Eighteen brick plants in England and Scotland were studied, chosen and
studied between 1990 and 1991.  There were 1,407 respirable dust
measurements which were analyzed for quartz and used for calculating
exposure response.

		The medical study was of 1,925 workers where medical exams included
medical and occupational histories and chest radiographs.  Radiographs
were interpreted according to the ILO guidelines for pneumoconiosis, and
workers were grouped into 12 occupational groups and used in a job
exposure matrix for estimation of cumulative exposure for each worker.
So this study does look at dust exposure and respiratory disease.

		There were eight workers identified with ILO Category 2/1 or greater.
The convention in the United Kingdom is to use Category 2/1 as the
threshold for changes consistent with pneumoconiosis because it is
considered to better avoid confusion with subtle changes under the
radiograph of non-occupational diseases that could mimic a
pneumoconiosis condition.

		Seventeen workers had ILO Category 1 small opacities considered by the
researchers as slightly abnormal, but with the possibility that the
pathology observed was not caused by dust exposure.  Thus, there were a
total of 25 workers, or a 1.4 percent prevalence found to have small
radiographic capacities ILO Category 1 or greater.

		Researchers point out that this prevalence is much less than they
observed in studies of surface coalminers, 4.4 percent; crushed stone
workers, 4.7 percent; and even greater than the non-dust or listing
non-dust exposed postal and telecommunication workers, 2.7 percent.

		Prevalence percentage is greater in what Forbes (ph.) had been found
many other studies of non-dust exposed workers in persons from the
general population.  And there are some papers that OSHA should look at
regarding that; recently Meyer in 1997 did a meta-analysis on the
subject; Dr. Epstein from the University of Pennsylvania in 1984, and
Bob Castellini of NIOSH in 1985, a study of what were termed blue collar
workers.

		Using the data from the Love et al. study, an exposure-response
relationship for a non-smoking worker, age 40, and exposed to respirable
dust concentration of .4 mg/m3, the UK PEL at the time, for 20 years,
would have a 2.1 percent risk of developing ILO category greater and
equal 1/0.  This level is equivalent to a cumulative exposure of 8
mg/m3, which is twice the allowable cumulative concentration at the
current gravimetric equivalent OSHA PEL of .1 mg/m3.

		The last of these studies is a study by Dr. Patrick Hessel, and it
was sponsored by the Brick Industry Association.  It was completed in
May 2006 with a report to the BIA.  The study was published in an
abstract, in the journal of CHEST, and presented the poster at the 2007
meeting of the American College of Chest Physicians, but a full paper
was never published.

		The study included workers at 13 plants producing structural clay
brick from a total of 94 facilities operated by members of the BIA.
Workers were selected for the study through a process which took account
of the company size, the geographic location, employee age, and
availability of chest radiograph.  Two NIOSH B readers read the
radiographs from 701 workers.  When the two primary readers disagreed on
the interpretation of a film, the chest x-ray was sent to a third reader
for a median, to arrive at a median reading.  None of the chest x-rays
of the 701 workers were consistent with silicosis.  These results are
consistent with the course of other studies in the U.S., United Kingdom,
and Canada.

		This table shows the 11 -- the studies I have discussed with number of
plants, number of workers examined radiographically, and number of
silicosis cases.  In sum, what the data show is that while the studies
found a small prevalence of silicosis in the brick industry, the
incidence of those cases bear no resemblance to what was occurring in
other silica-using industries as a result of workers exposed to
crystalline silica either in terms of number of cases or severity of
findings.

		Indeed, the silicosis prevalence in the brick industry is well within
the prevalence of changes that has been found in non-dust exposed
populations.  Based on this evidence, it is my opinion that the brick
industry should not be regulated based on a quantitative risk assessment
derived from exposure-response data from other silica-using industries.
The basis for risk assessment for the brick industry should be limited
to the exposure-response studies conducted in the modern clay brick
operations, i.e., the Love et al. IOM study of heavy clay workers in the
United Kingdom.

		By the way, I looked at the prevalence of these studies.  The total
prevalence in this slide is 0.6 percent, which is lower than any of the
studies that had been done in looking at non-dust exposed workers.  Now,
to be fair, I didn't include the NIOSH, the two NIOSH studies in North
Carolina because they were not different from the controls.  But if I
include those 30 workers, the prevalence becomes 1 percent.

		The variability in the Meyer study was from 0.21 percent to 11
percent.  And these are people that are non-dust exposed.  The 0.2
percent came from the Bob Castellini study.

		Moving to my second point of a focus of risk estimates and study of
Scottish coal workers seriously inflates cases actually observed in the
UK brick workers and cannot be used for quantitative risk assessment.
Miller and Soutar here in the front row from IOM use the risk model
developed in the study of Scottish coal workers by Buchanan et al. to
predict cases of silicosis and compare to actual observed cases in the
studies by Love et al. of UK brick workers exposed to quartz contained
in heavy clays that are commonly used in manufacturing of building
brick.

		Employing the Buchanan risk model for coal workers' predicted risk to
brick workers was extremely overstated when compared to actual cases
observed in the Love studies.  This strongly supports the proposition
that exposures to quartz from these two industries have remarkable
differences in fibrogenic potency.

		We've discussed this study before.  This is the Love study.  But just
to recap, the study used by Miller and Soutar in the comparison with the
Buchanan coal workers was this Love study.  Eighteen brick plants, 1,925
workers examined, 25 workers of 1.4 percent found to have small
radiographic opacities greater than ILO 1/0, 8 were identified with ILO
2/1, 17 workers had ILO Category 1 small opacities considered by the
researchers as slightly abnormal but with a possibility that the
pathology observed was not caused by dust exposures.

		I'll try and speed it up here for you.  This is the Buchanan study,
which was used for the prediction equations.  They came from this study.
 And this was a study of a Scottish quarry that had had very high
exposures to sand -- to quartz due to a result of intrusion of sandstone
into the coal seams and sandstone formations in the roof and the floor
which cut out in the gathering of the coal.

		The Buchanan follow-up study was 547 ex-miners and they had been
examined previously in rounds of examination in the coal, in the IMO
coal study.  Silicosis defined as greater and equal to 1/0, and there
were 203 that progressed at least one category, that's 38 percent, and
of those, 128 of these progressed two or more categories.

		The prediction equations would show that a miner, age 60, at the time
of follow-up, with 15 years exposure to an average concentration of
quartz of .3 mg/m3, the ACGIH quartz limit at the time, would have a 22
percent risk of developing silicosis.

		And this is the curve from the IMO report comparing the Scottish coal
workers with the clay workers.  The results predicted silicosis excess,
greatly in excess of the new few cases observed.  Figures shows that
1,831 men in 8 groups of equal size, an increasing mean cumulative of
respirable dust exposure, quartz exposure, and observed in the group,
frequency observed and predicted for ILO category greater and equal 1/0
and 2/1, and compared that with the brick workers.  So this is the curve
for the predicted at 1/0 for the coal workers, and this is what was
found when actually observed in the brick study.  This is with a 15-year
latency, and this is for the brick study.

		This is a table from the study.  Since the risk are added, the total
of individual risk gives an estimate of total number of cases expected
across a group not stratified by exposure.  Based on the subjects' work
histories and cumulative exposures with a 15-year lag period, the sum of
predicted risk of greater and equal 1/0 is 468, whereas only 26 were
observed in the radiological study of brick workers.

		For Category 2/1, 86 cases were predicted, whereas only 8 were
observed.  As expected, the 15-year lag period reduces the predicted
cases to 331 and 31 for radiographic changes of 1/0 and 2/0,
respectively.  These lag data, too, are still greatly in excess of the
eight observed cases.

		The third point I'll discuss is while cases of lung cancer would not
be expected from exposures to quartz and aluminum-rich clays, there are
no published mortality studies of brick workers that look at cause of
death or lung cancer death.  However, pottery clays are similar to the
structural clays used in brickmaking in that the quartz is occluded in
aluminum-rich layers of bentonite, kaolinite, and illite.

		The Chinese pottery work of Chen et al., both his 1992 study and his
2005 follow-up, as well as the 1992 study, McLaughlin, of these Chinese
sub-cohort is discussed in the OSHA QRA.

		Chen et al., the 2005 study, this follow-up study was a case control
study of the same cohort study by him, by himself and McLaughlin in
1992.  In the 1992 earlier study by McLaughlin, he did find a weak
association for exposure to crystalline silica and lung cancer.
However, the Chen 2005 study found no association of the pottery cohort
after adjustment for PAH, polycyclic aromatic hydrocarbons.

		The Chen nested case control study is considered more robust as it
doubled the cases of lung cancer in the McLaughlin study, 120 versus 62.

		The Chen 2005 study used better exposure data as well with estimates
of average values for each facility, job title, and calendar year,
whereas the McLaughlin study only reported estimated percentages of
respirable dust and silica content of total dust.  The Chen study found
that pottery workers had the highest confounding from PAH levels than
any of the other groups studied, and these were groups of metal miners,
tin, tungsten -- I don't recall the exact metals.

		The relative risk for crystalline silica exposure was found to be 1.1
with a confidence interval of 1.02 to 1.12, without adjusting for the
PAH confounding, the risk of 1.0 with a confidence interval of .96 to
1.09.  A series of studies in this Chinese cohort provides strong
evidence for aluminum-rich clays suppressing any potential
carcinogenesis from quartz.

		Currently, there are some animal studies.  This is a study by Zhang et
al. in 2002.  And I think it, too, shows the role of aluminum-rich clays
in suppressing carcinogenetic.  He examined the effects of coating
silica with aluminum lactate on silica toxicity uptake and
silica-induced DNA damage.  They used appropriately lung epithelial
cells for their test treatment with uncoated quartz and aluminum lactate
coated quartz.  The DNA was assessed using DNA strand breakage.  The
authors concluded that aluminum coating, which could easily occur
naturally, was shown to eliminate the ability of quartz to generate
hydroxyl radicals and exert critical genotoxic effects very likely to
play a role in quartz carcinogenesis.

		This is a study by Knaapen et al., also an animal experimental study.
This was an in vivo study of aluminum treatment of DNA damaging
potential of silica in rat lung epithelial cells.  Rats were instilled
with quartz, 2 mgs, either treated with aluminum lactate or native
quartz.  After three days, the animals were sacrificed, and they did
bronchoalveolar lavage.  The lung epithelial cells were isolated, and
DNA strand breakage was determined by single cell gel of
electrophoresis.  The DNA damage was significantly increased in
epithelial cells from the rats instilled with DQ-12 quartz, whereas no
enhanced DNA strand breakage was observed when quartz was treated with
aluminum lactate.

		The authors concluded the study provides evidence that a modification
particle surface with aluminum lactate prevents DNA strand breakage in
epithelial lung cells from quartz-exposed rats.

		I am just going to briefly mention the subject of pulmonary fibrosis
and lung cancer, but I urge OSHA to revisit the role that pulmonary
fibrosis plays in lung cancer.

		There are consistencies in the observational studies of silicotics
that have less potential for a bias for silicosis as a precursor for an
increased relationship with lung cancer, and this can be seen in studies
by Forastiere that were based on death certificates, Amandus and
Castellan, which were part of the dusty trades workers in North
Carolina, and de Klerk and Musk.

		Coupled with the results of recent meta-analyses studies, available
data provides strong support that the development of silicosis is a
mechanistic step that leads to lung cancer.  And these meta-analyses
were by Erren et al., 2009; Kurihara and Wada, 2004; Lacasse et al.,
2009; Pelucchi et al., 2006; and Steenland and Stayner, 1997.

		In addition, there is support from animal studies that aluminum-rich
clays suppress mechanisms of carcinogenesis.  I mentioned Zhang and
Knaapen.  And OSHA should review the evidence for increased lung cancer
risk found in other pulmonary fibrotic diseases.

		Interstitial lung diseases for which the available evidence suggests
an increased risk of lung cancer, and some of these are very strong
increased risk, including idiopathic pulmonary fibrosis, systemic
sclerosis, systemic lupus, rheumatoid arthritis sarcoidosis, and, of
course, certain forms of pneumoconiosis.  And this was reviewed in a
paper by Mossman and Glenn in 2013.

		In conclusion, it's evident from the medical studies of brick workers
that the risk of developing silicosis from exposure to quartz in brick
clays and shale historically is insignificant at exposure levels that
existed in the past, as well as in more contemporary studies of the
industry and that there is no significant workplace risk from
crystalline silica exposure at the current PEL.

		Using the Scottish coal work equations considered by OSHA to be the
best for risk assessment, the predicted risk of silicosis was seriously
inflated compared to the actual cases observed in the radiological study
of heavy clay workers.

		In my opinion, the only sensible study to be used for setting an
exposure limit for quartz and brick manufacturing would be those of Love
et al.  To use prediction equations from other studies of native quartz,
such as gold miners, coal miners, tin and tungsten miners, as a basis
for occluded quartz and aluminum-rich clays is scientifically
indefensible.

		Regarding lung cancer, there are consistencies in the epidemiological
studies which have less potential for a bias.  These are studies of
silicotics for silicosis as a precursor, for any increased relationship,
lung cancer would support silicosis is a mechanistic precursor, coupled
with the results of meta-analyses studies.  Data provides strong support
that the development of silicosis is a mechanistic step that leads to
lung cancer.  In addition, there is support from animal studies that
aluminum-rich clays suppress mechanisms of carcinogenesis.

		JUDGE SOLOMON:  Right on time.  Are there comments from the peers?
No?  From the public?  Would those of you with your hands up please form
a line and come forward.

		MS. KRAMER:  Your Honor, if I may while they are queuing?

		JUDGE SOLOMON:  Sure.

