for that documentation and then they're good
to go.

		MR. SIRIANNI:  And it might not be specific to their workforce.

		MR. GLUCKSMAN:  Right.

		MR. SIRIANNI:  I mean, you can go in and do something that's specific.
 So, I mean, that's why I really want to emphasize the fact that, you
know, OSHA should look at these things not as a typical sort of
hierarchy of control but actually look at these as more of an
engineering control because they have come so far.

		MR. GLUCKSMAN:  And there are a number of suppliers that provide PAPRs
with APFs above 1,000.  It's not just --

		MR. SIRIANNI:  Yes.

		MR. GLUCKSMAN:  Okay.

		And, finally, Judge, one thing for you.  I would ask that the clock
for post-hearing comments start ticking after the transcript is actually
publicly available in   HYPERLINK "http://www.regulations.gov/"
regulations.gov .

		JUDGE SOLOMON:  I don't believe that I am actually empowered to make
that determination; however, I will pass that on.

		Does the Solicitor have any comments as to that issue?

		MS. KRAMER:  We will, of course, take your comment into consideration.

		MR. GLUCKSMAN:  Well, there's a little bit of a precedent in the
walking and working surfaces rules, subparts (d) and (i).  The
precise -- pardon?

		UNIDENTIFIED SPEAKER:  This is --

		MR. GLUCKSMAN:  Oh, well, I was just going to say there was another
judge that allowed that to happen.  I forget the judge's name, but --

		JUDGE SOLOMON:  These rules are -- the rules that we're operating
under were just amended for this proceeding.  And so, I can give you the
actual --

		MR. GLUCKSMAN:  You know, I don't think I need it.  But I would ask
OSHA and others that are empowered here to let the clock tick once --

		JUDGE SOLOMON:  These were filed on October 30th, 2013.

		MR. GLUCKSMAN:  Excellent.  Thank you.

		JUDGE SOLOMON:  You have to spell your last name.

		MR. HEARL:  I know, Your Honor.  Thank you.  I'm Frank Hearl,
H-e-a-r-l, and I'm with NIOSH, and I work here in Washington, D.C.

		And I have a question for Dr. Sabry concerning the data that you
analyzed from NIOSH on the fracking.  And one of the lines you had
there, you indicated that the ancillary workers had an exposure 95
percent confidence interval between 20 and 8,888.  And if you'll forgive
me a little bit of mathematical gyrations here, I want to take a look at
that.  Because if you divide the 20 into 8,888, that means the range is
by factor of 444.

		DR. SABRY:  Right.  You have -- there is --that's a direct --
first, this is a direct result of two things:  one, the size of the
sample, the six observations.

		MR. HEARL:  Right.

		DR. SABRY:  And that's a -- as you well know, this is by any
statistical measure not a reliable size for a sample.  And the second
is, because of the variability of the values of the individual
observations.  And I used -- happy to share with you the Cox confidence
interval formula that I used.

		MR. HEARL:  Oh, sure.

		DR. SABRY:  It's a lognormal formula.

		MR. HEARL:  Well, I assumed it was lognormal.

		DR. SABRY:  Yeah.

		MR. HEARL:  And I know that the usual range is basically 2 times the
standard deviation to get you the 95 percent confidence on each side.

		DR. SABRY:  That is if you're assuming a normal --

		MR. HEARL:  Correct.

		DR. SABRY:  -- but this is not a normal distribution.

		MR. HEARL:  This is lognormal.

		DR. SABRY:  Yes, it is.

		MR. HEARL:  So it's a multiplier?

		DR. SABRY:  Yes.

		MR. HEARL:  Right.  So --

		DR. SABRY:  So, I'm happy -- as I said, I'm happy to share that
information with you.

		MR. HEARL:  Forgive me -- or permit me this one thing, though.  If I
were to take half of the 444, that's 222, and half again for 2 times the
geometric standard deviation, it takes us down to about 100 for
geometric standard deviation, which would be my estimate for the GSD for
that.

		But on Wednesday afternoon, the Chamber of Commerce panelist, Dr. Tom
Hall, he testified that even in a very ill-controlled situation, that he
had never seen distributions with greater than a geometric standard
deviation of 4.  So --

		DR. SABRY:  Okay.

		MR. HEARL:  And he said the situation, if you get a larger geometric
standard deviation, you may not have had an appropriate homogeneous
exposure group in the methodology, so that what you would not want to do
is use that range and that particular model for those -- using those
data to project out the expected concentrations in others.  That's sort
of my question and comment.  If you want to comment on that?

		DR. SABRY:  I think the comment, what I would say is, and this goes
back to my point, you could defer as to how I computed this and you
would say it's a -- it can only be four times as wide.  But then, at
the same -- I think we are moving away from the relevant point here.
The relevant point is for this, for the fracking industry, there was
only 6 workers and 6,000 ancillary workers for which OSHA basically
extrapolated from 6 observations.  And as far as I could tell, and I
don't know of any -- and I do a fair amount of sampling analysis too
for a variety of economic analysis.  I've never seen extrapolations done
from samples as small as six.  Thank you.

		JUDGE SOLOMON:  Next.

		DR. MIRER:  Frank Mirer, M-i-r-e-r, like the quarterback.  CUNY School
of Public Health.

		Since I've been singled out several times, I have a couple of
questions.  First, for Mr. Chajet.  I tell the story of that hearing a
lot of times, and to the best of my knowledge, Dr. Michaels was not at
that hearing and certainly not on the panel that was questioned by Dr.
Norwood.  So I think my memory is correct.  It's not a recovered memory.

		MR. CHAJET:  We'll just admit the -- we'll just bring the video in
and admit it into evidence.

		DR. MIRER:  Sure.  If you got it, bring it in.

		JUDGE SOLOMON:  The best evidence is the transcript.

		MR. CHAJET:  That's right.

		DR. MIRER:  Yeah.

		So, let me just make a couple of small questions.  Who's the author of
the False Exposure Estimates heading in the Chamber testimony?  I'm just
wondering who to ask about it.

		MR. CHAJET:  I'm not sure which testimony you're referring to.

		DR. MIRER:  Here it says U.S. Chamber of Commerce Comments, and it
says on 4(a), it says, "False exposure estimates and OSHA policy create
false risks and benefits."  Who's the author of that line so I can ask
them about it?

		DR. SABRY:  Not me.

		MR. CHAJET:  I'm not sure.

		MR. SIRIANNI:  I took my data from NIOSH, so --

		MR. CHAJET:  I'm not sure.  We've had several panels over here, so you
may be too late, Dr. Mirer.

		DR. MIRER:  Okay.  So doesn't this go to the question of transparency
of the experts?  But anyway --

		JUDGE SOLOMON:  Well, in pure impeachment what you would have to do is
have the person who actually made the statement.  So you don't have --

		DR. MIRER:  All right.  Well, so my question is, does the Chamber have
any exposure data to provide to the record here of any kind?

		MR. CHAJET:  There are many exposure data -- I'll respond to your
question even though I am counsel and not a witness.  But there are many
exposure data referred to within the comments that are contained in
various studies, and many of them are OSHA's.  So, yes, there are many
exposure data contained within the comments.

		DR. MIRER:  So, but you have no data to supply to the record?

		MR. CHAJET:  We supplied all the data that we have to the record in
the comments.

		DR. MIRER:  Can you identify any data element that you supplied to the
record?

		MR. CHAJET:  We'll do that after the hearing, not at the moment.
Sure.

		MS. KRAMER:  Mr. Chajet?  Mr. Chajet, would you mind making sure to
speak into that microphone that's right behind you?

		MR. CHAJET:  Sure.

		MS. KRAMER:  Thank you.

