[Federal Register Volume 87, Number 98 (Friday, May 20, 2022)]
[Proposed Rules]
[Pages 30840-30843]
[FR Doc No: 2022-10775]

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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 87, No. 98 / Friday, May 20, 2022 / Proposed
Rules

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2022-0586; Project Identifier MCAI-2021-01262-T]
RIN 2120-AA64

Airworthiness Directives; Airbus SAS Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The FAA proposes to supersede Airworthiness Directive (AD)
2016-26-05 and AD 2019-21-02, which apply to certain Airbus SAS Model
A330-200, A330-200 Freighter, and A330-300 series airplanes. AD 2016-
26-05 and AD 2019-21-02 require revising the existing maintenance or
inspection program, as applicable, to incorporate new or more
restrictive airworthiness limitations. Since the FAA issued AD 2016-26-
05 and AD 2019-21-02, the FAA has determined that new or more
restrictive airworthiness limitations are necessary, and new airplanes
have been added to the applicability. This proposed AD would continue
to require the actions in AD 2019-21-02 and require revising the
existing maintenance or inspection program, as applicable, to
incorporate additional new or more restrictive airworthiness
limitations, as specified in a European Union Aviation Safety Agency
(EASA) AD, which is proposed for incorporation by reference. The FAA is
proposing this AD to address the unsafe condition on these products.

DATES: The FAA must receive comments on this proposed AD by July 5,
2022.

ADDRESSES: You may send comments, using the procedures found in 14 CFR
11.43 and 11.45, by any of the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590.
     Hand Delivery: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
    For EASA material that will be incorporated by reference (IBR) in
this AD, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany;
telephone +49 221 8999 000; email [email protected]; internet
www.easa.europa.eu. You may find this material on the EASA website at
https://ad.easa.europa.eu. For Airbus service information identified in
this proposed AD, contact Airbus SAS, Airworthiness Office-EAL, Rond-
Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33
5 61 93 36 96; fax +33 5 61 93 45 80; email [email protected]; internet https://www.airbus.com. You may view this
material at the FAA, Airworthiness Products Section, Operational Safety
Branch, 2200 South 216th St., Des Moines, WA. For information on the
availability of this material at the FAA, call<PHONE_NUMBER>. It is also
available in the AD docket at https://www.regulations.gov by searching
for and locating Docket No. FAA-2022-0586.

Examining the AD Docket

    You may examine the AD docket at https://www.regulations.gov by
searching for and locating Docket No. FAA-2022-0586; or in person at
Docket Operations between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. The AD docket contains this NPRM, the
mandatory continuing airworthiness information (MCAI), any comments
received, and other information. The street address for Docket
Operations is listed above.

FOR FURTHER INFORMATION CONTACT: Vladimir Ulyanov, Aerospace Engineer,
Large Aircraft Section, FAA, International Validation Branch, 2200
South 216th St., Des Moines, WA 98198; telephone<PHONE_NUMBER>; email
[email protected].

SUPPLEMENTARY INFORMATION:

Comments Invited

    The FAA invites you to send any written relevant data, views, or
arguments about this proposal. Send your comments to an address listed
under ADDRESSES. Include ``Docket No. FAA-2022-0586; Project Identifier
MCAI-2021-01262-T'' at the beginning of your comments. The most helpful
comments reference a specific portion of the proposal, explain the
reason for any recommended change, and include supporting data. The FAA
will consider all comments received by the closing date and may amend
this proposal because of those comments.
    Except for Confidential Business Information (CBI) as described in
the following paragraph, and other information as described in 14 CFR
11.35, the FAA will post all comments received, without change, to
https://www.regulations.gov, including any personal information you
provide. The agency will also post a report summarizing each
substantive verbal contact received about this NPRM.

Confidential Business Information

    CBI is commercial or financial information that is both customarily
and actually treated as private by its owner. Under the Freedom of
Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public
disclosure. If your comments responsive to this NPRM contain commercial
or financial information that is customarily treated as private, that
you actually treat as private, and that is relevant or responsive to
this NPRM, it is important that you clearly designate the submitted
comments as CBI. Please mark each page of your submission containing
CBI as ``PROPIN.'' The FAA will treat such marked submissions as
confidential under the FOIA, and they will not be placed in the public
docket of this NPRM. Submissions containing CBI should be sent to
Vladimir Ulyanov, Aerospace Engineer, Large Aircraft Section, FAA,
International Validation Branch, 2200 South 216th St., Des Moines, WA
98198; telephone<PHONE_NUMBER>; email [email protected]. Any
commentary that the FAA receives which is not specifically designated
as CBI will be placed in the public docket for this rulemaking.

Background

    The FAA issued AD 2019-21-02, Amendment 39-19768 (84 FR 57313,
October 25, 2019) (AD 2019-21-02), which applies to certain Airbus SAS
Model A330-200, A330-200 Freighter, and A330-300 series airplanes. AD
2019-21-02 requires revising the existing maintenance or inspection
program, as applicable, to incorporate new or more restrictive
airworthiness limitations. The FAA issued AD 2019-21-02 to address a
safety-significant latent failure (that is not annunciated) that, in
combination with one or more other specific failures or events, could
result in a hazardous or catastrophic failure condition. AD 2019-21-02
specifies that accomplishing the revision required by that AD
terminates all requirements of 2016-26-05, Amendment 39-18763 (82 FR
1170, January 5, 2017) (AD 2016-26-05).

Actions Since AD 2019-21-02 Was Issued

    Since the FAA issued AD 2019-21-02, the FAA has determined that new
or more restrictive airworthiness limitations are necessary.
    EASA, which is the Technical Agent for the Member States of the
European Union, has issued EASA AD 2021-0248, dated November 15, 2021
(EASA AD 2021-0248) (also referred to as the MCAI), to correct an
unsafe condition for all Airbus SAS Model Airbus A330-201, A330-202,
A330-203, A330-223, A330-223F, A330-243, A330-243F, A330-301, A330-302,
A330-303, A330-321, A330-322, A330-323, A330-341, A330-342, A330-343,
A330-841, and A330-941 airplanes.
    Airplanes with an original airworthiness certificate or original
export certificate of airworthiness issued after July 1, 2021, must
comply with the airworthiness limitations specified as part of the
approved type design and referenced on the type certificate data sheet;
this proposed AD therefore does not include those airplanes in the
applicability.
    This proposed AD was prompted by a determination that new or more
restrictive airworthiness limitations are necessary, and that EASA AD
2021-0248 has added Airbus SAS Model A330-841 and A330-941 airplanes to
the applicability. The FAA is proposing this AD to address a safety-
significant latent failure (that is not annunciated) that, in
combination with one or more other specific failures or events, could
result in a hazardous or catastrophic failure condition. See the MCAI
for additional background information.

Related Service Information Under 1 CFR Part 51

    EASA AD 2021-0248 describes new or more restrictive airworthiness
limitations for airplane structures and safe life limits, and adds new
models to the applicability.
    This proposed AD would also require Airbus A330 Airworthiness
Limitations Section (ALS) Part 3-Certification Maintenance Requirements
(CMR), Revision 06, dated October 15, 2018; and Airbus A330 ALS Part 3-
Certification Maintenance Requirements (CMR), Variation 6.1, dated June
28, 2019; which the Director of the Federal Register approved for
incorporation by reference as of November 29, 2019 (84 FR 57313,
October 25, 2019).
    This material is reasonably available because the interested
parties have access to it through their normal course of business or by
the means identified in the ADDRESSES section.

FAA's Determination

    These products have been approved by the aviation authority of
another country and are approved for operation in the United States.
Pursuant to the FAA's bilateral agreement with the State of Design
Authority, it has notified the FAA of the unsafe condition described in
the MCAI referenced above. The FAA is issuing this NPRM after
determining that the unsafe condition described previously is likely to
exist or develop in other products of these same type designs.

Proposed AD Requirements in This NPRM

    This proposed AD would retain the requirements of AD 2019-21-02.
This proposed AD would also require revising the existing maintenance
or inspection program, as applicable, to incorporate new or more
restrictive airworthiness limitations, which are specified in EASA AD
2021-0248 described previously, as proposed for incorporation by
reference. Any differences with EASA AD 2021-0248 are identified as
exceptions in the regulatory text of this AD.
    This proposed AD would require revisions to certain operator
maintenance documents to include new actions (e.g., inspections).
Compliance with these actions is required by 14 CFR 91.403(c). For
airplanes that have been previously modified, altered, or repaired in
the areas addressed by this proposed AD, the operator may not be able
to accomplish the actions described in the revisions. In this
situation, to comply with 14 CFR 91.403(c), the operator must request
approval for an alternative method of compliance (AMOC) according to
paragraph (l)(1) of this proposed AD.

Explanation of Required Compliance Information

    In the FAA's ongoing efforts to improve the efficiency of the AD
process, the FAA developed a process to use some civil aviation
authority (CAA) ADs as the primary source of information for compliance
with requirements for corresponding FAA ADs. The FAA has been
coordinating this process with manufacturers and CAAs. As a result, the
FAA proposes to incorporate EASA AD 2021-0248 by reference in the FAA
final rule. This proposed AD would, therefore, require compliance with
EASA AD 2021-0248 in its entirety through that incorporation, except
for any differences identified as exceptions in the regulatory text of
this proposed AD. Using common terms that are the same as the heading
of a particular section in EASA AD 2021-0248 does not mean that
operators need comply only with that section. For example, where the AD
requirement refers to ``all required actions and compliance times,''
compliance with this AD requirement is not limited to the section
titled ``Required Action(s) and Compliance Time(s)'' in EASA AD 2021-
0248. Service information required by EASA AD 2021-0248 for compliance
will be available at https://www.regulations.gov by searching for and
locating Docket No. FAA-2022-0586 after the FAA final rule is
published.

Airworthiness Limitation ADs Using the New Process

    The FAA's process of incorporating by reference MCAI ADs as the
primary source of information for compliance with corresponding FAA ADs
has been limited to certain MCAI ADs (primarily those with service
bulletins as the primary source of information for accomplishing the
actions required by the FAA AD). However, the FAA is now expanding the
process to include MCAI ADs that require a change to airworthiness
limitation documents, such as airworthiness limitation sections.
    For these ADs that incorporate by reference an MCAI AD that changes
airworthiness limitations, the FAA requirements are unchanged.
Operators must revise the existing maintenance or inspection program,
as applicable, to incorporate the information specified in the new
airworthiness limitation document. The airworthiness limitations must
be followed according to 14 CFR 91.403(c) and 91.409(e).

