INFORMAL PUBLIC HEARINGS FOR THE PROPOSED RULE

ON OCCUPATIONAL EXPOSURE TO

RESPIRABLE CRYSTALLINE SILICA

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UNITED STATES DEPARTMENT OF LABOR

OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION

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March 25, 2014

9:30 a.m.

Frances Perkins Building Auditorium

200 Constitution Avenue, N.W.

Washington, D.C. 20210

BEFORE: 	DANIEL F. SOLOMON

	   	Administrative Law Judge

DEPARTMENT OF LABOR (DOL):

KIMBERLY ROBINSON

Attorney, Office of the Solicitor

ALLISON KRAMER

Attorney, Office of the Solicitor

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA):

DAVID O'CONNOR

Director, Office of Chemical Hazards - Non-Metals

ANNETTE IANNUCCI

Health Scientist, Office of Chemical Hazards

- Non-Metals

JOSEPH COBLE, Sc.D., CIH

Director, Office of Technological Feasibility

ROBERT STONE

Director, Office of Regulatory Analysis - Health

ROBERT BLICKSILVER

Office of Regulatory Analysis - Health

ROBERT BURT

Acting Deputy Director, Directorate of Standards and Guidance

BUILDING AND CONSTRUCTION TRADES DEPARTMENT,

AFL-CIO (BCTD):

GERARD SCARANO

Executive Vice President, International Union

of Bricklayers and Allied Craftworkers

CHRIS TRAHAN

Building and Construction Trades Department, AFL-CIO

EILEEN BETIT

Building and Construction Trades Department, AFL-CIO

LAURA WELCH, M.D.

Building and Construction Trades Department, AFL-CIO

CHARLES AUSTIN, CIH

International Association of Sheet Metal, Air, Rail and Transportation

DEVEN JOHNSON

Director of Training, Health and Safety

Operative Plasterers' and Cement Masons' International Association

DAN SMITH

United Union of Roofers, Waterproofers and

Allied Workers

LAMONT BYRD

Safety and Health Director

International Brotherhood of Teamsters

SARAH COYNE

Health and Safety Director

International Union of Painters and Allied Trades

VICKY BOR

Attorney

NATIONAL ASSOCIATION OF MANUFACTURERS (NAM):

JOE TRAUGER

Vice President of Human Resources Policy

AMANDA WOOD

Director of Employment and Labor

MANESH RATH

Attorney, Keller & Heckman

National Association of Manufacturers

CHANGE TO WIN

ERIC FRUMIN

Health and Safety Director

OTHER PARTICIPANTS:

ELIZABETH NADEAU

Attorney, International Union of Operating Engineers

BILL KOJOLA

National Council for Occupational Safety and Health

PEG SEMINARIO

Safety and Health Director, AFL-CIO

ROSEMARY SOKAS, M.D., M.S., MOH

American Public Health Association

SCOTT SCHNEIDER, CIH

Director of Occupational Safety and Health

Laborers' Health and Safety Fund of North America

KAREN HALIFAX

Bricklayers

JAMES FREDERICK

Assistant Director, Health, Safety and Environment  United Steelworkers
Union

REBECCA REINDEL

AFL-CIO

INDEX

										PAGE

INTRODUCTION

Judge Daniel F. Solomon			  			  PAGEREF Intro \h  1553

BUILDING AND CONSTRUCTION TRADES DEPARTMENT,

AFL-CIO (BCTD)

	Gerard Scarano						 	  PAGEREF Scarano \h  1556

	Chris Trahan 							  PAGEREF Trahan \h  1563

	Eileen Betit						 	  PAGEREF Betit \h  1569

	Laura Welch, M.D. 						  PAGEREF Welch \h  1577

	Laurie Shadrick (by Chris Trahan)			  PAGEREF Trahan2 \h  1582

	Charles Austin, CIH						  PAGEREF Austin \h  1585

	Deven Johnson							  PAGEREF Johnson \h  1590

	Dan Smith								  PAGEREF Smith \h  1597

	Lamont Byrd 							  PAGEREF Byrd \h  1604

	Sarah Coyne 							  PAGEREF Coyne \h  1611

	Questions 							  PAGEREF QAPublic \h  1624

NATIONAL ASSOCIATION OF MANUFACTURERS (NAM)

	Joe Trauger							  PAGEREF Trauger \h  1712

	Amanda Wood							  PAGEREF Wood \h  1719

	Joe Trauger							  PAGEREF Trauger2 \h  1732

	Questions								  PAGEREF QAPublic2 \h  1743

CHANGE TO WIN

	Eric Frumin							  PAGEREF Frumin \h  1781

	Questions								  PAGEREF QAPublic3 \h  1795

ADJOURNMENT								  PAGEREF Adjourn \h  1818

EXHIBITS

EXHIBITS		DESCRIPTION				 	PAGE

Exhibit 43	Listing from Silica-Safe.org	   	  PAGEREF E43 \h  1577

Exhibit 44	Mr. Scarano's testimony	   		  PAGEREF E44_45_46 \h  1624

Exhibit 45	Mr. Byrd's testimony		  	  PAGEREF E44_45_46 \h  1624

Exhibit 46	Mr. Austin's testimony		   	  PAGEREF E44_45_46 \h  1624

Exhibit 47	Construction Chart Book		   	  PAGEREF E47 \h  1628

Exhibit 48	NFRC list of benefits		  	  PAGEREF E48 \h  1657

Exhibit 49	NAM testimony				  	  PAGEREF E49 \h  1711

Exhibit 50	Gauley Bridge transcript			  PAGEREF E50 \h  1793

Exhibit 51	Chapter from Working Lives	  	  PAGEREF E51 \h  1793

Exhibit 52	Photocopy of Hawk's Nest		  	  PAGEREF E52 \h  1794 		 P R O
C E E D I N G S

(9:34 a.m.)

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

		The morning program is probably going to last on the equivalent of
direct testimony until about noon.  We'll try to break for noon and --
at noon, and then we probably have so many questions for this panel that
we'll probably come back.  And the question period will last probably an
hour, and then the National Association of Manufacturers program will
probably start around 2:00.  So if there's anybody from the National
Association for Manufacturers, not on until 2:00.

		Okay.  So we have a different cast of characters.  Ms. Robinson, do
you want to enter your appearance for the record please?

		MS. ROBINSON:  My name is Kimberly Robinson, and I am an attorney in
the OSH Division of the Solicitor's Office.

		JUDGE SOLOMON:  Okay.  So who is going to introduce everyone for this
panel?

		MR. SCARANO:  Your Honor, I'll be giving the opening remarks,
introducing our panel, and then turning it over to Chris Trahan who will
be the moderator for our group.

		JUDGE SOLOMON:  Okay.  Do you want to identify everybody first,
please?  Put the names into the record.

		MR. SCARANO:  I'm Gerard Scarano, S -- you want me to spell it?

		JUDGE SOLOMON:  You don't have to.  You're already in the record.  So
what is your affiliation and where do you live?

		MR. SCARANO:  I am Executive Vice President for the International
Union of Bricklayers and Allied Craftworkers, 620 F Street.

		JUDGE SOLOMON:  D.C.?

		MR. SCARANO:  D.C.

		JUDGE SOLOMON:  Okay.  Next?

		MS. TRAHAN:  Chris Trahan with the Building Trades.

		JUDGE SOLOMON:  And you're here in D.C. also?

		MS. TRAHAN:  Yes, sir.

		MS. BOR:  Vicky Bor, counsel to the Building Trades here in D.C.

		MS. BETIT:  Eileen Betit with the Building Trades here in D.C.

		JUDGE SOLOMON:  And then in the back row?

		MS. COYNE:  Why don't you start?  Yeah.

		MR. BYRD:  I'm Lamont Byrd.  I'm with International Brotherhood of
Teamsters here in Washington, D.C.

		MR. SMITH:  Dan Smith.  I'm with the United Union of Roofers,
Waterproofers and Allied Workers.  I'm from Livermore, California.

		MR. JOHNSON:  Deven Johnson.  I'm with the Operative Plasterers' and
Cement Masons' International Association, and we're in Beltsville,
Maryland.

		MR. AUSTIN:  I'm Charles Austin, industrial hygienist with Sheet
Metal, Air, Rail and Transportation.

		JUDGE SOLOMON:  And where are you from?

		MR. AUSTIN:  Washington, D.C.

		DR. WELCH:  Laura Welch, occupational physician with the Building
Trades here in D.C.

		JUDGE SOLOMON:  Okay.  So let's --

		MS. COYNE:  Sarah Coyne with the International Union of Painters and
Allied Trades, Hanover, Maryland.

		JUDGE SOLOMON:  Sorry.

		MS. COYNE:  That's okay.

		JUDGE SOLOMON:  Okay.  So, Mr. Scarano, do you want to begin?

		MR. SCARANO:  Yes.  Good morning.

		My name is Gerry Scarano.  I am Executive Vice President of the
International Union of Bricklayers and Allied Craftworkers.  I oversee
safety and health programs for the union, and I'm also chair of the
Building Construction Trade Silica Subcommittee.

		Later in these hearings, representatives from my union will testify
about conditions on the job and silica exposures -- experience by
workers we represent in the masonry trades.  Today, I am participating
in this panel in my capacity as chair of the Building Trade Silica
Subcommittee.

		On behalf of Building Trades Department, I would like to thank OSHA
for providing all stakeholders with the opportunity to discuss this
critical health hazard in an open forum.  We applaud OSHA for taking
steps to regulate silica and for recognizing the needs for a separate
standard for the construction industry, which is both protective of
construction workers and feasible for construction employers to
implement.

		We support this proposed standard, and while we believe that they are
important ways, the proposal should be strengthened to more fully
protect workers.  We appreciate OSHA's effort to promulgate a
comprehensive, feasible rule.  Our proposed changes which we outline in
our written comments will be discussed more fully by some of my fellow
panelists this morning and by other worker representatives later in
these hearings.

		The standard in these hearings have been a long time coming.  Silica
is not a new hazard.  As far back as the 1700s, Dr. Bernardino
Ramazzini identified silicosis in stone cutters.  Two hundred years
later, Dr. Alice Hamilton documented silica-related illnesses among
granite workers.  Vermont granite cutters went on strike to get
ventilation equipment installed in the work sheds, and hundreds of
workers died and more than 1,500 contracted silicosis while working on
just one project, the Hawks Nest Tunnel in Gauley Bridge.

		The position of those that refuse to acknowledge silica as a serious
occupational health hazard back then is not much different than what you
hear from opponents today.  And their positions are still wrong.

		Reportedly, the general manager of the Gauley Bridge project testified
that there was no known documented case of silicosis reported by one of
his workers.  And he never heard his employees complain about conditions
while working in the tunnel.

		Recognizing the seriousness of this occupational health hazard, in
1938, Secretary of Labor Frances Perkins, coincidentally the namesake of
this building, went on the record stating that "Our job is one of
applying techniques and principles to every known silica dust hazard in
American industry.  We know the methods of control.  Let us put them in
practice."

		And in 1990, Secretary of Labor Robert Reich once again attempted to
focus attention on this serious occupational health hazard by initiating
a new campaign, "It's Not Just Dust."

		Around the same time, leading researchers and health organizations,
including the World Health Organization's international agency on cancer
research, determined that exposure to crystalline silica can lead to
other debilitating, even fatal illnesses beyond silicosis, including
lung cancer.

		Acknowledging these findings, both Democratic and Republican
administrations have listed silica as a regulatory priority ever since.
And some states have implemented their own rules to protect construction
workers instead of waiting for a federal action.

		Despite these efforts, silica remains a serious health hazard.  In
fact, with the introduction of equipment that allows masonry products to
be cut dry, the risk has become greater, a reality that isn't just my
opinion, but one acknowledged by other stakeholders.

		I'd like to quote from a December 2009 article for Masonry Magazine,
the official publication of the Mason Contractors Association of
America.  The article states, "With the advent and increased use of dry
cutting, drilling, and grinding of concrete masonry materials and
construction, we often see workers operating in a cloud of dust with no
respiratory protection or safety measures to prevent airborne dust,
which poses a significant risk to workers."

		What does this 70-plus-year timeline tell us?  Simply that without a
comprehensive standard, silica will continue to be a seriously, even
deadly, hazard for working men and women in the construction industry.
We need a standard with a low exposure limit and a comprehensive set of
ancillary provisions to protect workers and to ensure that employers who
take the steps necessary to protect their employees are not put at a
competitive disadvantage in doing so.

		In 1997, my union approached the Building Trade Safety and Health
Committee about taking a more active role in addressing the silica
hazard.  Shortly thereafter, the Silica Subcommittee was established to
raise awareness of the hazard and control methods and to develop a model
silica standard for the construction industry.

		The first chair, who has since died from occupational disease, was
from my union.  And we have chaired this subcommittee ever since.  The
Building Trades has taken an active role in raising awareness of the
hazard, use of controls, and the need for OSHA to promulgate
comprehensive standard for the construction industry.

		We participated in OSHA's stakeholder meeting in 1999 and 2001, as
well as in various meetings with the Advisory Committee on Construction
Safety and Health and other stakeholder groups.

