to the extent they extend the time that is required to do a job, OSHA
figures them as applying as increasing labor costs only.  Well, to the
extent that the job takes longer to do because using the control makes
it take longer, that increases the equipment cost also.

		Let's say it takes a half-hour longer to do the masonry job because of
the controls.  Well, that means that you need to have the equipment for
another half hour.  You need to have the control equipment available.
So productivity penalty applies not just to the labor fraction of job
cost, but it applies in all cases to the equipment fraction of job cost,
also.

		Point 6, OSHA assumes that -- basically, OSHA starts out by
estimating costs to apply controls in all instances when the
silica-generating job is done.  That's the way they start out.  And they
calculate the cost in that $11 million figure that I put on the table
earlier is for all instances, all the FTE instances when carpenters
drill holes.

		But then in a subsequent step in the analysis, OSHA says that, well,
some fraction of the times that job was performed, in fact, the worker
was not overexposed relative to the PEL and he wouldn't have needed to
apply controls then.

		And so what OSHA does technically in the analysis is let's say that 50
percent of the exposure samples when carpenters are drilling holes are
below the proposed PEL and 50 percent are above, OSHA calculates the
cost as if you were going to control things every time that carpenters
drill, and then they drop out 50 percent of those costs because, oh,
well, after the fact, you see, half the time the carpenters did the job,
they did it so infrequently during the course of the day that their 8
hour time weighted average was not above 50, and so those shouldn't have
needed to be controlled.

		Well, that's not the way it works.  Basically, what I have said is
that according to Table 1, if the carpenter is going to drill the hole,
he needs to use that control.  That's one way of looking at it.  He
needs to use it all the time when he performs that job, even when he
performed it infrequently enough during the day so that it was below the
PEL.  He needs to use that control all the time, if you take the Table 1
approach.

		If you take a different approach, if you think about it in a different
way, think about it as essentially the -- think about it as what the
prudent employer will do.  The employer who is sending this carpenter
out to perform the work, he doesn't know, the employer doesn't know
tomorrow whether the carpenter is going to -- how many holes he is
going to drill.  He doesn't know whether he's going to be working on the
third floor where there is no concrete or in the basement where there is
concrete.  He doesn't know.

		He sends them out with the saw, with the controls, every day on the
chance, on the likelihood that maybe he is going to drill holes that
day, maybe he isn't.  And all of the controls work this way.  So the
prudent employer is going to equip his employees with the tools and the
controls to do the job the right way every time they do it because the
employer doesn't know whether they are going to do it tomorrow long
enough to exceed the PEL.

		They don't know -- the employer does not know whether the particular
concrete that's in this home is high silica or low silica, and whether
if the guy spends an hour drilling holes, he is going to be above or
below the PEL, because it's a function of the silica content of the
concrete.  The employer doesn't know if the job is outdoors, whether the
wind is going to be blowing and dispersing the silica or not.

		Essentially, exposure is almost completely unpredictable in advance.
Exposure can vary over many orders of magnitude across a range of
factors that are unknowable in advance.  Is the guy going to work for
two minutes on this job or eight hours?  Is he going to do it -- I
don't really know in advance.  Is the silica content of the stuff he's
working on going to be high or low?  I don't know in advance.  What is
the weather going to be?  Is it going to be raining?  Is it going to
keep the silica down?  I don't know in advance.

		The prudent employer and Table 1 both say if this is the right way to
perform the job, this is the way you do it every time.  And you've got
to -- OSHA should cost it as if it will be done every time.  So looking
after the fact and saying, oh, half the time they weren't exposed above
the PEL, so we're going to wipe out the cost that we calculated for
that, I think -- I assert that that's incorrect.  That's not the way
the world works.

		Point 7, I'm going to skip over this one.  This one we're going to
talk about further in the general industry testimony on Wednesday.  I
think OSHA knows what this issue is.  And essentially the question is
whether OSHA counts the costs for protecting workers down to the
existing standard as part of the costs of the regulation that are to be
analyzed.  And, arguably, the existing standard is what requires
protection for all workers who are exposed at above 250 µg/m3.

