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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March 27, 2014

9:30 a.m.

Frances Perkins Building Auditorium

200 Constitution Avenue, N.W.

Washington, D.C. 20210

BEFORE: 	DANIEL F. SOLOMON

	   	Administrative Law Judge

U.S. DEPARTMENT OF LABOR (DOL):

ALLISON KRAMER

Attorney, Office of the Solicitor

ANNE RYDER

Attorney, Office of the Solicitor

OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION (OSHA):

WILLIAM PERRY

Acting Director, Directorate of Standards and Guidance

JOSEPH COBLE, Sc.D., CIH

Director, Office of Technological Feasibility

GREG KUCZURA

Office of Regulatory Analysis - Health

DAVID O'CONNOR

Director, Office of Chemical Hazards - Non-Metals

ROBERT BLICKSILVER

Office of Regulatory Analysis - Health

ROBERT STONE

Director, Office of Regulatory Analysis - Health

DALTON MOORE

Office of Technical Feasibility

ANNETTE IANNUCCI

Health Scientist, Office of Chemical Hazards

- Non-Metals

NEIL DAVIS

Office of Chemical Hazards - Non-Metals

NATIONAL ASPHALT PAVEMENT ASSOCIATION (NAPA):

DONALD ELISBURG

Consultant

MIKE ACOTT

President

ANTHONY BODWAY

Special Projects Manager, Payne & Dolan, Inc.

Chairman, Silica Asphalt Milling Machine Partnership

JEFF RICHMOND, SR.

President, Roadtec, Inc.

GARY FORE

Consultant

AMERICAN ROAD AND TRANSPORTATION BUILDERS ASSOCIATION (ARTBA):

UNA CONNOLLY

Vice President of Safety and Environmental Compliance

BRAD SANT

Senior Vice President of Safety and Education

NATIONAL UTILITY CONTRACTORS ASSOCIATION (NUCA):

GEORGE KENNEDY

Vice President of Safety

NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION (NRECA):

BRIAN LAZARCHICK, CSP

INDUSTRIAL MINERALS ASSOCIATION - NORTH AMERICA (IMA-NA):

MARK ELLIS

President

NATIONAL STONE, SAND AND GRAVEL ASSOCIATION (NSSGA):

PAMELA J. WHITTED

Senior Vice President of Legislative and Regulatory Affairs

DALE DRYSDALE

INDIVIDUAL:

JUAN RUIZ

INTERNATIONAL UNION OF OPERATING ENGINEERS (IUOE):

ELIZABETH NADEAU

Attorney

KYLE ZIMMER

Health and Safety Director, Local 478

MARTIN TUREK

Assistant Coordinator and Safety Administrator,

Local 150

BARBARA McCABE

Program Manager, Hazmat Program

KEITH MURPHY

IUOE, Local 478

DONALD HULK

Safety Director, Manafort Brothers, Inc.

LARRY HOPKINS

Training Director, Local 12

MARC POULOS

Executive Director, Indiana, Illinois, and Iowa Foundation for Fair
Contracting

Board Member, National Alliance for Fair Contracting

NEW LABOR (NEW JERSEY):

MARIEN CASILLAS-PABELLON

Director

NORLAN TREJO

Safety Liaison

JONAS MENDOZA

Safety Liaison

FE Y JUSTICIA (HOUSTON, TEXAS):

SANTOS ARMENDARIZ

JOSE GRANADOS

SANTIAGO HERNANDEZ

OTHER PARTICIPANTS:

FRANKLIN MIRER, Ph.D., CIH

CUNY School of Public Health

AFL-CIO

CHRIS TRAHAN

Building and Construction Trades Department, AFL-CIO

TRESSI CORDARO

Attorney, Jackson Lewis

SCOTT SCHNEIDER, CIH

Director of Occupational Safety and Health

Laborers' Health and Safety Fund of North America

FELICIA WATSON

National Association of Home Builders

LAURA WELCH, M.D.

Building and Construction Trades Department, AFL-CIO

REBECCA REINDEL

AFL-CIO

PETER DOOLEY, CIH, CSP

National Council for Occupational Safety and Health

OTHER PARTICIPANTS (cont.):

PEG SEMINARIO

Safety and Health Director, AFL-CIO

ANNA DUNCAN

Spanish Interpreter

INDEX

										PAGE

INTRODUCTION

Judge Daniel F. Solomon						  PAGEREF a1Solomon \h  2147

NATIONAL ASPHALT PAVEMENT ASSOCIATION (NAPA)

	Donald Elisburg						  PAGEREF b0Elisburg \h  2147

	Mike Acott						   	  PAGEREF b1Acott \h  2149

	Anthony Bodway						 	  PAGEREF b2Bodway \h  2154

	Jeff Richmond, Sr.					  	  PAGEREF b3Richmond \h  2159

	Gary Fore							  	  PAGEREF b4Fore \h  2167

	Questions							  	  PAGEREF b5questions \h  2174

AMERICAN ROAD AND TRANSPORTATION BUILDERS

ASSOCIATION (ARTBA); NATIONAL UTILITY CONTRACTORS

ASSOCIATION (NUCA)

	ARTBA - Una Connolly					  PAGEREF c1Connolly \h  2231

	NUCA - George Kennedy				 	  PAGEREF c2Kennedy \h  2239

	Questions							 	  PAGEREF c3questions \h  2248

NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION (NRECA)

	Brian Lazarchick, CSP				 	  PAGEREF d1Lazarchick \h  2274

	Questions							 	  PAGEREF d2questions \h  2275

INDUSTRIAL MINERALS ASSOCIATION - NORTH AMERICA (IMA-NA); NATIONAL
STONE, SAND AND GRAVEL

ASSOCIATION (NSSGA)

	IMA-NA - Mark Ellis					 	  PAGEREF f1Ellis \h  2286

	NSSGA - Pamela J. Whitted				  PAGEREF f2Whitted \h  2291

	Questions							 	  PAGEREF f3questions \h  2300

INDEX

										PAGE

INDIVIDUAL

	Juan Ruiz							 	  PAGEREF g1ruiz \h  2327

	Questions							 	  PAGEREF gquestions \h  2329

INTERNATIONAL UNION OF OPERATING ENGINEERS

	Elizabeth Nadeau					 	  PAGEREF h1Nadeau \h  2336

	Kyle Zimmer						 	  PAGEREF h2zimmer \h  2339

	Martin Turek						 	  PAGEREF h3Turek \h  2355

	Barbara McCabe						 	  PAGEREF h4McCabe \h  2365

	Keith Murphy						 	  PAGEREF h5Murphy \h  2370

	Donald Hulk						 	  PAGEREF h6Hulk \h  2377

	Larry Hopkins						 	  PAGEREF h7Hopkins \h  2390

	Marc Poulos						 	  PAGEREF h8Poulos \h  2396

	Questions							 	  PAGEREF h9questions \h  2405

NEW LABOR (NEW JERSEY)

	Marien Casillas-Pabellon				 	  PAGEREF j1Casillas \h  2448

	Norlan Trejo						 	  PAGEREF j2Trejo \h  2454

	Jonas Mendoza						 	  PAGEREF j3Mendoza \h  2458

	Questions							 	  PAGEREF j4questions \h  2461

FE Y JUSTICIA (HOUSTON, TEXAS)

	Santos Armendariz					 	  PAGEREF k1Armendariz \h  2476

	Jose Granados						 	  PAGEREF k2Granados \h  2478

	Santiago Hernandez					 	  PAGEREF k3Hernandez \h  2481

	Questions							 	  PAGEREF k4questions \h  2483

ADJOURNMENT							 	  PAGEREF L1adjourn \h  2493

EXHIBITS

EXHIBITS		DESCRIPTION				 	PAGE

Exhibit 65	Reserved - NAPA testimony		  PAGEREF ex65reserve \h  2174

Exhibit 66	Reserved - NAPA PowerPoint		  PAGEREF ex66reserve \h  2174

Exhibit 67	Reserved - Mr. Kennedy's

			testimony 					  PAGEREF ex67and68reserve \h  2248

Exhibit 68	Reserved - Ms. Connolly's

			testimony 					  PAGEREF ex67and68reserve \h  2248

Exhibit 69	Mr. Lazarchick's statement	   	  PAGEREF
ex69markedandreceived \h  2275

Exhibit 70	Mr. Ellis' testimony, IMA-NA	   	  PAGEREF ex70to72 \h  2291

Exhibit 71	Alliance with MSHA			   	  PAGEREF ex70to72 \h  2291

Exhibit 72	Dust Control Handbook		   	  PAGEREF ex70to72 \h  2291

Exhibit 73	NSSGA testimony			   	  PAGEREF ex73 \h  2325

Exhibit 74	IUOE PowerPoint		   		  PAGEREF ex74 \h  2334

P R O C E E D I N G S

(9:30 a.m.)

		JUDGE SOLOMON:  Let's go on the record.

		I'm Daniel Solomon.  I'm an administrative law judge with the United
States Department of Labor.  My address is 800 K Street, 4th Floor,
Washington, D.C.  The zip code is 20001-8002.

		This is Day 8 of these hearings.  At this time, Ms. Kramer, do you
want to enter your appearance for the day, please?

		MS. KRAMER:  Yes, Your Honor.  My name is Allison Kramer.  I'm with
the Office of the Solicitor here at the Department of Labor.  And we are
looking forward to hearing from the National Asphalt Pavement
Association today.

		JUDGE SOLOMON:  Okay.  So the National Asphalt Pavement Association is
up first.  They have been allocated 45 minutes.  I was just told that
they will probably only take about 35 minutes.  Is that right?  And then
we'll have questions from the public and then OSHA, I'm sure, will have
some questions.

		So would you introduce the panel first?

		MR. ELISBURG:  Hi, my name is Donald Elisburg.  I am a consultant
with NAPA, but I am also the facilitator of this partnership group.  And
my role this morning is to introduce the panel who will make the
presentations.

		On my right, the first speaker will be Mike Acott.  Mike is the
President of the National Asphalt Pavement Association.

		On my left is Tony Bodway.  He is the Special Projects Manager for
Payne & Dolan, Inc., which is a large asphalt pavement contractor in
Waukesha, Wisconsin.  And Tony is the Chairman of what we call the
Silica Asphalt Milling Machine Partnership.

		Behind me on my right is Jeff Richmond.  Jeff is the President of
Roadtec, Inc., in Chattanooga, Tennessee, a large manufacturer of
highway paving and construction milling machines, and so forth.  Jeff is
here on behalf of the other milling machine -- himself and the other
milling machine manufacturers.

		And, finally, behind me on my left is Gary Fore.  Gary is a
consultant to NAPA, was retired vice president for environment safety
and health at NAPA, and Gary currently is from Greensboro, North
Carolina.

		And with that, let me pass this to Mike Acott.

		MR. ACOTT:  Thank you very much for allowing us the opportunity to
present our information to the Agency.  I am the President of NAPA.
I've been in the asphalt industry for about 40 years.  My background is
technical.  I'm a civil engineer.

		We are an association that represents the asphalt paving industry.  We
have about 850 asphalt pavement production companies, many paving
contractors.  Some of the companies we represent are quite large with
thousands of employees.  We also represent many small family-owned
companies that may have less than 100 employees.

		The workforce as a whole is very large.  It is estimated to be about a
quarter of a million individuals in our industry, though a very small
fraction of those individuals are engaged in what we call roadway
milling operations.

		But roadway milling, for us, is a real critical part of our industry's
operations.  It is all part of the rehabilitation process when you rehab
a road.  But much more important for us, it provides a very ready supply
of reclaim material that goes back into asphalt pavement.  We, as an
industry, recycle more than any other industry in the United States in
terms of the amount of recycled material.  So it is a strategic
operation for us, the milling operations.

		Today, NAPA, the contractors and equipment manufacturers, and
representatives of the Silica Asphalt Milling Machine Partnership, and
we're going to discuss with you results of a 10-year effort to protect
workers from exposure to dust and potential silica during asphalt
milling operations.

		We were contacted by NIOSH in 2003.  They approached our industry
about the issue because we had worked with them on several projects over
the past decade.  During this time, the milling machine partnership has
successfully developed engineering controls for asphalt milling machines
using both water spray dust suppression and also ventilation or
evacuation systems.

		Our partners, we have worked closely with NIOSH and also OSHA in
analyzing, designing, and testing these controls systems for their
ability to reduce dust and silica emissions.  Other partner members will
provide detailed information about these controls during their
testimony.

		My purpose here today is to testify, to put this activity in the
context of the much larger 20-year effort at NAPA with these very same
partners and others to address a whole wide range of health and safety
issues affecting the asphalt industry's workers.  We believe that we are
a model partnership.

		Our partnership approach has managed to achieve significant reductions
to asphalt fumes during paving operations.  We have worked with
regulators, labor, academia, and industry to also develop new
technologies and product substitutions.  We introduced a product known
as warm-mix asphalt back in 2002.  It is already a third of our total
tonnage, and it reduces emissions significantly from our product.

		We have also worked cooperatively to develop the most widely vetted
and comprehensive and proactive roadway safety program in the world, a
program that is state of the art for employee safety and health
training.

		In each and every one of these efforts, the model is identical.  We
work in partnership with contractors, labor representatives, academia,
government agencies, including the Federal Highway Administration,
NIOSH, OSHA, and the EPA.

		The Silica Asphalt Milling Machine Partnership effort is based on
lessons learned from our very highly successful asphalt fumes
engineering control partnership, where this technology is now fully
deployed.  It was a voluntary effort initiated in the mid '90s, absent
any regulatory mandate.  The Partnership is to ensure the workers are
protected from potential silica exposure during asphalt milling
operations.

		This partnership includes all major stakeholders, government,
industry, labor, and academia, all six equipment milling machine
manufacturers involved.  They include Caterpillar, Wirtgen, Roadtec,
Volvo, Bomag, and Dynapac, as well as NIOSH.  It also includes the
International Union of Operating Engineers, the Laborers' International
Union of North America, NAPA, and also the Association of Equipment
Manufacturers.  Our partnerships include NIOSH and OSHA.  And we have
spent over 10 years, thousands of man-hours, hundreds of thousands of
dollars to develop effective worker protection systems.