    The previous format of the airworthiness limitation ADs included a
paragraph that specified that no alternative actions (e.g.,
inspections) or intervals may be used unless the actions and intervals
are approved as an AMOC in accordance with the procedures specified in
the AMOCs paragraph under ``Additional FAA AD Provisions.'' This new
format includes a ``New Provisions for Alternative Actions and
Intervals'' paragraph that does not specifically refer to AMOCs, but
operators may still request an AMOC to use an alternative action or
interval.

Costs of Compliance

    The FAA estimates that this proposed AD affects 138 airplanes of
U.S. registry. The FAA estimates the following costs to comply with
this proposed AD:
    The FAA estimates the total cost per operator for the retained
actions from AD 2019-21-02 to be $7,650 (90 work-hours x $85 per work-
hour).
    The FAA has determined that revising the existing maintenance or
inspection program takes an average of 90 work-hours per operator,
although the agency recognizes that this number may vary from operator
to operator. Since operators incorporate maintenance or inspection
program changes for their affected fleet(s), the FAA has determined
that a per-operator estimate is more accurate than a per-airplane
estimate.
    The FAA estimates the total cost per operator for the new proposed
actions to be $7,650 (90 work-hours x $85 per work-hour).

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. Subtitle VII: Aviation Programs,
describes in more detail the scope of the Agency's authority.
    The FAA is issuing this rulemaking under the authority described in
Subtitle VII, Part A, Subpart III, Section 44701: General requirements.
Under that section, Congress charges the FAA with promoting safe flight
of civil aircraft in air commerce by prescribing regulations for
practices, methods, and procedures the Administrator finds necessary
for safety in air commerce. This regulation is within the scope of that
authority because it addresses an unsafe condition that is likely to
exist or develop on products identified in this rulemaking action.

Regulatory Findings

    The FAA determined that this proposed AD would not have federalism
implications under Executive Order 13132. This proposed AD would not
have a substantial direct effect on the States, on the relationship
between the national Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
    For the reasons discussed above, I certify this proposed
regulation:
    (1) Is not a ``significant regulatory action'' under Executive
Order 12866,
    (2) Would not affect intrastate aviation in Alaska, and
    (3) Would not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

The Proposed Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13   [Amended]

0
2. The FAA amends Sec.  39.13 by:
0
a. Removing Airworthiness Directive 2016-26-05, Amendment 39-18763 (82
FR 1170, January 5, 2017); and Airworthiness Directive 2019-21-02,
Amendment 39-19768 (84 FR 57313, October 25, 2019); and
0
b. Adding the following new airworthiness directive:

Airbus SAS: Docket No. FAA-2022-0586; Project Identifier MCAI-2021-
01262-T.

(a) Comments Due Date

    The FAA must receive comments on this airworthiness directive
(AD) by July 5, 2022.

(b) Affected ADs

    This AD replaces AD 2016-26-05, Amendment 39-18763 (82 FR 1170,
January 5, 2017) (AD 2016-26-05); and AD 2019-21-02, Amendment 39-
19768 (84 FR 57313, October 25, 2019) (AD 2019-21-02).

(c) Applicability

    This AD applies to Airbus SAS Model A330-201, -202, -203, -223,
-223F, -243, -243F, -301, -302, -303, -321, -322, -323, -341, -342,
-343, -841, and -941 airplanes, certificated in any category, with
an original airworthiness certificate or original export certificate
of airworthiness issued on or before July 1, 2021.

(d) Subject

    Air Transport Association (ATA) of America Code 05, Time Limits/
Maintenance Checks.

(e) Unsafe Condition

    This AD was prompted by a determination that new or more
restrictive airworthiness limitations are necessary, and that new
airplanes have been added to the applicability. The FAA is issuing
this AD to address a safety-significant latent failure (that is not
annunciated) that, in combination with one or more other specific
failures or events, could result in a hazardous or catastrophic
failure condition.

(f) Compliance

    Comply with this AD within the compliance times specified,
unless already done.

(g) Retained Revision of the Existing Maintenance or Inspection
Program, With No Changes

    This paragraph restates the requirements of paragraph (g) of AD
2019-21-02, with no changes. For Model A330-201, -202, -203, -223, -
223F, -243, -243F, -301, -302, -303, -321, -322, -323, -341, -342,
and -343 airplanes with an original airworthiness certificate or
original export certificate of airworthiness issued on or before
October 15, 2018: Within 90 days after November 29, 2019 (the
effective date of AD 2019-21-02), revise the existing maintenance or
inspection program, as applicable, to incorporate the information
specified in Airbus A330 Airworthiness Limitations Section (ALS)
Part 3--Certification Maintenance Requirements (CMR), Revision 06,
dated October 15, 2018, as supplemented by Airbus A330 ALS Part 3--
Certification Maintenance Requirements (CMR), Variation 6.1, dated
June 28, 2019. The initial compliance times for doing the tasks is
at the time specified in Airbus A330 Airworthiness Limitations
Section (ALS) Part 3--Certification Maintenance Requirements (CMR),
Revision 06, dated October 15, 2018, as supplemented by Airbus A330
ALS Part 3--Certification Maintenance Requirements (CMR), Variation
6.1, dated June 28, 2019, or within 90 days after November 29, 2019,
whichever occurs later. Accomplishing the revision of the existing
maintenance or inspection program required by paragraph (i) of this
AD terminates the requirements of this paragraph.

(h) Retained No Alternative Actions or Intervals, With a New Exception

    This paragraph restates the requirements of paragraph (h) of AD
2019-21-02, with a new exception. Except as required by paragraph
(i) of this AD, after the maintenance or inspection program has been
revised as required by paragraph (g) of this AD, no alternative
actions (e.g., inspections) or intervals may be used unless the
actions or intervals are approved as an alternative method of
compliance (AMOC) in accordance with the procedures specified in
paragraph (l)(1) of this AD.

(i) New Revision of the Existing Maintenance or Inspection Program

    Except as specified in paragraph (j) of this AD: Comply with all
required actions and compliance times specified in, and in
accordance with, European Union Aviation Safety Agency (EASA) AD
2021-0248, dated November 15, 2021 (EASA AD 2021-0248).
Accomplishing the revision of the existing maintenance or inspection
program required by this paragraph terminates the requirements of
paragraph (g) of this AD.

(j) Exceptions to EASA AD 2021-0248

    (1) Where EASA AD 2021-0248 refers to its effective date, this
AD requires using the effective date of this AD.
    (2) The requirements specified in paragraphs (1) and (2) of EASA
AD 2021-0248 do not apply to this AD.
    (3) Paragraph (3) of EASA AD 2021-0248 specifies revising ``the
approved AMP'' within 12 months after its effective date, but this
AD requires revising the existing maintenance or inspection program,
as applicable, within 90 days after the effective date of this AD.
    (4) The initial compliance time for doing the tasks specified in
paragraph (3) of EASA 2021-0248 is at the applicable ``associated
thresholds,'' as incorporated by the requirements of paragraph (3)
of EASA AD 2021-0248, or within 90 days after the effective date of
this AD, whichever occurs later.
    (5) The provisions specified in paragraphs (4) and (5) of EASA
AD 2021-0248 do not apply to this AD.
    (6) The ``Remarks'' section of EASA AD 2021-0248 does not apply
to this AD.

(k) New Provisions for Alternative Actions and Intervals

    After the existing maintenance or inspection program has been
revised as required by paragraph (i) of this AD, no alternative
actions (e.g., inspections) and intervals are allowed unless they
are approved as specified in the provisions of the ``Ref.
Publications'' section of EASA AD 2021-0248.

(l) Additional FAA AD Provisions

    The following provisions also apply to this AD:
    (1) Alternative Methods of Compliance (AMOCs): The Manager,
Large Aircraft Section, International Validation Branch, FAA, has
the authority to approve AMOCs for this AD, if requested using the
procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19,
send your request to your principal inspector or responsible Flight
Standards Office, as appropriate. If sending information directly to
the Large Aircraft Section, International Validation Branch, send it
to the attention of the person identified in paragraph (m)(2) of
this AD. Information may be emailed to: [email protected].
    (i) Before using any approved AMOC, notify your appropriate
principal inspector, or lacking a principal inspector, the manager
of the responsible Flight Standards Office.
    (ii) AMOCs approved previously for AD 2019-21-02 are approved as
AMOCs for the corresponding provisions of EASA AD 2021-0248 that are
required by paragraph (g) of this AD.
    (2) Contacting the Manufacturer: For any requirement in this AD
to obtain instructions from a manufacturer, the instructions must be
accomplished using a method approved by the Manager, Large Aircraft
Section, International Validation Branch, FAA; or EASA; or Airbus
SAS's EASA Design Organization Approval (DOA). If approved by the
DOA, the approval must include the DOA-authorized signature.

(m) Related Information

    (1) For EASA AD 2021-0248, contact EASA, Konrad-Adenauer-Ufer 3,
50668 Cologne, Germany; telephone +49 221 8999 000; email
[email protected]; internet www.easa.europa.eu. You may find this
EASA AD on the EASA website at https://ad.easa.europa.eu.
    (2) For more information about this AD, contact Vladimir
Ulyanov, Aerospace Engineer, Large Aircraft Section, FAA,
International Validation Branch, 2200 South 216th St., Des Moines,
WA 98198; telephone<PHONE_NUMBER>; email [email protected].
    (3) For Airbus service information identified in this AD,
contact Airbus SAS, Airworthiness Office-EAL, Rond-Point Emile
Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93
36 96; fax +33 5 61 93 45 80; email [email protected]; internet https://www.airbus.com. You may view this
service information at the FAA, Airworthiness Products Section,
Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For
information on the availability of this material at the FAA, call
206-231-3195.

    Issued on May 16, 2022.
Gaetano A. Sciortino,
Deputy Director for Strategic Initiatives, Compliance & Airworthiness
Division, Aircraft Certification Service.
[FR Doc. 2022-10775 Filed 5-19-22; 8:45 am]
BILLING CODE 4910-13-P


where we're coming from.