		The addition of the revised standard essentially reduces the PEL from
250 down to 50.  And the incremental impact of the PEL is to require
controls for those workers who are exposed at between 250 and 50.  Well,
that's the argument for the position that OSHA has taken.  And, you
know, there are some analytical reasons for assuming a baseline of that
sort and doing the analysis that way.

		I argue that when you are doing economic impact analysis and you are
attempting to determine whether this standard is economically feasible
for the industry to comply with, you have to look at all the costs the
industry is going to bear, whether they are due to additional efforts
needed to comply with the existing standard or the incremental efforts
to comply with the tighter standard.

		So to really assess what the impacts, whether employers are going to
be able to comply or not, and what the impacts of the compliance cost
will be, I contend for economic impact analysis you need to look at full
cost.

		Very quickly, Point Number 8, I have been talking exclusively about
engineering control costs thus far.  But I think some improvements are
warranted in OSHA's analysis for respirators and ancillary requirements.
 We'll have quite a bit of detail on this in our final report.

		But a couple of highlights are respirators work somewhat like controls
in that you don't equip FTEs with controls.  You don't equip FTEs with
respirators.  A worker who is going to need a respirator potentially at
some point during the year has to have his own fitted respirator.  And
respirator costs ought to be figured based upon the number of workers
who may do the jobs that require -- that potentially require
respirators.  So cost respirators based upon number of workers, not
number of FTEs.

		OSHA discounts respirator costs because of based upon an old survey.
I contend the old survey is quite inapplicable to the degree to which
respirators ought to be being assumed to being already provided.  And,
similarly, we've got some other comments on exposure assessment and
other ancillary costs.

		Point Number 9, essentially, OSHA has counted costs for the employers
that are directly covered by the OSH Act and the workers that are in the
employ of the employers that are covered by the Act.  But, in fact,
there are another 2½ million construction workers who are
self-employed, who aren't covered by the OSH Act, who arguably would not
be covered by this regulation.

		But, in point of fact, I believe there will be extremely strong
pressures on self-employed construction workers to do their work exactly
as is specified for construction workers who are covered by the Act in
Table 1.  And there are a variety of rationales that I put up here as to
why self-employed workers will have to end up conducting their
construction tasks consistent with Table 1, and OSHA ought to count the
cost as a cost of the regulation.  The regulation will induce these
workers, self-employed workers to perform their work in this manner.
They will incur costs.  And those costs ought to be a part of the
analysis also.

		So on Point 1, I added 1½ million workers, who were employees, who
were excluded from the analysis because they conduct trades and
activities that for some reason OSHA didn't consider.  Well, here is
another 2½ million workers that OSHA hasn't covered in the analysis
that arguably ought to be covered in the analysis.

		If I had more time, I would respond to -- I will take the time to do
it.  There was some discussion in the AFL-CIO testimony last week in
which an economist witness for the AFL-CIO said that OSHA had
over-costed the regulation because OSHA has vastly overestimated the
number of workers to whom the regulation will apply.  And the commenter
was referring to a number of 13 million workers.

		Anyway, OSHA knows that that number, 13 million, is not what they
used actually for the cost analysis.  That is a red herring number.
And, in fact, OSHA, in my view, has greatly underestimated the number of
workers to whom this regulation will apply, as I have said.

		Okay.  Let me get very quickly to -- how much time do I have left
now?

		JUDGE SOLOMON:  You have six minutes.

		MR. SESSIONS:  Six minutes, okay.

		MR. HAMMOCK:  Your Honor, also as I have indicated, the folks in the
afternoon will take less time.

		JUDGE SOLOMON:  Yes, I understand that.

		MS. KRAMER:  Your Honor?

		JUDGE SOLOMON:  Yes?

		MS. KRAMER:  We're happy to go to 12:30.  We would prefer to have an
opportunity to hear what they have to say rather than to rush to lunch.