		Today, you will hear the manufacturers to help you understand how we
have accomplished reductions in dust and potential silica exposure
during asphalt roadway milling operations, and to present our case for
an improved OSHA rule.

		As I have testified this morning, you will hear testimony from the
Partnerships and other attendees.  The industry has and will continue to
be committed to ensuring a safe workplace.  Today, we will demonstrate
to the Agency that by working together and including innovative design
changes and retrofits to milling machines, we can ensure that our
workers are protected from silica exposure.

		You will hear the industry's plans and commitments to provide
innovative engineering controls, the new milling machines that all but
eliminate dust and potential silica exposure, as well as methods we have
developed to retrofit existing milling machines to ensure a safe
workplace.

		As you listen to other members of this labor government industry
partnership testify, you will understand that the asphalt milling
machine engineering controls that have been developed with the help of
NIOSH and OSHA will provide sufficient protection from silica exposure
for workers during asphalt roadway milling operations.

		We believe the use of these controls will negate the need or
requirement for respiratory protection during these activities.  Thank
you very much for the opportunity to present our plan and our
recommended modifications to OSHA's proposed silica rule.  Thank you
very much.

		MR. BODWAY:  Good morning.  As Don said or introduced me, I am Tony
Bodway, Special Projects Manager at Payne & Dolan, Inc.  We are an
asphalt contractor producer in Wisconsin, Illinois, and Michigan.

		My employment with Payne & Dolan spans 32 years.  Twenty of those
years, I spent managing all of their milling divisions, which consisted
of 34 machines in 2008.  I have been in the Partnership since 2003.
That is when it was formed.  In 2005, I accepted the Chairman role.

		We can sit here all day and share with you the last 10 years of the
Silica Asphalt Milling Machine Partnership, but time will not allow.
But what I can do is share a snapshot of a great group of partners that
poured every ounce of energy and heart into ensuring that workers would
be protected from this terrible disease.

		A little bit on the Partnership background.  NIOSH, realizing the
success of the NAPA fumes partnership and the NAPA commitment to worker
health and safety, NIOSH presented NAPA with a new challenge.  NAPA
accepted that challenge to address potential silica generated by asphalt
milling machines.

		In 2003, the NAPA Silica Asphalt Milling Machine Partnership was
formed.  Partnership members were selected and the goals were
established.  Part of that team is made up -- partners on that team is
made up with contractors, Payne & Dolan, Incorporated; E&B Paving from
Indiana; manufacturer partners, Roadtec, Wirtgen, Caterpillar, Volvo,
Bomag, Dynapac, and Terex.

		The associations that are involved in the Partnership, the National
Asphalt Pavement Association, the Association of Equipment
Manufacturers, International Union of Operating Engineers, Laborers'
International Union of North America, NIOSH team members.

		One of the earlier pictures of one of the teams that worked with us,
again a picture of one of the technicians, NIOSH technicians performing
tests on one of the machines.

		Partnership goals were set first and foremost.  Number one was to
ensure maximum worker protection while complying with all applicable
standards.  Exhaust all options; leave no stone unturned.  Develop
systems on milling machines that achieve these goals while complying
with applicable standards.  Early testing.  Pre-2006 showed that further
technology, system refinement, development and testing was required.

		Role of NIOSH in the Partnership.  Establish and develop a teamwork
relationship.  Develop criteria and protocol for each of the systems
that require testing and sampling.  Collection of statistical valid data
and prepare reports for the Partnership.  Share vast knowledge of water
spray systems, which we'll talk about during the presentation.  Publish
best practices guidance for the industry.

		The contractor's role.  Share working knowledge of milling machines
and operation.  Provide access to appropriate milling sites for NIOSH
evaluation.  Coordinate with equipment manufacturers and other partners
to provide prototype machines for evaluation.  Develop and distribute
best practice bulletin, which you will see later on in the presentation.
 Operational guidance for water systems during milling operation.

		Continuous process of learning and improvement during the Partnership.
 Prior to 2007, we only required test sites to establish baseline
results on water pressure and flow rate changes.

		In 2007, we had a breakthrough.  The Partnership had the opportunity
to visit the NIOSH facility in Pittsburgh.  It was here that we learned
the similarity of mining dust suppressing and milling machines.  This
showed us that to capture silica, capture the dust.  The need to test
multiple machines was suggested; suggested improvements were apparent.

		In 2008, an abandoned asphalt runway in Marquette, Michigan, became
available and was secured for testing.  Two full rounds of testing
involving four manufacturers was completed by NIOSH on the site.
Following the testing in Marquette, Michigan, the manufacturers revised
their control systems based upon learning experience and additional
sites were needed.

		In 2010, a 14-mile project in Shawano, Wisconsin, that met the NIOSH
criteria was secured.  The partners agreed to have five of the major
manufacturers test simultaneously on one project.  This coordination of
all the partners tested our metal.  The success of the Shawano project
allowed us to move to the next phase, significant advances in the water
spray systems and the introduction of ventilation control systems.

		Between 2010 and 2013, NIOSH would conduct tracer gas testing on each
of the manufacturers' ventilation control systems for optimization.
This was completed at each of their manufacturing facilities.  The
completion of the tracer gas testing now allowed the machines equipped
with ventilation control systems to be field tested.

		At the completing of the tracer gas testing, NIOSH developed a new
protocol for eight-hour personal hygiene testing.  The protocol required
three days of testing on three different projects or sites, a total of
nine days of milling and personal hygiene testing.  As difficult as this
may sound, we successfully completing the testing on two of the
manufacturers.

		Why respirators will not allow for a safe work zone environment.  As
you can see in the picture here, work sites are often open to traffic.
Now take this scenario and make it night work.  We all know that the
DOTs are now requiring a lot of night work on projects, so you take this
scenario and basically turn the lights off, and you're working in the
dark.

		Communication with haul trucks and ancillary equipment.  Personnel
performing activities during the operation.  Communication with others
working around the machine.  Congested workplace with other -- I'm
sorry, congested workplace with other operations.  Also, as you can see
in this picture, it certainly is very congested.  You can see the
umbrella above the operator on the one machine.  Weather, extreme
temperature changes certainly play a factor in the use of a respirator.
Traffic control is constantly changing.

		Conclusion.  It is our responsibility to ensure that all current and
future employees, friends and family are allowed to work in an
environment that's free of health and safety hazards, and affords them
the opportunity to work safely.

		I'd like to thank you.  It has been a privilege and an honor to appear
and tell you the story of our successful partnership.  In conclusion,
again, for the personnel who operate these machines, failure is not an
option.  Thank you.

		MR. RICHMOND:  One second so we can get the slides changed here.  Got
it.  Good morning.  I'm Jeff Richmond, Sr., President of Roadtec,
Incorporated.  We manufacture milling machines, paving equipment, and
other related construction equipment.  We're based out of Chattanooga,
Tennessee, and we manufacture all of our products in Chattanooga,
Tennessee.

		Today, I am here to represent the six milling machine manufacturers
who are participating in the Silica Asphalt Milling Machine Partnership.
 Upon the screen, well, we'll get it up on the screen, here is a picture
of two asphalt milling machines during the 2008 Marquette field trials.
I'll make reference to these field trials further into my testimony.
But if you are not familiar with our product, that's what our machines
look like and that's kind of a typical milling operation.

		In addition to my company, Roadtec, the other milling machine
manufacturers in the Partnership include Wirtgen, Caterpillar, Bomag,
Volvo, and Dynapac.  We've been a part of the Silica Partnership Mike
Acott described to you since its inception in 2003.  Prior to that, my
company and I also participated in the Asphalt Partnership that
developed engineering controls for fume reduction surrounding highway
class paving machines.

		All of us are acutely aware of the potential hazards of silica
exposure, and we welcome the opportunity to work with the other partners
on engineering controls and best practices to ensure that our workers
are protected.

		The development of engineering controls and best practices over this
10-year period has followed a two-track path, and we believe we have
established effective exposure protection through both of these tracks.

		First, we evaluated existing water spray systems and identified areas
for improving the suppression of dust, thereby controlling potential
silica exposure.  Second, one of the manufacturers, Terex, also
developed a ventilation control system to minimize dust exposure.  This
system showed great promise of further minimizing silica dust when used
in conjunction with the existing water spray systems.

		In essence, any dust will be wetted, captured, conveyed, and then
deposited into a truck.  The goal was never to be satisfied with just
meeting recommended exposure limits, but to strive for maximum worker
protection through engineering controls and best practices.

		Today, I want to provide you with a brief description of how we have
improved the water spray dust suppression and ventilation control
systems, and why we are satisfied these controls will minimize potential
exposure to below the proposed PEL and provide worker protection.

		In 2007, after three years of testing to understand how water impacts
silica dust, NIOSH arranged for the Partnership to meet with the
researchers at the Pittsburgh research lab who have spent years studying
dust suppression in mining operations.  The premise was very simple: no
dust, no silica.

		In concert with these NIOSH experts, we developed several prototype
configurations involving water nozzle location, spray patterns, and flow
rates.  In a massive prototype trial involving four milling machines and
an abandoned airport runway in Marquette, Michigan, NIOSH found one
water configuration that showed significant promise.  And there again
that slide shows that field test in Marquette, Michigan.

		The water, and I'm going to point for a little bit.  The water -- the
slide you see here is actually a manufacturing or an engineering
drawing.  And what it basically shows is this is what's referred to as a
cutter box in a cold planer.  This is where we actually cut the asphalt.
 And this is the path that that material takes getting out of the
machine.  This tends to be the area where most of the dust is created in
a milling operation.

		You can see spray bars back here, another one here, and another one up
here at the top.  And basically those are the areas that we impact the
dust with water spray.  And this particular configuration showed the
best results in all the testing we did in Marquette, Michigan.  The
configuration you see yielded a statistically significant respirable
dust reduction in the range of 43 to 55 percent, compared to our
standard designs.

		Subsequently, in 2010, OSHA completed full shift sampling on this
configuration and confirmed exposures were significantly below the
proposed PEL.

		As a result of these findings, the Partnership published a best
practice bulletin, it's on the screen now, Operational Guidance for
Water Systems During Milling Operations.  A copy of this document is on
the screen and a copy is appended to this testimony as well.

		As I mentioned earlier, a second prototype or track the Partnership
deployed focused on ventilation controls, which yielded a statistically
significant reduction of 60 percent respirable dust exposure as compared
to a milling machine of original non-modified design.

		On the screen, you can see the early development or prototype of the
ventilation control system, which we recognized at the time as being
operationally cumbersome, but it did prove to be a very valid machine
for testing purposes.  There you can see the ventilation system up on
top and you can see some of the ductwork associated with that.

		As I said, that was an early prototype, not necessarily an operational
machine, but a good machine to provide test results.

		This prototype was further refined for incorporation into a workable
machine design, as I will now show on the screen.  This is that same
cross-section I showed earlier where we have the cutter box and the
primary conveyor.  This is called the secondary conveyor where the
material goes up and into the haul trucks.

		And what we've got is the original water system we talked about
earlier, but on top of that we now have a suction fan on top of the
machine.  We have ductwork to suck all the fine material out of the
cutter box and the primary conveyor, and we're taking that material up
and all the way up to the top end of what we call the secondary
conveyor, and we're dumping that material right into the haul truck.  So
that's the second control we referred to.

		Ultimately, the decision was made by the Partnership to deploy the
vacuum base ventilation control system in combination with the improved
water spray dust suppression as a means of ensuring maximum protection
of workers.

		In late 2011 and early 2012, NIOSH began working with us to test a
prototype ventilation control system using tracer gas methods.  This led
up to extensive personal hygiene field trials on two manufacturers
equipped with the combination improved water spray dust suppression and
ventilation control system.  The result was after 42 full-shift personal
breathing zone samples, collected at 11 different asphalt milling sites,
all respirable silica exposures were significantly below the proposed
PEL.

		This photo shows asphalt road milling machines that are equipped with
both ventilation control systems and the water systems from two
different manufacturers.

		In conclusion, I would like to note that this intensive 10-year effort
has given asphalt milling machine manufacturers confidence that we can
protect workers and meet applicable standards for silica exposure using
improved water spray dust suppression systems and that exposures can be
reduced even further using ventilation systems.

		Based on NIOSH's extensive research with the Silica Asphalt Milling
Machine Partnership, the manufacturers are now designing dust
suppression and ventilation control equipment that will meet our goal
for providing maximum protection to asphalt milling workers.

		All six manufacturers have now committed to producing new milling
machine, half-lane and larger, that will have effective water spray dust
suppression and ventilation control systems by January 1, 2017.  Letter
of commitment to achieve this goal from all six manufacturers have been
included in the OSHA docket.

		For existing machines, we are also committed to providing access to
retrofit dust suppression water systems that are equivalent to the best
system identified by NIOSH which will meet the proposed silica PEL.

		Some manufacturers may have systems to market earlier than January 1,
2017, depending upon product development timelines and NIOSH evaluation
processes for each manufacturer's individual design.

		Thank you again for the opportunity to participate in this hearing.

		MR. FORE:  Good morning.  I am Gary Fore, now retired as vice
president for health, safety, and environment, for the National Asphalt
Pavement Association.  I am trained as a chemical engineer and have a
master's in public health administration.

		For about 20 years, I have worked with NAPA as a technical advisor and
also a facilitator of the various government, industry, labor, academia
partnerships that Mike Acott and others described earlier.

		In 2003, I helped organize the first meeting of the Silica Asphalt
Milling Machine Partnership.  That was done at the request of NIOSH and
based upon our success in previous asphalt fume studies and asphalt fume
engineering controls.

		I am pleased to say that we have enjoyed success after success in the
pursuit of worker protection over this 20-year period.

		The Silica Asphalt Milling Machine Partnership is our latest example.
Today, I wish to address our specific thoughts and recommendations for
OSHA as it relates to improving the proposed silica rule.  We build upon
the testimony which was placed in the OSHA docket for the proposed rule
earlier this year.

