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

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

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

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

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

		JUDGE PURCELL:  That's Mr. Olson responding.

		MR. OLSON:  Oh, sorry.

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

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

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

		JUDGE PURCELL:  That additional response was Mr. Olson.

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

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

		MS. TRAHAN:  A masonry saw?

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

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

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

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

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

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

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

		MR. GOOD:  No, ma'am.

		MS. TRAHAN:  Okay.  Thank you.

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

		(No response.)

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

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

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

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

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

		MR. GOOD:  Sure.  We've been --

		JUDGE PURCELL:  Let me, let me --

		MR. GOOD:  I'm sorry.

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

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

	 	JUDGE PURCELL:  Yes.

		(Laughter.)

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

		JUDGE PURCELL:  Thank you.

		MR. OLSON:  Sorry, Your Honor.

		MR. GOOD:  By tomorrow.

		MR. OLSON:  Yeah.

		(Laughter.)

		JUDGE PURCELL:  Go ahead.

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

		MR. BLICKSILVER:  Great.  Thank you.

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

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

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

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

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

		MR. GOOD:  Okay.  Yeah.

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

		MR. GOOD:  Yeah.

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

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

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

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

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

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

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

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

		JUDGE PURCELL:  Okay.  Thanks.

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

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

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

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

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

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

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

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

		MR. GOOD:  Bill Good.  Yes, definitely.

		MR. OLSON:  Rick Olson.  Yes.

		MR. O'CONNOR:  Thank you.

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

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

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

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

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

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

		DR. COBLE:  Yeah.

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

		DR. COBLE:  Okay.  Thank you.

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

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

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

		MR. GOOD:  That's correct.

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

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

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

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

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

		MR. GOOD:  No, go ahead, Rick.

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

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

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

		MR. PERRY:  I understand.

		MR. GOOD:  Okay.

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

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

		MR. PERRY:  Okay.

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

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

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

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

		MR. GOOD:  Thank you for having us.

		JUDGE PURCELL:  Thank you, gentlemen.

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

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

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

(1:15 p.m.)

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

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

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

		DR. RANGINENI:  Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

		Thank you for this opportunity to provide testimony.

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

		MR. ASTRACHAN:  Correct.

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

		MR. ASTRACHAN:  That's correct.

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

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

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

		MR. ASTRACHAN:  Thank you.

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

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

		JUDGE PURCELL:  Certainly.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

		Thank you very much for this opportunity.

		JUDGE PURCELL:  Thank you, Mr. Astrachan.

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

		Okay.  Ms. Trahan?

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

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

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

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

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

		MR. ASTRACHAN:  Thank you.

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

		MR. ASTRACHAN:  Ultimately resulted in a discussion.

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

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

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

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

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

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

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

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

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

		JUDGE PURCELL:  Thank you, Ms. Trahan.

		Any other questions from the audience?

		(No response.)

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

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

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

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

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

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

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

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

		MR. ASTRACHAN:  Yes.

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

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

		MR. MOORE:  Definitely.

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

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

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

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

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

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

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

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

		MR. KUCZURA:  Post-hearing?

		MR. ASTRACHAN:  Post-hearing, yeah.

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

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

		MR. KUCZURA:  I see.

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

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

		MR. ASTRACHAN:  Thank you.

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

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

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

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

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

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

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

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

		MR. ASTRACHAN:  Thank you, Judge.

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

		MR. ASTRACHAN:  Thank you.

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

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

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

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

		MS. BENNETT:  Okay.  Thank you.

		MR. ASTRACHAN:  Thank you.

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

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

		MR. ASTRACHAN:  Thank you very much.

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

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

		MR. BONIFATE:  Thank you.

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

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

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

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

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

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

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

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

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

		MR. BONIFATE:  Sure.

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

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

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

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

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

		JUDGE PURCELL:  That's all right.

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

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

		This slide is just a PowerPoint of the discussion points.

		JUDGE PURCELL:  Thank you.

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

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

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

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

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

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

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

		MR. BONIFATE:  Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

		This is a quote for some of the medical services.

		JUDGE PURCELL:  That was slide 13.

		MR. BONIFATE:  Yeah.  Sorry.

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

		This is a quote we received for the air testing.

		JUDGE PURCELL:  And that's slide 15.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

		MR. BONIFATE:  Yes.

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

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

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

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

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

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

		MS. TRAHAN:  Chris Trahan with the Building Trades.

		Mr. Bonifate -- did I say that correctly?

		MR. BONIFATE:  Yes.

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

		MR. BONIFATE:  A little over three years.