		MR. MIRER:  Second -- I'm just working from the testimony here,
right.  Second, in this set of testimony there's a reference to the
Howard Ayer paper about whether the standard is twice as protective as
it ought to be.  Is anybody here aware of that paper, wrote it down,
whatever?

		MR. CHAJET:  It's in our comments.

		DR. MIRER:  Yeah, so whose -- whose comments?

		MR. CHAJET:  It's in the comments of the Chamber of Commerce.

		DR. MIRER:  All right.  So --

		MR. CHAJET:  Do you need a copy of the paper?

		DR. MIRER:  You're the Chamber of Commerce, right?

		MR. CHAJET:  We'll be happy --

		DR. MIRER:  Okay, let's pass on.  Just to note here, I read that
paper.  He's questioning whether the conversion factor from the particle
per cubic foot standard was correct, not making any comment about health
effects, correct?

		MR. CHAJET:  That's incorrect.  We'll supply a copy of the paper for
the record.

		DR. MIRER:  Okay.  I think I've got the whole paper.  I think it's in
the record.  It's easy to say it's incorrect, but he's talking about the
conversion factor between particles and mass.

		Going on to fracking.

		MR. CHAJET:  Dr. Mirer, I will specifically get a copy of that paper
to you, where he concludes that the 100 µg standard is twice as
protective as they anticipated, in that they should have calculated a
number of 200 instead of 100, and they got much more protection.  So
he's concluding that the 100 µg standard that he personally with that
group developed is twice as protective as they intended.  And I will
give you that paper and show you the quote.

		MS. KRAMER:  Mr. Chajet.

		DR. MIRER:  Yeah, I admitted --

		MS. KRAMER:  Mr. Chajet -- excuse me for just a moment -- we're not
certain whether that paper is currently in the record.  So when you
provide it to Dr. Mirer --

		MR. CHAJET:  It is, but I'll provide it again.

		MS. KRAMER:  Wonderful.  Thank you.

		DR. MIRER:  I found the paper.  I've got it.  I'll provide it to the
record.

		MS. KRAMER:  Either way is great.

		DR. MIRER:  So back to fracking.  Do you have any alternative exposure
data regarding exposures in fracking, alternative to the NIOSH exposure
data?

		MR. SIRIANNI:  Those exposures were?

		DR. MIRER:  Well, there was an assessment of exposures and fracking.
Are you aware of any alternative exposure data?

		DR. SABRY:  My opinion was based on the data that OSHA used, and this
data is -- there is serious issues with the reliability of the estimate
because of the extrapolations.

		DR. MIRER:  Well, I think the purpose of the hearing is to bring new
data into the record.  So do you have any?

		DR. SABRY:  And the purpose of the hearing is also to evaluate what
the reliability of the expected benefit calculation too.

		DR. MIRER:  Okay.  But --

		JUDGE SOLOMON:  This is argumentative.  Why don't you just ask a
specific question?

		DR. MIRER:  I'm sorry.  Well, since I've been singled out.  Now, back
to the --

		JUDGE SOLOMON:  Ask a question --

		DR. MIRER:  -- back to the 1937 dumb story that you said I told.  The
answer --

		MR. SIRIANNI:  No, I didn't say it was dumb.  I said it was a story
from --

		DR. MIRER:  So let me, let me pose --

		JUDGE SOLOMON:  Let him ask the question.

		DR. MIRER:  Let me pose not a hypothetical.

		MR. SIRIANNI:  I don't want to come across as I prevented him from --

		DR. MIRER:  The positive --

		JUDGE SOLOMON:  Mr. Sirianni, let him ask --

		DR. MIRER:  -- positive pressure air supplied respirators, hard
helmets with vortex coolers were used in the solder grind booth.  It was
found that there were exposures above the OSHA PEL, the old OSHA PEL,
underneath those helmets when they were finally addressed.  So the
question is, first, you advocate -- if you're going to use them as a
substitute for engineering control, would you ask employers to take air
samples under the helmet, the loose fitting helmet?

		MR. SIRIANNI:  There have been recent studies that have done this.  I
am for the idea, if they can be utilized and shown to be effective --
they have been shown to be effective -- to do that, yes.

		DR. MIRER:  So, but are you saying that each employer should evaluate
the effectiveness by air sampling under the helmet, or not?  Yes or no?

		MR. SIRIANNI:  Well, I don't think it -- I don't think each workplace
can do that.  We see that we can't even get to each workplace to take an
air sample.  So to have them do --

		DR. MIRER:  Second question.  Do you think the employer should, since
these are such good items,

should the employer be required to provide a powered air-purifying
respirator to an employee on request?

		MR. CHAJET:  And I'm going to cut off the questioning now because Dr.
Mirer's time is up, and our time was cut short so we're cutting off his
questioning at this point.  Thank you very much.

		JUDGE SOLOMON:  Well, I don't know that you have the capacity to do
that.  I was going to let him ask another question.

		MR. CHAJET:  Well, I mean, I'm just going to instruct my witnesses to
stop answering questions because the amount of time allocated for this
witness is equal to already more than the amount of time allowed for us,
so -- to ask questions, so we're going to cut off this questioner.

		JUDGE SOLOMON:  Okay.  Dr. Mirer, we'll wait till the other people are
done, and we'll see if we have any time for you.

		DR. MIRER:  Sure.

		JUDGE SOLOMON:  Let me just state for the record, Mr. Chajet, I let
you go longer than anybody else so far today.  So, and as a matter of
fact, there are probably three or four other witnesses -- or other
questioners that I cut off, but I just thought that you had a chain of
questions that sort of related to each other.  One of the -- I want to
make this comment for the record.  When the witnesses don't give the
questioner a chance to answer, that leads into more questions, and
that's what's been happening here.

		MS. KRAMER:  Your Honor?

		JUDGE SOLOMON:  Yes?

		MS. KRAMER:  We appreciate your instruction, checking with witnesses
to make certain that they give the questioner a chance to answer, but we
also want to just object.  We believe that the Chamber requested a
certain amount of time to testify, and we sent aside an afternoon for
them to be allowed to be appropriately questioned by those in the
audience who would like to.  And we appreciate your chance to give Mr.
Mirer -- Dr. Mirer a chance to come back at the end of this set of
questions.  And we just wanted to register our objection as well.

		JUDGE SOLOMON:  Yeah, we're going to see how much time we have left,
and then we'll accommodate accordingly.

		Okay, state and spell your name, please.

		MR. KOJOLA:  Good afternoon.  My name is Bill Kojola.  That's
K-o-j-o-l-a, and I'm here representing the National Council for
Occupational Safety and Health.  And I have some questions for
Mr. Sirianni.

		This morning the American Industrial Hygiene Association testified
that they fully support the use of a hierarchy of controls for
controlling exposure to chemical hazards in the workplace.  Are you
aware that this is the professional association for industrial
hygienists' position on controlling exposures?

		MR. SIRIANNI:  I am aware.

		MR. KOJOLA:  Okay.  Are you aware also that all existing OSHA
standards for chemical hazards, including the proposed silica standard
before us at this hearing, have utilized or are proposing to utilize the
hierarchy of controls as the means to protect workers from exposure and
that feasible engineering controls and work practices are to be used
before relying on respiratory protection?  Is that your understanding?

		MR. SIRIANNI:  I understand the old way of doing things.

		MR. KOJOLA:  That is the current way of doing things, is it not?
Those are existing standards in place?

		MR. SIRIANNI:  Okay.  It is, and I think it should be, in certain
instances, should be reevaluated.