		My first point, the various partners have spent 10 years gathering
data with NIOSH that demonstrates employee exposures in asphalt milling
operations can consistently be maintained below the 50 µg/m3 proposed
PEL without the use of respirators.

		This conclusion is based, as you have heard, upon 42 personal samples.
 Those were 8-hour time weighted samples, full-shift samples, that
occurred at 11 different asphalt milling sites.  All test protocols, the
actual testing, the design of the protocols, and statistical analyses
were performed by the National Institute for Occupational Safety and
Health.  Please refer to the graphical representation of the data to
bring some cites to this party.

		As you can see, there is a green line in the middle.  That delineates
a regime on the left versus the regime on the right.  On the vertical
axis is the exposure in µg/m3.  On the bottom is the chronology
starting with the Partnership in 2003 and up to the present.

		Our point here is that in the early years prior to 2007, and I will
speak to 2007 in a moment, prior to 2007, you can see the data was
somewhat variable.  We were experimenting with pressures and flow rates
on the machines of original design just trying to understand how to
influence this dust suppression.  In 2007, at the encouragement of our
labor partners, we had a breakthrough.  At that point, we met with the
NIOSH mining labs in Pittsburgh.  Those folks had done eons of study on
this subject and, in fact, on machines that are not dissimilar from our
machines.  The vertical wall milling machines have a cutter drum, they
have teeth.  It was very, very similar to what we do.  And they had
developed a real-time dust monitor which was all-fired important.

		That breakthrough, the ability to real-time monitor and see changes as
you made prototype changes and see them quickly was absolutely a
breakthrough, because we can make a change and then see what was
happening.  That led us to intensively focus on further developing water
spray dust suppression systems.  And, in fact, one of those NIOSH found
to be effective, and that has been referred here today, is the B2
system.  OSHA tested that system and, in fact, it was significantly
below the PEL.

		We went onto develop and test -- thank you, Jeff.  Went onto develop
and test ventilation control systems.  And that occurred in this area
here.  As you can see, all data were consistently below the PEL and, in
fact, they are less than half of the PEL.  This gives us confidence to
proceed.  And I might just add that is the operator position.  Here is
the same scenario for the ground man.  We tested at both positions.
Same scenario, significantly below the PEL.

		My second point, for reasons mentioned above, respirators are not
needed in asphalt milling operations performed by half-lane and larger
operations, those equipped with engineering controls, I might add,
developed by this partnership.  Indeed, as pointed out by Mr. Bodway,
respirator use in asphalt milling environments with temperature
extremes, moving heavy equipment, complex operations, complex
communications, and adjacent live vehicle and equipment traffic
substantially increase worker and pedestrian risk of injury.  As such,
respirators are not an appropriate alternative.

		My third point, there is a need to clarify (d)(8)(ii) of the proposed
rule which would require all operations in which respirator use is
required to presume that exposures exceed the PEL, and then provide
regulated areas and medical surveillance.  As stated above, respirator
use in these operations is not needed or appropriate.  We request that
OSHA clarify for operations where respirators are not required in Table
1, employers are not required to comply with the provisions that are
triggered by exceeding the PEL.

		My fourth point, Table 1 represents a reasonable approach to achieving
the Agency's goals of controlling silica exposures while reducing the
cost potentially associated with compliance.  We strongly encourage OSHA
to retain a revised Table 1 in the final rule.  Further, we recommend
that OSHA make specific changes to Table 1 by including a specific
operation entitled Asphalt Milling Half-Lane or Larger Drivable Milling
Machine.

		We have offered specific language in our written docket comments to be
included in Table 1 for this operation.  This language is supported by
exposure data as we have seen and engineering evaluations conducted by
our own NIOSH.  In addition, letters of commitment from the milling
machine manufacturers that Mr. Richmond mentioned to provide controls
on all new milling machines by a certain date have also been placed in
the docket.

		Our recommendations are based on proven technology, and are supported
and would recommend a daily visual inspection and annual control system
review conducted by a person qualified by training provided by the
equipment manufacturers.

		Lastly, our recommendations are entirely consistent with
recommendations provided by NIOSH in their current draft document
entitled, "Best Practice Engineering Control Guidelines to Control
Worker Exposure to Respirable Crystalline Silica During Asphalt
Milling," dated February 2014.

		In the executive summary of the draft document -- by the way, NIOSH
approved our making this statement.  In the executive summary, NIOSH
states based on the 10 years of research by the Silica Milling Machine
Partnership, NIOSH researchers recommend a combined engineering control
approach that includes ventilation controls and water spray dust
suppression controls.

		This combined approach has been shown to control worker exposures to
respirable crystalline silica from coal milling machines during 21 days
of personal breathing zone sampling, at 11 different highway
construction sites.  All 42 personal breathing zone sampling results, 21
days, and 2 workers were below currently published regulatory and
recommended occupational exposure limits for respirable crystalline
silica for the well-designed combined control approach.

		NIOSH and the Silica Milling Machine Partnership recommend these
controls be placed on all new half-lane and larger milling machines to
reduce worker exposure to respirable crystalline silica.  The
ventilation and water spray dust controls described in this document
represent the current knowledge of best practices developed by the
Silica Asphalt Milling Machine Partnership.

		I conclude our remarks with a note of thanks for the opportunity to
present the Silica Asphalt Milling Machine Partnership along with our
recommendations for improving the proposed silica rule.  We would be
happy to entertain any questions.  And by the way, the shot on the board
is the current design of the cover of this NIOSH Best Practices document
which I just read the executive summary for.

		JUDGE SOLOMON:  All right.  Mr. Elisburg, do you have any documents
you want to have marked as exhibits?

		MR. ELISBURG:  No, I believe we have already introduced into the
record those things that we have.  And the rest is attached to our
testimony.

		MS. KRAMER:  Your Honor, I would like to, if possible, reserve two
exhibits for the record.  I'd like to mark later Exhibit Number 65 when
we can print out a color copy of the document that includes the
statements of Mr. Acott, Mr. Bodway, Mr. Richmond, Sr., and Mr. Fore
as they presented it today.

		And also for Exhibit Number 66, a joint exhibit that includes all of
the PowerPoint slides that we saw here today, also in color, so we can
get a full picture of everything they have had to say today.

		JUDGE SOLOMON:  Okay, I don't think that's any problem.  I assume you
can get those.

		MR. ELISBURG:  Actually, they have all been submitted to OSHA
presently.

		MS. KRAMER:  We have them, Your Honor.  We just need to print them out
in color.

		JUDGE SOLOMON:  Okay, thank you.  All right, can we have some idea of
how many people are going to ask questions?  Starting with Dr. Mirer at
the lowest level, and would the others please line up?  We probably have
about six people who want to ask questions.  So state and spell your
name, please.

		DR. MIRER:  Franklin Mirer, M-i-r-e-r, CUNY School of Public Health,
and representing I guess the AFL-CIO as well.  First, thank you very
much for the presentation.  It's a pleasure to see real new evidence
placed in the docket here.  I guess it was here before, but real new
evidence being presented.

		My questions may be kind of geeky, industrial hygienist questions that
might be better referred to NIOSH.  But you're sitting here and they are
not.  So my first question is how long does a milling machine last
before you have to buy a new one?

		MR. RICHMOND:  Typically, 7 to 10 years would be normal.

		DR. MIRER:  Okay.  So if nature took its course without retrofit, we'd
be done with this in that time?

		MR. RICHMOND:  Oh, absolutely.

		JUDGE SOLOMON:  I'm sorry.  I have to identify for the record who
responded.

		MR. RICHMOND:  Jeff Richmond, Sr.

		JUDGE SOLOMON:  Okay.

		DR. MIRER:  Second, do you have an idea under the old conditions of
how far the dust would travel from the milling machine to other
operations?  It used to be a big cloud of dust.

		MR. BODWAY:  Gary, do you want to answer that?  I can also help with
that.

		MR. FORE:  I don't -- I wouldn't call it a big cloud of dust, but
there was dust around the machines.  I don't know that we have data that
shows how far it actually proceeded.  What we did have, the best shot we
could give you would be the ground man exposure data.  And as evidenced
here, the ground man being very close to the machine because he tends to
guide the machine as it is moving alone, he's the guy closest, and that
guy, his exposures are consistently less than half of the proposed
exposure limit.  So what I can tell you is if there were anybody else in
the vicinity of the machine, they would not be highly exposed.

		DR. MIRER:  Okay.  Can we go back to the chart, the slide with Exhibit
2?  Can you guys get back to that?

		MR. FORE:  Yes, we can do that.  There is the ground man.

		DR. MIRER:  So that would be the --

		MR. FORE:  Yeah, and what I'm referring to, as you can see, these are
the 42 sample points at 11 different milling sites.  And as you can see,
here is the red line which is the proposed PEL.  As you can see, we're
very, very low consistently.

		DR. MIRER:  Right.  And so these, I just wanted to emphasize I saw
this in your pre-hearing submission, these exposures are all below 25
µg/m3, right, the proposed action level?

		MR. FORE:  Yes.  And for the, if you back up another slide, the
operator position is even lower.

		DR. MIRER:  Yeah, I was going to give it the most difficult test.  So
we could go back to Exhibit 2, so NIOSH apparently thinks they are
capable of measuring silica down to those levels?

		MR. FORE:  NIOSH did, in fact, measure, and they did -- they designed
the protocols to be statistically significant at the 95 percent upper
confidence level.  The range on the data, combined data, operator/ground
man is 4.9 µg/m3 to 18 at the 95 percent upper confidence level.

		DR. MIRER:  Very good.  And the last question is what's the silica
content of the material that they are milling?  And this is -- and where
is it coming from?

		MR. FORE:  The silica content varies depending on the region of the
country, the milling -- from milling site to milling site.  Typically,
it would be in the range of say 10 to 30 percent, but it is as low as 0
and maybe as high as 50 in some cases.  What I would further tell you,
though, is one thing we learned is that the silica content and the
respirable dust that's collected is significantly different and lower
than what you see in the bulk material.

		DR. MIRER:  Is the machine getting through the asphalt into the
underlying substrate and that's where the silica is coming from?

		MR. FORE:  Oh, actually, the silica is interstitial silica to the
aggregate.  It's part of the aggregate, you can imagine.

		DR. MIRER:  So the material is asphalt plus aggregate.

		MR. FORE:  Right.

		DR. MIRER:  That's what's going on.

		MR. FORE:  So asphalt is about 5 percent, about 5 percent liquid
asphalt, the glue, and roughly 95 percent stone or aggregate and other
sand type materials, which can often and usually do have a silica
content.  And as you fracture that, as you might expect, you get the
generation of the dust.

		JUDGE SOLOMON:  Thank you, Dr. Mirer.

		MR. FORE:  Thank you.

		MR. ELISBURG:  Don Elisburg.  Frank, the testimony points out that the
last seven, six or seven years of this project we have driven towards
get rid of the dust.  And because of this varying silicon content,
people are going crazy on each job trying to measure the silica.  The
real question is if you reduce the dust, you've done it.  And that came
as a suggestion from our labor partners of if we get rid of the dust, we
get rid of the silica, and it sort of cut to the chase, and that's why
we keep referring to the dust.

		Because as Gary pointed out, you know, take your shot as to what the
content is from zero to very high.

		DR. MIRER:  Okay, thank you very much.  Thank you, Your Honor, for all
this time, and I'll defer.

		JUDGE SOLOMON:  Thank you.  Ms. Trahan?

		MS. TRAHAN:  Chris Trahan with the Building Trades, T-r-a-h-a-n.
Thank you, gentlemen.  Your testimony was very informative.  To go back
to some of these data points, has the exposure data been submitted to
the docket?

		MR. FORE:  Yes, it has, by reference, Chris, because NIOSH peer
reviewed and published each of the reports during this partnership.
They are all EPHB peer-reviewed reports from like 11(a) up through
25(a).  And they are part of the official docket.

		MS. TRAHAN:  Thanks.  And based on these exposure measurements, using
this combination of controls, it appears as though these operations
could actually be within a PEL of 25 versus 50.  Would you agree to
that?

		MR. FORE:  I cannot disagree with that.  The data, as we can see, I'm
going to go to Exhibit 1 first, the data is below 20 on the operator
there.  And let's go to the second slide, it's here, right below 25
generally --

		MS. TRAHAN:  Thanks.

		MR. FORE:  -- at the ground man position.

		MS. KRAMER:  Your Honor, just for the record, I wanted to note that
that is Exhibit 2, the ground man TWA exposures slide.

		MR. FORE:  Yeah.  And my name is Gary Fore, sorry.

		MS. KRAMER:  Thank you.

		MS. TRAHAN:  One question that I think an issue that's come up during
the hearings, you indicated that water is used as an effective control
or in combination with the ventilation.  Since you do asphalt paving
everywhere, all kinds of weather, how do you deal with using water when
the temperatures are at or below freezing?

		MR. FORE:  Mr. Bodway?

		MR. BODWAY:  Very carefully.

		MS. KRAMER:  Exposure monitoring, would you mind identifying yourself
just for the record?

		MR. BODWAY:  Oh, Tony Bodway, Payne and Dolan.

		MS. KRAMER:  Thank you.

		MR. BODWAY:  If we have to go out where the weather is such that
there's potential for freezing, we have sources from some of the
ready-mix plants to get hot water.  And we have also started outfitting
some of our trucks that would go out in inclement weather with heaters
on them to keep the water warm, so it would allow for spray and
potentially reduce freezing in the systems.  And we can add some
additives to keep the water from freezing.

		MS. TRAHAN:  Thank you.  In your comments, your written comments, I
don't think it was mentioned here today you mentioned that -- or they
indicate that you agree with OSHA's application of the proposed standard
to all construction operations because of worker mobility and that OSHA
shouldn't exempt any particular operations.  I don't know if you can
elaborate on that point or maybe explain why it is important.

		MR. FORE:  It doesn't take very long, Chris.  This is a known human
carcinogen we're dealing with.

		JUDGE SOLOMON:  You've got to identify yourself.