		MS. KRAMER:  Mr. Glenn, I believe you have a document that includes
both your PowerPoint and your statement?

		MR. GLENN:  Yes.  Let me --

		MS. KRAMER:  Could you pass that over?

		MR. GLENN:  Let me confer with counsel.  Yes, I will.

		JUDGE SOLOMON:  Let the record reflect that there was a certain amount
of pantomime in the last presentation.

		MS. KRAMER:  Your Honor, I'd like to mark Mr. Glenn's combination
statement and PowerPoint as Exhibit 18 and request that it be entered
into the record.

(Whereupon, the document referred to as Hearing Exhibit 18 was marked
and received in evidence.)

		JUDGE SOLOMON:  State your name.  And I know that we know you, but you
have to spell your last name.

		MR. HEARL:  Sure, my name is Frank Hearl.  It's spelled H-e-a-r-l.
I'm with NIOSH.  I work here in Washington, D.C.  I have one question
basically, and that is you talked a lot about the brick industry.  What
do you feel or do you have an opinion about the brick as it is used say
like by bricklayers or by stonemasons when it is being cut, is there a
difference between those exposures and the exposures that you described
from the workplace?

		MR. GLENN:  Yeah, thanks very much, Mr. Hearl.  That's why I did
stress that this is related to brick manufacturing.  When you look at
masons or bricklayers, you will find cases of silicosis at a higher
prevalence in those workers.  I'm not sure why.  It could be that the
quartz that's used in the grout or in the masonry has a higher silica
concentration or has a native silica concentration where the particles
are not coated or it could be that cutting brick could change particle
characteristics.

		MR. HEARL:  Okay, thank you.

		JUDGE SOLOMON:  Next?

		MR. WEISSMAN:  David Weissman from NIOSH.  Dr. Glenn --

		JUDGE SOLOMON:  W-e-i-s-s-m-a-n?

		MR. WEISSMAN:  Correct.  Dr. Glenn, you had mentioned a couple of
references about background rates of abnormal ILO readings in the
general population, and I just wanted to ask a question or two related
to that.

		MR. GLENN:  Sure.  And thank you for the honorary doctorate degree.

		MR. WEISSMAN:  My pleasure.

		MR. GLENN:  I still work for a living.

		MR. WEISSMAN:  So you'd agree that how B readers are used or how
physicians who do ILO classifications are employed is really important.
It's very important, for example, to use multiple readers and medians of
readings, and it is very important for people to be blinded to how
readings are done and that sort of technical detail, correct?

		MR. GLENN:  I certainly do.  And when I had your job, I also had the
responsibility for B reader program, so I can assure you.  Interesting
thing in the Meyer study is variability in the European studies was much
greater than that in U.S. studies, and I think that can be attributed to
the success of your B reader program, and your certifications and
re-certifications of B readers.

		MR. WEISSMAN:  And I would also comment that for the Epstein study,
that was also an issue because there weren't independent readings done.
There were two B readers reading together.

		MR. GLENN:  The other problem with the Epstein study, and I think
another reason he found such a high variability was that those were
films for admission in the hospital.  And, of course, these people
obviously were a select population presenting with other conditions.  So
I don't think his study was one of the better studies, certainly.

		The Castellan study which I mentioned, it was interesting because we
used three readers from the American College of Radiology Task Force on
Pneumoconiosis and some of these people were, you know, of course, the
people who started the program, and they were very expert in reading,
classifying films according to the ILO.

		MR. WEISSMAN:  And in their expert hands, only 3 of 1,422 films or 0.2
percent were ILO classified as 1/0 or greater.

		MR. GLENN:  I believe that's right.

		MR. WEISSMAN:  And you also raised the point of the appropriateness of
the comparison population.  So to have a background that would be
relevant to an evaluation of workers, your general population would need
to be same gender or same age, not dust exposed, correct?

		MR. GLENN:  Yes.

		MR. WEISSMAN:  And that was a problem with many of the studies that
were included in the Meyer analysis, correct?

		MR. GLENN:  I'm not sure about that.  I think -- I'm not sure just how
those group, those studies or people studied were selected.

		MR. WEISSMAN:  Well, it included one study that we have already talked
about that was hospitalized proposals.

		MR. GLENN:  Yes.

		MR. WEISSMAN:  Another study that included people who are office
workers in an asbestos plant, and some other studies as well that may
not have been comparable to workers.

		MR. GLENN:  Yeah, the North American studies, Epstein had an 11
percent variability or 11 percent prevalence, which was the highest.
Castellan had .21.  Kay Kilburn (ph.) in a study had .25.  And then
there were studies in North America by Kennedy and they -- he found 4.5,
4.8, and 2.1 in another study.

		MR. WEISSMAN:  In any event, I guess the point is, is that for many of
these studies, they didn't follow the recommended procedures that you
would use if you were setting up a study and they weren't exactly
comparable to a working population.

		MR. GLENN:  I would have to review, but you are probably correct,
Dr. Weissman.

		MR. WEISSMAN:  Okay, well, thank you.

		JUDGE SOLOMON:  There was no objection, but I have to ask, the
document that you were reading from, is that part of your presentation?

		MR. GLENN:  Yes.

		JUDGE SOLOMON:  The computer?

		MR. GLENN:  Oh, this is a Meyer study.  It's published I think in --

		MS. KRAMER:  Is that in there?

		UNIDENTIFIED SPEAKER:  Yeah, all three of them are in here.

		MS. KRAMER:  Your Honor, we actually have a copy of three of the
studies that Mr. Glenn referred to.  And if this would be a good time,
we'd like to go ahead and mark those and have them entered into the
record.

		JUDGE SOLOMON:  Well, the reason I brought it up was it hadn't been
identified where it came from.  So typically there are two concepts: it
is present recollection refreshed or past recollection recorded.  If
it's recorded, it should be in evidence typically.

		MS. KRAMER:  Sure.

		JUDGE SOLOMON:  So that's why I asked.

		MR. GLENN:  The Meyer study was published in CHEST in 1997, Volume
111, pages 404 to 410.  And the authors were Meyer, Islam, Ducatman, and
Robert McCunney, Dr. McCunney from MIT.

		JUDGE SOLOMON:  Do you want to pass those to me, please?

		MS. KRAMER:  And, Your Honor --

		MR. GLENN:  Well, I don't have them.

		MS. KRAMER:  I have a copy of it right here.  And if it's all right,
I'd like to mark the CHEST publication as Exhibit 19 and have it
admitted into the record.

		JUDGE SOLOMON:  Okay, there is no objection, and it is admitted into
evidence.

(Whereupon, the document referred to as Hearing Exhibit 19 was marked
and received in evidence.)

		MS. KRAMER:  And two other articles, and I'll be quick in deference to
the questioner.  The first one is entitled "Application of ILO
Classification to a Population without Industrial Exposure," and it is
the article by Epstein that Mr. Glenn was referring to earlier.  I'd
like to have that marked as Exhibit 20 and admitted into the record.

		JUDGE SOLOMON:  So admitted.

(Whereupon, the document referred to as Hearing Exhibit 20 was marked
and received in evidence.)

		MS. KRAMER:  And, finally, an article entitled, "Prevalence of
Radiographic Appearance of Pneumoconiosis in an Unexposed Blue Collar
Population."  And that is by Castellan.  That would be marked as Exhibit
21 and is all right with you?

		JUDGE SOLOMON:  Okay.  That is admitted into evidence.

(Whereupon, the document referred to as Hearing Exhibit 21 was marked
and received in evidence.)

		MS. KRAMER:  Great.  Thank you.

		JUDGE SOLOMON:  The reason that I was asking about the document that
he has, is that your statement, Dr. Glenn?

		MR. GLENN:  No, those were papers.  Those are actually scientific
papers that I used in preparing my remarks.

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

		DR. ROSENMAN:  Yes.  Dr. Ken Rosenman, R-o-s-e-n-m-a-n.  Hi, Bob.  I
haven't seen you in a number of years.

		MR. GLENN:  Yes, how are you doing, Dr. Rosenman?

		DR. ROSENMAN:  So my question is, so you presented this data on the
brick manufacturing workers and there was no latency or duration that I
saw in any of your slides or what you heard.  And since we know that
silicosis occurs 20, 30 years after duration or first exposure, I was
wondering if you had any data that would actually allow us to look at
the prevalence of disease in people who were truly at risk?  So I could
do x-rays on people first day and they could be very high exposure, but
without latency incorporated, I have no idea if, you know, there were
any people at risk in those studies.

		MR. GLENN:  Yeah, I would be happy to review those studies,
Dr. Rosenman.  I'm not sure which ones might have had latency or not.
I just had to abstract what I could to get through in the time period.
However, I would tell you, of course, that the ILM study was an
exposure-response study, and you can easily compare it to the OSHA PEL
for silica.

		DR. ROSENMAN:  Well, you can.  But if people have high exposure but
short duration, short latency, you are not going to see positive x-rays
and so it's not going to be useful, and so what percentage of the
population was truly at risk of silicosis in any of those studies.  And
there was nothing presented.

		MR. GLENN:  That could be in my report, in my comments.  I would have
to look.

		JUDGE SOLOMON:  Next?

		DR. GUIDOTTI:  Hello, my name is Tee Guidotti.  The last name is
G-u-i-d-o-t-t-i.  A great deal of your testimony was predicated on the
inhibitory effect of aluminum and alumina on various manifestations
related to cancer risk and inflammation.  And, of course, we know that
for a brief period until it was abandoned for reasons of concern over
fibrosis risk, that powdered aluminum was actually used in practice as a
prophylactic agent and then abruptly stopped because of concern over
respiratory fibrosis of a different type.

		MR. GLENN:  Yes.

		DR. GUIDOTTI:  Are you aware of any studies either based on
epidemiology or otherwise that suggests that either aluminum or alumina
have a protective effect against immunologically mediated effects in the
lung or bronchial inflammation, or infectious disease risk from
opportunistic infections like mycobacteria?

		MR. GLENN:  Such as immune mediated diseases I discussed and related
to increase for lung cancer?

		DR. GUIDOTTI:  But as a protective effect.

		MR. GLENN:  Yeah, I don't.  I do not.

		JUDGE SOLOMON:  Thank you.

		MR. GLENN:  I should say not in studies of humans.  Only those two
studies that I mentioned in lung cells, lung epithelial cells.

		DR. GOLDSMITH:  My name is David Goldsmith, G-o-l-d-s-m-i-t-h.
Mr. Glenn, you paid a lot of attention to the very low or apparently
low levels of x-ray prevalence of pneumoconiosis or silicosis in the
brick workers that you studied.  We have heard yesterday and there has
been some discussion about there being other silica-related diseases,
and you mentioned lung cancer related to silicosis.

		But were you -- the cohorts that you studied, did they look at lung
cancer, did they look at autoimmune disease, did they look at kidney
disease?  Were any of these diseases elevated in those studies of brick
workers, or did you solely look at silicosis?

		MR. GLENN:  Thank you, Dr. Goldsmith.  I didn't -- you said I studied
these workers.  I didn't study these workers.  These are published
reports and published papers in the scientific literature.  The best I
could do was take what they gave me of those.  So I don't recall any of
them looking at chronic obstructive pulmonary diseases or such as that,
kidney disease, any of the other end points that there is discussion of
silica being related to.

		DR. GOLDSMITH:  All right, I appreciate that.

		JUDGE SOLOMON:  Okay, thank you.  Mr. Perry?

		MR. PERRY:  Thank you, Your Honor.  I do have a few questions for
Mr. Glenn.  This is Bill Perry from OSHA.  Okay, I'm going to focus on
the Love report a little bit which, well, I mean you have recommended
that that's what we rely on.

		MR. GLENN:  Um-hum.

		MR. PERRY:  So I'll do that.  So on Page 19 of your testimony,
actually 19 and 20, you present a table that compares a number of
different studies.  It includes the Love et al. study on clay workers,
as well as a number of others.  So the Love et al. study is a
cross-sectional study, okay.

		MR. GLENN:  Yes.

		MR. PERRY:  It was a single session of taking x-rays?

		MR. GLENN:  That's correct.  It was an examination of the workers at
one point in time.

		MR. PERRY:  Okay.  I assume you aren't aware of any prospective or
retrospective studies that have been done in the industry?  I didn't see
any in your testimony.  I assume you would have presented it, if there
were.

		MR. GLENN:  That's correct.

		MR. PERRY:  On either.

		MR. GLENN:  Yeah.  That's the only one, only of the studies that has
exposure response information.

		MR. PERRY:  All right.  So on your table, you don't have a value for
cumulative exposure for 4 mg/m3 years.  But for 2 mg/m3 years, you have
a .9 percent risk of silicosis, radiologic silicosis that you get from
the Love study, which is lower than most of the other studies you have
on the table.  A number of them are retrospective studies, a couple are
cross-sectional.

		But again I think the issue with cross-sectional studies is, as you
know, and we point it out in our health effects chapters, you get
survivor effects.  You don't, you know, you're not following people
through a period of time.  So we actually, I think, classified this
study as one that did not look at retirees, that did not really reflect
anything like a lifetime risk.  So would you agree with that assessment?

		MR. GLENN:  I would have to look at that study again, but I don't --
I'm not sure I wouldn't agree with that, Bill.

		MR. PERRY:  Okay.  So you think the Love study --

		MR. GLENN:  I think based on the whole body of evidence, that it's
clear to me at least that there is something different about aluminum in
brick clays and their fibrogenicity, and I think that is demonstrated in
the Love study as well.  And in the Love report, also, which is much
more comprehensive.

		MR. PERRY:  Right.  And our analysis doesn't fundamentally disagree
with the qualitative statement that, yeah, when you look at the evidence
for clay industries, the risks appear to be lower.  But you recommended
that we evaluate the risk, the quantitative risk using the Love study.
So I'm just trying to establish, you know, we're interested in figuring
out what the lifetime risk is.

