person who qualifies as a competent person for the particular type of
asbestos work addressed in the training, must be available to answer
questions during the training.

		OSHA further stated that modern communication techniques permit
effective questioning of a person who is not physically present in the
room where the training is taking place and the standards do not
preclude reliance on such methods.

		OSHA emphasized that regardless of whether an instructor is physically
present during the training, the employer must assure that the employees
have a full opportunity to have questions answered in a timely manner.
And this should be pertinent to silica training, also.  	Thank you for
the opportunity to testify.

		MR. MURPHY:  Hello.  My name is Keith Murphy.  I have been an
operating engineer since 2005 when I joined the International Union of
Operating Engineers, Local 478.  During the nine years that I have been
an operating engineer, I have worked on hundreds of construction jobs
and have operated all types of heavy equipment, including equipment used
in earthmoving, demolition, and hoisting.

		When I began my career as an operating engineer in 2005, I operated
excavators, loaders, bulldozers, and backhoes in earthmoving.  The
process of earthmoving typically does not fracture or abrade earth.
Operating engineers use the term earthmoving to describe the use of
heavy equipment to excavate trench, or stockpile soil, clay, rock, or
sand.  Demolition of buildings and other structures is a separate task
and operators do not use the term earthmoving to describe demolition.

		In the spring of 2006, IUOE Local 478 referred me to a 10-month
demolition job at an old factory in Stamford, Connecticut, owned by
Pitney Bowes.  The assignment involved the demolition of 300,000 square
feet of concrete floor containing PCBs.  When the Pitney Bowes
assignment began, I was performing a number of tasks that did not
generate visible dust.  I knew that once we began the demolition of the
floor, dust containing PCBs and other respirable contaminants such as
silica would be released.

		The crew on my job assignment was working in close proximity to other
trades in the building and we experienced secondary exposure to
contaminants generated by their work.  A crew located about 100 feet
away was using a cutting torch to cut pipes covered with lead paint.
Since I was concerned about primary exposure and bystander exposure to
respirable contaminants, I called a representative at the union hall to
request protection.

		Following a meeting between Local 478 and my employer, I was
fit-tested for a power air-purifying respirator.  I wore the respirator
for the rest of the 10-month assignment.  The respirator provided to
control my exposure to lead and PCBs also protected me from silica
exposure.

		I had a physical exam for base line exposures to PCBs and a number of
other contaminants at that time and another exam after the Pitney Bowes
assignment was completed.  There was no difference in my blood levels
for PCBs and other contaminants based on exams administered at the
beginning and after the Piney Bowes assignment.  The respirator
successfully prevented exposures, but wearing the respirator was
physically draining and caused heat stress that resulted in dehydration
and fatigue.

		Since the grinding work on the demolition job released dust containing
PCBs, the building was sealed to prevent the release of the PCBs outside
the building.  The employer took the necessary steps to protect the
general public from exposure to PCBs, however, enclosing the job
increased the dust levels for workers inside the building.  Controls
used to protect the general public created more of a hazardous
atmosphere for workers by exposing us to greater concentrations of
respirable contaminants.

		Our assignment was to grind the top two inches of concrete floor,
sweep the debris into piles, and load the piles.  The other operators
and I operated skid-steers with a concrete scarifier attachment to the
machines.  Scarifiers are typically used to remove concrete surfaces.
The scarifier attachment has diamond teeth cutter used to grind the
concrete.

		We also operated loaders and three-wheeled walk-behind machines with
scarifiers which are known as trimmers.  In addition to grinding the
concrete floor with a scarifier attached to the skid-steer, the
operators also used a sweeper and bucket attachments to sweep and pile
the debris near the loading dock.

		The same pieces of equipment performed different functions depending
on the attachment.  When the scarifier on the skid-steer was changed out
and a sweeper was attached, the machine was used to sweep the debris.
Mechanical sweeping produces far more dust than grinding and loading
piles of debris.

		While operating the sweeper, the dust was very thick.  The reduced
visibility presented additional hazards.  We were concerned about the
safety of other workers.  Since laborers were also employed on the
demolition job, the operators would have to jeopardize their safety if
we had continued to operate the sweepers through the clouds of dust.
Productivity was decreased because we often stopped sweeping debris and
waited 10 minutes to allow the dust to settle until visibly -- before
the dust visibly improved.

		I was proactive in obtaining a new filter on my respirator daily.  I
knew that it needed to be changed daily, on a daily basis because the
respirator would fill up with dust.  I tapped on the respirator every
couple of hours to remove caked up dust.  I could hear the motor on the
respirator was laboring as the filter clogged up with dust.  The caking
would occur more quickly in tight areas.

		I was 31 years old at the time of this demolition assignment, and I
was healthy enough to endure the physical hardship of wearing a
full-face respirator.  Operating engineers on the crew, on the Pitney
Bowes job, were cooperative in wearing respirators at all times, because
we knew there was significant threat to our health without personal
protective equipment.

		My local informed me that Table 1 of the proposed rule permits an
employer to require respirator use for full shifts when there is a
possibility that workers may occasionally be exposed to silica over the
permissible exposure limit.

		In my opinion, operators will not consistently wear respirators if
their employers inform them that there is only a possibility that silica
exposure will occasionally exceed safe levels.  If there is no clearly
communicated and definite danger to the health and safety of workers,
operators will not endure the physical discomfort of wearing a
respirator on a daily basis particularly on warm days.

		I do not intend to imply that respirators should not be used by
employees working in dust-producing operations with no ventilation or
other circumstances when engineering controls cannot reduce silica
exposure below the permissible exposure limit.  The use of a respirator
at the Pitney Bowes job prevented exposures that could have cut years
off my life.  I believe that with education and aggressive outreach,
employees will cooperate when they are informed of a true danger of
exposure to unhealthy concentrations of respirable silica.  However,
since respirable silica is invisible, employers would need to present
credible evidence of the impact on health from a reliable source to
convince them of the serious health consequences of failing to wear
respirators when needed.

		While working on the Pitney Bowes job, I trained to become a crane
operator.  Since 2007, I have been a crane operator employed by the same
crane rental company.  During the seven years that I have manned a crane
rented for use on construction sites, I have been assigned to hundreds
of sites.  My job is varied.  I am assigned to residential houses to
take down a tree, to shopping centers to remove an air conditioner unit,
or to hospitals to remove a generator, and also to the construction of
commercial buildings, to name a few examples of my work.

		As a crane operator, I am positioned above the other crafts and am
able to see their work.  I regularly see visible dust surrounding other
crafts.  My assignments are mostly for one day.  I regularly see workers
performing dust-generating tasks without taking advantage of the
engineering controls available.  Workers cut concrete with handheld saws
standing in clouds of dust.  The saws have a water spray option, but the
option is often not used.  I see dry cutting more often than cutting
with water suppression, even though the engineering controls are
available.

		There is a need for employee education so that workers understand the
importance of taking the time to at least grab a garden hose or use
other available water sources to sufficiently suppress dust.  With
education and training, workers not only -- without education and
training, workers not only endanger themselves but also jeopardize the
health of bystanders.  Rank and file workers have no authority to direct
other workers to use available engineering controls and are reluctant to
report unsafe practices of other workers to management.

		I can avoid secondhand exposure to dust generated by other crafts by
closing the windows of my enclosed cab.  There is weather-stripping
around the door which creates a good seal.  And I am typically located
farther from the dust-generating source than other crafts.  Thank you
for the opportunity to testify.

		MR. HULK:  My name is Donald Hulk, and I have been the corporate
Safety Director for Manafort Brothers for 14 years.  Prior to my current
position, I was a safety and health consultant for six years.

		Manafort is a contractor that performs all types of construction.  Our
work runs the gamut and includes demolition, remediation, construction
of buildings, roads, bridges, airports, tunnels, infrastructure, and
other heavy construction.  Our work is centered in Massachusetts, Rhode
Island, New York, and Connecticut, with selected projects throughout New
England.

		Manafort is one of the top demolition and excavation companies in the
country based on revenue generated performing these activities.  We have
been in business for 90 years.

		Manafort's operating engineers routinely perform the following Table 1
operations, concrete drilling, rock drilling, use of heavy equipment
during earthmoving, rock crushing, and operation of drivable masonry
saws.

		Contractors need specific guidance from OSHA so that we are able to
factor into our budgets the cost of compliance with Table 1 controls.
Our operating engineers perform operations listed on Table 1 about 90
percent of the time.  There is, however, no reasonable explanation that
these workers will be exposed to respirable silica in concentrations at
or above the proposed PEL or even the proposed action level.  Silica is
generated in significant amounts only 5 to 10 percent of the time the
operators perform Table 1 functions.

		Manafort strongly encourages OSHA to clarify which operations within
earthmoving involved a reasonable expectation of exposure to respirable
silica at or about the PEL.  Manafort urges OSHA to develop and publish
a list of tasks and the expected exposure for earthmovers.  For tasks
not included on that list, a contractor would be responsible for
assessing the exposure.  Emphasis should be placed on equipment
manufacturers to develop technology to reduce exposure inside the cab.

		Our company employs up to 700 employees, 120 and 150 are operating
engineers.  The number of operating engineers and other workers employed
by Manafort Brothers varies depending on the season.  Construction
workers experience extended periods of unemployment in the winter when
weather forces many of our operations to shut down.

		Manafort employs seven full-time safety managers who work under my
direction.  The staff consists of three certified safety professionals,
one associate safety manager, and three certified health safety
technicians.  All seven safety managers train competent persons and
workers on safety.

		Manafort empowers all employees to be knowledgeable about safety and
to stop operation and evaluate any potential hazards before proceeding
with the work.  A competent person or persons on each project
communicates with a designated safety manager.  We use a system of
in-house audits to evaluate the safety performance in the field.  A
safety manager conducts at least one site audit on each of our 50
projects monthly.  On projects with more than 25 Manafort employees, a
designated safety manager is assigned to the project full-time.

		Manafort supports issuance of the regulation that would require
training of the competent person.  At all Manafort construction sites,
there is a highly trained person who is aware of the best practices in
the industry and has the authority to ensure that these practices are
implemented.  Compliance with OSHA regulations is a vital concern.  The
contractor's safety and health obligations, however, extend far beyond
OSHA's purview.

		In accordance with federal and state regulations and local ordinances,
contractors are required to spend the necessary resources to ensure that
their operations do not produce fugitive emissions or create other
hazards to the public and the environment.  State regulations also
address control of onsite emissions of a nuisance dust or other
particulates for the protection of workers.

		Contractors are required to suppress dust.  Manafort and other
responsible contractors already absorb the relatively negligible cost of
water suppression as compared with the overall construction cost.  The
proposed standard will be another vehicle to force irresponsible
contractors to implement dust controls.

		Protection of workers, the public, and the environment requires
planning and management.  The timing of operations is vital to
compliance with all the regulations applicable to construction.  Timing
of operations is also key to dealing with cold, heat, wind, and other
environmental conditions that impact engineering controls.

		With regard to environmental conditions, frigid weather shuts down
some dust-producing activities for weeks since water suppression is
ineffective control when there are freezing temperatures.  As a
demolition contractor that operates solely in states with severe winter
conditions, we often delay a demolition job for weeks during persistent
cold spells.  It is a management challenge to effectively schedule all
the work that does not require use of water suppression, such as
salvaging steel or segregating a debris pile.

		Manafort clients understand that operations will shut down when water
suppression cannot be used to control dust.  In accordance with the
regulations of the Connecticut Department of Energy and Environmental
Protection, dust emissions on construction projects must be controlled
to ensure that they do not cross the construction owner's property line.

		The use of crushing or other processing equipment on a site may
trigger certain air-permitting requirements.  Owners are required to
obtain permits from the Connecticut Department of Energy and
Environmental Protection before performing operations that may release
dust beyond the project's boundaries.  Both the owner and the contractor
are subject to fines for failure to comply with applicable standards.
When DEEP issues a citation, construction work must cease immediately.

		DEEP's enforcement of its fugitive emissions standards varies
depending on the population of the area.  Enforcement is complaint
driven.  A complaint from a resident in a densely populated area would
typically initiate action by the DEEP.  The same dust exposure in a
rural area will be far less likely to generate a complaint.  DEEP's
enforcement of the standard is based upon subjective, visual evaluation
of plumes of dust.

		Some contractors use more effective controls when working in areas in
which there is likely to be a complaint from a resident or a business
concerning uncontrolled dust.  Manafort uses effective controls to
protect workers regardless of the population of the area in which the
work is being performed.

		Compliance with environmental regulations and public safety while
simultaneously ensuring the highest level protection of workers often
presents a challenge to management or places a burden on workers.
Controls used to protect the public's exposure to dust often places
additional burdens on the workers.

		Once a contractor puts up a barrier in a building or other structure
to reduce the public's exposure to the dust, the use of natural
ventilation as an engineering control is eliminated.  Workers need to
wear respirators with a higher protection factor and other personal
protective equipment because the loss of ventilation increases the
concentration of the contaminants.