		OSHA's justification for reducing the crystalline silica PEL is based
on an extrapolation using several relative risk models of mortality data
sets for selected worker cohorts.  This is a very indirect method.  The
evaluation of risk was based on a modified extrapolation of in some
cases unrelated data and not on direct evidence.

		OSHA's use of modeling to extrapolate the selected data down to lower
levels of exposure can only be founded on the unstated assumption that
there is no known safe exposure level for crystalline silica, because
you are extrapolating below your data.  Furthermore, OSHA reinforces its
argument to lower the crystalline silica PEL through an exhaustive
analysis purporting to show that exposure levels can be reliably
measured at the proposed lower level.

		Besides stating and then ignoring the significant uncertainties in
this analysis, making such an argument indicates that the regulatory
philosophy behind the proposed PEL reduction is to reduce exposure to
the lowest level that can feasibly be attained by industry.  These two
branches of the rationale demonstrated in OSHA's justification, in other
words that there is no known safe exposure and that the PEL should be
reduced to the lowest level that can feasibly be attained, are precisely
what the Supreme Court found to be a misinterpretation of the
Occupational Safety and Health Act.

		In short, I guess in a nutshell, it is OSHA's mandate to eliminate
significant workplace hazards.  It is not OSHA's job to reduce workplace
risk to near zero levels.  Where there is no significant hazard, there
is no role for OSHA, according to the actual Act, as we understand it.

		OSHA's evaluation of risk due to crystalline silica exposure was based
on a modeled extrapolation of data that was at least in part not
directly applicable to the U.S. workforce in the first place.  OSHA
applies exhaustive statistical analysis to give the impression of
greater certainty than in fact exists with such a methodology.

		Absent a more reliable method, such an indirect approach might
arguably be acceptable under the conservative assumptions provision in
the above-cited Supreme Court decision, but there is a more reliable
method.  And that reliable method is that we have proven superior data
for our own workforce that has been collected over the past several four
decades.

		OSHA has at its disposal not only a superior method, but the best
possible tool which is the actual measured results in the entire
affected population, over 40 years of regulatory controls, at the
present PEL.  These results should clearly be given far more weight than
those of the convoluted approach chosen by OSHA.

		According to the CDC, the annual number of silicosis deaths in 1968
was 1,157, which is 8.91 per million persons above 15 years of age.  By
2002, this had decreased 93 percent to only 148, or .66 per million, a
remarkable decline equivalent to an average annual decrease of 13
percent, although it didn't go down annually but over those years.

		Since 2002, the rate of decline has leveled off.  The most recent data
from NIOSH, which is 2010, shows deaths from silicosis below 100, which
for the 8-year period from 2002 through 2010 would be an equivalent to
an average annual decrease of about 1 percent.

		However, while the decline in silicosis mortality has certainly
slowed, there is no indication that it has stopped; in other words, the
process is still working.  We believe two main factors are responsible
for this major drop, and actually you could call it a very successful
regulatory approach.

		First, OSHA's actions in the early 1970s transformed the industrial
climate by making industries aware of crystalline silica exposure.
Number two, by setting clear and practical measurable limits.  And,
number three, by providing support and, as needed, enforcement action to
drive the point home.

		Second, industry responded responsibly with significant improvements
in worker protection from exposure to silica.  This performance is
exactly what we should expect from an effective regulatory program, so
why are we changing it?

		This brings me to Point 2, which is OSHA's proposed approach to
reducing exposure is conceptually flawed.  The basis of OSHA's proposed
approach is essentially to require the employer to create a work
environment whose concentrations of airborne crystalline silica are set
at or below the lower threshold of practical measurement such that
workers in the area do not require protective equipment.  OSHA considers
respiratory protective equipment as a last resort after all possible
engineering controls or work practices have failed to achieve the PEL.

		There is no precedent or rational basis for such a regulatory
approach, particularly with the availability of protective equipment of
proven effectiveness.  Employees and workers have found personal
protective equipment to be a cost-effective method of limiting silica
exposure.  OSHA discourages using PPE because workers might not wear the
PPE or it might not be properly maintained.  But if an employer is
incapable of maintaining personal protective equipment and properly
training employees in its use, how can that same employer be expected to
install, manage, and maintain the much more complex engineering controls
that OSHA proposes.

		OSHA's own analysis determined that most of the time, engineering and
work practices would not be sufficient to limit silica exposures to a
maximum of 25, the action level µg/m3.  And it proposed an action level
for exposure monitoring one-half of the PEL -- I'm getting lost in my
notes here -- which is below the lower limit of reliable measurement.

		There is another problem we have with this in that you're getting to
the point where actions and accountabilities are being based on levels
whose measurement is difficult.  There is not a consistent laboratory
capability across the country.  And the variability in that measurement
could easily make a huge difference in the outcomes of adversarial
processes with OSHA, between industry and OSHA.

		OSHA states that one of the purposes of requiring expensive monitoring
is to motivate employers to implement controls.  Well, first, that
attitude is kind of insulting to a responsible industry that is
interested in the health of its workers as much as any governmental
agency.  And, second, from the industry's standpoint, it is risky to
invest in expensive equipment and controls with no guarantees that they
will actually do the job and still be accountable for ultimately meeting
a very low PEL.

		Third, if additional controls have been demonstrated to be infeasible
or ineffective, continuing quarterly or semi-annual monitoring would
waste resources that would better be applied to other safety and health
concerns, for example, annual medical surveillance that was mentioned
before.  Finally, this kind of requirement tends to punish the compliant
while not having an effect on the noncompliant.

		This brings us to the third point that OSHA's proposed approach will
not significantly -- we believe will not significantly reduce worker
risk from exposure to crystalline silica.

		From OSHA's own data, it would appear that inspection and enforcement
of the current regulation has been sporadic.  Enforcement data from 1997
through 2002, the first 5 years of the SEP for silica, shows that for
the construction industry, 42 percent of the industry was exceeding the
current PEL and 24 percent was exceeding it by a factor of 3 or more.
That is the construction industry.  The performance is even worse than
for general industry.

		From January 20, '03, to December 2009, the construction industry
showed improved compliance, better than general industry, with 25
percent exceeding the PEL and only 14 percent exceeding it by a factor
of 3 or more.  Those aren't really numbers to be proud of, but they are
improving.

		The persistent levels of noncompliance indicate that there is still
opportunity for reduction of silica-related risk through enforcement.
Implementation of more stringent PELs and action levels will not affect
already noncompliant workplaces where workers will continue to be
overexposed to silica.  They will only affect compliant firms.  If 30 to
50 percent of the industry can't comply with the current PEL, how is it
feasible that they would suddenly comply with reductions of 50 to 75
percent in PELs and action levels?

		So the question that must be answered is really how many lives could
be saved and how many cases of silicosis could be prevented by a more
widespread compliance effort under the current PEL.

		Logic dictates that in a market-driven economy to reduce the frequency
of noncompliance, you need to reduce the cost of compliance and/or
increase the cost of noncompliance.  OSHA's approach with the PEL set to
the lower limits of reliable measurement would increase the cost of
compliance, but it wouldn't affect the noncompliant.

		Final point, industry efforts to comply with OSHA's proposed rules are
likely to be costly and unlikely to be successful.  Current methods for
measuring silica concentrations have a reliable minimum detection limit
reliable of 100 µg/m3.  The most advanced labs can do better than this,
but we have to look at what's available typically in the construction
industry are not always the most advanced labs.

		OSHA determined that 50 µg/m3 is the lowest concentration that is
technologically feasible to measure.  And I think maybe it is lower than
that based on some of the testimony I heard before where people come up
with lower numbers.  But at concentrations below about 50, the
measurements are so imprecise as to call into question their validity.

		The most recent published round of proficiency analytic testing, or
PAT, indicated that for a sample spiked with 113 µg/m3 of silica, the
lab analysis would be within plus or minus 25 percent -- 29 percent, 95
percent of the time.  At 63 µg/m3, the results would be within plus or
minus 32.7 percent, 95 percent of the time.  Neither of these results
meet the NIOSH precision limit of plus or minus 25 percent.

		I'll get a little bit into the cost, but I have to say our argument is
not based on cost.  It's based on these other factors.  But as far as
cost, in our industry, sandblasters are probably the most common job
that would expose workers to crystalline silica.  And we do sandblasting
in order to create different kinds of finishes on the surface of special
architectural concrete.

		In some cases, wet sandblasting is not possible because the finish is
being created by visual feedback; in other words, they will sandblast
and then they will look to get a certain graininess that has to match an
architectural sample and, of course, the water would cover that finish
and they wouldn't know how much to sandblast.  So they have to do it dry
in order to get the effect they are looking for.

		But all these sandblasters participate in a respirator protection
program.  They're required to use Type CE respirators and are properly
trained in both respiratory protection and hazard communication.  They
are required to comply with all the current OSHA requirements.

		Now, to take a different approach where we would forego the respirator
and create an environment that met the PEL, the initial cost, and this
is guessing because nobody has done it yet, but the initial cost of
compliance would be significant.  Each affected plant would need to
establish a demarcated controlled access area around the sandblasting
activity.  And the extent of such an area has yet to be determined.  I
mean if you took the current extent of area we use for sandblasting and
just covered that, it would be impractical.  So they probably have to
figure out a way to condense the actual area the sandblasters use.

		But a plant with limited yard space doing outdoor abrasive blasting
would have to enclose the work area with a building or some other kind
of enclosure at an estimated cost of anywhere from $300,000 to $1
million, this is a one-time initial cost, plus maybe about $20,000
associated with dust collection and other operations that go along with
that structure.  Ongoing costs would also be significant.  And we have
kind of enumerated some of those in our attachments to our written
testimony.

		But, again, as I mentioned, it is not about the cost because to be
honest with you our committee that was looking at this, which had many
producers on it, said we can meet this, it might be expensive, but we
can meet it.  What they were concerned about is that only the good guys
are going to meet it and spend the money.  And their competitor, who is
violating the OSHA requirements, is going to save all that money.  I
mean this is the fairness thing, so this gets us back to the
noncompliance issue.

		When you lower the PEL like you are proposing, the lack of precision
in measurement would make reliable monitoring difficult and compliance
would be unverifiable and, therefore, enforcement would become more
arbitrary.

