they get from death certificates.  It's the problem -- the problem is
who is writing the death certificates.  And there is data on the record
to show that there is a lot of silicosis that's not being reported.  For
example, there is a study in New Jersey, a study in Holland.  But we can
talk about that later.

		MR. KENNEDY:  I would question is that work related, is it all work
related, too.

		JUDGE SOLOMON:  Okay.  You're --

		MR. SCHNEIDER:  Yeah, okay.  Well, thank you very much.

		JUDGE SOLOMON:  Okay.  Dr. Mirer?  State and spell your name, please.

		DR. MIRER:  Frank Mirer, M-i-r-e-r, CUNY School of Public Health and
AFL-CIO.  And Mr. Schneider asked all my questions, so I can yield my
time.

		JUDGE SOLOMON:  Ah, thank you very much.

		MS. NADEAU:  Thank you, Scott.

		DR. MIRER:  The Vice President of General Motors said if you had two
people who thought exactly alike, you only needed one.

		JUDGE SOLOMON:  Ms. Nadeau?

		MS. NADEAU:  Liz Nadeau, N-a-d-e-a-u, International Union of Operating
Engineers.  The IUOE, in its comments, made some recommendations to OSHA
about the treatment of earthmoving that is to divide earthmoving into
the dustiest types of earthmoving that fracture or abrade
silica-containing materials.  Can you name some of the earthmoving
activities that you would perceive to be the most likely to expose
employees to respirable silica?

		MR. KENNEDY:  I would say jackhammering probably is one, when we're
jackhammering rock or something.

		JUDGE SOLOMON:  That was Mr. Kennedy.

		MR. KENNEDY:  I'm sorry.

		MS. NADEAU:  Are there any other operations?

		MR. SANT:  This is Brad Sant.  I think more than the operation is the
material that's being moved.  You can be moving huge amounts of material
in an earthmoving operation where there is very little silica content
and have very little exposures.  Where on the opposite end, you could be
moving crushed granite or something like that that has a very high
content and it's not moving a whole of that where exposures can be high.

		I think the assessment early on, you know, in a general sense, that if
you know you're in this type of a soil environment, you should be much
more careful and, you know, maybe trigger that, not in every situation,
but when you're dealing with types of materials that are known to carry
high levels of silica and that's the type of earth you are moving, maybe
that's when those types of things kick in.  And I think we would agree
very much with the Operating Engineers on that idea of somehow
segregating this into high hazard areas versus low hazard areas.

		MS. NADEAU:  So you're talking about the content of the material, as
opposed to the construction task or activity that might be involved.
For instance, like rock ripping, is that something that you would
perceive?

		UNIDENTIFIED SPEAKER:  Right, right.

		MS. NADEAU:  Hoe ramming would be another one that would be, okay, are
there any other activities that you think that could possibly be
separated out and identified separately on Table 1, as opposed to
earthmoving across the board.

		JUDGE SOLOMON:  Okay.  You actually asked a compound question, and
they all nodded their head yes to the first question.  Now, the second
question, is that directed to somebody?

		MS. NADEAU:  Anybody, right, anybody who wants to answer the question
can answer.

		MR. KENNEDY:  To identify specific operations right now I probably
couldn't do that, but there are operations that are being dealt with,
with water trucks, water spray trucks and things like that, especially
when they are doing site clearing or something like that, and we see
that happening more and more.

		I had the opportunity to go to John Deere's training center and
watched them in action with their water trucks and everything, and it
does keep down the dust considerably.  And we were in Arizona at the
time.

		JUDGE SOLOMON:  Okay.  That was Mr. Kennedy again.

		MS. CONNOLLY:  And this is Una Connolly.  And I think where your
question is going is I think that Table 1 does need to be expanded.  It
does need to contain all those different types of tasks that need to be
done and the different levels of protection that needs to be done with
them, and what you can do as a worker.

		MS. NADEAU:  So that you would -- oh, go ahead, I'm sorry.

		MR. SANT:  I was just going to comment, you know, what I can almost
envision, this is Brad Sant, is almost a matrix where you have types of
operations versus types of soils or materials that are being moved.  So
if you're doing blasting or something where you know you're breaking up
the material, that's a high hazard area and that's someplace where you
really need to pay attention.

		If you're moving dirt that's clay, that's not likely to have a lot of
silica, that's something we could just set aside.  And so you're really
going to focus on the hazardous areas that are known hazards and deal
with it in a little more thoughtful way.

		MS. NADEAU:  So it sounds as though from what you said that where
there is fracturing or abrading or high levels of visible dust, you were
already using water and you're already controlling it in those
situations, at least the visible dust anyway.

		MR. KENNEDY:  Well, that's what we would like to see more of,
actually, do need to do it.  This is George Kennedy.  So, you know, I
can see that being done.  And I agree with Brad is that it would be nice
if we had -- if OSHA or NIOSH would take it upon themselves to develop a
table that does breakdown the various types of operations so that a
contractor would know.

		Because I know a lot of the associations and even the contractors,
themselves, don't have the funding to do the studies like the previous
speakers have done on their equipment and things like that, so it would
be nice if OSHA and NIOSH would step up to the plate and either give
grants or do studies in those areas and reach out to the contractors and
the excavation community, representing I guess both of us, so we could
see more about where we really do have issues that need to be dealt
with.

		MS. NADEAU:  So something like a regional database where you could see
silica content matched up with tasks so that you would be able to better
target your compliance resources?

		MR. KENNEDY:  That would be helpful.

		MR. SANT:  Absolutely.

		MR. KENNEDY:  Rather than just a one-size-fits-all regulation right
now that we feel is going to be extremely burdensome.

		JUDGE SOLOMON:  Okay.  That was Mr. Kennedy.  Mr. Sant is the one
who said absolutely.  And he nodded his head, for the record.  Do you
have any further questions?

		MS. NADEAU:  If that's okay?  There was testimony earlier in the week
and some questioning regarding fugitive emission dust laws that are
either state regulations, for instance in the state of Connecticut and
in the state of Massachusetts, and in some localities have fugitive
emission laws.  And I know that with roadwork, for instance, you
oftentimes might be on a public thoroughfare near a school or near a
hospital or near a residence with cars, and people don't want to have
the dust on their cars.

		How do you address working in highly populated areas in terms of
compliance with fugitive dust emission laws?

		MR. KENNEDY:  This is George Kennedy.  I'm not familiar with the
fugitive dust laws, but I know we are dealing with environmental
regulations, and the contractors are having to keep the dust down
because of environmental reasons, and that could be anywhere actually,
and wet methods for the most part.

		MS. CONNOLLY:  And I would have to agree with the wet methods.

		JUDGE SOLOMON:  Okay.  You're on this afternoon, so --

		MS. NADEAU:  So, okay, all right.  Thank you.

		JUDGE SOLOMON:  Okay.  How much time do you think you're going to
take?

		MS. KRAMER:  One moment, Your Honor.  Approximately 10 minutes or
less.

		JUDGE SOLOMON:  Okay, all right.  Go ahead, Ms. Kramer, or whoever is
going to ask the questions.

		MR. O'CONNOR:  This is Dave O'Connor.  I have just a couple of
questions for the Road and Transportation Builders Association with
regard to your written comments.

		On Page 3, you had indicated some concerns about the introduction of a
greater hazard and referred to employment of engineering controls in
some operations as being difficult at best, and also reducing workers'
ability to avoid hazards such as the movement of heavy equipment, and
issues with communication and dangers from high-speed traffic.

		And I was just wondering what type of engineering controls you were
referring to there, if you had examples?

		MR. SANT:  I have to go back and look at the testimony.

		MS. CONNOLLY:  Yeah, I have to go back and look at the comments.  But
I think there was a few comments all rolled up in one.  One of the
things that we do, because we are in an industry where our workers are
in the traffic, that's one of the things that we talk about the high
dangers.  And we have a lot of times of people coming and intruding into
our work zones.  I think that's --

		MR. SANT:  Yeah.  And I was going to try to remember back to the
comments.  I think part of what some of our concerns would be in those
situations is when you're using, say you're doing cutting and you're
using wet methods, and it does create a slurry, it can create a slippery
environment.  And, again, when we're doing that, we don't necessarily
have the vacuums and everything in place, as is commonly done now.

		So the concern is have you created a slippery walking surface
environment that seems to be dangerous for the workers to trip and fall
when they are very close to large pieces of equipment.  Or, likewise,
slip into traffic, could it create a hazard for the traffic.  These are
the kinds of things that we have to deal with that are concerns.

		We think that ultimately we can resolve those, but we're not -- we
haven't figured out how to do that yet.

		MR. O'CONNOR:  Okay, thanks.  That actually got into my next question,
which was with regard to that creation of a wet slurry, what types of
operations were you envisioning would involve a volume of water such
that it would create a slurry?

		MR. SANT:  I have seen that when you're doing cutting, you know, with
saws.  Breaking up concrete, jackhammers, you need some suppression
methods there.  I guess those are the two that primarily come to mind.
We are using a smaller piece of equipment that is, you know, putting out
water and there is not a retrieval system tied to that.

		JUDGE SOLOMON:  Okay, that was Mr. Sant.

		MR. SANT:  Thank you.  I'm Brad.

		MS. CONNOLLY:  Sorry, Your Honor.

		MR. O'CONNOR:  And one question for Mr. Kennedy.  In your written
comments, on Page 4, you indicate some issues with regard to the various
types of control measures and then say that NUCA believes the
contractor's safety management team is best equipped to determine the
appropriate control method for specific job site conditions.  And I was
just wondering how the contractor's safety management team would
determine appropriate control methods?

		MR. KENNEDY:  Well, most of our employers do have safety programs and
some kind of a safety department, so they either have one or more safety
directors.  Basically, they go out and they evaluate the sites.  And if
they notice they're in a situation where there is dust involved, or
they're cutting concrete and they see that they are not using the wet
saw or wet cut method, or wearing their respirators, they will enforce
that and make sure that that is done for the most part.

		You know, we have to rely on the people that are on site.  Again, we
feel that the varied regions -- various regions of the country, the
weather conditions, the climate, everything affects that.  So a
construction safety person should be out there evaluating the situation,
and they often do.  So that's the way they feel about it.

		MR. O'CONNOR:  Okay.  And what would the basis be for determining
whether a control such as wet methods would be appropriate or when
respiratory protection would be needed?

		MR. KENNEDY:  Well, like I said earlier, sometimes the wet methods
aren't possible for various, for different reasons, whether it be, as
Brad brought up or you mentioned a minute ago, the slurries could be a
problem if they are working close to the road and the slurry is running
out into the road, or the workers are working near the equipment and
they could slip and fall.  Or if it's cold weather, that's always a big
problem when you're dealing with wet cutting.

		I have not come across any of our companies that are using any kind of
vacuum systems yet.  I have asked around, and nobody seems to be using
vacuums.  So that would be what we'd be concerned about, so the wet
cutting is an issue in that respect.

		Now, the safety person would have to look and say, okay, well, we
can't use wet cut, it's too cold.  We've got, you know, it's 30 degrees
out or it's 25 degrees, so we're going to have use -- everybody is going
to have to wear their respirators today.  It would be up to the safety
-- and it's not just the safety guys, because the safety guys are
obviously training and educating the foremen and the supervisors who are
out there, so they're going to make that call, too.

		MR. O'CONNOR:  Okay, so it's not typically that they are doing
exposure monitoring and basing their actions on the results of that
monitoring, but looking at the activity, and drawing on their experience
and knowledge of that activity, and saying this is the appropriate
control, this is the appropriate action for that activity; is that
correct?

		MR. KENNEDY:  Yes.  This is George Kennedy.  And, yes, that is the
situation.  They have to evaluate the situation in the field as it is,
as it stands.

		MR. O'CONNOR:  Okay, thank you.  That's all I have.

		DR. COBLE:  This is Joe Coble.  Oh, excuse me.  I wanted to ask a
little bit about making the standard workable; there is concerns about
the regulated area versus written access control plan.  And what you
currently do now to restrict access to the work area; you mentioned
sometimes you are in proximity to passersby or whatever.  What
procedures are in place now to restrict access, and how do you see that
changing in response to what the requirements of the standard are?

		MS. CONNOLLY:  Well, currently, our contractors do something called
internal traffic control plan, which basically maps out exactly where
the people on foot should be and where all the mechanized machinery
should be.  And so, usually, utilizing that plan, you would also be able
to figure out if there is a hazardous event going on, you'd be able to
put that into your plan to keep your workers away from it.  But,
currently, that plan is utilized to make sure our people on foot don't
get run over, which is one of our big worries.

		DR. COBLE:  Yep, okay.  Thank you.

		MS. KRAMER:  I just have a quick follow-up on that.  My name is
Allison Kramer.  It's awfully difficult to get used to saying that,
isn't it.

		You mentioned the traffic control plan.  I assume that's on paper or
something, but how do you notify the folks that are walking around on
your work site?  Do you use cones or tape?  How does that work in
practice?

		MR. SANT:  There are two different controls that we're talking about.
There is the control for keeping the public out and that is generally
covered, it's a temporary traffic control plan, and it's going to
control pedestrians and motorists, etc., and that's governed by a
federal highway regulation called the Manual on Uniform Traffic Control
Devices.  So that is all the people outside the work area that are not
supposed to be there.

		For the people inside the work area, we are working hard, as Una
mentioned, to get this concept of internal traffic control, which has
kind of separated workers from equipment at this point, it has never
really been used to create a controlled access, but it could be.  And
that's part of, you know, a big part of our efforts right now that we're
working in our labor, government, contractor, cooperative efforts to get
that education out to the public.