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

		MR. BONIFATE:  Yes.

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

		MR. BONIFATE:  Well --

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

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

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

		MR. BONIFATE:  Plus overhead.

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

		MR. BONIFATE:  Yes.

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

		MR. BONIFATE:  Yes.

		MS. TRAHAN:  -- that information now?

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

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

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

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

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

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

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

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

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

		MS. TRAHAN:  Okay.  Thank you very --

		MR. BONIFATE:  We -- okay.

		MS. TRAHAN:  Thank you.

		JUDGE PURCELL:  Thank you, Ms. Trahan.

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

		MS. NADEAU:  My name is Liz Nadeau,

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

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

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

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

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

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

		MR. BONIFATE:  What do you call similar?

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

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

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

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

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

		MR. BONIFATE:  There would be other factors.

		MS. NADEAU:  Such as?

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

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

		MR. BONIFATE:  Yes.

		MS. NADEAU:  And which are dustier?

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

		MS. NADEAU:  Okay.

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

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

		MR. BONIFATE:  Okay.

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

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

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

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

		MS. NADEAU:  Thank you.

		JUDGE PURCELL:  Thanks, Ms. Nadeau.

		Any further questions from the audience?

		(No response.)

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

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

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

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

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

		MR. BONIFATE:  Yes.

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

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

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

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

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

		MR. O'CONNOR:  Okay.  And --

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

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

		MR. BONIFATE:  Yes.

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

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

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

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

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

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

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

		MR. BONIFATE:  No.

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

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

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

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

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

		MR. O'CONNOR:  Thank you very much.

		MR. BONIFATE:  You're welcome.

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

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

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

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

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

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

		MR. BONIFATE:  Right.

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

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

		MR. MOORE:  Okay.

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

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

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

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

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

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

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

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

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

		MR. MOORE:  Okay.

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

		MR. BONIFATE:  All right.  Thank you.

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

		MR. BONIFATE:  You're welcome.

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

		MR. BROWN:  Very good.

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

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

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

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

		JUDGE PURCELL:  Give it a number now?

		MS. BENNETT:  Yes, please.

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

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

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

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

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

		Slide no. 2, titled Sorptive Minerals Institute.

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

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

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

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

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

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

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

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

		Slide 5: Characteristics of Silica in Sorptive Clays.

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

		Slide 6: Characteristics of Crystalline Silica in Sorptive Clays.

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

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

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

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

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

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

		Slide 8: Sorptive Clay Occluded Quartz Surfaces.

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

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

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

		Slide 9: Sorptive Clay Occluded Quartz Surfaces.

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

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

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

		Slide 10: Sorptive Clay Occluded Quartz Surfaces.

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

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

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

		Slide 12: Quartz Particle Surface Morphology.

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

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

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

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

		Slide 14: Aged Silica.

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

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

		Toxicity of Occluded Quartz in Sorptive Clays, Slide 15.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

		Slide 18: Epidemiological Studies in the Sorptive Clay Industry.

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

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

		Slide 19: Occluded Quartz Conclusions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

		(No response.)

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

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

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

		MR. BROWN:  You're welcome.

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

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

		You had provided several references in your testimony.  And most of
them were full references, but there was one particular one, Wentland et
al., that didn't have a reference, and you indicated that that was a
very key reference.  And I just want to make sure that we have that to
look at.  The only one I was able to find was in Applied Geochemistry.
And so if you could provide the full reference for that, that would be
wonderful so that we could actually consider that as part of our
reevaluation.

		MR. BROWN:  I believe that that document was actually provided as part
of our original comments back in February.  But if it was not, we will
make sure that it is provided.

		MS. CARTER:  We couldn't find it, so that would be great if you could.
 Thank you so much.

		I had a question regarding your testimony both today and your written
testimony.  Slide 18, you indicated that there was no anecdotal history
of silicosis, and that you indicated that ACGIH, EPA, and IARC 2005 had
done a review.  Now, I didn't look at the IARC 2005, but I looked at a
World Health Organization review in 2005.  It may be the same reference
that you were discussing.  And it actually indicated that there was
silicosis in bentonite-exposed workers.  They had several different
instances.

		One of them was looking at bentonite workers exposed to crystalline
silica -- bentonite containing crystalline silica 5 to 11 percent.
Another one was a study where they indicated that 32 workers were
exposed and 14 showed radiological evidence of silicosis.  And they also
indicated that these observations suggest that the beneficial effects
ascribed to bentonite in protecting rat lungs from silicosis may not be
present in humans.