		In summary, our industry can and does comply with the existing PEL of
100 µg per meter cubed; however, efforts to achieve consistent
compliance at the proposed PEL of 50 are likely to be costly, but
unlikely to be successful.

		To summarize our recommendations, we feel that the crystalline silica
PEL should remain at 100 with monitoring every 6 months.  We believe
that an employer should be allowed to use at its own discretion any or
all mitigation methods to achieve PEL compliance, including personal
protective equipment with appropriate verification of equipment
condition, worker training, and so on.

		Engineering controls, a combination of the PPE engineering controls
and work practice measures, rather than being forced to invest in the
engineering solution with no guarantee that you're going to really get
to where you're trying to go.

		We note that technically feasible does not mean economically
practical.  OSHA should clarify that the performance option allows an
employer to reduce or suspend monitoring when it has been determined
that it is infeasible to reduce exposure below the PEL, e.g., you know,
abrasive blasting, tuck pointing, grinding, that kind of thing.

		But more importantly, OSHA should enhance its enforcement efforts,
concentrating on industries that have posed the greatest risks to
workers, and increase the cost of noncompliance for those who are not
following the rule.

		The precast concrete structures industry is committed to the health of
its workers and is willing to work with OSHA to achieve real reductions
in worker exposure to silica.  We see the proposed rule as reflecting,
however, an impractical regulatory philosophy which is possibly using
flawed science, but a generally adversarial attitude toward industry,
which we don't think is consistent with the successful record of this
program in the past.

		That ends my testimony and I thank you for the opportunity.

		JUDGE PURCELL:  Thank you, Mr. Toscas.  Up next are Mr. McGrath and
Mr. Pence of ICPI.  They have also been joined by David Smith.  And I'm
sorry, I didn't note Mr. Smith's title.

		MR. PENCE:  His title is Technical Director, Judge.

		JUDGE PURCELL:  Thank you.  Mr. McGrath, I have received a copy of
your testimony, which I have marked as Hearing Exhibit 166 and that is
admitted into the record.

(Whereupon, the document referred to as Hearing 		 Exhibit 166 was
marked and received in evidence.)

		MR. PENCE:  Judge, good afternoon, and thank you very much.  On behalf
of the Interlocking Concrete Pavement Institute, also known as ICPI, we
thank OSHA this day for the opportunity to offer testimony on this
issue.

		My name is Randall Pence.  I am ICPI's Government Relations Counsel.
And I am joined today with Charles McGrath, ICPI's Executive Director,
and as you mentioned, Judge, Mr. David Smith, Technical Director at
ICPI.  We are glad to have David here today.  We think he will be of
instrumental help answering questions by the audience and by the staff
today.

		ICPI represents small contracting businesses that install interlocking
concrete pavements, also known as ICP, as well as small to large
manufacturers of the same product.  Thousands of concrete paver
installers are small businesses and the proposed ruling will affect
these companies as well in major ways.

		ICPI would like to supplement its written testimony today regarding
the impact of the proposed silica exposure rules on ICPI manufacturers
and installers.  As you will hear in a few moments, ICPI has always
promoted worker safety while manufacturing and installing our products.

		First, we would like to frame the proposed rules in the context of the
benefits that our products provide to users and to our local
communities.  And then I would like to turn the testimony over to
Mr. McGrath at that point.

		But in the video we are about to display, we clearly see the proposed
rules severely impacting what our industry currently offers to
increasing human health beyond ICPI manufacturing and installation.  The
following short video explains these products and those benefits, and we
can discuss further after the video is completed.  Thank you.

		(Video begins.)

		Sometimes, the things we take for granted can have a great impact on
our lives.  Consider rain, for instance, a basic ingredient for all life
on earth.  Now consider our streets and parking lots.  They get us where
we need to go and wait for our return.  Unfortunately, they create storm
water runoff every time it rains.  While this runoff is being carried
away through curbs and culverts and storm drains, it not only carries
with it oil, grease, and other harmful chemicals, it can create flooding
problems from overloaded storm water systems.

		We are essentially seeing the rain falling on those impervious
services and being carried directly to the receiving water bodies.  So,
in effect, what happens is we have greater runoff volumes, greater peak
flow rates, and greater gluten loads entering our surface waters.

		As we, as a society, continue to develop and we see more and more
development, and more and more people, our water resources are going to
become very stressed if we continue to just develop the way that we have
been developing.

		Consider a better way to manage storm water runoff.  Permeable
interlocking concrete pavement has proven successful at reducing annual
runoff by up to 100 percent for parking lots, roadways, and other low
speed driving areas.

		So, in effect, the permeable pavement is doing a much better job of
replicating that natural environment than a typical impervious surface.
Permeable pavement is going to be a much better environmental option
than using standard asphalt or concrete when you look at it from a storm
water management perspective.

		Permeable interlocking concrete pavement works by using solid concrete
pavers installed on top of an open grated base and sub-base.  This
aggregate base allows water to pass through.  The joints or openings are
filled with an even smaller aggregate, which makes this system 100
percent permeable.  The base and sub-base become a reservoir that not
only filters the water as it runs through the system, it also holds
storm water runoff until it can naturally infiltrate into the aquifer.

		The difference with permeable pavements is that surface is actually a
permeable surface, so it is similar to what you would have in a natural
watershed where you can allow that water to filter through the surface
and eventually infiltrate into the ground.  It will be attenuated and
slowly discharged.

		Because permeable pavement introduces water back into the soil, it can
help communities that rely on ground water for drinking water.  It
offers a variety of advantages to developers, allowing them to reduce or
eliminate retention in detention areas, create more green space, and
maintain predevelopment runoff flows.

		Low impact development is a storm water management and sustainable
site design approach that has a goal of replicating predevelopment,
hydrologic conditions, or achieving a targeted watershed goal through
the use of small-scale distributed green techniques.  Permeable pavement
is a very important part of the low impact development toolbox.  What it
does is allow us to take parking lots, roads, and sidewalks, and make
the surfaces permeable so we can infiltrate or filter the runoff.

		Permeable pavement fits into practically all municipal storm water
management plans.  For example, an older, highly urbanized area may have
almost no drainage capacity remaining in their storm sewers.  Permeable
pavement could help reduce demand for that drainage capacity and
minimize flooding, while it helps municipalities control their storm
water issues created by paved parking lots and low speed driving areas.

		Permeable pavements are an important, low impact development
technique, especially in very highly dense, urban areas.

		Permeable pavement has been at work in thousands of installations
nationwide.  And it is helping people feel good about their environment.
 Permeable interlocking concrete pavement is a simple, commonsense
solution for controlling storm water runoff and its effects.

		Permeable pavements will have a very big part in doing this.  Because
taking care of the environment isn't just up to all of us, it's up to
each of us.

		For more information, visit the Interlocking Concrete Pavement
Institute at icpi.org.

		(Video ends.)

		MR. McGRATH:  As you have just witnessed, our industry is deeply
involved in developing products and systems that reduce runoff and water
pollution.  The products are designed to help state and municipalities
conform to the requirements of the national pollutant discharge
elimination system.  We feel strongly that the proposed OSHA rules and
related cost increases impact our industry's competitive ability to
effectively support national efforts mandated by the EPA, whose mission,
like OSHA's, is to protect human health.

		The proposed rules will erode our industry's ability to support
countless state and local agencies in their efforts to increase the
health benefits we all enjoy from clean drinking water from aquifers,
lakes, and rivers.  Likewise, we are supporting such agencies in
achieving cleaner estuaries and bays that produce seafood.

		Let's return to Mr. Pence's first point about what our industry does
to promote a safe workplace.  ICPI educates manufacturers and
contractors on workplace safety.  Since 1996, more than 25,000
installers have taken the ICPI concrete paver installer course.  A
portion of the course focuses on safety, providing information on
implementing company safety programs and how to avoid typical
construction hazards.  The course specifically addresses using personal
protective equipment for protection against hazards on job site dust
inhalation.

		We recognize that the proposed rules mean that installers wear
respirators continually during -- due to the nature of ICP construction
and other construction tasks as well.  The un-intending consequence will
be workers not able to instantly shout or hear warnings to fellow
workers to avoid accidents.

		As noted in our written testimony, we ask that OSHA not change the
current PEL and instead help us educate more installers about silicosis
and how to meet the current regulations.  OSHA appears better positioned
to enforce current regulations in support of our industry, and we ask
you to do just that.

		Let's turn to the manufacturing side of our industry.  Paver plants
mix containerized cement, pigments, and aggregates with water, and use
machines to form concrete paving units.  The units harden for 24 hours,
then are inventoried outside the plant for shipment to a job site.  With
regard to plant dust control, practically all manufacturers sweep
factory floors to remove production debris.

		There are no other viable options to removing debris.  Air pressure
spraying is useless because it increases dust concentrations, pushing it
to other locations.  Spraying likely doesn't reduce respirable silica
concentrations.

		Almost all plants operate vacuum devices to remove dust from specific
manufacturing processes that generate it.  However, their use depends on
plant design, production demand, and the season.  Local micro climatic
winds are used to reduce dust concentrations as most plants have large
lift doors open to the outside air at least part of the year.  In warm
climates, the doors are open almost all year.  There are locations
within factories where vacuum collection is simply not feasible.  It
cannot be engineered.  Respirators are used by employees in these
places.

		While ICP manufacturers make efforts to control dust, the cost for
compliance to the proposed exposure limits are significantly higher than
OSHA estimates in the rationale for the new rules.  One ICP manufacturer
reported it would cost $150,000 to acquire and install highly efficient
plant vacuum and water dust control systems.  Other manufacturers have
reported similar burdensome costs for compliance to the new proposed
regulations with no assurance that the expense will reduce the
likelihood of workers contracting silicosis.

		Like with installer education, we would like OSHA to take a supportive
role to help us to educate the people who manufacture our products.
This would be far more effective than an adversarial role that OSHA
would certainly create by instituting exposure limits that in most cases
are simply impossible to meet.

		In conclusion, ICPI respectfully submits that the proposed regulations
significantly underestimate productivity losses with related costs while
not specifically quantifying benefits to worker health.  In addition,
the proposed regulations don't recognize the technical infeasibility of
measures required to meet them.

		We respectfully request that the proposed rules be withdrawn and that
OSHA assist us by fulfilling its mission to protect workers' health by
enforcing existing PELs and assisting us in providing education and
training to the ICP industry.  Thank you for your kind consideration.