		MR. GLENN:  The other thing you could do, of course, is leave the PEL
where it is for clay brick workers.

		MR. PERRY:  Yes, but I need a reason.  That's what I'm trying to get
at.

		MR. GLENN:  The reason is that the body of epidemiology literature
indicates --

		MR. PERRY:  Okay.

		MR. GLENN:  -- there is a negligible risk.  It's within the background
of what you would find if we extract these 100 or so people here.

		MR. PERRY:  Okay.  Just as an example on that same table, on Page 19,
you cite the Rosenman et al. study of iron foundry workers, former iron
foundry workers, which has a risk of 2 percent at 2 mg/m3, which is
only about twice the risk of what the Love study is showing at that same
cumulative exposure.

		MR. GLENN:  I don't have that in --

		MR. PERRY:  Well, it's in Page 19 of your written testimony.

		MR. GLENN:  Okay.

		MR. PERRY:  So, you know, I just wanted to kind of get your take on
how this reflects lifetime risk, which being a cross-sectional study it
really probably cannot.  I mean you do refer to it as an eloquent
report, perhaps don't disagree fundamentally given its design.

		One thing I wanted to point out going to this issue of background risk
that Dr. Weissman questioned you, the Castellan study, that recommended
that as a result of its findings, it recommended that investigators use
three B readers, correct?

		MR. GLENN:  Yes.

		MR. PERRY:  And is that the number of B readers that was used in the
Love study, also?

		MR. GLENN:  Yes, I believe it was.

		MR. PERRY:  Okay, thank you.

		DR. MILLER:  Actually, I don't know if --

		MR. PERRY:  I'm sorry?  Well, or equivalent, I guess I would say.

		JUDGE SOLOMON:  Let me just state that that was Dr. Miller.  And do
you want to say what Dr. Miller said?

		MR. PERRY:  Yes.  Dr. Miller was questioning my saying that the Love
study used B readers.  It did not, because it is not a U.S. study.  But
they used readers that have equivalent training and competency, as I
understand it.  And he is, for the record, he is nodding yes.  So I
appreciate that.

		The conditions of the facilities that were studied by Love et al., are
they -- would you say that they are pretty similar to U.S. facilities in
the time period that they were studying?  This is a 1999 report, so it's
fairly recent.

		MR. GLENN:  Yeah, that's a recent study.  You know, perhaps that
question could be asked of the next panel, which will have
representatives from the brick industry.  I would expect that our brick
manufacturing is very similar to the United Kingdom, since we copy a lot
of things from them.

		MR. PERRY:  Okay.  Okay.  I think just really one more question about
the Love study, because in their conclusion, although they do
acknowledge that given the high concentrations that were experienced by
a large proportion of the workforce and the relatively low prevalence
they acknowledge might be surprising, but they go on to state,
nevertheless, the estimated exposure-response relation for quartz
suggests considerable risks of radiological abnormality even at
concentrations of 0.1 mg/m3 of quartz.

		So how do you reconcile what you are saying?  This is, if you have the
paper there, it's on page --

		MR. GLENN:  I don't.

		MR. PERRY:  I have, well, I mean you're welcome to look at this.  It's
on Page 132 of --

		MR. GLENN:  What I was looking for and I thought I had it was a
statement that I had made about that the Buchanan study, and it should
-- the predictions from the Buchanan study are not appropriate clay
brick workers, and there possibly should be another consideration for
clay brick workers.

		MR. PERRY:  I'm sorry.  This is the conclusion that's in the Love et
al. paper.  Based on the study that they did, they are saying that, to
their mind, there are considerable risks of radiological abnormality
even at concentrations of .1 per cubic meter.

		MR. GLENN:  Let me get back to you with some other quotes from that
study as well.

		MR. PERRY:  Okay.  All right, I would invite that.

		MR. GLENN:  That actually questioned whether the Buchanan study should
be used to -- the results of the Buchanan study should be used for
exposure setting in brick.

		MR. PERRY:  Okay.

		JUDGE SOLOMON:  Any other questions?

		MR. PERRY:  No.  I think, Janet?

		MS. CARTER:  Oh, yes.

		MR. PERRY:  Janet Carter has a question or two.

		MS. CARTER:  Dr. Glenn, thank you so much for the opportunity.

		MR. GLENN:  Mr. Glenn, I work for a living.

		MS. CARTER:  Oh, I'm sorry.  As part of your testimony, you provided
supplemental information of an unpublished analysis that you had
provided on the association between rheumatoid arthritis and lung
cancer, acelli (ph.) and lung cancer, systemic sclerosis and lung
cancer, idiopathic pulmonary fibrosis and lung cancer, and sarcosis --
sarcoidosis and lung cancer.

		Are you aware of any experimental animal studies that look at these
associations that can provide a basis for a mechanistic evaluation?

		MR. GLENN:  I am not.  I drew on that because of discussions that I've
had with the late Dr. Hans Weill, where he was of the opinion that
pulmonary fibrosis from whatever cause was the -- should be a
consideration for an increase of lung cancer.  And so I started looking
at the literature, and I was quite surprised to find the enormity of the
studies that show quite a high relationship and risk between some of
these diseases, pulmonary fibrotic diseases and lung cancer.

		MS. CARTER:  Has there been or are you aware if there has been a
systematic evaluation of the types of tumors found in these
immunological-based diseases that could be used to support this type of
association?

		MR. GLENN:  Well, they're really speaking of fibrosis, so I am not
aware of that.

		MS. CARTER:  Well, they are saying -- I mean you are indicating that
the fibrosis caused by these --

		MR. GLENN:  The fibrosis is precursor for --

		MS. CARTER:  Yeah, is causing the lung cancer.  So I was --

		MR. GLENN:  Well, it's an inflammatory response, of course, and we
know inflammatory response is --

		MS. CARTER:  But these are immunologically based diseases.

		MR. GLENN:  I realize that.

		MS. CARTER:  So it could be that the mechanism may be completely
different.

		MR. GLENN:  That could be.

		MS. CARTER:  Okay.  That was all I had.  Thank you.

		MR. PERRY:  No further questions.  Thank you, Mr. Glenn.

		MS. KRAMER:  Actually, I have one question for you and then a very
small housekeeping matter.  I just wanted to check, you didn't note any
in your comments, but are there any standard-setting organizations or
governments that currently treat brick in the silica industry
differently than silica overall?

		MR. GLENN:  I don't think there are, but I'm not positive.

		MS. KRAMER:  Okay.  And the housekeeping matter, this is in no way
related to you, Mr. Glenn, because you had no notice of this.  But for
those of you who are in the audience who may testify later, if you could
bring a copy of your written comments that you have submitted, in case
OSHA or another questioner wants to refer to it, that would be really
helpful.  And, again, Mr. Glenn, thanks for bearing with us since we
didn't give you any notice.

		MR. GLENN:  That's all right.

		JUDGE SOLOMON:  Okay, we are well over time.  So what we'll plan to do
is start at 1:30, so the brick presentation, the Acme Brick Company,
would start at 1:30.  So the hearing is continued until then.

		(Whereupon, at 12:41 p.m., a lunch recess was taken.)

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

		(1:34 p.m.)

		JUDGE SOLOMON:  From Acme Brick Company, Mr. Latham, are you first?

		MR. LATHAM:  Mr. Tayler will be first.

		MR. TAYLER:  Thank you, Your Honor.  My name is Dr. Garth Taylor.  As
the Technical Director of Acme Brick Company, I am responsible for the
direction, development, and coordination of our company's environmental
health and safety, engineering, and research functions.

		I have been involved with the industry, the brickmaking industry in
South Africa, the U.K., and here for over 48 years.  With me today, I
have Mr. Bill Latham on my left and Mr. Tom Brown on my right.
Mr. Tom Brown is our Director of Health and Safety, and he will be
addressing the impact of the proposed silica rule which will have -- it
will have on our associates and some of the safety issues involved with
this.  Mr. Latham, on my left, is Acme Brick's Risk Manager and General
Counsel.  He will be addressing OSHA's failure to establish its
statutory mandates in regulating silica.  Mr. Latham will summarize our
comments and provide final recommendations from Acme Brick.

		By way of background, Acme has been manufacturing brick for over 122
years, a well-established company in Fort Worth, Texas.  Before the
recession, our full capacity, we employed 3,000 associates.  Our core
business is the manufacture and distribution of clay face brick.  We
also produce concrete block, cut stone, manufactured stone, and
distribute ceramic tile and various other building materials through our
network of sales outlets and distributor network across the country.
But our core business, over 80 percent of it is clay brick.

		Acme Brick owns 25 brick manufacturing operations situated in the
southwestern part of the country.  And as a result of the great
recession and the downturn in the construction industry, only 16 of
these plants are currently operating, operated by 1,000 or so production
associates.

		Acme certain appreciates the opportunity today to address the panel
and comment on our experience and concerns with OSHA's decision to
reduce the permissible exposure level, and to impose the significant
additional ancillary regulations pertaining to the respirable silica.

		My comments, I will start with -- the comments that I would like to
talk about will deal with three areas, raw materials that we work with,
the feasibility of achieving compliance, and some of the economic
impacts.  The rule as proposed has the potential to have significant
detrimental impacts on Acme Brick Company and its associates, as well as
the entire brick industry, while providing very little or no
commensurate improvement to the health or well-being of the workers
employed by Acme Brick.

		The raw materials.  Bricks are made from clays, not silica.  The clays
used by Acme Brick are minerals referred to as hydrated alumina
silicates, and they are being formed by the alteration and breakdown of
parent igneous rocks, mostly feldspathic in nature, over the millions of
years.  These minerals are transported by various actions, water
transportation, and are known as sedimentary deposits.  It is important
to realize that most of the silica in these brickmaking clays is
embodied in the alumina silicate crystalline structure and matrix of the
clay mineral.

		The free quartz which exists in the clay body is an impurity, and its
content is typically minimal, ranging from 10 through to 30-odd percent.
 Quartz levels higher than this in the brick industry produce poor
quality products.  Furthermore, samples of respirable dust analyzed by
x-ray diffraction indicate lower levels, meaning that not all of the
quartz in the material finds its way into the air.  This goes a long way
to explain why the incidence of silicosis and related illnesses are
virtually nonexistent in the clay brick industry, as Mr. Bob Glenn,
I'm sure, has explained this morning in excellent detail.

		The detailed comment report submitted by Bob Glenn on behalf of the
BIA clearly demonstrates the scientific facts of knowledge by OSHA that
the quartz occluded in an alumina silicate clay matrix does not have the
biologic potency or ability to produce pulmonary fibrosis as does
unoccluded quartz.  Furthermore, OSHA acknowledges in their proposal,
proposed rule discussion, that the physical characteristics that are
inherent in brickmaking clays are undoubtedly responsible for the lack
of silicosis cases in the clay brickmaking industry.

		OSHA should, therefore, take note that the materials used by Acme
Brick and, indeed, by the brick industry at large are inherently
composed of alumina-rich clays that directly modify the toxicity of the
quartz particle.  This means that by occluding the quartz particle in a
clay coating, the bioavailability of the particle is decreased.  The
report compiled by Bob Glenn emphasizes that aluminum has been shown to
decline the toxicity of silica in several studies.  I think he went
through that well this morning.

		It is, therefore, imperative that OSHA recognizes these facts
presented in these scientific studies and that it undertakes a balanced
assessment of this vital scientific information.  Should they do this,
they will most certainly conclude that the proposed reduction of the PEL
to 50 µg/m3 cannot be justified.

		The feasibility of achieving compliance over a decade or more.  Acme
Brick has worked diligently to comply with the existing rule.  We have
developed a program designed to address ways and means to meet the
current PEL of 100 µg/m3, and Mr. Brown will cover more detail on
this.  In spite of the application of the best management practices,
engineering solutions, extensive training, work practices, we have found
it difficult in some of the locations to meet the current PEL.  This is
due to the high dust levels generated as a result of the fine platy
nature of clays.

		The known limitations of engineering solutions and the best work
practices, even those proposed by OSHA, is going to place our company in
a state of ongoing noncompliance coupled with an ongoing program of
extensive testing in an attempt to meet the concentrations which are
barely achievable.  Our likely ability to meet the proposed reduction in
the PEL to 50 µg/m3 would inevitably result in the requirement for
extensive respiratory protection measures placed on our associates,
placing them in unbearable work conditions.  Mr. Brown will address
this further.

		Furthermore, the introduction of an action limit of 25 µg/m3 will
trigger confusion and lead to an ongoing, disruptive, expensive
training, series of training, expensive testing.  The level of 25 µg/m3
is barely detectable, in fact, our current sampling results indicate
many times are non-detect values at this level.  Maintaining this level
of detection is unrealistic and will place most of our plants in a
permanent state of action or, indeed, noncompliance.

		OSHA should remove this action level requirement and maintain the PEL
at 100 µg for the industry to be able to protect its associates.  This
will enable Acme to continue to provide protection of the health and
well-being of its associates in a safe and effective manner over the
longer term.

		The economic impact.  Our practical experience in the application of
engineering solutions, best practices, and management of a
well-structured program has brought us to an industry leading position.
With some exception previously referred to, our level of compliance and
the protection of our associates are excellent.  We intend to pursue
these standards with ongoing improvements.

		We have conducted extensive studies of our facilities to determine the
investment requirements that would be needed to come close to meeting
the proposed PEL and ancillary requirements.  Investment in additional
dust collection equipment, ventilation, vacuum systems, decontamination
facilities, change rooms, protective equipment, to name just a few, will
be required.  Operational costs alone are more than three times the OSHA
estimates.