		On road construction, the contractor must comply with the environment
regulations, protect the public and workers from dust exposure, and make
sure that no vehicular accidents occur as a result of controls.
Industry representatives assert that roadway construction is subject to
strict water runoff restrictions mandated by the U.S. Environmental
Protection Agency and that the introduction of liquefied debris into
streams and waterways will create significant environmental concerns.

		Runoff is a manageable issue.  Manafort's operations achieve a balance
between using sufficient water to suppress dust for the protection of
workers without creating a runoff problem.  Competent contractors
understand the need to avoid pooling of water to prevent runoff.

		Much of the water is absorbed into demolition debris or it evaporates.
 Water evaporates more rapidly in warm weather, so the danger of
creating runoff is far lower during the months in which construction
activity is at its height.

		The contractor association maintains the use of water to suppress dust
on road construction will introduce a greater hazard than the hazard
created by silica exposure.  According to the association, wet methods
may create a slippery slurry which would become a hazard to the motoring
public.  Industry representatives further maintain that if an automobile
slides on a wet slippery surface, it may cross into the workspace and
strike a worker.

		At multi-employer sites, advance planning is required to avoid
secondary exposure to other workers.  In scheduling activities of
subcontractors, responsible prime contractors manage the hazard exposure
assessment and access control plan to limit secondary exposure.  If, for
example, one subcontractor is scarifying a concrete structure, the work
of another subcontractor should not, in accordance with industry best
practice, occur in the regulated area while the scarifing work is going.

		Timing of operations is critical to the safety and health of workers.
The competent person must have sufficient training to enable him or her
to recognize when secondary exposure may occur.  Depending upon the
start and completion of activities, subcontractors may reschedule to
avoid exposure to bystanders.

		The primary engineering control used by Manafort to protect workers
from exposure to dust and silica is water suppression with the use of
respirators as needed in particularly dusty operations.  Manafort has
been conducting exposure assessments for years to test the effectiveness
of our controls under the current OSHA standard.  This proactive
approach established that the engineering and work practice controls and
the use of personal protective equipment protects employees below the
current PEL.

		Manafort has a respirator program with at least 80 employees
participating in the program.  Our program includes annual physicals
with B-read chest x-rays.  Our employees wear respirators during
activities such as grinding concrete walls that produce the highest
exposure to silica.  Employees performing this work wear appropriate
respirators.  Operators of walk-behind machines are closer to a
silica-generating source and will regularly need to wear respirators.

		OSHA's issuance of the proposed rule has already caused changes in
practices in the construction industry.  In meetings sponsored by the
IUOE with other safety and health professionals, and at other joint
labor-management meetings held since issuance of the proposed rule, I
have learned that the contractors are proactive in determining actions
needed to ensure compliance with the proposed silica standard.  In my
experience, proposed standards become best practice before the final
rules are promulgated.

		Manafort has already begun the process of monitoring workers under the
new proposed PEL.  We anticipate implementing exposure monitoring for
activities with potential exposure.  Half of our exposure monitoring
will involve the work of operating engineers.  We are monitoring
operators engaged in demolition of masonry buildings and hoe-ramming
concrete structures.  Both activities produce high exposure.

		Hoe-ramming involves breaking up a solid material such as rock and
concrete with a jackhammer.  The hammer varies in size from walk-behind
units to large excavators weighing more than 70 tons.  The exposure is
greater the closer the operator is to the contact point.

		We recently conducted an exposure assessment of operating engineers
while hoe-ramming a concrete foundation.  The operator was using a John
Deere 290 equipped with a jackhammer to break up and remove concrete
foundations.  Samples were taken from inside the cab of the machine and
from the worker supporting the operation.  The result shows exposure at
190 µg/m3 of respiratory dust and 10 µg/m3 of silica in the cab.  The
other worker was exposed to 60 µg/m3 of respirable dust and 8 µg/m3 of
silica.  The IUOE has submitted these and other sample results along
with my written testimony.

		We have also conducted an exposure assessment at a public school in
Providence.  The crew that we chose to monitor was using a bobcat with a
scarifier attachment to remove two-inches of concrete off the existing
floor.  The engineering controls used were water suppression, natural
ventilation, and work area containment.  The crew consisted of five
workers, one bobcat operator, a carpenter foreman, one laborer providing
support to the operator, and two laborers who were applying water the
entire time.

		The general contractor became concerned when Manafort Brothers began
taking samples.  The general contractor issued a stop work order.
Manafort was not permitted to proceed with monitoring until the crew --
monitoring for the crew for exposures until they were fitted with
respirators.

		The five employees on the crew of the public school assignment were
not in Manafort's respirator program.  We anticipated that the results
of the monitoring will establish that the engineering controls used to
protect the workers from exposures are adequate.  However, Manafort had
to have the five workers fit-tested for respirators.  The results showed
2.2 µg/m3 of total dust for the bobcat operator and .067 µg/m3 for an
area sampled 40 feet away from the operation.  Manafort is awaiting the
results of the silica exposures.

		While operating engineers are involved in silica-generating tasks,
they tend to perform the task far in excess of four hours in a day.  An
operator with a drivable saw used to cut concrete will regularly perform
this task for an entire shift.  An operating engineer performing
hoe-ramming of a concrete foundation may do the same function for eight
hours a day for weeks.

		In Table 1, if Table 1 is used, Manafort is concerned a number of
experienced operators will not pass the medical fitness portion of the
proposed program or refuse to wear a respirator for eight hours a day.

		Some contractors are concerned about being put in a competitive
disadvantage by contractors who fail to implement appropriate controls.
An OSHA standard that requires all employers to protect their workers
from silica exposure will level the playing field so that responsible
contractors are not at a competitive disadvantage.

		Manafort is not concerned about competition from contractors who do
not take the necessary steps to protect workers.  General contractors
will select Manafort because they are aware of the safety program and
want to avoid liability.  Thank you.

		MS. NADEAU:  Two more.

		JUDGE SOLOMON:  Well, it's 3:53.

		MS. NADEAU:  Okay.  We've got 17 minutes.

		JUDGE SOLOMON:  You have about 17 minutes.

		MS. NADEAU:  Okay.

		UNIDENTIFIED SPEAKER:  Talk fast.

		MR. HOPKINS:  Good afternoon.  My name is Larry Hopkins, and I am the
Training Director for the IUOE Local 12's Operating Engineers Training
Trust out of Whittier, California.

		The IUOE recommends that OSHA separately analyze data of demolition
work to determine which, if any, types of demolition performed with
heavy equipment might be included as separate operations on Table 1.  At
this hearing, OSHA responded to an inquiry about the reason that the
Agency decided not to include demolition on Table 1 activity.  OSHA
responded that the Table 1 approach is task specific and that demolition
encompasses a number of tasks.  Although some of the Table 1 tasks may
occur in conjunction with demolition, demolition is a distinct activity.

		Demolition of an existing road occurs before construction of a new
road, but the two activities are different.  Likewise, concrete and
brick are crushed or broken into pieces during demolition, but
demolition and rock crushing are not the same activity.  Demolition of
buildings or other structures and the removal of debris such as
concrete, asphalt, brick, wood, metals, wallboard, or roofing shingles
is not earthmoving.

		Mr. Murphy's testimony illustrates that the tasks performed by
workers on demolition jobs are not the same as earthmoving work for many
reasons.  The most obvious are that the materials moved are not the
same.  Another obvious difference is that demolition always fractures
silica-producing materials.  By contrast, most earthmoving does not
fracture or abrade materials.  And that even when earthmoving does
fracture or abrade materials, the materials may not release silica in
appreciable quantities.  Furthermore, demolition is often performed in
an enclosed space.  With the exception of tunneling and trenching,
issues related to confined space do not arise during earthmoving.

		The IUOE agrees that some of the tasks performed during a demolition
project are similar to those included on Table 1.  However, Table 1 does
not provide notice to the regulated community that demolition is covered
by Table 1.

		Additionally, since Table 1 engineering controls vary by task, Table 1
provides no guidance on the engineering controls applicable to
demolition.  The IUOE's post-hearing comments will include recommended
engineering controls for demolition.

		Clear guidance on demolition is particularly important since a number
of major studies that separately analyze demolition identify it as an
activity that generates high concentrations of respirable silica.

		An Alberta study identifies five industries with the highest
potentials for over-exposure to respirable silica.  Those industries are
demolition, new construction, building construction, aggregate mining
and crushing, and abrasive blasting.  I note that the Alberta study
analyzes earthmoving and road building separately from demolition.

		A German study describes demolition work, quote, "to be amongst the
most dust-intensive of tasks."  The study draws a distinction between
mechanized and manual demolition, and describes mechanical demolition as
including a broad range of methods such as the use of tongs, grapplers,
and hydraulic hammers.  The process includes loading of the demolition
material for transport.

		With regard to mechanized demolition, the German study states that
very high quartz concentrations occur during demolition of concrete and
reinforced concrete components.  During demolition with no additional
measures to combat emissions, for example, quartz concentrations of
several times the value of .15 mg/m3 were measured in working areas up
to the level of the 90 percentile value.

		Additionally, the California Division of Occupational Safety and
Health guidelines on crystalline silica inspection describes demolition
of concrete structures or components involving cutting with powered
equipment as operations subject to California's silica standard.

		The assertions of industry representatives that under the proposed
standard employers who choose not to implement Table 1 will have to
absorb exorbitant costs of exposure monitoring are unfounded.  These
assertions are based on false assumption that the employer associations
cannot develop regional databases to include the amount of exposure
monitoring.

		The IUOE was encouraged to learn the CISC's testimony that the AGC has
established a silica task force and is developing a database for
affiliated contractors to use.  The CISC's response to the proposed
standard demonstrates that it has the necessary resources to quickly
mobilize its membership and to effectively communicate and share
information with its membership.

		The IUOE urges OSHA to develop a mechanism for collecting, evaluating,
and disseminating objective data developed by employers, researchers,
and other stakeholders, and for sharing this information with the entire
industry so that others can use it as an objective data to avoid the
requirement for monitoring.

		During labor-management meetings, the contractors stated that OSHA's
proposed definition is not sufficient to give employers guidance on what
data may be used.  The IUOE agrees with the signatory contractors and
endorses NIOSH's recommended changes to proposed objective data
definition.  This definition is cited on Page 11 of NIOSH's written
comments.

		Based on contractor input, the IUOE also urges OSHA to clarify the
words "closely resemble," as described in Paragraph (d)(2)(ii)(A) of the
standard.

		A publication of the Air Resources Board states that fugitive dust --
I'm sorry, that's California's Air Resources Board states that fugitive
dust composed of soils materials are more than just a nuisance and are a
serious threat to safety and health.  According to the Resources Board,
the problem is created when particulate matter 10 microns or smaller are
widespread and severe.  The soil minerals include oxides of silicon,
aluminum, calcium, and iron.  People in California are exposed to
unhealthful levels of particulate matter more frequently than any other
air pollutant measured.

		The Resources Board further states that inhalation of fugitive dust in
large amounts may have major health effects if the dust contains
crystalline silica, asbestos fiber, heavy metals, or disease spores.

		The Resources Board cites building construction and demolition
activities as major contributors to fugitive dust in urban areas.  The
only greater source of fugitive dust in urban areas is vehicle traffic
on streets and highways.  The Resources Board also cites rock crushing
operators, and conversation and asphalt plants that mix portland and
asphalt cement with sand and gravel to make paving materials as another
major source of fugitive dust.  Thank you for the opportunity to
testify.

		JUDGE SOLOMON:  You have 10 minutes.

		MS. NADEAU:  Oh, good.

		MR. POULOS:  What do I have?

		MS. NADEAU:  Ten minutes.

		MR. POULOS:  Good afternoon, Judge, distinguished committee members,
members of the public.  I'm Marc Poulos, Executive Director and Counsel
for the Indiana, Illinois, and Iowa Foundation for Fair Contracting, a
labor-management cooperative committee funded solely by contractors and
jointly trusteed in equal numbers by officers of IUOE Local 150 and
signatory contractors.

		The FFC represents hundreds of contractors in northern Illinois,
northwest Indiana, and eastern Iowa, as well as 23,000 members of IUOE
Local 150.  I am also a Board Member of the National Alliance for Fair
Contracting, a group of fair contracting organizations, labor unions,
and contractors nationwide that promotes fairness in public contracting.

		Fair contracting organizations encourage public bodies to contract
with responsible contractors to ensure projects are completed by a
skilled workforce safely, on time, and on budget.

		Industry representatives argue that there are so many variables
affecting the generation of respirable silica on a job site that
contractors cannot effectively implement engineering or administrative
controls to protect workers.

		Based on my participation in a joint labor-management meeting
sponsored by Local 150 to discuss the silica standard and subsequent
discussions with contractors, we find this statement to be disingenuous.

		Planning for compliance with environmental and safety regulations, and
implementing appropriate controls such as water to suppress dust is just
one aspect of planning and management that goes into every single
construction project.  From the beginning of the season to the end of
the season, running a profitable construction company requires detailed
project management.