		JUDGE PURCELL:  Thank you for your testimony.  Let me ask you,
Mr. Pence or Mr. McGrath, have you all submitted a copy of the video
already into the record?

		MR. PENCE:  I'd address this to the staff.  Do you have that to your
satisfaction?

		MS. KRAMER:  We do, thank you.

		JUDGE PURCELL:  Okay, so no need to make that a separate exhibit.
With that, I'll open it up to questions.  Ms. Trahan, Ms. Seminario?

		MS. TRAHAN:  Chris Trahan with the Building Trades.  Thank you for
your testimony.  I do have a few questions both for the Interlocking
Concrete Paving Institute, as well as, sorry, PCI.  I'll start with PCI.
 I guess what I'm trying to understand is how your business is broken
up.  And maybe I'll just try to summarize how I understand it and you
can correct me if I'm wrong.

		That you have a manufacturing side and you have an installation side.
And the manufacturing side takes place in plants and the installation
side takes place on construction sites.

		MR. TOSCAS:  That's correct, so far.

		JUDGE PURCELL:  And, gentlemen, when you respond --

		MR. TOSCAS:  Oh, this is Jim Toscas.

		JUDGE PURCELL:  Thank you, Mr. Toscas.

		MR. TOSCAS:  Ms. Trahan is correct.

		MS. TRAHAN:  Thank you, Mr. Toscas.  The activities that take place
in the plant from your written comments include creating the precast
units, which a silica-generating task would be to clean the forms, and
sandblasting of those units, and drilling holes within those units to
attach the -- I'm forgetting the word of the things that you hang them
on.

		MR. TOSCAS:  Well, maybe I can --

		MS. TRAHAN:  If you can summarize that and correct me?

		MR. TOSCAS:  Yeah, I can summarize it.  I had mentioned the
sandblasting because that is by far the greatest source of silica
exposure.  However, as with any plant that handles materials that are
scraped, or abraded, or swept, dust is created.  Plants use, in fact,
very commonly use water to mitigate dust, all types of dust.  This work
is done in a -- these plants are very large as far as the open space
within them, so there is not really the kind of confined space issue.
And the dust levels in the plants are very low.

		However, in the sandblasting, for those types of plants that produce
what we call architectural precast concrete, where there is an extra
premium finish put on it, it could look like brick, or stone, or
anything else, one of the processes used to do this is sandblasting, and
that's where you are generating a lot of silica-containing dust and
that's where we obviously focus our efforts to protect workers more than
any other way.  Otherwise, in the plant, you'll see the typical dust
control measures, you know, people wearing the paper face masks as
they're sweeping the floor.

		Generally speaking, the cleaning of the forms doesn't generate that
much dust.  It's done by, you know, hand scrapers, like an ice scraper,
and the flakes come off are solid.  They are not usually dusty.
Sweeping the floor will, some other activities will.  The production of
concrete within the plant is handled in most cases through a complete
automated batch plant so that the process that could generate dust is
removed from workers and usually contained within the machinery that
creates the concrete.

		So these are all pieces of it.  The other thing is the embedments that
you are alluding to are cast into the concrete.  However, there are
times when in the installation side, if you take the concrete components
out to a construction site and there is some issue with interference or
fit-up problem, there could be some field work done which could include
drilling or sawing the concrete to make it fit.  And in that case, you
have that work site issue of the potential for silica dust at the site.
And then that process is conducted within the, if you will, the control
framework of the contractor that's doing the construction.

		MS. TRAHAN:  I was actually going to try to limit the first part to
the in-plant operations.  And I think you have explained what I guess
are the most exposures on the in-plant side.  Do you have exposure data
for the sandblasting operations or some of your member companies?

		MR. TOSCAS:  I believe some of our member companies have tracked
exposure.  PCI doesn't collect that information from them.

		MS. TRAHAN:  Would it be possible to request that information so you
could provide it to the record?

		MR. TOSCAS:  Yes, what we could do and we will do in response to your
request is to ask, put a bulletin out to our members and ask if they
have data that they have collected that they'd be willing to share with
us, and therefore with you.

		MS. TRAHAN:  Thank you.  You talk about respiratory protection
programs being I place.  Are they in place for people other than the
folks who are doing the abrasive blasting?

		MR. TOSCAS:  No, they are not.  The blasting is typically done out in
the yard, relatively far from the rest of the plant.  They use distance
as a matter of isolating the work area.  The work areas are not usually,
although on a couple of occasions it is done within a building for
several reasons, not just this, but mostly it's out in the yard where
just the distance from the other workers is what isolates them from
exposure.

		MS. TRAHAN:  And for the respiratory protection programs for those
workers who are engaged in abrasive blasting, is medical surveillance
conducted?

		MR. TOSCAS:  Not as a rule, although that could be a question I could
add to my inquiry to see if anybody is actually doing medical
surveillance.  It's certainly not the norm.

		MS. TRAHAN:  And just to add to that, if possible, to provide
information on the actual types of tests such as barometry or chest
x-rays for that population of workers.  If they would provide that to
you, I think it would help.

		You talk about a few other operations in your comments and I am
assuming that most of these are actually happening on the construction
site, because I see it as really two separate operations.  There is the
erection of the precast elements.

		How often do the precast components have to be modified in the field?
And I ask that question because some people have told me that in the
ideal situation they don't have to disturb the material once it is on
site and the exposures are minimal.

		MR. TOSCAS:  That's true.  It's not typical for any fit-up work to be
done that involves sawing or drilling concrete in the field.  When that
happens, it is usually because there was an error in the plans.  For
example, there is a pipe coming down and the plans said the hole was
supposed to be here for the pipe and the plant put that hole there, but
the pipe is actually a foot over, so somebody has to drill a hole.

		It doesn't have to be somebody from our industry that does that work,
but somebody does it.  So from the standpoint of controlling exposure,
there is a human being out there making a hole in a piece of concrete.
And that's why I said it's usually done under the purview and whatever
controls that the contractor at the site is applying.

		MS. TRAHAN:  As far as the installation side, that would be a
construction activity.  Have you taken a position on Table 1 and the
controls recommended therein?

		MR. TOSCAS:  We have not taken a position on Table 1.  But if you want
us to delve into it more, we will.

		MS. TRAHAN:  Well, I'm just curious if you think the controls that are
identified according to the task, particularly since you're saying that
the tasks done on the construction site are intermittent, if they would
be appropriate and good enough to keep the workers below the PEL.

		MR. TOSCAS:  That's the consensus of our committee, which are not
experts at this, they're just people that run plants, appear to be that
these were doable, I guess that's the best word to do it.  Obviously, to
the extent it involves investing in major equipment or something, you
know, that brings up the other issue I mentioned before about
enforcement.  People don't mind, at least in our industry, we don't mind
spending a lot of money improving operations, especially if it's going
to improve health and safety, as long as we feel that the industry as a
whole is doing it and not just one or two good guys who say, okay, we're
going to do it, and as a result our prices are going to be higher, for
example, than everybody else's.  And then that's where the enforcement
issue comes in.

		So nothing was technologically undoable.  I think the consensus of the
committee was that these requirements could be met.  There was some
question as whether they were necessary, whether they would actually
result in reduced exposure.  And that's the essence of our testimony.

		MS. TRAHAN:  Thank you.  One last thing is you mentioned enforcement
activity on one of your member sites where OSHA came in and including
air sampling.  I was wondering if you could provide details on the
results of that air sampling and what was looked at for the record.
This was, I believe, an in-plant activity.

		MR. TOSCAS:  If would help if maybe afterwards you can tell me
specifically what you're looking at.

		MS. TRAHAN:  It's on Page 11.

		MR. TOSCAS:  Page 11, okay.

		MS. TRAHAN:  The last paragraph of your --

		MR. TOSCAS:  All right, thanks.

		MS. TRAHAN:  Thank you.  For the Interlocking Concrete Paving
Institute, you mention on Page 3 of your comments that you conducted a
member survey where you expand upon some of the results you got.  In the
member survey, how many of your members were surveyed?

		MR. McGRATH:  Well, this was actually --

		JUDGE PURCELL:  Please identify yourself for the record.

		MR. McGRATH:  Oh, I'm sorry.  This is Charles McGrath.  This was a
combined survey with the National Concrete Masonry Association, so we
have a lot of similar members, so we did a joint survey, together.

		MS. TRAHAN:  Was that a paper survey, an internet survey?

		MR. McGRATH:  I believe it was an internet survey, but they actually
collected the results of that survey and this was just some of the
comments from that survey.

		MS. TRAHAN:  Do you know anything about the sample size or the
statistics of respondents?

		MR. McGRATH:  No, but I can put that in my comments after.

		MS. TRAHAN:  Yeah, because I was curious like how many of your members
out of a total were asked to respond, the number of responses, and
how -- it helps establish the validity of the information collected.
And do you have a survey instrument for that survey?  And, if so, is
that something that could be provided to OSHA and any results from that
survey other than the summaries?

		MR. McGRATH:  Well, since it is a joint survey with the National
Concrete Masonry Association, I would have to ask them if it was okay
for us to provide that.  But I would assume that would be fine.

		MS. TRAHAN:  I might have asked them about their survey, I don't
remember.  It's been three weeks.

		MR. McGRATH:  Yeah, they testified on Monday.

		MS. TRAHAN:  That was a long time ago.  And the last question I had
for you is if there was -- you identified, well, it's not the last
question.

		JUDGE PURCELL:  Are we coming close?

		MS. TRAHAN:  Yeah.  I guess you identify a list of tasks that you
identify as high exposure tasks in your industry.  And what I was
wondering is if you had any exposure data that shows that the exposures
or the exposure profiles would be different from what was identified in
Chapter 4 of the PEA?

		MR. McGRATH:  Well, I don't know what Chapter 4 of the PEA is.  But
there were a number of items that we had identified that aren't in Table
1.  And, really, more our concern is that, you know, those be included
so we know where OSHA stands as to those activities and how we should
properly protect our workers.

		MS. TRAHAN:  Yeah.  I guess when I looked at the tech-feas for the
standard, I looked at the preliminary economic technical feasibility
assessment document, which is called the PEA for all the people in the
room.  And they talked about a lot of the tasks that I think you have
listed here and the feasibility of those tasks.  So I don't know if you
had a chance to review that.