		In September 2001, the Building Trades formally submitted language for
a silica standard to OSHA.  Throughout this time, we have worked to
educate workers and contractors about the hazards of silica and have
supported the development and use of the engineering work practices to
control the dust.  These latter efforts, along with the continued
presence of silica on OSHA's regulatory agenda, have contributed to a
greater availability of improved dust control options.

		In 2009, Masonry Contractors magazine, the article I mentioned earlier
also noted that "The only effective protection against silicosis is the
prevention of silica dust in the air.  Employers must take measures to
ensure that workers are not exposed to silica dust.  There are a number
of simple control measures that can be taken to effectively reduce the
amount of airborne silica.  Tools causing dust, such as grinders and
saws, should be fitted with water attachments and dust extraction
devices."

		The article went on to point out, "When grinding concrete or other
masonry materials, a shroud with a vacuum attachment should be used.
Vacuums with HEPA filters are the preferred method for collecting dust.
If dry grinding is performed, regular vacuuming and wet sweeping of
floors also will help to remove settled dust during these operations."

		The use of respiratory protective equipment should be considered as a
last resort when all other preventative solutions have been put in place
and silica dust exposure continues to be an issue.

		The Contractors Association gave its members this information more
than four years ago.  Since then, the availability and effectiveness of
control options have improved, adding force to OSHA's conclusion that it
is feasible to reduce the dust in most cases down to the proposed
permissible exposure level.

		In closing, on behalf of the current and past members of the Building
and Construction Trades Department and its Silica Subcommittee and the
more than three million skilled construction workers represented by 14
national and international affiliated unions, I would like to thank you
for giving us the opportunity to share the perspectives of those most
affected: the men and women exposed or at risk of exposure on
construction sites every day in every state across our country.  We owe
it to them to see that the standard is implemented without further
delay.

		With that, I turn the floor over to Chris Trahan who will serve as
our moderator.  Thank you.

		MS. TRAHAN:  Thank you, Gerry.

		Good morning.  My name is Chris Trahan.  I'm a certified industrial
hygienist with over 20 years of experience in occupational safety and
health.  And since -- well, the last 18 years of those have been
entirely on the construction industry.

		I've been working with the Building Trades Union under the leadership
of the Bricklayers and Allied Craftworkers on ways to reduce
construction worker exposure to silica since 1997.  I'm not going to
reiterate the Building Trades comments here.  However, I hope we get
some questions if any of the positions that we've laid out are unclear.

		I've been sitting in these hearings, and I wanted to go over a few
points that I think we've established so far.

		Number one, silica causes cancer.  That's beyond dispute.  Silica also
causes COPD, kidney disease, other diseases, and yes, we still have a
problem with workers getting silicosis here in this country.

		If a worker is exposed to the current construction PEL, they are
essentially guaranteed to get sick and almost guaranteed to die from
their exposure.  Each year, this standard will save almost as many lives
as are lost from all traumatic injuries in construction each year.
That's right.  I'm talking about falls, I'm talking about trenches, I'm
talking about back-overs, all of them combined.

		In 2010, we saw 802 construction workers die in fatalities from
traumatic incidents.  This really has the power to save almost 700
workers each year from death.  I don't think we're paying as much
attention to it as we should, and I'm really happy we're here at these
hearings.

		While some in the construction industry would suggest otherwise, the
construction industry is all about change.  The industry changes all the
time, and I see more change coming.  First and foremost, dust controls
have to become the default every time, just like hard hats and
guardrails are now.  No silica dust-generating tasks should be performed
without the use of engineering or work practice controls, period.

		You've heard the testimony from employers who are doing this as a
normal course of business and making a profit.  Once we see the silica
final rule, we'll see a lot more of this.

		OSHA enforcement personnel will see this and will see that employers
are adhering to this principle.  Most importantly, worker exposure will
be dramatically reduced and workers will stop getting sick and dying.

		We support the Table 1 approach.  This is one of the main ways we will
get the industry to use the presumptive use of effective controls.  We
really hope that all participants in the rulemaking can give
constructive feedback to OSHA to make the table more workable in our
industry.

		We think OSHA needs to do a better job in clearly articulating what
Table 1 is and isn't.  In our view, the listing of an operation or task
and associated engineering work practice controls on Table 1 indicates
the Agency has a great deal of confidence that the listed combination of
controls will reduce exposure to below the PEL.

		Where the combination of controls for the task or operation includes
the additional requirement for respiratory protection, we believe that
OSHA thinks that the combination of engineering and work practice
controls will reduce exposure to below the PEL most of the time, but
lacks the confidence that it will happen all of the time.

		The presence of a respirator on the table doesn't show infeasibility.
The combination of tasks and controls on Table 1, in our view,
represents where OSHA's taken a conservative view of the data and
spoon-feeds the controls to our industries so we don't need to think.

		Some of the industry just wanted to be told what to do with
specificity.  I think OSHA does really like to do specification-based
health standards, but they have acquiesced in this case due to the
special requests from the construction industry.  We should thank them
rather than attack them on this.

		OSHA also proposes a performance-based approach to silica where
the -- where they identify the PEL and leave it to the employer to
determine the specifics of how they will get there given job site
conditions.  That OSHA allows employers to use either Table 1
specification-based approach or performance-based approach or a
combination of these for silica; the flexibility is there for
construction employers.

		I want to expand a little bit on this.  In Table 1, OSHA specifies
that to be in compliance while jackhammering, that specified controls
have to be in place, and if the task is done for just a couple of hours,
less than four hours per day, the employer has met their obligations
under the standard.  If jackhammering is performed more than four hours
each day, the employer must add respirators, therefore, assume the
worker's exposed to an excess of the PEL.

		However, there's nothing to stop an employer from implementing
additional or improved engineering controls or work practice controls
and demonstrating they control exposure below the PEL or proposed action
level and thereby being freed from the obligations of mandatory
protection program -- respiratory protection use in the ancillary parts
of the standard.

		And yes, we want more operations on Table 1, but only if there is
good data that shows the controls work to reduce exposure.  OSHA's got
to have a way to welcome developments in controlling this exposure, and
we have suggested a few ways to do this.  We hope some of these
suggested a few ways to do this.  We hope some of these suggestions will
make it into the final rule.

		You're going to hear about the work being done by some of the Building
Trades members now, the controls used and the resources available and
some of the challenges faced by our industry.  Some of the challenges
are related to medical information, and we will focus somewhat on these
in our oral presentation.

		Some workers represented on this panel have very high exposures while
some do not.  We offer this testimony to help OSHA understand the scope
of the problem and exposures in our industry so that all construction
workers can be protected.  It was really good to hear from two
construction industry employers yesterday because they were able to
build a better record for OSHA to consider.

		We will talk about operations that OSHA has considered and maybe some
that OSHA has not.  And while we probably won't have all the answers
today, we look forward to hearing and responding to questions this
morning, and we'll do our best to respond to any unanswered questions in
our post-hearing brief.

		And now I'm going to turn it onto -- turn it over to Eileen.

		MS. BETIT:  Okay.  Thank you.

		My name is Eileen Betit, and I'm testifying on behalf of the Building
Trades in response to OSHA's question:  Should employers be required to
develop and implement a written exposure control plan, and if so, what
should be required in the plan?

		Planning is integral to everything that happens in construction from
the initial bidding stage to assembling the right materials, equipment,
and trades, to assigning work to coincide with the order in which a
project needs to be undertaken.

		Just as it is important for employers to put their plans in writing to
guide them through the construction process, it's equally as important
for employers to have written plans to protect their employees from
exposures to silica dust.  The absence of a requirement for a written
exposure control plan in the proposed construction standard is a
departure from OSHA's past practice.

		As the AFL-CIO noted during its testimony, all OSHA health standards
that set a permissible exposure limit include a requirement for a
written compliance plan that, at a minimum, must set out the control
measures that will be used to meet the PEL.

		Written exposure control plans are important for identifying
operations that will result in exposures, the specific control measures,
and how they will be implemented and the procedures for determining if
controls are being properly used and maintained.

		Such plans also facilitate the communication of this information to
other employers on multi-employer worksites so that they, in turn, can
take steps to protect their employees.  Without such plans, there's no
assurance that employers and employees will take a systematic and
comprehensive approach to identifying, controlling, and sharing
information about silica exposures on job sites.

		Given the prevalence of silica-generating tasks and the potential for
multiple employers and their employees to be on a construction project
at any given time, the Building Trades recommends that OSHA require
every employer engaged in silica-generating tasks to develop a written
exposure control plan for their projects and not to make this an option
only for employers that choose not to implement regulated areas.

		As NIOSH noted in its testimony, such plans would greatly improve
reliability of the protection provided, do not need to be complex or
burdensome, and can be based on the common job hazard analysis approach
used by construction safety and health professionals to address safety
hazards.

		In fact, CPWR, the Center for Construction Research and Training, has
developed an online planning tool that any employer can use to develop a
job-specific written exposure control plan for silica.  The tool can be
found at Silica-Safe.org.

		In developing this planning tool, CPWR solicited input from a variety
of stakeholders, including contractors and their representatives,
through focus groups, meetings, and opportunities to test and comment on
early versions of the tool.  The final design reflects their
recommendations.

		The planning tool is broken down into three steps and includes
information to help employers identify silica hazards and control
methods, as well as background information and space for other elements
of a comprehensive silica exposure control plan.

		In Step 1 is part of its exposure assessment.  A contractor selects
from a list of common silica-containing building materials or fills in
one of its own and then selects the dust-generating tasks its employees
will perform with each material on a project.

		In Step 2, for each material-task combination selected in Step 1, the
website generates a list of possible equipment control options, as well
as commercially available examples of each.

		While we have not captured every equipment control option available on
the market, the site currently includes more than 100 examples which are
tagged to specific materials and tasks.  And we'd like to submit the
current listing, which is broken down material and task, for the record.

		This listing is updated regularly based on feedback from users, and
its new control options are identified.  For each material-task
combination, there's also space for the contractor to include specific
details such as where and when the silica-generating tasks will take
place, which workers will be involved directly or indirectly and how the
controls will be used, all information useful to the contractor in
planning its work.

		Step 3 accommodates other important elements of a comprehensive
exposure control plan, including the identity of the competent person
who, as discussed in earlier testimony and in the Building Trades
comments, is key to ensuring that the employer's silica exposure control
plan is properly implemented and workers are protected; a description of
the training that will be provided, including who will be trained, and
where and when such training will take place; housekeeping activities,
such as the methods that will be used for cleaning excess dust off
surfaces and clothing and any medical surveillance activities required
because of exposure levels.

		The planning tool is designed to provide employers with maximum
flexibility by allowing them to print, e-mail, save and revise their
plans.  Anyone that visits the website can use the planning tool to
create a plan, but those who register can set up a confidential
password-protected account where they can save their plans.  They can
then retrieve their saved plans, revise them for use on subsequent
projects.

		As noted earlier, written exposure control plans are not only
important for an individual employer to ensure that it is properly
assessing and controlling exposures, but also for facilitating the
exchange of information among employers and employees on job sites.

		Given the prevalence of multi-employer worksites in construction,
communicating information about silica-generating tasks and how the dust
will be controlled is critical because uncontrolled dust not only
threatens the health of the employees directly engaged in the work, but
creates ambient exposures that pose risks to others working in the same
area.

		As OSHA noted in support of its proposed standard for confined spaces
in the construction industry, because on multi-employer worksites, an
employer's actions can affect the health and safety of another
employer's employees, it is critical for the safety of all employees on
a worksite that contractors and subcontractors communicate with each
other.

		On most multi-employer construction projects, a general contractor or
other controlling employer has overall responsibility for coordinating
the activities of other contractors and subcontractors on the site and,
as a result of its responsibilities, either possesses or has access to
information about conditions on the site which other employers need to
properly safeguard their employees.

		As such, OSHA frequently assigns the controlling employer a specific
rule for ensuring that other employers coming onto the worksite are as
fully informed as possible about worksite conditions that might not --
might otherwise not be apparent.

		For example, the asbestos standard requires building owners or
employers to perform initial monitoring for asbestos and to communicate
the presence of asbestos or presumed asbestos-containing materials to
prospective employers whose employees cannot -- can reasonably be
expected to work in exposed areas.

		The steel erection standard requires controlling contractors to ensure
that site conditions are safe for steel erection.  Similarly, the crane
and derrick standard requires controlling entities to ensure the ground
conditions are adequate to support a crane and to coordinate operations
when one -- when more than one crane is operating in the same swing
area.

		The Building Trades urges OSHA to include in the standard a
requirement that an employer engaged in silica dust-generating
operations, the creating employer provide a copy of its written exposure
control plan to the controlling employer so that it can be shared with
other employers operating on the site.

		The standard should also require the controlling employer to maintain
these plans and provide them to other employers whose employees are
potentially exposed to silica as a result of the creating employer's
work operations.

		While the Building Trades is recommending a rule for the controlling
employer here, unlike in the other standards I just referenced, we are
not recommending that OSHA require the controlling employer to undertake
its own hazard assessment or to create any documents.  Instead, we are
simply recommending that employers that create written exposure control
plans provide them to the controlling employer and that the controlling
employer receive those plans and provide other employers operating on
the job site with access to them.

		Optimally, however, the controlling employer would also use this
information to stage work in a way that eliminates unnecessary exposures
as much as possible.