		In fact, when bidding on each project during the season, contractors
must estimate and coordinate dozens of items.  For example, a bid
tabulation for a recent bridge project estimated to cost $300,000 in
Indiana required contractors to give estimates for 44 items ranging from
major components such as removal of the present structure, to smaller
items such as temporary concrete barriers.  Other items included
mobilization and demobilization of equipment, temporary silt fences,
mobilization and demobilization for seeding, barricades and road
closures signs for assembly, material costs such as top soil, asphalt,
concrete, and surface seal, and a record of compliance with EPA
standards, with the entire project subject to multiple environmental and
safety regulations at both the state and federal level.

		In fact, timely and profitable performance of a construction project
requires detailed planning.  Contractors must factor numerous variables
at all stages of a project including compliance with EPA and OSHA
standards.  And they must effectively coordinate their equipment,
workforce, and resources to coordinate completion of multiple projects
in one single season.

		For example, contractors must coordinate mobilization of equipment to
be available when needed on a job site.  A delay at one site may affect
work on another job site if the equipment is not moved in a timely
manner.  Delays also impact cost, if equipment is rented and not
returned on time.  Similarly, materials must be onsite and material
inspections coordinated to keep projects moving forward.

		And contractors must appropriately staff projects with project
managers, superintendents, and foremen to ensure work is completed on
time and on budget, all of which includes coordination to be compliant
with environmental and safety regulations.

		Further, various stages of a project require workers with specific
skills.  For example, a contractor must ascertain that a crane operator
is available with the qualifications and experience to operate the type
of crane for that particular project.

		On other projects, an operator may move around multiple job sites
during the same day at the direction of the contractor.  For example, an
operator on a milling machine may complete work on a project in the
morning and move to another job site in the afternoon, but this is not
done without preplanning and coordination to ensure timely and
profitable completion of that project.

		In addition, project owners value a record of on-time performance and
contractors may be required to provide this information when bidding on
projects.  For example, the University of California's prequalification
form requires contractors to provide construction experience on
comparable projects in recent years, along with the project manager's
and superintendent's experience on similar projects.

		Similarly, the prequalification form for state projects financed by
the Illinois Capital Development Board requires contractors to list
their business volume for the past three years and the number of
full-time employees.  It also seeks five references that must provide
information whether the contract had any unwarranted change-order
requests, whether the project was completed on time, and whether the
project coordination was satisfactory throughout the project.

		Project owners are well aware that poorly scheduled projects result in
cost overruns and delays.  Compliance with safety regulations are part
and parcel of project coordination.  But every safety issue may not be
identified in advance.  For example, on a building demolition project,
unknown factors include deviations from structure designs, materials
hidden within the structures, as well as unknown strengths and
weaknesses of construction materials.

		Similarly, while activities such as trenching and excavating are
localized and certain risks may be identified in advance, unknowns such
as water content of the soil, changes in the weather or climate, and the
operation of heavy equipment in the vicinity are all variables that
require contractors to assess safety, compliance, and employ controls on
a continuing basis.

		Interestingly enough, we keep getting examples of why engineering
controls cannot be implemented because of the dangers of imminent death
to employees because of slick lanes or icy conditions which could cause
an employee to be struck.  This is because many employers still look at
safety based solely on immediate dangers, but choose not to look at the
long-term health effects of things like exposure to carcinogens such as
respirable crystalline silica.

		Responding to variables and implementing appropriate control measures
to protect workers from both short-term, as well as long-term health
hazards are part of a successful contractor's daily operations.

		While we would agree that the proposed rule may be problematic in
limited circumstances, labor and management support the proposed rule
and believe it could be drafted in a way to protect workers, while
ensuring the resources of contractors are best utilized.  Thank you.

		JUDGE SOLOMON:  Ms. Nadeau?

		MS. NADEAU:  If we have a few minutes left, we were going to show the
remaining slides.

		JUDGE SOLOMON:  You have three minutes.

		MS. NADEAU:  Great, okay.  Well, come on, ready?

		MR. TUREK:  A quick slide show.  This is me on vacation.

		JUDGE SOLOMON:  Make sure you say what they are.

		MR. TUREK:  Martin Turek, Slide 15, excavator removing pavement that
was cut out by a saw.  This is an example of the six by six chunks of
concrete or roadway being removed by an excavator.

		Photo 17, this is a milling machine, milling down pavement.

		UNIDENTIFIED SPEAKER:  Correction, that's 16.

		MR. TUREK:  Sixteen?

		UNIDENTIFIED SPEAKER:  Yeah.

		MR. TUREK:  Photo 16?

		UNIDENTIFIED SPEAKER:  Photo 16.

		MR. TUREK:  Photo 17, asphalt grinder milling asphalt, dumping it into
the bed of a truck, similar to the photos that were shown earlier today
with the reduced amount of dust.

		Photo 18, dust being generated from a hoe-ram or a breaker during a
demolition construction process.

		Photo 19, there is a water buffalo and that's a misting device in the
lower right-hand corner suppressing the dust that's being generated by
the demolition process.

		Photo 20, same type of example.

		Photo 21, same type of example, different view.

		Photo 21 -- excuse me, Photo 22, construction material inspector.
This would be another example of a worker that would be working in the
vicinity of an earthmoving operation.  This individual tests the
compaction, density, and moisture content of soil.  This individual
would be working next to bulldozers, scrapers, and off-road trucks on a
job site.

		Another example, this is Photo 23, this would be an example of a
construction material inspector testing or burning a nuclear density
gauge test on an asphalt project looking at the sub-base, working on
conjunction with or near a grinder.

		Photo 24 is an example of a surveyor working in conjunction of a road
project and a dirt project working with bulldozers alongside of a road
project.  This example shows somebody working on a total station.

		Right now, GPS is becoming more prevalent in the work world, as you
can see in Photo 25, a GPS being mounted on a bulldozer reduces the
amount of time that that surveyor is going to be exposed to any possible
dust caused on that job site by that bulldozer.  Engineering control in
place because of the GPS, rather than having the surveyor stand there
doing all the readings or measurements manually.

		MS. NADEAU:  That's it.

		JUDGE SOLOMON:  Thank you.

		MR. TUREK:  Thank you, Judge.

		JUDGE SOLOMON:  So we have one volunteer who didn't even ask whether
there were others.  How many other people are going to ask questions?
Okay, Ms. Trahan, state your name, spell your last name, ask your
questions.

		MS. TRAHAN:  Thank you.  Chris Trahan with the Building Trades,
T-r-a-h-a-n.  I had a lot of questions.  I think you actually answered a
lot of them in your prepared testimony, but there was a couple that I
wanted to ask.

		Earlier in this hearing, there has been testimony talking about the
production or productivity penalties associated with applying controls
to control silica exposure.  I was wondering if anyone had anything to
say that if there is any productivity benefits, or does it speed up work
or the time it takes to set up controls?

		UNIDENTIFIED SPEAKER:  Marc, do you want to address that?

		MR. POULOS:  Sure, well, we're going to have Don take this one, from
Manafort.

		MR. HULK:  Yes, I do believe there is going to be a financial burden
in the beginning.  The processes are going to change as the new process
is coming out.  There is going to be a training mechanism that's going
to be part of it.  We're prepared to take on that burden because we
believe in the long run that it will speed up production and it will
certainly reduce our overall liability when it comes to worker safety.

		MS. TRAHAN:  Okay, thank you.  The other question I had, well, is a
comment.  I think Barb described the types of training programs that the
Union provides to its members through your training centers.  I was
wondering if it would be possible for the list and the location of those
training resources that are all free, that you provided, that they could
be part of post-hearing comments so the public could find them.  Is that
something --

		MS. McCABE:  Yes, that's possible.

		MS. TRAHAN:  Okay, thank you.  And I wanted to ask a question about
competent person and the training for competent person.  And I think
this is directed towards Mr. Hulk.  You talked about training provided
to your competent persons in your company.  Is there any specific
information you can give about the training provided to competent
persons both on the prevention of traumatic injuries like falls and
excavation, but also on the health hazards or the industrial hygiene
side of that job, if you could provide a little bit more detail?

		MR. HULK:  That's a tall question.  Yes, based on the hazards
associated with that particular project, the competent person would be
trained in, if it was demolition, what to look for in the demolition
process, look at the building materials, how is the building coming
down, is there any hazards associated with that.

		A lot of our competent persons are trained as 40-hour hazmat workers
and get an annual refresher, so they're prepared to handle any
contaminants they might find in the ground or any spills that may occur
due to the demolition.

		And most recently, our competent people are trained to silica, but
they are trained to the current PEL, and we are now in the process of
training them to the proposed PEL.

		MS. TRAHAN:  So are they trained to recognize silica exposure
conditions and what the controls are that need to be in place?

		MR. HULK:  They're required to have controls in place.  They are not
trained to recognize silica exposure.  They are trained to recognize
total dust.  And our mission is no dust, no silica.

		MS. TRAHAN:  Okay.  And I guess one more question for you.  You
mentioned that you had 80 employees in your firm that are in your
respirator program.  And I was wondering if you had an idea of how often
or how long they wear respirators for during the course of their
workday?

		MR. HULK:  Well, it's based on our activity.  We have asbestos workers
who, during remediation and abatement, will wear a respirator for the
full shift.  We also have hazmat workers that would wear the respirator
during that process.

		In particular for this, this demolition activity, if the process is
creating dust and we can't control that dust because of weather
conditions or location, or for any other reasons, then the operator will
go on a respirator, and he will wear that respirator during the actual
dust-producing operation.  Once that is completed, he will obviously
take the respirator off.

		MS. TRAHAN:  Thanks.  And I think this will be my last question.  I
think it's for Mr. Murphy.  You know you talked a lot about a
particular job that seemed to have very high and hazardous exposures to
silica, in addition to the PCBs.  But in general do you feel like you
can bring safety concerns forward to your employer and your experience
with that?

		MR. MURPHY:  Yes.  That hasn't been an issue.  There is a chain of
command I can go through if there is an issue I need to bring up,
whether it's calling my local union hall or dealing with my union
representative that I work with.  It can be taken care of, as in the
example I gave in my testimony.  There was an issue, I went straight and
called my union hall, and it was resolved.

		MS. TRAHAN:  Yes, thank you.

		MR. ZIMMER:  Chris, Local 478.  It's pretty prevalent throughout our
union system in North America.  The protocol that we like to follow is
we like to encourage the members to try to resolve the conflict on the
job site with their immediate supervisor, management supervisor first.
If that's not successful, we recommend that they go to the shop steward
or if there is a master mechanic onsite, address it with them.  If they
feel that the conflict still exists, they either contact myself as the
health and safety director, the business rep in that area, and together
we collectively put our heads together and approach the problem and
solve it.

		MS. TRAHAN:  Thank you very much.

		JUDGE SOLOMON:  Let the record show that that was Mr. Zimmer.

		MR. ZIMMER:  Oh, sorry.

		MS. TRAHAN:  Thank you.

		JUDGE SOLOMON:  Mr. Schneider -- oh, okay.

		MR. SCHNEIDER:  Hi, Scott Schneider, with the Laborers' Health and
Safety Fund,

S-c-h-n-e-i-d-e-r.  Thank you very much for your testimony.  That was
very interesting.  I just had a couple of questions.  I know in terms of
-- do any of you do work in California?  Are any of you from California?
 Right, okay.  And I know that California has a standard that tries to
prevent silica exposures through cutting and grinding operations.  Can
you tell us about, if that's included in -- if demolition is included in
that standard somehow?

		MR. HOPKINS:  To my knowledge, the silica standard in California --
excuse me, Larry Hopkins.  To my knowledge, in California, the silica
standard kind of broadly covers any silica-producing activity, maybe not
specific to demolition, but anything that would produce that such as
rock crushing, breaking, and so forth.

		Of course, fugitive dust is a huge issue in California because not
only do we have high levels of silica in that geographical area, but we
also have high levels of spores, which is known as the Valley Fever, so
fugitive dust is a big issue in California.

		MR. SCHNEIDER:  So the controls that you use to control silica would
also control these other hazards as well, right?

		MR. HOPKINS:  Correct.  It's a zero tolerance policy on dust control,
whether the job is currently operating or whether it's parked.

		MR. SCHNEIDER:  Okay.  And in terms of demolition operations, I know
OSHA is doing this from a task-based perspective, are there specific
tasks that you would have them cover like use of, you know, I don't
know, how would you divide the tasks up so that they could manage it in
the same manner?

		MR. HOPKINS:  Well, I think the tasks, of course, it depends on what
the demolition is going to be.  There are all types of demolition we do,
whether it be rock structure -- sorry, concrete structures or brick
structures, or maybe wood and metal, and so forth, so there's a lot of
tasks involved with demolition.  It's not necessarily a single item.
It's several tasks involved.