		MR. FORE:  I'm Gary Fore.

		MS. TRAHAN:  Okay, thanks.  Also in your written comments, you
mentioned a rule for a competent person.  What are the benefits of
assigning a competent person to deal with the issue of silica exposure?

		MR. FORE:  Well, I think we've suggested that in the process of
ensuring that the best practices are followed.  We have in this process
-- I'm Gary Fore.  We developed best practices for the operation of the
water system surrounding these machines.  And we have suggested that we
would do a daily inspection and then an annual trained inspection.

		These machines aren't exactly as simple as they look, so it does take
training to be able to detect where maintenance might be required,
changing of the teeth, the spray systems, a nozzle that might be plugged
or placed inappropriately.  So, yeah, it takes a level of competence to
operate these complicated machines.  The new machines have a computer
control.  I mean they are very sophisticated machines.  They're not just
a piece of hardware.

		MS. TRAHAN:  Thank you.  I think that your segment of the construction
industry has done a very good job in coming together and sharing
information on exposures and controls.  Do you have any suggestions how
other segments of the construction industry could do that, to come
together to share information on exposure controls and the objective
data, if that ends up in the final rule, how the other parts of the
industry may do that?

		MR. FORE:  Where's Mike?  I'll let Don answer that.

		MR. ELISBURG:  Don Elisburg.  Let me answer it first, and then I'll
pass it to Mike Acott.  The bedrock of these partnerships, in the very
beginning, with all these diverse groups has been transparency and
trust.  And we basically, as these various from academia and labor,
industry, government, was everything has got to be open, everything has
got to be available, everybody has got to know what's going on.

		And so to the extent that any group wants to try it out, you know,
it's a very easy kind of process.  But you have to understand that you
have such diverse interest, the only way you bring these interests
together is everybody has to be, as we put it, on the same page, with
the same understanding and the same knowledge.  And that's kind of how
we have talked, as you know, around NIOSH and OSHA and CPWR, and
everybody, this is how these partnerships have been successful for this
group.

		I don't know exactly how you bottle it and sell it, but that's the
process.  Mike?

		MR. ACOTT:  Yeah, sometimes you think you've caught lightning in a
bottle, but we've done it now three times, and it's the same model.
Probably the most successful model has been the warm-mix.  You know
we've taken a product from 2002, and then by 2007 suddenly it has
exploded.  We're close to 100 million tons of warm-mix, which now
reduces exposures at the source rather than the end of pipe.  And the
only way that you could have done that is to have the Federal Highway
Administration, OSHA, all the labor unions, it would not have been
possible for the industry to get to where it is on warm-mix.

		So for us, the success is deployment.  And the only way you can deploy
is to have all the partners involved.  And we've done that three times.

		MS. TRAHAN:  Thanks.  And just to clarify, the warm-mix is a change in
the asphalt to reduce asphalt fumes?

		MR. ACOTT:  Yeah, there is a direct connection with the temperature of
the mix with the amount of fume that is given off.  And if you can drop
your temperatures by 50 degrees, you totally reduce exposure.  So the
first, the engineer controls on the paver was to ventilate the fume away
from the worker, which is now fully deployed because that went in place
in 1997.  And all highway class paving machines now have the controls on
them.

		But warm-mix goes a step further.  It deals with the temperature at
the mix, so it's at the source.

		MS. TRAHAN:  Right.

		MR. ACOTT:  So our hope is that warm-mix will completely replace the
hot-mix.  And we're on a trajectory of use is -- it is the amount of
warm-mix and the speed of the deployment has been extremely rapid.

		MS. TRAHAN:  Thank you very much.  I appreciate it.

		JUDGE SOLOMON:  Ms. Nadeau?

		MS. NADEAU:  Liz Nadeau, N-a-d-e-a-u, and I'm with the International
Union of Operating Engineers.  I just have a few questions.  In your
comments, the Silica Partnership stated that concrete milling should be
treated separately from asphalt milling.  And, of course, the IUOE took
the same position.  I just wondered if you could sort of elaborate on
your reasons for wanting to separate the two?

		MR. FORE:  I'm Gary Fore.  Some of our initial testing indicated that
when, in fact, we encountered concrete, the exposures were different.
They were higher.  If one examines that, the logic says there is more
there to generate dust, more silica in the bulk material to generate
respirable crystalline silica exposure.

		All of our data has been based on asphalt milling.  And given the
understanding that exposures can be higher when milling concrete, we
said, look, we focused for 10 years on asphalt milling and we should
continue to focus on asphalt milling, and make it clear that we are not
misrepresenting what we have done by saying it includes concrete.

		MS. NADEAU:  Do you have an estimate of what percentage of milling
involves asphalt milling versus concrete milling?

		MR. ACOTT:  Well, the way milling evolved was, first of all, it's the
way you now fix roads.  So if you have an old road, rather than
rebuilding the whole road, you just mill off one inch, two inches, maybe
even three inches.  So it's an essential part of road construction.

		And to give you an idea, we recycle about 100 million tons of mix a
year, so that's 100 million tons is milled off of the pavement.  And
close to 90 percent of that goes right back into mix.  We do about 350
million tons of mix a year is placed, so of which 100 million tons of
that 350 is milled out from the pavement.  So it's a pretty sizable part
of our business.

		MS. NADEAU:  You mentioned in your testimony or your responses to
questions actually asked by Ms. Trahan that additives are used to keep
water from freezing.  Could you name some of the additives, and would
calcium chloride be one of them?

		MR. BODWAY:  Tony Bodway.  Calcium chloride would not be one of them.

		MS. NADEAU:  Okay.

		MR. BODWAY:  At some point, depending on the temperatures, we would
use a recycled antifreeze.  It is diluted down.  We also use an additive
that most people are familiar with as Dawn dish soap that helps
encapsulate and reduce some of that freezing.

		MS. NADEAU:  You mentioned that you went to 11 different sites and
took 42 samples.  During the course of the past week, there was a lot of
testimony and comments about the various environmental variables,
whether it be wind, weather, humidity, regional differences in the
content of silica in the soils.  I just wondered if you could describe
some of the different variables that were present on the 11 sites and
whether any of the variables would make a difference to the conclusions
that you have reached?

		MR. FORE:  This is Gary Fore.  The fact that NIOSH measured respirable
crystalline silica dust during the prototype development phase at 10
locations around these machines, there were 6 low and 4 high.  And they
also had a wind anemometer on top.  Yes, wind is a factor.  But in this
data, the way it was done, what I would tell you is it's statistically
significant at the 95 percent confidence level.

		And that's quite remarkable when you think about full-shift days at 11
different sites.  The reason for the different sites was to compensate
for potential variability in silica content and road construction type
activity, whether it be speed of direction, depth of grind, all of those
things that go into variability.

		The ideal, it was to design a protocol that was statistically valid
once the sampling was done.  We worked with NIOSH.  They actually had a
statistician who has worked with us for 20 years.  His name is Stan
Shulman.  He helped design the protocols so that you would accommodate
for all these variables.  He was really schooled, after 20 years, in
variables surrounding these machines, whether it be wind direction,
speed, depth of cut, whatever.

		MS. NADEAU:  And other things that may be going on simultaneously such
as traffic that's going by or multi-employer operations, those types of
variables were factored in as well?

		MR. FORE:  Absolutely.  This is Gary Fore, again.  Yeah, we actually,
I recall from my own experience, we had one test where you had live
traffic right next to the machine, and it tended to generate some higher
readings on that side of the machine.

		And, yeah, all of those things, we were very, very, after 10 years of
studying these things and turning them inside and out, both in the field
and in the design room, we were very -- we were acutely aware of the
variables that were going into the equation.  And for that reason, we
went at it statistically, and we had the best help we could get to do
that.

		MS. NADEAU:  Am I done?

		JUDGE SOLOMON:  How many more questions?

		MS. NADEAU:  Just one.

		JUDGE SOLOMON:  Okay, go ahead.

		MS. NADEAU:  In terms of the NIOSH representatives involved, can you
name some of them and say whether they were actually on the site during
some of these samplings and testings?

		MR. FORE:  Actually, they were the only people on the site doing
testing.  They were the only people that did the analysis.  They were
the only people that did the statistical analysis.  Early on, Alan Echt;
later on, Leo Blade; and later on, Duane Hammond was the project, kind
of the project leader for NIOSH.  We had Stan Shulman, a statistician.
We had Andy Sichala (ph.) from the Pittsburgh mining labs, Greg Checken
(ph.) from the Pittsburgh mining labs, Jay Collinette (ph.) from the
Pittsburgh mining labs.  All of these people were on site.  And there
were other.  There were technicians that I probably cannot name at this
point.

		MS. NADEAU:  Thank you.

		JUDGE SOLOMON:  Next?

		MS. CORDARO:  Hi, I'm Tressi Cordaro.  The last name is C-o-r-d-a-r-o.
 I'm with Jackson Lewis.  My questions might be more aimed for -- is it
Richmond?  I guess let me start by my basic question is do I understand
correctly that this was a collaboration of six manufacturers and it took
a length of time, of total 10 years to reach the results you're at, that
you're giving today?

		MR. RICHMOND:  That is correct.  We started in 2003.  That's correct.

		MS. CORDARO:  Okay.  Can you clarify for me, if I understood correctly
that it was the combination of controls, the ventilation and the water
spray --

		MR. RICHMOND:  Correct.

		MS. CORDARO:  -- that was able to reduce the exposure.  Can you
explain to me what the results would be if it was just the water spray
alone?

		MR. RICHMOND:  Jeff Richmond, again.  Actually, looking at Gary's
data, the data you see up here, and correct me if I'm wrong, Gary, but
that originally was just the water only.

		MR. FORE:  Yes.

		MR. RICHMOND:  So that data, basically the below 50, below 25 was all
based on strictly water testing only.

		MS. KRAMER:  Your Honor?

		MR. RICHMOND:  And this came after -- understand that one of the
breakthroughs we had with the NIOSH folks in Pittsburgh was we had
looked at a lot of different water systems, and one of the things we
thought might be the answer is a very high pressure water system.  But
we found out from the NIOSH people in Pittsburgh that was exactly the
wrong way to go.  Their recommendation was more water, less pressure.
And so we did things like that at their advice.  And those results were
a product of making those changes and doing that testing, again.

		MS. KRAMER:  Your Honor, for the record, the witness was gesturing to
PowerPoint Exhibit 2.

		MS. CORDARO:  And you talked a little bit about retrofitting for the
water spray.  Can you retrofit for the ventilation?

		MR. RICHMOND:  That hasn't been contemplated.  We're focusing on, with
our training schools and our best practices in all of our field training
is encouraging and working with our contractors to improve the water
system up to the referred B2 system.  And we do have retrofit kits
available to upgrade machines to that standard of water.

		MS. CORDARO:  For the water spray alone.

		MR. RICHMOND:  Water only, correct.

		MS. CORDARO:  Okay.  So you don't have the ability right now to
retrofit for the ventilation?

		MR. RICHMOND:  No, ma'am.

		MS. CORDARO:  Okay.  Can you talk a little bit about the maintenance
intervals for the water spray and the ventilation system on the milling
machines?

		MR. RICHMOND:  Absolutely.  That's one of the things that our
commitment or all the manufacturers' commitment is on the maintenance
side because none of these controls are going to do anybody any good if
they're not maintained properly.  So with our operation and service
manuals, and our training manuals, and the schools we do at the factory
and the field, maintenance of those water systems, maintenance of those
fan systems will be part of that training, as well as the winter
schooling we do at the factory.

		And, certainly, in the case that Tony referred to, the water systems
and some of the issues with maintenance plugging, we'll prescribe
specific test procedures that the contractors can do on a periodic
basis.  We're thinking probably monthly would be adequate, but basically
testing the water systems to ensure that we are getting the water in all
the right places.

		With the fan system, it's relatively simple.  It's not a complicated
system.  But, obviously, plugging is one of the things we have to watch
for and so we'll have specific tests, and we'll be able to test airflow
to make sure that we don't have plugging in the system and we are in
fact moving the material properly.

		MS. CORDARO:  Is it contemplated that maintenance can be done by one
individual or multiple individuals?  I mean --

		MR. BODWAY:  Can we take this?

		MR. RICHMOND:  Sure, by all means.  We'll let Tony take it.

		MR. BODWAY:  Tony Bodway.  As a milling contractor and also E&B
Paving, Payne & Dolan and E&B Paving, we have daily maintenance
checklists that all of our operators are required to go through prior to
even turning the key on.  Once you go through those procedures, get the
machine started so that you can operate water spray fan systems, there
are checklists that they have to go through.

		They have to ensure that every nozzle is cleaned.  Is it pointed in
the direction it is supposed to be.  Nozzles have -- there is 100
different designs for spray nozzles.  They can be fans, circles, direct
jet spray.  Each location may have a specific design.  So those are
cleaned, flow is checked, pressure is checked.  That's part of the
walk-around in the morning by a designated -- a competent person that
has been trained on a milling machine.  They would do that each day.  Or
they do it at the end of the day and then they're ready to go in the
morning.  And if there are any issues during the day, and they'll see it
on the pavement if the nozzle is not spraying or they see something
irregular going on, they will stop and make those adjustments when they
check the bits or the tooth.

		MS. CORDARO:  Okay.  So I mean I understand that the daily visual
check is par on course for keeping maintenance.  But on a more in-depth
level, as far as like monthly maintenance, what kind of --

		MR. BODWAY:  Tony Bodway, again.  That's ongoing.  If it's today or 30
days from now, if the system is operating properly and it meets the
standards that the manufacturers have set for that flow, pressure,
nozzle design, and being in the climate that we live in, in Wisconsin,
our machines are brought in typically the end of December and go through
a complete makeover in our shop during the winter months.  And those
systems again are looked at, evaluated, and checked out.

		MS. CORDARO:  And when you say makeover, like replacement of parts or
I'm just trying to understand the level of maintenance that might be
needed on one of the machines?