		MR. McGRATH:  No.  No, I haven't.

		MS. TRAHAN:  Do you have any exposure data on those tasks?

		MR. McGRATH:  It's very limited, because most of our contractors are
small, like 10 or less people, so they typically don't have, you know,
an internal or a hygienist monitor them as they go through doing these
tasks.  But it's something that we, you know, we want to do more
research on and educate more of our members and contractors about.

		MS. TRAHAN:  Okay.

		MR. McGRATH:  But, really, the biggest item is cutting, which has been
talked a lot about.

		MS. TRAHAN:  Yeah, I think that's been pretty well characterized.

		MR. McGRATH:  And, you know, really we have been, you know, pushing
our members to both use water or vacuum-based cutting machines.

		MS. TRAHAN:  Well, actually, that reminds me, what are the -- the
pavers that are cut, what are they made out of?  Concrete?

		MR. McGRATH:  Yes.

		MS. TRAHAN:  Do you know the silica content or a range of content of
the concretes of the pavers?

		MR. McGRATH:  Dave, do you know that?

		MR. SMITH:  It's difficult to answer because the aggregates come from
various places and they may have high or low silica content, and the
cement contents vary as well.  But we do know they have silica in them.
The silica content is stated in some MSDS sheets or MS -- safety data
sheets by the individual manufacturers.  Some of them do that.

		JUDGE PURCELL:  Gentlemen, again, I'd ask you to identify yourselves
for the record.

		MR. SMITH:  David Smith.

		JUDGE PURCELL:  Thank you.

		MS. TRAHAN:  I just, you know, if there is something that is
significantly different about pavers than about concrete or brick or
block, that might help inform the record, so maybe that's something
that --

		MR. SMITH:  Yeah, just in response to that quickly, I would say it's
very similar to concrete, as to ready mix concrete.

		MS. TRAHAN:  Okay, thank you very much, I appreciate it.

		JUDGE PURCELL:  Thank you, Ms. Trahan.

		MR. TOSCAS:  Could I add one thing?

		JUDGE PURCELL:  Go ahead.

		MR. TOSCAS:  I forgot one activity we do in the precast concrete plant
that I failed to mention in my list and I wanted to make sure I didn't,
is saw cutting hollow core, which is a long -- produced in a long
continuous --

		JUDGE PURCELL:  Pull the mic a little closer, Mr. Toscas.

		MR. TOSCAS:  And it's wet saw, and it produces virtually no dust, but
it is an activity that I should have mentioned when I listed the
activities.

		MS. TRAHAN:  Okay, thank you very much.

		JUDGE PURCELL:  Ms. Seminario?

		MS. SEMINARIO:  Peg Seminario from the AFL-CIO.  Thank you very much.
I just actually have a couple of questions because Ms. Trahan covered
most of the territory I was going to.

		For both the PCI and the Interlocking Concrete Pavement Institute, for
both of your organizations, you have operations that are both the
manufacturing side and the concrete side, is that -- that's correct for
both organizations?

		MR. McGRATH:  Yes, we have both members that are manufacturers and
what we call installers or contractors.

		JUDGE PURCELL:  Identify yourself for the record.

		MR. McGRATH:  Oh, sorry, Charles McGrath from ICPI.

		MS. SEMINARIO:  And, Mr. Toscas, is that --

		MR. TOSCAS:  This is Jim Toscas.  You said the manufacturing and the
concrete side?

		MS. SEMINARIO:  I'm sorry, the manufacturing and the product side, and
then also the installation side.

		MR. TOSCAS:  Right.  And these can be different companies or they can
be the same company.

		MS. SEMINARIO:  That was going to be my next question as to whether or
not they tended to be integrated companies or separate.

		MR. TOSCAS:  Some of our producers, who are the fabricators, also do
erecting.  And others contract their erecting to specialized companies
who do nothing but erect.

		MS. SEMINARIO:  Mr. Toscas, you mentioned in some of the
manufacturing facilities, that they may be large facilities, at least
the square footage.  Any estimates on the size of employment on the
manufacturing side of those facilities, how many workers are typically
involved?

		MR. TOSCAS:  In the U.S. precast plant, you'll have -- I assume you
mean in the plant itself, not the front office.

		MS. SEMINARIO:  Right, the plant itself.

		MR. TOSCAS:  It can range from 12 to 150.  It depends on the size of
the plant and also depends on the level of production activity that's
going on.

		MS. SEMINARIO:  Okay.  Do you know offhand which NAICS code is that
industry in?  I was trying to -- when I was looking at the list of the
covered industries and just trying to figure out where you might sit.

		MR. TOSCAS:  I honestly don't know the answer to that, but we could
try to find out for you.

		MS. SEMINARIO:  I think that would be, you know, that would be
helpful.  And the same question here for the Interlocking Concrete
Pavement Institute, I think, Mr. McGrath, you mentioned that some of
your installers are very small contractors.  The manufacturing side of
the house, so to speak, how big are those operations?  How many
employees?  Would they be similarly sized or would they be larger firms?

		MR. McGRATH:  Again, they vary depending on the manufacturer.  And we
have seen a lot of consolidation in the manufacturing side.  They could
range as far as somebody in the plant at a facility from -- it's very
automated on the concrete paver manufacturing side.  You might have 5 to
10 people in a plant.  But some of the companies might have 3 to 500
people because they have a number of facilities.

		MS. SEMINARIO:  Right.  And do you have any information, any sense in
your industry how many manufacturing facilities there are, actual member
locations?  What's the size of the industry?

		MR. McGRATH:  Yeah, we have -- I might as Jessica.  Yeah, 400
facilities, but that's in both the U.S. and Canada.  Do we know just the
U.S.?

		JUDGE PURCELL:  You need to say that --

		MS. SEMINARIO:  About 300?

		MR. McGRATH:  Yes, this is Charles McGrath, again.  About 300 in the
U.S.

		MS. SEMINARIO:  Thank you very much.  Are these operations, again,
would they be the same owner/operator for both the manufacturing side
and the installer side, or are they different entities?

		MR. McGRATH:  This is Charles McGrath, again.  I would say 99 percent
are separate companies.

		MS. SEMINARIO:  Okay, that's all the questions I have.  Thank you very
much.

		JUDGE PURCELL:  Thank you, Ms. Seminario.  Ms. Nadeau?

		MS. NADEAU:  Liz Nadeau, N-a-d-e-a-u.  And my organization is the
International Union of Operating Engineers.  There was a comment about
how there would be an erosion of the industry's ability to help states
and agencies producing a safer environment, safer estuaries.  And is
there a formal arrangement?  Is there a cooperative agreement or a
government contract, or is that just something that you have taken upon
yourself, sort of perceiving yourself as helping them?

		MR. McGRATH:  Again, Charles McGrath from ICPI.  There is basically
three permeable pavement systems.  One is made out of asphalt, one is
made out of ready mix concrete, and one is permeable pavers, which are
units that have small rocks between them.  Basically, all three of those
organizations or three of those groups are assisting to create a more
permeable system for pavement.  And that is how we're helping.

		It is, you know, more and more states are putting in storm water
regulations requiring no more pavement on new developments, that they
have to have permeable systems as part of that.  So it's not a formal,
let's say, regulation or grant, it's just more of an effort that states
are putting forward to have more permeable pavements.

		MR. PENCE:  This is Randall Pence.  Let me supplement that answer with
the fact that EPA also does officially list permeable pavers as a best
management practice on its website.  So it is a part of official policy
on EPA going forward with regard to storm water management and its means
for addressing these issues.

		In addition to that, EPA has an active program underway at this moment
to work with certain municipalities around the country to encourage them
to use permeable pavements for this purpose.

		MS. NADEAU:  The picture that you had up at one point showed a
tremendous amount of rainfall and I was just wondering how much rainfall
it would cause to create that amount of water on the pavement?

		MR. McGRATH:  Again, this is Charles McGrath.  It might be better,
Dave, can you tell her how many inches per hour penetrate permeable
pavement?

		MR. SMITH:  This is Dave Smith -- David Smith.  New installations
usually take in between 300 and 800 inches per hour, so way above any
conceivable rainstorm.  So it's a very, very efficient and effective
system.

		MS. NADEAU:  And how does that compare with the normal materials that
are used on roads in terms of the ability to absorb?

		MR. SMITH:  Almost all rainfall that falls on roads and parking lots
ends up as runoff and 95 percent is typical.

		MS. NADEAU:  And how much rain would there need to be in order for the
95 percent to cause runoff?  How many inches?

		MR. SMITH:  Very little, very little, a fraction of an inch.  It's
usually an eighth to a quarter of an inch of rainfall has to fall and
then the regular impervious surfaces generate runoff.

		MS. NADEAU:  Thank you.

		JUDGE PURCELL:  Thank you, Ms. Nadeau.  Any further questions from
the audience?  I don't see any hands.  I'll turn it over to OSHA.

		MR. PERRY:  Thank you, Your Honor.  This is Bill Perry.  And first of
all, I'd like to thank you all for wrapping up our hearing late on a
Friday.  I really appreciate your patience sitting and waiting for your
turn.  It has been very helpful testimony.  So we'll turn it over to
Patti Downs for a few questions.

		MS. DOWNS:  And given that it's after 6:00 on Friday, I'll try to
limit my 3 pages of questions.

		JUDGE PURCELL:  I know they thank you and I do, too.

		MS. DOWNS:  And this is Patti Downs.  I just want to start with the
ICPI.  Kind of a little housekeeping issue.  You state in your written
comments the following observations suggest improvements and additions
that OSHA should make to Table 1 with specific respect to ICP.  And I'm
not sure if it's the formatting in the table maybe when you submitted it
online and it was converted to Adobe, I couldn't find any changes.  It
appeared that some of the cells had been cut off, but the only
differences I noted were drywall finishing and earth moving with heavy
equipment was omitted.  Is that the way you intended it?

		MR. PENCE:  No.  This is Randall Pence.  We anticipated that when we
saw how it came out.  It is a formatting issue, a technical issue.  ICIP
is participating in the SIC coalition, Construction Industry Safety
coalition, so their updated information that they submitted already is
correct.  Please use that in place of.