		In summary, the Building Trades recommends that OSHA require written
exposure control plans in the construction standard so all employers
have the information they need to protect their employees, whether their
employees are directly engaged in silica-generating tasks or exposed to
silica due to the work of others.  Thank you.

		JUDGE SOLOMON:  You referenced a document.  Do you want to pass that
forward so --

		MS. BETIT:  Yes.

		JUDGE SOLOMON:  -- it can be placed into evidence?

		Ms. Robinson, do you want to mark that?

		MS. ROBINSON:  Yes.  I will mark this document as Exhibit 43 for the
record.

		JUDGE SOLOMON:  Okay.  And do you move it into evidence?

		MS. ROBINSON:  I do move it into evidence.  Thank you, Your Honor.

		JUDGE SOLOMON:  Okay.  Without objection, it is hereby entered into
evidence.

(Whereupon, the document referred to as Hearing Exhibit 43 was marked
and received in evidence.)

		JUDGE SOLOMON:  Next?

		DR. WELCH:  I'm Laurie Welch.  I'm an occupational physician with the
Building Trades.  I don't want to say how many years of experience I've
had in my field, but I've been working full-time for -- to improve
health and safety for construction workers for the past 10 years.

		I want to highlight some of the parts of our comments.  I'm going to
talk about medical surveillance generally, but I first want to say, you
know, in our comments, we do say we support the standard, and as Gerry
pointed out, there's a big need for the standard.  And we submitted some
additional references with our comments that we think are also
supportive of the health assessment in the standard.

		But what I mostly wanted to talk today about was confidentiality of
medical information.  The OSHA standard, as proposed, requires the
employer to have an exam conducted and requires the examining medical
provider to provide that information, the results of the exam, to the
employer.  And we think that does not reflect, really, the changes in
the management of medical information that have occurred in the society
around us.

		Particularly when you think about the Americans with Disabilities Act
and HIPAA, the Health Insurance Portability and Privacy Act, both of
which don't directly apply, but I think to reflect the way, outside of
this occupational setting, people would expect their medical records and
private medical information to be handled.

		So, you know, under the Americans with Disabilities Act, if an
employer conducts a medical examination, it has to be closely tied to
the individual's job and their ability to do the job.  It's not focused
on some future risk.

		Now, medical surveillance has a different role, but the ADA, if it
were applying to the provisions in the law, they would not be permitted
under the ADA.  Employer can't just do exams because they feel like it
and store them away.  That's private medical information under the ADA.

		I also, in over maybe about five or six years ago, I worked with the
American College of Occupational and Environmental Medicine to chair a
committee to develop an update on their statement on medical
confidentiality.

		The American College is a member organization of thousands of
occupational medicine physicians who are often in the position of doing
medical examinations for an employer, either as directly as an employee
of that company but more likely as working for a hospital where an
employer would contract to do any kind of examinations, Department of
Labor examinations, you know, and these kind of OSHA medical
surveillance examinations.

		ACOEM developed the guidelines to provide very clear instruction to
the examining doctors and also to the employers about what information
the employers should be transmitting -- the doctors should be
transmitting to the employer.  And those guidelines say that the
provider should not provide the employer with specific medical details
or a diagnosis without the employee's consent.

		And the reason for that is, I think it was even discussed yesterday,
employers, if they have medical information, can take actions that we
would consider discriminatory based on that.  So that there is an
important balance in medical surveillance to be sure to protect the
worker from any discrimination.

		As I said, the standard as proposed requires the healthcare provider
to disclose whether the employee has a medical condition that puts him
or her at risk of material impairment to health from exposure to silica.
 And as I read that, that would require giving the employer the medical
diagnosis.

		We think that that discussion should be between the employee and the
examining medical provider, and if there's a need for any work
restrictions, that that can be communicated by the medical provider to
the employer after discussion with the exposed worker and with his or
her expressed consent.

		Part of this is also, we, in our comments, said we thought there
should be anti-discrimination -- statements on anti-discrimination in
the standard, again, to remind employers that using medical information
to deny someone employment is discriminatory, and that's not the purpose
of medical surveillance under the standard.

		The employer will need to know whether the individual is fit to wear a
respirator for certain jobs or certain employers if they're using a
respiratory protection program.  And it was -- that is the kind of
information that our current standards, the ACOEM standards and the ADA
would say the employer has a right to know, but that does not include a
medical diagnosis.

		And you'll hear from some other members of our panel how, in the
construction industry in particular where someone can have multiple
employers in a year and certainly many, many employers over their
lifetime, you're more likely -- the employer is more likely to
discriminate against an individual who is coming to work with them.

		If you think about it, a construction employer has got 50 people to
choose among, and one of them has a diagnosis of silicosis and is going
to work in a silica dust-generating occupation.  Well, why would the
employer choose that person to work for them?  And you will hear from
our -- the rest of our panel, essentially, that person, if that -- if
they have a letter saying oh yes, I have silicosis, well, they're not
working again.

		So that -- and there's a balance that has to be kept between the
employer's need to know to reduce exposures and the employee's privacy.
And we think the balance should be that the employer can be told about
the individual's ability to use a respirator, but not specific medical
information.

		And then I would -- if there's additional questions people have about
the medical surveillance in our comments, we can -- I can address those
later.

		JUDGE SOLOMON:  Thank you.

		MS. TRAHAN:  Thanks.

		Now, I'd like to carry a message while the next person comes up, from
one of our panelists who was unable to attend today due to scheduling.

		So Laurie Shadrick, the health and safety national coordinator for the
United Association of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States, Canada and Australia could
not be here today, but asked me to convey a few things about her trade.

		United Association has 370,000 members in the pipe trades.  Of these,
60 percent are pipe fitters, 25 percent are plumbers, and 15 percent are
in HVAC and welders.

		UA members, particularly pipe fitters and plumbers, do overhead
drilling to install hangers for pipelines in many different types of
construction projects.  Project types typically include new construction
and renovation work in hospitals, powerhouses, nuclear plants,
bioscience buildings, and commercial construction.  We also core drill
through walls, ceilings, floors, and rooftops for the installation of
piping services.  The work is not evenly distributed across the entire
population of fitters and plumbers though.

		In thinking about the percentage of time these trades spent in
silica-generating tasks, it's very difficult to estimate.  Overhead
drilling happens pretty routinely to install hangers for piping systems.
 That being said, not all plumbers and pipe fitters do this work.
Often, one person on a crew drills the holes and installs the hangers.
On a lot of crews, this is done by the apprentice.

		Even if the apprentice is installing the hangers all day, the drilling
portion of their time may only be in the three to five percent range.

		The industry is seeing an increase in the use of local exhaust
ventilation for overhead drilling, including integral dust collectors
and add-on controls.

		As you heard yesterday, drilling penetration holes for piping and
mechanical systems and some projects is contracted out to specialty
contractors like Holes, Incorporated.  However, if a project calls for
just a few penetrations for plumbing and pipe fitting work, United
Association members do it.

		Core drills are used, and these are always used with wet methods.  The
number of penetrations varies, but core drilling probably comprises much
less than one percent of a plumber's and pipe fitter's time.  HVAC
members and welders typically do not perform silica-generating tasks.

		And while I cannot answer specific questions related to the United
Association and the pipe trades, I'll make sure that comments you pose
are answered in our post-hearing comments after consulting with
Ms. Shadrick.

		And with that, our next speaker is Charles Austin.

		MR. AUSTIN:  Good morning.  My name is Charles Austin.  I'm an
industrial hygienist representing 216,000 men and women represented by
the International Association of Sheet Metal, Air, Rail and
Transportation, SMART.

		The International Association of Sheet Metal, Air, Rail and
Transportation welcomes the opportunity to comment on OSHA's proposed
rulemaking on occupational exposure to respirable crystalline silica.

		Sheet Metal Workers Union has very important concern about the health
and safety of our membership.  We collaborated with the Building Trades
Department of the AFL-CIO and AFL-CIO Safety and Health Department to
address the issues in the standard concerning the proposed permissible
exposure limits, assessing exposure and determining controls, regulated
areas and access control plans, competent persons, methods of
compliance, respiratory protection, communication training, medical
surveillance, and recordkeeping.

		SMART fully supports the Building Trades and AFL comments.  Today, I
will provide testimony on issues that are specifically relevant to the
unique nature of our membership in our industry where silica exposure is
a concern.

		The SMART Union represents construction workers who perform tasks in
different types of work environments, including new construction, large
retrofit construction, and small contracted work.  Sheet metal workers
are concerned to exposure to silica from activities such as chip-in,
hammer-in, masonry saw cut-in, and drilling into content and brick and
mortar while installing mechanical equipment for ductwork, installing
anchoring and clamp systems, and installing seismic restraint systems.

		Typically installing ductwork involves a crew of three to four sheet
metal workers, two of whom would do the drill-in or cut-in.  Each of the
steps to complete these tasks, projects varies in time depending on the
environmental conditions, scheduling, and project specifications.  The
step that exposes our workers to drilling into and cutting concrete or
brick is only a very small proportion of the overall project.  The time
spent drilling into or cutting concrete is no more than five percent of
the entire installation task and a crew's total work time.

		Sheet metal workers use various tools to complete job tasks.  Many
times these tasks require overhead work, which increases the chance of
exposure because the dust passes through the worker's breathing zone.
In addition, much of this work is done indoors.  Working indoors can
increase dust exposure compared to working outdoors because decreased
general ventilation in indoor environments can trap dust.

		Drill into concrete or brick is done with handheld hammer drills.
Cutting is done with handheld circular masonry saws.  When using
handheld hammer drill tools without controls, their exposures can be
intense.  When drilling into concrete with handheld hammer drills, the
worker's face is close to the source of the dust because the task
requires accurate hole penetration.  When sawing into concrete, there's
slightly more distance between the worker and the dust generated than
when sawing, but the dispersion of dust generated is larger.

		While conducting these tasks, workers performing drilling and cut-in
are exposed.  Other members of the crew are exposed, and other trades
who typically perform tasks near sheet metal workers are exposed,
including iron workers, drywall finishers, electricians, cement masons,
and plumbers.

		Controlling dust exposure can be achieved in many ways.  One way sheet
metal workers control exposure is with the use of commercially available
control devices from both handheld hammer drills and masonry saws.  They
are commercially available hammer drills with built-in dust collection
systems, as well as ones that can be attached to vacuums.

		There are commercially available handheld masonry saws that come with
vacuum and/or water attachments.  Tool manufacturers have developed
commercially available hammer drills and dust control systems.  The
first dust control system contained a built-in vacuum dust extraction
attachment on the hammer drill that controls dust generation at the
source.  The use of a collection chamber on the hammer drill can be
changed in less than one minute to maintain work productivity.

		The second dust control uses a vacuum hose connected to a hammer
drill, removing dust at the source and storing extracted dust in a
vacuum storage container with dustless exposure when emptying.
Extracted dust can be emptied in two minutes.

		The type of filtering system uses a high efficiency particulate air
HEPA filter.  The use of engineering controls dust at the source with
the vacuum system minimizes cleanup after the job completion.  The
prevention of tripping over hoses was accomplished by keeping close --
containers close to the worker and warning signals.

		Tool manufacturers have developed commercially available masonry saws
and dust collection systems.  The handheld masonry saw built-in
attachment controls dust generation at the source either by using vacuum
systems or water attachments.  The vacuum system has a vacuum hose
connected to the masonry saw that removes dust at the source and stores
it in a vacuum storage container with dustless exposure when emptying.

		The second method uses a 12-foot water line feed attachment that feeds
water to the source of the dust generation.  The water line is supplied
from a compact, easy to use, four-gallon tank that is efficient.  It has
an electric pump so there is no manual pumping required.  It's powered
by a lithium-ion battery that can power a unit for a continuous
45-minute run time.

		Preventing slips and falls from wet surface using masonry saw requires
sheet metal workers implementing a maintenance system using a wet/dry
vac to remove excess water.  Tripping hazards are removed by keeping the
water tank close to the worker and warning signals.

		The use of these control measures not only control dust at the source,
but also prevent exposure to other trades.  If all trades use
engineering controls measures, the dust can be controlled at the source,
and workers and bystanders are protected.

		In closing, the International Association of Sheet Metal, Air and Rail
Transportation is in support of OSHA for conducting rulemaking on
silica, recognize the exposure to silica to all construction workers; we
support OSHA's proposal to reduce exposure to silica and comments
submitted by the Building Trades Department.

		Thank you.

		JUDGE SOLOMON:  Okay.  Who's next?

		MS. TRAHAN:  Next up is Deven Johnson.

		MR. JOHNSON:  Good morning.  My name's Deven Johnson.  I'm the
Director of Training, Health and Safety for the Operative Plasterers'
and Cement Masons' International Association.  We represent about 38,000
plasterers and cement masons who make their living in our industry.

		I've been a cement mason for 31 years, and I worked over 15 of those
years with the tools of my trade, and I have many, many thousands of
hours working in silica dust-generating environments.  I don't have a
big credential behind my name.  I'm not an industrial hygienist or a
Ph.D.  I'm a cement finisher with a sore back and a couple bad knees,
but I think I bring a unique perspective to what we're talking about
here today.

		I want you to think for a minute and look around this room and imagine
that the room we're in right now, that the walls and the ceiling and
those columns are all concrete.  And then imagine that this room is
inside a hydroelectric powerhouse, deep inside that powerhouse.

