Stu mentioned, he's going to look to produce a final report.  I know I
sound like a broken record.  There is only so much stuff you can do in a
limited amount of time, particularly when it comes to generating data,
looking at data, and doing your own type of analysis.  There is only so
much time you have available.

		MR. SCHNEIDER:  Ms. Vazquez, I have a question.  You say that you cut
wet, but there are some times when you can't cut wet.  What do you do to
protect workers when you can't cut wet?

		MS. VAZQUEZ:  Well, I don't ever, sorry, I don't ever not cut wet.  So
we cut -- when we're cutting concrete, so wall sawing, slab sawing,
core drilling, we cut wet.

		MR. SCHNEIDER:  Okay.  Now, you had talked about your problems with
compliance with the proposal.  And it sounds like you have a lot of data
that you've collected under a variety of conditions.  And OSHA has a
provision for what's called historical monitoring data.  Are you
familiar with that?

		MS. VAZQUEZ:  No.  Explain it, please?

		MR. SCHNEIDER:  What they are saying basically is if you have data to
show that under certain conditions, you know, under certain tasks that
you know what your exposures are, then you don't have to do air
monitoring.

		MS. VAZQUEZ:  Okay.

		MR. SCHNEIDER:  I mean you had said that you expected under those
parameters, you'd have to do air monitoring every day, on every
employee.  But, in fact, you could use the data you've already collected
to try to avoid the requirement for air monitoring.  Right?

		MS. VAZQUEZ:  I guess I would have to re-read that section.  I don't
know if you want to identify the section that you're speaking on?
Because it was my understanding that the testing had to be within a
12-month period.  And then if you did have an overexposure, then you had
to re-test within seven days and so on.  So that's my varied
recollection.  So if you have a section that you would like me to go
over, I'll write it down and I'll review it.

		MR. SCHNEIDER:  I don't have it in front of me, but you can look at it
and maybe in post-hearing comments submit something.

		Now, when you cut concrete, how do you protect bystanders from getting
exposed to silica?  I know obviously the operators are protected, etc.,
but how do you prevent bystanders from exposure?  I mean if there is
somebody else working nearby --

		MS. VAZQUEZ:  I guess it matters what we are doing, the tasks that we
are performing.  I believe there is a difference between a personal
exposure and an area exposure to silica, to respirable silica;
therefore, the personal exposure that my employee is getting is going to
be different than an area exposure that someone 10 or 20 feet away from
me --

		MR. SCHNEIDER:  Right.

		MS. VAZQUEZ:  -- will get, so it's going to depend on the job site,
the environment, the ventilation, the tasks that we are performing.  So
all that is taken in consideration.

		MR. SCHNEIDER:  Okay.  But how, I mean how do you prevent other people
from getting into the area to potentially get exposed?  Maybe you don't,
I don't know.

		MS. VAZQUEZ:  Yeah, I -- well, I can't prevent anyone from coming
into the area.  It's not my job site.  So, you know, we work by
yourselves on jobs.  We work on multi-employer sites.  So I don't set up
areas in which no one can come into.

		MR. SCHNEIDER:  Maybe that's a question for Mr. Turner then.  How do
you prevent other people from getting potentially exposed as bystanders?

		MR. TURNER:  We rely on Kellie.  In all seriousness, we do rely on the
contractors to tell us what areas they need to work.  To a certain
extent, this is no different than steeler action; when you're swinging
steel in an area, you don't want other people exposed.

		MR. SCHNEIDER:  Right.

		MR. TURNER:  And so we rely on the contractors creating the hazard to
identify their work areas for us.

		MR. SCHNEIDER:  And then what do you do to -- do you mark those off
in any way, or warn people, or let people know, hey, we're cutting
concrete in this area, you shouldn't be in this area?

		MR. TURNER:  Right, that's actually in a coordination meeting, believe
it, it's called the -- we identify that, and if the contractor feels
that people are encroaching, they have the power to put up caution tape,
danger tape, whatever they feel fit to keep their areas free from
personnel and objects, and so on.

		MR. SCHNEIDER:  Okay.

		MS. VAZQUEZ:  But I will tell you that my experience on the job site
is that our equipment is loud and, therefore, no one really wants to get
next to us when we are cutting concrete.  So I don't feel there is a
need to set up, you know, unless there is a more immediate hazard, for
example, like if we're coring floor to floor and dropping and catching
the cores, or different aspects like that.  But saw cutting or, you
know, something else, due to the noise that our equipment makes, people
tend to stay away from us on the job.

		And, also, I also believe that area exposure, just because sometime
working 10 feet away from us doing something, he's not going to be
exposed to the level if you're right up on the machine.

		MR. HAMMOCK:  One of the things we have recommended, too, and I'm not
trying to take your questioning period, but some of this speaks to and I
think good questions related to regulated areas, how you -- how things
actually work.  And one of the things the coalition has talked about is
the effectiveness of communication and training, accomplishing the same
types of things in a regulated area.

		MR. SCHNEIDER:  Very well, that's all.  Thank you.  Maybe when OSHA
starts working on a noise standard for construction, we'll meet again.

		MR. HAMMOCK:  The Construction Industry Safety Coalition will be
there, too.

		MR. SCHNEIDER:  Okay, great.  Great, I can't wait.  So, Kellie, you
had mentioned in the notes that they were ambiguous and vague, and like
for example they say when the blade is excessively worn, you should
change it.  When do you change blades?  How do you make that
determination?

		MS. VAZQUEZ:  I've never heard that -- I was really surprised to see
that in silica standard, the excessively worn blade.  We actually, in
Houston, Texas, have the hardest concrete in the world.  And we do.
There is only one bridge in London that has harder concrete than us, and
that's just one bridge.  And we're just, you know, the whole Houston.
So we actually look at our blades often throughout the day, checking the
blade to see if there are cracks in the blade, to see, you know, look at
the segments of our blades, the diamonds, because our blades get changed
out throughout the day.  That's how often we look at them and that's how
often we change them.  A 20-inch blade, you know, we could use it one
day; we're turning it in at the end of the day and getting another one.
So we actually have this, but it's for different reasons other than
silica monitoring or silica exposure.

		MR. SCHNEIDER:  Okay, well, thank you.  I know you have long-term
employees.  You really are very protective of them in terms of their
health.  Do you provide medical exams for your employees?

		MS. VAZQUEZ:  Yes, well, we do.  When someone is hired on, they will
get a physical and then they will also get like, for example, a DOT
physical, Department of Transportation physical, and then they also go
through a function test to make sure that, you know, our equipment is
cumbersome and make sure they are able to lift it and everything.  So
they will do that.

		And then like for a DOT physical, it can either be for one year or for
two years, and then so they'll re-up that whenever it expires and keep
that going.  But we do not do medical surveillance in the views like of
chest x-rays or anything like that.

		MR. SCHNEIDER:  Okay.  So you do PFT tests, but not x-ray tests.

		MS. VAZQUEZ:  Yes, we do pulmonary function tests.  We do a pulmonary
function test and fit testing.

		MR. SCHNEIDER:  But not x-rays.

		MS. VAZQUEZ:  No x-rays.

		MR. SCHNEIDER:  Okay.  Now, I mean I know you're a small business and
you are doing a lot of the stuff that the standard already requires, it
seems, but I guess your business is still profitable?

		MS. VAZQUEZ:  Yes, we are profitable.

		MR. SCHNEIDER:  Okay, good.  I had one -- I think I had one more
question.

		JUDGE SOLOMON:  How much more do you have, Mr. Schneider?

		MR. SCHNEIDER:  I'll let --

		MS. VAZQUEZ:  But if I could just say one thing?  I'm doing this under
the current PEL, under the current standard from the 1970s.  I don't
need a new standard to do this.

		MR. SCHNEIDER:  Right, okay, that's what I was going to ask you.
Thank you for reminding me.  Okay.  So based on your exposure data,
you're keeping exposures below 100, right?

		MS. VAZQUEZ:  Yes, in most of our operations, yes.

		MR. SCHNEIDER:  Okay.  And Mr. Hammock had said earlier that
exposures have to be kept below 50 to make sure you're always below 100.
 I that --

		MS. VAZQUEZ:  Or at 50, yes.

		MR. SCHNEIDER:  At 50.  So is your goal to keep exposures below 50?
Is that what your goal is?

		MS. VAZQUEZ:  No.  My goal is to keep our exposures under the PEL, but
it's not always achievable.  And so how I've always been taught is that
you have your PEL and then you have the REL, the recommended, and you
want to keep your exposures in between there so you have a cushion, just
in case there are environmental factors or weather factors or job site
factors or secondary tertiary exposures, you have a cushion that your
employees can work in.

		Now, if it were to go down to the REL and the REL be the new PEL,
there is no cushion.  It would be very difficult to stay at .025, at 25,
and to have it down there, to have a cushion.  It would be very, very
difficult.  And that's when the continuous respiratory protection would
be required.

		MR. SCHNEIDER:  So when do you put your employees in respirators, if
they find an exposure of 100?

		MS. VAZQUEZ:  Yes.

		MR. SCHNEIDER:  Okay, okay.

		JUDGE SOLOMON:  Okay, thank you.

		MR. SCHNEIDER:  Thank you very much.

		MR. GILLEN:  Good afternoon.  I'm Matt Gillen with NIOSH and I just
had a couple of questions.

		JUDGE SOLOMON:  Spell your last name, please.

		MR. GILLEN:  My last name is spelled G-i-l-l-e-n.  I have a question
for Mr. Sessions.  I wanted to ask you, you used a hypothetical example
several times in your testimony and it, as I recall, involved a plumber
or a carpenter needing to drill like a single hole in a day and needed
to bring along controls with him to use according to Table 1.  And your
point was related to the economic costs there.

		So I wanted to ask you if you take that same hypothetical case of
drilling one hole in a day, but this time the employer has knowledge of
objective data under OSHA's proposed rule and which meets OSHA's
definition of objective data, which shows that the permissible exposure
limit or even the action level is only exceeded when you drill more than
five holes in a day.  In that case, the employer would have no
compliance obligation to bring along the controls; isn't that correct?

		MR. SESSIONS:  If the objective data were sufficiently definitive to
show that, yes.  My view is, though, that many employers, for many, many
work situations will not have much of an idea how many holes their
employee is going to drill the next day.  The duration of time
performing the task can vary by more than two orders of magnitude.
Other factors that affect exposure can similarly vary by an order of
magnitude or more, such as the silica content of the material you are
working with, whether you're in an enclosed space in which there is no
air circulation, or whether you are getting dispersion.  And the net
result is that one has very little idea in advance when an employee --
(a) whether the employee is going to be doing much of the task and, (b)
whether if he does it, he will in fact be exposed above or below the
proposed PEL.

		MR. GILLEN:  It was your hypothetical.  So I was just, you know, using
it.  So is it your position that the variation is random?  Because I
think as an industrial hygienist, we would say that it's not random.

		MR. SESSIONS:  No, it's not random.  Actually, and maybe I'm going to
wander off the reservation a little bit here, but --

		MR. HAMMOCK:  That's what I love about you, Stu.

		MR. SESSIONS:  Yeah, well, okay.  I think the idea of characterizing
an employee's exposure with a single or a few samples is not sensible
for the construction industry.  The variation can be so great and so
unpredictable that virtually any employee has some possibility, some
likelihood of, in fact, being exposed above the proposed PEL on some day
during the year when he's proposing the task.

		Joe Plumber, I bet, on a day a year will be exposed above 50.  And I
think that the answer to this is some, you know, with my policy hat on,
the answer would be some very extensive objective data studies, if you
will, that puts together all the sources of variation and determine the
circumstances under which one is fairly likely to be exposed above the
PEL and circumstances under which one isn't, and have that set of
studies and conduct consistent with that set of studies be the basis for
the standard, as opposed to exposure monitoring which single exposure
samples, in my view, are close to meaningless.

		MR. HAMMOCK:  And can I also just have or to get it away from the pile
of wherever we are into the more real life, maybe have Kellie address
that question, because, again, I think it is a very good one.  Are you
going to go in and you're doing to drill five holes, or you're going to
drill seven holes, or you're going to drill nine holes, or you're going
to drill two holes, or you're going to drill 200 holes on any day, and I
wanted you to address that because you get the call today, let's say you
pick up the phone and someone says come to my site and drill, I want you
to drill four holes.  Is it could you show up and drill 200 holes?

		MS. VAZQUEZ:  Yes, that happens often.  I work in the dispatching
office, and so we'll get called out for, like I said, two 8-inch holes,
and we get there, and there will end up being sixteen 2-inch holes,
three 8-inch holes, and so, yes the jobs vary.  But one thing about like
the engineering controls that you were mentioning, those don't come off
the equipment.  We don't -- my company doesn't, the engineering
controls are incorporated within the equipment, and so they are used on
the job site that we take the equipment on.

		But our jobs do, you get called out for one hole, you end you doing
three.  And my operator will call in and say, hey, instead of 8 holes,
they have 16, you know, what do you want me to do?  I'm like get them
done.  I'll call your next job and tell them you'll be a little bit
late.  But it does happen very often.  Or he'll be on that same job site
and another contractor has holes, and so then you finish one job and you
move over to the next job.  So that's another factor that we run into
all the time.