		MR. KOJOLA:  Okay.  So now you've talked about fracking and the NIOSH
work that identified some extremely high exposures within that industry,
and you talked about the use of PAPRs for workers and advocating that
workers be provided with powered air-purifying respirators in the
industry.  Is it your position and are you testifying that you believe
that workers should use respirators instead of engineering controls?

		MR. SIRIANNI:  I think that there are some instances where we are
currently experimenting with engineering controls, and it leaves those
folks in these high exposure scenarios unprotected.  And even when maybe
something is completed in a form of engineering control, it won't go far
enough with the potential for the exposures that are there with the
amount of material that is being used.  So it's my position that this is
something that will offer adequate protection across industry groups in
many circumstances.

		MR. KOJOLA:  Is it your position that NIOSH and the fracking industry
should halt all efforts to develop feasible engineering controls for
this industry to reduce worker exposure?

		MR. SIRIANNI:  I think in the immediate term, workers should be
offered actual protection.			MR. KOJOLA:  So really what you're saying,
in the circumstances where there's not feasible engineering controls,
that workers should be offered respiratory protection, but that if
feasible engineering controls are in place, that those should be put in
place before respirators?

		MR. SIRIANNI:  If they're feasible and they work and the statistics
and the data and the experimenting is there, it's a moot point, workers
are protected.  But in the current realm of many industry groups,
including fracking, construction, this is where we're left.  These
people are going without, and this is appropriate.

		MR. KOJOLA:  But you know that NIOSH is working with the fracking
industry to develop feasible engineering controls?

		MR. SIRIANNI:  Lot's of concepts out there, right.

		MR. KOJOLA:  And if they develop feasible engineering controls, would
it be your position that they not be implemented, that workers just use
powered air-purifying respirators to control their exposures?

		MR. SIRIANNI:  I'm just trying to offer my opinion as to how these
units work, and all my research and experience with these units show
that they're helpful.

		MR. KOJOLA:  Do you think that -- is it your position that you would
require PAPRs for all workers who are exposed to crystalline silica?

		MR. CHAJET:  We're going to cut off the --

		MR. SIRIANNI:  No, I --

		MR. CHAJET:  Excuse me, Mr. Sirianni.

		We're going to instruct our witnesses to stop asking questions --
answering questions from this questioner because his time's up.

		JUDGE SOLOMON:  Well, I think I'm the arbiter of that issue.

		MR. CHAJET:  You are, Your Honor, but I also am -- I have input into
this.

		JUDGE SOLOMON:  Well, it's his third question.

		MR. CHAJET:  No, it's about his seventh question.

		JUDGE SOLOMON:  No, it isn't.  We can read the transcript back.

		MR. KOJOLA:  I was interrupted during the middle of a question.  Can I
at least finish that question?

		JUDGE SOLOMON:  What is the actual question?

		MR. KOJOLA:  Shall I repeat the question?

		JUDGE SOLOMON:  State the question.

		MR. KOJOLA:  To state the question that I -- the last question I asked
was, is it your position that all workers should be required to wear
powered air-purifying respirators for exposures to crystalline silica?

		JUDGE SOLOMON:  That requires a yes or no answer, and that'll be the
last question.

		MR. SIRIANNI:  No, and it depends on their job.  There's some jobs
with no exposure.  Obviously, I'm not going to put a secretary in a
powered air-purifying respirator.

		MR. KOJOLA:  Thank you very much.

		MS. KRAMER:  Your Honor?

		JUDGE SOLOMON:  Yes?

		MS. KRAMER:  We'd like to once again object to Mr. Chajet inserting
himself into your role.  We're very disappointed that the Chamber is not
availing the public with an opportunity to answer questions and
certainly not for the five minutes that each member of the public had to
answer questions to OSHA.

		JUDGE SOLOMON:  Okay.  Well, that's -- it's marked for the record,
and we'll proceed further.

		State your name and spell your last name.

		MR. ECHT:  Your Honor, my name is Alan Echt, last name E-c-h-t.  I
work for NIOSH.  This is for Mr. Sirianni.

		Mr. Sirianni, in your written testimony, you stated that recent
studies of workers using PAPRs have shown they do not reduce the ability
to communicate effectively while in place, and you cite two studies, one
by Ku and one by Shumacher.  Are you aware that the Ku study have found
that actually 42 percent of the PAPR wearers found unacceptable hearing
impairment using one model, and 27 percent found moderate to significant
hearing impairment wearing the other model?  And that in the first
model, 95 percent had to raise their voices to be heard; the other model
86 percent needed to raise their voices to be heard?

		MR. SIRIANNI:  They were discussing, you know, communication and all
these elements -- I've got my comments here.

		MR. ECHT:  Well, yes or no, are you aware that that's what they found
in the studies?

		MR. SIRIANNI:  Yes.  I reviewed the paper and --

		MR. ECHT:  Okay.  Are you aware that in the discussion he says,
"However, the PAPR is bulky, heavy, requires maintenance, interferes
with communication"?

		MR. SIRIANNI:  That's not -- the one I brought here is --

		MR. ECHT:  But you said in your testimony that --

		MR. CHAJET:  Excuse me.  Would you let the witness -- if you want to
ask this witness a question, you've got to let him answer the question.

		MR. ECHT:  Okay.

		MR. CHAJET:  And if you don't, I'm going to cut off the questioning.

		JUDGE SOLOMON:  Mr. Chajet, you will speak to me.  If you're going to
render an objection, I'm the person, I'm the --

		MR. CHAJET:  Your Honor --

		JUDGE SOLOMON:  Thank you.  Believe me, I am the pincushion for this
afternoon.

		MR. CHAJET:  Your Honor, I object to the witness cutting off -- or to
the questioner cutting off my witness.

		MR. O'CONNOR:  If I could insert myself here, Mr. Chajet, and if you
could speak into the microphone, please?

		MR. CHAJET:  Sure.  I object to the questioner cutting off our witness
in the mid-sentence of his response, and if he continues, I think you
should stop him from asking questions.

		JUDGE SOLOMON:  Okay.  You did stop him from answering a question.

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

		JUDGE SOLOMON:  Dr. Sirianni, you were saying?

		MR. SIRIANNI:  It's Mr. Sirianni --

		JUDGE SOLOMON:  Oh, you're Mr. Sirianni.  I'm sorry.

		MR. SIRIANNI:  Yeah, that's okay.  That's okay.

		JUDGE SOLOMON:  I elevated him to the position of doctor.  I've done
that with several other witnesses.

		MR. SIRIANNI:  Well, my comments are as they are here, so I'm not
going to respond further without looking at it.

		MR. ECHT:  Well, the second study you cited was a study of healthcare
workers wearing either -- I'm sorry -- paramedics in CBRN suits.  They
either wore a full-face tight-fitting respirator, a tight-fitting PAPR
with no respirator, and what they found was that compared to no
respirator, both the tight-fitting and -- tight-fitting air-purifying
respirator and the tight-fitting PAPR both significantly interfered with
communication.

		JUDGE SOLOMON:  Okay, before you say anything, Mr. Chajet has another
objection.  What is the nature of --

		MR. SIRIANNI:  I can answer this one actually, if it's -- I would
just -- I prefer to --

		MR. CHAJET:  Mr. Sirianni, please.

		MR. SIRIANNI:  Okay.  Okay.

		MR. CHAJET:  Control yourself.

		JUDGE SOLOMON:  What's the objection?

		MR. CHAJET:  The objection is that if the questioner has testimony,
he's welcome to provide his testimony.

		JUDGE SOLOMON:  Well, I don't have to tell you, you did the same
thing.  It's cross-examination, and he can, if it is accurate, state
what --

		MR. ECHT:  I'm getting to the point that he's making a statement not
supported by the references he cites.