		Now, I want you to envision that your task as a cement finisher is to
grind every surface of this room in preparation of finishing the
concrete in this room.  And in order to do that, you're going to use a
diamond grinder.  Now, these diamond grinders are electric or pneumatic
in nature.  They come with masonry cups or with abrasive diamond discs
on them.

		But in order to prepare the concrete surfaces in this room, you're
going to have to grind every square foot of the surfaces in here and
to -- order to prepare it properly, you're going to have to remove the
entire surface layer of every surface in this room.  And in doing so,
you're going to create respirable silica dust.

		Now, think about a couple cement finishers running grinders eight
hours a day in this room with no outside exposure.  What has to happen
is -- and I did that for many years, and many tens of thousands of
cement finishers have worked in that environment day after day, year
after year.  And there's many, many tools on the market nowadays that
can help alleviate that, and Charles, who spoke just before me, did a
very good job of articulating a lot of those tools.  We use many of the
same tools.

		We don't have to reinvent the wheel here.  Those tools are available
to industry right now.  Industry will tell us that it's cost prohibitive
to use those tools.  That's BS.  They'll say that, and they have said,
that the setup time of using those tools is prohibitive.  Those tools
come integral with all the things you need to collect the dust built
into them.  There's nothing more complicated or timing consuming than
plugging the device into a wall and turning it on and using the tool.

		They'll tell us that wet methods of cutting or grinding concrete are
prohibitive on cold weather construction sites.  That's also BS.  If
it's so cold that you can't use water control methods on a construction
site, the construction site's going to be shut down.  I guarantee you
that if a contractor is looking at receiving a bonus for completing a
job ahead of schedule, he will find a way to keep the job going.  It
happens every day.

		Construction workers all across the country are great at improvising,
adapting, and overcoming challenges because we work in an environment
that's constantly changing.  There are -- all the tools that we need to
protect workers are already out there.  They're available.  They're not
prohibitively expensive, and they need to be implemented.  So we
encourage OSHA to utilize those -- recommend the utilization of those
tools in the standard.

		Another thing that -- utilizing these dust collection tools and
concrete dust-generating and silica-generating operations, another
reason for it is the other workers that are working in the area.  If we
were in here doing work in this particular room, there may be other
construction workers -- carpenters, electricians, plumbers -- working in
the same area.  You can protect those workers just by using the proper
tool the first time when the cement finisher is utilizing his tool.  It
protects all the workers.

		One of the other things that collecting the dust from these operations
on the front end does, it saves time on cleanup.  Some of the industry
people have said that it's prohibitive to do that because it takes more
time to collect the dust.  That's also not true.  If you're collecting
the dust as it's generated and it's going into a HEPA-filtered
container, it's not being blown all over the job site, you don't need
anybody else to clean it up.  It's already contained.

		Another thing is, an individual who is working in an environment where
he's -- he or she is constantly bombarded with concrete dust all day
long, your productivity drops as you get more and more miserable as the
day goes on.  Commonsense would dictate, if you're not blasting me in
the face with dust and sand and silica for eight hours a day, that I'm
going to feel physically better and I'm not going to be as tired and
exhausted and pissed off as I normally would be at the end of the day.

		Your productivity goes up, so the argument that these engineering
controls cause productivity to go down are just wrong on the face of it.
 And I guarantee the people that are making those statements have never
earned a living running a concrete grinder.

		Another issue that is important to our people in our industry is when
you generate all that concrete dust, whether it's through sawing,
grinding, chipping, or bushing, at the end of the day, you're covered
with that material.  You do the best you can to blow that dust off you
and shake it off you, and then you get in your truck and you drive home.
 You're taking all that material home with you.

		When my daughter was 10 years old, she got eczema on her hands, on her
fingers, and to this day, if she's around any dry concrete, if I do a
project at home that involves concrete, if she's around me, she's
sensitized to the cement because I've brought so much concrete dust
home.

		Excuse me.  I just want to make another comment on medical
surveillance.  There's a saying in construction that every
superintendent and every guy running a construction job out there wants
a 25-year-old construction worker with 25 years experience.  And,
obviously, there's some problems with that scenario.

		As construction workers age, they all have concerns about their
viability in the marketplace.  And as was said earlier, any standard
that OSHA puts forth, we would hope would have protections for those
workers.  I've seen over the years, workers do everything they can to
avoid reporting injuries or reporting an illness that they might have
because the construction industry is a very small environment even
across the entire country.  If word gets out that you're suffering from
some ailment or you've got a bad back or a bad knee, you suddenly find
yourself not employed anymore.  And that shouldn't happen.  And we
should do everything we can to make sure that workers' medical records
remain private so that that would encourage workers to participate in
medical surveillance programs so that we have better information to
protect workers going forward.

		I'd just like to end by saying that the Plasterers' and Cement Masons'
International Association fully supports the Building Trades position on
the silica standard.  And we thank OSHA for the opportunity to be here.
Thank you.

		JUDGE SOLOMON:  Who's next?

		MS. TRAHAN:  Dan Smith.

		MR. SMITH:  Good morning.  My name is Dan Smith.  I'm the director of
training for the Bay Area Roofers and Waterproofers Training Center in
Livermore, California.  I'm also on the National Curriculum Development
Committee of the United Union of Roofers, Waterproofers and Allied
Workers, representing roughly 25,000 workers.

		I've been in the roofing trade since 1975.  I was business manager of
Local 95 for 28 years in San Jose, California, and I've been an
instructor in the apprenticeship program for 32 years.  Our work
involves a variety of roofing, some of which includes silica, that being
concrete roofing pavers and concrete roofing tiles.

		We agree with the statement that the National Roofing Contractors
Association said in their comments that exposure to crystalline silica
during the vast majority of roofing processes and systems is the
exception, not the norm.

		Concrete tile, concrete pavers are a very small portion of our
industry.  Concrete tile, less than 50 percent -- far less than 50
percent of the residential.  Concrete tile, probably single digits, and
commercial pavers, probably still in the single digits.

		However, when we are doing that type of work, it is a vast exposure,
despite the fact that when we are cutting the tile, it's probably only 6
to 10 percent of the day.  We usually only cut for about a half an hour
to 45 minutes out of a given day.

		So what does that mean?  Let me give you a tangible example, and I'll
use my own home.  My house is a three-bedroom, one-bath house.  It's got
2100 square feet of roofing.  It was built in 1955, nowhere near as many
cuts as elaborate as a modern home would be today.

		If my house was to be roofed with concrete tile, I have two valleys
and six hips.  If you think of a valley as an inside corner and a hip as
an outside corner, the total length of those is 190 feet.  Both sides
would have to be cut.  So we're talking about 380 feet of cutting with a
1-inch -- 1/8th-inch tile blade, diamond blade, that would generate 570
cubic inches of dust in that short period of time I was just talking
about.

		To give you another perspective, there are 228 cubic inches in a
gallon, so 2½ gallons of dust over a very short period of time.  And
it's not just the roofer.  It's everybody on the job.

		NIOSH did health hazard evaluations in 2003 and 2005, and they're
referenced in the written materials that the International Union
submitted.  And to monitor exposures over an eight-hour day, they did a
time-weighted average; 74 percent of the workers on the job site
exceeded the general industry standard, and 33 percent exceeded the
construction industry.  So it's not just the worker doing the cutting.

		What does that mean in real terms, something that we can identify
with?  Some years back, one of my members walked into my office with a
very unusual object: a plumbing trap.  Handed it to me.  First thing I
noticed, it was pretty heavy, two to three pounds.  He said that's from
my shower at home.

		At the time, he had been in the tile industry, cutting tile for about
10 years.  He said, my drain kept getting clogged.  No matter what I put
in there, I couldn't get it unclogged.  I called the plumber.  He
couldn't get it unclogged.  He took it off.  I looked inside.  It was
filled with one-eighth -- one-quarter of an inch of being completely
closed with what I would call reconstituted cement.  This came off of
his body.

		And I think it's important to note, he didn't do his laundry in the
shower.  He only washed the exposed areas of his body: his hands, his
arms in the summertime if he was wearing a short-sleeve shirt, his face,
and his hair.  Fifty percent of those examples I gave are his breathing
zone.  Not in his breathing zone; they are his breathing zone.

		When he came in, he didn't mention the PEL to me.  He simply stated
the obvious, and he asked if he could have training to get into some
other aspect of the trade, which he did, and he got out of the tile
portion of it.

		This massive release of dust over a short period of time does create a
challenge for equipment to deal with it; HEPA filters, wet methods,
they're all a challenge, but they can be met.  In California, this was
mentioned yesterday under Code of -- California Code of Regulations,
Title 8, Section 1530.1.

		The roofing industry is exempt from cutting roof tiles and roof
pavers.  Despite this, the roofing industry has voluntarily started and
exclusively cuts roof pavers wet.  Why?  Because of what I think the big
reason is, the nuisance that was talked about by the previous speaker.
It was simply, it's really hard to work and avoid dust at the same time.

		In the U.K., it is absolutely prohibited to cut roofing tiles dry.
The National Federation of Roofing Contractors, their contractors
association, provides guidance and training.  They use wet saws on
scaffolding at the roof level at the eaves.  They use a mister on the
tile saw.  They use wet saws on the ground, or they use a system like
the hytile,

h-y-t-i-l-e, which is a tile breaking tool.

		But the two big things that they stress are training and project
planning.  We heard yesterday about freezing conditions and all this
stuff.  We know what's going to happen tomorrow.  I fly out tomorrow.
They're not going to decide tomorrow morning whether or not their plane
needs to be deiced.  They're thinking about it today, and they're
preparing for it today.  We do the same thing.  It's project planning.

		And I talked about this nuisance factor.  One of the other things that
I want to -- and the cost, is there a cost to this?  Of course there
is.  We heard that yesterday.  I'm not an economist, but I know about
cost curving.  I know in the beginning, it costs this much, and as time
goes by, the curve goes down.  And it may even cross the line to where
it's more efficient.

		Fall protection.  Everybody complained about fall protection.  It's
going to cost so much, until they realized, people who are confident
that they will not fall are much more productive.  Very simple.

		Several years ago, I was on a committee.  I was the head of the
Building Trades in Stockton.  We had a PLA for a five-year project with
some dams and tunnels, and we had what was called that time a CSIP, a
Cooperative Self-Inspection Program.

		We invited the workers to give comments, and we invited them to our
meetings.  At one meeting, a worker stood up with his suggestion, and
his suggestion was that they run a water truck down the dirt roads.  The
vice president, who was at the meeting stood up, threw his papers,
pushed his chair back, it fell down, and said, I knew what this was
leading to.  This is what you want.  You want my money.  You want my
profits.

		To his credit, the person who stood up said -- didn't say a thing
until he was done.  Then he simply asked a question.  He said, sir, if
you're walking down a dirt road and a car passes you creating a lot of
dust, what do you do?  He said, I turn and walk away from the dust.  He
said, exactly, but we're on a mountainside.

		Now, that wasn't the end of it.  We met every other month.  Two
meetings later, the same VP came back and apologized.  He said, I didn't
realize that you had to stop working to avoid dust.  At the end of the
project, Sierra Constructors took out full-page ads in every town where
the workers came from thanking them for the job and especially
highlighting their addressing safety and health and how it led to a
successful and profitable job.

		So the arguments we heard yesterday, I can agree with them.  It's
going to cost money in the beginning, but we won't know until we
implement how much it will save in the long run.

		And for the final argument that the NRCA is making about a trip hazard
for having hose up -- hoses up there, first of all, on a sloped roof,
everybody's in fall protection to begin with.  It's no different than an
air hose or an electrical cord that would be on the job site.  Then I
would add to that, how is that more of a trip or fall hazard than the
near zero visibility that is created cutting roofing tiles dry?

		We support this standard, and we are really hopeful that this brings
together all of the industry and all of the manufacturers to develop
economic and healthful ways with tool innovations and whatever it takes
to make our workplace safer.

		Thank you.

		JUDGE SOLOMON:  Okay.  Who's next?

		MS. TRAHAN:  Lamont Byrd.

		MR. BYRD:  Good morning.  I'm Lamont Byrd.  I'm the Safety and Health
Director at the International Brotherhood of Teamsters.  The Teamsters
Union, we welcome the opportunity to comment to the OSHA proposed
rulemaking on occupational exposure to respirable crystalline silica.

		We collaborated with the Building Trades and the AFL-CIO Safety and
Health Department to address issues in the proposed rule concerning the
PEL, medical surveillance, and other issues that are relevant to our
membership.

		We fully support the BCTD and AFL-CIO comments and testimony, and I'll
provide testimony on issues that are specifically relevant to some of
the issues concerning our membership.

		The Teamsters Union represents approximately 47,000 workers who were
exposed to silica, including 12,000 ready-mix drivers, 35,000 railroad
maintenance of way workers, and roughly 500 or so pipeline drivers who
were involved in hydraulic fracking activities.

		In the Preliminary Economic Analysis, OSHA identified truck drivers in
the ready-mix concrete industry as one group of potentially exposed
workers and identified one job task, chipping barrels or chipping drums,
as the only task that results in silica exposure.

		As we took a look at, you know, our membership, we identified
additional job tasks and additional driver jobs that may result in
exposure to silica on construction sites.  These drivers'
responsibilities include loading, mixing, and delivering of concrete,
concrete block delivery, bulk and bag concrete delivery, and general
yard maintenance at the batch plant.