		MR. GILLEN:  I appreciate that.  Although I do think that an
industrial hygienist would be able to extrapolate if you have
information on how much exposures are associated with drilling holes and
then you have the number of holes, you can make some reasonable
estimations there on exposure.

		MR. HAMMOCK:  I think you can.  Let me just say, you know, maybe there
is hygienists that can do some trending and do some extrapolation and
figure that out.  If I were representing and putting on my lawyer hat,
if I were representing Kellie in any particular case, I would say I
don't care what type of objective data you have or historical data you
have.  The reality is if you go in that building and OSHA also happens
to be there, you better have yourself underneath the PEL.  I don't care
what you have done.

		MR. GILLEN:  Don't you agree, though, that given the cost issues that
employers will have an economic incentive to use, to seek out objective
data?  For example, your coalition could provide data to small employers
that they could actually use to meet their obligations; isn't that true?

		MR. HAMMOCK:  Do you want to go first?

		MS. VAZQUEZ:  Well, I'll just say, you know, we've done testing.
Holes, Incorporated, has done testing for years.  But I don't know many
others in my industry that performs testing.  It's not very common.  But
we do share our data with our industry.  And then the few contractors
within our industry, you know, we all share our data.  We all share
experiences.  And we use our conventions and our quarterly meetings that
we have with the CISC to talk and to share our knowledge.  But I do
believe that very few contractors currently perform silica monitoring,
not just cutting contractors, but contractors in general.

		MR. HAMMOCK:  And you're right.  Obviously, I mean once the rule
becomes final as proposed, I mean there will be rich sources of data.  I
mean there is always going to be -- people are always going to look to
share data.  Certainly, coalition members will.  And all that, sure, all
that is very helpful.  But it's only in our view helpful to a certain
degree, because you can have great objective data that says when you're
jackhammering using a wet method on a dry day, you're probably at 40,
right?  That's what this tells you.

		Okay.  Well, then you show up to work and you're jackhammering right
next to another contractor, and all of a sudden that objective data is
not nearly as meaningful as it would have been.

		Now, you are right, you can then have exposure, objective data
presumably with the jackhammer op, so you have two jackhammer operators
and you can distribute that.  But then you are faced with the question,
well, what if there is a sandblaster down the road.  And you say, okay,
so then you can create objective data for that.

		But it's almost an endless series of objective data.  And if you're a
prudent employer, it would be very difficult to rely on that in terms of
setting out your business and overall compliance.

		MR. GILLEN:  Again, it's not the purpose of this to have a dialogue,
so I think I disagree on the predictability of it.

		MR. HAMMOCK:  Understood.

		MR. GILLEN:  I'll just finish by just a good natured tease to
Mr. Sessions saying on behalf of industrial hygienists who feel like we
have a lot of information in the docket about variability, we'd love to
see more on the cost and economic, because that seems like where there
isn't much data in the record.  So right back atcha on the variability.
So thank you.

		MR. TURNER:  Hey, Matt, before you go, over the years I've gotten to
work a lot with you, and I understand you are retiring next week.  I
want to thank you for your professionalism, years of experience, and
helping us.

		JUDGE SOLOMON:  Okay, that's more bolstering.  State your name.

		MR. THURMAN:  I'm Sean Thurman,

T-h-u-r-m-a-n.  I'm with Associated Builders and Contractors, and I just
have one short question directed to Ms. Vazquez.  You indicated in your
written testimony that you were involved in development of the ASTM
standard.  And as a contractor, I was just hoping to get a few brief
points from you regarding the differences between the ASTM standard and
what OSHA is currently proposing.

		MS. VAZQUEZ:  Okay.  During the -- sorry, on the ASTM standard, when
I worked on this guidance document, that's what I always saw it as.  I
saw it as a very good guidance document that contractors could use to
help build their silica programs and help guide their employers --
employers help guide their employees on protecting themselves.  So I
think that's the first difference is that it's a guidance document and
not something that someone can be cited under.

		Also, medical surveillance in that document, medical surveillance is
required after 120 days of exposure over the PEL.  And this was debated
greatly during the discussions on the ASTM document, because if you're
in respiratory protection, you're not really exposed over the PEL.  But
we discussed that it needed -- that it was needed to make sure that
that respiratory protection was working, therefore, there was a great
debate between 120 days and 180 days, and 90 days, and so we agreed to
make it 120, thinking, you know, a 1/4 of the year and everything, but
we didn't think it needed to be less than 90 days.

		We thought that having it less than 90 days, it would put too much
pressure on the employer, and it would be too much of a cost due to the
transient nature of employment within the construction industry.

		Also, the table that was created, it was based on like a task-based
approach.  And the task was there, the engineering controls were there,
and the respiratory protection if necessary was there.  And so it was
very easy to use.  And the tasks were actually tasks that the silica
task force had come up with and that we had data for.

		So those are -- oh, one other one, one other difference was I think a
90-minute, if you were cutting less than 90 minutes, then -- there is a
90-minute section in there that if you're cutting under 90 minutes, the
medical survey lens or the different types of engineering controls are
not necessary.  So those were the big differences I see between this one
and the OSHA doc.

		MR. GILLEN:  Thank you.  Thank you, Your Honor.

		JUDGE SOLOMON:  Ms. Ryder, how much time will OSHA need?

		MS. RYDER:  I think a lot, 45 minutes to an hour, think.  Okay.  State
your name, please.

		MR. CHANEY:  My name is Pete Chaney, last name is C-h-a-n-e-y.

		JUDGE SOLOMON:  And who do you represent?

		MR. CHANEY:  The Mechanical Contractors Association of America.

		JUDGE SOLOMON:  Go ahead.

		MR. CHANEY:  Thank you.  Mr. Turner, does Hunt Construction
perform -- do you have your own employees at the job site, or are you
more of a construction manager, or a little bit of both?

		MR. TURNER:  We don't employ trades is how we term is, so we are not
performing the work.  Yes, we're construction managers, professionals
such as engineers, project managers, coordinators.

		MR. CHANEY:  Okay, thanks.  So this question is more for Ms. Vazquez
then.  How often do you find yourself working while you are generating
silica where there are other contractors on the site who are also
performing silica-generating operations?  Is that a frequent occurrence
for you all?

		MS. VAZQUEZ:  Yes, it is.  It does happen often.  There are some times
that we will be called out to a job and there will be, you know, we're
always working for somebody, so there is always a second contractor
there.  But most of the time, it is a multi-employer site with several
different trades.

		MR. CHANEY:  Okay.  So with regard to your business, most of your jobs
are multi-employer worksites, or what percentage would you say?

		MS. VAZQUEZ:  Oh, I would almost say I would want -- I would say 90
percent.

		MR. CHANEY:  All right, great.  Thank you.  This question is for both
of you also.  This is the last question I have.  There has been a lot of
discussion about how the environmental conditions can affect exposure
out there.  Have you seen how wind, for example, can actually increase
exposures on your job sites?

		MS. VAZQUEZ:  I've never accounted for, like never had testing done to
look at wind effects, but our training does state that when feasible to
stand upwind from the silica-generating activity.  So we do train to
stay upwind from it.  We do try to position ourselves to stay that way
and just to keep it away from us.

		MR. CHANEY:  Mr. Turner?

		MR. TURNER:  I actually have a great example of this.  Brad alluded to
the large project we had in Florida a few years ago.  We had 40-some-
odd acres, it was a resort with a golf course, and basically all the
topsoil had been stripped.  We had contractors on the outside of the
building doing some grinding, and a wonderful drive-by happened.  And
OSHA's industrial hygienist showed up at the gate and said we'd like to
run a few samples.  We obviously encouraged them to come on and put them
through our safety training --

		UNIDENTIFIED SPEAKER:  Who's your lawyer?

		MR. TURNER:  Yeah.  We actually go out of our way to establish
partnerships as much as we possibly can, and we're involved in the BPP
program, so I hate to say this, but OSHA doesn't scare us.

		In any case, the samples were run.  And believe it or not, the ambient
samples came up loaded with more silica than the personal samples did.
A lot of that had to do with just the wind and the area, because we had
stripped the area and were essentially working on a beach.

		MR. CHANEY:  That's not surprising.  Okay, thanks very much, I
appreciate it.

		JUDGE SOLOMON:  Okay.  We're going to break at 4:00, so you have about
seven minutes.  Come forward.

		MR. CREASAP:  Thank you, Your Honor.  Good afternoon.  My name is
Wayne Creasap.  I'm the Director of Safety and Health with the
Association of Union Constructors.  The last name is spelled
C-r-e-a-s-a-p.  And my question is for Mr. Turner, just a real quick
follow-up.  There was a lot of discussion on wet methods.  And I'm just
wondering with your experience all over the country, if you've had
situations that have come up where you have not been able to cut wet or
other quality concerns or other issues that have come up in working for
different customers.

		MR. TURNER:  All of the above.  I'm sure you were part of the winter
we just went through or are coming out of according to the calendar.
Minus 10, static temperature with minus 40 wind chills isn't conducive
to putting water or other fluids on the job site.  Beyond that, we do
run into a lot of high end finishes, four and five star hotels, even
government buildings, believe it or not, where the architects prefer we
not wet cut because they don't want water standing on their materials
that they are finishing out.  And that could be everything from
countertops to cornerstone of the buildings.

		MR. CREASAP:  Any issues with mold or anything like that that have
come up?

		MR. TURNER:  Yes, that's an additional issue.  Luckily, not with
Kellie's group.  We do have some core drilling that happens, and if it
happens to be in an established area where we already have sheetrock
hung, we have to use extra diligence.  Sometimes we even just remove the
sheetrock to prevent the mold from growing.

		MR. CREASAP:  Thank you.  That's all I have.

		JUDGE SOLOMON:  Thank you.  We're going to take five minutes, and then
at 4:00, we'll begin with the OSHA questioning.  Let's go off the
record.

		(Off the record at 3:55 p.m.)

		(On the record.)

		JUDGE SOLOMON:  Okay, let's go back on the record.  Ms. Ryder?

		MS. RYDER:  Yes, OSHA has some questions.  I'll turn it over to David.

		MR. O'CONNOR:  Thank you.  In the coalition's written comments, you
express some pretty extensive concerns about the exposure assessment
provisions that we proposed, some of which were touched on in the
testimony today.  And in particular you are pointing to a number of
factors that affect exposures, including different levels of exposure
depending on the location of the project, materials used, and the silica
content of said materials; whether the activities are performed indoors
or outdoors; whether the activities are performed during summer, winter,
or on a rainy day; whether the wind is blowing and in what direction;
and whether the employees are working on a multi-employer worksite.

		It seems that those are the challenges that the industry is faced with
right now in assessing exposures.  And I was just wondering how do you
approach that now?  How does the industry typically assess exposures
now?

		MR. HAMMOCK:  Let me first say a couple of things, and then I think it
would be good to hear from Kellie, in particular, given the way that she
has done exposure monitoring.  I think that clearly we know now that
there is a permissible exposure limit and, for example, companies like
Kellie and many other companies are assessing to the extent they can
their compliance with those PELs, and they do factor in some of those
conditions.

		I think one of the interesting things is and from my perspective at
least talking to folks who will be affected by this is the reduction in
the PEL from a feasibility standpoint is at such a level where those
types -- that type of variability is much more significant from an
overall compliance standpoint.  So as Kellie was saying, you know, she
right now -- let's say she is targeting, this isn't even the PEL, this
is for general industry, she's targeting 100.  She is giving herself a
cushion with the NIOSH REL, but that cushion absolutely goes away.

		So when you are trying to monitor and make sure you're in compliance,
all those variables are much more meaningful with the reduced PEL.  It's
purely from a technological feasibility standpoint.  And I would get
back to what NIOSH said in response to one of my questions, and that is
the prudent employer has got to be factoring in a much lower exposure
because of that variability.

		I would just say that to preface, but I'd welcome Kellie's perspective
on what you currently do to factor in some of those considerations and
those variables.

		MS. VAZQUEZ:  Well, it all comes down to our employee training.  And
when we do the employee training, we do discuss with them worksite
conditions and we do talk to them about secondary and tertiary
exposures, other people on site, what they are doing next to them.
They're required to do a JHA every time they show up on site, so they're
supposed to identify all the hazards and then identify ways to mitigate
those hazards.  That's part of their daily routine.  And silica is one
of the hazards that we deal with on every single job we go to.

		So our exposure monitoring, we give them the bases on what they need
to do to protect themselves for each task that they go to do.  We give
them the equipment, engineering controls, training, and then respiratory
protection when necessary to stay below the PEL.  But all that plays
into the factor.  If their job is inside, if it's outside, who is
working next to them, all that plays in the factor, and it plays in that
cushion that we work with to stay below the PEL.

		MR. HAMMOCK:  Let me also say, obviously, one significant difference
with this proposed rule, if it were to go final, is you are tying civil
penalties and citations with specific exposure monitoring provisions,
whereas under the current system exposure monitoring is used as a tool
to understand where you are vis-à-vis the permissible exposure limit,
but in and of itself does not necessarily drive a particular citation or
notification penalty.

		MR. O'CONNOR:  Ms. Vazquez, you indicated that in some circumstances
you receive a call and your workers are sent out to a job site, and
really find out when they are at the job site what the conditions are
going to be.

		MS. VAZQUEZ:  Yes.