		I was wondering is this the same study that you were talking about?
And if it's not, would you care to comment?

		MR. BROWN:  I can't comment if it is the same study without having
taken a look at it.  My comment would be that as far as I am personally
aware, there is only one, at this point, very old study that purported
to find any kind of health effects, any silicotic effects coming out of
the bentonite industry.  This was a publication by Fibbs (ph.) back in
the 1960s, the early '60s, I believe, which has largely been discredited
at this point because of multiple failures to properly analyze the
cohort that was being dealt with.

		Workers that were being used for that or who were being referenced for
that study had come out of the metal mining industry in Butte, Montana.
They were by and large heavy smokers, and there were major factors that
contributed adversely to the results that they were finding.

		Other than that, I am not aware of anything at all.

		MS. CARTER:  Okay.  So what they referenced was actually different.
So I just wanted to make you aware of that as well.  There were cases of
bentonite silicosis.

		There's also been some -- so sorry --

		MR. BROWN:  Purported cases.

		MS. CARTER:  There was some recent -- there was a recent study
looking at workers' occupationally exposed to bentonite particles that
showed genetic damage and lipid peroxidation in workers.  I was
wondering -- this was published in 2013.  I was wondering if you were
aware of that study?

		MR. BROWN:  No.

		MS. CARTER:  You also indicated that you had -- you have in the past
your sponsored research.  I was wondering if that was continuing?

		MR. BROWN:  Yes, it is.

		MS. CARTER:  Will you be publishing any of this any time soon or do
you have anything that you'll be able to add to the literature any time
soon?

		MR. BROWN:  I would say it will probably be a little while before we
get anything further to the point where it's ready for publication.  The
amount of effort that went into those two papers that were published in
Inhalation Toxicology sucked a lot of the wind out of our sales.  But we
are continuing to work on it, and rest assured, as soon as we have
anything that we believe would be usefully published, we're going to
publish it.

		MS. CARTER:  Okay.  Great.  Thank you so much.

		MR. BROWN:  Yes.  And if I could say, those references that you
mentioned that I had indicated that I'm not familiar with, if I could
get those from you, I would certainly appreciate it.

		MS. CARTER:  Oh, absolutely, absolutely.  My name is Janet Carter.
You're more than welcome to e-mail me, and I'm more than happy to send
those to you.

		MR. BROWN:  Thank you, Janet.

		MS. CARTER:  Okay.

		MR. TREMAIN:  Hi, Mr. Brown.  Thanks again for being here.  My name
is Ryan Tremain with OSHA, and I was just curious if you could speak
maybe real briefly, at least on more of a macro scale, about some of the
processes through the mining or transport or processing of these
sorptive materials that release respirable crystalline silica.

		MR. BROWN:  Certainly.  The general process for processing either
bentonite clay or any of the other clays that are used in the industry
is to mine using an open pit mining technique, an open cut mining
technique.  The clay is removed by large equipment and transported in
bulk to a processing facility, typically where it is stockpiled, and
then used in smaller amounts as the plant consumes it.  The clay is
dried.  Temperatures during drying never exceed about 250 degrees
Fahrenheit.  And then the clay is typically either screened to produce a
granular product and remove the fine fraction and/or milled to produce a
powdered product, which is on the order of 200 mesh or 75 microns in
size, nominal size.

		For some products, particularly specialty products, some of the member
companies in our organization may also add a variety of chemicals to
accentuate properties that the clay has.  And then it's packaged after
that.

		MR. TREMAIN:  Okay.  Thank you.

		MR. O'CONNOR:  This is Dave O'Connor.  I just wanted to follow up on
Ryan's question.  Do you have any information as to the exposure levels
of the people involved in those operations, the screening and milling
operations, what their typical exposures are?

		MR. BROWN:  I don't have any of that here, and so could not speak to
it, but that kind of information is captured on a regular basis by, I
would expect, all of the member companies in our association, and even
those that are not part of the association.  The Mine Safety and Health
Administration is the regulatory body for the mining aspect of all of
our operations.  OSHA does have responsibility for some of the
processing operations or packaging operations.  So yes, it's available,
and at all levels throughout the process, I believe.

		MR. O'CONNOR:  Yes.  And, of course, we're particularly interested in
those operations that are under OSHA's jurisdiction.  And to the extent
that you're able to provide such information to the record, that would
be very helpful to us.

		MR. BROWN:  We'll see what we can do.

		MS. BENNETT:  Anna Laura Bennett.  I have just a few questions.  You
made a reference to the safe use determination for mineral-based pet
litter that was issued by the California Office of Environmental Health
Hazard Assessment?