		MS. DOWNS:  Okay, all right.  Thank you.  In your written comments,
you also list the 12 activities for setting pavers.  I know Ms. Trahan
touched on a little.  One of those that you list as having a potential
to expose workers to silica dust is excavating.  We had some testimony
earlier, I believe, last week, that excavating isn't always a
significant source of silica exposure, it really depends on the soil
content, how much you disturb it, and how deep you dig.  Can you just
please give me your thoughts on that?

		MR. SMITH:  David Smith, here.  I would concur with your observations.
 When excavation involves rock and certainly with blasting, clearly
there is dust and possible silica exposure.  But generally excavating
does not present a risk.  Perhaps if it is very dry, maybe there is
dust; but, in most cases, the soil is damp beneath the surface of the
earth and there is not much dust.

		MS. DOWNS:  Do you typically have to or do you occasionally have to
blast rock or go that deep in order to place pavers in these drainage
systems?

		MR. SMITH:  Generally, no.

		MS. DOWNS:  Okay.

		MR. McGRATH:  There is a case when --

		JUDGE PURCELL:  Please identify yourself.

		MR. McGRATH:  I'm sorry, this is Charles McGrath.  There is a case
when we replace let's say a concrete driveway with concrete pavers,
there would be concrete dust from that excavation.

		MS. DOWNS:  Okay.  So just from breaking up whatever existing concrete
there is and removing it?

		MR. McGRATH:  Right.

		MS. DOWNS:  Okay.  In your written comments, you also say that wet
sawing, wet cut sawing has a potential to reduce silica exposure levels
to the current standards, but has yet to be proven to be able to reach
the proposed levels.  And you say the same thing for vacuum saws.  Do
you have data to support this or is this kind of speculation and your
own thoughts?

		MR. SMITH:  We have asked --

		JUDGE PURCELL:  Identify yourself.

		MR. SMITH:  David Smith.  We have asked our contractor members to
provide data.  We got a few data points, not enough to say that we could
reliably say we can meet the new proposed standards or rules.  So we're
not confident based on the limited data we have.

		MS. DOWNS:  And have you guys shared any of that data?  Did you submit
it into the docket at all or can you share it?

		MR. SMITH:  We'd have to ask the people who provided it.

		MS. DOWNS:  Okay.  We also heard earlier through a couple of other
industries that when they add wet cutting to their process, they have
actually had an increase in productivity and that's because they plan
their jobs and do all of their cutting at once.  I know in your written
comments you say that you actually anticipate a 50 percent productivity
penalty -- it must be Friday.  Can you just talk a little bit about
that and do you think it's possible to plan your cuts in advance so you
can take care of them all at the same time and not have to go back and
forth, back and forth, as you say in your comments?

		MR. SMITH:  David Smith here.  The nature of the actual paving that
occurs precludes the ability to cut everything at once.  The pavers are
installed either manually, one at a time, or with machines that pick up
about a square yard in the final laying pattern and place them every 20,
30 seconds.  And so as the paving progresses to the opposite side of the
pavement, that edge of the paving is resolved either cut or uncut just
as it happens.  And so that cutting has to be done at the point of
getting to the edges, if you will, or getting to the ends or edges of
the pavement.

		MS. DOWNS:  Okay.  But you can't figure out in advance if you have X
number of feet, and your pavers are going to take up this many, and you
need a piece that's three or four inches long to finish it?

		MR. SMITH:  No.

		MS. DOWNS:  You don't really know that in advance.

		MR. SMITH:  No.  The reason is the edges which are typically concrete
curbs are never placed exactly.

		MS. DOWNS:  Okay.  Let's see, you also talk a little bit about joint
sand stabilizers and add mixtures that you use.  Can you tell us a
little bit about those, what they typically are, how they work, how you
activate them?

		MR. SMITH:  Yeah, they are generally -- David Smith.  They are
generally polymer substances that are activated with water.  A lot of
them are in the acrylics family.  When I say activated by water, imagine
the pavers being laid out.  The joints are empty.  The joints have this
sand with these polymer substances into them.  They are generally swept
into the joints.  And then a very light spray is put on the surface and
that activates the materials, the polymer materials mixed in with that
sand and causes it to stiffen.

		The reason why that's done many times is to prevent erosion, say from
downspouts or from concentrated flows.  It also helps mitigate weeds and
ants.

		MS. DOWNS:  How long does it usually take for that to set up?

		MR. SMITH:  Twenty-four hours.

		MS. DOWNS:  Okay.  Is it possible then to dampen the sand before you
sweep it into the joints?

		MR. SMITH:  No.  What happens is because the polymer materials is --
David Smith, again.  Because the polymer material is sticky, if there is
any of it on the surface of the pavers and it is dampened, it sticks to
the surface of the pagers.  And so one has to, frankly, very painfully
take a wire brush and scrub it off.  Generally, it is put into the
joints, the surface is swept clean, and then dampened.

		MS. DOWNS:  Okay.  And then you also state in your written comments
that it would be difficult to restrict access among trades when you guys
are on work sites.  What types of other workers do you usually have in
your job areas?  I can't imagine you wanting people to walk through
where you have just laid aggregate or just tamped down sand.

		MR. SMITH:  Correct.  Where we see trades, if you will, interfere or
at least come into where we are placing sand and compacting pavers,
which does, particularly if there is sand in the joints, generates dust.
 There is kind of this desire perhaps, maybe beyond desire by other
trades on the site to use the pavement immediately, because unlike ready
mix concrete or asphalt, as soon as it is put down, it's ready to use,
so they want to put their trucks on it, put their materials on it.  They
are envious of it.

		MS. DOWNS:  Great, thank you.  And I just have a couple of questions
for Mr. Toscas and then I'll wrap up my part.  You make a
recommendation in your written comments that OSHA should clarify the
performance option and allow an employer to reduce or suspend monitoring
when it is determined that it is infeasible for them to reduce the
exposure below the PEL and they have an adequate plan for respiratory
protection in place.

		I'm just curious as to what type of evidence you think would be
appropriate for an employer to show and exactly how you think they
should be exempted from the monitoring?

		MR. TOSCAS:  There would be probably something where they would put a
proposal in and they would have to, on a case by case basis, justify
with appropriate measurements and data, and basically sit down with OSHA
and say, you know, here is what we're proposing for this particular
situation.  Just to make that a possible option is what we're really
asking for.

		MS. DOWNS:  Okay.  So submit some sort of request for a variance or a
waiver?

		MR. TOSCAS:  Well, a variance based on the specifics of a particular
situation versus the one size fits all that says everybody has to fit
into this box.  To accommodate, open up the avenue for innovation and
some new ideas on how to address a problem or to also allow for
those -- we expect here and there, there will be a situation where some
of the technological options may be technically feasible but just
economically would destroy the whole operation.  And to sit down and
say, all right, let's work out a plan that gets us where we're trying to
go, you know, OSHA and the company.  Do you see what I mean?  It's just
we're asking for the flexibility for that as an option.

		MS. DOWNS:  Okay.  So then you're not saying that it should be
something on a permanent basis due to advances in technology, that it
should be revisited to look at maybe future engineer controls and the
possibility of that or --

		MR. TOSCAS:  Well, I think what would happen if we did what I
suggested or what we're suggesting is that as new advances and ideas
came up, they would become approved, if you will, on a certain case
because of, wow, this is great, no one thought of this before, and it
wouldn't take long for other people to catch on.  And then, of course,
OSHA could update its own approach to say this is a new approach that we
now have enough information where we can support it.

		MS. DOWNS:  Okay.  And then my last question, you stated that OSHA
considers respiratory protective equipment as a last resort, after all
possible engineering controls or work practices have failed to achieve
the PEL.  And you say that there is simply no precedent or rational
basis for such a regulatory approach.

		Can you please elaborate on that, especially considering that we have
included the hierarchy of controls in almost every rulemaking?

		MR. TOSCAS:  Well, I guess, okay, I think that the flavor that we got
from the proposed rule was that the impetus would be for technological
solutions that would reduce the entire environment.  You know, actually,
I think it was Mr. Jones was saying attack the problem at it source and
make the work practice clean.  That's great.  And we do this at our
plants, you know, there is good, sound practice.

		The question is, though, that that's not an OSHA thing anymore.  You
get into environmental.  You're getting into other types of things that
maybe there should be legislation on.  So this is really aimed at, all
right, within the constructive, what OSHA's mission is, what's the
appropriate approach.  And I think what we are reading -- may be
reading between the lines and I apologize if we misread it, was that the
structure of the proposed rule, the way it approached appeared to say
that every technological option should be exhausted before you would
resort, if you will, to respiratory protection.

		And we're saying that there should be a mix that depends on the
situation which could be, there could be technical factors, economic
factors, factors that we sitting here couldn't even anticipate.  But
rather than put a bias in that says that, you know, essentially
respirators are -- I understand what Table 1 is saying, but it seems to
be that, you know, in your words, don't line up with what Table 1 is
saying.  You know the words seem to imply that the regulatory philosophy
is to exhaust all feasible technological aspects prior to, you know, and
then if that fails, look at respiratory protection or some other
personal protection option.

		And if that's a misreading of your philosophy, then accept my
apologies.  But that's the way we read it.  And so the comment was
predicated on that interpretation.

		MS. DOWNS:  Great.  Thank you, gentlemen.

		MR. PERRY:  Neil?

		MR. DAVIS:  Yeah.  Neil Davis.  I just have a couple of questions for
ICPI.  You have these operations listed.  And in the tamping part, is
that a handheld tamper?

		MR. McGRATH:  Typically not.  Typically, we use a compactor.

		JUDGE PURCELL:  Identify yourself for the record.

		MR. McGRATH:  I'm sorry.  Charles McGrath from ICPI.  Typically, we
use a compactor.  And on the edges, we'll use a tamper.

		MR. DAVIS:  Okay.  Is that handheld or is it a vehicle?

		MR. McGRATH:  Sometimes, they're like a jack that goes along the edge
when you can't use a larger compactor.

		MR. DAVIS:  So you were describing the operations and some were small
scale and done without vehicle, and some are large scale and done with
vehicles.

		MR. McGRATH:  Yeah, again, Charles McGrath.  Seventy-eight percent of
our industry is residential, so that means patios, driveways, walkways.
Typically, that's not done using mechanical equipment, because that's
usually for large jobs like ports and parking lots, and those type
things.