		JUDGE SOLOMON:  That was Mr. Sant.

		MR. SANT:  This was Brad.  I'll just let you do it, Your Honor.

		MS. KRAMER:  If you have anything on that that you would like to
submit to the record, I understand it is in development now, we'd
appreciate it.

		MR. SANT:  Sure, yes.  We actually have quite a bit of information
thanks to a Harwood grant on that.

		MS. KRAMER:  Great.

		MR. KUCZURA:  My name is Greg Kuczura.  I have a question for NUCA.
It is in regards to the exposure assessment.  It says that it would cost
approximately $1,000 to $2,500 in consulting charges as per 5 samples.
And my question is, are those samples done on one day or multiple days?

		MR. KENNEDY:  The answer to that is they're done on that same day,
usually, for example, I have a couple of contractors tell me how they
have had consultants come out when they were cutting concrete or
concrete pipe and do assessment monitoring.  And, basically, the cost
was between $1,000 and $1,500 for the consultant.  And then about
approximately $100, depending on what lab you went to, per sample.

		And basically what they would do is put a pump and a cyclone on the
worker, and then test the four points of the compass around to get a
feel for what the exposure levels were in that area.  And from what I've
been told, those exposure levels were below the current PEL.  I don't
know where they were, because this was told to me about a year ago
before we got into this.

		MR. KUCZURA:  Okay, thank you.  My other question is for ARTBA.  And
it's actually in regards to the IRS Source Book.  Are you aware that we
will be updating the Source Book data when we do the FEA?

		MS. CONNOLLY:  This is Una Connolly.  Thank you.

		MR. KUCZURA:  Sorry?

		MS. CONNOLLY:  Thank you, that would be great.  That would be good.

		MR. KUCZURA:  I wasn't sure if you were aware.  I just wanted to ask.

		MS. CONNOLLY:  Thanks.

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

		MR. BLICKSILVER:  Mr. Kennedy, on the exposure assessment -- Bob
Blicksilver, OSHA.  On the exposure assessment, do you always need to
bring in a consultant, or are you able to train your workers, your
supervisors, or competent persons to be able to oversee the exposure
assessment on site?

		MR. KENNEDY:  This is George Kennedy.  From what I've found is very
few of our members have industrial hygienists on board or industrial
hygienist type technicians.  So basically could we train them?  I guess
we could.  But would it really be appropriate to do that, because when
you're talking about assessment monitoring, I mean there is a lot that
goes into that in terms of like calibrating the pumps and preparing the
samples and making sure they're handled properly and everything.

		So at this point, I'm not finding that anybody has people on board to
do that and they are reaching out to consultants.

		MR. BLICKSILVER:  Okay.  And, Ms. Connolly, you expressed concerns
about in the OSHA's economic analysis, the methodology of estimating
costs per exposed worker.  And you requested that or you suggested that
if there were a way to match these data at the firm level that might be
a more appropriate way.

		In your survey, will you be able to provide any data on current
programs at the firm level, or is that something you can request of your
members for post-hearing comments?

		MS. CONNOLLY:  We have surveyed and we have some anecdotal
information.  But I think we can probably put together something for
you.

		MR. BLICKSILVER:  Okay.  And in that information, will you be able to
identify what the additional or incremental burden or expense or time
will be associated with the silica rule and not just across all safety
and health programs?  That would be very important for our analysis.

		MS. CONNOLLY:  Okay.  Yeah, I think we can do that, as I'm looking at
Brad.  This is Una Connolly.

		MR. BLICKSILVER:  Sure.  And one further request.  Can you associate
those programs, if possible, with your exposure data, as well?  I think
you indicated that you would be able to provide exposure data.  Can you
match up exposure data controls and programs, even anecdotally, please?

		MS. CONNOLLY:  Well, we'll do the best that we can.  But as I said,
you know, most of our data for that is anecdotal, so it probably won't
be drilled down as far as you would like it to be.

		MR. SANT:  This is Brad Sant.  We would be very happy to work with
OSHA.  Perhaps, there is someone on staff that would, you know, could
assist us in developing a survey that would get to the type of
information that you're wanting and so we could do that together,
because we regularly go out to the members with these types of surveys.

		MR. BLICKSILVER:  Okay, thank you.

		MR. O'CONNOR:  That concludes OSHA's question.  Ms. Connolly,
Mr. Sant, Mr. Kennedy, thank you for appearing and testifying here
today.

		MS. CONNOLLY:  Thank you.

		JUDGE SOLOMON:  Okay, thank you very much.  It's 12:17.  And
Mr. Lazarchick, is he here?

		MR. LAZARCHICK:  Thank you for letting me join you.

		JUDGE SOLOMON:  Okay, now the question I have is should we take your
testimony now, or shall we take your testimony after lunch.
Ms. Kramer?

		MS. KRAMER:  Your Honor, OSHA's preference is that we take his
testimony now.  He's been waiting here very patiently.

		JUDGE SOLOMON:  Right, okay.  Does anybody have a health problem?  Any
reason why -- it's not really that funny; I mean what can I say?  I mean
I get this all the time.  We get lots of people with diabetes, for
example.

		MR. LAZARCHICK:  For time management, I could forego the testimony and
there would just be the questions.

		JUDGE SOLOMON:  Have a seat.  Okay, we're going to remain on the
record.  Just state your name, please.

		MR. LAZARCHICK:  Yes, so Brian Lazarchick.  I'm a certified safety
professional with a neighboring electric cooperative in Maryland, and
I'm speaking on behalf of National Rural Electric Cooperative
Association.

		JUDGE SOLOMON:  Okay.  So do you have a statement that you want to
proffer at this time?

		MR. LAZARCHICK:  Again, for time management, I could forego and just
field questions.

		JUDGE SOLOMON:  I mean a written statement.  Do you have anything in
writing, reduced to writing you want to give me?

		MR. LAZARCHICK:  Yes.  And just go from that?

		JUDGE SOLOMON:  Well, I'd put it into evidence.

		MR. LAZARCHICK:  Okay.

		JUDGE SOLOMON:  If that's what you want us to do.  Ms. Kramer?

		MS. KRAMER:  Thank you, Your Honor.  I would like to mark this
statement as Hearing Exhibit 69 and have it admitted to the record.

		JUDGE SOLOMON:  Okay.

(Whereupon, the document referred to as Hearing Exhibit 69 was marked
and	 received in evidence.)

		JUDGE SOLOMON:  Are there members of the public who wish to ask
questions?  I don't believe it.  Oh, one person.  Come forward,
Dr. Mirer.

		DR. MIRER:  Franklin Mirer, CUNY School of Public Health, AFL-CIO.

		JUDGE SOLOMON:  Spell --

		DR. MIRER:  M-i-r-e-r.

		JUDGE SOLOMON:  Yeah, thank you.

		DR. MIRER:  Okay.  So it's hard to ask questions about a statement you
haven't seen, but my question is do you or your members have any
exposure data that are relevant to this process?

		MR. LAZARCHICK:  Again, from the Electric Cooperative standpoint, we
generally split our cooperatives into the generation and just the
distribution.  We have zero data for distribution, in fact, that we
likely feel we have no exposure.  We're just auguring holes in the
ground for poles.  And for the generation standpoint data, I do believe
it was included in the initial submittal.

		DR. MIRER:  Okay, thank you.

		MS. KRAMER:  Your Honor, in case it helps anyone in the audience that
would like to ask questions, it appears that the statement that was just
submitted is either identical to or very similar to --

		MR. LAZARCHICK:  Yes.

		MS. KRAMER:  -- the testimony that was submitted to the record
previously.

		MR. LAZARCHICK:  Yes.  From the NRECA.

		JUDGE SOLOMON:  Come forward, please.  State your name again.

		MS. CORDARO:  Tressi Cordaro with Jackson Lewis.

		JUDGE SOLOMON:  You have to spell your name again.

		MS. CORDARO:  The first name is Tressi, T-r-e-s-s-i.  The last name is
Cordaro,

C-o-r-d-a-r-o.  I actually would just like to hear what your position
is, so if you don't mind kind of summarizing to some extent --

		MR. LAZARCHICK:  Okay.

		MS. CORDARO:  -- what your oral testimony would be, that would be
great.

		MR. LAZARCHICK:  Okay, absolutely.  So as I was mentioning, for the
cooperative world, we provide the electric power services for 47 percent
of the country.  We are not-for-profit.  We are not investor-owned
utilities.  We are member owned, so we keep our operating costs very,
very low.

		And for the distribution cooperatives, in that we don't actually
generate any electricity, we just buy it off the wholesale market, the
only exposures we have are from auguring holes into the ground for
utility poles and also putting in underground lines.  And for the
underground lines, we feel through the wet boring methods, plus through
the mini enclosed-cab excavators that there would be zero dust,
respirable size crystalline silica dust for our employees of that
nature.

		For the generation side, the only thing that we were really asking for
is obviously there is more of an exposure for the generation side, and
we were just asking for a year exempt or a year time lapse for the
actual proposed comment hearing.

		MS. CORDARO:  Can I ask -- so maybe a couple of questions.  Can I ask
what tasks in the generation?  I'm not completely clear what this
industry --

		MR. LAZARCHICK:  So within the -- anything dealing with the coal ash,
fly ash, and the combustion processes and the dust associated with that.
 So during outage work for the fly ash.  And then for the coal dust,
either before incineration, transporting it to the actual incineration
sites, or actually the waste as well after.

		MS. CORDARO:  Can you compare and contrast just so that I -- so I
understand, generation versus distribution, auguring poles, length of
time, short duration, and what your experience is with respect to
exposure monitoring?  I understand a little bit about this well enough
to maybe suggest that generation, it's a little bit easier because the
times may be a little bit longer for tasks than they are to some extent
in distribution.

		MR. LAZARCHICK:  Absolutely.  So auguring poles literally with the new
equipment could potentially take a minute to actually put the drill head
into the ground to expel, and then lastly is just shoveling the ground
back into around the pole.

		MR. LAZARCHICK:  Okay.  So with respect to what's being proposed by
OSHA, what is -- is there concerns with respect to compliance for
auguring holes for poles and actual compliance with the standard?

		MR. LAZARCHICK:  Yeah, so what we had submitted for the distribution
cooperatives was just exemption for the distribution cooperatives,
electric cooperatives from the standard for crystalline silica.

		MS. CORDARO:  And is the exemption due to the fact that it is short
duration?

		MR. LAZARCHICK:  Short duration.  You're not actually pulverizing the
soils.  It's more of a total dust regulum (ph.).  And, yeah.

		MS. CORDARO:  Okay, I think that does it.  Thank you.

		JUDGE SOLOMON:  Okay, thank you.  Ms. Kramer?  Mr. O'Connor?  Who
wants to speak?

		MR. O'CONNOR:  I just have I think one question here.  In your written
comments, you indicate that with regard to the distribution cooperative
workers, that their tasks are generally short in duration with regard to
silica exposure lasting from only a few minutes to, in general, no more
than an hour or two.

		MR. LAZARCHICK:  Yes.

		MR. O'CONNOR:  And then on Page 14, there is a small table that
presents some daily time frames.  And I was just trying to understand
this table.  Is this a typical worker for one of these cooperatives or
--

		MR. LAZARCHICK:  Yeah, so the table that you're referring to on Page
14, the auguring soil is traditional for one crew, one workday,
representative over the year.  So for the auguring soil, for one pole --
I'm sorry, for the entire day's job, you might augur soil for 30 minutes
for the day.  For trenching soil, again, same story.

		MR. O'CONNOR:  Okay.  So just so I understand the frequency and
duration of these activities that involve silica exposure for the
typical distribution cooperative, how many days per year would workers
typically perform these activities?  Is it every day, or is it just a
few days, or does it depend?

		MR. LAZARCHICK:  It would be your typical business week, so every day,
Monday through Friday.  But the auguring soil, again, that would be --
that's compacting, not doing just 30 minutes continuously.  You might do
a minute here, move down the road, do a minute at your next site where
you're going to augur, move down the road, do another minute.

		MR. O'CONNOR:  Okay.  But then these would be different employees or
different crews?

		MR. LAZARCHICK:  No, the same crew.

		MR. O'CONNOR:  Okay.  So would it then be one crew that was shoveling
soil for one hour per day and then operating the backhoe for two hours,
and then trenching soil for 45 minutes, and then auguring soil for 30
minutes so that it --

		MR. LAZARCHICK:  Absolutely, yes.  It's the same crew.  Literally,
when you become, like for the local electric cooperatives, you could
start auguring the pole, get in the backhoe, cover it up, then climb up
the pole and start performing the electrical work.  So it's literally a
universal workforce.

		MR. O'CONNOR:  Okay, thank you.  That's all I have.

		DR. COBLE:  I have just a -- this is Joe Coble.  Interested in on the
generating side, it appears your primary concern is with the potential
exposure due to the fly ash from the --

		MR. LAZARCHICK:  Well, the crystalline silica within the fly ash.

		DR. COBLE:  Right.  Do you have any information on what the percentage
of silica, crystalline silica in the fly ash is?

		MR. LAZARCHICK:  No, I do not.

		DR. COBLE:  Have you ever assessed exposures?  Are any of your members
ever monitored for it that you're aware of?

		MR. LAZARCHICK:  The local electric utility that I work for is just
distribution.  It's not generation.

		DR. COBLE:  Okay.

		MR. LAZARCHICK:  And the NRECA, during the last couple of months of
going through this, I don't believe that there was actually quantifiable
data to submit for the generation side.

		DR. COBLE:  Okay, thank you.