		JUDGE SOLOMON:  Okay.

		MR. SESSIONS:  I appreciate that.  I'll still try to be quick.  Okay,
so this is sort of Topic Number 2 is where do we stand in estimating
what the rule will cost based upon these modifications that we are
suggesting to the cost analysis.  And our bottom line is right now we're
at $3.2 billion a year as the cost of the regulation relative to OSHA's
$511 million.  So we're at about a factor of 6 higher.  And part of that
is because we think you've got to add in a lot more workers.  Part of it
is because we think the productivity penalties are higher.  Part of
it -- a large part of it is because we think that the approach to
costing the engineering controls is inappropriate FTE based, rather than
tool based, etc.  Anyway, we'll provide more detail on that.

		Here is, and this is an eye test for those in the back room, and
everybody fails this, basically, this is more detail on the OSHA's $511
million a year estimate versus our $3.2 billion a year estimate.  And if
I were going to spend some time going through it, this is detail by
industry, and as you might expect, our re-costing increases OSHA's cost
estimates very substantially for the industries that employ a lot of the
omitted workers.

		So for the industries that employ plumbers and electricians, for
example, we drastically increase OSHA's cost estimate for that industry,
whereas for an industry where OSHA, in fact, captured most of the
workers, we don't increase anywhere near as much estimates for that.
So, again, there will be more detail on that in the future.

		Okay, let me turn to my topic Number 3 which is, okay, so we spent a
long time on estimating the cost, what do you do with the cost?
Basically, one is trying to estimate cost in order to assess whether the
regulation is economically feasible.  And the question is in some sense
how affordable are these costs for the industries that are going to have
to bear them?  What are the impacts going to be when the industries
attempt to bear these costs?

		And really the key step in OSHA's analysis in assessing economic
feasibility is what I call these benchmark comparisons where you, on an
industry-by-industry basis, you compare the estimated compliance cost
against the revenues for the industry and against the profits for the
industry.  And OSHA's rule of thumb is that if the costs exceed one
percent of revenues, then there is an issue that is worth looking
further at.  If the costs exceed 10 percent of the industry's profits,
then there is an issue that is worth looking further at.

		If costs are below both of these two benchmarks, OSHA regards that I
think reasonably as a good case that the regulation is economically
achievable.  If it exceeds these benchmarks, it may not be economically
achievable and a lot further analysis is worth doing.

		So I agree with this fundamental approach.  It makes good sense.  OSHA
has applied it to any number of other regulations.  It's an appropriate
approach.

		Okay, in doing this analysis, well, obviously, we've got some
differences of opinion with OSHA on what the cost numbers are that you
put into this analysis.  We've got some differences of opinion on
whether you put into this analysis the incremental cost that OSHA has
estimated or the full cost, whether you in a sense take off the table
the cost that it will take employers to get to compliance with the
current regulation or not.  But we've got further concerns beyond that.

		And one of our major concerns that I briefly alluded to in an initial
question of the OSHA staff on the first day of the hearings is
essentially OSHA sort of assembles data with which to estimate what the
affected industry's revenues and costs are.  And there is a lot of
judgment and analysis that goes into determining what data to assemble
with which to portray the industries revenues and costs.  And I contend
that OSHA ought to think a lot more about that and that the data on
industries' revenues and costs that OSHA has put on the table absolutely
are not, are not at all representative of the construction industry's
ability to bear these costs in the time frame over which the
construction industry is going to have to comply with this regulation.

		So OSHA's data, the revenue data comes from the construction industry
from the year 2006, so OSHA is saying that construction industry
revenues as of 2006 are representative of the revenues the industry will
have when they need to bear these costs.  And OSHA took profits data
from the years 2000 through 2006, and OSHA contends that that data is
representative.

		And OSHA has said, rightfully, that in answer to my question the other
day, that they will update this data, as they always do, and that they,
they didn't say this but I believe they were limited to the data that
was available at the time the ERG did the economic feasibility analysis,
which was back in 2008 or so, and only data through 2006 or so was
available, and that's why OSHA used that data.