		MR. O'CONNOR:  How do you approach that when you are determining
whether respiratory protection is necessary and what type of respiratory
protection would be necessary?  How do you assess exposures in that
situation?

		MS. VAZQUEZ:  Well, I don't.  It would be my operator's
responsibility.  And they have -- they'll have respirators on their
truck to use when necessary.

		MR. O'CONNOR:  And how do they decide when it's necessary?  Is there
some criteria that they apply to --

		MS. VAZQUEZ:  Yes.  We use a task-based approach.  So for example,
I'll just, you know, slab sawing, if they're going to be slab sawing
inside of a building, for example, so with an electric saw, we tell them
what PPE is necessary, including respiratory protection.

		MR. O'CONNOR:  Okay, thank you.  With regard to respiratory
protection, the coalition has some written comments that indicate that
for short duration tasks that are performed intermittently on a job
site, OSHA may wish to consider placing respiratory protection at the
same level as engineering and work practice controls with respect to the
hierarchy of controls.

		I was just wondering if you could clarify that.  I'm assuming because
we're talking about respiratory protection that we're talking about
situations where the exposure would exceed the eight-hour TWA PEL.  If
that's correct, are you referring to short duration tasks meaning a few
days of exposure above the PEL?

		MR. HAMMOCK:  I'll go ahead and take that.  You know I don't know the
answer to your question, to tell you the truth, because I think it is
complicated.  From what we are told from the folks that we have talked
to, the contractors that we have talked to is that there are very short
duration tasks and likely just sort of focused on the day to day, as
opposed to a multiple stretch of days, and maybe that's the best answer
to your question, where it may be as effective to simply use a
respirator for that period of time.

		The difficult is, though, and I think it's a difficulty for OSHA, is
that we are trying to balance what we believe is generally an employee
dislike for respiratory protection, which is one of the fundamental
underpinnings of the hierarchy of controls.  So it's a very difficult
thing.

		We think it's worthy of consideration.  We understand OSHA would be
reluctant to deviate from the hierarchy of controls, but it's something
to think about.

		MR. O'CONNOR:  Thank you.  The coalition also indicates that medical
surveillance is impractical in the construction industry as it relates
to crystalline silica for a number of reasons that you lay out in your
written comments.  And I know there has been some discussion earlier of
how other standards compare to crystalline silica, our existing
standards, for example, for lead or chromium that have medical
surveillance provisions.  Is this something where it's simply a matter
of the number of employees who are affected that makes it impractical
from your perspective?

		MR. HAMMOCK:  Certainly, we believe the number of employees that would
be affected is much greater than is the case with other health
standards.  I think there are some others concerns, though, that we have
with respect to medical surveillance, with respect to silica, that maybe
doesn't exist with those other agents.

		And let me give one example of that.  What you're talking about with
silica is a long-term disease outcome, for the most part.  It is not a
short-term disease outcome.  And you are having a number of -- you're
having presumably a significant degree of surveillance, which we
understand why OSHA would want to do that.  But we believe there is
going to be a great reluctance by employees to participate in that
surveillance because this really gets to the fundamental aspect of their
job.

		This is not something where, for example, with lead exposure, you
could be taken out of exposure for a short amount of time, the lead
might go through your system.  I mean this is something that, we think
that there are significant concerns about how employees will approach
this for fear of essentially being blackballed or losing their jobs.

		I mean this is a -- silica is so pervasive in construction, it is
everywhere, that it just doesn't fit neatly into those other health
standards in our view.

		MR. O'CONNOR:  Thanks.  That leads nicely into my next question.  You
mentioned a fear that employees might have of being blackballed.  Some
other participants in this proceeding have mentioned concerns about
that.

		And in your written comments, you indicate that the coalition
understands the overall need for a written opinion to be provided with
regard to the written medical opinion and that OSHA has historically
included this requirement in its health standards, although it,
referring to the coalition, questions the employer's role in providing
such information to an employee.

		And I was just wondering from the coalition's perspective did you see
any value in the employer being involved in that transmission of
information, or is this something that you don't see any value in?

		MR. HAMMOCK:  Just let me make sure I understand, the transmission of
the information from the HCP to the employer?

		MR. O'CONNOR:  Yes, in the traditional scenario such as we proposed
where the employer would see that the healthcare provider was offering a
medical exam to the employee, would receive a written medical opinion,
and would transmit that information to the employee.

		MR. HAMMOCK:  Right.  You know, I mean I think is there a value, I
mean, certainly.  Part of it just depends on the overall context.  I
mean, look, if you've got a regulatory environment and OSHA is going to
be holding folks accountable for making decisions, not employment
decisions, but placement decisions or whatnot based upon exposure and
health outcomes that are determined from surveillance, well, absolutely
there is value in that.

		If it becomes a situation where the purpose of the surveillance is
simply to educate the employee on what their health situation is, then
there is arguably very little value.

		Now, you can question whether that is an appropriate role for OSHA in
that situation or is OSHA stepping over into a comp situation.  But if
the outcome is going to be similar to the way OSHA has done other health
standards, where there is an expectation that the employer will make
some move to the employee to get them out of a silica-based exposure
situation, then I think you could certainly argue that there is some
value to it.

		MR. O'CONNOR:  Thank you.  You also, during the discussion here,
alluded to high rates of noncompliance with the current standards, which
is something that a number of other participants in this proceeding have
mentioned.  And I was just wondering if you had any sense as to why that
would be, to the extent that there is noncompliance with the current
PELs in construction, why are employers not complying?  Is it a matter
of them not understanding that there are overexposures occurring?  Is it
an inability to control the exposures or other factors?

		MR. HAMMOCK:  Yeah, I mean that's a great -- I think that's an
excellent question.  And I'd like to, first, I'm curious as to what
Kellie and Kevin's perspective might be on that.  I mean we talked about
they are sort of leaders in this area.  I don't know to what extent they
have, in their conversations, can weigh in on that.  I'm interested.

		MS. VAZQUEZ:  Go ahead.

		MR. HAMMOCK:  Let's start with Kevin.

		MR. TURNER:  From my experience, it's just a -- I don't even know if
it's a misunderstanding, it's just lack of knowledge.  Because of the
size of our projects, a lot of them are public-private partnerships,
P3's.  We're required to work with smaller businesses, various entities.
 A lot of those are literally a few folks and a pickup truck, and their
knowledge of OSHA is minimal.  Quite frankly, they're lucky to make 30
to 45 days payroll, so a $1,000 HEPA vacuum means 1 or 2 people, 2
weeks' worth of work.

		We spend a ton of time mentoring, partnering with these folks and
bringing them up to the standards, quite frankly, on our job sites.  We
offer routinely 10- and 30-hour trainings.  But, really, the big factor
for us is sitting down in what we call a pre-construction meeting with
this contractor that's been awarded a piece of our project, and walking
through with them their hazards and risks and how they are going to
mitigate those.

		This is one of those things that typically it's just dust.  Silica is
not seen typically.  You don't taste it.  It doesn't have an odor.  So
in their minds, it doesn't exist; it's not an issue.  It's not like
falling 30 stories.  So, first, we have to get people beyond the
physical hazards and then we work the through the health hazards.  And
it really is a handholding.

		MR. HAMMOCK:  And one of the things I think that is out there, I mean
I think there has been some historical confusion within the construction
industry as to exactly what the PEL is in construction.  I mean I think,
you know, even when the proposal comes out and everyone says, oh, the
PEL in construction is actually 250 µg, well, a lot of people who have
been operating construction have been thinking it's 100 µg all this
time.  So I think there is some historical confusion as well with
respect to construction about what their underlying obligations are.  Do
you have anything else to add to that, Kellie?

		MS. VAZQUEZ:  No, I concur with what Kevin just said.  I think it is a
lack of knowledge.  I do think people think it is just dust.  I was
recently doing some safety audits, going out and seeing my employees,
and we were working in a residence.  And as we were driving by a
different residence, I saw two guys polishing inside of a garage dry,
and they just had handkerchiefs wrapped around their face.  I stopped
and took a picture.

		I was like this is the problem.  It's not those of us that are working
under the current PEL and doing what we're supposed to be doing.  My
belief is the disease happens there, the disease happens inside that
garage, that constant overexposure.  How do we stop that?

		And I believe the special emphasis program from a few years ago, I
believe that that helped many of us move past and become more educated,
and I do believe doing that in the future and getting out more
information to our contracting, you know, our trade associations and
sharing that information will help promote the education of other
contractors.

		MR. HAMMOCK:  Boy, does the -- I mean a big question, analytical, I
guess, you know, sort of a theoretical question is when this final rule
comes out, is that more effective at reaching that example that Kellie
just did.  You know there is a smart person at OSHA by the name of Bob
Burt who told me once that one of the most effective techniques OSHA has
to further compliance is to issue a proposed rule, not necessarily a
final rule.  So I believe everything Bob Burt says.

		MS. VAZQUEZ:  And can I say something on the medical surveillance?

		MR. O'CONNOR:  Sure, yeah.

		MS. VAZQUEZ:  Do you mind?  One of my issues with medical surveillance
is what I have learned is that the average age of onset of silicosis is
around like 55 years old.  And so I believe it would be many chest
x-rays and chest x-rays of nothing going on if anything ever happens.
And then also with the B reader issue, in Houston, Texas, you know, the
fourth largest city in the United States, we have five B readers, five.
How is that going to be sufficient if this rule were to go into effect?
And so those are two of my issues with medical surveillance.

		MR. O'CONNOR:  Thank you.  I'll turn it over to Joe Coble.

		DR. COBLE:  Hello.  I'm interested in Table 1.  I think we've --
does this represent an innovative approach, and I think there is a
genuine desire to make this work.  And one of your statements was Table
1 is unworkable.  And I presume that's due to the notes, since those are
what we more or less heard about today.  So what recommendations could
you make regarding how would you assess the effectiveness of the
controls, because the notes essentially give guidance on how you tell
whether those controls are working or not.  That's the main reason for
them being there.

		How is it currently done?  When you go out there and look, how do you
tell whether or not your piece of equipment is operating the way you
think it is supposed to be operating?

		MR. HAMMOCK:  You know, I'm going to first turn that to Kellie, I
think, unless you need me to give you a chance to think about that and I
can say my take.  But I think, and this is helpful, because one of the
questions that our folks had was what do these notes mean.  You sort of,
you know, what do they mean?  Are they a requirement?  Is it a situation
where the compliance officer is going to come out and if he finds out
from an employee interview that there actually was visible dust when
this masonry saw was being cut, then therefore it's a violation of that
provision of the table so that you chose that outcome.

		It sounds like maybe that's not it.  It's just that those are just
indicators of what might be effective controls.  There is no doubt that
the notes, themselves, caused folks a great deal of concern and I will
say the two broad concerns.  And then turn it to Kellie to give you
information you actually care about.

		The other thing is I think there is a thought that Table 1 in a sense
is not comprehensive enough.  It doesn't deal with enough tasks.  So, as
a result, an employer is likely not to use it because in the end they're
still going to have to be doing exposure monitoring as well.  And it
doesn't get you much else besides maybe an out with respect to exposure
monitoring.

		So if you're an employer, you're going to say to yourself, okay, yeah,
maybe I can use this stationary mason saw, but I do X, Y, and Z, as
well, I've got to be doing exposure monitoring anyway, because that's
not covered in the table, and as a result you get nothing out of it.
You get no added benefit.

		I think the third thing is there are going to be situations where
Table 1 doesn't work.  Let's just take the example of the minus 10
degrees in North Dakota.  You use wet methods, right?  Maybe you use it
90 percent of the time.  But on some days, and maybe it's not -- maybe
it's just one percent of the time, some days you cannot cut wet, and
then at that point what does your obligation become?  And you are
probably going to have to say to yourself, well, I must have had to do
exposure monitoring at that point.

		So what is -- should I have done initial monitoring, should I have
otherwise categories, or if not, if I can't use Table 1 on that day,
then do I have to stop the job, do exposure monitoring or some sort of
exposure characterization, and therefore go forward.  And as a result, I
just don't see anyone actually embracing it and doing it.  There are too
many obstacles to it.

		Now, that's the sort of the lawyer answer.  But let me get Kellie's
perspective from the actual person who would do this.

		MS. VAZQUEZ:  Right.  Well, a lot of what I do, and I would think
being a concrete cutter, a lot of my operations would be in here, but a
lot of my tasks that I do every single day aren't even listed.

		So at first, when I first saw this, I was like, oh, I don't have
anything to worry about.  We're not even in here.  And then I spoke to
an attorney, and he said, no, you've got to worry.  No, so that's one
thing.

		The tasks that I perform aren't listed.  That was one of my concerns.
And then it made me question now how is OSHA going to amend this?  How
are they going to add this?  How are we going to make this table larger
and bigger?  Is it going to be the employer's responsibility, therefore,
I would need to do exposure monitoring to add to my table, or is that
something OSHA is going to do, are they going to amend the table and
make it larger and larger, and keep it going?  So those were a couple of
my questions.

		On the engineering and work practices, I got very confused and lost.
And a lot of it, some of it just went over my head, you know, when we
were talking about the HEPA filter and it must be operated at 25 ft3/min
or greater airflow per inch of blade diameter, I'm not an engineer.  I
got totally confused on that.