		JUDGE SOLOMON:  This is getting far away.  You have to wait also.

		MR. ECHT:  Sorry.

		JUDGE SOLOMON:  You have to wait until I'm done saying that.

		Okay.  So at any rate, he -- Mr. Sirianni, he directed you to a
point in the prior record.

		MR. SIRIANNI:  Um-hum.  Sure.  And --

		JUDGE SOLOMON:  Wait a minute.  Wait for me to ask a question.  Are
you familiar with that?

		MR. SIRIANNI:  Yes.

		JUDGE SOLOMON:  Okay.  Now you can answer his question.

		MR. SIRIANNI:  Okay.  The point of that study is that there are
instances where someone is going to need respiratory protection, so they
evaluated the group without the use of respirators and then with various
kinds.  They're never going to go into a certain scenario without
protection.  So when they looked at and evaluated the two, they
determined that the PAPRs were preferable.  They were comfortable and
they --

		MR. ECHT:  But didn't they, when they compared the communication, they
found that both the PAPR and the tight-fitting air-purifying respirator
were both significantly worse than no respirator?

		MR. SIRIANNI:  I can tell you that they are certainly better than
communicating in a situation where someone is in a cab or something.
They're going to open the door of that cab and they're going to
communicate and be exposed.

		You know, two workers -- I've worked a lot in areas, I've been in all
these places where I have to communicate with a respirator on.  It's --
you're not going to go into certain environments without a respirator.
You wouldn't want to.  And, of course, there's some hindrance, but as
far as these have come along, they are such an improvement and --
that's my piece, is that they're useful and you still can communicate,
and papers have shown that they -- you can -- you know, it's a little
worse than not having anything on, but also you're not protected when
there's nothing on.  So I think that's kind of a moot point.

		JUDGE SOLOMON:  Dr. Abrams has been very patient waiting for the next
question, so I think you ought to give her --

		MR. ECHT:  Well, we'll leave communications behind.  Later on in your
written testimony --

		JUDGE SOLOMON:  Just a minute.  Okay?  You've had enough --

		MR. ECHT:  I'm sorry.

		JUDGE SOLOMON:  So let Dr. Abrams ask a question.  If we have any
additional time, then --

		MR. ECHT:  I'll put it in writing.  Thank you, Your Honor.

		JUDGE SOLOMON:  First Dr. Mirer and then you.

		UNIDENTIFIED SPEAKER:  She's not Dr. Abrams; she's Ms. Abrams.

		JUDGE SOLOMON:  She's Ms. Abrams.  Did I elevate you or --

		MS. ABRAMS:  Pardon, Your Honor?

		JUDGE SOLOMON:  You are not a Dr. Abrams?  You are --

		MS. ABRAMS:  Well, I'm a doctor of law, if you want to be technical
about it, but I don't use that.  Ms. Abrams is fine.

		JUDGE SOLOMON:  State your name, and spell your last name.

		MS. ABRAMS:  My name is Adele Abrams.  That's A-d-e-l-e, A-b-r-a-m-s.
Not like the football player, just like the singer.  And I am speaking
on behalf of the American Society of Safety Engineers.

		I had a couple of questions for Dr. Bird.

		You made a comment that in essence said there would be an inadequate
supply of safety and health professionals capable of carrying out the
responsibilities that would be required under this rule, and I believe
you referenced BLS data on that.  My questions are:  First of all, what
year was that BLS data?  In making your assumption that there would be
an inadequate supply of safety and health professionals, did you do any
independent survey or contact with the American Society of Safety
Engineers, the American Industrial Hygiene Association, the National
Safety Council, or other similar safety organizations throughout the
United States?  And did you take into account the number of new safety
and health program graduates that are coming out of the myriad safety
and health programs, including those run by NIOSH's educational research
centers in computing your numbers of safety and health professionals?

		DR. BIRD:  The number that I quoted comes from the Bureau of Labor
Statistics Occupational Employment Survey Program for May 2012, and also
is used in their biennial 10-year forecast of job openings and future
graduates and so forth.  Included in what I looked at for the BLS data
were some numbers -- were numbers that estimated the number of new
graduates, which I don't have right handy here, but I relied on the BLS
data, which is generally considered authoritative.

		I did examine the websites for the Industrial Hygiene Association,
which indicated numbers of certified industrial hygienists, which was a
fraction of that 62,000-and-some-odd number, a very small fraction of
that.  I don't recall the exact number off top of my head, but I think
it was probably less than 20,000, or thereabouts.

		And the burden of both my presentation of those numbers is not to say
that that's the be-all-and-end-all answer to the issue, but that there
is, at least from this data, a reason to be concerned about the effect,
both on the available supply -- I also checked the BLS numbers by
occupation for unemployment in the most recent year and found very low
unemployment in that professional category.  The point of my comment was
not to say that, okay, here's the answer that ought to be used, but to
say that, you know, some data suggests there is a very potential issue
here, a need to focus on expanding the number.  The existing number
of -- the existing supply of industrial hygienists is possibly already
fully employed and this is going to put a quite likely large burden on
that supply.  Perhaps it will be a pleasant burden to have because
your -- if supply and demand works the way it should, your hourly fees
will go up and you won't have any problem, you know, prospering and
finding work.  But on the other hand, the people who need to use your
services are going to be perhaps at a loss sometimes to find the
services they need, especially in a short time period.

		I appreciate your suggestion of other sources to look at, and if this
raises an issue that if there is interest in that, I would be happy in
the post-comment period to address that issue in a little more detail.
But the real point is not for me to say what the answer is, but to
suggest that this is a subject that OSHA should have at least looked
into already, and right now, after -- hopefully, after my comments,
OSHA will look into it more and take that problem and what it can find
out in response to -- you know, by research on that problem, into
consideration before it goes forward with a rulemaking that may create a
problem for your profession or at least a challenge for the customers of
your profession in finding the services they need.

		MS. ABRAMS:  The BLS data, just to be clear, you said there were
63,000, and of course there's 10 million workplaces who need services
regardless of this rule for safety and health professionals.  Was that
63,000 number inclusive only of CIHs and CSPs, those with professional
accredited certifications, or did that include everybody who has safety
as part of their portfolio of work responsibilities?

		DR. BIRD:  My understanding of the data that I examined, the BLS data,
is that these are people whose occupational designation is a safety and
health professional.  Some --

		MS. ABRAMS:  Okay.  And a follow-up --

		DR. BIRD:  May I finish?  My interpretation of the data is that the
certified industrial hygienists and the other professional
certifications that you referred to would be a subset of that number.
That does not include -- that number does not include a separate body
of people who might be considered sub-baccalaureate-educated safety and
health technicians, rather than professionals.

		MS. ABRAMS:  And isn't it true that the proposed rule in no way
requires the services to be retained of an accredited CIH, CSP, or
someone with another designation like myself, certified mine safety
professional, to carry out the responsibilities under the act?  And, in
fact, isn't it true that you do not have to have a certification to do
industrial hygiene sampling?  Many of the OSHA inspectors are not
certified industrial hygienists.

		DR. BIRD:  I would respond to that by saying that in fact I think you
raise a question that adds to and complements what I said.  That raises
a further issue that OSHA should have previously and certainly should
going forward address, which is actually to clearly define who is
supposed to do what.

		As I read through the 3,000-some-odd pages of both OSHA's PEA and the
ERG reports and so forth, and I read the preamble to the regulation, it
appears to me as an economist -- I'm not an industrial hygienist -- as
an economist that there is a lot of language in there that seems to
speak to a safety and health professional rather than a technician or
rather than an unskilled or only on-the-job skilled layman.  I think
that it would be certainly useful for OSHA to clearly define what it
means by who should do what, and back that up with evidence based on
research, that it's certainly within its capability to do, that would
show the relevance of different qualifications or lack of qualifications
for effectively doing the job you want to do.