		I think it should be broken up as to, there again, anything that
produces any sort of inhalation hazard, such as in the past demolition
produced a lot of issues with asbestos from demolition of old buildings
and so forth, so they have approached that.  And now we're onto Round 2,
so to speak, with silica dust, silicosis.  We've dealt with the lead
paint in schools, spent billions of dollars trying to rectify that
problem.  So I think it's any time that it produces a hazardous
environment, in this case containing silica, respirable silica products.

		MR. SCHNEIDER:  And I noticed in some of the photographs that you had
these misters that were used during the demolition process.  How
effective are those in trying to keep the dust down?

		MR. HOPKINS:  I think it's pretty, you know, in agreement with all of
us that are experts in the trade that, you know, no dust, no hazard.  So
we have -- they're very effective.  You'll see individual spray units on
some of the pictures that Marty had posted up with the spray bars on
different crushing units, or the water buffalo that was spraying mist
over the demolition projects that were going on.  So it's very
effective.  It's the first line of defense against any kind of these
harmful respirable products is to keep them wet, keep them on the
ground.

		MR. SCHNEIDER:  And so you would say that's standard practice in the
industry, pretty much?

		MR. HOPKINS:  That's pretty much standard practice in the industry
from my side of the country anyways.

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

		JUDGE SOLOMON:  Ms. Seminario?

		MS. SEMINARIO:  Good afternoon.  I'm Peg Seminario.  I'm Safety and
Health Director for the AFL-CIO here in Washington, D.C.  And I, too,
would like to thank you very much for your testimony.  I learned a lot
today.  And the slide show you brought was really quite helpful in
understanding the different types of work and different operations and
which ones generate the most dust.  So thank you.

		A couple of areas I wanted to talk about and one was the area of
training.  I think Barb McCabe, you spoke to the issue of training in
the standard, both the proposed requirements and how it should be
strengthened.  Could you talk about what kind of silica training that
the IUOE now provides to its members on silica?

		MS. McCABE:  We have the silica module that is available.  And the
majority of the silica training now is normally included for members
taking the OSHA 10-hour construction class.  It is an optional subject
for that training, but it's most often taught during that class.  It is
also used during the 40-hour hazwoper classes and the 8-hour hazwoper
refresher classes.

		Now, if folks are going out to do a job that there is definitely going
to be silica generated on the job, then it can also be used as a
standalone course.  It covers the things that I just testified to, the
things on the job that are going to generate silica, if that is known.
If not, then that would need to be covered as a site-specific item.  It
covers the health effects.

		Of course, if they have -- if it's a signatory contractor, typically,
we will get their plans, anything we can get that's site specific so
that we can do a very specific training.  It covers, like I said, health
effects; some toxicology, if it's a standalone class; how you can
protect yourself, the PPE that would be applicable to silica exposure,
those types of things.

		MS. SEMINARIO:  And just to clarify, this would be training for your
members who would be --

		MS. McCABE:  Yes, it would be training for the members who --

		MS. SEMINARIO:  Are doing the work.

		MS. McCABE:  At the local, training for members who are going out on a
specific job.

		MR. ZIMMER:  This is Kyle Zimmer.  I'd just like to add to that.
Marty, myself, and Larry are all instructors at the National Training
Fund, and we teach various courses such as confined space, disaster
site-worker, 40-hour hazmat.  And how we teach is we teach train the
trainers.  Local members from the local unions come to Beckley, West
Virginia, where we are located, and we do the courses to teach the
trainers how to bring it back to the members.

		Over the course of the last three years, when we knew this standard
was going to come up again, I know in all the courses -- Marty and I
co-teach a lot, that we made this part of the program.  So already now
we have members across the country at their local unions teaching the
silica exposures.

		MS. SEMINARIO:  Thank you.

		MR. HOPKINS:  Larry Hopkins, again.  I just wanted to elaborate on
that just a bit.  We have actually been teaching about silica and -- the
dangers of silica and silica exposure in California as a result of the
training that Kyle referred to from Barb's organization back in West
Virginia for about 14, 15 years now.  So it has been known for many,
many years.  And we're kind of ahead of the game and aware of the issues
with silica and have been for quite some time.  So I just wanted to add
that.

		MS. SEMINARIO:  Just to follow up on that, another area related to
training and information, that's a training that's provided to
individuals who are doing the work.  What kind of training and what kind
of information, well, what kind of training should be provided to the
competent person so that they are competent and qualified?

		And what kinds of information should they -- and knowledge should they
possess to be effective and knowledgeable in dealing with the exposures
on a particular job site?

		MR. ZIMMER:  Again, this is Kyle Zimmer.  The competent person
training, you know, we referenced in our comments, in our testimony, the
competent person requirements for trenching and excavation and
demolition.

		Basically, the difference would be to recognize the variables, the
changes in the environment, changes in conditions.  And when we do
training for competent person with the trenching and shoring, we look at
things such as water conditions, just the weather.  You know when you
start excavating in the morning, as the weather conditions change, so do
the soil conditions.  So it's an in-depth look at the hazards that they
are going to encompass.

		And it really becomes part of the job.  The more that you train, the
more that you go over that, the more it becomes part of the process.
And that's what, you know, I know myself, Marty, and Larry really stress
to our people is that make it part of the process.  Don't make it
burdensome to be the competent person on the job.

		And I really think a lot of contractors get lost in that.  And I know
for a fact Manafort, because they are signatory with us, does that with
their people and it becomes part of the process, rather than part of the
problem.

		MS. SEMINARIO:  And, again, to go back to your testimony on competent
person, just to be clear, I think one of the points that you made, but I
just want to be clear about this, is that the competent person for
silica doesn't have to be a special --

		MR. ZIMMER:  No.

		MS. SEMINARIO:  -- silica competent person.  This can be the competent
person who already has to be on the job site under existing regulations
has got other issues that there is a requirement, and they would then
have the additional training and expertise to bring to this particular
hazard on the job site.  Is that correct?

		MR. ZIMMER:  That is correct.  Again, Kyle Zimmer.  That is correct.
You can stack, if you will, the responsibilities of competent person
onto people.  I mean let's look at the size of your construction crews.
They vary so significantly.

		You may have three people doing a gas main into a house.  One of those
people have to be competent.  So you're not going to have a competent
person for silica, or you might, depending on their training level,
depending on how much the contractor puts into their training programs.
They may train everybody to be competent people, which personally I
think that's a good idea.  And then, you know, everybody, you know, sets
of eyes pick up hazards, you know.  It makes a difference.

		JUDGE SOLOMON:  How much do you have left?

		MS. SEMINARIO:  I just have one other area, one other question which
I'm not sure who will answer.  It goes to the issue of a feasibility of
the standard.  And I believe it was Mr. Hulk and also Mr. Poulos, that
for responsible contractors, from your testimony, it sounds like a lot
of work is already being done to reduce silica exposures, and to move
forward and look to how to comply with even the proposed standard.  Is
that correct?

		MR. HULK:  This is Don.

		MS. NADEAU:  It's not on.

		MR. HULK:  Can you ask that question again, please?  This is Don Hulk.

		MS. SEMINARIO:  Yes, thank you very much.  Don, I think in your
testimony you said that as a responsible contractor, you have tried to
address various hazardous conditions and exposures over the years.  But
now with there being a proposed standard that you are now looking at the
proposed standard as a guide for what you are doing to assess exposures,
control exposures, and make sure that workers are protected.  Is that
correct?

		MR. HULK:  That is correct.  And as I mentioned in my testimony, it's
already being driven down by the prime contractor.  Because of the news,
because of the awareness of it, they want to make sure that we're
controlling dust and that we are doing the monitoring to ensure that we
are below not only the current PEL, but how are we going to be in the
future with the proposed PEL.  So, yes, that's ongoing right now.  We're
prepared to go forward with that.

		MS. SEMINARIO:  So having a standard then does change practice; is
that correct?

		MR. HULK:  Yes, it does.

		MS. SEMINARIO:  And do you think that with the modifications that
you've suggested and recommendations that the standard would be feasible
for most contractors to comply with?

		MR. HULK:  If we can work out the details on Table 1.  Because our
work is so encompassing and we have so many operators working in
earthmoving, it would just be daunting for me to sample all those
operators doing every type of activity.  If we can narrow it down to
really what is producing dust, what is that dust, and have some
expectation of what those levels are, then contractors can focus on
those areas.

		MS. SEMINARIO:  All right.

		MR. POULOS:  This is Marc Poulos.  So to follow up on that, for the
Midwestern contractors that we talked to, we agree with exactly what
Manafort is saying which is we think there is still some work to be done
on this Table 1.  And even when you look at the pictures that were up on
the monitor, I mean it's kind of striking, you look at the scraper
taking the top soil off and there appears to be no real dust as part of
that operation, right?  There's a lot of those operations.  But then you
get into this hoe-ramming and some of these others, and it seems
striking again, especially in the demolition process, that there is this
big, big plumes of what appears to be uncontrolled dust in some of those
operations, whether it be because there wasn't enough watering done,
there wasn't enough engineering controls, whatever it is.  But even in
those operations, you're still going to have some level of silica or
other exposures to thing.

		But I can tell you in the conversation that we've had with the folks
in the Midwest, you know, they are ready, willing and able, as you said,
that if there is a standard that is implemented in order to protect the
workers in the short-run, rather than waiting long-term and then, as an
employer, being, you know, not just having an employee that was affected
by this, but then the employer also affected by these negative health
effects from the employees that they have employed for the last 30 or 40
years, who go back to the companies or go back to the insurance
companies on these types of things.  You know, they're ready, willing,
and able to abide by the regulation that comes out to make sure that
there is not these long-term health consequences.

		MS. SEMINARIO:  Thank you very much.

		JUDGE SOLOMON:  Okay, Ms. Ryder?

		MS. RYDER:  Yes.  I'm going to turn it over to David.

		JUDGE SOLOMON:  You know, we've been doing this for about over three
hours, maybe closer to four hours.  Does anybody need to take a break?

		UNIDENTIFIED SPEAKER:  Stretch?

		JUDGE SOLOMON:  Okay, well, the public says, so we'll take five
minutes.

		(Off the record at 4:30 p.m.)

		(On the record.)

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

		MS. RYDER:  Dave?

		JUDGE SOLOMON:  Mr. O'Connor?

		MR. O'CONNOR:  Yes, this is Dave O'Connor.  A few questions for the
panel.  Typically, how many hours do operating engineers perform the
activities on Table 1 during any particular shift?

		MR. TUREK:  Martin Turek.  Operating engineers typically perform their
entire shift on Table 1 activities if that's the job they're assigned
to.  If an operator is assigned to do a job that's listed on Table 1, if
it's an eight-hour shift, they'd be performing that activity for the
entire eight hours.

		MR. O'CONNOR:  Okay, so it's not an issue then at the beginning of the
shift to determine whether you are going to exceed the four-hour
threshold that we have in Table 1, you just know it's going to exceed
that four-hour threshold typically?

		MR. TUREK:  Traditionally or typically, operating engineers are
assigned to a specific piece of equipment, doing a certain task.  So if
that task was known at the beginning of the shift, which it should be
due to managerial concerns, they should know what the safety and health
effects would be.

		MR. O'CONNOR:  Okay, thanks.  Mr. Turek, you had talked about a slide
you presented and it was a drilling rig where there was a control panel
that was very near the back of the rig.  I was just wondering if you or
the other panel members could describe for the various operations that
are presented on Table 1, that are performed by operating engineers,
where the operator is located and where other workers are located
relative to the source of the dust generation?

		MR. TUREK:  Majority of operating engineers are located inside a cab,
which have a specific or a designated amount of distance in between the
source of generation of respirable silica dust, if that was present, and
where that operator is situated.  There are some different jobs, such as
the well-drilling operation or drilling operation where that operator is
located and their helper is located directly adjacent to the generation
source.

		Other types of workers that would be near there that are operators are
those construction building inspectors.  They could be near the source.
They don't have a cab around them, of course.  And also the surveyors.
So there are some operating engineers that are closer to the source than
others.

		MR. ZIMMER:  This is Kyle Zimmer.  I'd like to make a comment on that.
 One thing that I think OSHA should really consider as this process
moves forward is the changes in technology.  Equipment, you know, heavy
equipment back in the day came out cookie-cutter.  It was all the same.
As time progressed, things got more technical.  Different machines were
coming out, like you saw that big trencher.  You know, 25 years ago,
that wasn't around.

		So as techniques in construction change, especially with the energy
industry, with the gas and the water upgrades that are going around with
the infrastructure improvements, there's new equipment that
manufacturers are developing all the time, which may change the
operations that we currently are doing on Table 1, change the exposure
levels.

		So for that I would like to suggest some flexibility in that table to
change it as it goes, you know, goes further.  Thank you.

		MR. O'CONNOR:  Does an operating engineer typically know when the
engineering controls that are listed on Table 1 are working or not
working?  Can they tell?

		MR. ZIMMER:  Keith, do you want to talk on that a little bit?

		MR. MURPHY:  Keith Murphy.  Yes, you can tell by the visual clues, by
the engineering controls.  If it's water, obviously, you can see if the
water is coming out, or the mister is emitting the water.  As far as the
respirable amounts, that's not really what I can tell.  But you can tell
whatever engineering controls are working that are visible, it's obvious
when they're not working.