		A more detailed description of these drivers' work activities are --
is provided in our written comments.

		This morning, I'll focus on what's going on with our mixer drivers.
In addition to chipping the drum, mixer drivers are exposed to silica
when they perform tasks such as loading the mixer drum with dry product,
such as sand, concrete, fly ash, and pigments.  At facilities that have
several loading areas and trucks are being loaded simultaneously, dust
levels can get quite high.

		We had an opportunity to take a look at an industrial hygiene report
from one of our ready-mix employers, and the industrial hygiene report
indicated that there were levels of respirable dust for drivers and yard
workers approaching 60 µg/m3.  And although in this case, the
percentage of crystalline silica was pretty low, there is that
suggestion that respirable dust levels do get quite high on the yards of
these batch plants, and there could be a real risk of having some silica
exposure there.

		On the construction site, when mixer drivers deliver concrete, they're
on site for 20 to 30 minutes per a delivery, and they may experience
exposures to silica as a result of activities that are happening
adjacent to where they are delivering the concrete.

		For example, at many high-rise job sites, drivers are required to load
and -- required to unload concrete materials near dumpsters and trash
chutes where waste materials from the job site are collected.  These
materials are dropped down a chute from an elevated floor into
dumpsters, and we've seen significant dust generation occur.

		An additional factor that contributes to drivers' exposure is the
number of hours drivers work both on a daily and weekly basis.  In the
PEA, OSHA estimated that drivers worked eight hours a day, and of that
workday, drivers spend about six hours making deliveries away from the
batch plant, and during this period, exposure to silica is minimal.

		Although some drivers may spend six hours per day driving to and from
delivery sites, nearly all Teamster ready-mix drivers work at least 12
hours a day, and they typically have 60-hour work weeks.

		As I shift gears and talk about our rail members, the Brotherhood of
Maintenance of Way Employees Division of the Teamsters Rail Conference,
that's BMWED, represents approximately 35,000 maintenance of way workers
employed on Class 1 commuter and short line railroads throughout the
U.S.  Railroad maintenance of way workers are exposed to silica dust
during various track maintenance activities.  These workers are
classified as laborers, machine operators, heavy equipment operators,
on-track roadway machine/maintenance machine operators, welders, and
foremen.  They are responsible for building, maintaining, inspecting,
and repairing the railroad roadbed, including rails, ties, ballast,
bridges, tunnels, and other components associated with the railroad
track right of way.

		The work crews range from 2 workers to over 200 workers just depending
on the magnitude of the project.

		As discussed in the PEA, a railroad track is usually supported by a
bed of material called ballast.  Ballast transmits and distributes load
of the track, the load of the track and the rolling equipment evenly
across the roadbed.  It controls the movement of the track.  It also
maintains proper track cross-level surface and alignment, and it
provides drainage to the tracks.

		Virtually all railroads use crushed granite or slag for ballast, and
ballast may contain upwards of 40 percent silica.

		Maintenance of way workers experience significant exposure to silica
whenever silica-containing ballast is disturbed during track maintenance
activities.  Workers who operate the on-track roadway maintenance
machines, such as ballast regulators, tampers, and mechanical brooms,
often create visible clouds of ballast dust.

		Workers who are performing job tasks adjacent to where these machines
are operating are exposed to significant dust levels.  Other job tasks
such as ballast dumping also create high potential for exposure to
silica.

		In response to a petition for rulemaking filed by the BMWED, the
Federal Railroad Administration published a final rule in 2003
prescribing minimum safety standards for railroad on-track roadway
maintenance machines.  These standards are designed to protect track
workers and operators from hazards associated with operating equipment.

		Significantly, the standard requires the use of engineering controls
in newly manufactured -- now this rule was promulgated back in '04, so
this is post-2004 manufactured machines, to protect the operator from
airborne contaminant such as silica dust.

		However, the FRA regulation neither provides protection to workers
outside the cabs of such equipment, nor does it provide protection for
operators of pre-2004 equipment.  The FRA standard incorporates, by
reference, the provisions of OSHA standard 1910.134 and 1910.1000 for
the protection of operators inside of cabs of post-2004 machines in the
event the engineering controls fail.  And for grandfathered machines
that don't have engineering controls and for track workers, the
provisions of 1910.134 and 1910.1000 apply.

		So we believe that OSHA's proposed rule on silica will substantially
reduce exposure to railroad track workers.

		The BMWED Teamsters believes that engineering controls required for
certain roadway maintenance machines, in addition to controls such as
wetting down ballast cars prior to unloading and using remote operation
dump doors on ballast cars, are feasible controls to reduce silica
exposure for all workers in the railroad industry.

		With respect to our hydraulic fracking operations, we represent
approximately 500 drivers who deliver materials, equipment, and fracking
sand to hydraulic fracturing sites.  According to Union representatives
that I talk with at various sites, materials and equipment are
oftentimes delivered in track vehicles that have open cabs.  So the
drivers of these vehicles are exposed to the elements and are
potentially exposed to dust containing silica.

		In addition to operating onsite vehicles, Teamsters are involved in
removing spoils and installing gathering lines.  Both job activities
have been identified as being dusty jobs because the jobs either
generate dust, so they're occurring in close proximity to other dusty
operations.

		In conclusion, the Teamsters Union commends OSHA for conducting this
rulemaking.  As noted in my comments, we think that you should consider
taking another look at the driver jobs and possibly expanding those jobs
to include some other jobs.

		For railroad workers, NIOSH did some studies.  They determined that
railroad track maintenance workers were exposed to silica dust, and in
light of this determination and the availability and feasibility of
engineering controls to protect workers both inside and outside the cabs
of modified machines, the Teamsters and BMWED encourages OSHA to
promulgate a protective rule.

		Thank you.

		JUDGE SOLOMON:  Okay.  And last, I assume?

		MS. TRAHAN:  Sarah Coyne.

		MS. COYNE:  Good morning.  On behalf of General President Rigmaiden
and myself, we'd like to thank everybody for the opportunity to be here
today to share our thoughts on this very important issue.

		As stated, my name is Sarah Coyne.  I'm with the International Union
of Painters and Allied Trades.  We represent over 95,000 members across
United States and Canada, and I am a painter by trade.

		When I was posed the question and the opportunity to speak in front of
you today, I thought about all the different options.  You know, I could
talk all day about sandblasting, grinding, spray, sweeping, et cetera,
et cetera, but I think the panel has done just an outstanding job on
presenting everything that needed to be presented on the technical
aspects and the economic aspects of it, medical surveillance, et cetera,
et cetera.

		What I decided to do as the Health and Safety Director for my
International was to get personal to get you to think about why we're
here and what we want for our membership.

		I want you to think about all the people that you see when you're
driving around, building America.  And I want you to think about your
wife, your husband, your brother, your sister, your children, your
grandchildren.  Would you be all right with them being exposed?  Would
you be in this meeting today if there was silica dust coming through the
ventilation system?  Would you go to work every day if it was a
permissible exposure limit?

		Some people might say that, well, you chose to be in construction, and
you know what?  You're absolutely right.  I didn't have to be a painter.
 I chose to be a painter, and I'm very proud of my successes as I can
drive around California and I can show you what I was a part of.

		But I'm not expendable.  And I don't think that anybody should be
subjected or exposed to anything that can kill them.

		This is a difficult topic for me because the testimony that I have to
provide today is difficult because it's pertaining to a friend of mine,
a dear friend who got up and went to work every day and did a good job.
And because of that, he has a death sentence.  He has silicosis.

		And as I was looking into coming here today, I spoke to a lot of
people in my union who also have silicosis, but you know what?  They
can't come here today.  One can't travel, but the majority of them are
in fear of losing their job.  Yes, they still work out in the field.

		And you know what?  We can't really change what happened yesterday,
but collectively, morally and ethically, I think that together, we can
change what happens tomorrow.  So with that, I'd like to share this
testimony about my friend.

		He began his apprenticeship back in 1974, and he was fortunate to have
some excellent mentors who shared their skills, knowledge, and
experience of being an industrial painter.  They stressed the importance
of safety in the workplace and how to protect himself and coworkers from
the dangers ever present in our trade.  "I knew that construction work
could be dangerous, but it's a life that I chose to take on."

		In 1970, the OSHA Act became -- was brought into law and became
effective in 1971.  However, the laws, regulations, and warnings were
not sufficiently communicated to the workers on the job site.  There
were no education sessions held or health warnings posted about the
tools and materials they were using.  No one was offered health
screening or consistently provided PPE -- I'm sorry -- personal
protective equipment, nor was the use of personal protective equipment
enforced on the job by the contractor.

		At that time, no one really realized just how hazardous everything was
to the health -- to their health.

		From apprenticeship to journeyman, he became a professional craftsman
with expert skills and vast knowledge of the trade that he enjoyed and
looked forward to performing every day.

		Typically when people think about painting, they see application of
coatings on a substrate rather than the steps necessary prior to the
actual application.  Aside from the looks of a finished application of
paint, one of the most important steps to ensuring a quality finish is
the proper preparation of the substrate surface before painting.

		As it turns out, surface preparation is also one of the most dangerous
tasks of the job, a task that he performed countless times over the
course of many years.

		Different substrates, different coatings all require specific methods
of preparation.  Sometimes the prep work required simple scraping and
sanding with hand tools.  Other times, more aggressive methods such as
grinding, power tooling, or abrasive blasting was required.

		Each of these methods could generate a considerable amount of nuisance
dust, the kind of dust we would typically blow off with compressed air
immediately prior to the coating.

		To protect himself, he would wear a dust mask, but at the end of the
day when cleaning up, he would blow his nose and could see the dust in
the tissue despite wearing a dust mask.

		They still weren't aware of the toxicity of that dust, so they just
brushed it off or washed it away after a day's work.  None of them gave
it much thought.  It was just part of the job, like dirt under their
fingernails.

		When abrasive blasting, the blaster wears an air-supplied hood and a
cape, along with other personal protective equipment.  Quite often
during his apprenticeship and my own, and even as a journeyman, he
worked as a blaster -- he worked with a blaster as a pot tender.

		A pot tender is someone who would ensure that the pot for the blaster
was filled with abrasive materials and running properly for the blaster.
 He constantly monitored the abrasives and made adjustments just as the
blaster for the surface preparation, and in doing so, this consisted of
carrying 75-pound bags on your shoulders, running up to the hopper,
cutting it open and then pouring the sand into the blasting machine,
which created a ton of dust which usually went right into the face of
the pot tender.

		Since he was usually a distance from the actual blasting operations,
back then, there was no need for him to wear PPE.  And aside from the
standard safety glasses, boots, there were no requirements to wear any
type of respiratory protective equipment.

		Dust was an ever-present nuisance when acting as a pot tender.  The
blaster's required hood and cap shield him from the dust, but the pot
tender however, depending on the direction of the wind, would breathe
unprotected and considerable amounts of that nuisance dust.	 Other
workers on the job site as well who were not performing either of these
tasks were also exposed to the dust.

		When preparing steel for coatings, dust was generated with the
abrasive, would fracture and release fine particulates, sending it
airborne into his airways through unprotected nose and mouth.  The
preparation of concrete was probably the worst.  Prepping concrete
requires opening what's referred to as bug holes and removing latent --
excuse me -- generating a huge amount of dust, dust that was like a
fine powder, dust that would coat everything in close proximity and dust
that unsuspectedly weighed heavy on his lungs.

		By 1995, my friend was experiencing breathing problems.  Painters were
now required to wear respirators when spraying.  Also required by OSHA
of the painters' jobs were annual medical evaluations, fit testing, and
pulmonary function testing.  And over the years, he noticed that his
lung function was getting worse and was borderline unacceptable
according to these tests.

		And if the results of the medical testing determined that he was not
able to safely wear a respirator, then his career and his health would
be in jeopardy.

		In the year 2000, he was offered medical screening for -- actually,
everybody on the job was offered medical screening, and he participated
and was diagnosed with an associated lung disease.  The doctors at the
screening told him to go to his physician for additional help with
dealing with it, and it was a very difficult time of his life.

		His wife -- he and his wife divorced, and he was trying to raise his
children himself, which left him little time for anything other than
taking care of them and working.  Like anyone in his situation, he put
his health on the back burner and tried to take care of life
necessities.  There were no resources for him that were available at
that time to assist financially for someone with job-related lung
disease.  And he did the best that he could to work to support himself
and his kids.

		As time passed, it became very difficult for him to do his job.  He
lost his breath very easily, and a common cold would often turn into
pneumonia.  Excuse me.  He wheezes, and shortness of breath is a
constant occurrence, and he could no longer wear a respirator,
therefore, could no longer work.

		As time -- excuse me.  He was blessed in his personal life to be able
to remarry to a caring woman, and while she was supportive and patient,
the things that they enjoyed were now limited due to his health
conditions.  It was embarrassing for him when a group of them and his
kids would go biking and they had to wait for him because he couldn't
breathe.

		His private life, his intimate life with his wife was greatly affected
because he could not breathe.  Their time with their grandchildren was
strained because of his health.  And one day, it dawned on him that
there was not a single aspect of his life that was not affected by the
disease in his lungs.