		MR. BODWAY:  Tony Bodway, again.  The crews carry, most of the crews,
our crews and I think that E&B's probably do, they carry a spare water
pump with them, with the crew.  They carry nozzles.  They carry the
pieces of that system, if something goes down in the field, to make that
repair.  But, again, yes, I mean our machines at Payne & Dolan, and I
know the same thing with E&B, are basically disassembled and put back
together at our facilities to meet the standard.

		I mean I designed a checklist a couple of years ago.  When that
machine comes in, a lot of times you have to feel to adjust things or
just repair them to keep them going during the day.  But when that
machines leaves the shop in the spring, when the foreman comes to pick
it up, there will be a checklist that meets all the manufacturer's
standards that this button does exactly what the manufacturer says.  And
everybody signs off on that.  So it's a very rigid program at our
company on daily maintenance.

		MS. CORDARO:  Okay, I appreciate your response.  Can you tell me, and
I haven't taken a look at your written comments, are there cost
estimates included with respect to the maintenance of the milling
machines?

		MR. BODWAY:  Tony Bodway.  Cost of maintenance of a milling machine?

		MS. CORDARO:  Yeah.

		MR. BODWAY:  Typically, I would say minimum yearly is probably
somewhere, including winter maintenance, is somewhere typically between
25 and 45 to 50 thousand dollars.

		MS. CORDARO:  Okay.  Can you tell me how long would these milling
machines be actually in service?  And I'm not talking about, you know,
yearly.  I'm talking about the longevity of the vehicle, itself.

		MR. RICHMOND:  We talked about earlier -- Jeff Richmond, again.
Typically 7 to 10 years, and I would qualify that to say typically
mainline contractors like an E&B or Payne & Dolan might run that machine
more, in the range of 5 to 7 years.  And then sometimes you'll have an
afterlife, a second life, if you will, up to maybe 3 years and so on.
I'd say 7 to 10, that's considering probably two lives in that machine's
term.

		MR. BODWAY:  I would also comment on that.  Tony Bodway.  At Payne and
Dolan, we have traditionally since the '80s have operated our machines
up to 12,000 hours, which based on overall average with the economy and
the workload available, probably averages out to about 1,000 hours a
year.

		JUDGE SOLOMON:  Do you have any further questions?

		MS. CORDARO:  I have two, if you don't mind, please.  Can you just,
and again forgive me if I missed this piece, what is the average cost of
just one of these machines?

		MR. RICHMOND:  A general average, and I'm referring to half-lane
milling machines, you could assume in the range of about $600,000.  That
would be a good average.

		MS. CORDARO:  And that's with the ventilation and the water spray
system?

		MR. RICHMOND:  Yes, ma'am.  Jeff Richmond, I'm sorry.

		MS. CORDARO:  And my last question is do you have cost estimates for
the retrofitting?

		MR. RICHMOND:  For the -- Jeff Richmond again.  For the water system?

		MS. CORDARO:  Yeah.  And I guess if, I mean, if again we're not
talking ventilation because it's not available, so, yes, for the --

		MR. RICHMOND:  Yes.  I don't have a number with me.  It's a
relatively, when you think about retrofitting water systems, you're
talking about basically a spray bar and a group of nozzles and some
flexible plumbing, so it's relatively inexpensive.

		MS. CORDARO:  $500?  I'm joking.

		MR. RICHMOND:  A little more than that, but --

		MS. CORDARO:  Right, that's my point.

		MR. RICHMOND:  Say north of $500, south of $5,000, how's that?

		MS. CORDARO:  Can you give me a little bit more of a ballpark?  I mean
are we thinking more in the $5,000 range?

		MR. RICHMOND:  Probably, let's say $2,500 to $5,000.  And that would
be on the assumption that we had to go in and change everything.  And
that's not always necessarily the case.  It may be just a matter of a
few nozzles.  But worst case, that would be right.

		MR. ELISBURG:  I want to add onto this.  Don Elisburg.  Sort of
sitting here as a layman, listening to these questions about the water,
one point that I would like to sort of clarify as educational for
everybody, every milling machine has to have a water system because they
are also a major design of the water system is to cool the cutters, all
right?  You don't run a milling machine very long dry.

		Some of the problems we've had in the past with some people taking
measurements has been this crew didn't want to use the fire hydrant or
whatever, and so they're going through the neighborhood with a cloud of
dust and spending a fortune because the cutters, the pieces of the
cutters, the cutting tools, okay, are very, very expensive.  And they're
what, $100 and some odd in a typical --

		MR. RICHMOND:  $160.

		MR. ELISBURG:  $160.  So you are talking about a major expense if your
cutters grind down too soon.  And so in all of the effort when we talk
about retrofitting, we talk about the best practices, there has always
been the fact that no milling machine comes off anybody's assembly line
without water doing something to cool it.

		MS. CORDARO:  Understood.  Thanks.  I have one more question, if you
don't mind.  Just on the --

		JUDGE SOLOMON:  I think you're at the end of your questions.

		MS. CORDARO:  Excuse me?

		JUDGE SOLOMON:  You're at the end of your questions.

		MS. CORDARO:  Okay.  Just one more, thank you.

		JUDGE SOLOMON:  No.  You're at the end of your questions.

		MS. CORDARO:  I do believe that --

		JUDGE SOLOMON:  You said you had two, now you're on three, and you got
a bonus --

		MS. CORDARO:  I said I had a few more questions.  I don't --

		JUDGE SOLOMON:  You said two.  I'm sorry, ma'am.  You are done.

		MS. CORDARO:  Well, I'm sorry, I misspoke.  I have another question.

		JUDGE SOLOMON:  You are done.

		MS. CORDARO:  Okay.  Well, I'm going to note my objection that I
should at least be allowed to ask one more question, given the --

		JUDGE SOLOMON:  There is the end of the line.  We'll see how long it
will take.  Okay, Mr. Schneider?

		MR. SCHNEIDER:  Scott Schneider,

S-c-h-n-e-i-d-e-r, with the Laborers' Health and Safety Fund of North
America.  First, I just wanted to compliment you on your presentation
and thank you.  We are really proud to be part of this great
partnership.  It has been a fabulous experience and I think a very
successful one.  And it shows what happens when labor and industry work
together with the government.

		So I just had a couple of questions.  One of them is you talk about
the daily inspections and the monthly maintenance checks.  And I mean
they're doing these anyway.  I mean when you add in the checks on the
ventilation system and checks on the spray nozzles, does that add
significantly to the monthly and daily checks or is it relatively small?

		MR. BODWAY:  Tony Bodway.  The span of dollars, costs, or time?

		MR. SCHNEIDER:  Just in terms of time, yeah.

		MR. BODWAY:  If it added five minutes, that would probably be a lot.
You know, typically, the operators are assigned to a machine.  They know
their machine very well.  So they're going to go through the program on
their checklist in the morning.  So it's not going to add very much
time.  It's like I think Jeff had said, it's a relatively simple system.
 It's not that complex.

		MR. SCHNEIDER:  Okay, thank you.  Now, when you're using water, some
people have said, well, when we use water, we may violate some
environmental standards for the runoff or whatever.  Is that an issue
with these machines or with the addition of the water for the control
exposures?

		MR. FORE:  This is Gary Fore.  We're not talking about that much
water, you know.  The practical matter is this is a recycled material,
and the more water we put in, the more we have to take out when we want
to recycle it.  So there is a balance there in terms of not adding water
that's not necessary.  You don't see runoff as such around these
machines.  At most, you might see a dribble here and there.  And most of
what we're talking about goes in the truck and then goes to the holding
facility at the asphalt plants.

		MR. SCHNEIDER:  Okay, thank you.  And, lastly, some people -- we
talked earlier last week about what impact controls may have on
productivity.  And some people say, well, you know, when you add
controls, it really reduces productivity.  There is a decrement in
productivity.  But does this have any impact on productivity?  In some
cases, I know it can have an improved productivity by making the cutter
heads last longer or improve the --

		MR. RICHMOND:  Jeff Richmond.  From a manufacturer's point of view, I
think your last point was exactly right.  If anything, it should improve
productivity.  If we're ensuring that the contractors use the right
amount of water, as Don pointed out earlier, it means your cutter bits
live longer.  And if your cutter bits live longer, you have to stop less
and you're more productive.  So it has the ability to make you more
productive.

		MR. BODWAY:  Yeah, Tony Bodway.  From the contractor's perspective, I
see it's not a detriment.  You know, we try to gear for high production.

		MR. SCHNEIDER:  Right.

		MR. BODWAY:  And it has not changed our focus on that at all.  If
anything, we're probably a little more productive.  We have less things
to have to pay attention to during the course of the day.

		MR. SCHNEIDER:  Okay, thanks very much.  I appreciate your testimony.

		MS. WATSON:  Good morning.  Felicia Watson with the National
Association of Home Builders.  I have a few questions.

		JUDGE SOLOMON:  Spell your last name, please.

		MS. WATSON:  W-a-t-s-o-n.

		JUDGE SOLOMON:  Go ahead.

		MS. WATSON:  Good morning, gentlemen.  I'm not sure which one of you
mentioned this.  I believe it was in the introductory remarks in your
testimony.  And I have not read your comments, so if it's already in
there, please forgive the question.  You had mentioned that in doing
this joint partnership, it took you a period of 10 years to come up with
the solution.  And you mentioned that it cost hundreds of thousands of
dollars.  Do you have any actual cost figures on how much it cost all of
the parties that were involved and participated in this partnership,
man-hours, costs for time allotments, testing, that type of thing?  Do
you have any cost data that you can submit for the record?

		MR. ACOTT:  As far as I know, I don't think we've done any accounting
on it.  Just, you know, the number of machines, the number of field
trials, the testing by NIOSH, it's just a very rough estimate.  Unless
you guys have done it?

		MR. BODWAY:  Tony Bodway.  We've talked about it.  We don't know what
that number is.  I don't know what the number is for my time at Payne &
Dolan.  I know that the commitment to the Partnership in 2003 by the
family that owns Payne & Dolan, we never talked about dollars.  It's all
about worker health and safety.  We have to protect the people that do
our work.

		So we never said, you know, Tony you get $10,000 or $100,000 to work
on this partnership.  We just never sat down and put it down.  I know
the manufacturers --

		MS. WATSON:  I was just trying to get -- what I was trying to get from
you folks in your testimony was you had mentioned that it cost hundreds
of thousands of dollars over a 10-year period.  I was just trying to get
a sense of what you expended, time/effort-wise to develop this solution
to address this issue with silica.  But I understand that you don't have
the figures; is that correct?

		MR. FORE:  This is Gary Fore.  I'm sure if we had to, we could put
something to paper.  But just consider this.  The Marquette trials, that
went on for the better part of a week.  We had four machines shipped to
Marquette, Michigan.  Have you ever been there?  It's up near the
Canadian border, about as far north as you --

		JUDGE SOLOMON:  I'll take administrative notice where it is.

		MR. FORE:  Shipping machines from different parts of the country, the
freight is incredibly expensive.  Not only that, Tony and others had to
expend time to operate these machines while all the testing was going
on.  NIOSH, alone, had probably 8 or 10 people on these sites for the
whole duration.  There was Marquette; there was Shawano.  There were
like five or six trials between 2003 and 2006.  Then there was Marquette
and there was Shawano.  The list goes on.  You get my point.  	My time,
I mean, and Don, we were on these sites, you know.

		MS. WATSON:  How many workers -- how many employees of these various
organizations would you estimate were participating in this study?

		MR. FORE:  On a particular occasion?

		MS. WATSON:  I'm just trying to get a sense.

		MR. FORE:  Yeah.  I'm going to -- Tony, maybe you have a better sense?

		MR. BODWAY:  Tony Bodway.  In a normal daily operation or one of our
test sites?

		MS. WATSON:  During this testing procedures.  That's what we're
interested in.

		MR. BODWAY:  At Shawano, we probably have 75 people on site, you know,
including all of the partners, the trucking companies, so on and so on.
And it varied.  Marquette might have been, we might have had 15, 20 up
there during those trials.  So if this varied by site, what had to be
controlled, what had to be done to complete the work.

		MR. FORE:  Think about this.  You had to line up trucks, truck
drivers.  We had representatives from all partners, Emmitt Russell,
IULE, he was out helping us stripe the runway in Marquette, you know.
So you get the point.

		We could add it up, probably, but it doesn't take long to underpin
thousands of man-hours, thousands of dollars.

		MS. WATSON:  Okay.  All right, thank you.

		MR. ACOTT:  I'd just add, for us, recycling is our life blood.  And if
we couldn't recycle, we couldn't be competitive, and there would be an
enormous disposal issue that we would have with all the pavement.  We're
probably a $50 billion a year industry or more.  We've got 250,000
workers.  So those are high investment, you know, by this group, it
benefits a lot of people.  So it was more than justified.

		MS. WATSON:  All right, thank you.  And then one last question based
on the previous person's question.  Just for clarification, is there a
water collection system?  When you use the water as a suppression
mechanism for dust, is there a procedure that is used that collects the
water to prevent that runoff?

		MR. FORE:  There is no runoff, period.  Consider this, what we're
talking about is an aerosol that's designed to impact a particle.  NIOSH
helped us understand that, the speed of the particle, the size of the
particle, the aerodynamics, the pressure of the water, all of that
stuff.  We're not talking about a lot of water.  Tony, how much water do
you actually use in a period of time?

		MR. BODWAY:  Tony Bodway.  Typically, the milling machines hold
anywhere from 15 to 2,000 gallons.  They, in the course of a 12-hour day
or a little bit longer, may go through four fills.  It just depends on
the work.  The trucks that haul the water to us hold 4,000 gallons.  We
might go through three fills, four fills.  It depends on the shift time.

		But to the point of when the gentleman was up here and asked the
question about the runoff, on jobs that we refer to as mill-and-fill,
where we have the DOT specs that we have to mill it out, clean it, put
tack down, the bonding agent, and put the new asphalt down in six or
eight hours.  When we go through there, typically, on any milling job,
is there a little -- there is no running moisture.  It might be damp
during the day.  It's going to dry out right away.  So there is no
excess water.