		MR. KUCZURA:  My name is Greg Kuczura, and I have a question in
regards to we have an estimated cost of $378 to $397 for the health
screening.  And in your comments, you claim that that's a low estimate
because of your distance from the doctor or a potential health expert.
Do you have an average distance or any type of data or information that
OSHA could use to determine an estimate?

		MR. LAZARCHICK:  We do not have that data now.  I'm sure we can
definitely compile it, though, and submit it.

		MR. KUCZURA:  Okay, thank you.

		MR. STONE:  This is Robert Stone.  And I think I only had one
question.  It had to do with the fly ash again.  Do you engage in
procedures now to deal with fly ash?  There are problems with fly ash
well beyond the silica, I would think.

		MR. LAZARCHICK:  Oh, I'm sorry.  Again, I can't really answer.  I'm
not with the generation cooperative.

		MR. STONE:  Oh, I see.

		MR. LAZARCHICK:  Anything outside of the initial submittal, we would
have to get back to you, the NRECA would have to get back to you.

		MR. STONE:  Okay, thank you.

		MR. LAZARCHICK:  You're welcome.

		JUDGE SOLOMON:  Mr. O'Connor?

		MR. O'CONNOR:  That's all we have.  Thank you very much.  We
appreciate you coming in.

		JUDGE SOLOMON:  Thank you for coming.  So it's almost 12:30.  We're
going to break until 1:30.  We'll start again at 1:30, and at that time,
the Industrial Minerals Association of North America will be up.

		Now, there are a number of organizations that are only getting 10
minutes each, so maybe you want to talk to each other about
consolidating the time.  All right, it's now 12:29, and we're going off
the record.

		(Whereupon, at 12:29 a.m., a lunch recess was taken.)

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

		JUDGE SOLOMON:  Off the record, after we closed this morning, I asked
if there was some way that we could accommodate the type of translation
that would be summarized rather than have word for word verbatim
translation, and we'll cross that bridge when we get to it, I think.

		Okay, so we have with us Mr. Ellis again.  How are you?

		MR. ELLIS:  Fine.  Thank you, sir.

		JUDGE SOLOMON:  Okay, so you get 10 minutes.  Everybody ready?  So
you're with the second panel?

		MS. WHITTED:  Second.  Stone, Sand, and Gravel.

		JUDGE SOLOMON:  Okay.  So on the fly, I guess, we could, if you want
to do it this way, we could do all of you at the same time and then have
questioning.  Mr. Ellis is a pro.  He's been through this before.
Okay.  All right, would you introduce yourselves, please, and then
Mr. Ellis will make his presentation.

		MR. ELLIS:  I'm Mark Ellis with the Industrial Minerals Association -
North America.

		MS. WHITTED:  Pam Whitted with the National Stone, Sand and Gravel
Association.

		MR. DRYSDALE:  And Dale Drysdale with the National Stone, Sand, and
Gravel Association.  Your Honor and members of the OSHA panel,
Dr. David Weill had a schedule conflict and could not be here with us
today.

		MR. ELLIS:  Okay, Your Honor, with your permission?

		JUDGE SOLOMON:  Sure.

		MR. ELLIS:  Good afternoon.  I'm Mark Ellis, and I'm President of the
Industrial Minerals Association - North America or IMA-NA.  IMA-NA is a
nonprofit, 501(c)(6) trade association, representing North American
producers and processors of industrial minerals and associate members
that support the industrial minerals industry.

		Industrial minerals are feed stock for the manufacturing and
agricultural sectors.  The value of industrial minerals is derived from
their unique chemical or physical properties.  Crystalline silica-based
industrial mineral products include glass, ceramics, specialty
additives, and building products.  They also are used in chemical
production to make foundry cores and molds used for metal castings, in
paints and coatings, filtration, metallurgical applications,
refractories products, oil and gas recovery, and recreational uses.

		IMA-NA is an umbrella organization, and nested under that umbrella are
producers of various industrial minerals, including industrial sand and
diatomaceous earth.  The National Industrial Sand Association, or NISA,
and the International Diatomite Producers Association, or IDPA,
represent the IMA industrial sand section and the IMA diatomite section,
respectively.  Both associations are founding members of the American
Chemistry Council's Crystalline Silica Panel, and have endorsed and
incorporated by reference the Panel's comments as their own.  IMA-NA,
likewise, has endorsed and incorporated by reference the NISA, IDPA, and
Panel comments in this rulemaking.

		Some IMA producer member sections produce or process essential pure
crystalline silica, while for others crystalline silica is at most a
trace contaminant.  IMA producer members' workplaces are predominantly
mining operations and, thus, they typically are regulated by MSHA, not
OSHA, for purposes of occupational safety and health.  However, the
crystalline silica-containing mine products they produce find their way
into OSHA-regulated workplaces, and the experience gained in their
production can be instructive for protecting workers in the OSHA
context.

		Regardless of their individual circumstances where the potential for
worker overexposure to crystalline silica exist, IMA-NA member companies
take serious leader obligations that contribute to a safe and healthful
workplace.

		To summarize IMA-NA's position, IMA-NA supports an OSHA comprehensive
crystalline silica standard that includes protective measures and does
not lower the existing exposure limit for general industry.

		To this end, we endorse (1) an OSHA permissible exposure limit, or
PEL, of 100 µg/m3 for all forms of crystalline silica, quartz,
cristobalite, and tridymite; and (2) establishing exposure assessment
and medical surveillance for workplaces where crystalline silica
exposures exceed an action level, or AL, of 50 µg/m3.

		IMA-NA believes that an OSHA comprehensive silica standard should
mandate the general industry employers whose workers are exposed to
respirable crystalline silica above the action level of 50 µg/m3 must
conduct dust monitoring of the air their workers breathe and must retain
records of that monitoring.

		In addition, the new standard should require that when workers are
exposed above the action level of 50 µg/m3, employers must provide
periodic medical surveillance that includes a chest x-ray and keep
records of that surveillance.

		IMA-NA also specifically wishes to draw OSHA's attention to two
documents it placed in the administrative record.  The first document
titled, The Practical Guide to an Occupational Health Program for
Respirable Crystalline Silica, and it's instruction guide MSHA 3108 from
2008, is the result of a cooperative partnership between IMA-NA and the
Mine Safety and Health Administration under MSHA's Alliance Program.

		The document provides guidance in the development and maintenance of
an occupational health program for exposure to respirable crystalline
silica and was prepared to assist those potentially exposed to
respirable crystalline silica in work environments.

		The second document titled Dust Control Handbook for Industrial
Minerals, Mining, and Processing, and this is NIOSH Report of
Investigation 9689 from 2012, is the result of a collaborative
partnership between IMA-NA and the National Institute for Occupational
Safety and Health to provide information on proven and effective control
technologies that lower workers' exposures during all stages of mineral
processing.

		While these two documents primarily were intended for application in
the mining industry, they nevertheless are applicable to OSHA-regulated
industries.  The two documents support the premise that silica-related
disease occasioned by occupational exposure is preventable and that the
comprehensive crystalline silica standard that IMA-NA recommends is
pragmatic, worker protective, and cost effective.

		IMA-NA and its member companies stand ready to share the knowledge we
have gained through many years of responsible work with crystalline
silica to help craft an OSHA rule that will effectively protect American
workers from silica-related disease.  IMA-NA appreciates the opportunity
to put these comments before OSHA for consideration, and I'd be pleased
to answer any questions.

		JUDGE SOLOMON:  Are you entering those documents as a proffer?

		MR. ELLIS:  Yes, Your Honor.  I'd like to offer in evidence a copy of
my written remarks, as well as the two documents I cited.

		JUDGE SOLOMON:  Okay.  Ms. Ryder, do you want to enter your
appearance for this afternoon?

		MS. RYDER:  Yes.  My name is Anne Ryder from the Solicitor's Office.

		JUDGE SOLOMON:  Okay.

		MS. RYDER:  I'll mark Mr. Ellis' testimony as Hearing Exhibit 70.
The Alliance with MSHA is Hearing Exhibit 71.  And the NIOSH Dust
Control Handbook is Hearing Exhibit 72.

		JUDGE SOLOMON:  Okay, without objection, they are hereby admitted into
evidence.

(Whereupon, the documents referred to as Hearing Exhibits 70 through 72
were marked and received in evidence.)

		JUDGE SOLOMON:  Now we will hear from the National Stone, Sand, and
Gravel Association.  And you have 30 minutes, if you want to take it.

		MS. WHITTED:  I'm not going to take 30 minutes.

		JUDGE SOLOMON:  Great.

		MS. WHITTED:  Thank you, Your Honor, OSHA representatives, and members
of the public.  My name is Pam Whitted.  I am Senior Vice President of
Legislative and Regulatory Affairs for the National Stone, Sand, and
Gravel Association, or NSSGA.  On behalf of our members, with whom I
have had the privilege to work for the last 13 years, I appreciate the
opportunity to participate in this public forum.  We deeply honor the
systems and traditions that enable and encourage the inclusion of
diverse points of view in these important matters.

		I'll briefly describe NSSGA and its members in a moment.  But, first,
I urge everyone to consider our comments not solely as those of
employers and businesses, but also as members of the communities that we
serve, and frequently as employees of our own small businesses.

		Virtually, everything we do affects our families, and those of our
employees and neighbors alike.  NSSGA is a diverse association with
members that produce critical building materials, crushed stone, sand,
and gravel.  These basic materials are literally the foundation of our
modern society.

		For example, stone, sand, and gravel mixed with portland cement or
asphalt cement yields concrete for roads, bridges, schools, and office
buildings.  Its hundred other uses combine to form the basic
infrastructure that facilitates modern travel, provides us shelter at
home, work at leisure, protects our hospitals, and strengthens our
airport runways.  Our products are also used in pharmaceuticals and
cosmetics, paint, and many other consumer products.

		It is almost impossible to imagine our lives without countless
structures and products largely composed of stone, sand, and gravel that
we almost always take for granted.  Just look around here today, this
huge building and those that surround it.  But our industry is vastly
greater than the inanimate products.  In the U.S., our industry employs
more than 110,000 skilled workers, engineers, geologists, and many other
trades and professions.

		It is precisely the protection in the livelihood of our members'
employees and their families that bring us here today.  We completely
support OSHA's important mission and are grateful for the Agency's
countless positive contributions over many decades to improve employee
safety and health.  Many of us here are old enough to have worked in
days before OSHA existed.  We certainly don't want to turn the clock
back.

		In fact, OSHA directly regulates many of our members' workplaces from
the ready-mix concrete and asphalt plants of our vertically integrated
members, to the facilities of those who design and manufacture complex
construction equipment and other devices that process stone, sand, and
gravel.

		However, it is OSHA's sister agency, MSHA, that regulates our members
that directly produce the stone, sand, and gravel that build America.
MSHA has stated that it will propose a crystalline silica standard later
this year and it will use OSHA's regulatory analysis as a basis.  Thus
our comments today have relevance to the OSHA rulemaking and to future
MSHA rulemaking efforts alike,

		NSSGA and its members are proud of our long and positive relationship
with MSHA, whose mission and efforts have helped transform the mining
industry in the U.S.  Its safety standards have saved the lives and
protected the health of innumerable employees over many years.  Every
single year, MSHA inspects every stone, sand, and gravel operation at
least twice, and underground operations four times.  Our members'
highest values concern the safety and health of those who they employ.

		As just one example, the injury and illness incident rates for our
sector have declined for each of the last dozen years to half of its
2002 value.  Preliminary results indicate that the rate declined again
last year.  Today, it is safer to work in our industry than it is in
many big box retail stores, restaurants, and hospitals.

		Crystalline silica is an issue of long-standing interest and concern
to NSSGA, one in which we have been involved for many years.  Silicosis
has plagued the world for centuries.  Yet, as you have heard many times
over the last two weeks, since the current OSHA limit took effect,
silicosis-related deaths in the U.S. have dropped by more than 93
percent.  And there is no reason to suspect that under-reporting occurs
more today than 40 years ago.

		The rate of decline is a public health success that should not be
discounted.  Still, that's not good enough.  In 1996, NSSGA publicly and
formally committed with then Labor Secretary Robert Reich to completely
eliminate silicosis from our industry.  Toward fulfillment of this
pledge, NSSGA years ago adopted a comprehensive occupational health
program for its members that is focused on measuring, reducing workplace
-- measuring and reducing workplace silica exposures by emphasizing
engineering controls.  The elements of that program have, for decades,
been used successfully to reduce exposures in aggregate operations.  It
is available to every stone, sand, and gravel producer.

		NSSGA also partnered with MSHA in 1997 and has since hosted dozens of
dust and noise workshops.  These multi-day, hands-on, intensive
classroom and field training events led by the MSHA instructors enable
our members to measure and reduce silica exposures in their own
operations.  The combination of these and many other exposure controls,
including respirators, are in part responsible for the low levels of
silica overexposures in U.S. stone, sand, and gravel operations
according to MSHA's own air-monitoring data.

		We have watched OSHA struggle with the silica standard for the last 10
years.  We participated in the SBREFA process a decade ago, participated
in Small Business Administration roundtables and discussions, and joined
in numerous other forums to explore a reasonable rulemaking approach.
Then we read the Agency's proposed rule.  We have participated in the
crystalline silica panel of the American Chemistry Council for many
years and fully support the comments and statements it has provided in
these proceedings.

		We believe that a balanced view of silica research indicates that the
current PEL is adequate to prevent silica-related disease, but that all
employers must comply with the current limit and OSHA must enforce it.
Accordingly, NSSGA supports reasonable requirements for exposure
monitoring and medical surveillance when silica exposures exceed the
current PEL.