		Then prevent wet slurry from accumulating and drying, you know, I did
not like that at all.  And the no visible dust.  Now, I understood that
on the wet methods and not allowing no visible dust to be emitted, I'd
say, you know, I can't say for 100 percent of the time that that's going
to happen.  And I never like to say never.  I never like to say don't
allow this to happen.  I don't like to ever say that.

		Now, I never knew from on the LEV side, because we don't use local
exhaust ventilation systems.  But when I was at World of Concrete in
January, I had a couple of my manufacturer friends show me how the LEVs
work.  And even using an LEV, you cannot prevent visible dust due to
that gap that is before the blade gets into the concrete to a certain
depth, you will have a gap, and then there will be visible dust.  And
then also while you're cutting on the concrete block that you are
cutting, there will be dust left on the block that can easily be blown
or be emitted.  So that's another issue that we have.  And I never
understood that --

		MR. STONE:  I think you've done a good job of explaining what the
issues are.

		MS. VAZQUEZ:  -- until that.

		MR. STONE:  But what we're wondering about --

		UNIDENTIFIED SPEAKER:  Was the solutions.

		MR. STONE:  Yeah.  So if we remove the notes, you're saying remove the
notes and the table would be a lot more workable?

		MS. VAZQUEZ:  How I think my perception of Table 1 would be to list
the tasks, the engineering control associated with that task or that
piece of equipment that you're going to use, and then have the
respiratory protection if necessary.

		MR. STONE:  And those would be the default controls under most
circumstances.  Most of the time we would anticipate that these controls
are available, feasible, although recognizing there are exceptions, cold
weather, so forth.

		MS. VAZQUEZ:  And then if it could be like as a guidance document to
guide contractors on using it instead of being something that this has
to be done in this way.

		MR. STONE:  The ASTM standard is a guidance document and that has a
provision in there about having no visible dust.  Now, do you recall
that being a point of discussion?  I mean you voted for that standard, I
assume.  You were on the committee.  It was approved.

		MS. VAZQUEZ:  Yeah, no, I do not recall that being in there.

		MR. STONE:  Well, that's a provision in the ASTM standard.  It calls
for no visible dust.

		MR. HAMMOCK:  Right.  And I think that -- I mean that raises a great
point, two points, really.  One is it underscores that maybe what the
intent, OSHA's intent was, because that may be an indicator of when the
controls are operating well.  But it's a much different issue when
you're talking about a compliance end point and the potential for a
citation.

		MR. STONE:  Right.

		MR. HAMMOCK:  And I think, you know, it's one thing to include it in a
non-mandatory standard where you say, yeah, sure, no visible dust.
That's an indicator of the effectiveness of the control.  We are very
concerned about including that as part of a provision that you could be
cited on.  And I don't know the answer, but I think that's a significant
difference.

		I also think that when we talk to folks, there is a lot of discussion
about what the ASTM approach was.  And I think the folks' understanding
of the ASTM standard is more in line with what the construction industry
would like to see with the Table 1.  But, you know, in a sense, though,
it's really just guiding folks onto what to do.

		So Kellie's would be you know what, she cuts wet.  If you just said if
you cut wet, you're good to go, I think she would be pretty comfortable
with that.  I'm not necessarily saying the coalition would support that
because we have other considerations, but that's kind of simplicity.
This is drafted more as a compliance document as opposed to a guidance
document for obvious reasons.

		MR. STONE:  Okay.  So I guess we'll go to Patti then.  I'll leave it
at that.

		MS. DOWNS:  Are you done?

		MR. STONE:  Yeah.

		MS. DOWNS:  Do you want to introduce me?  I can introduce myself.

		UNIDENTIFIED SPEAKER:  David, do you want to --

		MR. O'CONNOR:  Patti Downs has a few questions.

		MS. DOWNS:  I probably have more than a few questions, but I'll limit
myself today in the interest of time.

		One of the things that was submitted in the written comments talked
about how stationary and mobile crushers are different, and how those
differences can affect exposures and the control effectiveness.  I think
you specifically mentioned LEV and wet methods.  And I'm just wondering
what makes those two pieces of equipment so dissimilar as far as the way
controls are applied?

		MR. HAMMOCK:  I'll go ahead and start.  I actually think two things.
One is I don't remember the exact phraseology.  I don't know if we
actually said that.  But even so, OSHA makes the point of emphasis that
they don't look at any mobile crushers.  I don't know, frankly, the
extent to which there is a difference.

		But I can tell you this:  There are a lot of mobile crushers in
construction.  And it is incumbent upon OSHA, in my view, to analyze
those.  To make an assumption in terms of technological feasibility that
they are the same, I don't think OSHA has met that burden.  Remember, in
effect, it's a burden shifting exercise.  So you're putting the burden
now on the employer essentially to prove that something is not
technologically feasible.

		We understand that OSHA has data limitations.  But given the fact that
mobile crushers are used extensively in construction, from what I
understand, to make that assumption on the contrary perspective is
inappropriate.  It's OSHA's burden in the first instance to make that
case.

		MS. DOWNS:  Anybody else on the panel care to comment?

		MR. TURNER:  I'll just give something very brief on my experience of
one time on our job sites; however, I have visited the quarries and
suppliers where we get some of the aggregate that goes into the
concrete, etc.  My experience with the stationary crushers that I have
seen from 100 yards away is they are huge machines.  And I would sooner
phrase this as almost a general industry versus a construction type of
item.  Stationary equipment, by the very name, has the ability of it is
not moving, it's not going down the 10-foot road and onto a job site.
It doesn't have wheels underneath of it, etc.  That's my experience with
it.  And the fact that what has rolled onto our job site previously
doesn't have all the cabs and bells and whistles that I've seen in a
much larger operation.

		MR. HAMMOCK:  And let me say one other thing I think with respect to
OSHA's burden here.  One of the striking things about the stationary
crusher example, and this is based upon my recollection so I could be
wrong, but we talked a little bit about the rock crushing example
earlier in the testimony.

		OSHA's feasibility conclusion is based in that example on really just
a handful of data point; some foreign studies which OSHA concludes are
not necessarily indicative of exposures in the United States; and, in
addition, relying heavily on this one stationary rock crusher and this
is the one that I talked about.

		You've got a situation where the exposure monitoring that took place
with the stationary rock crusher on a muddy day, which was conducive to
low silica exposures, where they used wet methods, where they maintained
those wet methods, and the exposures that they got from that were 54
µg/m3, just above the PEL.  To then take that assumption and say it
should be applicable to all mobile crushers when you're already at that
level anyway, I don't think it qualifies as meeting that burden, again
to shift it onto the employer to prove technological infeasibility.

		MS. DOWNS:  Okay.  So kind of along the same line of thinking is my
last question.  You also state in your submitted comments how
differences in drill type can affect the exposures or the effectiveness
of controls.  Can you just expand on that a little?

		MR. HAMMOCK:  Yeah, no, that's great.  And I would also, and I'll
refer to Kellie on this, too, because I think she's got a lot of
experience, but I would also highlight one of the interesting things I
thought about NIOSH's testimony on Tuesday was their discussion of the
different types of exposure conditions that really could affect
exposures.  And they gave an example of different drill bits in their
testimony that could have a tremendous effect on silica exposures.  And
so I think that's another place to look.

		And I remember also OSHA made the same point when looking at tunnel
boring equipment, that various types of bits that are on those types of
equipment can have a significant effect on exposure.  But let me turn to
Kellie to see from her experience, because I think that would be
consistent with your experience as well.

		MS. VAZQUEZ:  Yeah, because I was actually talking to Brad about this.
 You know a rotary hammer bit is very different than a -- I keep on
hitting this -- very different than a core drill bit, a diamond bit.
Therefore, a diamond bit is going to drill differently than a rotary
bit, and they will have different silica exposures.

		Now, I have never put the testing side by side, but this is just what
I think from my experience.  So whenever, for example, you know, using
rotary hammers or drills except overhead, I can drill with a diamond bit
overhead using water and not run into a high silica exposure, which
maybe using a rotary hammer dry overhead, for example, would have, and
this is something I'm assuming, but might have a different exposure.

		So that's what I think what you cut the concrete with does make a
difference on what silica exposure you get and how much of it you do
receive.

		MR. HAMMOCK:  And I'm hopeful that NIOSH follows up some of those.  I
mean I don't know what they are doing from a post-hearing perspective,
but if anyone is out there, I'd love to get their testimony on that as a
follow-up because I think it's a very meaningful point that they made of
the differences that that can have on exposures.

		MS. DOWNS:  Okay.  And, Kellie, a follow-up on that question for you.
How difficult is it to implement those changes then to change the drill
bits or the blades, or the equipment to lower the exposures?

		MS. VAZQUEZ:  Well, we cut concrete using diamond bits and blades.
That's what we use, so --

		MS. DOWNS:  And then kind of an obscure question to one of your
obscure comments.  You mentioned in the drywall finishing session --
you mentioned in the drywall finishing section that some of your members
have encountered joint compound labeled as silica-free that actually
contained silica.  How often have they encountered that?  Do you think
it's fairly common?

		MR. HAMMOCK:  No.  And just to clarify, I'm not certain how common it
is.  Our comments were actually not reflecting feedback that we received
from members.  We were actually just reviewing the PEA and the ERG
analysis, and it was striking to us that a number of samples that were
there, maybe not a number, I don't remember how many, were supposedly
done with, quote/unquote, "silica-free joint compound."  But when you
actually got the monitoring data back, they were showing relatively high
elevated exposure levels.

		So, to us, that raised an issue.  Frankly, I think we can all say that
there is silica-free joint compound.  But the point is apparently you
can't necessarily, if you're an employer, simply rely on that unless
there may be some sort of carve-out that OSHA says if you're using,
quote/unquote, "silica-free joint compound."  But that was a reflection
of our reading of the PEA and the ERG report as opposed to our member
feedback.

		MS. DOWNS:  Two more questions.  On Page 19 of your written comments,
you say that OSHA determinations are not supported by the best available
evidence.  Can you give me an idea of what evidence is out there that
you think OSHA should have included?

		MR. HAMMOCK:  Well, that's a great question.  I will start on the tech
feas side, but we could also go to the ec feas side as well.  And I
guess I will start with my understanding of what OSHA's ultimate
responsibility is here.  And as you point out, it's to rely on the best
available evidence.

		That is somewhat historically, my understanding has been an undefined
term, but, you know, obviously, OSHA doesn't necessarily have a
responsibility to go out and conduct three billion samples of what's out
there.  But we believe when you look at all of the tasks that it has
looked at from a tech feas perspective that it hasn't factored in the
variety of circumstances that can exist.

		Maybe that is an impossible task.  But it seems to me that you cannot
make the sort of definitive tech feas finding that you've made based
upon the range of samples that you have.

		Now, does that mean you need to go out and get three billion samples?
No.  I don't think the coalition is saying that.  But there needs to be
some reflection in the analysis that you do not have data that factors
in all the different exposure situations.

		Now, I'll let Stu talk a little bit from the ec feas perspective.

		MR. SESSIONS:  Well, actually, it's not an economic comment.  It's on
the sort of best available evidence.  One sort of sideline I did is
attempt to run down in excruciating detail the exposure data supporting
one particular task.  And I ran down mobile masonry saws.  And I looked
in great detail at all the exposure data as best was possible that
supported the technological feasibility judgment on that task.

		And with respect to the question that Brad raised about what happens
during the rest, the unassessed remainder of the operator's shift, in
about half of those samples for wet cutting -- sorry, for using
masons --

		MR. HAMMOCK:  Masonry saws.

		MR. SESSIONS:  Masonry saws, in about half of those examples, the
original study provided enough evidence to surmise fairly confidently
whether the operator was or was not going to continue doing that task
during the rest of his shift.  So the best available evidence in at
least half of those exposure studies was sufficient to make a judgment
about whether exposure continued or not.

		And I remember explicitly one study, it was a NIOSH study of concrete
coring in which guys are tearing up a bridge and cutting the concrete,
and the NIOSH report said we stopped monitoring after five hours and we
went home because it started raining.

		And the clear implication is these guys were going to keep cutting
that bridge for the rest of their eight hours.  And it was entirely
inappropriate of OSHA to assume that the exposure continued for only
five hours and to, in effect, dilute that exposure by an additional
three hours of presumed non-exposure to silica.

		So, in that instance, that study and a couple of data points were
crystal clear about what the assumption should have been about the rest
of the shift.

		Similarly, other sorts of studies had titles that implied very clearly
that the monitoring was conducted under unusual circumstances only while
the at-risk task was being conducted.  In fact, they turned the monitor
on when the saw started cutting and they turned it off when the saw
stopped cutting.  And that, clearly, you have no idea what was going on
the rest of the shift and, presumably, the rest of the shift is not 100
percent of the time cutting as occurred during the sample.  So OSHA's
assumption there is more reasonable.

		But here is an example where sort of the best available evidence would
allow more inference than OSHA has drawn.  And I want to sort of expand
on that by mentioning again this Canadian Quebec database on
construction sampling which is an immense database.  And they have
explicitly turned it into a database, as opposed to leaving it as
individual samples.

		So you can query the database about show me all the samples where
masonry saws were used with controls and where they were used without
controls.  And you can query the database about how long the sample was
conducted relative to the sampled workers' full shift, etc.

		So there is another instance where the sort of available evidence is
on a key question, you know, a step better than what OSHA has been able
to do thus far.  So that's part of what we meant with those comments.