		It's like Jeff said early on more water is not as good, less water is
better.  So it's using flows and pressures and nozzle location to use
the minimum amount of water to complete -- to suppress the dust.

		MS. WATSON:  So any water that gets down to suppress the dust, for
clarification, does not get recollected by another machine?  I'm just
trying to --

		MR. FORE:  Gary Fore.  It actually goes with the material into the
truck.

		MS. WATSON:  Got you.

		MR. FORE:  And that goes to the holding site.  And there is no runoff.
 No runoff.

		MS. WATSON:  Okay, thank you.

		JUDGE SOLOMON:  Okay, we thank you.  So OSHA is going to ask some
questions.  But I just want to say we have three additional witnesses --
groups, rather, and each of those were allotted about 10 minutes.  So
OSHA is going to ask some questions.  We typically would break for lunch
at around noon.  And we may not make it.  It will probably be about
either 12:15 to about 12:30 before we would break for lunch.  And if
that's the case, then we would set back the afternoon program for a half
an hour.

		So, Ms. Kramer, you are staring at me.

		MS. KRAMER:  Merely paying close attention, Your Honor.

		JUDGE SOLOMON:  Okay.  So how long do you estimate the OSHA
questioning would take?

		MS. KRAMER:  Approximately 15 minutes, Your Honor.

		JUDGE SOLOMON:  Okay, let's just go with it right now.  Go ahead.

		MS. KRAMER:  Thank you.

		JUDGE SOLOMON:  So who is going first?

		DR. COBLE:  I will, Your Honor.  I'm Joe Coble.

		JUDGE SOLOMON:  He's Dr. Coble, actually.

		DR. COBLE:  Yes.  And I very much appreciate you folks being here
today to present some actual measurement data.  You know we've heard a
lot of talk this week, but it's good to see some actual numbers up there
to substantiate your testimony.

		You have brought up Table 1, and that is something that OSHA is very
interested in getting right.  And you have suggested that we put in an
entry called Half-Lane and Larger Asphalt Milling Machines.  Now, are
there milling machines that are smaller than half-lane that are used
commonly?

		MR. RICHMOND:  Yes, there are.  As a manufacturer, we typically
classify equipment half-lane and up, less than half-lane.  That is
correct, there are smaller machines.

		DR. COBLE:  And these smaller machines, has there been any attempt to
look at the control technology applied to them?

		MR. FORE:  The answer is no.  You have to understand, for instance, a
small machine that runs around a manhole, it may be a very short
duration.  It's just a different context for industrial hygiene
purposes, if you understand, in terms of time weighted average
considerations, that sort of thing.

		DR. COBLE:  Right.  So your companies use those machines, but they are
not being requested to be listed on the table?

		MR. FORE:  That is correct.  Our request is half-lane and larger
asphalt -- drivable asphalt milling machines.

		DR. COBLE:  Where the proven technology exists.

		MR. FORE:  Right.

		DR. COBLE:  And the other ones, it's not that they couldn't get there,
it's just not demonstrated.

		MR. FORE:  Right.  And a lot of them aren't drivable, so the word
"drivable" is kind of important.

		MR. RICHMOND:  Drivable, yeah, to ride it, right.

		DR. COBLE:  And then with respect, we heard about this, you used the
same type of machine on concrete.  It could be used for concrete, the
same machine?

		MR. RICHMOND:  Yes, it can be.  It's a relatively minor percentage of
the work that we would see on a typical machine.  But, yes, contractors
can use that machine on concrete.

		JUDGE SOLOMON:  That was Mr. Richmond, by the way.

		MR. RICHMOND:  I'm sorry, Jeff Richmond.

		DR. COBLE:  And so these controls conceivably could be used on
concrete, but again we just haven't done the measurements in order to
verify that they would get down below the PEL; is that correct?

		MR. FORE:  That is correct.  You have to understand that there is a
different context for concrete and asphalt.  Asphalt it's called
mill-and-fill.  We call it the sustainable pavement because we take off
a couple of inches, one or two inches, we go back with new asphalt, and
you've got a new road.  It's not the same context in asphalt -- in
concrete, I'm sorry.  This is Gary Fore, by the way.

		DR. COBLE:  Okay, I appreciate that.  It gives us a clear rationale as
why we would do it that way.

		MR. FORE:  Right, exactly.

		DR. COBLE:  Now, with respect to the types of controls that would be
required, it sounds like the manufacturers are developing some sort of
standards or specifications.  Is there ASTM sort of specifications for
this type of thing that you could reference on a table?

		MR. RICHMOND:  At this point, what we did is based on the early
testing of the Terex machine and the results that NIOSH got from -- Jeff
Richmond, I'm sorry -- got on that machine, basically, we used that as
sort of the original footprint.  To say that there is a written spec out
there, I don't know that there is.  But, basically, every manufacturer
is going to design a ventilation system, and we all will be tested by
NIOSH to ensure that we're getting the same level of proficiency
starting with the tracer gas and then the field test out.

		DR. COBLE:  Right.  So, one of the issues is the level of
specification on Table 1.  We don't want to specify an exact flow rate
or air volume in that it might not be applicable to all situations, but
something to the effect that it would follow manufacturer's
specifications?

		MR. FORE:  I think it would follow the engineering, you know, NIOSH
engineering control guidelines.

		DR. COBLE:  And then there have been issues regarding visible dust.
When this system is operating the way it is intended to operate, is
there visible dust?

		MR. FORE:  Not surrounding the machines.  I've been out there, and you
don't see dust surrounding these machines, not when they are effective
controlled now.

		DR. COBLE:  A question regarding the air monitoring that was done by
NIOSH with respect to what percentage or how many hours in a shift does
the machine actually operate?  So when you get out to a job, how much --
how many hours do you get out of say, for example, an eight-hour shift?

		MR. BODWAY:  I don't know if I understand the question.

		MR. FORE:  He's saying what's the occupancy rate?  If you have an
eight-hour shift, what percentage of that eight hours do you operate?

		MR. BODWAY:  Tony Bodway.  I would say, again, it depends on the job.
I would probably say somewhere around 80, 85 percent.  You know
sometimes you're waiting for trucks, you're stopping to water up, you're
checking the bits on the cutter and things like that, so I would say 80
to 85 percent.

		DR. COBLE:  And that would be then optimal?  You'd want to utilize it
as much as you could, and so that would be a productive day then if
you're going to do that.

		MR. BODWAY:  Yes, correct.

		DR. COBLE:  And when it's not in operation, is there any source of
silica exposure when the machine is not actually operating that you're
aware of?

		MR. FORE:  No.  The source of silica is during the operation.  You can
understand this cutter, this drum biting into the pavement, that's where
the dust is generated.  When the machine is not running, no dust, no
silica.

		DR. COBLE:  And the dust, it ends up in the trucks slightly dampened.

		MR. FORE:  Right.

		DR. COBLE:  And so it's not blowing all over the place as soon as you
shut the machine off.

		MR. FORE:  Right, right.  Yeah, our breakthrough was no dust, no
silica, you know.

		DR. COBLE:  And I guess my last, if I could just ask one more
question, you said there was a breakthrough once you realized that the
technology that's used in mines was transferable.

		MR. FORE:  Right.

		DR. COBLE:  And so there was a technology out there that was proven to
work in mines and, in this case, it actually worked on a similar type of
machine, even though it wasn't originally intended.

		MR. FORE:  Absolutely.  There were a couple of breakthroughs,
actually, and a big breakthrough.  One was that whole concept that there
is a science around particle impaction, particle size, velocity of an
aerosol droplet.  The design, you can visualize the design that the
nozzle has and the pressure at which it is operating has an impact on
the aerosol droplet size and speed, and so forth.  There is a science
there.  That was one.

		Second was that NIOSH Pittsburgh had the same problem we had.  Using
traditional industrial hygiene data, personal hygiene, it was difficult
to go make a change on the machine and get the feedback you needed to
see what you had accomplished.  They had developed a real-time
respirable silica dust monitor that we mounted at 10 places around these
machines and we designed the statistical protocol to use those.  And at
the 95 percent confidence level, we could see the change.  That was the
breakthrough.

		DR. COBLE:  Just to follow up, it was a respirable dust or was it --

		MR. FORE:  Respirable silica dust.

		DR. COBLE:  But it didn't specifically identify the silica.  It just
measured dust; isn't that correct?

		MR. FORE:  It measured respirable dust, but the silica content was
measured in the dust.

		DR. COBLE:  Right.  Right, so these real-time monitors, they're
measuring the respirable dust.

		MR. FORE:  Correct.

		DR. COBLE:  And that's really what you were worried about controlling
in the first place.  It may contain 2 percent, 20 percent, whatever.

		MR. FORE:  Right.

		DR. COBLE:  Just control the respirable dust, and these monitors
allowed you to do that.

		MR. FORE:  Right.  And if you can visualize, again this is Gary Fore,
if you can visualize a machine as it is normally designed, we would make
a change.  We would compare the normal design -- we did repetitive
trials.  You do normal design maybe for 10 minutes, and then you go to
the new design for 10, and we do this repetitively, repetitively, to get
statistically valid data.  And that was the breakthrough.  We were able
to see what we had done.  And that's where the B2 configuration fell out
as a winner.

		DR. COBLE:  Right.  Okay, thank you very much.

		MR. KUCZURA:  My name is Greg Kuczura, and I want to ask it was in
response to a question from before, you stated it costs $50,000 a year
for maintenance.  And I wanted to ask if that included or if that was
for the entire machine or just dust maintenance?  From my understanding,
that would be for the entire machine and the dust maintenance.

		MR. BODWAY:  Tony Bodway.  Yes, that would be for the entire machine.

		MR. KUCZURA:  Okay.  Oh, there is -- I have a question about something
that you submitted.  It was in regards to the TWA personal hygiene
survey of the crew and operations cost in the range of $1,500 to $2,000.

		MR. FORE:  Correct.

		MR. KUCZURA:  What do those costs consist of?

		MR. FORE:  That would be for the consultant to come out and do
full-shift sampling.  And typical, you know, full-shift sampling, say an
eight-hour full-shift day would be in that cost range.

		MR. KUCZURA:  So that's per employee then?

		MR. FORE:  No, that's per site.

		MR. KUCZURA:  Per site, okay.  Because I was going through the
submission, and for the total, it says 68.3 million tons of the asphalt
pavement per, in the total for 2012.  And then the average milling job
produces 2,500 tons.  So then dividing that into the 68.3 million, you
came up with 27,000 asphalt milling jobs completed annually.

		MR. FORE:  That was the arithmetic as I recall it, yeah.

		MR. KUCZURA:  And then that was multiplied by the cost --

		MR. FORE:  Right.

		MR. KUCZURA:  -- of the $1,500 to $2,000.

		MR. FORE:  Yeah, exactly.

		MR. KUCZURA:  So were you assuming that each employee would fall under
the standard?

		MR. FORE:  We were assuming that each employee surrounding that
milling machine, there is typical a guy on top and one or two on the
ground, yes, absolutely.  All of our data, as you have seen, operator,
ground person, one or two ground people, yes.

		MR. KUCZURA:  So they're all part of the crew, and they're all exposed
to the silica.

		MR. FORE:  Yes, exactly.

		MR. KUCZURA:  Okay, thank you very much.

		JUDGE SOLOMON:  Anything else?

		MR. PERRY:  I have a couple of questions, if I may?  This is Bill
Perry.  First, just let me commend NAPA and the members of the
Partnership.  This looks like it was really an epic effort and very
successful and fruitful, so we're really happy that you all undertook
this and made it work.

		So I just had a question.  I think if I heard or read the new machines
that will be equipped with both the ventilation and the water systems
will be available in 2017?

		MR. RICHMOND:  Yes.  Our commitment as an industry is all the
half-lane and up machines will be equipped as standard equipment by no
later than January 2017.

		MR. PERRY:  Okay.  Are some available now?

		MR. RICHMOND:  Yes.

		MR. PERRY:  So they are already starting to be sold, okay.

		MR. RICHMOND:  Yes.

		MR. PERRY:  On the retrofit kits, do you have a sense of the machines
that are out there now, what proportion do you think have been
retrofitted with the water system?

		MR. RICHMOND:  Jeff Richmond, again.  Bear in mind what Don talked
about earlier, all the machines out there today have some type of water
system, so that's --

		MR. PERRY:  Understood.

		MR. RICHMOND:  -- a standard feature.  As far as bringing it up to
what we call the standard of the B2, that's a somewhat standard system
on our products, so we would say a very high percentage.  On some of the
older machines, it would probably be a lower percentage.  To tell you
today exactly what percent have that, I couldn't give you a straight
answer on that.

		MR. PERRY:  Okay.  Anyone else want to hazard a guess, educated guess,
of course?

		MR. FORE:  I think we have to look at where we are.  You've seen that
we have the best practices for operation of the water system.  Our whole
thrust, at this point, is to encourage rapid movement toward
retrofitting the optimal water system and to have our audience
understand that ventilation controls in addition to that are
forthcoming.

		I don't think that we'll ever get to the point where we give you an
exact percentage.  You can understand with how many contractors do we
have out there, Mike?

		MR. PERRY:  Sure.

		MR. ACOTT:  I was going to say I think there would be a clear
incentive for contractors to go the water spray versus putting on
ventilation equipment, you know, masks.  So I think that, in itself,
you'll find contractors will move very quickly to retrofit their
equipment.

		MR. RICHMOND:  Jeff Richmond.  I want to add one other thing.  One of
the things we're doing and I think most manufacturers will do this, we
made the so-called B2 spray configuration, we made that design basically
public record.  We have shared it with the other manufacturers.  We sent
mailers out to our customers and said here is an optimal system.

		We have some very resourceful customers that do a lot of their own
maintenance.  And they will, in fact, go out and retrofit their machines
without the need of calling the manufacturer, because again it's not
terribly complicated and the design is out there.  It's public.

		MR. PERRY:  Okay.  Has that design been placed -- have you provided
that in our record, do you know, or could you?

		MR. FORE:  We have.  It is referred to as the B2 design.

		MR. PERRY:  Okay.  And you were about to say something?