		My friend went for a second screening in 2007, and the doctor
recognized that the lung disease had progressed and referred to him for
additional pulmonary testing.  At the end of those examinations, the
doctors explained to him that not only did he have this original
disease, but that the scarring in his lungs was actually silicosis, and
it wasn't diagnosed back when he had his first exam, so he lost a lot of
time.

		In 2008, DOL and OSHA recognized that his health conditions were a
result of his job, and he was presented with a medical card recognizing
that he does have silicosis and COPD.  The DOL card provides him with
much-needed financial assistance to purchase the doctor-prescribed
inhalers that weren't covered by his health insurance.  And he relies on
the aid of three inhalers every day to help him perform the simplest
tasks.

		The life that he had -- the life that he thought he would have has
changed in ways that cannot be corrected.  He lives in fear because his
grandfather was a coal miner who developed black lung, and as a result
of working in the lung -- or working in the mines, he died at 58 years
old.  He came home one day and died of a massive heart attack related to
lung disease.  He wonders, will this be his demise?

		One thing he can do is to pass on some very important knowledge about
best practices to prevent harm or illness related to job -- to the job
and to the job site to others in the construction trades.  He intends to
let others know how dangerous and toxic this dust is and let them know
that a dust mask will not adequately protect them from his fate.

		He will refer them to OSHA so that every worker knows and understands
their rights and their right to have a safe and health environment on
the job site.  It is his sincere hope that changes will occur as they
have in lead and asbestos.  It is also his sincere hope that others will
learn of the serious hazards of silica and become more aware of how to
protect themselves from developing silicosis.

		He says, "Working with my hands have been a rewarding career, and I
wish I could continue to work in the field, but the mistakes of my
life," he says, "at the hands of my job as a painter" will keep him from
it.  The unforeseen consequences of the invisible dangers of silica have
been a hard lesson for him to learn, and he thanks everybody for the
opportunity to share his story and for listening.

		JUDGE SOLOMON:  Thank you.

		MS. COYNE:  Um-hum.

		MS. TRAHAN:  That's the conclusion of our prepared remarks, Judge.

		JUDGE SOLOMON:  Well, it's 11:05, so we had expected that they would
go a little longer.

		Ms. Robinson, I see nodding of heads.  So do you want to start with
the questioning now, or do you want to take a break?  How do you want to
handle this?

		All right.  We'll take a -- I overheard that.  We'll take a
five-minute break, so that means we'll be back here at 11:10, and then
I'll start with some questions from the public.

		(Off the record at 11:05 a.m.)

		(On the record at 11:10 a.m.)

		JUDGE SOLOMON:  Okay.  Let's go back on the record.  And at this time,
do you have any documents you want to proffer?  The statements that you
have given, are they reduced to writing?

		MS. TRAHAN:  Not unless individual panelists would like to since most
of ours are -- consist of handwritten notes and whatnot.

		JUDGE SOLOMON:  You want to go around the panel?

		MS. TRAHAN:  Gerry?

		JUDGE SOLOMON:  Is there anyone who has a written statement you want
to proffer?

		MR. SCARANO:  I can hand mine in.

		MS. TRAHAN:  That was Gerry Scarano.  So enter --

		JUDGE SOLOMON:  Anybody else?  Mr. Byrd?

		MS. ROBINSON:  Sir?  Mr. Austin?  May I read these into the record
and just --

		JUDGE SOLOMON:  Number them first --

		MS. ROBINSON:  Yes.  I'll --

		JUDGE SOLOMON:  -- please.

		MS. ROBINSON:  -- number them first.

		So Gerry Scarano's testimony will be numbered as Exhibit 44, and if I
may enter it into the record, Your Honor.

		The second testimony --

		MR. BYRD:  Lamont Byrd.

		MS. ROBINSON:  Oh, Mr. Byrd's testimony, and Mr. Lamont Byrd's
testimony will be labeled as Exhibit Number 45.  I'd like to offer that
for the record.

		And, finally, Charles Austin's testimony will be labeled as Exhibit
Number 46, and I would likewise like to enter that into the record.

		JUDGE SOLOMON:  Okay.  As there is no objection, all are entered into
evidence.

(Whereupon, the documents referred to as Hearing Exhibits 44, 45, and 46
were marked and received in evidence.)

		JUDGE SOLOMON:  Give me some idea from the public, how many people
want to ask questions.

		Okay.  We're going to do this until noon and then we'll break at none.
 Ms. Nadeau, you want to come forward?  You're first.

		And then, in the next sequence, any of the people in the rows that had
their -- had your hands up, you want to line -- start lining up behind
her.

		Okay.  State your name for the record and spell your last name again,
please.

		MS. NADEAU:  Liz Nadeau, N-a-d-e-a-u, and I'm with the International
Union of Operating Engineers.

		We've heard testimony in the past week criticizing OSHA's use of a
45-year work life as the basis for evaluating risk in the construction
industry due to the high turnover in the industry.  Do you think OSHA's
reliance on 45 years of exposure is appropriate?

		MS. TRAHAN:  Does anyone want to -- at all?

		MR. JOHNSON:  I'm sorry.  Could you state the question again, please?

		MS. NADEAU:  Yeah.  We've heard testimony over the past week
criticizing OSHA's use of a 45-year work life as the basis for
evaluating risk in the construction industry due to the high turnover in
the industry.  Do you think OSHA's reliance on 45 years of exposure is
appropriate?

		MR. JOHNSON:  I believe it is.  We've got many members in our
particular union, the Plasterers' and Cement Masons' --

		MS. TRAHAN:  Can -- is he being picked up by the mic?

		JUDGE SOLOMON:  Yes.

		MS. TRAHAN:  Okay.

		MR. JOHNSON:  We have several members, many members in our union of
Plasterers' and Cement Masons' Union who receive gold cards for their
longevity in the trades.  We've given out gold cards all across the
country for 50-year members, 60-year members.  My own local, we had a
75-year plasterer member.  So I think 45 years is relevant.

		MS. COYNE:  This is Sarah Coyne with the International Union of
Painters and Allied Trades.  I think the 45 years is -- is this
working?

		MS. TRAHAN:  It's not going out to the --

		MS. COYNE:  Is an adequate time frame as we have many, many members
who continue to work out in the field with the 45 years.

		MS. NADEAU:  OSHA's also -- unless somebody else has -- somebody
else --

		MS. TRAHAN:  Was there any other?

		I wanted to add to that actually.  The assumption of a 45-year of work
life has been used to estimate exposure and risk for U.S. industries,
including construction, by OSHA and others since 1990s.  The assumption
was rational in 1990 and is probably even more so today.

		We've got a trend of aging workers in the construction industry.  The
average age of construction workers has jumped by five years in the last
two decades.  In 2010, the average age was over 41 years old, very close
to, of all workers, at most 42 years old.

		This trend is going to continue, and it's predicted that workers over
65 years old and older will increase from 5 percent in 2012 to 8.3
percent in 2020 for the overall workforce.  In 1992, just 11½ percent
of the population age 65 and older participated in the workforce.  By
2020 -- 2022, the proportion is expected to jump to 23 percent.

		We wanted to supplement that by some -- we have actually it footnoted
and written up if it would be helpful, but in the Construction Chart
Book, we have an entry on the aging of the workforce, in particular in
construction and how it is probably more appropriate now than in the
past to use that and --

		JUDGE SOLOMON:  Do you want to enter the whole book, or do you want to
enter that page?  How do you want to do that?

		MS. TRAHAN:  I think I would like to enter a little bit of explanation
about it, some references and the whole book, but for now, I will enter
the whole book and call out Page 14 that discusses the aging workforce,
and also, we will follow up with more substantial evidence in our
post-hearing.

		MS. ROBINSON:  Okay.  Then, if I may, I'm going to enter the
Construction Chart Book, 5th Edition, from April 2013, into the record
as Exhibit Number 47, and you noted specifically Page 14 of that book.

		JUDGE SOLOMON:  Okay.  And that is entered into evidence.

(Whereupon, the document referred to as Hearing Exhibit 47 was marked
and received in evidence.)

		MR. SMITH:  I have a comment on the question.  I find it interesting
that in the question, you use the word "fair."  Every industry has
turnover.  In fact, for high school kids graduating today, they estimate
they'll have seven different careers before they retire.

		So the question, I would turn it back around and say maybe
construction turnover is a little higher than some industries, but is it
fair that the health and safety of someone who makes it an entire career
is diluted by those who have left?

		MR. AUSTIN:  Also in the Sheet Metal Workers, we have a screening
program that we've had for over 25 years where we screen members for
exposure to dust, and the minimum requirement to enter into our
screening program is 20 years.  And we do screenings every year to
different locals around the country.  So we know thousands of workers
that we screen every year that has been in the field for 20 to 30 years.

		JUDGE SOLOMON:  Do you have any more questions?

		MS. NADEAU:  Yes.  OSHA's been -- also has been criticized for
relying on exposure data that does not take into account employee's
entire work shifts.  Do you have site -- do you have worksite studies
that document the time members of various trade spent on
silica-generating tasks during an entire work shift?

		MS. TRAHAN:  And I'll answer that question.  The -- back in 2000, it
was described in the literature, a method of characterizing construction
worker exposure called TB, a more task-based exposure assessment
modeling.

		In 2000 -- in 1999, 2000, and 2008, CPWR conducted field studies
related to silica exposures using this model.  While those studies have
been reported in the literature, it has not been reported, a certain key
exposure variable within those studies, and that exposure variable is
task duration.

		On each of these worksite studies, the researcher not only conducted
air monitoring, but through observing the work, they were able to
document the actual minutes per day that the workers were engaged in
silica-generating tasks.  And while I don't have the results for those
studies ready to present today, we will present them in post-hearing
comments.  We're actually collecting them from paper files right now
from those worksite studies.

		Given that, I didn't know if there was anyone else who wanted to
comment on the question as far as the duration of tasks in a day.

		That's it.  Thank you.

		JUDGE SOLOMON:  Okay.  Maybe one more, and we'll give the other people
a chance to ask some questions.

		MS. NADEAU:  Great.  Why do the Building Trades think it's important
that OSHA develop a mechanism for updating Table 1?

		MS. TRAHAN:  Well, I think that the importance -- what we see in the
industry is we see the use of exposure controls increasing very rapidly.
 We see that individual employers and employers' associations are
measuring exposure with the use of engineering controls.  They are
compiling that information.  And we're going to just see an increase in
the body of evidence as to what controls work and what controls are
really slam dunks for controlling exposures in -- associated with
specific tasks.

		And why the table needs to be updated over time is to capture this
information and to give employers a very good basis for implementing
controls and also assessing where they are in that exposure spectrum
without the need to contract out and conduct industrial hygiene sampling
on a frequent basis.

		We think that the more tasks that actually end up on Table 1 will help
employers comply with the standard, but will also really drive that
presumptive use of engineering controls in our industry, which is
the -- of course, the end result being reduced exposure, which is, I
think, what everybody here wants.  So --

		MS. NADEAU:  Thank you.

		JUDGE SOLOMON:  Sure.

		MR. KOJOLA:  Good morning.  My name is Bill Kojola, K-o-j-o-l-a, and
I am here representing the National Council for Occupational Safety and
Health.

		I've got a couple of questions.  The first, the Construction Industry
Safety Coalition has criticized the inclusion of notes in Table 1,
arguing that OSHA should just say, you know, for example, quote, "cut
wet," close quote, without any further specifications or information.

		Do you think that kind of general direction would ensure adequate
protection for construction workers who are exposed to silica?

		MS. TRAHAN:  I don't think that, without the specificity in Table 1, I
think it would be very hard to ascertain whether or not the controls
were working.  The notes seem to add to the reasonable -- what a
reasonable person -- not an industrial hygienist, but what a reasonable
person can do to assess whether controls that are in place are actually
working.

		So I think the notes actually serve a very useful purpose and should
be expanded with specificity where the data supports it.  If there
are -- if there is data and studies that, for example, show that
there's a minimum flow rate for water on a wet saw or there's a minimum
ventilation rate for a local exhaust system based on blade diameter, I
think those should be included with as much specificity as possible.

		MR. KOJOLA:  In your view, has OSHA's technological feasibility
assessment captured most of the silica-generating tasks in the
construction industry?

		MS. TRAHAN:  Yes.

		MR. KOJOLA:  Okay.  Thank you very much.

		JUDGE SOLOMON:  Thank you.  Seminario.

		MS. SEMINARIO:  Good morning.  Peg Seminario, Safety and Health
Director from the AFL-CIO.

		A number of the industry groups have argued that the current OSHA
silica standard is sufficiently protective and that OSHA should focus
its efforts on enhanced enforcement of that standard.  Do you believe
that enhanced enforcement is sufficient to protect workers from
significant risk of disease from exposure to silica, particularly in the
construction industry?

		DR. WELCH:  I can address partly that, and I think the issue about
overexposures, I think Chris may have some comments on that.

		I've listened to that argument that the current PEL is sufficiently
protective.  I haven't actually heard any information that would support
that, and I think OSHA's rulemaking includes a lot of very good studies
that say it's not, that there's a risk at the proposed PEL.

		And in addition to which, there have three or four really good studies
that have come out since the -- that were -- not necessarily, I don't
think, were included in the OSHA risk assessment that continue to
support it.  I think we talked earlier last week about the Chinese miner
study that included over 70,000 workers, about 50,000 exposed to silica,
but those really strongly support a risk of silicosis, COPD, and lung
cancer.