		MS. DOWNS:  Okay, well, thank you, gentlemen, and madam.  I'm going to
defer my last question.  I'll let everybody else on the panel ask
theirs, since my last question is rather lengthy and we can come back to
it at the end.

		MR. O'CONNOR:  Bill Perry has a question or two.

		MR. PERRY:  Really, just one.  First of all, thank you all for
appearing here today.  It has been very helpful.  Brad, long time, no
see.

		MR. HAMMOCK:  Yes, thank you.

		MR. PERRY:  Nice to see you again.  Ms. Vazquez, I just have a
question about a statement in your written testimony where you say the
table should be amendable by employers when testing proves compliance
with the PEL and exposure monitoring should not expire.  Could you
elaborate or explain that?  I'm not -- I want to be sure I'm clear of
your meaning.

		MS. VAZQUEZ:  Okay.  That's kind of what I was referring to a little
bit earlier.  I didn't know how Table 1 was going to be able to be
expanded.  How are we going to expand Table 1 to bring in the additional
tasks that need to be listed, and the controls, and, you know, just help
guide contractors under the PEL.

		So in my head, I was like is it going to be the employer's
responsibility to amend this table and perform silica monitoring, and
add in their task and their monitoring, and what they need to do to get
underneath the PEL.  And so in my head, that's what I was thinking.

		And then about the testing and having it not expire, that goes back
to, and I don't remember what section it was, but the testing and it
needed to be within a 12-month period, you know, the date of the
testing.  So does the test expire after 12 months?  So I don't think it
should expire.  If my equipment hasn't changed, the task hasn't changed,
the engineering control hasn't changed, then why should it expire?

		And so those were kind of I guess questions that I put in there.

		MR. PERRY:  Okay.  That actually is very helpful.  I appreciate it.

		MS. VAZQUEZ:  Okay.

		MR. O'CONNOR:  We'll switch over to our economist, Robert Stone.

		MR. STONE:  Thank you.  Good afternoon.  Most of my questions are
geared toward Stuart Sessions.  Let me begin with an administrative
question.  I didn't see any workbooks attached in your submissions.  And
I don't know, have you submitted anything yet in terms of like Excel
workbooks, anything like that?

		MR. SESSIONS:  No, no.  We, as I say, I apologize that we are partway
along on the work that the coalition has asked to be done and we will
submit documentation.

		MR. STONE:  Okay, thank you.  That would be very helpful to us.  To
some extent, some of my questions may, would be answered with the
workbooks, so I'm going to go through a couple of things just to clear
up some of your numbers.

		The first thing is the number of affected workers that you estimated.
You include pretty much all the workers in all the occupations we
identified, which is about 3.25 million workers I believe.  And then you
added another about 1.5 million workers and nine occupations.  Is that
right?

		MR. SESSIONS:  Something like nine, if you count --

		MR. STONE:  Right, some of them are helpers.

		MR. SESSIONS:  Yeah, if you count the helpers, yes.

		MR. STONE:  And so I mean the main occupations were roofers,
plasterers, plumbers, electricians, and the fifth one was tile and
marble setters.  I just wanted to point out that that, in fact, is an
occupation we did have covered.  And if you look on Page 148 and 149, in
Chapter 5 of our PEA, you'll find that they are included there.

		MR. SESSIONS:  For at least one of those, either plasterers or tile
and marble setters, you've covered helpers, but not the occupation,
itself.

		MR. STONE:  I see, okay.  I'll check that.

		Have you considered the possibility that some of -- all the workers
in these occupations may not, in fact, engage in silica tasks?

		UNIDENTIFIED SPEAKER:  You got a nod.  You've got say yes.

		MR. SESSIONS:  Yes.

		MR. STONE:  But you didn't make adjustments for that possibility, did
you?

		MR. SESSIONS:  I think we were following OSHA's methodology of
attempting to estimate the fraction of the total workforce in these
occupations who, which is spent in doing silica related tasks.  So, for
example, plumbers we said -- we say three percent.

		MR. STONE:  Right, I'm going to get, yeah, okay, so I mean many of
these are -- the ones you've added are fairly rare exposures.  Like you
had three of them are two percent, three percent, and four percent, for
example.

		MR. SESSIONS:  Yeah.

		MR. STONE:  And but some of the workers, like roofers, for example,
may not work with tile and may work with asphalt shingle, for example,
and they wouldn't expect to have exposure.  So then maybe a fair number
may be a majority of them might not have any silica exposure.

		MR. SESSIONS:  That's right.  And we tried and actually the roofing
trade association has some data on the fraction of roofs that are
conventional asphalt shingle versus clay tile, versus slate --

		MR. STONE:  Right.

		MR. SESSIONS:  -- and other things.  And we attempted to roughly use
that information in coming up with the fraction of total roofer FTE that
is involved in silica related tasks.  So at least 80 percent of the
roofs have relatively little silica in them.

		MR. STONE:  So you're telling me that the number of roofers and
helpers, 205,000 were not all roofers, just the percentage you estimated
would be exposed to --

		MR. SESSIONS:  No.  I'm saying the 205,000 was the number of roofers.
But the two percent estimate that we gave to those 200,000 roofers --

		MR. STONE:  I see.

		MR. SESSIONS:  We said two percent of their time in total on average
is spent doing silica related tasks.

		MR. STONE:  Right.  But, for example, did you estimate that all of
these roofers would be, therefore, affected by this rule, and would
therefore have to do training and possibly use the controls?  From your
numbers, that's what I looked like to me.

		MR. SESSIONS:  In terms of the controls, we made some assumptions
about how many tools there were per affected trade.  And we assumed that
each of the tools would need to be controlled in order to do the job
properly.

		MR. STONE:  For all, for every roofer, for example?

		MR. SESSIONS:  We also made some assumptions which I apologize for the
details not being available in front of you, but we made some
assumptions about the degree of sharing of tools and the size of the
roofing crew.  And so if there is one tile saw per roofing crew, there
may be four roofers that are sharing that one saw.  And we made some
assumptions about the potential for sharing across crews.  And the net
result might be sort of one controlled roofing saw per eight workers.

		MR. STONE:  Right, so we got the amount of equipment used.  But the
problem is the number of workers that are going to be subject to the
ancillary provision is all of them, according to your estimates.

		MR. SESSIONS:  We do not have that part of the analysis yet and it
shouldn't be all of them.

		MR. STONE:  Okay.  Just as a related point, now you certainly
mentioned a couple of times today other rulemakings, lead and asbestos
being prominent, confined space is another one, where in response to the
rule there has been a fair amount of specialization of labor.  And you
argued that it really couldn't apply here.  I would suggest that perhaps
not to the extent of specialization as these other regulations, but
perhaps some.

		So let me get your opinion on this.  Suppose a profit-maxing but
careful, but responsible employer said, you know, I have on this crew an
electrician and an electrician's helper.  I don't want the electrician
to be doing this work, only the helper.  So you've already cut out a
fair percentage.  You can do the same thing for plumbers.  It would also
save you money because you're going to use a less expensive worker to do
that task, which is generally a less expensive task.  You can use the
electrician and the plumber to do the more expensive tasks and earn
their wage.

		So I'm going to suggest that these numbers might be reduced somewhat
to reflect that degree of specialization.

		MR. HAMMOCK:  Yeah, I think that -- I'll jump in on that, Stu.  I
think there is no doubt that to the extent that does occur, it may have
both -- it may have effects on cost and benefits and the economic
feasibility.  Of course, I would also say if you make that assumption,
you are assuming greater full-shift exposures of those employees.  They
are going to get more silica than they would otherwise get, which would,
in my view, affect your assumptions in the tech feas side as well.

		MR. STONE:  Okay.  Well --

		JUDGE SOLOMON:  Let me just say that when Mr. Stone asked the
question, Mr. Sessions nodded his head yes and is the one that
responded so --

		MR. SESSIONS:  I will refrain from my nonverbal.

		JUDGE SOLOMON:  Ask another question, Mr. Stone.

		MR. STONE:  All right, thank you.  Let's turn to the cost that you
estimated.  And I want to turn to the cost for controls.  I'm just going
to briefly summarize what I understand your analysis to say and I want
an understanding that's your presentation.

		You estimate for workers that have exposures on average less than 10
percent, which pretty much covers almost all of the 1.5 million workers
you added, at least 1.4 of them.  Those workers would have less than 10
percent exposure on average; a 2 percent, 3 percent, 4 percent for I
think plumbers, electricians, and roofers.

		And you said for those workers, they would be able to share the
controls with three crews, correct?

		JUDGE SOLOMON:  Nodding his head again, for the record.

		MR. SESSIONS:  Yes.

		MR. STONE:  Okay.  How did you price the use of the controls for these
workers?

		MR. SESSIONS:  We used exactly OSHA's prices for unit prices for the
controls and assumed that the particular dust extractor, HEPA vacuum
combination would be usable for quite a variety of sawing and drilling,
and sort of minor demolition tasks.

		MR. STONE:  Okay.

		MR. SESSIONS:  So, for example, for plumbers who we thought, you know,
they do some concrete sawing, they do some drilling, they do some minor
demolition work in plaster and things like that, in total, each of those
we thought was maybe one percent of the plumber's time to come up
with --

		MR. STONE:  You actually said, I think, three.

		MR. SESSIONS:  Okay, come up with a total of three percent.  Between
each of these three tasks are one percent each.

		MR. STONE:  Oh, I'm sorry, yes.

		MR. SESSIONS:  And we assumed that the nature of the control would be
similar in the sawing versus the minor demolition, versus the drilling.
And we used that, whatever it was, $4.69 --

		MR. STONE:  All right, so you used our price.  And then you --

		MR. BURT:  Could I ask one follow-up while we're there?  When you made
earlier many criticisms of the tech feas analysis and ways that controls
might be improved.  But the costs you estimated don't change the
controls we're using or do they?  I just wasn't clear on that.

		MR. SESSIONS:  Actually, no, they don't change, because, you know, I
apologize for not being a construction practitioner and I have not spent
the time to --

		MR. BURT:  Okay, no, I just wanted to be sure about that.

		MR. HAMMOCK:  Your point, Bob, is if we're sitting on the tech feas
side, you'll need to do more, something like the controls aren't
adequate as laid out.

		MR. BURT:  Yeah, I was just curious if it was included.

		MR. HAMMOCK:  Whether that has been incorporated, right.

		MR. BURT:  Okay.

		MR. STONE:  So returning to the methodology for costing, you pretty
much used our numbers and you used our, presumably, like you mentioned
the dust shroud that has a one-year life and, therefore, after one year,
you take the cost again the second year, is that right?  And the third
year, and so on?  Okay.

		I think this is perhaps a problem with the way you've done your
analysis.  We used basically FTEs, full-time equivalents.  You're using
three percent of the time let's say for plumbers, as an example, you're
applying it to three crews, all right?  At the end of one year, you're
having them buy another dust shroud.

		And my view is, and I wonder what your view is, they will have used
nine percent of the economic life of the dust shroud.  Now, you can
argue I'd make an adjustment because we estimate 150-year use of it, for
full-time use.  This would suggest, though, that after one year, you
will have used one-sixth of the life of that dust shroud and an employer
is not going to throw it out.  It's still functional.  He'll use it for
the next five years.  He'll use it for six years.  Any views on that?

		JUDGE SOLOMON:  Nodding his head again, for the record.

		MR. SESSIONS:  Yes.  That's a good point, and I hadn't thought about
that.

		MR. STONE:  Okay, thank you.  A related point is actually the same
issue.  It would be operating in maintenance costs.  You're -- it's
going to be one-sixth of our original estimate, but I don't think you've
made that adjustment.

		MR. SESSIONS:  Correct.

		MR. STONE:  Okay, that's all I have for now.  Bob Burt is going to
inquire next.  Thank you.

		MR. BURT:  I have a few more questions.  Let's see, I think we
mentioned earlier that you mentioned that you did a survey, but there
was a time problem in putting it into the record, okay.  I just want to
reiterate on the spreadsheets that nothing is more frustrating when,
having been through many of these, six months from now we're going to be
sitting there studying your comment and the clearer it is, spreadsheets
are a huge help in going, instead of looking at each other what do you
think he did now, being able to tell for sure.  That will really
strengthen your comments about that.

		MR. HAMMOCK:  Right.  And our intent is to provide as much detail to
make it easier for you all on that front.  We're dealing with time
constraints.  And as Stu has pointed out, we're still trying to refine
our analysis, so --

		MR. BURT:  Okay.  Now, I just want to be sure I understand a couple of
things.  For this preliminary analysis, you used profit data in 2000 to
2012 inclusive -- 2010, inclusive?

		MR. SESSIONS:  Yes.

		MR. BURT:  Okay.  But for the cost and employment, we're relying on
the same base year as OSHA did?

		MR. SESSIONS:  Yes.

		MR. BURT:  And your cost estimate that you gave today on Page 38 and
39, that includes an adjustment?  I just want to be sure that you got
everything in that you would have liked to.  Does that include the
adjustment for non-contract employees?

		MR. SESSIONS:  Yes, it does include the adjustment for non-contract
employees.  It doesn't include several adjustments I would like to make
including many -- a number of changes on the costing to the ancillary
provisions.