		MR. FORE:  Yeah.  I think what is important here is that NAPA and
their partners are on an educational plane to explain to those
contractor members who are operating these machines that they're dealing
with a known human carcinogen.  And it is the right thing to do; the
smart thing to do is to move quickly.  We are protecting our workers.

		We have, you know, NAPA grew out of kind of a family-owned kind of
setting.  We're changing as larger companies, international companies
buy some of those up.  But the bottom line is we have a lot of sons and
daughters still working this industry.  Don't we, Tony?

		MR. BODWAY:  We do.

		MR. FORE:  He's got one working.  So there is, I don't know quite how
to say it, but there is this attitude on the part of our contractor
audience in general that listens to a kind of principle that says the
right thing to do and smart thing to do, let me understand it and we'll
take care of it.  I just wanted to interject that.

		MR. BODWAY:  Tony Bodway.  You know early on in my presentation, I
said that in 2008, we had 28 or 34 milling machines, I'm sorry.  As we
prepared for the downturn with the economy and started to move off the
older machines, and then as the economy kind of flattened out and
started to come back, that we're replacing machines.  The 34 is made up
of a combination of the smaller machines, some less than half-lane, some
larger than half-lane.

		But I can say that out of the 14 milling -- the current newer milling
machines that we have, 12 of them have the ventilation system on them.
We firmly believe in that.  And that, I mean that comes right from our
owner.

		MR. PERRY:  Okay, very good.  That's all I have.  And, again, thank
you for appearing today for your testimony.

		MS. KRAMER:  Your Honor, I just have a couple of questions.

		First, I wanted to check and see if you all have any sense of the
average tenure of the workers who work on the road crews?  And I
understand that's a big ask, since you have more than 850 member
companies.  Just any sense of it?

		MR. BODWAY:  Tony Bodway.  I can tell you right now that the people in
our milling division and people that I have put in places, in
supervisory since I've moved beyond that role now, which I did for 20
years, have been with the company anywhere from 35 to 40 years.  And
some of those people have been in the milling division that whole time.

		The infancy of milling was really back in the early '80s, '82, '83,
and as it grew, when I took over the milling division in 1986 or '87, I
mean at that time we owned 7 milling machines.  And when I was put in
charge of it, then it was up to me to make it grow and we grew it.

		So our company is well positioned for people.  We just had a lady
retire that was there 42 years.  We had a mechanic retire that was there
50 years.  I've been there for 32.  We're very proud of our company.
And so the tenure for our people is very long.  And like Gary said, we
have our family comes there.  My three sons have passed through Payne &
Dolan doing something.  My daughter is now graduating from college and
works at Payne & Dolan.  She's been there eight years.  So it's a very
family-driven business, and we feel that we get the best from our
employees by doing part of that.  I think our average workers are
probably somewhere, the age would probably be about 46, 48.

		MS. KRAMER:  Would anybody else like to speak to that, the average
tenure at your company or companies that you know of?

		MR. RICHMOND:  Well, again, we're on the manufacturing side, so the
number of people in our company that physically go out and work with the
milling machines is fairly limited.  But, again, like Tony, we are a
family company, and 35, 40 years is not unusual at all.  We take a lot
of pride in that.

		MS. KRAMER:  Thank you.  Another question, you mentioned your training
program a couple of times throughout your testimony.  I'm not sure
whether we have a copy of that or if you would be willing to provide it
to the record?

		MR. RICHMOND:  Jeff Richmond.  We do a variety of training.  We do a
regimented series of training classes at the factory every winter.
Contractors are invited to come in.  And that's typically a three-day
program.  So I don't know how much of that by way of record you really
want, but certainly part of that program is, of course, the maintenance
of the water system.

		MS. KRAMER:  We would be interested in that, if you wouldn't mind
submitting it.

		MR. BODWAY:  Tony Bodway.  Just on that, I think, you know, now with
the success of the water spray and the ventilation system, and realizing
that we are going to move forward with that, and I made it perfectly
clear in Cincinnati last fall, probably September, that the
manufacturers were going to have to get up to speed on these training
programs, how are they going to deal with it, what is the documentation.

		You know there are programs that manufacturers use that they will send
out a whole training packet, DVDs, all the brochures, a quiz, and we do
it at our company where that comes in.  And everybody on the crew has to
go through the training.  They have to take the test.  They have to sign
that they did it.  And that documentation is sent back to the
manufacturer.

		That's what's going to happen with all of these manufacturers.
They're going to have to come up and relatively quickly because this is,
you know, again we've got to get this thing moving and get their
training programs put together.

		I will be going home here at the end of the week, and I know that our
training at our facility is going to be taking place.  And I have asked
that I come into those training sessions for our people that work around
milling machines, and I have sat and given these presentations to our
own people.  So I have to make sure that the people who supervise those
road mill people now are fully aware of what's going on, what to expect
from manufacturers.

		MS. KRAMER:  Thank you very much.

		MR. FORE:  This is Gary Fore.  Just one more point.  I think all of
the manufacturers have training centers.  You should see Jeff's training
center.  It is professionally done.  I was just there on two occasions
in the past couple of months to help Jeff out with some of his training.
 I can speak factually that there is a dedicated intense training
program that takes these machines and turns them inside and out, milling
machines included.

		JUDGE SOLOMON:  Okay.  If there is nothing else from this panel, you
will exit stage right.  We will have the American Road and
Transportation Builders Association take your place.  And we'll go off
the record for five minutes.

		(Off the record at 11:22 a.m.)

		(On the record.)

		JUDGE SOLOMON:  We're back on the record.  The American Road and
Transportation Builders Association gets 10 minutes, so would you
introduce yourselves, please?

		MS. CONNOLLY:  Not a problem, Your Honor.  I'm Una Connolly, Vice
President of Safety and Environmental Compliance.

		MR. SANT:  And I'm Brad Sant, Senior Vice President of Safety and
Education.

		MR. KENNEDY:  I'm George Kennedy.  I'm the Vice President of Safety
for the National Utility Contractors Association.

		JUDGE SOLOMON:  Okay, you were going to have Will Brown with you; is
that right?

		MR. KENNEDY:  I don't -- I didn't know that.  I just saw that on the
schedule today.  So Will is not here.

		JUDGE SOLOMON:  Okay.  So you are going solo.  So who is going to
start?

		MS. CONNOLLY:  I will, Your Honor.

		JUDGE SOLOMON:  Okay, go ahead.

		MS. CONNOLLY:  Thank you, Your Honor.  ARTBA represents more than
6,000 members nationwide, involved in all sectors of the U.S.
transportation design and construction industry.  Our membership
includes private and public sector members that are involved in the
planning, designing, construction, and maintenance of the nation's
roadways, bridges, ports, airports, and transit systems.  The industry
we represent generates more than 300 billion -- 380 billion annually and
sustains more than 3.3 million jobs.

		I would like to begin by thanking OSHA for the opportunity to speak
today and today's public hearing.  We appreciate OSHA's efforts to
protect the health and welfare of our members and all construction
workers.

		Let me say at the onset that we are not here to say that OSHA should
not update its silica standard.  Rather, our comments are geared toward
making a standard that is workable in our industry.

		It is important to note that the transportation construction industry
is highly transient with projects changing on a daily or weekly basis in
array of different environmental conditions.  You will most likely see
our construction workers as you drive on the highways and streets
working to build or maintain our nation's roads and bridges.

		It works -- it is work that begins in one location on any given day
and may be found miles away from the initial site the following day.
Likewise, the materials we are moving, cutting, breaking, constructing,
etc., can also change daily, even hourly, as we transport and deposit
tons of earth, asphalt, concrete, and rock.  Sometimes, these materials
contain crystalline silica and sometimes they don't.

		As has been noted several times during these hearings, silica is
ubiquitous and can be found in nearly all construction materials and
products.  Moreover, respirable crystalline silica can be in the ambient
air and, thus, even when workers are not cutting, drilling, sawing, etc.
the material, they may be potentially exposed above the action level and
potentially even the proposed PEL when they are working at a
construction work site.

		What is significant is that crystalline silica can be found in the
natural environmental workplace.  Thus, the exposure level of employees
on each shift, for each job classification, in each work area could vary
immensely on a given day, location, or project.  By the nature of the
transportation construction industry's work, visible dust will be nearly
impossible to eradicate.

		Some of the challenges we face in complying with the proposed PEL and
action level result from the nature of our business.  We can sample the
air and products we are using one day and learn that silica is not
present.  But the next day we will find ourselves in another location
using different materials where it might be present.  Yet, we will never
know what our exposures on a given site will be until sometime after the
sample is taken, due to the time lag between sending samples to the lab
and getting the results.  By the time the companies in this transient
industry provide air samples to the lab for analysis and receive the
results, workers have moved onto another project or task and are no
longer in the environment where testing occurred.

		Furthermore, under the auspices of the proposed rule, OSHA has stated
that laboratories have two years from the time the rule is finalized to
come into compliance and allow testing procedures to catch up with the
new standard, while employer obligations will begin at about 180 days
after publication.  All of these facts will make compliance to the rule
as proposed very difficult for our industry.

		ARTBA is also concerned that the current analytical methods and the
capabilities of the labs to complete analyses that are reproducible and
consistent are not good enough to measure the 25 or 50 as required by
the proposed rule.  OSHA has stated that it believes that the good labs
can do it, which may be a comforting reassurance but we do not know how
our members will be able to determine the competency of a lab, who is
good and who is not.  We would urge OSHA to carefully address the issues
of reliability of exposure measurements for silica and laboratory
requirements, especially at these low levels.

		In reviewing OSHA's data contained in the NPRM, along with data
compiled from other sources, we were somewhat perplexed about the timing
for this rulemaking effort.  OSHA's issuance of a proposed rule on
crystalline silica comes at a time when silicosis mortality has
significantly declined.  According to the CDC, the silicosis mortality
in the U.S. has significantly declined by 93 percent from 1968 to 2007.
And the CDC data indicates that silica mortality is steadily declining
under the current PEL.

		NIOSH similarly report that there has been a steep decline in silica
mortality rates, noting that one of the main factors for such a decline
is that many deaths in the early part of its study periods occurred
among persons whose main exposure to crystalline silica dust probably
occurred before the introduction of national standards for silica dust
exposure that were established by OSHA and MSHA.

		Moreover, many of the studies OSHA uses for the proposed rule are
based on exposures from the 1930s to the 1960s, before the current PEL
was implemented, and arguably when exposure levels were much greater
than those found today.

		OSHA is also considering promulgating requirements to those employers
that initiate an initial medical examination due to potential silica
exposure.  One of those requirements is the use of the NIOSH certified B
reader.  ARTBA is concerned that should employers determine that medical
surveillance is necessary, the dearth of NIOSH certified B readers in
the United States will potentially cause a gross misinterpretation and
misclassification of x-ray results.

		As OSHA recognizes, there are only 242 certified B readers in the
United States as of February 2013.  NIOSH has noted that if there is
excessive -- sorry, NIOSH has noted that if there is excessive
interpretations between different readers, reader variability can reduce
the quality and quantity, quality and utility of the data.

		Bias may also occur when a reader has information concerning the
radiograph being classified, including information regarding the worker
such as the type of exposure or the type of job that he does by
consciously or unconsciously influencing their classification.  OSHA
should consider how new and existing B readers are monitored to minimize
bias or misinterpretation of the data.

		On a note regarding job function, OSHA has not raised the specter of a
greater hazard in regards to respirator use.  ARTBA agrees with OSHA
that all possible engineering controls be used and respirator use should
be the last resort method of protection.  But that said, workers in the
transportation construction arena work outdoors during some of the
hottest months of the year.  When coupling the necessity of strenuously
working in high heat, working amongst heat generating materials like
hot-mix asphalt, and the potential necessity of wearing a respirator,
there is a real danger to human health by heat exposure and heat stroke
that will likely exceed the danger caused by possible silica exposure.

		In terms of the economic analysis presented in OSHA's proposed rule,
ARTBA has several concerns.  The economic analysis refers to a number of
sources and materials, source materials and data.  For example, as noted
on Page 56361 of the Federal Register, OSHA is unable to match up cost
data and compliance information at the firm or fit facility level.  As a
result, the true per-company cost of meeting the proposed standards is
unknown.  In averaging the cost of compliance across all workers, this
could potentially understate the cost of compliance for businesses that
could not meet the new standard.

		ARTBA also asks OSHA to revise its analysis to include the most recent
data available to provide a more accurate economic impact assessment.
For example, OSHA refers to the 2006 U.S. Census Bureau statistics of
U.S. businesses for characteristics of the industries affected by the
proposed standard in the Table 8-3.  The average profit rates for Tables
in 8-14 and 8-15 are based on the Internal Revenue Service Corporation
Source Book for 2000 to 2006.  These are two examples where more current
data is available.

		There have been significant changes in the construction industry,
including the number of businesses and value of construction work since
the economic downturn in 2008.  Factoring in some of these economic
realities would provide a more accurate analysis of the per-industry
cost of OSHA's proposed silica rule.

		We look forward to working with OSHA towards achieving a healthier
workforce through regulatory efforts with harmonized occupational health
and safety and our nation's infrastructure needs.  Thank you for your
time, and we'd happy to answer any questions.

		JUDGE SOLOMON:  Okay, that's exactly 10 minutes.  Mr. Kennedy?

		MR. KENNEDY:  Thank you.  My name is George Kennedy.  I'm a Vice
President of Safety for the National Utility Contractors Association and
have been in that position for 25 years.  I have worked with NUCA and
OSHA for these -- during this period of time.  First I'd like to thank
OSHA for giving us this opportunity to testify and make our opinions
known.

		NUCA members are concerned that this proposed rule is unreasonable,
burdensome, and unnecessary because OSHA has not adjusted -- has not
adequately demonstrated that changes to the standard in the PEL are
needed, reasonable, technologically and economically feasible.  NUCA
believes this rule will not significantly reduce the current number of
reported cases.