		A significant concern we have relates to the ability of laboratories
to measure workplace silica levels.  You have already heard evidence
that many commercial laboratories may not be able to measure silica
exposures at or below the current PEL on a reliable and consistent
basis.

		To the extent that our concern is warranted and we believe it is, the
situation will be exacerbated with the influx of samples that labs will
receive if the standard is issued as proposed.  This tsunami of samples
will not encourage labs to fulfill the painstaking intricate
requirements that the methods demand, particularly at the proposed PEL
and action level.

		OSHA clearly anticipates this problem given its proposed two-year
delay for commercial labs.  Yet, the Agency intends to move ahead, and
we have no reason to believe that OSHA would not hold employers
responsible for the compliance during this two-year period.
Accordingly, we believe that the measurability question is sufficient
reason alone for OSHA to withdraw the proposed rule until all affected
labs demonstrate the necessary levels of proficiency that regulated
employers need and deserve.

		Also of concern to our members is OSHA's proposed action level.  We
believe that a compliance-based action level will rarely benefit
employees and will afford many employers the illusion of relief at best.

		Finally, as you have heard -- also heard in this room, OSHA's proposal
is estimated by independent analysts to cost large and small employers
alike billions of dollars every year.  OSHA claims that the standard
will have a net positive economic effect on the U.S. economy, but that's
largely because it will increase the ranks of industrial hygienist
consultants, laboratories, various and sundry contractors, and lawyers
to which many employers will turn if the proposal is published as
written.

		Many of our members have already experienced a 20, 30, and even 40
percent reduction in their workforce during the recent economic
downturn, and few have managed to replace all the skilled workers they
lost.  OSHA's proposal will do nothing to increase direct hire
employment in the aggregate sector.

		In summary, while NSSGA fully supports and actually espouses the vital
mission of OSHA and MSHA, we cannot support a proposal that will do
little, if anything, to improve workplace health and safety, but will
instead lead to further layoffs and business closures, particularly
among members of the small business community.

		Your Honor, I'm out of time.  Again, I appreciate the opportunity to
address this group.  My colleague and I will be happy to respond to any
questions.

		JUDGE SOLOMON:  Actually, you beat the clock, one of the few people in
the last eight days who has actually beat the clock.  Okay.  Are there
people who have questions for this group?  There aren't that many hands,
and they are all on my right.  So, Ms. Trahan, I think you are first,
so if you want to come forward?  And would everyone else who has
questions line up after her.

		MS. TRAHAN:  Good afternoon.  Chris Trahan with the Building Trades,
T-r-a-h-a-n.  My questions I think are focused on National Stone, Sand,
and Gravel Association and based on your written comments.

		You mentioned several silica-generating tasks that are outsourced, in
your comments, drilling, blasting, sweeping, baghouse maintenance,
ready-mix concrete, truck drum cleaning.  Are these all outsources from
your member companies?

		MR. DRYSDALE:  This is Dale Drysdale.  Not all of them.  Some of our
vertically integrated members have both the quarry operations and
ready-mix operations in asphalt plants.  Some even have construction
departments and so forth; it just depends.  But I would say that the
average one probably does not have operations beyond the quarries.

		MS. TRAHAN:  So if the members that have these operations, are they
outsourcing them?  Is that what your comments --

		MR. DRYSDALE:  The feedback we have from our members who participated
with me on this said that a lot of it is outsources, yes.  I don't know
that I can quantify that for you, but it's significant enough to comment
on.

		MS. TRAHAN:  Did the feedback you received indicate the types of
controls that were used for those tasks I listed?

		MR. DRYSDALE:  I believe that most of that would have to do with the
sweeping, some of the sweeping is contracted, and the automatic
sweepers, some of which have dust controls and some of which do not.  I
think there is some cost information in there from one or two of our
members.

		MS. TRAHAN:  Ready-mix truck cleaning.

		MR. DRYSDALE:  Oh, I'm sorry.  I thought you were --

		MS. TRAHAN:  There are several tasks that were listed as being
outsourced.

		MR. DRYSDALE:  I don't have information on the ready-mix truck
cleaning.

		MS. TRAHAN:  Do you know if there is any exposure monitoring done of
those firms that are contracted with to complete those activities?

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

		MS. TRAHAN:  Do you have any information about the types of firms that
are contracted with for those activities?

		MR. DRYSDALE:  No, I'm afraid not.

		MS. TRAHAN:  You also mentioned that you are performing a lot of air
monitoring or exposure monitoring, your member companies are.  Is there
-- has that been submitted to the docket with your comments?

		MR. DRYSDALE:  Many or most of our member companies do their own
exposure monitoring or have consultants that do it for them.  We do not
have access to that information, so that would reside and remain with
the members themselves.

		MS. TRAHAN:  So there is no way the association can provide that
information; is that what you're saying?

		MR. DRYSDALE:  No, I'm afraid not.

		MS. TRAHAN:  The employers who contract out the hazardous list of
tasks that I mentioned, do you know the type of -- the method of
communication they have with their contracting firms who perform those
tasks?

		MR. DRYSDALE:  I would say that those are potentially hazardous, and I
don't know the answer to your question.

		MS. TRAHAN:  That's all.  Thank you.

		JUDGE SOLOMON:  Thank you.  Next?

		DR. WELCH:  Hi, Laura Welch, W-e-l-c-h, with the Building Trades.  Are
you doing any medical surveillance or do member companies do medical
surveillance on their workers?

		MR. DRYSDALE:  The answer is yes.

		DR. WELCH:  And do you have any aggregate data on the x-ray results?
Do you know anything about that?

		MR. DRYSDALE:  No, we do not collect that information from the
members.

		DR. WELCH:  Okay, thanks.

		JUDGE SOLOMON:  Thank you.

		MR. SCHNEIDER:  Okay, Scott Schneider with the Laborers' Health and
Safety Fund.  It's

S-c-h-n-e-i-d-e-r.

		Thanks for your testimony.  You said you are asking OSHA basically to
put out a standard with a 100 µg PEL and a 50 µg action level.  But in
your testimony, you were complaining about the action level, saying that
you thought the action level was not going to be helpful.  Yet, last
week, we heard from the National Industrial Sand Association that said
that they were very strongly in support of an action level.  Can you
explain why you felt like an action level would not be useful?

		MR. DRYSDALE:  This is Dale Drysdale with NSSGA.  Yeah, we do not
recommend an action level as a compliance endpoint.  And this, excuse
me, if you'll remember the discussion a couple of days ago about Table
1, I think this is kind of in the same realm where it's a good thing
perhaps for an internal guidance issue for some organizations.  But as a
compliance endpoint, no.  We believe that it confuses the standard and
that it can have a pernicious effect from a couple of different
standpoints.

		One, it is easy to, in a random series of numbers, of samples,
particularly given the lack of -- potential lack of precision from some
of the commercial labs, it's easy to get numbers that can be below an
action level and are truly not.  And that is an opportunity for an
employer to stop sampling for that particular employee until the
environment changes; yet, there can still be exposures that are above
the action level.  So we think it provides, in many cases, a false sense
of security.

		MR. SCHNEIDER:  So you're saying that the action level may not be low
enough?

		MR. DRYSDALE:  No.  I'm saying that it presents -- it is the wrong
approach, in my opinion.

		MR. SCHNEIDER:  Well, when should an employer stop sampling?

		MR. DRYSDALE:  I think that should be depending -- that the individual
employer should make that determination, but that they should do enough
sampling to ensure that their exposures are below the PEL.  How they
manage that is up to them.  My concern is from a compliance standpoint.
The action level, I believe, is not helpful.

		MR. SCHNEIDER:  And, Mark, is the National Industrial Sand Association
a member of yours?

		MR. ELLIS:  Yeah.  We're an umbrella organization --

		MR. SCHNEIDER:  Right.

		MR. ELLIS:  -- and National Industrial Sand is a member, as is the
International Diatomite Producers Association.

		MR. SCHNEIDER:  Okay.  And now you both said that you thought the PEL
should be 100 µg.  Is that based on your sampling data that you have
saying that you don't have -- wouldn't have a problem complying with a
100 µg standard or just based on your --

		MR. DRYSDALE:  I can answer for NSSGA.  We support the work that's
been done by the American Chemistry Council's Crystalline Silica Panel
and their experts have -- their interpretation of the literature informs
us that the current PEL is protective if it's complied with and if it's
enforced.

		MR. SCHNEIDER:  Okay.

		MR. ELLIS:  Mr. Schneider, I don't know --

		MR. SCHNEIDER:  Yeah, sorry.  I'm sorry.

		MR. ELLIS:  This is a difficult thing here, Your Honor, just because
we are not really related organizations.  But we do work together an
awful lot.

		MR. SCHNEIDER:  Right, right.  I apologize, yeah.

		MR. ELLIS:  But I'll just offer our perspective --

		MR. SCHNEIDER:  Sure.

		MR. ELLIS:  -- just to set the record straight.  We, on the contrary,
support an action level set at 50 µg/m3 and we actually think that it
is a great motivating force in an OSHA comprehensive standard because it
offers an outlet for people that can come into compliance with a
practical action level to remove themselves from the operation of the
rule.  And that's a challenge for industries to try to get to a lower
level, one that would get them out of the rule entirely.  And by doing
so, they would be at levels that would be protective of their workers.
So we favor the action level.

		But like our colleagues here at National Stone, Sand, and Gravel, we
also believe that the current PEL is protective, and we find that based
on our actual experience over decades, as opposed to a hypothetical.

		MR. SCHNEIDER:  Experience in terms of do you do medical exams and you
have some results that show that it's protective, is that what you're --

		MR. ELLIS:  Yes.

		MR. SCHNEIDER:  Okay.  So you have some aggregate data, medical data
on your member companies?

		MR. ELLIS:  Our members report data to us on an annual basis in terms
of incidents of silicosis.

		MR. SCHNEIDER:  And those are all with B readers, right?

		MR. ELLIS:  They had been read by B readers, yes.

		MR. SCHNEIDER:  And when you talk about silicosis, you're talking
about 1/1 x-rays or 1/0 x-rays?

		MR. ELLIS:  1/1 is what we use to categorize reportable silicosis
under the program.

		MR. SCHNEIDER:  Right, okay.  And have you provided the data on --

		MR. ELLIS:  That question was asked of me in an earlier appearance
where I was representing the National Industrial Sand Association.

		MR. SCHNEIDER:  Right, right.

		MR. ELLIS:  And what I told the panel and told the participants here
was that that information is the companies' proprietary information.
They share that with us in an aggregate form.  And it is blinded so that
the communication can really take place within the association.  But in
terms of making that information available to OSHA or to anybody else,
that's a matter that we'll have to consult with our members on.

		MR. SCHNEIDER:  And how long back -- how far back does this
information go?  Is it 20 years or --

		MR. ELLIS:  We've been keeping the silicosis prevention program that
we have at NISA has been operating since 1994.

		MR. SCHNEIDER:  '94, right, right.

		MR. ELLIS:  And many of the companies have been doing chest x-rays,
pulmonary function tests, TB tests for longer than that, 30, 40, 50
years.

		MR. SCHNEIDER:  Right, right.  Now, do you guys, I mean I know there
is some controversy about this, but are you -- do you treat silica as a
lung carcinogen?  Do you believe that it is, based on the evidence from
the International Agency of Research?  Do you tell your employees that
it could cause cancer?

		MR. ELLIS:  I'm assuming you're directing that at me.

		MR. SCHNEIDER:  Yes, let's start with you.

		MR. ELLIS:  Okay.  I can't speak for the member companies.  I can give
you anecdotally what they do, because the association does not weigh in
on those --

		MR. SCHNEIDER:  Right.

		MR. ELLIS:  -- particular issues.  But I know that most of the
companies that are members, the producer member companies produce MSDSs
or --

		MR. SCHNEIDER:  Right, SDSs, yeah.

		MR. ELLIS:  -- safety data sheets, I guess they're now called.  And
then they report hazards in there.  And typically there is a
pronouncement relative to findings by the International Agency for
Research on Cancer or for the National Toxicology Program.  And that
information is, you know, included in their SDSs and on their labels as
part of commerce.

		MR. SCHNEIDER:  Right.  Okay, thank you.  Do you want to respond to
that?

		MR. DRYSDALE:  Sure.  This is Dale Drysdale, again.  Yes, the same
answer.  We don't collect the information from our members.  But the
material safety data sheets that I have seen, I can say without a doubt
I haven't seen one that doesn't mention IARC, NTP, and OSHA, listing
crystalline silica as a carcinogen.

		MR. SCHNEIDER:  Okay, thanks very much.

		JUDGE SOLOMON:  Okay.  Ms. Ryder?

		MS. RYDER:  Sure.  Dave?

		MR. O'CONNOR:  Yes, this is Dave O'Connor.  I have just one question
for the NSSGA.  It's a two-part question, thought.  In your written
comments, you indicate that regulated areas and written access control
plans are not feasible in many aggregates facilities.  First, are you
referring to facilities that would be under OSHA jurisdiction?  And if
so, could you elaborate on why you don't think those regulated areas or
access control plans are feasible?

		MR. DRYSDALE:  This is Dale Drysdale.  Our comments relate to -- I
think we mentioned OSHA facilities, but we really are speaking to MSHA
facilities.

		MR. O'CONNOR:  Okay, thank you.

		MR. MOORE:  Dalton Moore.  My question is for the National Sand,
Stone, and Gravel Association.  In the comments that you submitted, you
talk about a comprehensive occupational health program that the
association has adopted.  And I was just hoping that you could describe
the program and how it has reduced silica exposures?  And you also talk
about some engineering controls, and if you could talk about how
effective they have been?