		And that the general industry PEL of 100 or the construction
permissible in that which is so high, I can't even remember the number,
they're definitely not protective.  And I think OSHA has well
demonstrated that, and it will even get stronger when they're able to
include additional information.

		JUDGE SOLOMON:  Just for the record, you're talking about the Liu
study, L-i-u?

		DR. WELCH:  Yeah.  Well, there are a couple.  There was one -- also,
Chen was the first author, depending on which outcome, where they're
looking at lung cancer or silicosis, but there's -- it's the same
population we're talking about.  Yes, correct.

		MS. TRAHAN:  And actually I did want to respond to that because I've
been thinking a lot about -- there's been claims from -- I think it's
on somebody's talking points list, probably everybody's, that OSHA
should just enforce the current PEL because 30 percent of exposure
measurements are shown to be above it.

		Now, I'm thinking that that is data from OSHA's enforcement database.
And my actual first industrial hygiene job was enforcing OSHA standards
as an industrial hygienist.  And what I was taught, when you go out to a
job site, you first look for visual clues.  You do screening samples.
You talk to the workers, and you try to determine who on that job
site -- well, if there seems to be a problem, first of all.  You don't
waste money taking samples as a compliance officer, but you try to
determine who on that job site is probably at the highest exposure
level.  You don't pick everybody on that job site to sample.

		OSHA compliance officers, they don't go out to do, you know,
representational surveys.  They look for exceedances of the OSHA PEL.
So when the argument is made that if 30 -- if it's only 30 -- you
know, well, if 30 percent of the samples are not in compliance, to me,
that's actually pretty good.  That means that, you know, some in our
industry are really taking this seriously.

		And we've got 70 percent of the worst-case scenarios that OSHA sees on
the job as being controlled to the current PEL, not stating whether --
anything about the construction PEL and how hard it is to enforce.

		But I think it's a false argument, and I think it's a poor talking
point and it -- but it, you know, resonates well with people who don't
maybe understand how OSHA actually enforces health standards.

		MS. SEMINARIO:  Staying with the enforcement issue, but turning to the
proposed standard which you've indicated in your testimony includes a
new approach with the inclusion of Table 1 and specific control measures
in addition to the permissible exposure limit, from an enforcement
standpoint, what benefits do the Building Trades see in the inclusion of
Table 1 in the proposed silica standard for the construction industry?

		MS. TRAHAN:  Well, I think in a really plain way to look at it is that
it will be easy to determine base level compliance without the need to
demonstrate that a PEL is exceeded.  And I think that's important
because, you know, we've heard that this is a hazard that's on every job
site.  It's ubiquitous.  Therefore, we can't control it, but it's on
every job site, and it's causing cancer and people are dying.  So we
have to control it.

		So how do we determine whether things are in control or not?  And when
you look at the Table 1 option and the notes, it makes it not only easy
for an employer or a worker to see if this is being controlled to the
level that we think is appropriate, but we also makes it easy for a
compliance officer to do it.

		We have something like six or seven percent of the inspections on
construction worksites are industrial hygiene inspections.  So 95
percent of the inspections you see on job sites are from safety
compliance officers, and safety compliance officers could very easily
take a look at what's going on on the job site and see if employers were
fully and adequately implementing Table 1.

		MS. SEMINARIO:  Do I have time for one more?

		JUDGE SOLOMON:  Sure.

		MS. SEMINARIO:  Thank you very much.

		Staying with the issue of regulation, Mr. Smith spoke about the
adoption of a standard in California that unfortunately exempted the
roofing industry, but just a question of the presence of that standard.
Did it, nonetheless, have any impact on changing practices in the
industry, particularly dealing with roofing pavers in California?

		MS. TRAHAN:  Dan?

		MR. SMITH:  It did have a big impact with -- well, it didn't have an
impact with roofing pavers.  In the exemption in California, I think it
came about because it flew under the radar.  Contractors were already
using wet methods for cutting pavers, so they didn't see a point of
showing up.  I think the ones that showed up were the ones who had a
vested interest in continuing to cut roofing tiles and pavers dry that
did not want to comply.

		So -- and I honestly cannot remember on a commercial job site where
pavers are being used on the roof.  I cannot remember when I last saw
one cut wet.  It's become a standard practice as for --

		MS. SEMINARIO:  Cut dry or --

		MR. SMITH:  Cut dry.  I'm sorry.  Cut dry.  Thank you.  I want to get
that in the record.

		As far as roofing tiles, they are still routinely cut dry in
California consistently.  I -- in fact, I can't remember when I have
seen them cut wet.

		MS. SEMINARIO:  So having a regulation in place at the federal level
that would also then apply in the state of California, would that help
change the practice in this industry dealing with the cutting of roofing
tiles dry?

		MR. SMITH:  I certainly hope so.

		MS. SEMINARIO:  Thank you.

		JUDGE SOLOMON:  Okay.  Next?

		MR. FRUMIN:  Eric Frumin, Change to Win.  I've got a few questions,
Judge Solomon.

		JUDGE SOLOMON:  Spell your last name.

		MR. FRUMIN:  Sure.  Frumin, F, like in Frank, r-u-m-i-n.

		JUDGE SOLOMON:  And who do you represent?

		MR. FRUMIN:  Change to Win.  It's a labor federation.

		JUDGE SOLOMON:  Okay.  Sorry.  I missed that.  Go ahead.

		MR. FRUMIN:  Okay.  Hi, folks.  So the competent person requirement in
the construction standards obviously is, you know, very important to
employer practices, employer safety, and health programs, you know, all
over the -- all -- across the whole range of hazards.  How do you see
that requirement in 1926.20 applying in terms of implementing a silica
standard?  How important is it?  How are they related specifically to
the silica issue?

		MS. TRAHAN:  Thanks.  The competent person is important in the
construction industry in particular.  You know, we hear about how
different job sites are, how maybe work crews are mobile or small.  OSHA
coined this competent person concept in the construction regs.

		I'm not sure what the year was of the first standard including it.  It
could have been 1970, but what it does is it requires the employer to
identify somebody on the job site who has the education or training and
knowledge to recognize safety and health standards and the authority to
change what's going on in the job site.  I'm paraphrasing it.

		We see the term used in expanded health standards in the construction
industry, and it's used throughout safety standards in the construction
industry and is a well-accepted industry practice, to have somebody
designated who will evaluate the job site and implement the necessary
controls.

		In the scheme of things that the Building Trades kind of devised, as
far as how a standard should work, there should be somebody who is
responsible for implementing the hazard assessments, the exposure
control plan, and making sure that the engineering controls are working
on the job site since it's not something you just fix once in
construction.  It's something you have to attend to every day.

		And we think there should be specific duties assigned to that
individual that are pretty well laid out in our comments.  I won't get
into all the duties right now, but it's central to making sure that
controls are in place in the construction site.

		MR. FRUMIN:  So is it fair to say that simply relying on the existing
general competent person rules will not be sufficient to assure that the
silica -- that the requirements of a silica standard would be
understood by whoever is hanging around as the competent person, but
as -- but rather, as you said for the other health standards as well,
having a competent person specifically required by this standard would
assure that the people doing that oversight would know what they were
talking about and able to be, able to have the authority to assure
compliance regarding the silica hazards?

		MS. TRAHAN:  Well, you know, I think if you -- like, look at
trenching.  Trenching is a pretty well-recognized hazard, but at the
same time, the trenching standards require a competent person to be
there, to keep an eye on the site, to make sure the controls are
implemented.

		And part of it is probably a learning curve because the hazards
associated with trenching weren't as well recognized prior to the
implementation of a standard on trenching.  So in that regard, yes, I
think that a designated competent person with designated duties would
benefit the industry.  I mean, I think there's clear evidence through
the comments submitted in response to this proposed rule that people
just don't believe this is an issue, silicosis is going away.

		Look at this curve behind me on my PowerPoint; this is not a problem,
but it really is a problem.  There are people who are calling it an
alleged carcinogen.  It's not an alleged carcinogen.  It causes cancer,
and people are dying.

		So when you think about the learning curve that our industry has to
hurdle to get to the point where they're -- we're recognizing this
hazard and we're controlling it.  You're not going to get it on small
jobs, on small job sites without somebody in charge of making sure the
controls are in place.

		MR. FRUMIN:  Okay.  One other question.  So you've proposed this
planning tool, and we're wondering, to what extent were you able to get
useful information about that proposal from your employer counterparts?

		MS. TRAHAN:  The planning tool is a product of CPWR, the Center for
Construction Research and Training.  I'd like Eileen Betit to respond to
that question.

		MR. FRUMIN:  Okay.

		MS. BETIT:  We actually had very good input from contractors.  We did
focus groups before we even started programming and received a lot of
very good input from contractors on what would be useful.  In fact, one
of the things they said is they wanted something that they could take
away and actually use.

		After we began developing it, we reached out to individual employers
or employer groups through presentations asking them for input on what
tasks should be included, how it could be used, different ways.  In
fact, the feature that allows a person to -- a contractor to register
and save their plans came out of feedback that we've received since it
was made live.  So we were very fortunate in the input that we received.

		MR. FRUMIN:  Okay.  Thank you.

		JUDGE SOLOMON:  Thank you, Mr. Frumin.

		Next?

		DR. SOKAS:  Rosemary Sokas, S-o-k-a-s, representing the American
Public Health Association.

		And I just wanted to ask the panel if people have had experience using
alternatives to silica sand for abrasive blasting and whether you think
it's feasible to just ban that substance for blasting -- sandblasting
purposes.

		MS. COYNE:  Am I on?

		MS. TRAHAN:  Sarah Coyne.

		MS. COYNE:  Yes, there is.  One of the most popular one is Black
Beauty.  It has a 0.01 percent of silica and has low dust and is one of
the most preferred alternates to sand.

		Prior to testifying today, I checked, and I don't know any of our
signatory contractors that use sand, and the reason for that is because
it kills their workers.

		JUDGE SOLOMON:  Thank you.

		MR. SCHNEIDER:  Okay.  Scott Schneider with the Laborers' Health and
Safety Fund of North America.  It's S-c-h-n-e-i-d-e-r, and we're here in
Washington, D.C.

		I had a couple questions.  One of them is, there's been a lot of
discussion about how there are worksites where water is not available or
we don't have electricity.  How common is that and how is -- how do the
controls -- how are they implemented, and how do you get around that
basically?

		MS. TRAHAN:  Deven Johnson.

		MR. JOHNSON:  Yeah.  In all my years of experience as a cement
finisher, I can honestly say I've never been on a construction site that
didn't have access to water or electricity.  I mean, I think that's kind
of fundamental to construction.

		There's an old joke about, you're going to get turned into the humane
society if you don't start watering the stock, talking about the
employees.  And electricity is, whether it's generated with an
electric -- a gas generator or temporary power, it's fundamental to
construction.

		MR. SCHNEIDER:  Okay.  Anybody else?  Dan or -- okay.

		MR. SMITH:  In construction, when you look at, what is the alternative
if you don't have power and you don't have water on the job?  Battery
operated tools; they even need to be recharged.  I don't know a single
tool that lasts eight hours.  So I think the statement that there's not
power is not representative of what's going on out there.

		There's temporary power brought in.  There's a generator brought in.
There's water supplies brought in.  And as we discussed earlier, you
know, if -- when we're out on the job site and if we need to use water
and we've got some heat source, the water we're using is in the heat
source, not the workers.  We're out in the field doing the work, so
we're protecting that water that we need.  We deal with it.

		MR. SCARANO:  Okay.  Just a comment.

		MR. SCHNEIDER:  Oh, go ahead --

		MS. TRAHAN:  Gerry.

		MR. SCHNEIDER:  -- Gerry.

		MR. SCARANO:  Yes.  In a masonry field, you cannot work during the day
unless you mix cement.  If you don't have water there to mix cement,
you're not working.  And even with the job trailer that's there, you
need power just to even have an office on the job site.

		MR. SCHNEIDER:  You have to have water to wash up also.

		MR. SCARANO:  Yes.

		MR. SCHNEIDER:  Right.  Okay.  Question for Dan Smith.  The NRCA said
that cutting roof tiles with wet methods would be burdensome because
you'd have to interrupt your work and climb down to the ground level to
cut tiles on a flat surface.  How would you respond to that?

		MR. SMITH:  I'd respond to that by saying that in the U.K., it is
prohibited.  So they have figured out how to do it.  They build
scaffolding up to the eave of the roof where they can set up a tile saw
there.  There are misting methods that can be put on the existing saws
that we use now, which would virtually be cut the same way.  And I've
heard the deal with staining and all the other stuff.  I think it's
exaggerated a little bit.

		And as far as going down to the ground and cutting them, first of all,
they say that someone would have to go up and down a ladder 80, 90 times
a day.  We would hoist them up and down if they did go to the ground.
We would lower them and raise them back up.

		And, in addition, there are methods that break tile.  The hytile,
h-y-t-i-l-e, is a tool that's been designed that's like slate.  We don't
cut slate.  We usually break slate.

		So in the U.K., they have proved that it's doable.  I think if it's
doable there, it's doable here.  It may take the tool manufacturers
working with us a little bit to refine some of the tools they have or
just simply stepping back and taking a look at what they're doing over
there.