		MR. O'CONNOR:  How about for enclosed cabs, can you tell if the
enclosure is effectively protecting the worker or not?

		MR. ZIMMER:  This is Kyle Zimmer.  One thing that I'd like to add to
Keith's, before I address that, is I'd like to refer back to NAPA's
testimony with the milling machine and how the gentleman referenced the
checklist and how the operator or maybe the mechanic on the site would
check out the machines on a regular basis.  That doesn't just hold true
with the millers.  It holds true with every piece of equipment that we
have.

		Throughout the years, our signatory contractors have realized that the
best ounce of, you know, a good savings, if you will, on your
maintenance program is preventative maintenance, going through the
equipment on a daily basis to make sure that it's okay.  And that's a
shared responsibility between our operators and the company people.

		Again, as I referenced the newer machines, years ago, the operator
would get on the site, like when Larry first started in the business,
check the oil and jump on the machine and go.  There wasn't a mechanic
out there.  As time progresses and it got more technical, there may be
some computer issues, electronics that the operator is not up on.  So
the companies would have people there to do that type of preventative
maintenance.

		As far as visuals go, you know, you have your normal breakdowns.  With
enclosed cabs, your filtrations systems, as they're being developed and
becoming commonplace in the market, what you're seeing is filtration
systems in the cabs.  You have to check your filters.

		And, again, it's like a new car.  You don't check your oil in your new
car anymore.  A light comes on and says, hey, it's time to change your
oil, in a nice little voice.  Same thing with the equipment.  So as the
industry progresses, you're going to see changes in the way that we do
things to alert the operators of a defect in the system, if you will.

		MR. O'CONNOR:  A previous questioner touched up on productivity issues
with regard to the engineering controls that operating engineers would
be using.  Can you tell me if there is any set-up time that would be
involved in implementing those controls?

		MR. ZIMMER:  Marc and I were talking about that yesterday, as a matter
of fact.  Marc, do you want to mention the planning process again on
contractors?

		MR. POULOS:  We need an engineering control on the microphone is what
we need.  Marc Poulos.  Yeah, I mean this just comes down to, right, the
preplanning of the projects.  We were talking about this last night at
dinner.  It's like building a building.  I mean a contractor takes the
building of a structure down to the finest detail of how they order
materials so that the first material they are going to use is on the top
bunk of what's delivered, whether it's wood or whether it's steel
structures.  I mean the same thing is true when you're talking about
this type of a regulation, right?

		Again, this goes to not just short-term effects to workers, but
long-term effects from things like respirable crystalline silica.  So
the set-up time, and I think it was mentioned in some earlier testimony
today, I mean it's minimal.  It just becomes part of the, you know, part
and parcel of the entire planning of the particular project.  And the
implementation of a competent person on that particular job site, and
also operators that have been trained on a checklist to go through these
things to make sure that they're working.

		And as Kyle says, as time goes on, then also having changes in design
for equipment so that you know when pressure is down on a particular
piece of equipment for a water spray, or you know when a nozzle is
clogged because you're getting a sensor type of thing.  But, yeah, I
mean the set-up and the planning to this is minimal.

		MR. ZIMMER:  And we could probably give -- again, Kyle Zimmer, I'm
sorry, probably give you an exact example.  If I can ask Don to talk
about, you saw the slide with the mist, Don, could you give an idea how
long it would take to set up that piece of equipment on a construction
site?

		MR. HULK:  Not very long, indeed.  Donald Hulk.  Not very long at all.
 It's a wheel-based machine, much like a wheelbarrow.  You wheel it out
to the project.  You plug it up to a water hose.  It needs power.  It
also has a gas option, too, so you have electricity and gas.

		And that picture doesn't show it, but that's actually controlled,
remote controlled.  And the operator in the cab doing the demolition can
actually turn the nozzle of the machine so he can direct that mist to
where the dust is.  So they don't even have to leave the cab to go and
turn the nozzle.  They can do it remotely.

		MS. NADEAU:  We will address this more, as well, in post-hearing
comments.

		MR. O'CONNOR:  All right, thank you.  You had also indicated that IUOE
signatory contractors would like better guidance on the proposed rule.
And I was wondering if you could specify which aspects of the rule are
creating confusion, where additional guidance is needed?

		MR. TUREK:  Martin Turek.  The guidance that the operating engineers
are looking for has to do with Table 1.  The three things that we
mentioned in Table 1 that we would like more guidance on or added to
Table 1 is to include rock ripping, breaking and/or hoe-ramming, and
rock crushing.  It's those three items.

		JUDGE SOLOMON:  Sounds like four to me.

		MR. TUREK:  Hoe-ramming and breaking, depending on which geographic
area of the country you are, are the same process, just different
terminology.

		MR. HOPKINS:  Larry Hopkins.  Also, one area that I had mentioned in
my report for clarification was what exactly does closely resemble mean
when it comes to air monitoring that would circumvent the necessity to
do ongoing monitoring.  It's pretty important that we know what closely
related means.

		MR. O'CONNOR:  Okay.  In fact, that was my next question.  And I
really wanted to direct this at Mr. Hulk, being a contractor here.
When you're looking at how the employer would apply a provision as it is
currently written for exposure assessment and the allowance for an
employer to rely upon monitoring that has been conducted under
conditions that closely resemble those that are currently prevailing,
how would you understand those words as they are currently written?

		MS. NADEAU:  That was to you, Don.

		UNIDENTIFIED SPEAKER:  He knows.

		UNIDENTIFIED SPEAKER:  He's thinking.

		MR. HOPKINS:  I told you it's confusing.

		MR. HULK:  I'll have to admit, I'm confused.  Can you ask that again?

		MR. O'CONNOR:  I was really just trying to get at your understanding
of those words as they are currently presented when we use the term
closely resemble.  And we have an exposure assessment provision that
indicates that an employer can rely upon monitoring that has been
conducted if it is under conditions that closely resemble those
currently prevailing.  How would you interpret that now?

		MR. HULK:  How I feel about it now?  If I do a negative assessment on
a particular project, can I carry that information over to the next
project we're doing or do I have to repeat the sampling because maybe
the concrete has a different psi, or a different height, or a different
configuration.  How do I set up a negative assessment so I can carry it
from project to project, that is my confusion.

		MR. O'CONNOR:  Okay, okay.

		MR. HOPKINS:  Larry Hopkins.  I wanted to add one thing to that, too.
If you have an excavator operator, for instance, that's running an
excavator during trenching operations with a bucket, and then usually
these pieces of equipment come with quick change devices where we can go
into a hoe-ram operation, or a grappling operation, or a different
variety of operations, which may produce an entirely different
environment than the bucket did.

		So would the monitoring that was done during an excavation with a
bucket be considered closely related to the same excavator operating
with a different tool or an implement, because it's going to create a
completely different atmosphere?  So I think that clarification is
necessary so that we don't say the excavator operator was monitored on
such and such a day and found to be below the action level, and of
course today is doing a completely different process with the hoe-ram.
And even though he is the excavator operator, he has put himself in a
more hazardous environment now.

		MR. O'CONNOR:  Thank you.  One more question.  In the Operating
Engineers' written comments, you indicate issues that you see with the
use of respiratory protection affecting vision, hearing, and
communication.

		We have also heard testimony from participants in these proceedings
indicating that those problems are associated with some engineering
controls, particularly enclosed cabs.

		And I was wondering if the Operating Engineers shared that view with
regard to enclosed cabs, that they adversely affect vision, hearing, and
communication, and, if so, if you could compare them to respiratory
protection in terms of the level of effect?

		MR. ZIMMER:  I can address that from past experiences of running
equipment in full respiratory, Level B protection, which is supplied air
at a hazmat site.  When you wear a full-face respirator, whether it's an
air-purifying respirator or supplied air, you have essentially another
visor across your face.  So you're looking through one, and then you're
looking through a windshield, and you could have distortion.  The other
thing is with most respiratory protection, you have a limited field of
vision, so it cuts down your peripheral vision.

		And in some cases, if you're using a PAPR, or powered air supply
respirator, as was referenced here earlier in the week, you may even
have not an excessive level of noise, but added noise already, you know,
added to the already ambient noise of the machine running, depending on
the age of the machine, the condition of the machine.  You know that's
all variable.

		Again, competent person, before you put somebody into the respiratory
protection, the first thing you do is check to see if that operator is
qualified and trained to wear that respirator.  Make sure the medical
surveillance is in place.  And then go through the hazards of wearing it
with them.

		JUDGE SOLOMON:  Right, that's Mr. Zimmer.

		MR. ZIMMER:  Mr. Zimmer, I'm sorry.

		MR. HOPKINS:  Larry Hopkins.  One more time just to touch on that a
little further, too, is there is also a fogging issue, especially with a
full-face mask.  So if we have much like a scuba diving mask, if you
have fogging in the mask, you're going to have a reduced visibility, not
to mention the limitation of peripheral vision.  So, yeah, it creates a
hazard actually to others on the ground, because it's an operator's only
method, typically, of checking the surrounding area before backing up is
to be able to look around, look behind him, and assure that everybody is
clear.  And that could certainly be hampered by fogging or by peripheral
limitations.

		MR. ZIMMER:  Again, Kyle Zimmer.  Just to give you a little bit of
perspective on operating and visibility, I investigated an accident this
past August one of our operators was involved in.  He was running a
rather large front-end loader in a quarry scenario.  And he ran over a
co-worker, killed him.

		What happens with that, and this is with no respiratory protection or
nothing, but what happens is that these pieces of equipment are so big,
you have restrictions already on your field of vision.  And when we did
the accident investigation, the local police department reconstructive
team, and myself, and the area office of OSHA, I sat there with a couple
of the investigators.

		And I said let's take a look at this for a minute.  I want to make a
prediction on the blind spot.  And the blind spot I said was going to be
between 25 and 35 feet.  And everybody was kind of in agreement with me.
 And it came in at 32 feet.

		Now, that might not sound a lot, like a lot to you.  But when you're
sitting up 10 feet and you can't see behind you like that, put on
respiratory protection and it just becomes so much more difficult to
understand your surroundings.

		You know we have in-cab cameras now.  We have alarms, proximity
alarms, and everything else.  But those are all good, but then you
restrict yourself even more and the effectiveness of those engineering
controls could go down.

		MR. O'CONNOR:  You've described some of the issues with respiratory
protection, and I was just wondering if you have any sense or can talk
from your experience if in a typical situation there was an option to
have an enclosed cab or respiratory protection, what would be the
comparative effect?  Would the enclosed cab restrict vision and
communication to the same extent as respiratory protection, or more or
less?

		MR. TUREK:  Martin Turek.  From previous experience, an enclosed cab
offers much better visibility, much better hearing capacity, less
restriction on the operating engineer, less stress to their body.  The
option to have an enclosed cab, positive pressure, compared to personal
protective equipment such as a respirator, that enclosed cab will offer
much better engineering controls, it will be safer for the operator and
safer for the rest of the workers on that job site.

		MR. O'CONNOR:  Thank you.

		MR. MOORE:  Hi, Dalton Moore.  I have a question.  I guess in your
testimony and in your comments, you kind of endorsed the use of the
enclosed cabs.  And I was just wondering how prevalent are they in use?
Are they an everyday item?  Do you see them all the time?

		MR. TUREK:  Enclosed cabs vary greatly between new equipment and old
equipment, so the quality of their cabs, the quality of their seals, of
course, depending on the age of those machines.

		An example for you is at our training facility, we have around 200
pieces of equipment.  Only about half of those pieces of equipment have
enclosed cabs.  It's going to be a geographic nuance depending on who
has enclosed cabs, the type of work.  If you're doing roadwork compared
to demolition work, you might have a different percentage of machines in
those different industries that do have cabs.

		MR. MOORE:  As far as like can you retrofit older machines to be
enclosed, you know, with the technology there?

		MR. TUREK:  We have retrofitted two of our pieces of equipment, two D8
dozers, Cat D8 dozers, with retrofit cabs.  Both of those cabs, we have
taken off since we've bought those cabs because of the noise generated
by the retrofit cabs.  Also, those retrofit cabs fit inside the ROPs
(ph.).  Fitting inside the ROPs decreases the visibility that the
operator had with either a standard cab that would have came with the
machine originally or with having that cab removed from the machine.

		MR. MOORE:  And last question.  As far as your using respirators
outside of your, you know, defined hazardous work, your hazmat type
work, how often do you find your members having to wear respirators to
protect for silica, possible silica material?

		MR. ZIMMER:  I'd like to have Don answer that because of his
involvement with his respiratory program that he has.

		MR. HULK:  Not many.  In my testimony, the dust-producing activity is
only 5 to 10 percent of the operator's actual activity, so very few have
to wear a respirator.  And, typically, they don't have to wear it for
the whole day.