		If the intention here is to, as stated, to try to improve the health
of workers, you certainly want to make sure that the resources that you
are directing through your regulatory action to help those workers are
in fact resources that can do the job correctly and not make matters
worse.

		MS. ABRAMS:  To repeat the question I actually asked:  Isn't it true
that the proposed rule does not require any company in the United States
to retain the services of a CIH or a CSP in order to be in compliance
with the rule?

		DR. BIRD:  I think that the -- at least my reading of the proposed
rule is that you should use those services, is a pretty good implication
to draw, especially if you want to avoid winding up with a OSHA
violation liability.  You need -- just as if one is charged with a
traffic violation, one ought to go retain a lawyer instead of
representing oneself.  Obviously, yeah, somebody could say, well, I'm
going to make myself a self-trained industrial hygienist.  Well,
that's -- one would be doing that, I think, at one's peril.

		MS. ABRAMS:  Are you aware that the Mine Safety and Health
Administration has a program where they will provide training for
non-safety professionals on how to conduct silica sampling, after which
they will lend them sampling equipment for free so that they can do
their compliance monitoring?

		DR. BIRD:  No, I'm not aware of that.

		MS. ABRAMS:  Okay.  Thank you.

		JUDGE SOLOMON:  Thank you.  Okay, we have about, let's see, about 46
minutes to get to 5:00.

		MS. KRAMER:  Your Honor, I believe the hearing schedule has us going
to till 5:30 each day.

		JUDGE SOLOMON:  Oh, okay.  So do we have enough time for Dr. Mirer to
ask a couple --

		MS. KRAMER:  We have plenty of time, and we're only about 45 minutes
into the scheduled hearing questioning period, and I believe the
scheduled questioning period was for approximately two hours, so we have
a ways to go.  I don't think we'll go that long, but there's plenty of
time.

		JUDGE SOLOMON:  Okay.  So but I'm going to limit Dr. Mirer to --

		DR. MIRER:  Yeah, this is -- I was going to yield my time, but
just -- for Mr. Chajet, are you aware that all -- you made the point
that OSHA's current air sampling data is not available to analysis, for
analysis.  Are you aware that all this data is available for download on
the OSHA webpage, all the air sampling data?

		MR. CHAJET:  Dr. Mirer, I'm counsel, and I'm not answering your
questions, but I would challenge you to find the inspector data there,
which one of your colleagues sued over.  It's certainly not there.
So --

		DR. MIRER:  He's saying names of the inspector is not there, but --

		MR. CHAJET:  Let me just stop for a second.

		May I try to clarify?  We signed up for two hours.  Our two hours is
what we --

		JUDGE SOLOMON:  Well, that was your, supposedly your --

		MR. CHAJET:  No, yesterday you limited us for our questioning and our
time to two hours.  We signed up for two hours, and our witnesses have
airplanes to catch and trains to catch, and we were planning on
ending --

		JUDGE SOLOMON:  I'm not going to ask them to see the tickets, but --

		MR. CHAJET:  Well, you know, we don't think it's right when --

		JUDGE SOLOMON:  OSHA is going to ask some questions, okay?  So --

		MR. CHAJET:  Well, they've used up all their time.

		JUDGE SOLOMON:  Well, I don't believe that OSHA has.  I mean, we were
talking about going to 5:00.  Now I find out it's 5:30.  But that's
probably because I extended the lunch.

		MS. KRAMER:  Your Honor, we don't want anyone to miss their plane.
We'll try to keep our questions short.

		MR. CHAJET:  We -- you know, the other day we had two hours and that
included asking our questions of your peer reviewers or our questions of
anybody else.  So this is a two-hour event.  The two hours is already
up.  We're trying to give you additional time, but we're not going to
sit here and be subjected to more questions than you allowed us to ask
your own witnesses and your own people.  That's just not fair.

		JUDGE SOLOMON:  Well, you know that I don't represent --

		MR. CHAJET:  It's just not fair.  And we're not going to participate
on that basis.

		JUDGE SOLOMON:  You're not going to let them ask any questions?

		MR. CHAJET:  No, we're not.  No, we're not.

		JUDGE SOLOMON:  You're not going to answer any questions?

		MR. CHAJET:  We used up the allotted time.  We have sat here and
allowed questioning for the last hour, and we've exceeded the two hours
that this panel is listed for on the agenda, and that time included the
question and answer period.  So it's not fair for me to try to ask three
questions and get cut off and then you sit here with this panel for more
than two and a half hours and expect to go another hour, or another hour
and a half.  It isn't appropriate.

		MS. KRAMER:  Your Honor, the Agency strongly objects to Mr. Chajet
attempting to prevent us from asking questions of the Chamber witnesses.
 We've already said that we are more than willing to keep our questions
short and respect his witnesses' time, and we request that we be allowed
our opportunity.

		JUDGE SOLOMON:  Yeah, let me ask you, what flight arrangements do you
have?

		DR. SABRY:  I have a train that leaves to -- that supposedly left to
New York at 4 p.m., so I'm going to try and take whatever comes up next.

		MR. SIRIANNI:  And I'm going to Baltimore on -- Baltimore airport,
so --

		JUDGE SOLOMON:  BWI.

		MR. SIRIANNI:  And so it's like, you know, rush hour on Friday, so I'm
just because I got the last -- it's like the only direct flight to
Phoenix that exists in the world, so --

		JUDGE SOLOMON:  Do you have a car or are you taking the train?

		MR. SIRIANNI:  I do not have a car.  I'm taking a taxi or something.

		JUDGE SOLOMON:  You're taking a train probably.  So --

		UNIDENTIFIED SPEAKER:  -- has a shuttle.

		JUDGE SOLOMON:  Right.  Well, that's the cheap way.  I will take
administrative notice that's the cheap way to do it.

		MR. SIRIANNI:  I'll take a personal escort to the -- well, that
didn't come out right.

		MR. HALPRIN:  Your Honor, may I say something?

		JUDGE SOLOMON:  Yes.

		MR. HALPRIN:  Lawrence Halprin with Keller and Heckman.  This is
really not about whether they can make their trains.  There's hypocrisy
going on.  If OSHA's not going to allow adequate time for questioning,
there's no reason for witnesses on the other side to allow time for
questioning.  And, furthermore, this is not a courtroom where there's a
court order for somebody to appear and stay until the testimony's over.
It's based on cooperation on both sides, and OSHA has totally fallen
down on its side in making themselves available for cross-examination,
and it's unfair, as Mr. Chajet has pointed out, to have hypocrisy and
take two different approaches, where OSHA can ask as long as it wants
and schedules time till 5:30, and its witnesses disappear after two
hours after they've had 10 years to get this rule into place.  So that's
all I wanted to say.  Thank you.

		JUDGE SOLOMON:  Okay.  Ask a question.

		MR. BURT:  Hi.  First of all --

		MR. CHAJET:  Your Honor, out of an attempt to be courteous, we'll
allow a few questions, but then we're going to close this up and let our
witnesses try to catch their planes and trains.

		MS. KRAMER:  Your Honor.

		JUDGE SOLOMON:  Who's asking the questions?

		MS. KRAMER:  I'd actually like to just register a few objections for
the record.  First, this is a clear violation of the rules of procedure
for the hearing.  Second, the refusal to answer questions as OSHA would
like to ask undermines the purpose of the hearing, and also it could
result in less weight being placed on the witnesses' testimony because
of their refusal to respond to questions.

		JUDGE SOLOMON:  Who's asking the question?