		MR. DRYSDALE:  I can answer part of your question.  This is Dale
Drysdale, again.  Our occupational health program is largely, stems from
the same source as the NISA program 20-plus years ago.  Bob Glenn, who
was then with NISA, and some of our member companies helped put that
together, and it has been supplemented since then.

		It has seven primary components.  The first component is driving a
management commitment to reducing silica exposures.  In addition to
silica, it also covers welding fumes, solvents, noise, and other
occupational hazards or potential hazards.

		The second component is communication and training of the employees.

		The third component is air sampling.  You heard Pam a moment ago
discuss how we have a partnership with MSHA, and the MSHA instructors
come in and train in three-day workshops, train member technicians to do
the sampling in their own facilities.  And, again, that goes to not just
silica, but welding fumes and solvents and noise and other potential
hazards.

		The fourth segment is exposure control programs.  And that supports
the industrial hygiene hierarchy of controls that we have heard a lot
about.

		The fifth part is medical surveillance.  And that recommends a
baseline medical exam, an occupational and work and social history,
pulmonary function test, x-rays with B readers, and audiometric testing
at 85 dBA.

		The sixth part is a smoking cessation program which encourages
employees to quit smoking, and in some cases discussed compensation for
quitting.

		The seventh component is a program evaluation and auditing mechanism
to ensure that the program is kept up to date.

		I would like to stress that this is a program that we make available
to all of our members.  And we have -- we continue to encourage them to
adopt it.  And from the feedback that we get, which would be anecdotal,
I can't quantify it, it is in place in most of the operations that I'm
familiar with.

		MR. MOORE:  Thank you.  Also, you talked about how the NSSGA has
hosted dust workshops.  And there are three-day, hands-on intensive
classroom and field training events that help enable members to measure
and reduce silica exposures at their own operations.  And I was hoping
you could talk about that and give us some insight on how your members
have been able to take what they have learned back to their specific job
sites?

		MR. DRYSDALE:  That's what I was referring to a few moments ago.
These are the three-day classes that are put on by MSHA instructors.
One of our members will offer up a workplace, typically a quarry, either
an open pit or an underground mine, and the MSHA instructor goes there.
The folks who sign up for the class from the different member
organizations will collect, there and they spend three days on the
ground doing these training exercises where they stress the industrial
hygiene sampling method.  They also discuss exposure controls and other
issues.  That has been going on for at least 15 or 20 years.  I don't
have the exact date.

		The feedback that I'm aware of would again be anecdotal, that many of
the members now do their own air sampling as a result of being able to
spend the time in this class and with the MSHA instructors.

		MR. MOORE:  Okay, thank you.

		MR. KUCZURA:  My name is Greg Kuczura.  I have a question in regards
to the wet vac sweepers that you submitted in your comments.  You stated
wet vac sweepers are typically 50 percent to 75 percent more costly than
the dry sweepers on facility roadways.  And I wanted to ask if it's
possible to submit your sources for that information?

		MR. DRYSDALE:  I'll be happy to get back to the source of that
information and ask if they can provide something that we can supply to
the record.

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

		MS. IANNUCCI:  Good afternoon.  This is Annette Iannucci.  I just had
a couple of questions for NSSGA.  Going back to your occupational health
program, have you submitted that to the record?

		MR. ELLIS:  We have not, but we'd be happy to.

		MS. IANNUCCI:  Okay, great.  Thank you.  And in your written comments,
you say that in the report, in the medical provider's report to the
employer, it should only include fitness for duty statements and
restrictions such as on the use of respiratory protection.  Can you
elaborate on why it's appropriate to only include that type of
information?

		MR. DRYSDALE:  I guess an easier way for me to answer that would be to
tell you what I meant or what the group meant who wrote it.  I
ultimately provided the document.  What we are trying to avoid -- I
don't think that we're in disagreement with OSHA on providing the
information to employees, to the contrary.

		What some of our members are concerned with is that they receive from
a physician, typically an outside physician because most of our members
don't have a medical staff, but they receive a medical file.  And they
are then in a position to have to lock it up.  And this is less of a
problem nowadays with HIPAA, but in days gone by it was a huge problem
because they had all these medical records and didn't know what to do
with them.  They were afraid to destroy them because of the access to
records rule.  And they really didn't want to peek through them because
we didn't typically have medical people on staff.

		So this is an attempt to say that what our members don't want is a
bunch of confidential medical records.  What they do want is something
from the physician saying we did an examination on this particular
employee, he or she is or is not able to do the following work tasks.

		If there is, for example, if there is respiratory protection, they can
do it with X number of hours, or whatever, just the job-related
specifics and not get into the person's extracurricular activities or
whatever shows up in medical records.

		MS. IANNUCCI:  Okay, thank you.  And just one more quick question.  In
your written comments, you also state that it might be difficult to
schedule an initial medical exam within 30 days in remote areas.  And I
was just wondering why that might be such a problem in remote areas?

		MR. DRYSDALE:  Well, in real remote areas, there are not too many
medical clinics, so they have to get a testing van.  And sometimes those
testing vans are not just right around the corner.  So it may be, you
know, we'll be in Montana in March or in June and we'll get to when we
can, otherwise it becomes a logistics issue.  But it's primarily the
logistics of getting a testing van to it.

		MS. IANNUCCI:  Okay, thank you.

		MR. STONE:  Robert Stone.  I had a couple of questions mainly for
NSSGA, but IMA-NA might find it applicable, too.  You provided a fair
discussion of all your training programs.  And I was wondering if you
pretty much support the requirements for training in OSHA's proposal?  I
know you're covered by MSHA, but --

		MR. DRYSDALE:  I'd want to go back and take a look at the language
again and get back to you on that.  I can't think of an example right
now where we are opposed to it.

		MR. STONE:  Okay.

		MR. ELLIS:  IMA, and NISA, and IDPA all support the training
provisions.

		MR. STONE:  Thank you.  My last question I wanted to go back to the
issue of regulated areas.

		JUDGE SOLOMON:  Mr. Stone, let me just say that the last speaker was
Mr. Ellis, and Mr. Drysdale was the speaker before that, so that we
straighten this out on the transcript.

		MR. STONE:  Thank you.  My last question concerned regulated areas and
written access control plans.  And you indicated that you think they are
not feasible in large part because of the dynamic workplaces.  But you
currently operate under circumstances where I believe there are
substantial safety hazards, possibly collisions of vehicles, but more
likely running over pedestrians or other workers.  And I was wondering
what steps you have taken to reduce those types of risks?

		MR. DRYSDALE:  This is Dale Drysdale.  I'm not sure I'm the best
person to answer that question for you in terms of the safety issues,
injuries, direct injuries, and things of that nature.  I'm probably not
the best person to answer that question.

		MR. STONE:  Okay.  Well, I didn't want information on injuries, but
basically procedures to prevent them.

		MR. DRYSDALE:  I know that certainly the members that I talk to have
internal procedures on avoiding accidents.  Specifically what they are,
I'm not prepared to --

		MR. STONE:  Okay, thank you.

		MR. DRYSDALE:  I just don't know the answer to that.

		MR. STONE:  All right.

		MR. ELLIS:  I know from the operations that I have worked in the past,
I mean they range from backup cameras on haul trucks, you know, to
putting lines down on the parking lot so that pedestrians have to move
within a certain frame so the drivers are aware where they operate.  But
it's a diverse industry, and I'm sure that they have many different
programs and different intervention activities to prevent those kind of
accidents.

		MR. STONE:  Okay.  But I'm wondering if some of those might be
something similar to, if not regulated areas, then perhaps having a
plan, a written access control plan, whether that might not be too far
afield from what's being done now.

		MR. ELLIS:  I can't speak to that directly, but there may be something
that we can come in, in terms of additional evidence for the record in
this post-hearing comment period.

		MR. STONE:  That would be great.  We'd appreciate it, thank you.

		MR. DAVIS:  These questions are principally for Dr. Ellis.  I guess
your organization is the co-author of the Dust Control Handbook with
NIOSH?

		MR. ELLIS:  Yes.

		MR. DAVIS:  And I'm focusing basically on Chapter 8, which focuses on
secondary control of air -- in terms of you talk about clothes cleaning
booth, vacuum sweepers, other secondary controls.  Could you comment on
that, their applicability to industrial settings?

		MR. ELLIS:  I'm doing this from memory and not from having the
document in front of me, but I think I can address it.  Let me speak
specifically about the vacuuming and clothes cleaning booth as it
applies to soiled work clothes.  This was a collaborative research
project between one of our member companies and the National Institute
for Occupational Safety and Health.  And there was an effort to try to
improve upon reducing the amount of dust or silica type material that
might find its way onto workers' clothes.

		Vacuuming can only get so much out, and it's difficult to move that
vacuum head around to get as much as you possibly can.  And what these
researchers were about to do was to develop a negative pressure
enclosure that uses controlled compressed air to lift the dust off of
clothing, and then suck it out and remove it through a filtration system
so that it doesn't contaminate workplace air.

		And in the matter of donning goggles and hearing protection, and
turning around once in the booth, they basically end up with clean work
clothes so that you don't have people that are slapping themselves and
entraining dust into their breathing zone.  So it's really effective
technology.  There is a video available on the NIOSH website that
details it and it is referenced in the material that we made available.

		MR. DAVIS:  A follow-up question.  What are your lessons learned in
terms of housekeeping procedures, continuous dust control, responding to
spills?

		MR. ELLIS:  I don't believe I'm competent to answer that question.

		MR. DAVIS:  Okay.  That's all my questions.

		DR. COBLE:  Joe Coble.  I want to ask you about the Dust Control
Handbook and the technologies that are presented in there that were
originally developed for mining are being put out under the idea that
these could be applied to other operations that have similar types of
equipment.  Is that --

		MR. ELLIS:  That's our position.  We feel it can, yes.

		DR. COBLE:  And where they have been proven to be effective, does that
include getting levels down below 50, at these operations where they
have been installed?

		MR. ELLIS:  I don't think that there was a quantitative measure that
was the driving force for identifying the different technologies that
are in that control handbook.  Essentially, what we're looking at was
what range of control technologies were out there and trying to document
them so that it could serve as a reference for people in mining or in
other industries that have essentially static dust exposure situations.
We think that it probably has more applicability to general industry
than it does to construction, for instance.

		DR. COBLE:  And so based on your review of members' reports, are they
down below 50 at most of your operations?

		MR. ELLIS:  You know, again, I wear many different hats.  And one of
the hats I wear is president of the National Industrial Sand
Association.  And so the reports that come in from the membership
indicate that, by and large, the members have to control below 50 µg to
reliably be below 100 µg where the existing PEL is.  And that's one
reason that we argue for maintaining the current PEL.

		DR. COBLE:  Okay, thank you.

		MR. ELLIS:  You're welcome.

		MS. RYDER:  I just have a couple of questions for the NSSGA.
Following up on what Annette Iannucci was asking you about with your
occupational health program, I think you mentioned that you do medical,
you recommend medical surveillance as part of that.  What is the trigger
for that in terms of how many days workers would be exposed above 100 or
50, whatever the exposure level is?

		MR. DRYSDALE:  I'm going to have to go back and look at it, but I
think the answer is that the recommendation is if you have people
exposed over the 100 µg/m3 level.

		MS. RYDER:  Do you know for how many days out of the year?  Is it if
workers are exposed one day out the year?

		MR. DRYSDALE:  I apologize for not knowing the answer.  I doubt if it
would be 1 day, probably 30 days, if it's a recommendation, if there is
a time limit.

		MS. RYDER:  Okay.  I'm going to follow up.  You might not know the
answer, but do you know how your member companies are keeping track of
the workers who are exposed at that level?

		MR. DRYSDALE:  I do not.

		MS. RYDER:  Okay.  One other question.  I think you mentioned that air
sampling is part of that program, also?

		MR. DRYSDALE:  That's correct.

		MS. RYDER:  Do you know what type of -- do you recommend a certain
type of sampler be used to do that monitoring?

		MR. DRYSDALE:  We recommend that they follow the NIOSH 7500 method,
which is the Dorr-Oliver cyclone for a full shift.

		MS. RYDER:  Okay, great.  Thank you.  That's it for me.

		MR. O'CONNOR:  That's all the questions we have.  Thank you very much
for testifying here today.

		JUDGE SOLOMON:  Before you leave, are there any documents that you
want to proffer from either group?

		MS. RYDER:  If you have a copy of your written remarks, I can mark
that.  I'm going to mark NSSGA's written remarks as Hearing Exhibit 73
and ask that be admitted into the record.

(Whereupon, the document referred to as Hearing Exhibit 73 was marked
and 	 received in evidence.)

		JUDGE SOLOMON:  Okay, thank you very much.  The Operating Engineers
have granted one of the other speakers to take their first part of their
presentation; in other words, we're going to move their presentation
back.

		So is Juan Ruiz here?  Okay, you have 10 minutes.  And you are la
trotasera (ph.)?

		THE INTERPRETER:  Yes.

		JUDGE SOLOMON:  Si, okay.  So why do we need translation?

		THE INTERPRETER:  Mr. Ruiz is going to be presenting his testimony in
Spanish.

		JUDGE SOLOMON:  Okay.  Will you state your name, please?

		THE INTERPRETER:  Me or Mr. Ruiz.

		JUDGE SOLOMON:  You.

		THE INTERPRETER:  Anna Duncan.