		MR. BROWN:  Correct.

		MS. BENNETT:  And I think the attachment 1 to your written submission
is just the application, not the safe use determination itself; is that
correct?

		MR. BROWN:  You know, I'm not sure.

		MS. BENNETT:  Okay.  If you wouldn't mind to submit the safe use
determination.  I looked through all of attachment 1, and it appears to
be the very long application but not the result.

		MR. BROWN:  I thought -- it was our intent to have included it.
We'll have to check and see what actually was included.  If it wasn't
included, we'll make sure that it is.

		MS. BENNETT:  Thank you.  So there are actually two documents.  And
you do refer to one in a footnote, the June 4th, 1999 issuance of the
safe use determination for crystalline silica in sorptive mineral-based
pet litter, and then also a document that is linked from the URL that
you provide in your footnote, the May 20th, 1999 response that includes
the supporting materials for the safe use determination.

		MR. BROWN:  Right, right.

		MS. BENNETT:  If you could provide both of those.  And just to be
clear, what was the effect of that safe use determination?

		MR. BROWN:  Could you clarify your question?

		MS. BENNETT:  What is the purpose of seeking a safe use determination?

		MR. BROWN:  Under Proposition 65 in California, anyone that has a
known cancer-causing agent in their product must list that on the
package.  And, of course, that is not particularly good for consumer
products if you're seen to have cancer-causing agents in your product.
Because of the statements by IARC, where at that point in time, it was,
I believe, a 2A class carcinogen, it qualified.

		So as a group, we determined that we would attempt to seek a safe use
determination and develop the information, continue to develop the
information necessary to prove the point that this was not something
that caused that kind of issue, and we were successful in being able to
do that.

		I might add, this was only the second safe use determination that
California had ever issued and the first that was issued for something
that really was not capturing in its entirety the potential bad actor
that they were focused on.  I believe the first one was a Loctite
product where some solid material was inside it and never could get out
of it, but they had gotten the safe use determination anyway.

		MS. BENNETT:  Okay.  And so you did succeed in getting the safe use
determination, so the warning requirement was not triggered?

		MR. BROWN:  That's correct.

		MS. BENNETT:  Okay.  And I was able to look at the materials on the
California agency's website, and I just want to make sure I understand
the basis for the safe use determination was not actually that the
mineral was inherently safer, but rather that the exposure among
consumers who would be using this product would be exposed at such low
levels that the excess cancer risk was less than 1 in 100,000
specifically because the exposure was so low, correct?

		MR. BROWN:  That is correct.  We put forth both arguments to
California OEHHA, and they chose to focus on the exposure.

		MS. BENNETT:  Okay.  Thank you.

		MR. BROWN:  Um-hum.

		MR. O'CONNOR:  That concludes our questioning.  Thank you, again,
Mr. Brown.

		MR. BROWN:  Thank you very much.

		JUDGE PURCELL:  Thank you very much, Mr. Brown, appreciate your
testimony.

		The next and final presentation on the agenda for this afternoon is by
Lauren Bailey from the National Automobile Dealers Association.

		Ms. Bailey?

		(Off the microphone discussion.)

		JUDGE PURCELL:  Ms. Bailey, you just handed me a copy of your
testimony, which I'm going to introduce into the record as Hearing
Exhibit 132.

					(Whereupon, the document 						referred to as Hearing
Exhibit 132 was marked and 						received in evidence.)

		JUDGE PURCELL:  With that said, whenever you're ready, you may
proceed.

		MS. BAILEY:  Thank you, Your Honor.

		Good afternoon.  My name is Lauren Bailey, and I am the Manager of the
State Franchise Law and Regulatory Initiatives for the National
Automobile Dealers Association, or NADA.

		NADA represents more than 16,000 franchised automobile and truck
dealers.  These dealers sell new and used motor vehicles and engage in
service repair and part sales.  Together, NADA's members employ upwards
of 1 million people nationwide.  Yet the majority are small businesses,
as defined by the Small Business Administration.

		NADA appreciates the opportunity to testify here today on OSHA's
proposed rulemaking on occupational exposure to crystalline silica.  And
I'd also like to thank OSHA for switching my time to today from
tomorrow.  Thank you very much.

		The list of affected industries in the proposed rule does not
reference the NAICS codes for franchised automobile and commercial truck
dealerships or those for standalone auto body shops.  Nonetheless, auto
body operations have long been referenced by OSHA a workplaces involving
the potential for crystalline silica exposure.  However, since no more