		MS. KRAMER:  Also one last thing, Your Honor.  I apologize.  If any
public witness refuses to answer questions, OSHA might take that into
account when weighing their testimony.

		I thank you, and we'll let the panel actually ask questions.  Thanks.

		JUDGE SOLOMON:  So who's up?  That's --

		MR. BURT:  Hi.  I'm Bob Burt, and I want to thank you for being here
after all that discussion.  And I just want to ask a few questions to
clarify a few things.  Let me start with Dr. Sabry.

		The first table you showed, I think you clarified somewhat earlier
that this assumed a lognormal distribution; is that correct?

		DR. SABRY:  That's right.

		MR. BURT:  Now, just to be sure I understand, and I'm -- that, for
example, the first line shows a 95 percent confidence interval from 333
to -- my eyes aren't that good -- I think 840.  Let's take the 333.
The 95 percent confidence interval means there's a 95 percent chance
that the average falls between those two numbers; is that correct?

		DR. SABRY:  Correct.

		MR. BURT:  And this means there is a 2½ percent chance that the
average is below 333; is that correct?

		DR. SABRY:  That's right.

		MR. BURT:  Okay, thank you.

		You mentioned that there was widespread respirator use.  Do you or
anyone else have clear evidence that the respirator -- these
respirators were used in a way that would in fact achieve the APF of 10?

		MR. CHAJET:  I'm going to object, Your Honor.  The data is OSHA's
data.  It's OSHA's contractor.  The information is fully within their
control.  It's based on a NIOSH study.  The information is within their
control.  All Ms. Sabry did was use their data.  So --

		MR. BURT:  So you made an assumption that there was an APF of 10; is
that correct?

		JUDGE SOLOMON:  Wait a minute.  Wait a minute.  There's an objection.
There's an objection.

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

		JUDGE SOLOMON:  Okay.  If you can answer, go ahead.

		DR. SABRY:  Just a clarification.  I want to make two points.  One,
the 98 percent use of respirator in the fracking industry is based on
the ERG report.  That is ERG's data to OSHA.  And the second point that
I -- the point I was trying to make in the analysis really has to do
with the inconsistent treatment of the use of respirator when estimating
costs versus benefits in the fracking industry.

		MR. BURT:  Okay.  Thank you.

		And then what the APF does is, when you recalculate the benefits, it
assumed an APF of 10; is that correct?

		DR. SABRY:  That's correct.

		MR. BURT:  Thank you.  Let me ask a few questions of Dr. Bird.

		You discuss the issue of employee tenure, and you say you used a
Markov chain model.  Now, such a model assumes -- is it correct that
such a model assumes that past history is irrelevant?  So a person with
one-year tenure in an occupation has the same probability of leaving it
as someone with 10; is that correct?

		DR. BIRD:  It can be based on that assumption, or if there is
sufficient data to look at the effect, otherwise you can construct a
model that has a little bit more refinement in it.

		MR. BURT:  But the model you used, does it assume 90.4 percent every
year as an independent event?

		DR. BIRD:  Yes.

		MR. BURT:  Thank you.

		We've both been economists 40 years.  This is a pretty unlikely event
in your model, isn't it?

		DR. BIRD:  Not for economists necessarily, because we tend to be
the -- although -- yeah, not for economists necessarily.

		And I put that illustration in my comments as an illustration.
Admittedly a limitation of that is the 9. whatever year average, which
refracts an average across all occupations.  That comes from that
specific study that I cited that was done in the 1980s by a staff member
from the Bureau of Labor Statistics.

		I agree with your implication that in fact the Markov model parameters
could well -- I think likely would vary by occupation and vary over
time.  These are all factors that are -- you know, could be examined in
more detail.  Again, the purpose of the illustration was just to
illustrate that this is an issue that I think OSHA should have addressed
and/or should going forward address and do further research, that there
had not been any, that I could find, significant analysis of this issue,
which I think could, by my illustration, be found to be reasonably
suspect as something that needs to be looked into.

		JUDGE SOLOMON:  Let me just point that the beginning of the colloquy,
Mr. Sirianni again said something at the same time that Mr. Bird was
speaking.  So hopefully there will be a clear record on this.  If there
is not a clear record on this, then the parties are directed to go back
and make sure that it is clear.  However, Mr. Bird went on for probably
another page or two in the transcript, so it should be pretty clear.

		DR. BIRD:  I apologize.  Your Honor, may I interject one thing?  I'm
very happy to be in colloquy with my old friend and colleague, Dr. Burt,
but I would just interject a personal note here, that I am 66 years of
age and subject to the physical infirmities that go with that, and if we
continue past 5, a comfort break would be in order.

		JUDGE SOLOMON:  Well, you know, I'm older than you are, so -- but
it's 4:27, so you have --

		DR. BIRD:  Oh, okay.  So --

		JUDGE SOLOMON:  -- yeah, you have 33 minutes.

		MS. KRAMER:  If this reassures you at all, we should be done by then,
but --

		MR. CHAJET:  Why don't we take a comfort break now, because I could
use one myself?

		JUDGE SOLOMON:  But you are the same person who said that your
witnesses have an exigent reason to leave.

		MR. CHAJET:  Well, they're going to leave whether --

		MS. KRAMER:  Mr. Chajet?

		MR. CHAJET:  -- whether we take a break or not, but it would be good
to take a break.

		JUDGE SOLOMON:  Okay, five minutes.  Off the record.

		(Off the record.)

		(On the record.)

		JUDGE SOLOMON:  We're back on the record.  Any more questions, Ms. --

		MS. KRAMER:  Your Honor, real quick.  As a procedural matter, I'd like
to note that since Mr. Sirianni has departed, we're not going to have
an opportunity to ask him questions.  We would certainly expect the
Chamber to submit the photograph of the air helmet that Mr. Sirianni had
referenced, and also the materials regarding the air helmet -- it's
weight, it's size, things like that, that he had mentioned that he would
have an opportunity to submit to the record.  We would appreciate if,
given that we don't have an opportunity to question him, that he
certainly submits that as soon as possible.

		MR. CHAJET:  Happy to do that.

		JUDGE SOLOMON:  Okay.  So who's going to ask the next question?

		MR. BURT:  I have a few more questions, thank you.  First let me
appreciate your suggestion we take a break.

		JUDGE SOLOMON:  Glad to oblige.

		MR. BURT:  You suggested to me for a survey.  Do you know if OSHA has
ever used surveys for a health standard in the past?

		DR. BIRD:  Yes.

		MR. BURT:  When?

		DR. BIRD:  In 1990, in the context of the bloodborne pathogens
rulemaking.  The initial contractor assessment of baseline conditions
that was submitted to Dr. Conway, who then at that time had your job
then.  And you remember Hugh?

		MR. BURT:  Yeah.

		DR. BIRD:  And the initial work that the contractor did was based on
nines, the familiar -- you're familiar with that, looking at nine of
this and nine of that.  And it was then determined that for such a major
rule, and this one was -- in 1990 was the bloodborne pathogens' rule
was a very important national matter to protect healthcare workers from
bloodborne diseases such as AIDS and hepatitis.  And it was determined
that that baseline assessment that was initially done, which was in some
ways quite similar to the kind of work that -- by ERG that you've based
the analysis in this case on, that that was inadequate.  And in
consultation between -- with the contractor and the -- and OSHA, it
was decided that to make sure that a rule that was protective of workers
could go through effectively and be properly justified and so forth,
that a national survey was needed.  And the appropriate OMB clearance
was obtained in about three or four months -- the survey was designed,
the clearance obtained, the survey implemented, and the results analyzed
within about a 12-month period all together.  So that it added to cost
of the rulemaking the cost of -- you know, the budget cost to the
Agency, I think it added, if my recollection is correct, around a half
million dollars to the cost.