		JUDGE SOLOMON:  Okay.  Normally, what I would do is swear in the
interpreter.  But under the rules -- we're operating under very benign
rules.  So I would ask, Ms. Ryder, if I should swear in the
interpreter?

		MS. RYDER:  No, I don't think --

		JUDGE SOLOMON:  Okay.  So, briefly, ma'am, I would ask you, if you're
the interpreter, I want to ask you, okay, what experience do you have as
an interpreter?

		THE INTERPRETER:  I've been working as a simultaneous and consecutive
interpreter since approximately 2006.

		JUDGE SOLOMON:  Okay.  So we do not need a word for word translation
into the record.  So what the record should show is only the English.

		THE INTERPRETER:  I'm not sure I understand what you're instructing me
then.

		JUDGE SOLOMON:  Have you ever done translation for the Social Security
Administration?

		THE INTERPRETER:  No.  I have done translation for hearings in the
Congress and for D.C. government hearings, so similar.

		JUDGE SOLOMON:  Right.  They don't do them that way, okay.  The way
they do them is word for word, so you would have to put the exact
language that he would give you into the record.  The other way of doing
it would be that you would just listen to what he has to say and
translate to me whatever it is.

		Now, my experience is that there are -- for full disclosure, I speak
Spanish.  So it could very well be there are a number of idioms that do
not translate directly word for word.  So I don't want -- modismos, I
don't want to give you any examples, but there are lots of them.  So
we'll have to try to get the complete gist of his testimony.  Okay, so
state your name for the record, please.

		THE INTERPRETER:  Again, are you speaking to me or are you speaking to
Mr. Ruiz?

		JUDGE SOLOMON:  No, his name.

		MR. RUIZ:  Good afternoon, my name is Juan Ruiz.

		JUDGE SOLOMON:  Okay.  And where do you live, sir?

		MR. RUIZ:  And I live in Racine, Wisconsin.

		JUDGE SOLOMON:  Okay.  So what do you have to say?

		MR. RUIZ:  I worked for 14 years in a foundry called Racine Steel
Casting.

		JUDGE SOLOMON:  In the city of Racine, yes.  Go ahead.

		MR. RUIZ:  And in that foundry, we dealt with very bad conditions,
particularly because the dust that was created by the sand.  With this
dust, we couldn't even see 10 feet in front of us.  And I worked in the
foundry for 14 years, and the only thing that we had as protection here
was a fan that was behind us, that was several feet behind us.

		But in front of where we were working, there was a drill that was
making the molds that we were working on.  And so all of that dust was
coming back at us.

		And so after working for several hours in this condition, we would
come down from the area that we were working in and we would be very
dizzy.  And our supervisor would just give us packet of like flavored
water or flavored drink and say, oh, that'll take care of it for you.

		And it was very difficult because there were no extractors.  There was
no ventilation to take the dust out of the air.  They also refused to
open the windows because the supervisor didn't want the iron that we
were molding, that we were putting into the molds to get cold.

		And during that time, 80 percent of the workers were Hispanic and 10
percent were African American.  And I also know that a lot of our
colleagues died from lung cancer.

		And also the cars that were parked around the foundry would often get
dust would fall on it and these dust particles would stick to the cars.
And even though people would wash their cars, the dust was still stuck
to it.

		And it's very sad because even today the workers who work in foundries
in cities like Racine, Kenosha, Waukesha, Beloit, Wisconsin are still
suffering from these conditions.  And this is what I have heard from
based on my own experience and from the contact that I have had with
them and where they have told me about their experience in these cities.

		And that's why I think that it is very important to find a solution,
so that we don't continue have more and more workers killed as a result
of silica.  Thank you.

		JUDGE SOLOMON:  Do any of the public have questions for Mr. Ruiz?
Okay, you're number one, and you may be the only person who has
questions.

		MS. REINDEL:  Thank you very much for coming here today.  I was
wondering, you said you worked in a foundry for 14 years and that you
knew other workers -- you know other workers who work in foundries
today.  What do you hear from those workers about the conditions in
foundries today?

		MR. RUIZ:  I can say that the conditions that workers face today are
actually worse than the conditions that I faced, myself.  And this is
because many of the bosses don't provide personal protective equipment.
And when workers ask for them, oftentimes the boss will say, well, if
you don't like it here, then you can go.

		And the other answer that workers often hear is, all right, I'll give
you what you're asking for, but then I am going to deduct it from your
paycheck.  And I don't think that that's right.

		MS. REINDEL:  Okay, thank you.  What happens when workers bring other
safety concerns to their boss, in your experience?

		MR. RUIZ:  Another concern that we see is that when workers go to the
doctor, often the doctor doesn't give them their medical tests, the
results of their medical exams.  They give it to the boss, and so the
worker doesn't know what the conditions are that they are suffering
from.

		MS. REINDEL:  Okay, thank you.  And I don't think I introduced myself,
but Rebecca Reindel, R-e-i-n-d-e-l, with AFL-CIO.

		JUDGE SOLOMON:  Yeah, I appreciate that.  I was about to -- okay,
there is one other person in line, two other people in line, I guess.
State your name and spell your name.

		MR. DOOLEY:  My name is Peter Dooley, D-o-o-l-e-y.  And I am
representing National COSH Network.

		JUDGE SOLOMON:  What is COSH?

		MR. DOOLEY:  The Coalition on Occupational Safety and Health.

		JUDGE SOLOMON:  Okay.

		MR. DOOLEY:  Mr. Ruiz, you've described some situations that you've
heard from other workers.  What is your role in getting to know that
information in terms of how do you hear these stories from other
workers?

		MR. RUIZ:  The reason that I know these stories of other workers that
I am a health and safety trainer, and so I give a lot of workshops in
the cities that I mentioned to workers.

		MR. DOOLEY:  And in your time in the foundries, working in the
foundries, was there -- did you ever see air sampling be taken that
workers wore sampling equipment?

		MR. RUIZ:  There was a time when OSHA was doing these studies, but I
don't think that they were enough because the conditions continue the
same as they were.

		MR. DOOLEY:  Thank you.

		JUDGE SOLOMON:  Thank you.  You have somebody else?  You were in line?

		UNIDENTIFIED SPEAKER:  He asked my questions.

		JUDGE SOLOMON:  Okay, thank you.  Okay, Ms. Ryder?

		MS. RYDER:  I think Dave O'Connor had a question?

		MR. O'CONNOR:  Yes.  I have a question.  Did you or do workers in the
foundry receive any training about the hazards associated with silica
exposure and what measures can be taken to protect yourselves?

		MR. RUIZ:  No.

		MS. IANNUCCI:  Good afternoon.  This is Annette Iannucci.  I'd like to
follow up on the question about the employer receiving your medical
exams.  Besides not being able to find out about any medical condition
you might have, do you or any of the other workers have any fears that
the employer might retaliate against you if he finds out you have an
illness?

		MR. RUIZ:  Yes, that's correct.  And I have known several workers who
needed to know this information, who needed to get this information,
because they had been suffering for not one week, but three weeks from
coughs.  And so they went to the doctor and the doctor said, no, you
need to ask your employer for this record.

		MS. IANNUCCI:  Okay.  Do these workers have any fear that they might
lose their job if their employer finds out they are ill?

		MR. RUIZ:  And one thing from the previous statement, that these
workers were fired in some cases.  And the fear, there is a constant
fear of being fired, that the employer will actually follow through with
these threats.

		MS. IANNUCCI:  Okay, thank you, Mr. Ruiz.

		MR. RUIZ:  Gracias.

		JUDGE SOLOMON:  Ms. Ryder?

		MS. RYDER:  I don't think we have any more questions.

		MR. O'CONNOR:  On behalf of OSHA, I'd like to thank you very much for
appearing here and testifying today.

		MR. RUIZ:  And thank you to all of you for the work that you are doing
for this effort, not just on behalf of myself, but on behalf of all
workers.

		JUDGE SOLOMON:  Okay.  Thank you very much.  Ms. Nadeau, your panel
is up.  Okay, we're off the record for a second.

		(Off the record at 2:38 p.m.)

		(On the record.)

		JUDGE SOLOMON:  We're back on the record.  Ms. Nadeau gave me a copy
of the PowerPoint presentation, and I have passed that over to
Ms. Ryder.

		MS. RYDER:  Yes.

		JUDGE SOLOMON:  Do you want that entered into the record?

		MS. NADEAU:  As an exhibit, yes.

		MS. RYDER:  Okay.  I will mark this PowerPoint presentation Hearing
Exhibit 73.

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

		MS. RYDER:  I'm sorry.  Actually, it's 74.

		JUDGE SOLOMON:  I'm sorry, 73 is not entered, I guess.  Number 74 is
entered into evidence.

(Whereupon, the document referred to as Hearing 		 Exhibit 74 was marked
and	 received in evidence.)

		JUDGE SOLOMON:  Okay.  Ms. Nadeau, are you going to introduce
everybody?

		MS. NADEAU:  I was going to introduce myself and have them all state
their names, if that's appropriate.

		JUDGE SOLOMON:  Okay.  You gave me a docket that's available for the
public.  What is the document?

		MS. NADEAU:  In the interest of time, we put together a listing of all
the credentials of the group of seven subject matter experts, and I have
a copy for OSHA.  And on that table over there, if anyone wants to pick
up a copy of the description of their credentials, it's available for
anyone in the audience.  And if you want that as an exhibit, we can have
that marked as well.

		MS. RYDER:  Okay.

		JUDGE SOLOMON:  Okay.  So you get 90 minutes.

		MS. NADEAU:  Yes.

		JUDGE SOLOMON:  And then we'll have a question period from the public
and then from OSHA.  Go ahead.

		MS. NADEAU:  My name is Liz Nadeau, and I'm with the International
Union of Operating Engineers headquarters in D.C.  And we have a panel
of seven witnesses who will introduce themselves.

		MR. ZIMMER:  Kyle Zimmer, Health and Safety Director, Local 478,
Hamden, Connecticut.

		MR. TUREK:  Martin Turek, Assistant Coordinator and Safety
Administrator, Local 150, Operating Engineers, in Chicago.

		MS. McCABE:  Barbara McCabe, Program Manager with the Operating
Engineers hazmat program in Beckley, West Virginia.

		MR. MURPHY:  Keith Murphy, IUOE, Local 478.

		MR. HOPKINS:  Larry Hopkins, IUOE, Training Director, Local 12, in
Whittier, California.

		MR. HULK:  Donald Hulk, Safety Director, for Manafort Brothers, Inc.,
Plainville, Connecticut.

		MR. POULOS:  Marc Poulos, Executive Director of the Indiana, Illinois,
and Iowa Foundation for Fair Contracting and Board Member of the
National Alliance for Fair Contracting.

		MS. NADEAU:  The IUOE strongly supports the proposed rule as a
necessary measure to protect the safety and health of operating
engineers.  The IUOE also supports the testimony and comments of the
Building and Construction Trades Department and of the AFL-CIO.

		The IUOE's goals in advocating for changes to the proposed rule are to
protect its members to the fullest extent feasible and to ensure that
compliance resources of its signatory directors are best utilized.

		Of the 1.85 million construction workers affected by the proposed
standard, a great many are heavy equipment operators.  Indeed, about
half the Table 1 tasks are performed by operating engineers.

		Since operating engineers typically perform Table 1 tasks such as
working in rock crushing operations or milling for full shifts, the
impact of the rule on our members is tremendous.  The IUOE's
presentation focuses on the silica-generating tasks performed by
operating engineers.

		Our witnesses provide a detailed description of the Table 1 activities
involving the operation of heavy equipment and the critical importance
of safety training the competent person to the dangerous activities that
our members perform.

		The IUOE applauds proposed Table 1 as a proactive means to the
protection of workers before exposures occur, during activities that
fracture or abrade silica-containing materials.  This novel approach
will facilitate immediate implementation of engineering controls to
protect intermittent workers from exposures.

		The IUOE has assembled a team of witnesses from Connecticut, Illinois,
California, and West Virginia.  Our team includes individuals who have
worked at the trade, safety and health directors, directors of training
funds that are jointly trusteed with labor-management, a hazmat program
director, a corporation safety director, and an executive director of a
fair contracting group.

		In responding to the proposed silica standard, the IUOE has engaged
management from the very start.  Since OSHA issued this Notice of
Proposed Rulemaking, Locals 12, 150, and 478 have convened meetings with
contractors, manufacturer representatives, industrial hygienists, a
health professional who specializes in respirator use, and safety and
health consultants to obtain input in the development of recommended
changes to the standard.

		The IUOE also met with a team of seven scientists and engineers in
Pittsburgh NIOSH for assistance in developing the IUOE's recommendations
concerning enclosed cabs, the competent person, and environmental
conditions that may affect silica exposures.

		Finally, I would like to point out that we listened carefully to the
testimony of the Silica Partnership of which the IUOE was a part, and we
wholeheartedly endorse their testimony and recommendations.

		MR. ZIMMER:  Good afternoon.  My name is Kyle Zimmer.  And as I
stated, I am the Director of Health and Safety of the IUOE Local 478, a
local union in Hamden, Connecticut, that represents 3,000 men and women
in our trade.

		I'd like to start with telling you that I have been a volunteer
firefighter over the past 40 years.  Many of the firefighters, brother
firefighters I have fought fires with, died prematurely as a result of
unprotected exposures as we fought fires without respiratory protection.
 We were not afforded any protection of any type of laws in the '70s and
'80s pertaining to firefighting.  They died of a variety of cancers.  I
have diminished lung capacity as a result of exposure to toxins and
contaminants.