		I would like to make a comment on the cab.  Once you put the operator
in an enclosed cab, you're going to have to retrofit the cab to have air
conditioning.  They are not going to be able to survive in the summer
months working in a cab that's closed up like that.  So that's the real
added expense to retrofitting an older machine to new technology.

		MS. NADEAU:  For the record, that's Donald Hulk.

		MR. DAVIS:  It's getting late.  Neil Davis.  I just wanted to ask a
few questions.  In the slides, you showed, and in the different jobs you
do, what's the percentage that has laborers working with you or are you
doing the demolition without the laborers?  And what's their proximity?
Generally, they are closer to the jobs?

		MR. ZIMMER:  Again, I'd like to use the example of Manafort and what
they do.  So can you reference the slide that you had with the pictures
there, how many?

		MR. HULK:  The slide that you saw with the water buffalo, that's a
typical five-man crew.  The operator is running the machine and all the
supporting crew are laborers.  So you're looking at four laborers to
every operator.  And those laborers are in close proximity to the
excavator and the demolition work, so they are also exposed to that
dust.

		MR. DAVIS:  Okay, thank you.

		MR. HULK:  Mr. Hulk.

		MR. DAVIS:  Now, would that be -- we talked about roadwork and
milling.  Is that like two laborers for every operator, or one to one?

		MR. ZIMMER:  Again, this is Kyle Zimmer.  I think they addressed that
this morning in the milling presentation.  And Marty was here.  I think
it's three to one.  It depends again on the size of the milling machine.
 If you're using a smaller like half-lane or less, it would probably be
two to one.  If you're using a full half-lane, it could go three or
four, maybe even higher depending on the traffic patterns and what has
to be set up.  But, historically, you know, you do have ground people
supporting the operator.

		Getting back to the milling machines, which we run quite a bit, the
operating engineers are involved with that, and I know several operators
personally and I talk to them about this.  And, again, that ground crew
is essential for that machine's operation because, again, of the
decreased visibility.

		They are massive machines.  They are very cumbersome, and the
communications and the hand signals that they use is very effective.

		MR. DAVIS:  In terms of regulated areas, how do you set them up now?
I guess that would be to Mr. Hulk.

		MR. HULK:  Right now we use caution tape.  So we have to use a
regulated area for two reasons during a demolition job, obviously the
dust, but also for the debris falling off the building and the machine
working around the building.  So we'll put up caution tape around the
perimeter of the building.  Based on the height of the building would
require how far back we pull that tape from the building base.

		MR. DAVIS:  Based on the safety criteria.

		MR. HULK:  Yes.

		MR. DAVIS:  And have you taken a lot -- has your company taken a lot
of samples on silica at this point?

		MR. HULK:  Compared to other samples, no.  We typically take a silica
sample and based on the levels, we'll try to use the real-time monitors
to control total dust.

		MR. DAVIS:  Well, that got to my next question, which is have you been
using real-time monitors and how has that worked out?  Do you send it in
to get verification on larger jobs?  Do you send like an area sample in?
 How do you use the direct reading instruments now?

		MR. HULK:  Well, initially, we'll have to sample for silica and
respiratory disease.  And then we can compare that to the total dust
that was in the sample, re-engineer a number.  So we can use the
real-time monitors as long as we don't exceed that engineering number,
we know we're below the silica PEL.

		MR. DAVIS:  That's very helpful.

		MS. RYDER:  This is Anne Ryder.  I have one quick question.  We've
heard a lot about how on construction sites employers have to deal with
the wind and cold temperatures, and other factors, have to deal with the
elements.  Can you tell us a little bit about how you are making
adjustments when it's a windy day, or when it's freezing, or when it's
really hot in terms of the controls that you're using, especially wet
methods we've heard a lot about?

		MR. HULK:  Don Hulk.  As I mentioned in my testimony, when it gets
really cold and it has been very cold in Connecticut for the last four
weeks, we can't use the dust suppression, so we can't do the active
demolition.  There is obviously the state guideline.  But we also have
an obligation to the owner that we're working for not to create dust and
have that dust migrate off their property.  So that's one condition.

		And the wind, the wind is difficult.  You try to position the
equipment in the right area so the wind is helping you with keeping the
natural ventilation, keeping the dust away from the operator.  But if
the wind shifts and the piece of equipment is already in the position to
do the work and now the dust is blowing back to the cab, the competent
person has to make the decision if we suspend that operation or move the
equipment to another location and demo somewhere else.

		MR. DAVIS:  I have one last question.  You've mentioned that the
training is really the same person for the competent person.  And you
also mention in your written testimony the extra training that would be
required for operating engineer as well.  Would you be able to provide
estimates of that differential time, like what would be the length of
the training that would be recommended?  And you don't have to do that
now.  You could just submit that with your submittals.

		MR. ZIMMER:  This is Kyle Zimmer.  We'll address that in post
comments.  But I will say that what we did say was that depending on the
competent person, his abilities, he may be a competent person for
another discipline already on a job site, and it wouldn't be difficult
to add the silica requirements to his résumé, if you will.

		But, yeah, along with, you know, in our post comments, we'll include
the National Training Fund silica modules on training and what we do
already.

		MR. DAVIS:  Thank you.

		MR. O'CONNOR:  That's all we have.  We'd like to thank the Operating
Engineers for their testimony this afternoon.

		MR. ZIMMER:  You're welcome.  Thank you very much.

		MS. NADEAU:  Do you want copies?

		MS. RYDER:  If you have your written comments, that would be great.

		MS. NADEAU:  Yeah, I have them.

		MS. RYDER:  Thank you.

		JUDGE SOLOMON:  The next panel that's coming up is Fe y Justicia;
that's Faith and Justice in English.  And we also have New Labor from
New Jersey.  Do you want to make these a single panel?

		MS. RYDER:  Yes, I'll get the interpreter.

		JUDGE SOLOMON:  Okay, so let's go off the record for a minute or two
and get situated here.

		(Off the record at 5:08 p.m.)

		(On the record.)

		JUDGE SOLOMON:  Let's go back on the record.  Although I had said that
we were going to consolidate the two panels, I am now told that they
don't want to do that, so we will have the Houston panel up first.

		MS. CASILLAS-PABELLON:  New Labor, New Jersey.

		JUDGE SOLOMON:  You're New Labor?

		MS. CASILLAS-PABELLON:  Yes.

		JUDGE SOLOMON:  Okay.  So learn something new every second here.  So
if you speak English, why do I need an interpreter?

		MS. CASILLAS-PABELLON:  Because they don't.

		JUDGE SOLOMON:  Okay.

		MS. CASILLAS-PABELLON:  And it could be -- I'm not an official
translator, but I could translate, but it's up to you.

		JUDGE SOLOMON:  Okay, we have an official translator.

		MS. CASILLAS-PABELLON:  Yes.

		JUDGE SOLOMON:  Would you state your name again, the translator, state
your name again.

		THE INTERPRETER:  Anna Duncan.

		JUDGE SOLOMON:  Right.  And as I had said, we have relaxed rules here.
 Normally, I would swear in the interpreter but I didn't do that.  And
she is an experienced interpreter.  And the way it's going to be done is
there will be some questions asked.  Normally, if there were a lawyer,
if these people had a lawyer, the lawyer would ask direct questions.

		So are you going to ask them questions?  How do you want to do this?

		MS. CASILLAS-PABELLON:  They have prepared, themselves, what they want
to say.  And so that's kind of covered.

		JUDGE SOLOMON:  Okay.  So going down the line here, would you please
state your names and your addresses, please?

		MS. CASILLAS-PABELLON:  My name is Marien Casillas-Pabellon.  I am the
Director of New Labor.

		JUDGE SOLOMON:  And that's in Houston, Texas?

		MS. CASILLAS-PABELLON:  That's in New Jersey.

		JUDGE SOLOMON:  Oh, that's in New Jersey, I'm sorry.

		MS. CASILLAS-PABELLON:  Yes.

		MR. MENDOZA:  Yes, my name is Jonas Mendoza.  And I am also part of
New Labor, in Newark, New Jersey.

		MR. TREJO:  Norlan Trejo from New Labor, in Newark, New Jersey.

		JUDGE SOLOMON:  Okay.  So who is going to go first?

		MS. CASILLAS-PABELLON:  I will.

		JUDGE SOLOMON:  Okay, I hear some noise out there.  Would somebody
please try to stop that?  Okay.  All right, what do you have to say?

		MS. CASILLAS-PABELLON:  Good afternoon.  My name is Marien Casillas,
as I said before.  New Labor is a workers center that represents workers
from different low wage industries in New Jersey.  Among these workers
are day laborers and construction workers.  New Labor and its members
fight for improving conditions of work in low wage labor markets.  As
part of our work, we do a lot of health and safety trainings, and
encourage our members and members of the community to take action to
make their jobs safe workplaces.

		Since 2005, New Labor staff and members have trained over 5,000
workers in different low wage industries, and has partnered with
employers to deliver training, and made recommendations for the
development of health and safety committees in their companies.

		OSHA's proposal to improve worker protections from silica dust are
extremely important for construction workers in general, but especially
for workers in the low wage sector of this industry.  Day laborers and
other construction workers are working in an environment full of
intermediaries and subcontractors that could care less for the
well-being of their workers.

		Major construction companies hire these subcontractors to place the
responsibility of worker safety and other conditions on these
subcontractors, detaching themselves from any responsibility, in theory,
and making it hard to track who is ultimately responsible for that
construction project.  This makes it harder -- I'm sorry, this makes it
easier for them to shield worker from their wages and to have them
working in really poor conditions.

		A lot of day laborers work in residential construction where it is
harder for governmental agencies to track employers that are not
complying with safety standards or other basic labor and employment
regulations.  Often, these contractors do not even give workers the
correct company names, phone numbers, or they are giving workers fake
names.

		The work is performed in neighborhoods far from where the workers
live, or the workers don't speak the language, which becomes a challenge
for workers to demand personal protective equipment or the right tools
to perform their jobs.  Workers are often left to their own devices and
creativity to try to protect themselves or to perform daily job tasks.

		We have heard stories of workers that out of desperation have used wet
handkerchiefs or wet T-shirts as respirators.  This is a sector of the
industry where the worker is lucky if they got a hardhat or a set of
gloves, and where training and enforcement is scarce.

		This is important because when we are all talking about the standard,
we have to put it in the context of how the work is being performed on
the ground.  In an environment in which there is a blatant disregard for
worker safety, it is imperative that we have strict standards that
provide workers with stronger tools to demand from employers the
required tools and equipment to do their jobs safely.

		It is important to reduce the permissible exposure limit from 150 µg
to 50 µg.  Many of the workers that New Labor represents do not have
access to healthcare or the social networks to deal with lung-related
diseases.  They cannot afford to get preventive care, either.
Controlling and/or limiting their exposure becomes extremely important
given this scenario.

		The construction industry has a very weak culture of safety.  OSHA
needs to provide guidance in regards to what it means to work safe.
Contractors should utilize mandatory dust controls and understand that
respirators are not the first line of defense against silica dust, which
perpetrates workers' assumption that if they are using respirators, they
are immune from illnesses related to exposure of silica dust.

		In cases in which respirators are required, workers must be provided
with training.  They should have medical exams.  And the workers must
have fitting test to ensure protection.

		As mentioned in the OSHA proposal, the employers should provide
training under requirements of the regulation and give a copy to the
workers of said regulations.  Both the training and the materials should
be done in the language that the worker speaks or understands.  Workers
should know what is the employer's plan to control dust for each task
that is exposing them to the hazard.

		Throughout the years, we have trained many construction workers who
had no or very little knowledge of the effects of silica dust.  Seventy
percent of these workers were not able to say what silica even was or if
they were even exposed to any kind of long-term illnesses.

		When they learned about the long-term effects to their health, many
were alarmed.  Training has been key in getting workers to demand for
the right equipment and tools to complete their tasks safely.

		Always after trainings we follow up with members to make sure the
impact of these trainings, and 55 percent of the workers that receive
training around these issues express that they have demanded PPE and
other tools to do their work safely after the training was done.

		Two years ago, New Labor held a 10-hour OSHA training in which we
discussed PPE and also discussed silica exposure with the workers and
how to control it.  A group of eight workers of the same company were at
the training.  After the training, workers refused to cut concrete and
marble without -- doing it dry or without the right respirators.

		The employer can try to convince them that they don't have to worry
about it, everything is going to be fine, you just cut it, we need to
get this over with, and they resisted.  But this is not always the case.
 This was a case where there were eight of them.

		Usually, when there are smaller crews of workers, you don't feel that
safe to demand these things.  And the workers who are with me today are
kind of like the exception.  There is a lot of fear to confront
employers, even knowing your rights.

		So after they requested and demanded this equipment, the employer said
he didn't have another chance because he had to finish the job, so he
actually went and bought the right saw which will allow them to cut it
wet, and at the same time he brought the respirators.

		So the worker training portion of OSHA's proposed standard is
extremely important for us, for workers, and employers must be made
accountable for providing this training to their workers.

		The community is ready to make their part in making this work, and I
think it is just having this standard will help us do that job.  So I
really appreciate you giving us the time to be here today.