		But this was a rule that was estimated as having an annual economic
impact on the economy of about $900 million a year.  And, you know, sort
of the view, I think, was that when a rule has a major effect on the
economy, the Agency has a major obligation to devote appropriate
resources to put the right legs and foundations under the rulemaking.
And so that was done, and in fact, the findings of that survey I think
had some effects on how certain elements of the rule ultimately were
evolved and also had an important effect on -- ultimately on having a
better estimate of the actual cost, because we got a better estimate of
the -- what already the baseline compliance before the rule was, and
also from that some good information came regarding what were the causes
of people who -- what were the challenges and underlying causes that
were associated with not already being voluntarily adopting universal
precautions.

		And I think, you know, there's a couple lessons here in that
experience that I hope OSHA would take away.  I know that when I was
first at the Small Business Administration roundtable that
Mr. Lundegren was describing in his earlier testimony, and I was -- I
asked a question publicly of the OSHA people that were there.  You were
not, but I think Mr. Stone was and Mr. Perry were there, and I asked a
question about did you do a survey, and -- a baseline compliance survey
and so forth.  And the response was, horrors, of course not; that would
require OMB clearance, as if this is something impossible to obtain.

		In fact, OMB has procedures in place to facilitate and I think
expedite calls for surveys associated with regulatory needs, and my
experience and as -- and this goes back to 1990; I was involved in --
I was part of a contractor team at that time on the bloodborne pathogens
rule -- is that when you go to OMB, they are welcoming of this sort of
petition for clearance for a survey.  And, furthermore, they have
resources there, including Katherine Wallman, who is the chief
statistician of the United States, there in OMB, who can be very helpful
in helping -- and some of her staff in helping design a survey that is
in fact representative and statistically reliable and questions that are
appropriate and so forth.  There's a lot of resources there.  So, yeah,
I would encourage OSHA to go take that step.  This is a major rule that
may have a major impact.

		And there's another reason for that too, and that has to do with
something that's -- it's actually mentioned in the President's
Executive Order 13563 that was issued a couple of years ago
regarding -- and in that executive order, which laid out some expanded
principles and so forth for regulatory economic analysis, was also an
increased emphasis on doing retrospective studies.  And, frankly, doing
the kind of survey now that I'm describing could also lay the foundation
for planning within any rulemaking, that if the results of the survey do
indicate that a rulemaking is justified or feasible or -- and so on and
so forth, building into that revised regulatory program an explicit plan
for then evaluating, doing a retrospective study to evaluate the results
later as it's implemented.

		And then finally in that regard, I would say too, the things I've
heard in this conversation and all that we've had today and I've seen
elsewhere in the record as I've looked at about -- I think it's been
said that the current PEL has a noncompliance rate of maybe 30 percent
or so forth.  This is an important number.  And actually the kind of
study that I'm saying that the survey and so forth, research, that needs
to be done, could help understand critical questions that I don't think
OSHA currently has a sufficient understanding of regarding the current
PEL, what the challenges are for some establishments for compliance with
it, what the actual -- I know it's been said 30 percent, but a lot of
that's kind of on shaky grounds.  We could really find out what is the
actual current compliance with the current PEL and what are the actual
exposures around that PEL and so forth, that -- all of which could be
gotten from that kind of research that I'm really sad to see that it
does not seem to have been done and I think could be done and I hope
will be done.

		MR. BURT:  Let me ask a question to the Chamber of Commerce as a
whole.  OSHA has used surveys.  The last two times I have used a survey,
Chamber of Commerce questioned such a survey because they argued that
people would lie and that there was inevitably a response bias and
persons who were not complying, not doing things, would simply not
respond to the survey.  Would Chamber of Commerce have a solution to
these problems?

		MR. CHAJET:  I guess we'd have to go back and find out what you're
talking about.

		MR. BURT:  I'd welcome --

		MR. CHAJET:  I don't know what you're talking about.  So we don't have
any answers for you right in the moment, but we'd be happy to get back
to you.

		MR. BURT:  Okay.  Thank you.

		Let me take up one other issue.  You give an example and talk
about -- for example, you say, well, you look at the typical facility,
but you could have three facilities that cost 50,000 and one that costs
10 million, something like that.  Is that based on examples like your
quotation from ERG, that OSHA -- that your interpretation of the ERG to
think that OSHA, a PEL of 50 µg would require people to rebuild their
facility?

		DR. BIRD:  ERG in its 2008 report, on page --

		MR. BURT:  Yeah, I agree with the ERG report.  I know what the ERG
report --

		DR. BIRD:  -- on page --

		MR. BURT:  My apologies.

		DR. BIRD:  I'll give you the exact page.

		MR. BURT:  Sorry, Your Honor.

		DR. BIRD:  If I may complete -- ERG 2008, page 2-53 estimated that
five percent of the establishments in the foundry industry sector may
require complete rebuilding to achieve compliance.  Five percent's a
pretty big number.  That's -- and what does it cost to rebuild a
foundry?  I don't know -- may I finish my response?

		MR. BURT:  Yes.  Our time is limited, so I'd like to have a chance to
ask a question or two.

		DR. BIRD:  I know, I know, I know.  I'm -- I understand that.  But
the -- five percent's a significant number and the cost of rebuilding a
facility as large and complex and capital intensive as a foundry is
highly significant.  I don't know what that number is, but I think that
it is a number that it behooves you and all of us to find out and think
about and understand, because the point of my illustrative example is
just to show that this isn't some marginal thing that can just be kind
of ignored.  It could be a big -- have a big effect on the economic
feasibility question.  It is an issue that at least should be addressed
seriously, with serious data and with careful analysis.

		Now, I would have loved to have been able to actually go out and do
more research on that issue because I think it's a very fascinating and
interesting issue, not only for the foundry industry -- and the people
I've talked with in the foundry industry say, you know, it -- they
resonate with that concern -- but for many other industries as well.
And I would have loved to have actually gone out and done, as we have
otherwise in my tenure at the Chamber, done our own surveys of companies
and so forth to get data.  I would love to have done a more real
analysis rather than just an illustrative example.  But the fact of the
matter is, the restricted comment period that was provided to respond to
your over -- I went through more than 3,000 pages of documents in your
record, including your PEA, your various ERG reports, and so forth.  The
volume of material that OSHA had accumulated over 10 years that it
expected the public to respond to and digest within such a short period
of time was overwhelming.

		I've noticed that other agencies have done differently.  For example,
the Food and Drug Administration with its very significant Food Safety
Modernization Act implementation regulations, for some of those
regulations, have provided comment periods, after especially providing a
couple of extensions, comment periods nearing a year.  And that's
actually what it is needed sometimes to get into these issues and to
provide, not response that's intended to stonewall the regulatory
process, but response that's intended to participate in it, to be
helpful and help shape a regulation, if a regulation is needed, or some
other program change such as an improved enforcement strategy, if
needed, that is appropriate and useful and ultimately that protects
workers, because that's what we are all ultimately here for.

		JUDGE SOLOMON:  Thank you.  Any other questions?

		MR. BURT:  One or two more.

		DR. BIRD:  Glad to.

		MR. BURT:  You mentioned the number of pages in the record.  Is that
perhaps why you didn't notice that we did address the issue of the
length of tenure of employees and what difference it made to the
benefits?

		DR. BIRD:  I did not see that, and actually my colleague, Dr. Sabry,
and I were talking about something was said earlier today that implied
that might be there.  And so I --

		Do you recall seeing it either?