		MR. BURT:  So it doesn't yet have all the ancillary provisions.  Does
it include -- did you attempt here to include the cost of reaching a
compliant, existing compliance in the cost estimate that's here?

		MR. SESSIONS:  Yes.  In our terminology, this is full compliance cost,
meaning including the cost to reach the existing PEL.

		MR. BURT:  A number of your suggestions concerning OSHA
underestimating cost, additional employees, different additional
occupations, additional employees that aren't under OSHA jurisdiction.
Wouldn't these also potentially increase benefits as well as cost?

		MR. SESSIONS:  Yes.

		MR. BURT:  And with respect to the persons not currently in
compliance --

		MR. HAMMOCK:  Let me just say assuming, to put the obvious caveat,
assuming that the benefits analysis is as currently put forth by OSHA is
adequate with all of its bells and whistles, then, yes.  In other words,
there is -- we agree that there is a relationship between the two.  As
costs go up, benefits will go up.  But that assumes that the benefits
analysis is sound in the first instance.

		MR. STONE:  You wanted to make clear that you weren't buying our
benefit -- you agree --

		MR. HAMMOCK:  No, I didn't say that one way or another.  I just wanted
to make sure, that's all.  But the purpose of the question is absolutely
if you include more, you get more benefits under that, right.

		MR. BURT:  With respect to what you call the full cost rather than the
incremental cost of the rule, which include the cost of getting to 250,
would you consider it reasonable for OSHA to include as a benefit of
this regulation coming into compliance with the existing regulation?

		You know if we're doing a benefit cost analysis and taking cost for
getting into compliance with the existing regulation, that would
normally mean you use the same baseline for both and would include
benefits for getting there.

		MR. SESSIONS:  Yeah.  Yes, I agree with that.  And my point on using
full cost is specifically with reference to the economic impact
analysis.

		MR. HAMMOCK:  And let me say --

		MR. BURT:  And let me follow up with that.  Why do you think it's
relevant there?  Because what you ended up saying was I would argue you
should have done that.  Well, argue, if you want.

		MR. SESSIONS:  Because the full costs are the burden, if you will,
that employers in this business will need to bear in order to achieve
compliance with the proposed rule.  And it really doesn't matter if in
theory this fraction of the cost to achieve the current rule were
affordable and this fraction of the cost, this is a hypothetical, to
achieve the increment from the current rule to the proposed rule were to
be affordable, if the sum total of the two is not affordable, then the
rule is not affordable.

		And the sort of economic impacts are a function of the total costs
from here to there the affected industry is going to have to bear.

		MR. BURT:  Now, if we're actually thinking from here to there, would
it be the case that in actuality many people will not be in compliance
by the time we're done?  We've talked an enormous amount about the
importance that people may -- everyone is going to strive to be in full
compliance.  But if we're going to look at the real world, we're also
going to look at the fact people aren't going to be in compliance with
this rule either, wouldn't we?

		MR. HAMMOCK:  I mean we assume, and you can probably look at
historical data, but I would assume we can probably safely say that in
10 years not everyone will be in compliance with this rule.  I would
assume based upon the theory that if costs and benefits, if there is a
relationship with cost and benefits, then presumably OSHA's benefits
would go down as well.

		JUDGE SOLOMON:  Again, I have to address the fact that Mr. Session
has nodded his head yes and Mr. Hammock answered.

		MR. HAMMOCK:  That's the way we like to roll, particularly at 5:00.

		MR. BURT:  I have been in enough of these hearings to have lost the
bad habit of nodding my head.  Okay.  I wanted to look specifically at
the respirator costs a few minutes.  One thing you mentioned you did was
you changed the baseline and that is based on what exactly, the baseline
respirator use?

		MR. SESSIONS:  I apologize again; we have not yet re-estimated
respirator costs.  I offered some preliminary opinions about the
direction in which I would try to reconsider them.  And one respect in
particular was OSHA's assumption based upon the survey which was, if I
remember it correctly, something like 56 percent of -- I think the
survey found that 56 percent of construction employers had respirator
programs as of a particular date.

		And to the extent I understand the Agency's respirator analysis, that
was extended to imply that 56 percent of the workers that would require
respirators under the proposed standard in effect already have them
provided for them and, thus, costs for all of that respirator use should
be taken off the table as, in effect, currently being provided and not
due to the regulation.

		MR. BURT:  When you said you have not yet made those adjustments, I'd
call your attention to Page 38 of your presentation today, which
contrasts an OSHA estimate of $84 million for respirators with your
estimate of $489.8 million for respirators.  So there would certainly
appear to be something happening there.

		MR. SESSIONS:  There is an adjustment there.  I mean there is --
there are two adjustments for more covered employees, you know, (a) more
covered trades and (b) the self-employed workers.  And I believe that we
assigned to them something like the respirator cost per person that OSHA
had.

		MR. BURT:  Even for persons who would only use a respirator one
percent of the time or two?

		MR. HAMMOCK:  What do you mean by -- before he is accused of nodding
his head, could you repeat the, what is it?  What is the exact question?
 Is it for --

		MR. BURT:  My question is many of these occupations are expected to be
doing dusty tasks only two, three, four percent of the time.

		MR. HAMMOCK:  Right.

		MR. BURT:  Now, the full cost of OSHA's respirator use was involving
much heavier, either two to four percent or much heavier respirator use.
 So I'm just curious.  I mean this is an enormous multiple.  And even if
I said you're right, the baseline is zero, I don't get this number.  And
that's what I'm trying to figure out is how we get this number.

		MR. HAMMOCK:  Are you suggesting -- are you suggesting that the cost
of a full respiratory protection program would be somehow less if you
were just doing a dusty task one percent of the time?

		MR. BURT:  Yes.

		MR. HAMMOCK:  The whole cost is going to be the same.

		MR. BURT:  The cost of the program is, but the cost of the respirators
won't.

		MR. HAMMOCK:  Yes, okay.  I thought you were suggesting that the cost
of the program would be different.

		MR. BURT:  No, but if you -- if you, and we'll return to that in a
minute, if you assume that every single person will do this task and don
a respirator whenever he does it.

		MR. HAMMOCK:  Right.  But some of the costs are going to be the same
because a lot of the cost of having a written respiratory protection
program are going to apply whether you have one employee use a
respirator --

		MR. BURT:  Yeah, that's true, also.

		MR. HAMMOCK:  -- or whether you have a million employees.  I mean the
amount of respirators you have and the fit testing and that sort of
thing may differ.  But, certainly, some of the costs are going to be
consistent regardless of who --

		MR. BURT:  So other costs will be there, but remember this is a factor
of six or seven we're looking at here, not, oh, there is a little bit of
difference here.

		MR. HAMMOCK:  Right.

		MR. BURT:  And that's why I'm just trying to figure out how frequently
do you think these respirators were used, how does that work in, just I
wanted to explore this one as one example, simple example of a cost
change.

		MR. SESSIONS:  Okay.  Well, the bottom line is I am not fully certain
on this one, and we will, in short order, provide you with the
spreadsheets that we actually used to calculate this.  And I will
implement in this reanalysis all the changes to the respirator costing
that I think might be suggestible and, you know, we'll fully document
where we come out on it.  And I apologize for not being fully ready to
talk about this portion of it in the moment.

		MR. BURT:  Okay, thank you.  Changing the topic a little bit, we've
talked a little bit about specialization.  And Mr. Hammock has raised
the point and some others have raised the point that silica is
ubiquitous enough that some things won't specialize.

		On the other hand, there are some of these occupations that are doing
silica related tasks, one, two percent of the time.  These would
certainly seem to me to be potential nominees for specialization, but
I'm open to suggestions.

		I realize specialization raises its own issues on the tech feas and,
for that matter, on the benefits side.

		MR. SESSIONS:  I think I tend to think of it to the contrary as the
occupations in which the silica task is done for a low fraction of the
time involve infrequent activities that virtually everybody in that
occupation needs to do.

		The plumber who comes to my house and he had to knock out a bunch of
plaster to fit in the dishwasher -- and I am not going to get a plumber
who specializes in silica-containing activities.  This is a plumber who
does a variety of things in a variety of homes.  And in mine he happened
to knock out plaster that generated silica.  When he goes to the
neighbors', he may be putting a new, down in the basement, you know, he
may be going into the slab to -- the concrete slab to put in a new drain
tube for the new toilet he's putting in.  Or he has gone through the
concrete block wall to put in a new vent out from the water heater.

		And this is a very relatively infrequent task that virtually every
plumber will need to do in order to do his job.  And he's got -- he
ought to have -- he's got the saw to drill through that block.  He
ought to, he and every other plumber who has got that saw, ought to have
the controls for drilling through that block appropriately.

		And my contention is that OSHA ought to think about costs for at least
some of these tasks in that manner related to the tool.  You've got to
equip the tool appropriately for whenever you may perform the task.

		MR. HAMMOCK:  I would say -- I was going to say just to piggyback, my
understanding of, and I know we can't ask questions, but my
understanding of the issue about where sort of the composition of the
workforce with respect to silica-generating tasks is that's a
consideration, but OSHA didn't actually quantify that either in the
costs or the benefits at this point but simply flagged it as an issue.

		I think that you are right, it does have implications across benefits
costs and tech feas, and I guess my point would be if you do attempt to
quantify that effect in some way, maybe based upon historical patterns
or what not, that it needs to be consistently considered at each phase
of the analysis.

		MR. BURT:  I want to return to the example.  The plumbers you
mentioned and described were what I would call by and large we're
talking about maintenance plumbers, that is people who go from job to
job doing repairs, etc., whereas in a building, you might have, you
know, if you're building a building, you might have a bit different
situation.  I just wanted to note that.

		Similarly for some of this, OSHA, I think -- was OSHA clear, I don't
know.  OSHA certainly intended to say that we had looked at -- that
almost all the equipment that we looked at is rentable.  And as a
result, this was part of our -- OSHA's justification for saying that
some of this equipment could be rented as needed.

		You argue almost the reverse, that everyone would have to have all the
equipment all the time.  Is that correct?

		MR. SESSIONS:  Toward that direction.  I mean I, you know, I do
provide for potentially sharing of equipment --

		MR. BURT:  Oh, yes, right.

		MR. SESSIONS:  -- within the members of a crew and maybe even across
crews.  But particular for episodic, short-term silica exposing
activities, the rental image of how those are conducted is
inappropriate.

		I mean the plumber who is drilling the hole through the block for the
new vent for the hot water heater can't go rent that.  He can't go rent
it for the hour that he spends doing it.  He's got to have the equipment
control.

		MR. HAMMOCK:  It may be helpful just to have Kellie quickly, from her,
what she does, I mean my understanding of what she does is that she has,
essentially, you have to have the controls on every piece of equipment;
is that --

		MS. VAZQUEZ:  Yes.  Our controls are on the equipment.  We own our
equipment and the controls that -- the engineering controls like for
water and everything, that's incorporated onto the equipment that we
use.

		MR. BURT:  But you are pretty continuously using that equipment,
right?

		MS. VAZQUEZ:  Yes.  I do work with some electrical contractors and
plumbers, and they tell me up to a four-inch hole, they're going to
drill it themselves.  They have bought drills.  They have the equipment,
themselves.  And it is sometimes the larger diameter holes is what
they'll have us do.  Or too many, that's when they'll call us out.  But
they regularly drill holes or cut concrete, you know, a four-inch slab,
not a lot of rebar into it, you know, they'll cut it, themselves, with
the equipment that they have.  But that's just what I'm familiar with.

		MR. BURT:  Let me close by asking about two alternatives.  And you
don't need to respond now, but we'd welcome comment.  One alternative is
OSHA did consider at considerable length both in SBREFA and in the
issues present here, changing construction from 250 to 100, rather than
50.  And comment on that would be welcome.

		Let me add -- let me throw out a little bit of a pie in the sky
alternative, but it may be close to what OSHA costed, and that is Table
1 basically tells people what they have to do.  We know you disagree
with that.  If people follow Table 1, they will not need to monitor.
They will not need to worry about variability if it is fully in place
the way I think you would prefer it to be done.

		I'd be interested especially for that reason and your comments on how
to improve Table 1 and what effect that would have on the overall
impacts.

		MR. HAMMOCK:  Absolutely.  We will absolutely address those issues.

		MR. BURT:  And let me close.

		JUDGE SOLOMON:  It sounded to me like you did.

		MR. BURT:  Sorry.  I just wanted to give a thank you before I left.  I
wanted to thank everyone for being here.  I want to especially thank
Kellie Vazquez and her firm for their participation in the SBREFA panel
and throughout the process.  And to say that we find particularly
valuable SBREFA panel members who have actually addressed the problem
and struggled with these things and tried to get reasonable degrees of
control.  Thank you all.

		MS. VAZQUEZ:  Thank you.

		JUDGE SOLOMON:  Ms. Ryder, do you have anything else?

		MS. RYDER:  I think we do have more questions.

		JUDGE SOLOMON:  It's 5:17.

		MS. RYDER:  Do you think people would be available until quarter to
6:00, an extra 15, 20 minutes?

		UNIDENTIFIED SPEAKER:  I think we need it.

		MS. RYDER:  Does that work for you guys?

		MR. HAMMOCK:  Sure, I'm okay with that.

		JUDGE SOLOMON:  Okay, go ahead.