		The total capital investment required for Acme's 16 operating plants
to attempt to meet these proposed exposure levels would amount to some
$5.565 million, on average $347,812 per plant.  The annualized
additional operating cost to meet the ancillary requirements of the rule
equates to some $2.025 million a year, with an average of $126,593 per
year per plant.

		We request, respectfully, that OSHA acknowledge this and acknowledge
that the compliance with the proposed revisions of the silica exposure
level be seen as not economically feasible for the clay brick industry.
Mr. Latham will address this as well.

		So, in conclusion, Acme Brick strongly believes that the current OSHA
PEL for crystalline silica at 100 µg/m3 is amply protective of its
manufacturing workers and should not be reduced.  Acme Brick is very
likely to have to face the prospect of its associates having to be
subjected to unsafe, life-threatening work conditions in order to meet
the ancillary requirements of the rule.

		So with these comments, Your Honor, I'll pass it over to Mr. Tom
Brown, Director of Safety for Acme.

		MR. BROWN:  Thank you, Garth.  I'd like to make a few points on our
program and how successful it is under the current standard and
protecting our associates.

		Our brick and block facilities are extremely labor intensive.  And we
have developed a world-class safety program to address the silica
issues.  They take -- all of our associates and all of our teams take
pride in providing input to help reduce all exposures.  We basically
have a team effort at all levels.

		We, at Acme Brick, developed an effective silica action plan to ensure
our associates' exposure to respirable silica is minimum.  Our program
focuses on identifying potential silica exposures through sampling of
all of our positions, whether they are -- we did that, developed it, and
there was numerous positions that we went through.  And in our program,
we have to pass three tests, separate tests, at least seven days apart,
as the standard states, to reach a level that we can go ahead and
determine is a safe level.

		By doing this, we are on an annual basis, we continue a round-robin
again on all those positions.  So we have a very proactive approach to
safety and health with our associates, because they are our greatest
asset, and that is our cultural beliefs is building our safety program.

		In as far as addressing issues, if we were to determine we have a
potential exposure or an exposure, we activate basically our EH&S
specialists, our engineering team, our regional production management,
and our associates, and we develop as a team solutions to these issues
to bring that level back down to an acceptable exposure.  We immediately
implement our respiratory protection plan to protect our associates,
which includes medical monitoring through PFTs, fit testing, education,
and training.

		The majority of our cases require a series of complex solutions,
because no one solution is a fix.  And how we do that?  Basically, we
develop solutions through engineering, containment, suppression,
collection, ventilation, best management practices, education, and
training.  This was what separates us from everyone else as far as our
program because we are that committed to having a safe and healthy work
environment.

		Now, looking at this current standard, we are able to meet this
standard with the 100 µg/m3, but we still struggle in some of our
positions to obtain that.  We are still working on it.  We have been in
this struggle for over 18 years and developing all kinds of special
solutions for each one of our processes.  So we feel we are the leader
in the brick industry in those solutions.  We work diligently together,
again, to improve the health and safety of our associates and do the
right thing.  That's what it's all about is doing the right thing.

		We have had experience with OSHA in some of our inspections, and they
have been very complimentary of our program and asked us that we should
definitely be a part of the BPP program.  We feel with all of these
commitments that we have from our CEO all the way through our ranks,
everyone is important, and we definitely feel we can achieve the current
standard.

		But with the new standard, how it is going to impact us, we are
looking at a 50 µg/m3, and with an action level of 25, which is similar
to our program but we use 50 for an action level.  The reason why we do
that is because we want to achieve the 100 µg/m3.  And that is just
part of industrial hygiene best management practices.

		So in looking at that, currently looking at all of our data, looking
at what we have done over 18 years, it is going to put our industry and
our plants all in, as far as in a permanent noncompliant status because
we feel we cannot achieve the proposed standard in an economic, feasible
way and be able to operate with our current program.

		Taking a look at our current sample data, our technology and the
thousands and thousands of dollars that we have put into our program, we
have been able to achieve the 100.  But we also have other issues that
we would like to address and make you aware of.

		We are in a region in the southwest where temperatures are excess of
100 degrees.  And being a very intensive -- labor intensive business,
for us to meet the proposed standard by putting Tyvek suits or
protective clothing onto our employees in 110, 115 degrees would be in
direct conflict with our heat stress program, because we have to
implement cool-down periods, and we have to implement different things
to address heat stress.

		With the proposed standard, we have to look at what are we going to do
when we have to put these people on -- when they want to go on break.
Are we going to have to completely take all the clothes, bag them, have
them shower, and re-enter the workforce with brand new clothing?  They
get three breaks during those times plus a lunch period.  If they leave
the plant, how are we addressing all these things?  Those rules that are
being proposed is going to put really -- as far as the stress on both
our associates and us as far as trying to efficiently operate and
protect our people.

		The other thing is how does OSHA feel we could go ahead and address
these crossover standards like heat stress and other things that we
implement that is in direct conflict with this standard as far as the
proposed ancillary regulations.  So I don't know if you all have ever
worn a respirator in 115 degrees, but it's pretty tough.  And we
wouldn't want to do that because that's a life-threatening situation,
and we deal with it six months out of the year.

		The other thing we deal with is we have dust storm in West Texas.  We
had one in Lubbock the other day, zero visibility.  How do we address
preventing an overexposure of 50 µg/m3 when the background is over the
current PEL just from Mother Nature?  This is going to be a real tough
situation to deal with in real life.  These are real life situations.
That's why I am trying to make it clear to you all that it's very
important that we study this and make sure that we can abide by the
current standard, because all of our data shows that we are protecting
our employees.

		In conclusion, I'll reiterate that the new proposed standard is
definitely going to put us in a continuous noncompliant state, and
that's where we are going to have to implement the PPE standard on a
continuous basis in all of our positions with protective clothing.  That
is just unacceptable, and we just can't operate.  When it comes to
eliminating hazards, PPE, as you all know, is the last resort, not the
first.  And current technology just does not allow us to feasibly
operate and fix these issues.

		With that, I would like to turn this over to Bill Latham.

		MR. LATHAM:  Your Honor, thank you for this opportunity to present
this evidence to the panel and to the peers.  As you know, I am General
Counsel and Risk Manager.  As part of that, I deal with insurance
purchasing and obtaining that insurance, as well as all the risk
management programs which dovetail into the safety, which is obviously
directed by Mr. Brown.

		But my particular comments are going to deal with the particulars of
the statute which authorize OSHA to regulate or really, in this
situation, add to or change the regulations.  And I know I'm preaching
to the choir and you know what these are, but just for purposes of
addressing them with the facts that Acme currently faces, I wanted to
readdress them.

		First, obviously, your initial mandate is to exercise your regulatory
powers only when there is a reasonable necessity and appropriate to
provide safe and healthful places of employment.  With regard to
specifically dealing with silica or what you consider to be hazardous
agents or hazardous physical agents, there is an additional limitation
which requires you to only deal with circumstances that show the
standards would prevent employees from suffering a material impairment
of health or functional capacity that is technologically and
economically feasible.

		When you put these two together, the courts have said that you can
only deal with situations which cause a serious problem and that which,
excuse me, are not safe, which is the meaning of that has been given
that it's a significant risk present that can be eliminated or lessened
by changing a practice.  Okay.  So what I'd like to present to you today
and show you some facts from Acme, and our testimony today is only about
Acme and our different industries that we are involved in, one being
particularly the brick industry, but also the concrete block business
and some other ancillary, the natural stone, we cut and fabricate
natural stone, as well as some of the tile.  We don't manufacture it,
but we sell it and deal with it.

		But the four points I'd like to make in this is Acme's workers do not
face a significant risk of harm.  Two, any risk that Acme's associates
may face will not be eliminated or lessened by any additional
regulations.  Three, the elimination of the risk of respirable silica is
neither economically or feasibly -- or technologically feasible.  And,
finally, OSHA's estimates of implementation costs are underestimated.

		So, first, turning to the first situation of OSHA is authorized to
further require respirable silica, there must be a showing of
significant risk.  As you heard Mr. Glenn and also Dr. Tayler, there
is no question that there is silica in the manufacturing of brick and in
the manufacturing of concrete block.

		Those exposures are at every one of those facilities.  But despite
those exposure levels, Acme has not experienced a single case of
silicosis or even a significant silica-related injury or illnesses.
That is very significant.  Acme has been around for 122 years.  And
truthfully, anecdotally, the history prior to about 25 years ago is just
from communications with people who have been in our industry a long
time.

		I have personally reviewed claims records for the past 25 years.
Based on that review, there has only been three claims that even had a
statement of silica or lung exposures or anything related to that
category.  We use broad kinds of search protocol in order to find
something that might be related to silica.

		Of those three claims, none indicated a diagnosis of silicosis.  They
didn't even -- they may have used the word "silica" in their statement,
but there was no issue of any illness that was seen to arise out of that
silica.  In fact, there is no deaths, no evidence of cancer, no evidence
of even a prolonged treatment.  In fact, if you look at those three
claims, the maximum medical spent on those claims was $500.  That is
insignificant when you look at examples of silicosis.

		And we are looking at, at our peak, 3,000 employees, and that would be
back in the '05, '06 time frame.  That is over 3 million worker days of
exposures of the silica we've talked about without any of these
significant illnesses.  Even today, with just the 2,200 employees we
have, we are only talking about a little over 2 million worker days
without any silicas.  That is just not a significant risk that Acme has
faced over these years.

		Turning to the second point of OSHA's mandate, there is no reason to
believe any risk of respirable silica exposure can be eliminated or
lessened by a change in the PEL or additional regulations.  That, simply
said, if you don't have any silica exposure today, what else can you do
to decrease that?  And it is pretty simple, we have significant
exposures for some silica, but the technological aspects that were
discussed by Mr. Glenn, as well as Dr. Tayler -- for whatever reason,
and I am no scientist, I'm not here to be a scientist -- but those
indicate no issues of silica or silicosis and silica-related injuries.

		This leads to the third part of the mandate, which is eliminating the
risk of respirable silica must be economically and technologically
feasible.  This is a question that I do have some testimony that I think
I can provide that will be really important for you to consider.

		OSHA's averaged cost of the big brick plant in your preambles
indicates $38,422 of an annual expenditure for the brick plant.  You
also have some analysis of initial cost of about $750 million per brick
plant -- excuse me, I apologize, $750,000 per brick plant for the
improvement to meet these qualifications.

		You have already heard from Dr. Tayler that our estimated cost was
$126,000 per year, per the 16 brick plants that we have.  An additional
$350,000 for the brick plants, the 16 that are still in operation for
capital costs.  In those particular plants, we have already expended
substantial amounts in excess of what we are already talking about just
to meet the additional rules.  As Mr. Brown talked about, we have been
able to meet the 100 PEL that we are required to by law now.  We are
meeting that, but we expended a lot of money to do that.

		Dr. Tayler, in his written remarks, indicates basically a plant that
needs to be basically start from finish to meet these PEL would cost
almost $900,000 in capital expenses, plus an additional $412,000 in
annual operating expenses.

		JUDGE SOLOMON:  You are right at the 30 minutes.

		MR. LATHAM:  All right.  I am very close to being completed.  If you
--

		JUDGE SOLOMON:  Sure.

		MR. LATHAM:  Would it be all right if I continue?

		JUDGE SOLOMON:  Sure.

		MR. LATHAM:  Thank you.  That leaves in the first year, we're talking
at an expenditure of well over $7 million in both capital and operating
costs.  Those amounts are significant for any business and especially
Acme in this situation.  The smaller businesses, which we don't propose
that we are, face those same kinds of numbers, but maybe not as many
plants.

		I'd like to really address really quickly the use of the 2000 and 2006
numbers.  It is very significant to understand that the brick industry,
during 2006, was the highest profitability of any brick industry in
decades.  In fact, for Acme, 2006 was the highest earnings ever made by
the company.  Obviously, since then, the market and the construction
industry have crashed.  And the economic impact of the recession has
been significant.  In fact, we have seen a 40 percent decrease in our
revenues as a result of that.

		And, more significantly, we have seen a 100 percent decrease in
profits.  And you'd ask how that is possible, but it is possible because
those other nine plants that are sitting there idle still have costs
which have to be covered while they are not operating.  So I know during
the question and answer periods on the webinar by OSHA indicated that,
well, you just raise your prices.  Well, since the 2006 time period,
Acme's prices have decreased 13 percent.  That's our price.  And the
demand for product at this point is still at a lower level despite the
improvements in the economy.

		The construction business is still suffering and is still not going
into full blow.  And so because of that, it's not just a matter of,
okay, we'll go raise our prices.  That's not possible.  So to reach
those levels are really not able to do that.

		Could I just conclude with the recommendations that we'd like to make?

		JUDGE SOLOMON:  Okay.

		MR. LATHAM:  You've heard all of our testimonies and the points that
we've made.  It is Acme's position that it has been a leader in the
industry, in our opinion.  We have done the right thing for OSHA.  And
with that, we have met the current 100 PEL following those requirements.
 To do that, we have had to use lots of different things.  We've tried
and failed, tried and failed, but some things have been successful.  So
we believe that the current PEL and the current regulations are
sufficient for us to meet the safety of our employees, which have been
no issues of silica.

		In the alternative -- and so, therefore, we would ask that OSHA
reconsider its new proposals and keep the current regulations as they
are.  In the alternative, as I think you've heard from Mr. Glenn, from
Dr. Tayler, and from the testimony from the brick industry, at least
the brick industry ought to be excluded.  The concrete business ought to
be excluded because we do not have any evidence of a significant risk.
Thank you.