		JUDGE SOLOMON:  Okay, thank you.  So, Mr. Trejo, you're next.  You're
going to translate that?

		MR. TREJO:  Good afternoon.  My name is Norlan Trejo.  I am a
construction worker, and I am a safety liaison for New Labor.  As a
safety liaison, I am trained to identify and eliminate risk dangers in
our workplaces.  We also provide OSHA 10 trainings to construction
workers and we do other types of trainings related to worker health and
safety.

		In the majority of the jobs that I have carried out as a construction
worker, I have noticed that there is a high presence of silica.  I have
worked cutting ceramic and granite, and I have used machinery that uses
the wet cutting system.  And when I compared the experience of cutting
with the wet cutting system and from the times that I have cut it with
dry cutting, I can see that the wet cutting system is much better
because there is not as much dust and there is greater visibility.

		When I have used the dry cutting system, I notice myself getting tired
quicker.  I have to drink more water.  I can feel the dust in my throat
and in my lungs.  My eyes get really red and I get a lot of burning in
my eyes.  And so, in my experience, it's better when the wet cutting
system is used.  But, unfortunately, a lot of employers don't provide
this system.

		However, the wet cutting system is also a good system because it
doesn't only protect you, it also protects your other co-workers as
well.  A lot of times when I have used the wet cutting system, it is not
because the boss is worrying about his workers.  It is because, you
know, maybe we are doing the final stages of the work.  We're putting on
a new ceiling.  It's because with all of the dust, the dust sometimes
will stain the new ceiling.  And so it's not because he's concerned
about the workers' safety, it's because he doesn't want to stain the new
ceiling.

		I have also cut marble using an N95 respirator.  And although this
respirator meets all of the standards, the required standards, it still
lets too many particles in, even when it's being utilized in the correct
way.  And aside from the fact that the protection for myself is limited,
it also does not offer any protection for my co-workers.  And so that's
why I continue to prefer the wet cutting system as the best method for
controlling silica dust.

		On another occasion, I worked in the construction of a hotel and we
did all of the work related to all of the ceramic work for the
bathrooms, the kitchens, the walls, etc.  There were some of the work
sites where the space was very small, and we used respirators as the
only protection system when we were cutting ceramic or mixing cement.

		And our boss would only give us a respirator, but he didn't even give
us an N95 respirator.  So the dust was getting through.  It wasn't
enough protection.  We would have had a higher level of protection if we
had used a wet cutting system or if we had connected a vacuum hose to
the saw or to the grinder.

		So we should be using the respirator as an additional protection, not
by itself.  At the same time, a reduction in the permissible limits
proposed by OSHA would also have been useful in that instance.  That's
why OSHA's proposal to use engineering and design controls in order to
control dust is also important.

		The bosses, often the only thing that they will give workers is a
simple respirator that doesn't even meet the requirements, because the
only thing that they are interested in is getting the job done, not in
your safety and security as a worker.  And this is especially for the
small companies, which is where the majority of us work.

		Some of the contractors that I have worked for don't even know what
OSHA is, and much less know and understand what is a hierarchy of safety
controls.  These employers take very lightly their responsibility to
maintain their workers in a safe environment.

		One of the problems that those of us who are constantly exposed to
silica and one of the problems that we suffer from is that we don't feel
the damage immediately, the damage that this is doing, and that's
because our bodies are so used to constantly breathing contaminated air.

		And so that's why over time with so many years of being exposed to
this every day, 8 to 10 hours a day of constant work, the effect of this
has accumulated, producing illnesses over the years.  So when one goes
back to their home country to supposedly enjoy the results of why we
came here, to be able to have a better life, you realize that you have
to use what you've earned to be able to cover your medical bills.

		I, personally, believe I agree that workers who are doing work where
they are often exposed to silica should have to do medical exams.
However, I don't agree that the results of my medical exams should be
handed over to my employer.

		First, the results should be given to me.  Second, this could open the
door to discrimination or to unjust firing without me even knowing that
this is happening because I'm sick.

		JUDGE SOLOMON:  Maybe we can go to Senor Mendoza, because we have a
time problem here.  Okay.  Mr. Mendoza, do you have -- what do you want
to say?

		MR. MENDOZA:  Good afternoon.  My name is Jonas Mendoza, and I am a
construction worker, also a member of the safety liaison of New Labor.
As part -- as a safety liaison and also as a construction worker, I
primarily do renovations, interior renovations.  Part of my job duties
include sanding, demolition, painting, and cutting.  And of these tasks,
the one in which I am most exposed to silica are sanding and painting.

		Also, when I am cutting concrete floors or cutting block and brick,
and the employer doesn't provide adequate protection respirator systems.
 It is important when one is cutting cement or doing any kind of cement
work to use a wet saw in order to reduce the amount of dust.

		And anything that is -- all of this work produces dust and produces
silica.  And this includes doing drywall, dealing with old insulation,
sheet rock.  It really creates a cloud of dust.  And this is something
that surrounds the workers who aren't using protection and who they end
up inhaling it when they are working sometimes for 8 to 10 hours a day.

		And in my personal experience, I have been exposed a lot to silica
working in demolition, in the 10 years that I have been working here.
And my boss didn't provide me with adequate medical exams.  I had to
take care of getting those exams, myself, because I was suffering from a
lot of -- from coughing.

		And this is what happens when you take the risk of working in an area
where -- a work area where you are going to be exposed to dust and there
isn't adequate safety and security measures.  I think I did the right
thing here when I went to the doctor to get a checkup.  They found a
dark shadow in my lung and this is evidence of all of the material, all
of the dust that I have been inhaling.  And thanks to God I'm okay.  I
recovered.  And now thanks to the training and information that I have
received, I don't put myself at this risk anymore, and I train others in
how to be safer.

		I also have friends who work with companies that are doing sanding the
outside of houses before painting them.  And they use dust extractors
that avoid air contamination that impacts both the workers and people
who are passing by.

		When miners suffer from some sort of a health problem in their lungs
related to working in the mines, they are offered an alternative job
that doesn't continue to put them in danger and health risk.  And I
think that all workers should have the right to -- should have the same
right to be able to do jobs where we are not exposed to these harmful
dusts and where we are not putting ourselves at risk of getting lung or
respiratory illnesses.

		In demolition, we often work in work sites that are not adequate for
doing this work.  They are not hygienic.  We often don't have access to
water to be able to wash our hands before eating and we are eating
surrounded by dust.  I think that OSHA needs to have regulations to
protect workers from silica dust.

		But even more important than this is that OSHA should be proactive in
ensuring that employers are complying with these regulations.  There are
workers who are scared to speak up and complain to their bosses about
these instances because they are afraid of losing their jobs.  They're
afraid of being fired.  However, I believe that all workers have a right
to work in a safe workplace and that's why I am here, because I believe
that working together we can accomplish this.  Thank you.

		JUDGE SOLOMON:  Okay.  Are there members of the public who have
questions for this panel?  Okay, would you come forward?  This time,
you're going to say your name first and then you are going to spell it.

		MS. REINDEL:  Rebecca Reindel,

R-e-i-n-d-e-l.  I am with AFL-CIO.  First of all, thank you very much
for coming.

		JUDGE SOLOMON:  Do you want to translate that for them?

		THE INTERPRETER:  They have the equipment actually.  The other
interpreter is interpreting for them.

		JUDGE SOLOMON:  Oh, I didn't know that.  Had I known, we would have
done this another way.  But go ahead.

		MS. REINDEL:  First of all, thank you very much for coming here today.
 I really enjoyed your testimony.  I have a few questions for you.  One
is that can you tell me what types of jobs you see the most silica dust?

		MR. MENDOZA:  Really, in New Jersey, we see that everyone who is
working in this industry is doing their jobs without adequate
protections.  The bosses don't comply with the OSHA -- the conditions
that OSHA has set to require a safe workspace.  They are often working
without the respirators and necessary personal protection equipment.
But I think primarily in demolition work and in cement cutting work.

		MS. REINDEL:  Thank you.

		MS. CASILLAS-PABELLON:  There is a lot of -- this is Marien.  There is
a lot of issues also when they are cutting ceramic and at the same time
with marble and granite.

		MS. REINDEL:  If a worker today is concerned about silica dust, what
actions do they currently take to protect themselves from the silica
dust?

		MR. TREJO:  So, firstly, since we have already been trained in this,
when we're going to go to a job site, we know what we are going to need.
 We know what we are going to be doing and so we bring our own personal
protection safety equipment.

		But sometimes if we go to a job site where we don't know what we're
going to be doing and so we don't have the correct equipment with us,
since we have been trained in this, we'll talk with our other co-workers
and we'll demand to the boss that they provide us with the protection
equipment or that they provide us with the wet cutting equipment.  And
if they don't do this, then we say we are not going to do the job.

		JUDGE SOLOMON:  Was that an objection to the translation?

		THE INTERPRETER:  No.

		MS. RYDER:  I just want to note for the record that that was
Mr. Trejo who was responding.

		JUDGE SOLOMON:  Right.

		MS. CASILLAS-PABELLON:  Can I add something?

		JUDGE SOLOMON:  Well, you just spoke to one of the witnesses.  So what
did you say to him?

		MS. CASILLAS-PABELLON:  So one of the things I said is that I just
want him to clarify what happens when you are not trained.  He has
gotten the training, so he knows what to do.  But we only have 12 safety
liaisons in New Jersey that we have trained to do these work
interventions.  What happens when the worker has not received prior
training, that's kind of like what I was trying to see if he could
answer.

		MR. TREJO:  A lot of times, the worker is scared.  The workers are
scared and especially because the first answer that the boss often will
give is, okay, fine, then you can go home now.  And so a lot of them
will continue to do the work without the equipment.

		So if one of us is there then we will speak on behalf of all of the
workers.  We'll speak with the boss, and we'll insist that they provide
either the wet cutting machinery or the protection equipment.

		JUDGE SOLOMON:  Anything else?

		MS. REINDEL:  Thank you.  Oh, I do have another other question.  When
you -- some of you mentioned some health effects from, you think from
being at work.  When you are not at work, do you feel better?  Like if
you take a day off of work or you are away from work for a little period
of time, do you -- do your symptoms go away or lessen?

		MR. MENDOZA:  So in my personal experience, I worked for a long time
in construction.  Since I came here, I worked for about two to three
years and then I was exposed to dust.  And, again, often the employer
won't provide masks, so if you don't know how to protect yourself, you
don't know the risks, then you don't notice when these problems start to
arise.

		And so I think in my own case, if I hadn't started to notice that I
was having these problems, if I hadn't gone to the doctor, I don't know
what would have happened to me.  But I, personally, don't think that if
somebody who has these issues stops working for six months that those
issues are just going to go away.

		And I just wanted to say also I have friends who have worked for a
long time, who have been exposed to these risks, who go home to their
countries and then they are not able to enjoy all of what they worked
for because they pass away from this.  They die from this.  And so
that's why I think that we really need this change.  We need the new
OSHA protections because we are a huge part of the labor force here.
And we are people, just like anyone else, and we deserve to have good
health just like anybody else.

		MS. REINDEL:  Okay, thank you very much.

		MS. RYDER:  For the record, I just want to note that was Mr. Mendoza
speaking on the last two responses.

		JUDGE SOLOMON:  That's correct.  Okay.

		MS. RYDER:  Sure.  Dave?

		JUDGE SOLOMON:  Mr. O'Connor?

		MR. O'CONNOR:  Yes, I have a few questions.  Could you tell me about
your, from your experience and your knowledge, the construction projects
that you have been involved in where dry cutting is performed without
proper respiratory protection, are these small isolated operations, or
are these larger operations involving a lot of people in big cities or
is it a combination?

		MR. TREJO:  The experience that I've had doing dry cutting, there were
a lot of companies involved and a lot of workers.  It was in the
construction of a hotel in New York.  And so, again, the supervisor, the
boss at this site made us use dry cutting.

		My experience using wet cutting has been more in construction, like I
said, when we have just put in a new ceiling and so the boss doesn't
want us to get the ceiling dirty.  But in the case of the hotel, since
what we were cutting was in the ceramics, so they weren't worried about
there being any issue with getting things dirty.

		I have also done work dry cutting where we were outdoors in open air
and the only people who were affected were ourselves.

		MS. CASILLAS-PABELLON:  This is Marien.  One of the, especially in New
Jersey, there is a combination of residential construction and a lot of
commercial as well.  Workers move between the two states of New York and
New Jersey.  Especially now, after the storm, there is a lot -- after
Sandy storm, there is a lot of need to rebuild really fast.  So a lot of
these controls will be really helpful and also makes the combination of
the places they are working at, because there is a lot of residential
areas, there is a lot of neighborhoods that are not isolated.  And then
you're going to have commercial spaces, as well.

		MR. O'CONNOR:  From your experience when you have been performing dry
cutting and other dry operations, has there been some compelling reason
that wet methods could not have been used?  Would it have been possible
to use wet methods?