		MR. DAVIS:  Thank you.

		MR. BLICKSILVER:  Bob Blicksilver.  Just one question, maybe a
follow-up for ICPI, please.  On Page 11 of your written testimony, and
also I think you mentioned it in your oral testimony that one ICP
manufacturer reported it could cost $150,000 to acquire and install
highly efficient vacuum and water dust control systems.  Would that type
of system be typical of your manufacturers?  Where would you place that
in the ranges of costs that you received in response to your survey?

		MR. McGRATH:  I refer to Dave.

		MR. SMITH:  I would place that in the midrange.  We have asked,
through survey and just personal communications, some of our
manufacturing members what kinds of costs would they be looking at on a
per plant basis to put in more vacuum controls, more dust controls.  And
the 150, the 150,000 is a midrange.  I do recall hearing numbers larger.
 And, of course, several of our members I would say, you know, a
majority of our members have more than one plant manufacturing concrete
pavers.  So that would be multiplied.

		JUDGE PURCELL:  For the record, that's David Smith.

		MR. SMITH:  Yes, David Smith.

		MR. BLICKSILVER:  Okay.  So you would say that this -- does this
actually represent the incremental cost associated with complying with
OSHA's proposed rule?  That's really what I'm wondering.  Or is this an
overall cost for dust control in these manufacturing plants?

		MR. SMITH:  The latter.

		MR. BLICKSILVER:  Okay.  You indicated -- a final question or
request, you indicted that you were going to review the record and
update your preliminary data.  I'd request that you return to us or
submit into the record median values.  You mentioned you believe it's a
midpoint.  If you could please check the range of estimates that you
received, and if there is any follow-up work as well on the survey data
for post-hearing comments, provide median values for us, again
incremental to what they are currently doing, incremental in relation to
the OSHA proposed rule.

		MR. SMITH:  Yes, we can do that.  Again, as Charles McGrath said, the
survey was done in conjunction with NCMA, so we'll check with them and
hopefully we can get data back to you that's meaningful.

		MR. BLICKSILVER:  Sure, thank you.  That's all.

		MR. PERRY:  This is Bill Perry.  I just have a question or two.
Mr. Toscas, I just want to clarify, your remarks both in your written
submission and your oral testimony here regarding the science behind
OSHA's proposal, that is the health science, our assessment of risk, and
the basis for our proposed PEL, is that pretty much derived from the
position of the ACC, American Chemistry Council, or did your
organization do any independent --

		MR. TOSCAS:  That's just from reading the impact document, how the
studies were described there.  And the way we interpreted that was that
data from several other studies that were generally related but not
specific to this type of industry, including from Japan and elsewhere,
were modeled and there was an extrapolation in a downward direction from
where the actual data for the studies existed.  And modeling, of course,
is, you know, hard as much as science, and there is nothing wrong with
extrapolating downward, but it carries with it, and if, again, if that's
not what you did, then what I'm about to say doesn't apply.

		But when you extrapolate downward from the actual data, you are
carrying with it some assumptions, one of which is that the model holds
at lower levels when there is no information.  A lot of times, the human
body's response to certain insults asymptotically decreases, not
linearly, when it gets to low levels.

		And then implicit in that is that there is no safe limit.  And that's
okay.  That's not an invalid regulatory position.  But it has
consequences and when you, you know, now if we're wrong about that,
because we're not experts.  You know, we're experts at making concrete,
not at studying epidemiology.

		MR. PERRY:  I just wanted to clarify whether the, you know, your
association actually looked at what we did and did an assessment.  It
sounds like --

		MR. TOSCAS:  No, we didn't do an assessment, for example, to retain
somebody that's a professional in this area to examine it.  This is our
impression from the description that was given.  And if --

		MR. PERRY:  Okay, very good.

		MR. TOSCAS:  So take it at face value.

		MR. PERRY:  All right.  That's helpful.  I appreciate that.

		JUDGE PURCELL:  Try not to talk over each other.

		MR. PERRY:  And then I think on Page 5, you kind of touched on this I
think.  Going back to your sandblasting operation, because in your
written statement, you are saying that our proposal would essentially
require you to enclose the sandblasting operation in a building in order
to I guess prevent other employees from being exposed to dust generated
in that operation.

		But then a little while ago I heard that, in fact, your members do use
distance as a means of preventing bystander exposure.  And so in essence
you do operate or they do operate kind of a controlled access area.

		MR. TOSCAS:  That statement in the written testimony, and I think I
orally repeated it, was that in a smaller plant, which is more tightly
configured, that would be the case.  In a large plant where you have
acres of space, it would be very easy to put the sandblasting operation
farther out where that would not be an issue.  Now it could be an
environment issue.  That's a whole different animal.

		MR. PERRY:  Right.  Well, what's the practice of the smaller plants
now to minimize exposure of other workers when there is blasting
operations going on?

		MR. TOSCAS:  Well, that's an interesting thing.  Generally speaking,
they avoid working anywhere near that area.  Even if people had been
working there, they leave while sandblasting is going on.  So they
schedule it at a time when the only people there are the ones that are
directly involved in the process.  And it's not the most desirable
situation, but that's what they have to do because they don't have
anywhere else to place the operation.

		MR. PERRY:  Okay, that's --

		MR. TOSCAS:  Even building -- I saw one plant that was so small that
even if they had built a confinement structure, that same area was used
for other things when they weren't sandblasting, because they didn't
sandblast that often.

		MR. PERRY:  Sure.

		MR. TOSCAS:  Okay.  So when they had a project where they needed to
sandblast, they scheduled it maybe late in the afternoon, everybody left
and they sandblasted.  And then they put it away and they went back and
used that same area for something else.  So that's not a common thing.
Most plants are big enough to handle the distance issue.

		MR. PERRY:  Okay, very good.  I appreciate that.  That really helps.
That's all that I have.

		MS. KRAMER:  This is Allison Kramer with the Office of the Solicitor.
You may be relieved to know that I have narrowed down my questions to
one topic.

		UNIDENTIFIED SPEAKER:  But how many pages?

		MS. KRAMER:  One, now.  This is for the Interlocking Concrete Pavement
Institute.  I believe you mentioned earlier that you have some Canadian
members, perhaps a number of them.  Do you know if any of those members
have plants or facilities in British Columbia?

		MR. McGRATH:  Yes, we do.

		JUDGE PURCELL:  Identify yourself.

		MR. McGRATH:  I'm sorry, Charles McGrath.  Yes, we do.

		MS. KRAMER:  Do you know whether those companies are having any
difficulty meeting British Columbia's occupational exposure limits for
crystalline silica?

		MR. McGRATH:  I can't answer that question.  I don't know the answer
to that question, I should say.

		MS. KRAMER:  Would you mind looking into that and if you find out an
answer, submitting that to our post-hearing comments?

		MR. PENCE:  Randall Pence.  Is it affecting construction or general
industry, or both in British Columbia?  What are we looking for?

		MS. KRAMER:  We believe it's both.

		MR. PENCE:  You believe it's both?

		MS. KRAMER:  We do.

		MR. PENCE:  Okay, thank you.

		MS. KRAMER:  And, gentlemen, that is my last question.

		JUDGE PURCELL:  And just for the record, I'm not sure either
Mr. McGrath or Mr. Pence said they would submit that information.

		MR. McGRATH:  Well, we will check with them.  You know, I don't know
if there is any data, that's really the question.  But I will check with
our British Columbia members.

		JUDGE PURCELL:  Okay, thank you very much, Mr. McGrath.  That
concludes the testimony of the scheduled witnesses this afternoon.  I
appreciate all your patience and your effort in preparing for the
hearing.

		I'd like to remind participants who filed notices of intent to appear
that they may submit additional evidence and data relevant to the
proceeding within 45 days of today, which will be Monday, May 19th.  At
that point, the record will close for the receipt of information and
data, but will remain open for an additional 45 days, until Thursday,
July 3rd, for the submission of final briefs, arguments, and summations.

		Early next week, OSHA will send out information to hearing
participants explaining how to file post-hearing submissions.  The
Agency will also publish some post-hearing submission instructions on
its website at   HYPERLINK "http://www.osha.gov/silica"
www.osha.gov/silica .

		This public hearing on the proposed rule on occupational exposure to
respirable crystalline silica is concluded.  Let the record show that
all persons and organizations who filed timely notices of intent to
appear have been extended the opportunity to do so.  Let the record also
show that in every instance following the prescription of oral -- I'm
sorry, the presentation of oral comments and testimony, an opportunity
has been extended for questioning of the witnesses by public hearing
attendees and members of OSHA's panel.

		On behalf of the Department of Labor, I wish to publicly thank all
these people who gave their time and thought, and expended their own
funds to attend and contribute to this hearing.

		Further, I want the record to reflect the department's appreciation
for the promptness, preparation, and attention exhibited by the OSHA
panel.

		To all participants, thank you for your interest in this important
matter.

		MR. PERRY:  Your Honor, if I may?

		JUDGE PURCELL:  You may.

		MR. PERRY:  Late breaking news, I'm terribly sorry.  Assistant
Secretary Michaels has asked me to just pass on a message actually to
all the participants of this proceeding, even though most of them I know
are not here right now, but they will read it in the transcript.  But he
very much appreciates and thanks everybody who spent time with us the
last three weeks giving their testimony, answering questions, and
debating some of these issues back and forth.  We learned a great deal
over the last three weeks that we would not have been able to learn any
other way.

		So Dr. Michaels just wanted everybody know that and know how much the
Agency appreciates and values the input from all the participants.  So
thank you.

		JUDGE PURCELL:  Thank you, Mr. Perry.  And with that, the hearing is
adjourned.

		(Whereupon, at 6:36 p.m., the hearing was closed.)

C E R T I F I C A T E

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

INFORMAL PUBLIC HEARINGS FOR THE PROPOSED RULE

ON OCCUPATIONAL EXPOSURE TO

RESPIRABLE CRYSTALLINE SILICA

April 4, 2014

Washington, D.C.

were held as herein appears, and that this is the original transcription
thereof for the files of the United States Department of Labor,
Occupational Safety & Health Administration.

			      						         					____________________________

			         	ED SCHWEITZER

			         	Official Reporter

_________________________

		Continued

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