		JUDGE SOLOMON:  Okay.  Just to get some idea, are there any of the
peers, the peer reviewers that have questions?  There are hands already
going up from the public.  Would the public questioners come to the
microphone?  Okay, apparently, we have one questioner, and it is going
to take a while for him to get there.

		While he is doing that, we have had a controversy over whether we
should consolidate the rest of the witnesses and have one question
period for all of the rest of the witnesses.  One of the witnesses,
Dr. Sokas, is teaching a class and I don't think she -- I don't want to
make an exception for her, but she would have a tough time, I guess,
getting here.  But it could very well be that we could have all of the
remaining speakers come forward so we don't have to waste any time
between speakers, and then have one question and answer period.

		MS. KRAMER:  I think we would probably want to divide the -- I think
it's eight remaining witnesses into possibly two groups.  Is that right,
David?

		MR. O'CONNOR:  Yes, I think at least two groups would be appropriate.

		JUDGE SOLOMON:  Okay.  Well, after this questioning, you're going to
explain that to me.

		MS. KRAMER:  Sure.

		JUDGE SOLOMON:  And we'll straighten that out.  Okay, would you state
your name and please spell your last name?

		DR. MIRER:  My name is Franklin Mirer, M-i-r-e-r, from CUNY School of
Public Health.  And I am scheduled to be a witness later.

		JUDGE SOLOMON:  Right.

		DR. MIRER:  So, first of all, thank you very much for coming and
presenting the information you did.  From your testimony, it is clear
that you collect a lot of air samples in your facility.  Can you say
what arrangements you make to do, to collect those air samples?  Are
they done by plant personnel or external consultants or what?

		MR. LATHAM:  Dr. Tayler, why don't you address that?

		MR. TAYLER:  The silica action program that we conduct, we have a
schedule of sampling programs at each facility.  And we have -- our
organization structure consists of Mr. Tom Brown as the director, and
we have what we call regional coordinators in all of the areas that we
have.  We have four regions.  Each one of these regional coordinators is
certified and trained in the use of these pumps following the OSHA
protocol, and they conduct the testing in the plants on a scheduled
basis.

		Based on the results we get, we have categorized into three
categories, a maintenance category, an action limit category, and an
exceedance category.  And from that we generate the corrective action
plans.

		DR. MIRER:  Okay.  And could you tell me what are the lowest exposure
levels that are reported back to you in this scheme?

		MR. TAYLER:  Some of the very low ones are in areas where the exposure
levels are fairly low, and they can be as low as a point --

		MR. LATHAM:  Non-detectable.

		MR. TAYLER:  Non-detectable, yeah.

		DR. MIRER:  Well, what is the lowest that is detectable that's
reported in micrograms?

		MR. BROWN:  Around, let's see, consistently a .28.

		DR. MIRER:  .28 µg?

		MR. BROWN:  Um-hum.

		DR. MIRER:  Okay.  Could you describe your medical surveillance
program?

		MR. LATHAM:  Tom?

		MR. BROWN:  Okay.  Our medical surveillance program consists of we do
chest x-rays on pre-employment, and then we, once we implement our
action plan, we have a voluntary program for respirators, and that's
part of subpart D.  And what that does is it allows our associates to
wear respirators without being under any standard.

		Then once we receive an action level or above limit, they immediately
are put into respirators.  And all of the people in those positions are
PFT'd, which is a pulmonary function test.  We fit test them.  And that
basically is fit testing them with a respirator to make sure that they
know how to don the respirator and get the best protection.  Our medical
monitoring as far as the -- that's about where we stop with our medical
monitoring.

		DR. MIRER:  So no regular chest x-ray?

		MR. BROWN:  No, we do not do --

		DR. MIRER:  No periodic chest x-ray?

		MR. BROWN:  No.

		DR. MIRER:  No periodic PFT, pulmonary function test?

		MR. BROWN:  Annually we do PFTs.

		DR. MIRER:  Okay.  Could you describe your training program for silica
hazards for your employees?

		MR. BROWN:  Okay.  We have a pretty extensive program.  We have every
month the silica day.  Basically, it's a silica emphasis day.  It's not
just silica.  And that came from the OSHA program.  And we implement
that and we go through our plants, we identify any possible hazards that
we might see such as leakage or things of that from conveyors to we have
a continuous auditing program in that respect.

		We also have basically classroom training and we have training
pertaining to silicosis, and we explain to them what the hazards of
silica overexposure is.  When we go through our sampling, if there is an
exposure in the action limit or above, we explain to them why they have
to go onto respirators, why they have to basically go to this standard
to protect themselves.

		DR. MIRER:  So would you recommend to OSHA that those elements of the
training program go into the standard?

		MR. BROWN:  I think definitely they should --

		DR. MIRER:  I mean informing people of what their exposure level is --

		MR. BROWN:  I think they --

		DR. MIRER:  -- specific things they have to do to protect themselves?

		MR. BROWN:  Well, I think OSHA has addressed that in the protocols.
In their silica emphasis program, under industrial hygiene sampling best
practices, you have to -- you've got 15 days to explain to those people
what their exposure is.  So we go to the extra limit through the
training and education of silica.

		DR. MIRER:  Okay.  The last question I think is, well, two last
questions.  One is have you looked at the exposure data in the OSHA PEA,
and do you think that that reflects what exposures are in your facility?

		MR. BROWN:  No.

		DR. MIRER:  You haven't looked at it --

		MR. BROWN:  I have not looked at it.

		DR. MIRER:  Okay.  And are you aware of any summary of distribution of
exposures industrywide in the brick industry, other than the OSHA PEA?

		MR. BROWN:  In the BIA, we have done certain studies in conjunction
with NIOSH in the past.

		DR. MIRER:  Are those in the record here, or could you provide them to
the record?

		MR. BROWN:  Yes.

		MR. LATHAM:  We provided those to BIA.  They would have that and
they'll -- I think they're going to testify in a couple of weeks.

		DR. MIRER:  Okay.  Thank you for your time.  Thanks very much for
putting up with my extra questions.

		JUDGE SOLOMON:  Thank you.  Ms. Ryder?

		MS. RYDER:  Sure.  OSHA has some questions.

		MR. O'CONNOR:  Thank you, Your Honor.  And thank you, Mr. Brown,
Mr. Latham, and Dr. Tayler.  I'll turn it over to Bob Burt.

		MR. BURT:  Hi, several questions.  I want to start just to be sure I
understand the size of the company.  You mentioned at the present time
you have a total of employees of 2,222; 1,306 are production associates.
 A production associate is what someone else might call a production
employee, roughly?

		MR. LATHAM:  Yes.

		MR. BURT:  Okay.  And you have 16 operating facilities now?

		MR. LATHAM:  Sixteen operating brick plants.

		MR. BURT:  Brick.

		MR. LATHAM:  We also have six operating --

		MR. TAYLER:  Concrete block.

		MR. LATHAM:  Concrete block plants.  And we have one limestone
facility that fabricates limestone.

		MR. BURT:  But the cost estimates you provide are devoted to the brick
plants; is that correct?

		MR. TAYLER:  Yes.

		MR. LATHAM:  Yes, which are much larger than our concrete block
plants.

		MR. BURT:  Oh, thank you.  Now, you provided in your testimony of
January -- in your letter of January 24th, a very helpful cost table and
some cost estimates.  I'd like to ask some questions to assure that we
can make best use of the data you provided.

		Now, this first table, is that for a specific plant?  In other words,
you have a table and then you have some aggregate estimates.  Is the
table for one specific plant?

		MR. LATHAM:  Are you looking on Page 4?

		MR. BURT:  Yes.

		MR. LATHAM:  Dr. Tayler's --

		MR. BURT:  Yeah.

		MR. TAYLER:  Yes.  You can notice that what I have said here is a
typical shale brick plant, and those numbers relate to that, to a
typical plant.

		MR. BURT:  Okay.  Now, for this typical plant, roughly how many
employees would you say that this plant had or production associates,
whatever you --

		MR. TAYLER:  In total, yeah, total production associates in the plant
of this nature would be approximately 60.

		MR. BURT:  I'm sorry?

		MR. TAYLER:  Sixty.

		MR. BURT:  Sixty?

		MR. TAYLER:  Um-hum.

		MR. BURT:  Okay.  And most of these people are currently controlled --
these people are largely controlled to 100 now, that's our starting
point, of your analysis --

		MR. TAYLER:  Yeah.

		MR. BURT:  -- is that correct?  Now, just to see where we are getting
to, what percentage of these people would you say were currently over
50, the OSHA PEL?  Any idea?  You said you also use it as your action
level.

		MR. TAYLER:  Yeah, you mean the percentage of people that would be
exposed?

		MR. BURT:  Are currently exposed above 50, if you have any idea?  It
would help to interpret how this fits with other things.

		MR. TAYLER:  Of the 60 associates.

		MR. BURT:  If you can add that in a post-hearing comment, it would be
very helpful.

		MR. LATHAM:  Well, it depends -- we can answer that question.  It
depends on the particulars of that day that the testing was, you know.
We have the backgrounds of higher levels in a West Texas, you know,
which includes Fort Worth, which is where the plant is that's being
referenced in that.

		MR. BURT:  Any detail you can provide on monitoring data, including
the variance, would be very helpful.  I doubt that there are many people
who have as much monitoring data as you seem to have, and it would be
very useful for us to look at that.

		Now, I notice that when you say this is a typical plant, at the same
time when you get the aggregate cost, you don't simply multiply these
costs by say 16 or do you -- no, you don't.  So, in other words, there
is some adjustment for different sizes of different plants in making the
aggregate estimate?

		MR. TAYLER:  Um-hum.

		MR. BURT:  Okay.  Anything that could show us just how we could
reproduce that calculation would be helpful.  Now, the specific costs,
control room improved air filtration, what does that refer to exactly?

		MR. TAYLER:  Control room improved air filtration would involve, well,
let me explain, in a typical brick plant, you would have a grinding
facility.  And in that grinding facility, you would have a control room
that would house the main control, electrical control circuits, and also
the various switch gear for operating the plant.  The operator would be
in and out of that control room.

		MR. BURT:  Okay.  And that's an operating cost per year at that plant?

		MR. TAYLER:  Yes.  Yes.

		MR. BURT:  And fuel and electrical energy, that is for the ventilation
systems, make up air and anything else?

		MR. TAYLER:  Yeah.  It'll be electrical energy for the equipment
operating, and the fuel would be for motorized devices for sweeping and
--

		MR. LATHAM:  Scrubbing.

		MR. BURT:  And what is the labor cost for it?

		MR. TAYLER:  The labor would be involved in the maintenance of the
equipment.

		MR. BURT:  So that's in addition to the cost listed above for
maintenance?

		MR. TAYLER:  Yes.

		MR. BURT:  And do you have an estimate of how many people will be
needing, as a basis for the medical surveillance and respiratory
protection equipment estimates, do you have any estimates of how many
people will be needing, newly needing respirators or medical
surveillance as part of how you developed this cost?

		MR. TAYLER:  The numbers that we have in the existing arrangement is
what we have used.

		MR. BURT:  Okay.  So this is your existing program?

		MR. TAYLER:  Yeah.

		MR. BURT:  Testing -- go ahead, sorry.

		MR. LATHAM:  Uses the existing program, but it would anticipate an
increase in the number of people.  If you lower that to a 50 µg, then
it would obviously increase the number based on historical data.

		MR. BURT:  Right.  And that was what I was asking was how much, how
many people would need the -- testing equipment refers to?

		MR. BROWN:  It's dealing with the industrial hygiene sample.

		MR. BURT:  So it's, yeah, the sampling equipment.  And testing
personnel is?

		MR. BROWN:  That is the daily sample.

		MR. BURT:  The person who is taking -- this cost is the person who is
taking the sample?

		MR. BROWN:  Sampling, right.

		MR. BURT:  Okay.  And that analysis is reporting his lab and --

		MR. BROWN:  Um-hum.

		MR. BURT:  Okay.  Sorry, we just use slightly different nomenclatures,
and I want to be sure I can map everything together.  Now, you mentioned
you have 16 plants.  Just out of curiosity, why would you not have just
one or two very large plants, given the nature of the industry?  I just
want to understand how it works?

		MR. TAYLER:  The nature of the brick industry is that you would always
want to have your facility within striking distance of the market.  So
over the years, Acme Brick has positioned the plants closer to the
market areas.  And these plants range from '60s vintage plants to more
recently built plants.  It's an inherent structure which Acme Brick has
had in place for many, many years.

		MR. BURT:  Is there any significant foreign competition in the brick
business?

		MR. TAYLER:  No.

		MR. LATHAM:  Hard to get that across the ocean economically.

		MR. BURT:  I was hoping that was the case, but I didn't want to -- I
have been occasionally surprised about that issue.

		MR. LATHAM:  Production costs really are about a third of the cost of
the brick when we have them close.  But when you're, you know, farther
away, it is -- there are some distinctions in the quality or the makeup
of a brick.  Some clays are different.  And I'm talking -- I'm giving
his testimony because I don't really know all that as much as --

		MR. BURT:  Now, you talk about the limited number of worker -- well,
let me ask, before I ask that, what kind of tenure do you have for your
employees?  Do you have people who have been there 5, 10, or 20 years,
or hard to say, or what would --

		MR. TAYLER:  We don't have the number handy, I mean, but --

		MR. BURT:  Sure.

		MR. TAYLER:  -- we have a great deal of employees that have been there
for 10, 20 years, you know.

		MR. LATHAM:  I've been employed at Acme for about almost 10 years, and
I'm a rookie.

		MR. BURT:  Okay.