		It's too late for workers of my generation who have already been
chronically exposed to other contaminants and also silica in the
construction industry to benefit from this proposed standard.  We are
suffering the consequences of irreparable damage.  Our goal is to save
younger workers from developing similar health problems in the future.

		Since OSHA issued its Notice of Proposed Rulemaking in September of
'13, Local 478 has convened monthly meetings with Local 478 contractors,
manufacturer reps, a health and safety professional who specializes in
respirator use, and health and safety consultants to make recommended
changes to the standard.

		Based on the IUOE's experience in implementing the hazwoper standard,
the IUOE understands the importance of joint labor-management
cooperation to educate workers about invisible hazards on construction
sites.  The hazmat program is an example of the success that can be
achieved when management and labor work together to address serious
health hazards in the workplace.

		During each of our meetings on the silica standard, it came through
loud and clear that our signatory contractors want to fully protect
their employees from health hazards while running a profitable business.
 They agree that greater precision in delineating construction tasks
will enable contractors to better plan for implementation of controls to
comply with the new standard and will enable them to better target their
compliance resources.

		We have put our heads together to promote recommendations to OSHA that
will achieve these goals.  All the contractors expressed the desire for
greater guidance from OSHA, particularly regarding the use of objective
data, reliance on prior employee monitoring, engineering controls for
earthmoving demolition and milling, and respirator use for Table 1
activities.

		At the meetings, the contractors discussed the controls that the
currently use to control exposure to silica on the job site.  These
controls include use of water systems to suppress dust such as water
trucks and handheld hoses.  When performing the Table 1 tasks involving
the use of heavy equipment, contractors report that they are using
portable crusher control booths with air conditioning to operate the
plant remotely and dust collectors with baghouses at some crushing
operations.

		The contractors further advise that when working in close proximity to
traffic and the general public, their companies installed engineering
controls to mitigate the dust and minor debris generated by potential
silica-generating activities.

		The majority of Local 478's contractors have respirator programs
already in place to supplement engineering controls when the latter are
insufficient to control exposure to dust and other respirable
contaminants.

		The participants in the meetings addressed the issue of engineering
controls used during the winter, when the temperatures are below
freezing in New England.  The contractors stated that calcium chloride
is regularly used as a dust suppressant during site work.  According to
OSHA's 2009 publication, Controlling Exposures to Silica, chloride
compounds have lowered the freezing point of water, making them useful
in cold temperatures.

		OSHA's publication further states that chloride compounds work as dust
suppressants by attracting moisture from the air, they resist
evaporation.  A Quebec study cites the 2009 OSHA publication and
reporting that the addition of surface active agents to water increases
its capacity through the wetting of dust.

		In an industry in which workers are constantly exposed to hazards that
could result in traumatic injuries to themselves and their co-workers,
education and outreach is essential to make workers understand that yet
another hazard exists on the work site.

		All of the Table 1 activities performed by operating engineers are
dangerous.  Fatalities in excavation, for example, are 112 percent
higher than in general construction.  The heavy equipment used by
operators to crush, drill, fracture, and abrade rock and concrete
products expose workers to acute hazards, produces contaminants and
exposes workers to acute hazards.

		Inadequate training or monetary lapses in judgment or attention during
these operations can result in severe injury or death of the operator or
another member of the crew.  During many of the Table 1 operations
performed by operating engineers, the chronic hazard targeted by the
proposed standard is far more deadly than the risk sometimes resulting
in sudden fatalities on the job site.  The four major causes of
traumatic injuries resulting in fatalities account for nearly three out
of the five deaths.

		In 2012, falls accounted for 36 percent or 278 of the 770 fatalities
in construction.  Getting struck by an object caused 10 percent of the
fatalities.  Electrocution caused nine percent of the deaths.  And 12
workers were killed when they were caught in between 2 objects or
structures.

		If exposure to silica caused immediate death in the same way falls
from significant heights or electrocutions do, the public's outcry for
support of the proposed rule would be overwhelming.  The fact that
workers die at home, in hospices, and in hospitals decade after the
chronic exposure desensitizes the regulated community and the general
public to the flight of those who suffer from the effects of such
exposures.

		Operators who work in environments such as trenches that present acute
hazards are also exposed to chronic hazards.  In my experience,
employers who do not have adequate training and safety programs for the
prevention of traumatic injuries also have very marginal training and
safety programs addressing industrial hygiene.  Some employers often
have no program at all.

		Employers who do not train workers to consistently de-energize the
rock crushing machine before retrieving debris are the same employers
who do not train employees to understand the benefits of using water to
suppress dust.  If a contractor runs a rock crushing operation without a
competent person on-site, the contractor is jeopardizing the health and
safety of the workers.

		Deaths and injuries during rock crushing contribute to OSHA's
statistics on fatalities caused by falls and caught in in-between
statistics.  The details from OSHA accident reports are gruesome but
necessary to illustrate the overwhelming need for a competent person to
be on site during the entire time that a crushing machine is in
operation.

		The competent person has numerous responsibilities on any construction
site.  Responsibility for exposure assessment for respirable silica
falls well within the scope of the competent person's responsibility.

		Industry representatives encourage OSHA to view the costs of safety
and training programs to prevent traumatic injuries as separate from the
cost of programs to prevent diseases caused by workplace exposure.
These costs cannot, however, be separated.

		During Table 1 activities performed by operating engineers, the
competent person should be well educated on all dangers presented by an
activity so that he or she can be proactive in the preventing of
injuries, both acute and chronic.

		Training to control silica exposure would supplement training that
most employers are already undertaking to ensure compliance with
fugitive dust emission standards.  The competent persons required to
prevent acute accidents are available to address the chronic problems
caused by dust.  Contractors would not, as a general matter, incur the
cost of hiring additional onsite personnel.  Silica specific training of
competent persons requires only the addition of this topic to a
contractor's training and safety curriculum.

		The IUOE recommends the expansion of the definition of competent
person in 1926.1053(b) and the role of the competent person.  The role
of the competent person is essential since the factors that impact
silica exposures change during the course of a workday based upon local
geography and environmental conditions, such as wind and humidity, for
the reasons detailed in the IUOE's written comments.

		The IUOE endorses the BCTD's recommendations on the role of the
competent person.  The definition of competent person in the proposed
standard adopts the basic competent person language in 1926.32, and
includes a limited role for the competent person.  The IUOE submits that
in light of both the gravity of the harm caused by the exposure to
silica and the variables affecting exposure, the basic definition of
limited role of the competent person are inadequate.

		The IUOE endorses NIOSH recommendations concerning the competent
person.  As NIOSH stated in its written comments, the need for expanding
the duties of the silica competent person is especially important when
employers plan to rely on Table 1 because it is less likely that an
industrial hygienist will visit the project to evaluate the job, collect
samples, or check the effectiveness of engineering controls.

		NIOSH further states that the effectiveness deteriorates when the
controls or personal protective equipment are not maintained and that
this degradation may not be obvious to the workers using the devices.
The engineering controls needed for the protection of operating
engineers require ongoing diligence about the operator and the competent
person.

		The IUOE further endorses NIOSH's recommendation that OSHA include
explicit duties for a silica competent person.  In the interest of time,
the IUOE will not repeat these recommendations but refer OSHA to Page 9
of NIOSH's written comments.

		In addition to supporting NIOSH's recommendations, the IUOE also
supports the American Industrial Hygiene Association's recommended
skills and capabilities for silica competent persons.  The IUOE notes
that OSHA recognizes demolition and trenching as hazardous construction
operations in developing separate standards for each activity with more
stringent competent person requirements than those set forth in 1926.32.

		The competent standard for demolition and trenching requires
continuing inspection throughout the shift.  The variables affecting
exposures demonstrate the need for a well-trained person who is able to
address changes in environmental conditions during the workday.

		During this hearing, participants asked NIOSH to comment on the
variables that impact silica exposures and the fact that a construction
project may be over before the results of the exposure monitoring are
available.  NIOSH stated that in light of the fact that there will often
be an absence of quantitative data, training of the competent person to
recognize visually the hazards created by silica-generating activities
is critical in construction.

		One such variable is adjacent silica-generating activities.  The IUOE
agrees with OSHA's view as expressed in the 2009 OSHA publication
Controlling Exposures to Silica, concerning the role of competent person
and the protection of standbyers from secondary exposure.  According to
OSHA, the competent person should have the ability to know when other
employers -- other employees in close proximity to the work operations
where silica dust is generated may also need respiratory protection if
effective controls are not implemented.

		OSHA further states that the level of respiratory protection is
dependent on the employee's silica exposure which varies depending on
factors in the work environment, such as semi-enclosed or open spaces
and/or multiple operations generating silica dust; environment
conditions, such as wind direction and speed; and the percentage of
silica found in the material.

		Opponents of the silica standard assert that exposure to respirable
crystalline silica is so ubiquitous and so varied in the construction
industry that it is virtually impossible to conclude that a particular
control measure can feasibly be implemented.

		In construction, adjustments and reaction to unexpected circumstances
are commonplace.  A pre-construction analysis of an excavation site may,
for example, show a cross-section of different types of soil.  But
during excavation, the contractor may encounter a large rock formation
or an underground spring or water table.  Contractors are accustomed to
adjusting to both foreseen and unforeseen variables on the work site.

		Operation of a safe and profitable construction company takes planning
and skillful management.  To run a profitable operation, a prime
contractor must be adept in scheduling of activities -- must be adept in
scheduling activities to ensure that qualified personnel and equipment
are available.

		NIOSH testified that the following variables could affect silica
exposure, wind and environment conditions, tools and work practices,
training and techniques, nearby activities, and a percentage of silica
in the materials.

		A number of these variables are within the control of the contractor
and/or are known before the project or workday begins.  Training, tools,
and techniques are known in advance and are within the control of the
contractor.  Some variables are major and require the work to be shut
down to allow time for a safety risk analysis or an engineering study.
Other major variables may call for the use of the equipment that is not
onsite because the construction plan did not call for the use of the
equipment.

		The variables that affect silica concentrations are often highly
predictable.  A competent person is easily able to address highly
predictable variables since these variables such as a change in the wind
speed or direction occur regularly.  It is common sense that if the wind
conditions change, the equipment should be positioned so the operators
and others can work upwind from dust emissions when possible.  With
relative minimal training, a competent person and the workers will be
able to adjust easily to changes in wind conditions.

		The IUOE notes that wind conditions affect other operations that
result in acute hazards.  An example is the operation of a crane.  When
it is misty or humid, lower volumes of water can be used to achieve the
same results in dust suppression.  Since exposures can be measured
objectively, it is not unpredictable that on a warm, windy day in
Nevada, dust-producing operations will produce higher quantities of dust
than on a humid day in Seattle.

		The contractors can train a competent person on environmental factors
pertinent to the area in which the competent persons work.  Regional
differences in the environment are predictable.  Industry
representatives are well aware of the fact that environmental conditions
have a profound impact on the construction as a whole.

		The potential for hypothermia and acute injuries such as slipping and
falling on ice or wet surfaces shuts down many jobs in the winter.  Some
work, such as laying asphalt, can't be performed in cold weather because
the asphalt must be applied when it is hot.  Silica exposure is not even
a consideration.

		An asphalt miller, for example, may grind through asphalt and then
unexpectedly encounter a concrete sub-base with higher silica
concentration.  While the concrete sub-base may be unexpected on a
particular job, it is expected that millers will occasionally come
across concrete sub-base.  The competent person would know how to
address this situation if properly trained.  If a competent person in
milling detects visible dust, he or she may adjust the flow rates of the
water suppression, check the inline water filters, or ensure that the
nozzles are maintained per the manufacturer's recommendations.

		As I noted, the word "ubiquitous" repeatedly appears in the comments
of the opponents of the proposed hazard.  Opponents claim that, unlike
other health hazards regulated by OSHA such as asbestos and lead, silica
cannot be separated out from day to day job activities or avoided at the
job site.

		The IUOE notes that the contractor associations suggest no alternative
solutions.  Their response to the problem is, in effect, throw up their
hands with the complaint that the problem is too difficult to fix.
Again, I return to my initial point, if 700 additional workers die
immediately on the job sites instead of after years of literally
suffocating to death out of the public eye, the public would understand
that a failure to understand silica exposures causes premature death.
The dangers on the construction site both visible and invisible are
ubiquitous.

		The fact that silica, particularly respirable silica, is ubiquitous on
job sites is what makes it a grave threat to the health of the workers.
The invisible hazard makes it difficult to educate workers and to
convince the regulated community to take the threat seriously.

		In conclusion, I have learned firsthand the value of training a
competent person and site awareness through my work both in the
construction industry and with the emergency services.  Highly trained
and experienced safety personnel must take time to consider all the
potential hazards associated with an activity.  An invisible risk
initially unseen -- an invisible risk or a risk initially unseen may be
deadly.

		A competent person or a rescue crew cannot focus on the obvious
hazards, but the crew must be aware of other hazards present onsite.  In
February of this year, a friend of mine, an owner of a construction
company in South Windsor, Connecticut, which is my hometown, was killed
instantly when he rushed to assist an operator who was immobile on the
ground.  The owner did not take the few seconds needed to assess all the
hazards present and was electrocuted when he touched the charged truck
as he approached the operator.

		The rescuers arrived on the scene and saw the co-workers trying to
help revive the victims.  The rescuers immediately tried to revive the
two men, but nobody noticed that the dump-bed of the truck was still in
contact with a live wire.  Fortunately, there were not additional
deaths, as high as five as easily could have been since the electricity
was not off until after rescuers began efforts to revive the men.

		The first electrocution was a terrible accident.  The operator was
unaware of the fact that the truck was energized as he exited the
vehicle and made contact with the ground.  The second fatality was a far
more preventable incident, if the owner had taken the time to evaluate
all the hazards present.