		MR. HAMMOCK:  The bar doesn't open till 5:30, so --

		MR. O'CONNOR:  Bob Blicksilver has a couple of questions.

		MR. BLICKSILVER:  Ms. Vazquez, I have studied your cost analysis and
your written comments.  I just have a few questions about the analysis
there.  In your exposure assessment programs, who conducts the exposure
monitoring?

		You talked about individual operators going out to sites and sometimes
working with other subcontractors under a general contractor at times.
How is the exposure monitoring conducted?

		MS. VAZQUEZ:  Currently, well, in the past when we have performed
exposure monitoring, we've had to hire an industrial hygienist and she
would conduct the silica monitoring for our company.

		MR. BLICKSILVER:  Exclusively, has anyone been trained in your
company --

		MS. VAZQUEZ:  No.

		MR. BLICKSILVER:  -- or have you encountered anyone among the general
contractors who have been trained in conducting exposure monitoring?

		MS. VAZQUEZ:  No.  It has only been through this one industrial
hygienist.

		MR. BLICKSILVER:  Do you see the potential for training under this new
silica rule to again to achieve that profit-maximizing resource,
minimizing ideal?

		MS. VAZQUEZ:  I discuss also in my, you know, hiring maybe an
industrial hygienist to come on board, onto Holes, to be able to conduct
the monitoring for our company.  But we've just brainstormed on
different ideas.

		MR. BLICKSILVER:  You seem to be assuming that the monitoring would be
conducted daily.  We talked about, I know I don't want to belabor the
objectives data and historical data, and so forth, but do you see the
potential for reducing exposure monitoring costs there through the use
of objective data as suggested by the questioners earlier?

		MS. VAZQUEZ:  With the action level of 25, I would see that we would
have to do a lot more exposure monitoring than we are currently
performing.

		MR. BLICKSILVER:  And your cost for respiratory protection, what is
not clear are the assumptions underlying the engineering controls that
are the background for these respirator assignments.  The respiratory
protection seems to be heavily weighted towards powered air-purifying
respirators, and filtering systems and filters.  So it's not clear again
what engineering controls were modeled into this assessment of what the
respiratory protection costs would be.

		MS. VAZQUEZ:  This was my assessment using engineering controls, using
water, because we always cut wet, so using engineering controls and then
bringing down the PEL.  This is what I think our respirator protection
cost would be.

		MR. BLICKSILVER:  Okay.  So you believe that a protection factor under
a PAPR would be necessary after wet cutting was applied on your sites?

		MS. VAZQUEZ:  Yes, for one of my operations.

		MR. BLICKSILVER:  Okay, for one operation, okay.  I just, again, I
don't want to belabor this, but of the $27,000, some $17,000 are
assigned to powered air-purifying respirators, and some $8,000 are
assigned to the filtering systems and filters, and for the lower powered
roughly $2,600.  So does that reflect the representative distribution of
respirators that you see for your operations?  I'm sorry.

		MS. VAZQUEZ:  I'm sorry, yeah.  The PAPR, they're very expensive.  And
I didn't realize how expensive they were.  But once you incorporate the
actual mask and everything that goes to it to give every single one of
my operators one of those, and then also for the half facemask for the
filtering and the filters, and then in my head I'm thinking we're going
to be in respirators every single day for all of our tasks.

		MR. BLICKSILVER:  I think it would be very helpful if you could in
post-hearing comments provide the exposure data --

		MS. VAZQUEZ:  How I came up with this?

		MR. BLICKSILVER:  Yeah, how you reach these assignments of
respirators.  Thank you.

		MR. HAMMOCK:  You know one of the things that we hear and I'm not
necessarily suggesting that this would be a cost that OSHA would need to
assume, because I think it would be reasonable for OSHA to assume a cost
based upon the least protective respirator that would be required and
generally those have a lesser cost than, for example, a PAPR.  But I do
think that for some companies they will provide a pretty wide variety of
respirators, including PAPRs because most employees think that they are
more comfortable.  So there is that consideration as well.

		I'm not suggesting that you would be required to cost that, but I do
think it is a consideration that we hear a lot.

		MS. VAZQUEZ:  And we don't currently provide PAPRs.  I'm just thinking
with the reduction of the PEL for one of my tasks and the requirements
that I understood when I read the document, it would be required in the
future.

		MR. BLICKSILVER:  I just remember a comment that you made about being
able to achieve exposure levels near this proposed PEL of 50, 53 I think
or some estimate like that, and I just wonder -- and that's with the
wet cutting, okay, but I'm just wondering why you believe, again I don't
want to belabor this, why a PAPR would be necessary?  If you're that
close to the PEL, wouldn't a lower powered respirator be sufficient?

		MS. VAZQUEZ:  Because I do have operations over the PEL.

		MR. BLICKSILVER:  Thank you.

		JUDGE SOLOMON:  Okay.  If there are going to be some more questions,
let's take a five-minute --

		MR. BLICKSILVER:  Oh, I just had one more.  Sorry.

		JUDGE SOLOMON:  Well, we're going to take a five-minute break and
we'll come back.

		(Off the record at 5:23 p.m.)

		(On the record.)

		JUDGE SOLOMON:  Let's go back on the record.

		MR. BLICKSILVER:  Ms. Vazquez, just one or two more questions,
please.  In the cost estimate for regulated areas in your written
comments, you state here you will need to hire at least four additional
employees to administer this portion of the ancillary provision.

		If you work with other subs and you work under a general contractor,
and I think you described the personnel that you have trained and that
you've seen available on these sites as supervisors, qualified and
competent people, why do you feel that you would need to hire four
additional employees to supervise regulated areas?

		MS. VAZQUEZ:  I wouldn't think it would be to supervise a regulated
area.  I would think it would be to construct the regulated area.  Like
I said, 75 percent or more of our work is called in over the phone.  And
the first person to see that job site would typically be my operator
going there to perform the concrete cutting.

		So in my head I'm thinking if a regulated area would need to be set
up, I would need to send someone to the job prior to meet with a general
contractor and the hiring contractor, construct the area so when my
operator gets there, he goes to cutting the concrete.

		MR. BLICKSILVER:  Do you see the potential for learning and
familiarity that over time, as the rule goes into effect, that these
things could be phone ahead, e-mailed, texted ahead of time, we're on
our way, you know, could you put in place a regulated area; we have one
operator who is going to be arriving there in a half an hour, that kind
of scenario?

		MS. VAZQUEZ:  I would love to pass that onto the general contractor.

		MR. HAMMOCK:  There is an app for that.  I just figured out my new --

		MS. VAZQUEZ:  Or the hiring contractor.  I intend -- I would intend
to try to push the envelope to get that to happen, but I do not believe
that I would be able to do that 100 percent of the time or even 50
percent of the time when it's required.

		As I said in my notes, I am seen as a leader in the industry.
Therefore, a hiring contractor is going to hire me to do the job and to
comply.  And he's going to put it back on me.  Therefore, that's a
reason why I would think I would need to hire someone to go out and
construct these areas when necessary.

		MR. BLICKSILVER:  Final question.  In medical surveillance, in your
cost analysis, you indicate $350 per chest x-ray.  What is the source of
that estimate, please?

		MS. VAZQUEZ:  I called around in Houston to different occupational
health professionals, and that was an average number that I received.

		MR. BLICKSILVER:  $350 for a chest x-ray?

		MS. VAZQUEZ:  Yeah, evaluated by a B reader.

		MR. BLICKSILVER:  Okay, thank you.

		MR. PERRY:  Hi, this is Bill Perry.  Just one follow-up question.  I
was interested to hear the subject of PAPRs come up again.  We've heard
testimony and have comment in the record that suggested OSHA strongly
consider permitting the use of PAPRs as a substitute for engineering and
work practice controls, citing they're accepted by employers, accepted
by employees, they're very comfortable, etc., etc.

		I'd just like to ask both Ms. Vazquez and Mr. Turner, first of all,
what their views are on this.  Are you eager to go switch to PAPRs?
And, second, have you noticed or are they currently in fairly widespread
use on construction sites where there are dusty jobs?

		MS. VAZQUEZ:  No and no.  We don't currently use them, and I do not
think my operators would want to use them.

		MR. TURNER:  I'm in agreement with Kellie.  As far as my folks moving
through a job site, they would have to coordinate with whatever
contractor is generating that.  And essentially to have a pocket PAPR to
don to go check the work, it seems rather impractical for a few moments
in time.

		Beyond that, Kellie works in Houston, and we have experienced the heat
in Austin as well.  We have quite a few jobs there.  And for that part,
global warming, I think that's a thing, but it seems to be wherever we
go, we're experiencing more hot and humid days each year to a more
severe degree.

		And as we gear people up, we need to not just provide them the
protection for the respiratory protection, and Tyvek, or whatever else
we are going to provide them, now we're looking at possibly cooling
vests or at least more breaks.

		And so we're looking at an exchange of production, which all gets
dealt with in the end typically by the pocketbook of the owner, but it
is all considerations that we need to have.  We can give whatever gear
we want out there to protect people, but we have to do so in a sensible
manner that still accomplishes the goal.

		MR. HAMMOCK:  And let me just also say from a coalition perspective,
we have not provided any written comment on that issue.  We understand,
though, that it has been raised here now, and we'll certainly be looking
at it from a coalition perspective in post-hearing briefs, I guess, not
post-hearing comments, as to whether we would want to take a position on
that, but just for clarity purposes.

		MR. PERRY:  And I would invite the coalition to do so.  So thank you
both very much.

		DR. COBLE:  Just one additional follow-up on something that was raised
earlier regarding the operations covered.  And when we were deciding
what to put on Table 1, those were the tasks that came with the most
frequently mentioned in the literature, and there was a consensus that
these were recognized to be silica-generating tasks.  And then in the
comments submitted by CISC, there is a list of 28 or so additional
operations.

		And we were wondering, looking at that list, it looks like many of
these are maybe a subtask or a combination of tasks that are on those,
that are covered by the table.  Are any of these present unique
feasibility considerations that controls that aren't already described
wouldn't be applicable?

		MR. HAMMOCK:  Yeah.  And I think that's an excellent point.  And let
me at least partially agree with you.  That list, I think if you look at
that list, which it's something that we asked participant members to
look at Table 1 and come back to us with those things that you do not
believe are incorporated in Table 1, and should or could, or should be
something the Agency considers.  That is the list that we have got.

		I think what it's incumbent upon us to do in the post-hearing period
is look at that list again as sort of a raw list, I mean not just talk
of what, you know, I think Stu and I are in the same boat on some of
this.  It's a raw list.  I think we need to refine it and potentially
expand it, because I think you're right.  Some of those tasks may be
included.

		Now, it does raise an issue as to whether OSHA should be more explicit
with respect to subtasks in Table 1, but that is something I think is
incumbent upon us to kind of flesh out more in a post-hearing period.
Because I think you raise a good point; some of those may be covered.
It's just not certain given the time that we had.

		And I know I sound like a broken record.  We did what we could in the
time that we had, but we still need a lot of work.  We still have a lot
of work to do.

		MR. TURNER:  And if I may interject just one perspective.  When I look
at Table 1, I really try to identify with it through the eyes of the two
folks in a pickup truck in the fact that I run into a lot of
contractors, the small, disadvantaged businesses out there that say,
well, if it doesn't say my trade, it doesn't apply to me.

		So regardless of being redundant, if we're not spelling it out, I'm
afraid it's not going to get adhered to.  So I have identified 90
different tasks and, yes, some of the are redundant, but up to 90
different tasks from start to finish, mass-ex (ph.), etc., all the way
through hanging ceiling tile and some of those items, if we're not
identifying it, you absolutely are going to run the chance of people not
being compliant.

		MR. HAMMOCK:  And I do think that this is a challenge for Table 1 and
will always be a challenge for OSHA as you think about what to do with
Table 1, and that is looking at it from also the viewpoint of the
compliance officer.  Because you all may think here about a stationary
masonry saw and you may have it in your head, you know, a broad scope of
things that would really be there, but that may not necessarily trickle
down to the compliance officer who shows up and says, well, that's not
necessarily a stationary masonry saw, that is a such-and-such-and-such,
and, therefore, you can't rely on Table 1, so you should have had your
exposure monitoring.

		I think there is that perspective as well, not just the contractor,
but the compliance officer who may not necessarily understand the intent
that you all have sitting on this stage.

		DR. COBLE:  Thank you.  That's very helpful.

		MS. RYDER:  I have a few questions for I think most of you.  I'll
start with Ms. Vazquez.

		Ms. Vazquez, you mentioned that you use wet methods 100 percent of
the time and that when the exposures are above 100 µg/m3, you will put
your employees in respirators.  Is that right?

		MS. VAZQUEZ:  Yes.

		MS. RYDER:  Okay.  And I think you said that you make the
determination of when the employees are over 100 µg based on the task?

		MS. VAZQUEZ:  Uh-huh.

		MS. RYDER:  How do you decide which tasks the employees are going to
be exposed over 100 µg?

		MS. VAZQUEZ:  It's based on my silica monitoring.

		MS. RYDER:  It's based on your --

		MS. VAZQUEZ:  Historical data.

		MS. RYDER:  And I guess given that your job sites are always changing,
how are you deciding what sampling is relevant to whatever job site your
employees are going out to?