		MR. LATHAM:  I have been to more 50-year employee things than I can
count on both hands.  The normal tenure is, and I can't give you
specific, this is anecdotal only, but really 20- and 30-year employees.
And in that vein, that's why the significance of the workers' comp
claims is important because these workers had been employed prior to the
2000 -- '80s that this thing started, 20, 30 years, so it is
significant.  And part of the reason for that is just the location of
our plants.  They're out in the sticks a lot of times.  And so those
employees work in that plant their entire life.  And so it is
significant that the employees are long-time employees.

		MR. BURT:  Okay.  Well, that covers my questions.  But I did want to
thank you for coming here today and also the effort you put into the
cost estimates that you gave us.  As I said, any additional
documentation that could help us be sure we understand would be very
helpful.  Thank you.

		JUDGE SOLOMON:  Any additional questions?

		MR. O'CONNOR:  Yes, Patti Downs has some questions.

		MS. DOWNS:  Thank you.  I just wanted to go back to the first topic
you discussed, the raw materials you use in your bricks.  What all do
you use in addition to the clay?  You said you make a whole slew of
items from concrete block to --

		MR. TAYLER:  You mean in addition to clay brick in the company?

		MS. DOWNS:  Yeah.

		MR. TAYLER:  Concrete block, which is an aggregate and cement mixture
made into a block.  We have a quarrying operation where we do engineered
limestone, where we cut limestone for commercial work.  And we have a
company that does glass finishes on aluminum frame, glass finishes and
the grid systems.  And then as we mentioned, we have a network of sales
outlets where we retail tile and pavers and various ceramic products.

		MS. DOWNS:  Okay.  But with the concrete -- I'm sorry, clay brick, the
silica is always naturally occurring?  You don't ever add silica to
that, correct?

		MR. TAYLER:  Most of the time, the clay has a certain amount of silica
in it, which we then monitor and control in the way we mine the clays,
because the silica is a valuable aspect to the ceramics of the body to
reduce shrinkage.  So we control that in the way we recover the clay.

		MR. LATHAM:  In other words, if it's got too much clay in it, we don't
use it.  It doesn't make a good brick.

		MR. TAYLER:  Too much silica.

		MR. LATHAM:  I mean silica, not too much clay.

		MS. DOWNS:  Okay, I'm going to come back to that, but I have another
question for you then.  So when you are making the bricks or the blocks,
do you ever produce anything that has a textured surface, or are they
all smooth sided?

		MR. TAYLER:  Well, when you make a clay brick, texture is a very
important part of the aesthetics of the product.  And we do that on the
brick machine.  What happens is there is an extrusion process, and we
have various techniques to produce texture on the surface while it is in
the plastic state.  And from there it gets cut and dried and fired, so
the finish product is already -- is fired rigid with the texture in it.

		MS. DOWNS:  Okay.  So you don't ever have to use any sort of abrasive
blasting or grinding to get that finished?

		MR. TAYLER:  No.

		MS. DOWNS:  Okay.  So back to the percentage of quartz you said is
typical in the block.  I think in your written testimony, I read that it
was 10 to 30 percent.  You said that's pretty average?

		MR. TAYLER:  That's pretty much, yeah.

		MS. DOWNS:  Some of the information I have read in other comments
indicates that there may be a higher percentage.  I'm wondering what is
the highest percentage you would ever produce on request?

		MR. TAYLER:  It's possible to be as high as 40 percent, could be as
high as 40 percent in that.  But you start moving into an area where the
material becomes very brittle and porous.  To meet the ASTM standard for
clay brick, you have to meet certain porosity levels and strength
levels.  So as the silica increases in the body in the form of free
quartz, the strength of that clay body starts declining, porosity goes
up, and it becomes less durable and less desirable.  So that's why I
mentioned the maximum of about 30 is what you normally would find for a
good quality product.

		MS. DOWNS:  Is the same true for a concrete block?

		MR. TAYLER:  Well, that's a totally different situation, because
you're talking about a composite aggregate with a cement addition, so
that's a different situation.

		MS. DOWNS:  You had mentioned that you guys have a very extensive
program to keep your exposures down and that you have implemented a lot
of controls, and you have work practices in place, but that you guys
have found it difficult, if not impossible, in some locations to meet
the current PEL.  I'm wondering what some of the areas or tasks
associated with those higher exposures are, what you have done to reduce
those exposures, and maybe what some of the big obstacles or
difficulties have been in implementing those and getting those numbers
down.

		MR. TAYLER:  Yeah, the difficulties we see are more prevalent with the
shale plants.  Because of the nature of the shale, it's a very platy
material, and through the pulverizing process and the screening and in
the dry grinding process, they become -- the dust alone is quite high in
spite of having a lot of very extensive dust collection.  It's the
material sticks to the conveyor belts, and it is a difficult material to
work with.

		So our protocols when we are dealing with this type of material is to
work hard with the control room situation, to make sure that it is
properly detailed and to minimize exposure, and our associate that works
in that area is controlling that plant from within that control room, so
he is not exposed as much as he should be.

		Most of the time when we have to deal with working in the plant, we
try to deal and do the work in the plant when the plant is shut down.
We know that silica takes a long time to settle, so we normally don't do
any cleanup or anything until way after the shift is completed.  This
has become part of our best practices.

		MS. DOWNS:  So how often would you estimate that your operators spend
in the control booth versus out in the plant?

		MR. TAYLER:  I would say about half of his time.

		MS. DOWNS:  And then so you're also saying the higher exposures are
basically due to the inherent nature of the material and not because of
the effectiveness of the controls or whether or not they're working
properly?

		MR. TAYLER:  It's a very difficult thing.  With this particular plant,
we have extensive dust collection equipment.  We have state of the art
scraper technologies on all of the belts.  The belt speeds have been
modified to reduce the -- we know that belt speeds have a big impact on
dust.  And so it's a bit of each, you know.  It's the nature of the
material and also the limitations that we see using these various
technologies.

		MR. LATHAM:  A lot of it, too, is the environmental impact, I mean the
environment that we're in.

		MS. DOWNS:  Right.

		MR. LATHAM:  Especially, the West Texas models and --

		MR. TAYLER:  The dryness, yeah.

		MR. LATHAM:  The dryness.  Part of that deals with the clays,
themselves.

		MS. DOWNS:  Okay.  I want to change topics a little here.  You had
mentioned that you guys, you sample of all the positions three times, at
least seven days apart, every year to determine exposures.  Correct?

		MR. BROWN:  Correct.

		MS. DOWNS:  And then if you have anyone who is not in compliance with
the current PEL, you kind of convene a team to figure out what you can
do to reverse -- or to reduce those exposures.  How often do you have to
get that team together?  And I don't need an exact number; if you could
give me a guess, a percentage?

		MR. BROWN:  Well, in the infancy of the program, it was a continuous
situation.  Now that we have basically got things under control and the
majority of our positions to the current PEL, we, I would say probably
20 percent of the time that we have to implement that.

		MS. DOWNS:  And what are your usual conclusions.  Have you guys been
able to identify a trend between what's causing the overexposures?

		MR. BROWN:  Well, I can refer to Dr. Tayler on the percentages and
the variables as far as the material, because that has a great deal of
impact on that.  But as far as what we're seeing is --

		MS. DOWNS:  I'm just wondering like work processes or maybe
inefficient controls, or something that you have tweaked or changed.
I'm assuming you can't really change the material too much.  There are
some guidelines --

		MR. BROWN:  No.  We've introduced fogging systems.  We've introduced
suppression surfactant.  We've looked at ventilation, which we have had
baghouses and Dust-Hogs, which are a smaller Torit unit, for each
position, and pulling different pickup points off of conveyors,
enclosures over the conveyors.

		We've looked at settlement, actually weighed the material once it
settles out of the air to see how much we are -- basically how much is
in the air just from a weight standpoint.  That's all part of our note
taking when we do our samples.  We put belt scrapers on all of belts,
make sure those adjustments.  That's all part of our audit program of
our silica action plan.  And we also --

		MR. LATHAM:  The answer to your question is there are just so many
different things you have to do, depending on the circumstance --

		MR. BROWN:  Yeah.

		MR. LATHAM:  -- and everything that there isn't one thing.  You just
kind of have to play it by ear in business to try to --

		MR. BROWN:  Yeah.  And that's what I was going to make the point is
that when you have an issue, depending on what it is, you might end up
having to put an enclosure over this portion, a fogging system here,
ventilation at this end, because you can't just do one thing because
it's not going to fix the problem.  And that's why our engineering team
is a part of that.

		MS. DOWNS:  So this is my last question, I think.  I reserve the right
to change my mind.  So you had some concerns with putting your workers
in Tyvek clothing, you said, because of the contaminated clothing
provision.  What are some of the activities or job tasks that your
workers are doing that their clothing would get that dusty that would
require them to need to change clothes?

		MR. TAYLER:  The most exposure area is in the grinding plant, the
preparation of the raw material.  We also have exposures at the other
end of the process, which we refer to as the monorail, where the brick
move through a packaging station and there is a manual process where the
brick are handled.  That's the area that we really are concerned about
because of visibility.

		The individual has to be able to see the brick, handle it, and make a
judgment call on the quality, and place the brick either in the rejected
conveyor or into the jig that will feed through to the packaging line.
So there is a lot of physical.  These gentlemen handle six tons of
material, brick a day, so they are athletes in their own right, and they
have to have good visibility and good mobility.

		And at those temperatures, even though we do ventilate the work areas,
it's very, very -- we're very fearful of putting them into that sort of
condition where they would have to work with a non-permeable type of
membrane around them, with a lot of sighting problems with doing the
job.  So there just doesn't seem to be a practical solution to the
problem.

		MS. DOWNS:  And just to clarify, so those are really job tasks and
positions where somebody has to be there during the entire operation,
correct?

		MR. TAYLER:  Yes.

		MR. BROWN:  The other thing I wanted to ask a question on was in the
sweeping process, under the current standard, that's what we do, we use
different types of material to like dust sweep and things of that
nature, like a red sawdust that we throw on the floor to make sure we
don't -- that's part of our best management practices.  Under the
proposed standards, sweeping is not allowed.  That's a real problem for
us, because does that mean we have to put in ventilation or central
vacuum systems?  There is a lot of things that we would have to take a
look at.

		Plus, we have huge concreted areas that we use mobilized sweepers.
And they are not vacuum systems; they are sweepers.  So are those going
to be obsolete and we'll have to go to a different type of equipment?
And that's a big expense.

		MS. DOWNS:  Do you have any sampling data that would show how much
respirable silica is being kicked up by sweeping or by using those
sweepers?  Have you guys ever looked into that?

		MR. BROWN:  Well, yes, we have.  They are part of the sampling.  But
during -- they're just like our mining equipment; they are all enclosed
cabs and air-conditioned.  So we make sure we have HEPA filters on all
of our filtering systems inside the cab to protect those associates.

		MS. DOWNS:  You don't have any area samples though of how much dust is
being suspended while you are sweeping or using those sweepers?

		MR. BROWN:  No.

		MR. LATHAM:  We just do it on the employees.

		MR. BROWN:  Yes.  That's first.

		MS. DOWNS:  And I think I'm done.  Thank you, gentlemen.

		MR. O'CONNOR:  I believe Mr. Burt has an additional question.

		MR. BURT:  Yeah, just one more question.  You mentioned concern about
the cost of clothing and changing clothing.  Did you include that in
your cost estimate?

		MR. TAYLER:  Yes.

		MR. BURT:  Where is that?

		MR. TAYLER:  That would be under the respiratory protection equipment.

		MR. BURT:  Sorry?

		MR. TAYLER:  The respiratory protection equipment, it would probably
be in there.

		MR. BURT:  Okay, thank you.

		JUDGE SOLOMON:  Anything else?

		MR. O'CONNOR:  Yes.  Dr. Tayler, in your written comments, you
indicated that respiratory protection, when introduced, has resulted in
unsafe working conditions for your associates.  Could you elaborate on
that?  I think you had mentioned heat stress.  Are there other factors
involved there as well?

		MR. TAYLER:  Yeah, as Mr. Brown said, there is a great deal of
labor-intensive activity handling the product at the end of the process.
 And the amount of heat stress that would develop from placing a person
in that type of protective suit would result in some serious health
problems for that person.

		MR. LATHAM:  I think it's health and safety, too.  The monorail system
is such that when you are in that type of a suit, you have the
respirator, you lose vision.  And it's a very quick process, and there
are brick coming from down that line.

		And you've got a line of about, you know, 4 to 10 people that are
involved in it.  There is more than one person, which you would likely
have, if you've got one of those people with exposures above the limits,
then all of those could have that, and their interacting could cause
safety issues with regard to that, too.

		MR. BROWN:  And also we have mandatory eye protection and hardhats
that they are wearing.  So under these Tyvek suits, they would be
wearing a hood, basically a full suit and booties, because they could
not get their shoes contaminated.  So you're putting them in, you know,
like a -- well, what do you call it --

		MR. TAYLER:  Clean room condition.

		MR. BROWN:  Clean room conditions, and we don't have air-conditioned
plants where they're going to be exposed to the elements, and we have --
we deal with heat stress, like I said, we have a very intensive program
to make sure that we've got liquids and Gatorade and cool-down periods
and constant monitoring through buddy systems to make sure these people
are, you know, not falling out, because when you get into those kind of
temperatures, your core temperature can go up fairly quick.  So we have
to ensure that they take in plenty of -- so they don't dehydrate.

		MR. O'CONNOR:  With regard to the use of respirators specifically and
the concerns about unsafe working conditions associated with them, have
you ever used powered air-purifying respirators?  And if so, have they
addressed your concerns with health and safety issues?

		MR. BROWN:  No, we have not used those.  And the reason why, it would
be almost virtually impossible to wear those type of respirators and
perform the tasks that they are doing.  Because you're looking at a
person, if they've got an air-purifying respirator, they're bending over
and pulling brick off of a keel car, and then stacking it.  So they're
constantly moving.  And you've got an air-purifying respirator on, and
you're looking at 12 people lined up about 2 feet apart all the way
down, so it's very difficult for them to wear something like that.