		MR. SCHNEIDER:  Okay.  Thank you.  We've heard testimony before
that -- you know, about how -- for short tasks, for example, people
can just use respirators.  And why is that not a problem?  And I guess
the question is, is respiratory protection equally effective in
preventing silicosis to the workers that are doing the task. and what
about the bystanders?

		MS. TRAHAN:  Laurie?  Laurie?  I think we have a few answers for that.

		DR. WELCH:  Well, just -- you know, well, when you look at the
protection factor on respirators, respiratory protection obviously would
not reduce the exposure significantly from some of these very dusty
tasks, and that's well described in the OSHA proposal.

		You know, my experience over the years, people who use personal
protective equipment, it's not clear they're any better off than if they
use nothing.  Hearing protection doesn't prevent people from getting
hearing loss, and respiratory protection doesn't prevent people from
getting lung disease.

		I mean just from a clinical perspective, we examine people over years.
 It may slow it down, maybe, I don't know, but what really works is
engineering controls.  That's where that -- the data is.  That's where
the health studies are.  Respirators are -- to a great degree, it's
pretend.  Seems simple, but because it's hard to implement, people don't
wear them correctly, sometimes don't have them.  It's -- and then
they're not sufficiently protective for some tasks.

		So there's a lot of reasons that respirators -- we don't really expect
respirators to work, and in my experience, they often don't.

		MR. SCHNEIDER:  Sarah?

		MS. COYNE:  I just wanted to add onto that.  Respirators should be the
last line of defense.  We should take every administrative and
engineering control that we possibly can to lower the exposure, I mean
period.  A respirator is a luxury that assists us in protecting
ourselves from additional exposure, but it doesn't take way the dust
that I'm going to have on my clothes or the dust that I'm going to find
in my sink or what I bring home to my kids, whether it's in my car or in
my laundry.

		So, again, I'd like to reiterate that administrative and engineering
controls is the first line of defense.

		MR. JOHNSON:  I just want to reiterate too that all too often, it's
left up to the worker.  It's used as a first line of defense.  The
contractor says here's a dust mask.  Go grind that wall, taking no
responsibility whatsoever for the job site safety.  Oftentimes, the
individual has to provide his own respirator.

		It's -- it should be the last line of defense, and it is in the
hierarchy of safety controls, engineering controls, but all to often,
it's the first line, and I think there just needs to be a sea change in
the entire thought process with that.

		MR. SMITH:  And I just want to add that going to respirators first
completely ignores the other trades and the other people working in the
same environment.

		MS. TRAHAN:  And --

		JUDGE SOLOMON:  Okay.  We --

		MS. TRAHAN:  -- to add --

		JUDGE SOLOMON:  Go ahead.

		MS. TRAHAN:  I just would like to wrap that around.  The idea of just
controlling exposure with respirators, to build on what Dan said, if we
can engineer out the hazard, we don't have to worry about bystander
exposure.  We don't have to worry about regulated areas.  We don't have
to worry about exceeding the PEL.  We don't have to worry about medical
surveillance.  We don't have to worry about air monitoring if we do it
right.  I mean we can just knock out these exposures and comply with the
standard, but get that eradicated for everyone.

		JUDGE SOLOMON:  We have about 10 minutes until --

		MR. SCHNEIDER:  Okay.

		JUDGE SOLOMON:  -- noon, and there's one other person behind you.

		MR. SCHNEIDER:  Okay.  Well, I'll end there then.  Thank you.

		JUDGE SOLOMON:  Come forward, please.

		MS. HALIFAX:  Thanks.  I'm Karen Halifax from the Bricklayers.

		JUDGE SOLOMON:  You want to spell your last name, please?

		MS. HALIFAX:  Sure.  It's H-a-l-i-f-a-x.

		And I have just a couple of questions.  We heard a lot yesterday in
the testimony about productivity penalties related to engineering
controls and work practice controls, but are there productivity gains as
well from using these engineering controls and other methods?

		MS. TRAHAN:  Deven?

		MR. JOHNSON:  As I said earlier, grinding concrete as a cement
finisher, if you -- if you're using an engineering control that --
such as a HEPA vacuum filter suction system on a grinder, you're much
more productive longer into the workday than you are if you're not using
that.  And I think that's true for the other workers that are -- have
ancillary exposure.

		If I'm running a grinder, especially if I'm grinding a ceiling
overhead, holding a grinder up and I've got dust and sand and everything
else blasting me for six or seven hours, at the end of the day, you're
physically exhausted.  You've been assaulted by this material that
you're generating.  There's productivity gains to be had by having this
material collected at the source of generation where you're not exposed
to it.  You feel much better.  You're not as tired.  There's
productivity gains to be had.

		Like was said earlier as far as, is there a cost to purchasing this
equipment?  Of course there is, but there's a cost curve where that cost
is gained back with increased productivity.  And, again, it goes back to
a contractor just simply throwing a respirator or a dust mask at a
worker and saying, you know, here, go take care of this task, instead of
putting a little thought into it and doing what's right on the front
end.

		MS. COYNE:  In addition to that, productivity gains is the amount of
man-hours that it would take to get the job completed.  As the person
who's using a HEPA vac or any other engineering controls, one, I don't
have to change my respirator cartridges a whole lot, but I don't have to
go back and back again to make sure that the levels are lowered and that
everything's cleaned up.

		MR. SMITH:  In the National Federation of Roofing Contractors
publication, they list benefits.  That's the contractors association.
I'm not going to read them all, but they include that the diamond blades
last longer, the cuts are better, they break less tiles, there's -- and
you don't have to redo as much work.

		So there eventually is a cost saving.  Once, as I said in my
testimony, you get over the initial training period, the buying and
purchasing of whatever you have to do, it does become, if not cost
diminishing, I believe at least cost neutral.

		MS. TRAHAN:  And we're -- we'd like to respond more to that in our
post-hearing because we're learning about new things all the time that
potentially are timesaving.

		JUDGE SOLOMON:  Do you have anything else?

		MS. HALIFAX:  Yes.  I have one other question, but it's a two-parter.
What is the Building Trades' experience with worker concerns or fears
about being blackballed for being diagnosed with a health condition that
may be work-related?

		MS. TRAHAN:  Sarah?

		MS. COYNE:  What's the level of fear?

		MS. HALIFAX:  Well, really, what's the experience with workers'
concerns or fears?

		MS. COYNE:  Extreme.  I have multiple friends who are diagnosed with
silica, back injuries, you name it.  And the concern is, because we've
seen it, is that if you come forward with that, well, now I'm a high
risk.  Just today, not having those here present testifying on their own
behalf, I think, says it all.

		MR. BYRD:  With respect to drivers on construction sites, commercial
drivers have to have a medical certificate.  They have to pass a
comprehensive physical exam.  If they were to report that they had a
debilitating condition such as silicosis, they would more than likely
not pass the respiratory criteria, and they'd be disqualified from
working anywhere.  So, you know -- and so it'd be really
disadvantageous for them -- for a driver to report to an employer that
they have a medical condition.

		MS. TRAHAN:  Deven?

		MR. JOHNSON:  In the construction industry, there's a term called the
bloody hand in the pocket syndrome, and that is, if you're injured,
don't tell anybody about it because you don't want to be blacklisted.
You don't want to be reported as having been injured.

		I've seen guys go around the corner on a job.  They're pouring
concrete and will twist their knee or hurt their shoulder or strain a
back and will quickly put themselves out of view of everyone else while
they recover because they don't want the foreman or superintendent or
somebody see that they tweaked their back or they did something.

		The same is true with occupational illnesses, that the last thing that
a worker wants is to have any information that he's somehow compromised
because, even though we want to think the best of the employer, that
somebody wouldn't take action against that individual, we know for a
fact that it happens.  It's happened to our membership.

		MS. COYNE:  I have one more thing.

		MS. TRAHAN:  Sarah?

		MS. COYNE:  The last thing I'd like to add is let me decide.  I might
have silicosis.  I might have asbestosis.  I know if I can work or not.
Let me decide.

		MS. TRAHAN:  I just -- as an observation from someone who's not a
construction worker, this is the organized construction industry
talking.  I can only imagine what it's like without the protection of a
union contract.

		MS. HALIFAX:  With all this in mind, without strict confidentiality
provisions for medical information and anti-retaliation protections, do
you think that workers will participate in the medical surveillance
scheme set up under this standard?

		MR. JOHNSON:  Could you repeat the question please?

		MS. HALIFAX:  Sure.  With all of this in mind, without strict
confidentiality protections for medical information and anti-retaliation
protections, do you think workers will participate in medical
surveillance?

		MR. JOHNSON:  One hundred percent, absolutely not.

		MS. COYNE:  Absolutely not.  I wouldn't.

		MS. TRAHAN:  I think we're --

		MS. HALIFAX:  All right.

		MS. TRAHAN:  -- in agreement on that.

		MS. HALIFAX:  Thank you very much.

		JUDGE SOLOMON:  Thank you very much.

		Mr. Smith, you referred to a document.  Do you want to proffer that
document for the record?

		MR. SMITH:  Yes, I can.

		MS. ROBINSON:  I'd like to enter this document into evidence as
Exhibit Number 48.

		JUDGE SOLOMON:  Okay.  So entered.

(Whereupon, the document referred to as Hearing Exhibit 48 was marked
and received in evidence.)

		JUDGE SOLOMON:  All right.  The time is now 11:58.  We're going to
pick it up at 1:00, and at that time, OSHA will begin its questioning.

		And then I had already said that the National Association of
Manufacturers will start approximately an hour after, but if the OSHA
questioning is less, then we'll try to get the ball rolling a little
earlier.

		Okay.  We are now off the record.

		(Whereupon, at 11:58 a.m., a lunch recess was taken.)

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

(1:00 p.m.)

		JUDGE SOLOMON:  We're back on the record and when we were last on the
record, the public had asked the last questions.  So, Ms. Robinson?

		MS. ROBINSON:  I believe OSHA has some questions.

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

		Annette Iannucci will begin our questioning.

		MS. IANNUCCI:  Okay.  Thank you, David, and good afternoon, everyone.

		I just had a few questions on medical surveillance for the panel.
First of all, could you please clarify what you believe the triggers
should be for medical surveillance in construction if Table 1 is not
being used?

		MS. TRAHAN:  The proposed bill.

		MS. IANNUCCI:  Okay.  Thank you.

		Okay.  In your written comments, you request that medical surveillance
be triggered by symptoms.  Are there any symptoms related to silica
exposure that can be distinguished from symptoms commonly associated
with an acute infection such as respiratory tract infection?

		DR. WELCH:  Well, the symptoms related to silica exposure will be
symptoms predominantly from the respiratory system.  You know, the
silica-related ones would be a chronic -- more of a chronic condition
as opposed to an acute upper respiratory infection, but it's not like
the cough is in any way unique if it's caused by silica.

		MS. IANNUCCI:  Okay.  And you mentioned onact (ph.), so does that mean
that maybe they should have a time limit on there like, if you're
experiencing symptoms for a certain time period or --

		DR. WELCH:  You know, some of it is what's the experience been in
standards where workers can ask for a medical exam based on symptoms.
In my experience, it's -- people don't exercise that option unless
they're really concerned, so they would probably put their own time
limit on this.  It's like, I've had this cough for two years, and I
think I should go get an exam.

		I don't -- I think it would be -- one could make a time limit, but
let's say if it was a week, then that's not really going to constrain
the requests all that much more than it would if the worker were making
his or her own decision.

		MS. IANNUCCI:  Okay.  Thank you.

		Okay.  I'd just like to clarify that for the medical exam to the
employer, you believe the information that should be included on there
is limitations on use of respirators if referral to a specialist is
needed and if further medical exams are also needed.  Is that correct?

		DR. WELCH:  Yes, that's correct, absent any medical diagnosis.  So the
provider could say this person needs a referral, but without any more
information on the rationale for the referral.  That's correct.

		MS. IANNUCCI:  Okay.  And in light of testimony and comments that
we've heard earlier about all the fears of being blackballed or
discriminated against, do you have any concern that just this
information here is enough for that to happen?

		DR. WELCH:  You know, I think that the -- we heard testimony that
under the Mine Safety Act, under the Part 90 where workers have --
it's -- what we're proposing is similar, that about 30 percent of the
miners opt to get the surveillance exam.

		JUDGE SOLOMON:  I don't believe that --

		DR. WELCH:  Is that incorrect?

		JUDGE SOLOMON:  -- was the question.

		DR. WELCH:  No, but just -- well, in terms of --

		MS. IANNUCCI:  Okay.  Are you concerned that providing this type of
information would clue the employee in that -- the employer that the
employee might be unfit and therefore still lead to discrimination
against the employee?

		DR. WELCH:  Yeah, I think that's a concern, but the issue about
whether a worker can or can't wear a respirator is important, obviously,
because it -- and there will be jobs where that's required and we don't
want to -- don't want the worker to be at, you know, risk of sudden
incapacitation or death because they try to wear it and they can't.

		So I think that -- you know, that -- I think as Sarah had said
earlier, people will probably avoid trying to get an exam at all if they
can because they don't want the employer to hear that they're not fit to
wear a respirator.  So -- but I think there's a kind of a -- there's a
legitimate concern about that particular question, and so it makes sense
that the employer should get that information.