		MS. VAZQUEZ:  Well, I guess exactly how it is, you know, we have slab
sawing outside, we have slab sawing inside, we have wall sawing outside,
we have wall sawing inside, we have core drilling.  So it's based on --
the testing is based -- the testing is based on the task at hand and
then we take whatever testing it is and we use it in the future.

		So, you know, if I have inside sawing, for example, that is over the
PEL, then every single time I go sawing inside, for example, just as an
example, I'm going to don respiratory protection.

		MS. RYDER:  Okay.  And when you are making the determination that your
employees would be exposed over 100 µg and they're going into a
respirator, are they wearing the respirator the entire time they are
doing that task, or is it only if they are doing it for the entire day?

		MS. VAZQUEZ:  I think did you say -- I think you said the same thing
twice.  They wear it while they're cutting the concrete.

		MS. RYDER:  No matter how long they're doing it, even if it's for a
short period of time?

		MS. VAZQUEZ:  Yeah, no matter how long they're doing it.

		MS. RYDER:  Okay.

		MR. TURNER:  And that's with the existing PEL.

		MS. VAZQUEZ:  That's at the current PEL.

		MR. TURNER:  The current PEL.

		MR. HAMMOCK:  Well, actually, not even.  It's with your vision of 100.

		MS. VAZQUEZ:  Yeah, um-hum.

		MR. HAMMOCK:  Right.

		MS. KRAMER:  I have a question about the six situations that you
mentioned in your written comment where wet methods and LEV are
unworkable.

		MS. VAZQUEZ:  That's from, yeah, from the coalition's comments, okay.

		MS. KRAMER:  I think it was in the section marked your testimony.  I
just wondered if those are tasks that Holes, Incorporated, performs?

		MS. VAZQUEZ:  No, that's from the whole coalition.

		MS. KRAMER:  So you don't have any firsthand knowledge about those
tasks?

		MS. VAZQUEZ:  No.

		MR. HAMMOCK:  And to put an example, I mean she's in Houston, which
doesn't get the extremes in cold, for example, and she's doing basically
concrete cutting, which is a certain task that may not involve some of
the electrical issues and the drywall issues that other coalition
members --

		MS. VAZQUEZ:  Are you just asking -- what is your question?

		MS. KRAMER:  I was wondering if the six tasks that you identified on
Pages 6 and 7 of the written testimony as situations where wet methods
and LEV don't work, if those are tasks that you perform.  I was
wondering how you are controlling for them.  But my understanding is
that you don't perform those tasks.

		MS. VAZQUEZ:  No.

		MS. KRAMER:  Okay.  And you also mentioned that you use wet methods
100 percent of the time.

		MS. VAZQUEZ:  When we cut concrete, yes.

		MS. KRAMER:  When you cut concrete.  You also said something about
drilling overhead with diamond bits and blades.  Are you using wet
methods when you are doing that?

		MS. VAZQUEZ:  Yes.

		MS. KRAMER:  Okay.  All right, I think that's -- oh, one other
question I have for you.  You said that you made the determination that
you would need to use PAPRs for one of the tasks that your employees
perform.  Which task is that?

		MS. VAZQUEZ:  If the PEL were to be reduced?

		MS. KRAMER:  Right, if the PEL were for 50.

		MS. VAZQUEZ:  It would be inside sawing.

		MS. KRAMER:  Inside sawing?

		MS. VAZQUEZ:  Um-hum.

		MS. KRAMER:  Okay.  Mr. Turner, I have a couple of questions for you.

		MS. VAZQUEZ:  With current -- with the current engineering controls
that I'm using presently.

		MS. KRAMER:  Using wet methods, okay.  Not ventilation, is that right?

		MS. VAZQUEZ:  Right.

		MS. KRAMER:  Okay.  Mr. Turner, I don't think you mentioned this, but
does Hunt Construction have any type of medical surveillance program?

		MR. TURNER:  We do as necessary, yes.

		MS. KRAMER:  What does "as necessary" mean?

		MR. TURNER:  When our folks would be exposed over the PEL.

		MS. KRAMER:  The PEL of 250, the PEL of 100?

		MR. TURNER:  Yeah, 250.  And we base that off our subcontractor's
documentation.

		MS. KRAMER:  Okay.  And is that for a certain number of days out of
the year?

		MR. TURNER:  Right.

		MS. KRAMER:  How many days?

		MR. TURNER:  Well, as the standard says, over 30.  Right now the
proposed standard is 30, and that's what we work off of, because it kind
of adheres to the existing standards with asbestos and so on.

		MS. KRAMER:  And I guess how are you keeping track of the days that
employees are exposed?

		MR. TURNER:  It's based off our schedules.

		MS. KRAMER:  Okay.  So do you have someone on staff who is keeping
track of that or are employees keeping track of it, themselves?

		MR. TURNER:  We don't have someone specialized to keep track of that.
That's actually done on the job sites with our safety representative.

		MS. KRAMER:  And what is the medical surveillance comprised of?  Do
you do chest x-ray?

		MR. TURNER:  Chest x-ray and the breathing, I'm sorry, the --

		MS. KRAMER:  FT?

		MR. TURNER:  Yeah, the FT, thank you.

		MS. KRAMER:  All right.  You also mentioned earlier that wet methods
aren't a good control or a feasible control when it's 10 or 20 degrees
below zero.  Are your workers usually working when it's that cold?

		MR. TURNER:  We do have workers that work at that -- our workers,
because they are management, have a little different leeway on how they
can work.  Obviously, our subcontracts that may be exposed to those
elements will change their work patterns accordingly.

		MS. KRAMER:  So when it is 10 or 20 degrees below zero, are there like
laborers or construction workers on the site?

		MR. TURNER:  Yes.

		MS. KRAMER:  There are, okay.  And so what other methods would you use
when equipment is unavailable?

		MR. TURNER:  That's up to the contractors what they have at their
disposal.  If they have HEPA vacs, they can use those, you know, for
their isolation.  But it really depends upon the contractor.

		MS. KRAMER:  Okay.  And you also mentioned that two to five mile an
hour winds could affect respirable crystalline silica exposure.  Do you
have any data that you are relying on to support that?

		MR. TURNER:  No, that was strictly conjecture and further example of
why we need a broad scope of sampling.

		MS. KRAMER:  Have you done that sampling?

		MR. TURNER:  No, we have not.

		MS. KRAMER:  Okay.

		MR. SESSIONS:  One of the exposure studies that OSHA cites in the PEA
is essentially a regression analysis in which the author is attempting
to predict the exposure concentration that the workers are subjected to.
 And in the explanatory variables, the second highest explanatory power
among the various variables was wind speed.  And it caused exposure to
vary almost as much as the task performed caused the exposure to vary.
So it is a very significant factor.

		MR. HAMMOCK:  And I think there are also a number of different studies
that have looked at -- they are cited in the PEA that have looked at
multiple samples of the same exposure condition and have suggested that
one of the reasons for the great variability and the same task, the same
exposure is something like wind and other environmental factors.

		MS. KRAMER:  And I think, Ms. Vazquez, you said Holes, Incorporated
owns all of its own equipment, right?

		MS. VAZQUEZ:  Yes.

		MS. KRAMER:  Mr. Turner, does Hunt Construction own all of its own
equipment, or is it renting equipment?

		MR. TURNER:  We don't perform the work, so therefore we don't have the
equipment.  That's why we have subcontractors.

		MS. KRAMER:  Do you know about your subcontractors, whether they own
all of their own equipment or whether they are renting?  Is that
something --

		MR. TURNER:  We have 1,000 subcontractors across the country.  That
can vary greatly.

		MS. KRAMER:  Is that something that's usually part of your contract
where the equipment will come from?

		MR. TURNER:  No.

		MS. VAZQUEZ:  As long as they have insurance to cover the equipment on
site, it doesn't really matter.

		MS. KRAMER:  And, Mr. Sessions, I have a couple of questions for you
also.  I think the PowerPoint earlier today referenced a study by Boudry
(ph.).  Is that something you have already submitted to the record or if
not is that something you can submit?

		MR. SESSIONS:  Be happy to submit it, yes.

		MS. KRAMER:  Okay, great.  Thanks.

		MR. HAMMOCK:  I think maybe the Laborers submitted that.  I think it's
already -- I think they have already submitted at least a hard copy
version.  I don't know if there is more, but, yes, we'll be happy to
submit it.

		MR. SESSIONS:  There is more.  There is a whole database that you can
get, and ask them to get it in English rather than French.

		MS. KRAMER:  That would be useful.  I also wanted to follow up.  Bob
Burt mentioned or asked you a little bit about your estimates about the
use of respirators or respirator protections among employers.  I just
wanted to follow up on I think you said earlier today that you would
guess that zero percent of small businesses use respirators.  I just
wondered what your source is for that.

		MR. SESSIONS:  Okay.  Maybe --

		MS. KRAMER:  So Ms. Vazquez obviously has --

		MR. SESSIONS:  I can't claim as Brad warned me not to do, I can't
claim that I ate too many carbs at lunch.  But, you know, that was an
ill-considered statement.  I would guess that the use of respirators
among small businesses is substantially less than is the use of
respirators among large businesses.

		MS. KRAMER:  And I guess, again, just want is your basis for that?  Is
that -- go ahead.

		MR. SESSIONS:  Just rather nebulous, just talking with various people
who are active in the business.  And one particular question on the
survey had to do with how well you knew the regulation, do you know
about the regulation, and --

		MS. KRAMER:  Which reg, the respiratory protection or --

		MR. SESSIONS:  No, no, no.  The silica proposed regulation.

		MS. KRAMER:  Okay.

		MR. SESSIONS:  And in general sort of knowledge about silica as an
issue is limited among the smaller, smaller businesses.

		MR. HAMMOCK:  You know, let me just add a couple of things.
Obviously, from some of the questions that you all have been asking,
there is a lot of interest in respirator use, as well as the existing
baseline.  Respirator use, certainly, we will look to try to get you
whatever information we can, whether it's from a survey perspective or
what not.

		I can tell you from a non-scientific perspective, which is mine,
working with a number of small businesses in the area of respiratory
protection, based upon that dataset which is, as I said, not
statistically significant by any measure, the extent of full compliance
with OSHA's 1910.134 is very, very low.

		Most small employers that I work with both in general industry as well
as the construction side, they may provide respiratory protection, but
their full compliance with the written respiratory protection program,
fit testing, medical evals is very, very low.

		Now, as I said, that's not statistically significant, but that's at
least my experience working with a wide range of small employers.

		MS. KRAMER:  And I just have another question about the data from the
PowerPoint earlier, Mr. Sessions.  On Page 20 of the PowerPoint or
Slide 20, sorry, you had some data about employees that should be
included.  I just wonder what the data source is.  Is it BLS data and
what year are these numbers from?

		MR. SESSIONS:  The data on the number of employees that might
potentially be included is from exactly the same data source that OSHA
had used for its analysis.

		MS. KRAMER:  Okay, same year -- same source, same year.

		MR. SESSIONS:  Yeah, yeah.

		MS. KRAMER:  Okay, all right.  I'm sorry to go back to Mr. Turner.  I
have one follow-up question about your medical surveillance.  Do you
continue with your employees after they have separated from Hunt
Construction?  Do you do any ongoing medical surveillance?

		MR. TURNER:  We don't.

		MS. KRAMER:  All right, I think that's everything I have.  Anyone
else?  Okay.

		MS. VAZQUEZ:  Can I add something on the respirator thing?

		MS. KRAMER:  Can you what?

		MS. VAZQUEZ:  Can I add something on the respirator?

		MS. KRAMER:  I don't think we're taking any questions.  You can maybe
clarify.

		MS. VAZQUEZ:  No, not a question.  I said to add.

		MS. KRAMER:  Add, sure.

		MS. VAZQUEZ:  When I interview people that have worked for other
concrete cutters and they want to come over and work for us, one of my
questions is on silica and if they have used respirator protection in
the past and what is their knowledge.  And none of them have knowledge.
I have never run into someone that's had the training that we've had at
Holes, Incorporated.  So that might give you all some sort of --

		MR. HAMMOCK:  Can I say one final thing for the record, Your Honor?

		JUDGE SOLOMON:  Sure.

		MR. HAMMOCK:  If OSHA were to finalize this rule, we would appreciate
some shout-out in the preamble that we were here till 6:00 answering
questions.

		MS. KRAMER:  Thank you all very, very much.

		JUDGE SOLOMON:  From what I understand, that's not the all-time
record.  But we can give you an honorable mention for that.

		Okay, so it's actually 5:55, and the hearing is closed.  Thank you
very much.

		(Whereupon, at 5:55 p.m., the hearing was continued, to resume the
next day, Tuesday, March 25, 2014, at 9:30 a.m.)

C E R T I F I C A T E

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

INFORMAL PUBLIC HEARINGS FOR THE PROPOSED RULE

ON OCCUPATIONAL EXPOSURE TO

RESPIRABLE CRYSTALLINE SILICA

March 24, 2014

Washington, D.C.

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

				 							    					____________________________

				    	ED SCHWEITZER

				    	Official Reporter

_________________________

		Continued

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Free State Reporting, Inc.

1378 Cape St. Claire Road

Annapolis, MD 21409

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Free State Reporting, Inc.

1378 Cape Saint Claire Road

Annapolis, MD 21409

(410) 974-0947

			   PAGE  1546