		MR. O'CONNOR:  Okay, thank you.  In Acme Brick's written comments, on
Page 3, there is a statement that in some cases the ambient air may
already contain levels of respirable crystalline silica higher than
allowed by existing OSHA regulations.  And I was wondering what the
basis for that statement was, whether you had any sampling data,
anything that you might be able to provide into the record?

		MR. LATHAM:  I don't think we have a -- we have not done a study.
Actually, Mr. Brown has done personal observations and taken
measurements, but it was not part of a regular study at some of our West
Texas operations.

		MR. O'CONNOR:  All right, thank you.  I'll turn it over to Annette
Iannucci.

		MS. IANNUCCI:  Hi, good afternoon.  I just wanted to follow up on your
concerns about protective clothing and potential heat stress.  Now,
considering that for grossly contaminated clothing, the proposed
standard offers an option of any means to remove excessive silica dust
from contaminated clothing that minimizes employees' exposure, now would
this be an option for you, a means to clean off the dust from the
clothing?  And would that alleviate your concerns?

		MR. BROWN:  No, because it really depends on which part of the plant
they are coming from as far as what their tasks are and where they are
working.  For instance, we don't use compressed air or anything like
that to blow clothing off.  That's prohibited.  And a vacuum system, we
have tried that, and that's not effective.  It's just too difficult to
decon people with cotton clothing, for instance.  It just makes more
sense to go to disposable type material.

		MS. IANNUCCI:  Okay.  And then just one other quick question.  Do you
have any idea of the percentage of your workers who are using
respirators now?

		MR. TAYLER:  Not many.

		MR. LATHAM:  Very little.

		MR. BROWN:  I would say probably two percent.

		MS. IANNUCCI:  Two percent.

		MR. LATHAM:  We're able to meet the current PEL.

		MR. TAYLER:  Yeah, most of the times.

		MR. LATHAM:  Most of the time.  So they're usually not on a permanent
basis.  They're on --

		MR. BROWN:  No.  It's usually a hiccup in one of those three samples.
And that's why we sample three times.  We want to make sure we get it
right and continuously provide a healthy work environment.  If we only
did one sample, you could go forever.  This way, that's our quality
control.

		MS. IANNUCCI:  Okay, great.  Thank you.

		JUDGE SOLOMON:  Anything further?

		MR. O'CONNOR:  Yes.  Anne Ryder has a few questions.

		MS. RYDER:  I just have a few questions.  I was wondering, you said
you have an action level of 50 right now.  How often are you able to
stay at that action level?

		MR. BROWN:  Most of our samples are between 50 and 1.

		MS. RYDER:  And 100 mgs?

		MR. BROWN:  And 100, yeah.

		MS. RYDER:  Okay.  And so I just wanted to clarify something you said
earlier.  Do you take remedial action when you are above the action
level or when you're getting results above the PEL?

		MR. TAYLER:  Once we hit the action level, our program dictates that
the manager and his team develop what they call a decap.  It's a plan to
address the problem.  And they would then consult with Mr. Brown and
the engineering team, and they get -- they would develop the best
possible solution, whether it be containment, ventilation, whatever.
And that would be activated, enacted, and there would be an ongoing
program of testing until we move out of the action limit.

		MS. RYDER:  Until you're at the action level.

		MR. LATHAM:  And it's below 50 is the action provided, yeah.

		MR. BROWN:  No, but it's 50 is --

		MR. LATHAM:  You're at 50, it is?  Okay.

		MR. BROWN:  Yeah, 50, and immediate respiratory protection.  And
that's why we do the annual PFTs with these potential areas that we
found those inconsistencies, like grinding area, that's typically the
area that we have issues, so because of the variables in the clay.

		MS. RYDER:  Okay.  So when you get results and you're a little above
50, and you have to bring in your team of experts to try to remedy the
situation, is that when you first try to implement some engineering
controls and then you -- are people going into respirators at that
point, too?

		MR. BROWN:  Yes, sir -- yes, ma'am.

		MS. RYDER:  No problem.  So there would be workers who are in
respirators who have exposure below 100?

		MR. BROWN:  That's correct.

		MS. RYDER:  Okay.  All right, and I guess how are you dealing with the
heat stress issues in that situation when your workers are in
respirators?

		MR. BROWN:  To be honest with you, it's a struggle.  What we have
issues with, like on the monorail, like I was telling you, when we have
to put those people on respirators, we have to come up with a solution
real quick because they cannot deal with that.  So --

		MR. TAYLER:  You need to clarify.  We have the N95 respirator, which
is small.

		MR. BROWN:  And I think the biggest thing we have is our
proactiveness, and the quick and the good engineering team that we have,
and our experience.  So we can look at that situation and where we have
improved things in the past, we can implement those things quickly and
then retest.  And where the time comes in is that we have to have three
tests to get to an okay level, basically, to clear them from
respirators.  And that takes three okays, not two okays and an action
level, for instance.  It has to be all consistent.

		MR. LATHAM:  One thing, too, that's critical.  I mean we're testifying
here on behalf of Acme, but we are one of the largest brick companies.
The other smaller brick companies don't have the engineering resources.
They don't have the EH&S resources that we have.  It would be impossible
for them to move as quickly as we can.  And that's something to really
be considered by OSHA.

		MR. BROWN:  And our sampling drives our program.  So we make sure
that, you know, it implements an entire program of all kinds of things
that interact.  And we call it a close-the-loop program when we finish
correcting the problem.

		MS. RYDER:  Okay.  Did you say you do your sampling in-house?

		MR. BROWN:  Yes.

		MS. RYDER:  What type of cyclone are you using?

		MR. BROWN:  Ten mm with I think it's a -- what is it, 37 mm cassette.

		MS. RYDER:  Okay.  And when you get your -- you send out the result,
you send out the sample to a lab and you get the results, how confident
do you feel in the accuracy of those results?

		MR. BROWN:  We do periodic -- well, I do the periodic reviews of that
lab.  It's WOHL out of Wisconsin.  And the reason why we picked that lab
is because OSHA sends their overflow there.

		MS. RYDER:  Oh.

		MR. BROWN:  And so we want to be as accurate as we can.

		MS. RYDER:  Okay.

		MR. BROWN:  Unless you'll let us send it to Salt Lake City.

		MS. RYDER:  Salt Lake, I don't know.

		MR. LATHAM:  You know, one thing to do with that, even that lab at .25
is coming up with some non-detectable areas.  We get some at that level
that says non-detectable.

		MS. RYDER:  Okay.  Now, I think you referred to your silica action
program many times.  Is this a written program?  Is that what you
pointed to?

		MR. BROWN:  Well, that's part of it.

		MS. RYDER:  Is that part of it?

		MR. BROWN:  Yes, it is.

		MS. RYDER:  Is that program something that you could submit to the
record, if you haven't done so already?

		MR. LATHAM:  We'll have to consider that and talk to the guys that are
above all of us here.

		MS. RYDER:  Okay.  I think that's everything.

		MR. O'CONNOR:  Bill Perry has some additional questions.

		MR. PERRY:  Yes.  This is Bill Perry, thank you.  Just a couple of
clarifying questions.  I want to make sure we really understand.  So
when you say sometimes you get non-detects, do you mean at .025 mg or --

		MR. TAYLER:  Yes, sir.

		MR. PERRY:  Because earlier I heard a .25 µg.  Okay, so it's .25 mg.

		MR. TAYLER:  Milligrams, yeah.

		MR. LATHAM:  And blame me for those misstatements.

		MR. PERRY:  That's quite all right.  It's easy.  Okay.  Let's see, you
indicated earlier that about two percent of your associates wear
respiratory protection, but that most of your air samples that you have
taken, most of the time they are between 50 and 100 µg/m3, right?

		MR. TAYLER:  Yes.

		MR. PERRY:  But you have an action level of 50, which then triggers
respiratory protection, so that seems to be a contradiction.  Could you
clarify that for me?

		MR. BROWN:  You have a good point.

		MR. TAYLER:  It's a discipline, really, isn't it?

		MR. BROWN:  Yeah.  It's the majority is below 50.  I'll just state
that.  That was my mistake.

		MR. PERRY:  That's quite all right.  Thank you.  I think, oh, the
sampler, okay.  You said that you use a 10 mm cyclone.  Is it nylon,
aluminum, either?  Is it Dorr-Oliver, SKC?

		MR. BROWN:  We use MSA.

		MR. PERRY:  MSA samplers, okay.

		MR. BROWN:  And they are now -- I think it, what is it, it starts with
a Z.  It's a new company that took it over.  But we use -- they're
really durable.

		MR. PERRY:  Okay.

		MR. BROWN:  And they are calibrated with a primary calibrator
annually.  And we use field calibration.  So the field calibrators are
calibrated every six months.

		MR. PERRY:  Very good.  Okay, thank you very much.  Appreciate it.

		MR. O'CONNOR:  And I think that concludes our questioning.

		JUDGE SOLOMON:  Okay.  Do you have any exhibits, Mr. Latham, that you
were going to --

		MR. LATHAM:  We've submitted our written statements already, and we
didn't have any slides or anything.  But we'll look at what you've asked
and try to find answers to that.

		MS. KRAMER:  Okay.

		MR. LATHAM:  I hopefully made a list and we'll get back, well, we'll
find that.

		MS. KRAMER:  What you can do is you could send that back during the
post-hearing comment period.

		MR. TAYLER:  Yeah, we will give that to you post-hearing.

		JUDGE SOLOMON:  Thank you very much.

		Ms. Ryder, do we want to talk on the record about how we're going to
proceed?  You said something about breaking it down into two panels.
How do you want to do this?

		MS. RYDER:  We can go off the record and try to figure it out amongst
ourselves.

		JUDGE SOLOMON:  Okay.  Let's go off the record.

		(Off the record.)

		(On the record.)

		JUDGE SOLOMON:  -- the panel, in fact it is already formed of people,
and we'll just go down the panel, and each one of you will introduce
yourselves and state who you are representing, and then we will go from
there.  Go ahead.

		DR. FISCHMAN:  I am Dr. Michael Fischman.

		JUDGE SOLOMON:  Are you close to a microphone, Dr. Fischman?

		DR. FISCHMAN:  Maybe not, sorry.  I'm Dr. Michael Fischman.  I am an
occupational and environmental medicine physician and toxicologist from
the Bay area.  I am here on behalf of ACOEM, the American College of
Occupational and Environmental Medicine.  And, in addition, I am
clinical professor in occupational and environmental medicine at UC San
Francisco.

		ACOEM, for those of you who don't know, is an organization of about
4,000 occupational physicians and other health professionals.  And our
primary mission is to protect employees and promote health among working
populations.  Did you want me to continue or --

		JUDGE SOLOMON:  No, just -- Dr. Cohen?

		DR. COHEN:  Hi, I am Robert Cohen.  I'm here representing the American
Thoracic Society.  I'm a pulmonary physician and I'm a clinical
professor at the University of Illinois in Chicago, in environmental,
occupational, and health sciences.

		DR. GUIDOTTI:  My name is Tee Guidotti.  I am a medical doctor
specializing in occupational medicine, and I'm a scientist in
occupational environment health.  I am here today representing the
Association of Occupational and Environmental Clinics, AOEC, which I
served as President in 2000.  AOEC was founded in 1987 to represent
primarily clinics and individuals.  And it has since grown to a network
of more than 60 clinics, most of which are at major universities and
training centers for occupational health.

		JUDGE SOLOMON:  And Dr. Sokas?

		DR. SOKAS:  I'm Dr. Rosemary Sokas.  I am an occupational physician.
I chair the Department of Human Science at Georgetown University.  I am
here to represent the American Public Health Association.

		JUDGE SOLOMON:  Okay.  Each of you will get about 10 minutes.
Dr. Fischman, you're up first.  Speak into the microphone.  Go ahead.

		DR. FISCHMAN:  Thank you for allowing me to come on behalf of ACOEM.
I think the general focus of our comments is going to be different than
some of the recent ones that you've heard in that it is going to focus
on some of the medical surveillance aspects and related areas that we
find important to share our thoughts on.

		First of all, we applaud OSHA's efforts here, renewed efforts to
revise the silica standard, and feel as if this is going to enhance
protection for workers and prevent disease in workers, that the reduced
permissible exposure limit will provide additional protection for
workers, although it will not necessarily be completely protective of
individuals who are exposed close to the permissible exposure limit for
a working lifetime, particularly in terms of the risk for lung cancer.

		We have some recommendations with regard to air sampling and exposure
assessment, but largely as it relates to our needs for information to
take good care of individuals involved.  When I say "our," that's
occupational physicians being able to do so, you know, wanting to ensure
that the sampling that is provided or submitted is representative of the
work activities in which folks are engaged, that they are an adequate
number of samples for determination of the sort of adequate statistical
basis to say that, indeed, the results suggest that levels are below a
certain level and adequate frequency of sampling, especially repeated
sampling, if their process changes.

		And I think most importantly that the information from that sampling
should be made available to the occupational physician or the clinician
who would be doing/conducting the medical surveillance.  They should be
provided with that information either for that individual or for
individuals that have similar exposure who have been monitored.

		The moving into the, well, one other area and I'll limit my comments
about endorsing some of the things that OSHA has indicated in the
standard, but we certainly support the use of alternative materials to
silica when that's feasible and when the toxicology and epidemiology
looking at those materials suggests that they are safe or safer than
silica.