		As most of you probably know, the CDC reported the number of reported
cases of silica-related deaths at approximately 1,200 in 1968, and
approximately 150 in 2002, and then dropped it to approximately 100 in
2007.  And the downward trend continues.

		We believe this is because industries have become more aware of the
hazard researched and implemented appropriate controls for their type of
work, and educated workers with the help of NIOSH, OSHA, safety
professionals, and other resources.

		OSHA predicts that this rule will prevent approximately 600
silica-related deaths per year.  But how is this possible if the CDC is
reporting less than 100?

		We would also like OSHA to identify how many of these deaths are
construction related and what segments of the industry are they being
reported?  Why is OSHA proposing this burdensome regulation without
determining specifically what types of operations or the trades, for
that matter, are causing reported cases and how many workers are
actually exposed?

		I had one contractor from Nebraska approach me recently at our
convention, and he asked me if OSHA has ever tested the ambient air in
states like Nebraska while he reminded me that that's America's dust
bowl.  He pointed out that some days you just cannot keep the dust from
blowing around.  He believes OSHA has not taken into consideration the
varying weather and climate conditions that exist in the various regions
of the country and how ambient air can be affected.  He also pointed out
that earthmoving operations in dry climates are considerably different
than those in damp climates.

		NUCA members are routinely providing safety training and education to
their employees in both English and Spanish.  In most situations where
dust is present, utility excavators are requiring the use of wet methods
and/or in some situations respirators to control the dust exposure, and
these methods of control appear to be working.  OSHA has not
demonstrated otherwise as it relates to utility and excavation
construction.

		The NPRM says that construction employers can use Table 1, and the
employers shall be considered to be in compliance.  Well, let's assume
that a NUCA member decided to use Table 1 in reference to using heavy
equipment during earthmoving.  In order to be in compliance, the
contractor would have to have at least three or four pieces of heavy
equipment including an excavator, front-end loader, dozer, and possibly
compactor that are fully enclosed and sealed with pressurized cabs using
HEPA filters.  Does OSHA realize that the majority of heavy earthmoving
equipment in existence in this country is not set up as required and
that to retrofit this equipment would cost approximately $5,000 to
$15,000?

		In addition, one of the things that concerned us is that OSHA hasn't
defined what they mean by heavy earthmoving operations.  Does that mean
any time we use an excavator, front-end loader, dozer, scraper,
compactor, skid steer, or even a backhoe?  They haven't defined this and
clarified it.  So if we are doing site development, is that heavy
earthmoving?  What about if we're just digging a trench to lay some
pipe?  So we are concerned that this hasn't been clarified and OSHA
hasn't looked at these situations.

		So let's assume that the contractor has the equipment that meets the
requirements of this table.  His company will not be in compliance
without performing air monitoring to see if the silica levels are above
or below the PEL because there are two to four skilled and unskilled
laborers and a foreman working on the same job site near the equipment
performing other tasks.  Therefore, using Table 1 does not place the
contractor in compliance because it falls short of the proposed
requirements to protect workers who are not equipment operators.

		Obviously, the only solution the NPRM provides is air monitoring,
exposure monitoring, to determine the exposure level.  But the results
of exposure monitoring will not be available for at least 5 to 10 days,
and by then our contractor is miles down the road or on another job
where the soil and dust conditions may significantly differ from the day
the air monitoring was performed.  In reality, this air monitoring or
exposure assessment performed that day would be worthless.

		The NPRM frowns on the use of respirators unless all other means of
controlling dust have been exhausted.  We don't have a problem with that
because we believe the use of respirators should be a last resort.
However, there are times when respirators are going to be the only
answer, because we are in the construction industry, and especially us
utility contractors, similar to my -- to the ARTBA, we are constantly in
motion.  We are mobile.  We are never staying in one place for very long
and it is very hard to keep track of whatever your employee is doing.
Every worker, especially the laborers, are doing many different tasks.

		I've just got to go to the other side of my notes here.  Now, one of
the things, for example, that we are concerned about is related to heavy
earthmoving equipment.  This equipment, as I said earlier, hasn't been,
you know, they haven't clearly defined what they mean by heavy
earthmoving.  I mean there is all types of equipment out there.  A big
excavator moves a lot of dirt.  A scraper moves a lot of dirt.  What
about a skid steer, do you consider that a lot of dirt?  So once again
we are still concerned about this situation.

		Medical evaluation is another area of concern.  Having to get medical
evaluations, in NUCA, for workers who are exposed to above the PEL for
more than 30 days is a difficult task to determine when it is necessary.
 NUCA members believe and our concern that they will have to provide
medical evaluations for each and every employee that comes to work and
plans to work in the field because we just don't know.  We don't know
what they are doing each day.  And so we are going to have to assume
they are exposed, and we're going to have to have medical evaluations
performed.

		I called around to some of the various different industrial hygienist
testing medical facilities where they test pre-hire employees and such.
And in talking to them, I found out the cost of what it cost for a
medical evaluation, and it runs between, on average, about $400 to $500
per person.  So a small company, a small NUCA member with maybe 20, 30
employees would have to lay about $15,000 initially right up front.  And
then with a 64 percent turnover, which our industry we don't believe is
that high, but even if you said 30 percent or 40 percent, we're going to
have to continuously provide medical evaluations for our workers as they
start work prior to working, because again we don't know when and where
they are going to be exposed or will they be exposed at all.  So this is
a concern.

		Exposure assessment, another issue.  How can we rely on a table that
does not -- Table 1, when it only addresses the operator.  What about
the laborers?  We are concerned about them, and we are doing everything
we can to protect them now by using wet methods where possible, which
are not always feasible, by the way, because of various different
reasons, for one trucking in water in some situations.  Our workers are
not always near a fire hydrant or a stream or someplace else where they
can get water, so you have to truck it in.  And they do, but it is a
very expensive proposition which we believe that OSHA hasn't considered.
 So, anyway, they're out there, and they are bringing in water to wet
cut.

		Now, what about the mud that is created, which runs into the streams.
We have to comply with the Clean Water Act.  We are not allowed to let
the water run off into sewers, storm drains, streams, navigable
waterways.  It's an environmental issue that is required that we have to
address.  So that's another issue.

		The other issue with water is I live in the north country.  Right now
you go to my house and you spray water on the ground, you're going to
have an ice skating rink, and that creates not only an issue for
employee safety and health, but it also affects the traffic that's
passing by.

		JUDGE SOLOMON:  How much more do you have?

		MR. KENNEDY:  A couple of minutes.

		JUDGE SOLOMON:  Okay, go ahead.

		MR. KENNEDY:  So, anyway, basically, that's what we are concerned
about.  At this point, we appreciate what OSHA is trying to do.  We know
we are in line with them and we want to protect our workers, also.  And,
lastly, bear with me just one -- that's about it, actually.  With that,
I'll stop.  Thank you.

		JUDGE SOLOMON:  Okay.  So how many people in the audience want to ask
questions?  Okay, Mr. Schneider, you're at the lowest.  And then one
other hand back there?

		UNIDENTIFIED SPEAKER:  At the lowest?  I don't know how to take that,
Scott.

		JUDGE SOLOMON:  So the other person, would you please get in line?

		UNIDENTIFIED SPEAKER:  And Dr. Mirer, too.

		JUDGE SOLOMON:  Oh, okay.  Is this a tag team?

		UNIDENTIFIED SPEAKER:  No, no.

		MS. KRAMER:  Your Honor?

		JUDGE SOLOMON:  Yes?

		MS. KRAMER:  Just for the record, I wanted to check to see if either
Ms. Connolly or Mr. Kennedy had a written copy of their statement that
they would like to submit to the record.

		JUDGE SOLOMON:  Right.

		MR. KENNEDY:  I can get it to you, but I have actually submitted
comments to the record, so --

		MS. KRAMER:  Certainly.  We have those.

		MR. KENNEDY:  -- pretty much a summary of that.

		MS. CONNOLLY:  Yes.

		MS. KRAMER:  Okay.  Your Honor, in anticipation of those statements,
I'd like to reserve Hearing Exhibit Numbers 67 and 68, 67 for
Mr. Kennedy's testimony and 68 for Ms. Connolly's.

		JUDGE SOLOMON:  Okay, the Judge is nodding for the record.

		MS. KRAMER:  Thank you.

		JUDGE SOLOMON:  Okay, Mr. Schneider, state your name.

		MR. SCHNEIDER:  Scott Schneider,

S-c-h-n-e-i-d-e-r, with Laborers' Health and Safety Fund of North
America.  Thank you very much.  And thanks to you guys for coming.  I
appreciate it.

		First of all, I wanted to know, I mean there was a lot of discussion
about how many people are covered and what the exposures might be.  Do
you have any exposure data that you can submit to the record?  Have you
collected any so you know like what the laborers are exposed to versus
the operators on highway jobs?  Do you have any?

		MR. SANT:  We've gathered some data through surveys with our members.
It's not probably scientific, but it's more anecdotal, but we do have
some who are doing some monitoring, and we'll try to gather that
together.

		MR. SCHNEIDER:  Okay, yeah, if you could submit that to the record,
that would helpful.  Have you identified like particular tasks that you
find that produce higher exposures?  I know for your operations tend to
be outdoors, you know, they are outdoors and that tends to be one of the
factors that reduces exposures to silica.  I don't know, do you have any
data, George?

		MR. KENNEDY:  We don't have any data.  We do believe that the weather
and climate conditions do affect it.  And we have basically been relying
on a lot of the information that we've been getting for OSHA about wet
cutting and other means of keeping the dust down, under control.

		MR. SCHNEIDER:  Okay.

		MR. SANT:  And let me just add to this, Scott.  I'm not sure I'm going
to directly answer your question, but I think from our perspective how
this standard could really work is really the genesis of what we heard
before from the milling machine cooperation and a lot of what we see in
part of Table A, in the sense if we could -- or Table 1, I'm sorry.  We
identify operations.  We figure out ways to control the dust.  And we
eliminate probably 99 percent of the hazard in that type of an
environment.

		I think that is the way it really should operate and how this standard
can be very effective.  When we start getting into the air sampling, the
monitoring, the PEL, that just becomes very, very difficult in the
construction industry and probably the part that gives us the most
heartburn.

		MR. SCHNEIDER:  I would agree with you 100 percent.

		MR. KENNEDY:  Yeah, we at NUCA would agree with that completely,
because it's difficult to keep -- do the data, find the data when you've
got people moving constantly and the conditions changing constantly.

		MR. SCHNEIDER:  Absolutely.

		JUDGE SOLOMON:  Just for the record, the speaker was Mr. Kennedy.

		MR. KENNEDY:  George Kennedy, I'm sorry.

		MR. SCHNEIDER:  Okay, yeah.  George, you mentioned that wet methods
are used.  How often are they used?  Is that most of the time or as much
as possible or --

		MR. KENNEDY:  I would say most of the time or as much as possible.
They try to use wet methods whenever they can.

		MR. SCHNEIDER:  For cutting, right.

		MR. KENNEDY:  For cutting.

		MR. SCHNEIDER:  Okay.  Do you have any idea, Brad or Una, about how
often controls are used to reduce silica exposures in your industry?

		MR. SANT:  You know, I don't have data, but I would -- I can honestly
say they are not used enough.  I've been out on enough job sites to see
that there is dust and there are ways to suppress that dust.  It could
be done a whole lot better.

		MR. SCHNEIDER:  Right, okay.

		MS. CONNOLLY:  So, yeah, I would agree.  I think the training and
education is a bigger part of that.

		JUDGE SOLOMON:  Okay, again, I have to tell you every time you speak
--

		MS. CONNOLLY:  I'm sorry.

		JUDGE SOLOMON:  -- please identify yourselves.

		MS. CONNOLLY:  I apologize.  Una Connolly.

		MR. SCHNEIDER:  Yeah, I recognized her voice.

		JUDGE SOLOMON:  It's whether the court reporter recognizes.

		MR. SCHNEIDER:  I understand.  Now, Una, you mentioned training.  I
know you do a lot of training about silica hazards.  And, George, I'm
sure you do, too, as well.

		MR. KENNEDY:  Well, we haven't been doing training as formal training,
but we have been trying to educate our members through our newsletters
and things like that.

		MR. SCHNEIDER:  Right.  And when you do that training, do you
recognize that silica is a carcinogen?

		MR. KENNEDY:  Yes.

		MS. CONNOLLY:  Oh, very much so.

		MR. SCHNEIDER:  Yeah.  I only had one other question.  It really
bothers me when people refer to the decline in silicosis mortality using
that table that NIOSH has.  Do you believe that that table represents
complete ascertainment; in other words, that every silicosis death in
the United States is in that data set?  Because, I mean, previously,
we've heard reports that there is a lot of silicosis that is not
reported on the death certificate, which is all that table is reporting.

		MS. CONNOLLY:  Right.  And I think that the data goes both ways.  I
think people can look at the x-rays and not determine silicosis.  And
then I can see people looking at the x-rays and determining silicosis.
And I think that the education of the B readers is as important as
educating our workers and just making sure that everybody does catch the
signs and symptoms on pneumoconiosis or silicosis.

		MR. SCHNEIDER:  Right.  No, I agree with that.  But that chart only
shows where silicosis was recorded on the death certificate.

		MS. CONNOLLY:  Yeah.  And I don't have any information as to whether,
you know, I haven't seen any death certificates, personally.

		MR. SCHNEIDER:  Right.  No, I'm just saying there are a lot -- we
argue that there are a lot of death certificates where they don't record
silicosis.  They die of like a heart attack.

		MS. CONNOLLY:  Oh, that's possible.

		MR. SCHNEIDER:  But they actually had silicosis.

		MS. CONNOLLY:  Oh, that's very possible.

		MR. KENNEDY:  This is George Kennedy.  And I know what you're saying,
Scott, but we have to rely on the data that's being reported.

		MR. SCHNEIDER:  Right.

		MR. KENNEDY:  I mean we can assume that they are not getting all the
reports, but this is CDC, and who else can we rely on if we can't rely
on them right now, them and the Bureau of Labor Statistics.

		MR. SCHNEIDER:  Right.  Well, CDC is just looking at the data that