		DR. SABRY:  Were you referring to the live tables less than 45 years
or analysis under an assumption of less than 45 years?  Is that what
you --

		MR. BURT:  Well, I'm referring to a sensitivity analysis in the PEA
concerning the tenure of workers.

		DR. SABRY:  Was that done also for fracking?

		MR. BURT:  It was not done separately for fracking.

		DR. SABRY:  Yeah, that's what we were discussing.

		DR. BIRD:  I vaguely remember seeing something like what you may be
describing, but I did not see where the results of that changed the
ultimate benefits calculation.  But if you think that I have missed
something or am incorrect in my interpretation, I would appreciate you
pointing me to that, and I would be very happy to review it in detail
and to address the issue in the post-hearing comments.

		MR. BURT:  Thank you.  I don't have it handy today, but on the first
day of the hearing in response to a question, I cited the page number
where you could find that analysis.

		I had one more question.

		DR. BIRD:  Excuse me.  On that issue, if you could -- since the
transcript is not available and I was not here that first day, if you
could provide Mr. Chajet or some way that to pass to me or somehow
memorialize that issue so that we can be sure to address it, I would
appreciate it very much.

		MS. KRAMER:  We'd be happy to do that.

		DR. BIRD:  Thank you.

		MR. BURT:  I believe I heard Mr. Chajet state at one point that a PEL
of 100 is adequately protective.  Would this apply to the -- would that
comment apply to the current PEL in construction, which is much higher?

		JUDGE SOLOMON:  Who are you asking?

		MR. BURT:  I'm asking Chamber of Commerce, whatever --

		MR. CHAJET:  I think you heard testimony from Dr. Valberg and Dr. Long
about evidence, scientific evidence of a threshold of around 200 to 250
in a number of scientific papers.  And I'll let you draw your own
conclusion from that testimony.  I don't want to speak for them, but
there was testimony about that.

		And, frankly, it's consistent with -- I mean, I don't know how you
look at this chart and not draw that conclusion yourself with 30 percent
of your samples in excess of the exposures.  And among that 30 percent,
I have to say, there's some humongous exposures.  And yet this trend
continues downward.  If you plot the opposite trend -- it happens to be
on the CDC site -- the opposite trend for asbestos, you see the
complete opposite graph.  Right.  And here you have a nonstop decline
with very large exposures; you have to conclude that there's protection
at higher numbers here.

		MR. O'CONNOR:  A question for Dr. Sabry.  In your written comments,
item 51, you reviewed the statistical confidence limits for some of
OSHA's risk estimates and you go on to state in item 52 that OSHA
provided no justification for accepting this level of uncertainty in its
dose-response coefficient.  But it isn't clear what your position is as
to what OSHA should do in light of this uncertainty.  Could you share
any thoughts you might have on how you think OSHA should handle this?

		DR. SABRY:  Sure.  So on, for example, on the dose-responses or the
estimates for the -- for lung cancer, my suggestion was to run the
estimates because of the results of one study, the Attfield and
Costello, was so critical.  Maybe one suggestion may be to run the
analysis on the benefits with and without that study and to see the
impact of it.

		Another thing that could be done, if possible, is to run the analysis
on the -- or report the result for the upper and lower bounds of the 95
percent confidence interval instead of the point estimate, at least to
get a sense of how much of the variability in your results are driven by
the measurement errors in the dose-response regressions, whatever
they -- whatever models that have been used.  That could be another
suggestion.

		In some instances I've seen some academic studies run simulations to
assess the extent of the measurement error because there's an error in
the -- from the sampling, to start, for the exposure levels, and then
there is a different type of error, a measurement error that is in the
dose-response models.

		MR. O'CONNOR:  Thank you.  My other questions were for Mr. Sirianni,
so I think that concludes OSHA's questioning for today.

		On behalf of the Agency, I wanted to make sure that we thanked our
panel and that you're aware that we appreciate you attending this
proceeding and presenting testimony today.

		DR. SABRY:  Thank you very much.  				DR. BIRD:  It's been a pleasure
to be here.  Thank you.

		MS. KRAMER:  Your Honor.

		JUDGE SOLOMON:  Yes.

		MS. KRAMER:  I'd like to add my thanks on behalf of the Solicitor's
Office as well, and if it's okay with you, I just have two quick
clarifications that I'd like to say for the record.

		First, to the extent that the Chamber has implied today that OSHA has
been in any way improper with regard to the timing of the scheduling,
I'd like to refer Your Honor and also the Chamber and anyone who intends
to testify in the future to the first page of the schedule.  The note at
the bottom of it reads:  "The duration of the testimony is listed for
informational purposes only.  It reflects the amount of time requested
by each participant for their testimony and does not include time for
questions."  And that comports with the first page of the NPRM, which
indicates that those that wish to testify should notify the Agency of
the time with which they'd like to use so that we could plan our
schedule accordingly.

		And my second point was with regard to Mr. Chajet's earlier refusal
to answer a question, and I'd like reiterate with my colleague's
statement that we very much appreciated you answering questions at the
latter portion of your testimony, but I'd like to refer everyone to
Hearing Procedure 2-4, which indicates that all participants who testify
or who participate in a panel of testifying witnesses will be expected
to respond to questions following their presentations.

		And that's all I have.  Thanks so much, Your Honor.

		JUDGE SOLOMON:  I have -- I think, again, the interests of justice
require that I ask this question.  Is there a correlation between --
you just took off the CDC 2000 slide, but is there a correlation between
that and insurance rates or insurance coverage?

		MR. CHAJET:  I have no idea, Your Honor.

		JUDGE SOLOMON:  Well, you have experts there, so they -- do you know
whether or not there's a correlation?

		MR. CHAJET:  We didn't even testify or study it or look at it or --

		JUDGE SOLOMON:  Okay.

		MR. CHAJET:  -- anything else.  So I --

		JUDGE SOLOMON:  I mean, that's an answer.  Well, not -- okay.

		DR. SABRY:  We don't know.

		MR. CHAJET:  What we do know is this is what CDC says.

		JUDGE SOLOMON:  Right.

		MR. CHAJET:  This is the reality of their facts, and the statistical
modeling has been used to try to eliminate the reality of the facts.

		JUDGE SOLOMON:  I just asked the question.

		MR. CHAJET:  That's what we know.

		I'd also like to place on the record our thanks for your hospitality
here during this hearing, and that we have a difference of opinion about
how questioning and time frames were handled.  I consider that a
professional difference of opinion.  We don't think it was fair or
appropriate.  On the other hand, we thank you very much for hosting the
hearing, permitting us the time to present our views on behalf of the
Chamber, and we look forward to presenting post-hearing comments at the
end of this proceeding.  Thank you very much.

		And we would reiterate our request for further hearings, perhaps in
the regions, so people could testify -- they feel this important to
them -- in Pittsburgh, in St. Louis, in San Diego, and other --
Chicago and Detroit.  And we would also reiterate our request for more
time to ask questions of the OSHA personnel and the NIOSH personnel.  So
thank you very much.

		MS. KRAMER:  We will, of course, take your requests as well as your
comments today under consideration.

		JUDGE SOLOMON:  Okay.  So if there is nothing else -- is there
anything else from anybody?

		The time is now 5:01, and the hearing is closed.

		(Whereupon, at 5:01 p.m., the hearing was continued, to resume on
Monday, March 24, 2014, at 9:30 a.m.)

C E R T I F I C A T E

	This is to certify that the attached proceedings in the matter of:

INFORMAL PUBLIC HEARINGS FOR THE PROPOSED RULE

ON OCCUPATIONAL EXPOSURE TO

RESPIRABLE CRYSTALLINE SILICA

March 21, 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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