		Moving on into the more specific area of medical surveillance, there
is a number of areas of comment.  We, our team, which consists of a
number of occupational physicians that put the comments together, the
comments then were subsequently reviewed by the ACOEM board.  We
strongly feel that the medical surveillance should be conducted at the
action level, rather than at the permissible exposure limit.  That
provides an additional element of protection for workers, especially if
there is variability in air concentrations present and if that --
sometimes, there may be cases where the air concentrations exceed the
action level or the permissible exposure limit, but they are not, the
person is not being monitored at that time.  So we support that the
trigger would be exposure at or above the action level of 25 µg/m3.

		In terms of the components of the exam, we strongly endorse the
requirement that there be a physical exam conducted by the clinician.
In addition to the sort of value of the exam itself, it also provides an
occupational physician for a face-to-face interaction between the
employee individual and a clinician to talk about concerns or symptoms,
and other problems.  We support the non-mandatory Appendix A, the
medical surveillance guidelines, in that it provides clinicians, some of
whom may not be as sophisticated in terms of the health effects of
silica, with information that will help guide them in the conduct of the
medical surveillance.

		So then some specific components regarding the imaging procedures.
OSHA had raised the question about whether or not CT scans or HRCT scans
should be used as sort of the initial screening medical evaluation for
workers.  And based upon our review of the literature and
recommendations from authoritative bodies, our recommendation is they
not be considered as equivalent diagnostic studies in medical
surveillance because the methods for evaluating the images and
determining whether or not there are potential problems on the images
are not so well developed for the CT scan as they are for plain x-ray,
chest x-ray films.

		There are additional risks or radiation exposure potentially
associated with using the CT scan instead of the x-ray, so there are a
lot of issues there.  We recognize that in the case of individuals who
have abnormal chest x-rays, that there then may be a role for CT scans
in following up on those abnormalities, but not, at least at this point,
recommend it as being the initial imaging procedure.

		Obviously, we support the inclusion of spirometry and support the
inclusion of the baseline testing for latent tuberculosis infection, the
tuberculin skin test or equivalent test because of the increased risk
for tuberculosis among individuals with significant silica exposure.

		Generally, we feel comfortable with and support the recommendation for
the frequency of medical surveillance, but our group felt as if the --
that after the initial evaluation, that a limited surveillance exam be
performed at 18 months, not including the chest x-ray, but as a way of
confirming that individuals are not being massively exposed and
potentially developing more serious, acute forms of silicosis.

		And I think, lastly, we wanted to emphasize that medical surveillance
has more than one purpose, that it, you know, obviously can identify
abnormalities in individuals and allow a determination as to whether
they might be related to excessive silica exposures.

		A maybe even more important function is that by looking at aggregate
information from those exams and having been reviewed by a qualified
individual with a background or an understanding of epidemiology and
toxicology and occupational medicine, that there is an opportunity to
ensure that the standard itself is adequately protective in that there
is not something that's being missed, problems in terms of the exposure
assessment in a particular worksite.

		So it is sort of a -- that is, I think, an important role.  And we
actually suggest that for larger employers, that there be a formal
requirement that the aggregate results, the identified results be shared
with the appropriate expert to look for that on a periodic basis, in
addition to the individual assessment of the medical surveillance exam
and the communication of those findings to the worker.

		And I thank you for allowing us to come forward and present our
comments.

		JUDGE SOLOMON:  You can pass the microphone.  Dr. Cohen?

		DR. COHEN:  Thank you, Judge Solomon, and OSHA Panel and peer
reviewers.  I just want to say a quick word about the American Thoracic
Society and the committee that we had that reviewed this proposed rule.
We are members of the environmental and occupational population health
assembly of the American Thoracic Society, or the ATS, which is an
organization of 15,000 clinician, researchers, educators, and public
health professionals who are dedicated to understand clinical and
scientific understanding of pulmonary disease and improving health
worldwide by advancing research, clinical care, and public health in
respiratory disease.

		Our particular assembly is focused on the contribution of
environmental or occupational factors to the burden of lung disease.

		I'd like to point out that our written comments were also sent out to
our sister professional organizations, and they were reviewed by them
and approved and co-signed by them, and that includes the American
College of Chest Physicians, which is also an international organization
of over 18,700 chest physicians, and the Association of Occupational and
Environmental Clinics, and Dr. Guidotti will speak about that
organization in a moment.

		And also the Council of State and Territorial Epidemiologists, or
CSTE, and that's an organization that works to advance public health
policy in epidemiologic capacity, an organization of members states and
territories representing public health epidemiologists.  And our
comments were reviewed by that board representing all 50 states and
territories, and signed it as well.

		So we are societies that are deeply concerned with improving
occupational safety and health, and whose members really care for these
estimated 2.2 million workers who have been exposed to respirable silica
and, as a consequence, are at risk for silica-associated diseases.  And
we are here really as advocates for the health of our patients and have
a compelling interest in the policies and the rule that OSHA has
proposed.

		We really strongly believe that the following three concepts pertain
to this.  One is that diseases related to the inhalation of respirable
silica are still occurring under the current standards.  We also believe
that these diseases are underdiagnosed and underreported, requiring
improved exposure monitoring to really characterize these populations
better, and medical surveillance to detect disease in the populations at
an early stage.  And we believe these diseases are entirely preventable.
 So those three things drive our approach to this.

		Therefore, we are really strong supporters of the OSHA proposed rule
and the reduced permissible exposure limit to 50 µg.  And we think that
will reduce and prevent hundreds of silica-related deaths and more than
thousands of new silica cases each year.

		I'd like to say that during my 32 years of work at Cook County
Hospital in Chicago, I'm a practicing pulmonologist, we do see these
diseases.  They are not relics of the past.  We see patients who are
coming in from foundries, coming in from stonecutting operations, from
little construction jobs and sites, with silicosis, an aggressive
disease.

		And I just want to share one case to humanize what we have been sort
of talking about statistically a lot today.  And that was a 39-year-old
landscaper who came to see me with symptoms of cough and shortness of
breath, and really gradually insidious but relentlessly progressive
symptoms.

		We saw him in the early 2000s.  And his chest radiograph showed
fibrotic scars throughout his lungs.  His CT scan showed some alveolar
fillings, air spaces filled with material.  I broncoscoped him, and we
got some kind of milky material and cruddy stuff out that turned out to
be proteinaceous material.  We sent it down to NIOSH, and they did
electronic microscopy, and it showed silicates.

		He had worked as a landscaper for 17 years in the Chicago area and
usually doing yard work.  But it turned out that when we took a real
occupational history, that he had been cutting porcelain brick and
specialized in paving designs, and was cutting this material without
respiratory protection and without -- actually dry-cutting it for at
least half the time, and only over a period of about three or four
years.  At any rate, we diagnosed him with silicosis and
silicoproteinosis.  We tried whole lung lavage on him.  He did not
really improve very much.  We sent him home on oxygen.  He passed away
just a few months later.

		So I'd like to say that we see these cases.  They are still occurring.
 Some of them are very severe.  We believe that they represent really
the tip of the iceberg.  And I think that the proposed rule which
includes provision for increased medical surveillance exams,
identification of hazards, and worker training would/could have
prevented these cases and will prevent cases in the future if they are
passed.

		The ATS really strongly agrees with OSHA's assessment that the
inhalation of respirable silica is strongly associated with disease in
humans and continues under the present standards.  We really believe
they have done a good literature review and that the exposure is related
to the adverse health outcomes that I mentioned.

		We also agree with OSHA's assessment of increased mortality and years
of life lost related to exposure to crystalline silica for both
malignant and nonmalignant respiratory disease at the current PEL of 100
µg.

		The data from the NIOSH work-related lung disease surveillance report
and others show a plateau in silicosis mortality since the 1990s, and we
are concerned that that has been the same without any further reduction
for more than 20 years.  So we think that we still have work to do.

		And I really want to emphasize and we feel very strongly about the
fact that these data are gross underestimates.  And given the long
latency period that we have talked about earlier today, our passive
reporting system where people -- we just wait for them to report it but
we are not actively searching out except for a few states that do active
surveillance.  It's sort of like when I was a medical intern, the lazy
interns had a saying that if you don't take a temperature, you won't
find a fever, so they won't have to go out there and do blood cultures
and work up the patient and take care of the patient.  And sometimes as
a society I feel that we are not taking a temperature at least in terms
of this disease process, that we have to really be doing a much more
active job.

		I think there are others that will testify in detail about the
malignant respiratory disease association and the strength of the
epidemiologic and toxicologic evidence which formed the basis of the
IARC classification of crystalline silica as a human carcinogen.  But we
believe that that data is strong and that that effect is real, and
further supported by recent studies, which I know you'll be hearing
about later in these hearings.

		But it is a major concern for our practicing community that care for
patients with this dreaded complication, and people who work in these
jobs often have co-exposures with tobacco smoke that magnifies the risk
of that complication.  We certainly support smoking cessation and other
interventions for them.

		We believe that the proposed rule of 50 µg is reasonable and that
there should be an action level of 25 µg for enhanced exposure
assessment.  And we, like ACOEM, feel that we'll not likely eliminate
the disease, but we concluded that it's probably the best that we could
hope for with our current state of knowledge and with the negotiations
that take place with the industry to try to come up with permissible
exposure limits.

		But we are very encouraged by OSHA's inclusion of medical surveillance
in this new proposed rule, and we think that that will better improve
our state of knowledge and inform our policies in the future as well.

		In terms of the medical surveillance, just to echo some of the
comments of Dr. Fischman, we think that the components that are
specified in the OSHA proposed rule are reasonable and useful and well
justified.  We strongly support including a history, a good medical and
occupational history, which we teach ad nauseam to our residents,
sometimes with success.  A physical exam is important, and spirometry
performed by certified NIOSH technicians would be very important.  We
don't want garbage spirometry that we see out in the industry all the
time.  We want real, not what I call cosmetic or ceremonial spirometry.

		We want a chest radiograph that's read by NIOSH certified B readers,
and we believe that the NIOSH B reading program can certainly amp up and
train enough certified B readers to handle any potential increased
workload.

		And we really believe that the examination -- we support the
surveillance examinations being carried out, the full exams every three
years.  And we think it strikes a reasonable balance for early detection
of lung disease with a usually long latency disease and consistent with
recommendations by other organizations.

		We think that OSHA's proposed rule requiring employers to refer
employees for exams if they have had a chest radiograph to someone a bit
more specialized is a good one.  We would augment the rule not just to
pulmonologists, although as a pulmonary supremacist, I think
pulmonologists are probably the best, but we wanted to include our
colleague occupational medicine physicians as well and think that they
are certainly very well qualified and capable of performing those
examinations.

		And we think that OSHA's rule requiring a written medical opinion from
the licensed healthcare practitioner and, if involved, the specialist
occupational medicine physician or pulmonologist, but appropriate
attention should be paid to confidentiality and protected health
information to prevent any unintended consequences of the communication
of abnormal exam results.

		One thing we wanted to raise, and it was in the proposed rule
questions, is the question of medical removal protection.  The ATS and
our signatory organizations thought that that was reasonable.  And it is
not in the proposed rule, but we thought something similar to the Part
90 program under the MSHA program for coal mine health and safety that
miners have available.

		We think if a worker is found to have evidence of clinical silicosis
under the new medical surveillance program, that they should have the
option of removal to a workplace that is no or very low silica in order
to minimize the risk of progressive disease.  It was not feasible before
because there really wasn't a medical surveillance option, but we think
it should be considered now.

		We had a couple of quick ancillary issues, and one is that we thought
that there should be a banning of abrasive silica agents in sandblasting
in the United States.  It is not addressed by OSHA, but we support such
a ban.  And it is one of the greatest risks from crystalline silica.
And NIOSH has been studying this in a concern since 1974, and there are
bans in many of the armed and uniformed services of the United States,
as well as Great Britain, Germany, Sweden, and other very enlightened
European countries.

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

		DR. COHEN:  My conclusion is that we believe that this disease related
to the inhalation of silica should be seen only on the pages of medical
history texts, not in our hospitals or clinics or on our patients' death
certificates.  And the proposed OSHA rule is a significant step in the
right direction of primary prevention.  And where there is documented
difficulty controlling exposures, we think the medical surveillance for
secondary prevention will be very helpful.

		I just want to thank our ATS committee members: Dr. Bill Beckett from
Harvard; David Christiani from Harvard School of Public Health; Tee
Guidotti; Occupational Medicine Specialist Cecile Rose from National
Jewish Medicine; and our chair, assembly chair, Kerry Rutledge (ph.)
from Yale.  Thank you very much.

		JUDGE SOLOMON:  Okay.  Dr. Guidotti?

		DR. GUIDOTTI:  Thank you, Your Honor.

		The chief long-term goal of the Association of Occupational
Environmental Clinics is to facilitate the prevention and treatment of
occupational and environmental illnesses and injuries through
collaborative reporting and investigation of health problems.  Our
members have collaborated.  They have investigated health problems.  And
many of them have, in fact, documented cases that demonstrate to us,
and, too, that should demonstrate to OSHA, that silica-related disease
is very much alive.  We see it.  We see it in the real world.  We see it
with real patients.  And we think that after 4,000 years of recognition
that silica kills, that it's high time to make some progress and put an
end to it, because as you know the progress has plateaued and we have
been in a stalemate.

		The Association of Occupational Environmental Clinics is signatory to
the statement prepared by ATS and endorses that statement in all
respects.  That statement strongly supports the proposed rule, and that
is AOEC's position.  AOEC also has some additional remarks.

		AOEC agrees with OSHA's assessment of the health effects, and as I
mentioned earlier, AOEC members have firsthand experience with these
health effects.  We think that it is extremely important to realize that
silica control of exposure is not all about silicosis, that silica
tuberculosis remains a threat particularly where there is a