		I know we've heard people in these proceedings say in some instances
they can't use wet methods in very cold weather because the water will
freeze.  Is that your experience?  Has there been some reason that you
have been prevented or could water have been used in those cutting
operations?

		MR. TREJO:  No.  In the instances that I am talking about where we
used dry cutting, the boss didn't do it because he didn't buy the
machinery, but we could have done wet cutting.

		MR. O'CONNOR:  Thank you.  And I just wanted to get a sense as well of
the duration of time that workers are typically spending with a
particular employer.  Is this a matter of days, weeks, a longer period
of time, or does it vary?

		MS. CASILLAS-PABELLON:  It depends.  There are going to be workers are
going to be with the same, a single employer for just that day or two to
three days.  And then you're going to have construction workers that
usually are going to have long-term employment with a specific
contractor.  It could be argued that then the jobs are -- the exposure
is going to be less because they are going to change from employer to
employer, but at the same time they are doing the same task every day
most of the times.  Just what is changing is the employer who hired you.

		MR. O'CONNOR:  Okay.  And one more question.  I understand through New
Labor you are providing training to workers.  But absent the training
provided by New Labor, are the employers, themselves, providing any
training to workers on the hazards of silica?

		MR. TREJO:  No.

		MS. CASILLAS-PABELLON:  In our experience -- this is Marien -- I'm
sorry.

		MR. TREJO:  No.  New Labor sometimes gets funding to be able to pay us
to do these trainings.  Other times, we do it for free.  But in my
experience, I have never seen an employer pay for these trainings.

		MS. CASILLAS-PABELLON:  This is Marien Casillas.  One of the things
that is going to depend, we have done outreach to employers in the past,
so we do the training for their workforce, for their crews.  Also, in
times where they have been cited for any violations of health and
safety, we do the trainings because we have a good relationship with our
regions, so we are able to provide that.

		But, at the same time, there is very few employers who will provide
this training to the workers.  So I think if they -- there is a standard
that force them to do so, then our members and the workers that we talk
to will be in a better position to demand this training and at the same
time replicated it.  It's really scarce.  There is not much training
provided by employers.

		We do have had employers that have requested training, but it is when
they need the OSHA 10 card to do the job in New York, because if they
don't have the OSHA 10 card for their workers, they cannot do the job.

		MR. O'CONNOR:  Thank you.

		MS. CASILLAS-PABELLON:  You're welcome.

		MS. IANNUCCI:  Good afternoon.  This is Annette Iannucci.  I think it
was Mr. Montrejo earlier who started talking about concerns about
results of medical exams going to his employer.  Is that correct?  Is it
Montrejo?

		THE INTERPRETER:  Trejo.

		MR. TREJO:  Yes.

		MS. IANNUCCI:  Could you please give us some more information of what
your concerns are?

		MR. TREJO:  My concerns, well, firstly, I don't think that the boss
has any reason to know what's going on with your health.  If you're
sick, he knows that this illness is something that could get worse and
so you are likely to be fired.  And the boss also knows that if this
happens that you could sue him.  And so then he is going to try and
protect himself against being sued.  And so at the end of the day, it's
the worker who ends up being negatively impacted by this.

		MS. IANNUCCI:  Okay, thank you.  One more question and this is
probably difficult and you may not have an answer to this right now, but
if maybe you could think about it and let us know when you submit post
hearing comments.  This has to do with the short-term assignments.  As
you said earlier, sometimes you're only with a certain employer for
days.  And we've gotten comments that it would be very difficult to
administer medical surveillance under those circumstances.  So I was
wondering if you agree or any ideas you might have for being able to
make sure that all these workers get medical surveillance.

		MS. CASILLAS-PABELLON:  This is Marien Casillas-Pabellon.  You are
right, that is a hard question.  But I think something that we have been
able to do and probably community organizations could help out is in
terms of keeping track of who the employers are.  That's something that
we have been doing for the purposes of other regulations like wage and
hour and stuff like that, in the past.  And it has been effective for us
to then get the workers to identify who the employer is.

		Even though sometimes you are hired, the workers are hired for a short
period of time, the employers will visit the same places to hire the
workers over and over again, and you may have the chance to be rehired
by that employer at some point.

		I know it's really hard to keep track.  But at the same time, there
could be also some suggestions in terms of mapping who are hiring in
those places and kind if figure it out from that way.

		I think also the way when the workers go to look for jobs, which are
different corners, a lot of worker centers and community organizations
have mapped where these corners or shape-ups are located at.  That could
help also to offer an idea of where the workers are located and who is
hiring there, and in that way being able to track it.

		If I could have another suggestion, I would like to talk to other
worker centers and networks that we work in terms of suggestions, and we
will love to submit it in the next couple of days.

		MS. IANNUCCI:  Thank you very much.  We'd really appreciate that.
Thank you.  And that's it for me.

		MR. O'CONNOR:  OSHA would like to than the panel for testifying this
afternoon.

		JUDGE SOLOMON:  Let me ask, I want to ask a couple of questions.  I
think the interest of justice requires that I ask these questions.  So
just to expedite things, Ms. Casillas, do you know whether these
workers are paid through a labor pool or a hiring hall?

		MS. CASILLAS-PABELLON:  No, they are not being hired through a hiring
hall.  There is just shape-ups on the corner of the street.

		JUDGE SOLOMON:  What about a labor pool?

		MS. CASILLAS-PABELLON:  A labor pool?  I don't know that.

		JUDGE SOLOMON:  When they get paid, were they actually paid by the
contractor or do they get, you know, like a 1099 from some other entity
other than the contractor?

		MS. CASILLAS-PABELLON:  No, they don't get all that stuff.  They are
going to get -- oh, I'm sorry, I didn't mean to sound funny.  But they
will actually either get paid in cash or they are going to get a check
that might bounce or personal checks that are not necessarily companies.

		JUDGE SOLOMON:  Okay.

		MS. CASILLAS-PABELLON:  There are companies that do pay --

		JUDGE SOLOMON:  The technical term for this, at least in Miami, is
catching a break.

		MS. CASILLAS-PABELLON:  Catching a break.

		JUDGE SOLOMON:  Catching a break.  They go to a corner and somebody
picks them up.  So it's all under the table.  There are no records being
kept?

		MS. CASILLAS-PABELLON:  No, there is not a contract.  It's really
difficult, yeah.

		JUDGE SOLOMON:  Okay.  Do you know whether any of these jobs are in
public buildings?

		MS. CASILLAS-PABELLON:  Yes, they are.  A lot of -- one of the issues
that we are trying to deal with is how to make sure that workers are
paid prevailing wage, yeah.

		JUDGE SOLOMON:  What I mean by public buildings are government
buildings, especially the federal government.  Do you know what --

		MS. CASILLAS-PABELLON:  Yes.

		JUDGE SOLOMON:  Okay.  Are you able -- do you have a list of these
buildings that you could provide to OSHA?

		MS. CASILLAS-PABELLON:  Well, not right now, but we are able to talk
to our members and produce it.

		JUDGE SOLOMON:  Okay.  I don't have any questions.  Does anybody have
any questions based on what I asked?

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

		JUDGE SOLOMON:  Okay, muchas gracias.

		MS. RYDER:  Thank you very much.  And if you want to submit, I know we
didn't get through your whole testimony, Mr. Trejo, but if you have
written remarks that you want to submit, we definitely encourage you to
do that.

		MS. CASILLAS-PABELLON:  We would like to translate it, if that is
okay.

		MS. RYDER:  Yeah, that would be great.

		MS. CASILLAS-PABELLON:  And then have it to you.

		MS. RYDER:  Okay, thank you.

		MS. CASILLAS-PABELLON:  Gracias.  Thank you.

		JUDGE SOLOMON:  Okay, so let's go off the record for a second.

		(Off the record at 6:04 p.m.)

		(On the record.)

		JUDGE SOLOMON:  We're back on the record.  So one at a time, would you
please state your names?

		MR. ARMENDARIZ:  My name is Santos Armendariz.  I am from Houston.
And I have seven years working on construction.

		JUDGE SOLOMON:  Just your names for the time being.

		MR. GRANADOS:  My name is Jose Granados from Houston, and I work in
construction.

		MR. HERNANDEZ:  Good afternoon.  My name is Santiago Hernandez.  I am
from Mexico, and I live in Philadelphia.

		JUDGE SOLOMON:  Okay.  So who wants to go first?  Okay, so what do you
have to say?

		MR. ARMENDARIZ:  My name is Santos Armendariz, and I've been working
in construction for seven years.  And what I'm going to share with you
today is basically what I think is the reality for us as workers.

		So the reality, my experience in terms of what happens on the job
sites, I worked for five years in concrete, sheet rock.  Last year, I
was working on carpentry.  I have also worked with granite and in
building kitchens.

		And in the last year when I was working for this company that builds
kitchens, we all worked in the same building.  And this is similar to
how it is done, I think, with most small companies.  So we are the
workers who were doing the carpentry, the assembly pieces.  We were
working close to those workers who were working with granite.

		And so all of the workers here, really nobody ever told us that we had
to use adequate safety measures.  We would use small face masks, but the
boss never told us about any of the problems that we could encounter
from working either with or next to granite.

		We constantly had to be cleaning off our safety glasses.  Our masks
would actually change color because of all of the dust that was
accumulating, the granite dust.  And at the end of the workday, when we
would blow our nose, it was really just an exaggerated amount of dust
that we had.

		In January of this year, I went to the organization Fe y Justicia,
Faith and Justice, in Houston, and I received a training about silica.
And there was a question that came up there, which is why were we not
informed about this previously.  The company never did any kind of exam
when I started, while I was working there, or when I left.  And the
consequences of this can be felt over 5 or 10 or more years.  And I am
speaking about my own experience, but this is the case of an infinite
number of workers, at least in the state of Texas.

		And I know a lot of workers who work for small subcontractors, and
basically they're told you have to get the job done and so cut the
granite or cut whatever material however you can.

		And so what I think the solution here is that I think it's really
important that workers need to be educated about this.  And I think that
the boss or the subcontractor needs to -- is responsible for and needs
to be required to educate their workers about this.  And that's it.

		JUDGE SOLOMON:  Okay, thank you.  And next?

		MR. GRANADOS:  My name is Jose Granados.  I am from El Salvador, and I
came to the United States 15 years ago.  I have been working in
construction for about 12 years.  I came here with the idea of seeking a
better life.  And I think despite all of the risks that I have faced
working in construction that I have really come to give myself over to
this work.

		And so I started going to the workers' center and I received classes,
trainings about OSHA regulations.  And so the company will require that
we use hardhats and safety glasses, but they don't require using masks
or respirators.

		And so through these classes, you know, I have learned what all things
we're supposed to be doing.  I've seen sometimes what I'll do is I'll
use a wet handkerchief.  I'll wet a handkerchief, and I'll tie it onto
my face over my nose and my mouth, especially, you know, sometimes when
I'm working cutting brick.  There will be just lots and lots of dust, a
cloud of dust, brick dust around us.  And it's not just affecting those
of us who are cutting brick.  It's affecting everybody around.  It's
affecting those people who are working in sheet rock, who are working in
cement, all different materials.

		When my co-workers are mixing cement, you know, they will be pouring
the sand in and then they'll pour in a whole bag of cement, but they are
doing this and it's dry.  And so then there will be a bunch of air or
wind, and all of that dust comes up and we are breathing that dust.  And
it's really poisonous.

		And I'll tell them put water on it, you know, based on what I've
learned what we should do, also, you should put water on that.  And
they'll say, no, you be quiet, because if the boss hears us, then he's
just going to fire all of us.

		And I think that there needs to be a punishment for employers who
don't do this and that this is something that they should have this
information as well.  They should have to take OSHA classes, not just us
as workers.  And when they have this information, then they should be
required to pass the information onto their workers, make sure their
workers know about the protections and so that we're not being poisoned
by this.

		And so like a month ago, you know, it was really cold.  And so what
the boss did is he wanted us to speed up the work that we were doing,
and so he gave us a bunch of tubes of caulking to seal the bricks
outside, the exterior of the bricks.  And since it was freezing cold
outside, what we had to do was actually melt the caulking.  And so we
were breathing all of the fumes from doing that.  And when I got home
that day, I had a fever.

		And so I told my boss that maybe that's why I had gotten sick.  And I
went to the clinic and I haven't gotten the results yet from the tests
that I did at the clinic.  They're going to give them to me on the 7th.
But my boss said, oh, no, you know, how is that going to make you sick,
of course not, because all he cares about is getting the job done.  He
doesn't care about the health and safety of his workers.

		And that's the reason that I am here today to ask you all, since you
all are the ones who pass the laws or who sign off, to make sure that
OSHA protects us because I believe that OSHA can protect us.  Thank you.

		JUDGE SOLOMON:  And next?

		MR. HERNANDEZ:  My name is Santiago.  I am from Mexico.  And I'm going
to talk to you a little bit about my experience working here in America.
 I have worked for a very long time in construction.  I worked in
construction when I lived in Mexico, and I did a lot of training about