		We will never know whether additional training on awareness of site
safety would have saved the lives of these two men.  Training and
retraining are crucial when operators perform dangerous activities.
Thank you for the opportunity to address.

		MR. TUREK:  Good afternoon.  My name is Martin Turek.  My testimony
describes the Table 1 activities performed by operating engineers and
recommends revisions to the proposed standard as it relates to
earthmoving for reasons stated in the IUOE's written comments.

		The Table 1 activities performed by operating engineers include the
use of heavy equipment during earthmoving activities using
vehicle-mounted drill rigs for rock, operating vehicle-mounted drill
rigs for concrete, rock crushing, and operating drivable masonry saws
and milling.

		The IUOE proposes that OSHA (1) list in Table 1 the specific
earthmoving tasks that fracture or abrade silica-containing materials in
such a manner as to generate appreciable airborne concentrations of
respirable silica, namely rock ripping, breaking, or hoe-ramming; and/or
(2) to add the following definition of earthmoving to the standard:
Earthmoving means an activity that fracture or abrades materials
silica-containing such as in a manner to generate airborne
concentrations of respirable silica at or above the action levels.
Earthmoving does not include demolition.

		Earthmoving describes the use of heavy equipment to excavate, trench,
or stockpile soil, clay, rock, or sand.  Earthmoving can be summarized
as breaking, moving, or laying the earth.  During earthmoving, the earth
is broken into small pieces.  The term breaking may also be thought of
as cracking, scraping, ripping, or auguring into the ground.

		The equipment used to break up the earth depends on the contractor's
preference, the material, example if it is clay, rock, or sand, etc.  In
the state of Illinois, for example, it is common to use a scraper, as
you see up there on the picture, for earthmoving due to the composition
or consistency of the soil.  The scraper breaks up the top foot or less
of the earth with a blade as wide as the machine, making it very
effecting for massive earthmoving.  Other parts of the country are more
likely to use an excavator or backhoe to break up the earth and load it
into off-road dump trucks or dump trucks, as seen in the picture above.

		Where earthmoving involves rock, the process of breaking or fracturing
rock requires more force.  For example, a breaker or a hoe-ram can be
attached to an excavator to break up the earth by applying more pounds
per square inch than the bucket alone.  An example is up there on the
screen in the photo.  The breaker is essentially a cylinder that ends
with a dull point, a giant jackhammer on a machine.

		Also, a drop hammer may also be used to fracture the earth.  A drop
hammer, as seen in this picture, is typically attached to a truck, and
is wide and flat, sort of like a door.  Similar to a guillotine, the
hammer drops and hits the ground, and breaks it into smaller pieces to
be moved later.

		In the western part of the United States, rock ripping is commonly
used to fracture the earth.  During this process, as you see in the
picture, a shank is attached to the back of a bulldozer and pulled
through the ground.  This process tears the ground open.  Picture the
earth being ripped open like a zipper or using a butter knife to cut
through a thick steak, as compared to cutting that same steak with a
sharp steak knife.

		These three processes, rock ripping, rock drilling, breaking or
hoe-ramming, are used to fracture rock that is more likely to contain
significant amounts of silica.  As a result, the respirable silica
generated during these processes may exceed the permissible exposure
limit.

		In comparison, it is unlikely that moving soil or clay will generate
respirable silica in concentrations that listed above the PEL.  With
this in mind, OSHA could move earthmoving but add -- excuse me, could
remove earthmoving but could add rock ripping, rock drilling, breaking
and/or hoe-ramming to the operations listed on Table 1.

		Once the ground is broken up, it is picked up and placed into the
location that will be used on a project or moved to a stockpile for
later use.  As with breaking up the earth, this method of picking up
depends on the location of the project and the contractor's preference,
depending on experience and available equipment.

		The amount of dust generated during earthmoving depends on a variety
of factors, including the soil composition; the climate, such as
temperature, humidity; and engineering controls that are being applied.
The amount of dust also depends on the construction method and the
distance the material is being moved.  For example, an excavator digging
a trench may dig into the earth and lay the material next to the trench,
as seen in this photo above.

		During this process, the earth may fall a few feet, if the excavator
bucket is laying the material next to the trench no closer than two feet
away from that trench.  The photo above, you can see the angle of the
bucket is very similar to the angle of the bucket as that machine is
digging.  So if this machine is using to dig earth out of the ground,
it's going to lay the ground very closely next to the trench, two feet
or more away, but the angle of the bucket is not going to change, thus
not creating an excessive amount of dust.

		However, if the material is dumped from the bucket, from an excavator,
into a dump truck, the bucket is going to be opened wider; being opened
wider, it's going to drop more quickly and pour from a greater fall
distance.  A higher drop distance will also cause a higher amount of
dust.

		After the ground is broken up and moved, the final steps of
earthmoving is to lay the material down on a permanent place on the job
site or in a stockpile, the material can be used later on the site.
This material may be spread with a scraper, a bulldozer, or an
end-loader, or a dump truck.  A bulldozer is pictured up there.

		MS. RYDER:  Sorry to interrupt, Mr. Turek.  This I think is 11, Slide
11.  When we move onto the slides, will you mention the numbers?

		MR. TUREK:  Yes.

		MS. RYDER:  Okay, thanks.

		MR. TUREK:  A bulldozer is pictured in Photo 11.  For example, when
Local 150 constructed their 300-acre training site, the ground for the
building location was at least 11 feet lower than the engineer's
specifications.  To build up this area, fill material was moved from one
area of our site and laid into the building pad.  The soil was moved
with a scraper, leveled with a bulldozer, and compacted with a
compactor.  The area where the fill material was removed was created or
used to make a lake for runoff.

		If an exposure assessment was required at the time of this project,
the competent person for the job site would have had the knowledge and
experience to identify whether the soil being moved would likely
generate respirable silica in concentrations at or above the permissible
exposure limit.

		Rock drilling is another process to move mass amounts of composed of
rock.  Rock drilling involves a vertical drill attached to a truck or a
track-mounted machine that drills into the face of the rock, seen here
on Photo 12.

		Once the hole is drilled, explosives are inserted to blow away the
face of the material.  If you have ever driven through the Rocky
Mountains, through the hills of Minnesota, or through the hills of
Pennsylvania, you have probably noticed long walls of rock along either
side of the highway.  Rock drilling and explosives were probably used to
clear this path.  Rock drilling is a very hands-on process.

		A drill may be truck-mounted or track-mounted.  Reaching the depth
that is needed to accomplish the task is done by adding drill stems
throughout the process.  A motor at the top of the drill stem rotates an
augur of the drill into the ground.  Once the length of the drill stem
is in the ground, the operator unthreads, lifts up the motor, and
threads a new drill stem into the ground.  They continually add more
drill stems and continue to augur into the ground.  The operator
continues to add these stems until they reach a desired depth.

		The operator typically stands on a platform with a control panel
adjacent to where the drill stem enters the ground, approximately arm's
length away from the drill stem and the point of entry into the ground.

		If everybody could observe on this photo right here, Photo 12, you can
see a control panel on the left-hand side back of that machine.  This is
where the operator would stand and be positioned, directly within
distance -- arm's distance of that drill stem.  On the right-hand side
back of that truck where you see there is a ball, looks like a hook or a
coupler, this is where the helper stands next to the operator.  So both
the operator and the helper for this drill rig are standing within arm's
reach of the drill stem and the point of entry into the ground.

		So compared to other heavy equipment operators sitting in a cab above
the ground in the machine, operating drill equipment places the operator
in much closer proximity to the activity that may generate silica dust.

		Operating engineers also work with rock crushers, which may be
portable or set up in a permanent location, seen here on Photo 13.
During this process, rocks up to two foot in diameter are dumped into
the tub and crushed.  The broken material is then moved along a conveyor
belt system until it falls into a stockpile, dump truck, or an off-road
truck.  The conveyor belt carries a substantial amount of weight and
vibrates constantly.

		As material is loaded into the rock crusher, the operator sits at a
control panel overlooking the hopper.  From this position, the operator
can monitor the amount of material going into the crusher.  If too much
material is added, the material will jam.  If not enough material is
added, the crushing process will be too slow and inefficient.

		Once the operator has set up the appropriate rate of material going
into this machine, he will walk around the monitor the rest of the
process.  Once the rock is crushed, it moves upward along the conveyor
belt at approximately a 45-degree angle where the material is dumped to
the top of a pile.

		Walkways are usually adjacent to the conveyor belt and along the
ground where the material is falling from the crusher onto the belt.
This work is particularly dangerous.  And as the operator maneuvers
around the machine on the catwalk, quite a bit of shaking could occur on
this catwalk.

		Moving around outside of the machine, the operator has the best view
of the process to ensure efficient production and is better able to
minimize hazards to other workers in the area.  While it is possible for
a rock crusher to be operated remotely in a positive pressure cab, this
does not give the operator a good view of the process and increases
hazards to other workers who might walk into the area they are not
supposed to be present.

		Operating engineers also operate drivable masonry saws, seen here in
Photo 14.  This equipment is used to make precision cuts, as compared to
fracturing or ripping the ground.  One example on a road project would
be to utilize a masonry saw to separate one lane of road from another,
the one lane of road being demolished and keeping the other lanes
intact.  This saw may also be used to cut up squares.  An example would
be a six by six foot square of roadway which can be lifted and moved
away with substantially less dust than other forms or road demolition,
including grinding.

		However, this process is more costly as it requires an extra operator,
one to operate the saw and another one to move the material, versus
operating an excavator, where a single operator demolishes and moves the
material.  Thank you very much.

		MS. McCABE:  Good afternoon.  Again for the record, my name is Barbara
McCabe.  I will take this opportunity to respond to industry
representatives who assert that OSHA's inclusion of respirator use on
Table 1 demonstrates that the PEL is not achievable and that
implementation of a respirator program would be cost prohibitive.  My
testimony also addresses the IUOE's recommendations concerning silica
training.

		The IUOE supports the Building Construction Trade Department's
statements refuting the arguments that OSHA's inclusion of respirator
use on Table 1 demonstrates that the PEL is infeasible.  Proponents of
this argument ignore OSHA's explanation in the preamble that Table 1 is
a worst-case scenario approach.

		With regard to milling, for example, OSHA's states that respirator use
is included on Table 1 because it cannot rule out the possibility that
silica exposures will occasionally exceed the PEL under certain
circumstances.

		To be clear, the IUOE encourages OSHA to exhaust all alternatives
before adopting a standard that would permit employers to require
respirator use by operators for full shifts when other regulatory
alternatives are available.

		The division of asphalt milling and concrete milling into separate
tasks on Table 1 would, for example, eliminate the requirement that
asphalt millers wear a respirator all day when they engage in milling
operations for four hours or more in a workday.

		We encourage OSHA to re-examine the exposure data for Table 1
activities performed by operating engineers with the goal of creating
subcategories of work.  In so doing, OSHA will be better able to tailor
controls based upon relative exposure levels generated by the activity
and, thereby, avoid the use of respirators when no health benefits will
be advanced.

		In any event, the vast majority of construction contractors who employ
heavy equipment operators in highway, building, and heavy construction
also perform demolition and remediation.  These employers already have
respirator programs.  And employer would not have the ability to bid on
work which could expose their workers to other contaminants, such as
lead and asbestos, if they did not have a respirator program.

		The IUOE agrees with OSHA that the hazard communication standard is a
good starting point for training employees on a job site about the
silica hazards they may be exposed to during a specific job.  However,
the IUOE contends that the information covered in hazard communication
training is not sufficient for those engaged in silica-generating
operations.

		The IUOE urges OSHA to require additional training elements for
employees who will be engaged in operations that may generate silica
exposures above the action level.

		These employees should be able to identify all operations on the job
site that may potentially generate silica exposures, identify
engineering controls, and the state of controls, work practices, and
personal protective equipment used to control silica exposure, the
employer's silica exposure assessment, and exposure control plan,
including the identification of the competent person.

		The IUOE local unions conduct this type of awareness training as part
of their extensive safety and health training programs for members on a
regular basis.  When the operator reports to the job site, he or she
only needs then site specific training.

		The inclusion of silica in hazard communication training, which is
purportedly already being done to be in compliance with 1926.59, does
not add any additional burden or hardship to the contractor.  Likewise,
the curriculum and training materials for additional training elements
for employees who will be engaged in operations that may generate silica
exposures above the action level do not have to be developed from
scratch because they are readily available from a number of reliable
sources.

		These sources include OSHA, who has a slide presentation, pocket
cards, and an e-tool; NIOSH, who has publications that are available by
industry, health hazard evaluations, case studies, and work place
solutions; CPWR, that has presentations and PowerPoints, videos, toolbox
talks, handouts, training materials, and podcasts; MSHA, who has a
manual, A Guide to Working Safely With Silica; the Washington State
Department of Labor and Industries, that has a PowerPoint presentation
with script, Silica in Construction; Cal/OSHA that has silica hazard
alerts; the National Institute of Environmental Health Sciences, that
has a Hurricane Katrina related response initiative that is a PowerPoint
module on silica awareness; and the IUOE National Training Fund.  We
have a silica module with a PowerPoint presentation.  And these all are
available free of charge to anyone who is interested.

		To assure that employees always have the opportunity to have all of
their questions answered in a timely manner, the IUOE recommends that
OSHA require an interactive training in issuing the final rule.  In
adopting requirements for asbestos training, OSHA stated that while a
training course may use written materials and electronic media, such as
videotapes or computer-based training, a knowledgeable person, such as a