		Well, that data is wholly inadequate, completely misleading in terms
of representing the current state of affairs for the construction
industry.  And I contend that OSHA will update the data, but that the
new data will be so sufficiently different that the nature and the
results of the analysis will be sufficiently different that OSHA ought
to think very hard about providing this data and the notice of data
availability so that the public can comment on it.

		There are a lot of sophisticated analytical issues in how one measures
the profits of industries.  There are a lot of very sophisticated
questions about what data source one chooses for the profits of
industries.  And there are a lot of tricky questions about what data
source one chooses for estimating the revenues of industries.  And OSHA
will make a number of these choices in updating and/or choosing
different data sources for this data, and those are extremely important
choices in assessing the economic feasibility ultimately of the
regulation.  And I contend that they are sufficiently important to give
the public a crack at them.

		So here is just my single chart on why 2006 is not a representative
year for the construction industry.  And if anybody sees the -- this is
the total national amount that is spent on all forms of construction in
the United States.  And it is in -- it's actually in nominal dollars,
not constant dollars.  If you put it in constant dollars, it would look
a little bit different.  But the peak, the highest level of construction
spending ever in the nation, turns out to be 2006.  So OSHA has chosen
2006 as the representative year for revenues, and a longer time frame,
2000 to 2006, as the representative year for profits.  That is the best
year in history.

		Not only does 2006 sort of not reflect anything having to do with the
recession, and everybody knows about the housing recession and the
construction recession, but it's just -- it's a non-representative
year.

		A couple of other methodological issues in doing this comparison of
revenues against profits.  First, there is a lot of flexibility in how
you define industry.  And there is no reason that industry, the
industries for which you assess economic feasibility need to be defined
as OSHA did.  OSHA, in particular, for a variety of reasons which I
understand, analyzed a series of four-digit NAICS industries.  I regard
them as being aggregates, large aggregates that OSHA's four-digit
industries include a lot of diverse smaller industries.

		And, in fact, in the analysis for general industry, OSHA used in many
instances six-digit NAICS industries as the industries that are
evaluated.  And if OSHA were to use six-digit industries for
construction, you would get some quite different answers than when you
use four-digit industries.

		One example, one of the particular industries, a four-digit industry
is foundation structure and building exterior contractors.  Now, that is
a lot of different construction trades in which one six-digit industry
is something called masonry contractors.  In the structure and building
contractors are another six-digit industry which is framing contractors.
 These are the guys working with wood.

		Well, the net result is by looking at a four-digit industry, OSHA has
combined the industry that does carpenter framing, which almost has
nothing to do with silica, with the masonry contractors, which has a
huge amount to do with silica.  And in a sense OSHA has diluted the
impact that will occur on the masonry contractors by looking at the
aggregate that includes a lot of non-silica related industries and
tasks.

		There is no reason that OSHA needs to define it this way.  And I
contend that if OSHA looked at masonry contractors, that particular
six-digit industry, OSHA would get ratios of compliance costs to
revenues and profits much higher than the benchmarks, whereas looking at
the four-digit industry as a whole, you may get answers that are much
lower.

		Now, you can also, there is no reason also that OSHA couldn't define
industries in other ways that don't correspond with the NAICS
definitions.  In fact, arguably, you can say that there is an industry
called demolition contractors.  There is a trade association for them.
That's an industry.  And OSHA could analyze them by analyzing model
firms in that industry.  EPA does their economic analysis not on four
and six-digit NAICS industries, but they make model plants left and
right.  That is what most of what EPA does in economic impact analysis.
And you can make model employers among demolition contractors.

		You can make model employers among segmented pavers.  You can make a
model employer, model firms.  You can make small model firms, large
model firms.  Among concrete sawing and drilling, there is a trade
association for them, also.  Tile roofing, there is a trade association
for them.  Each of these are activities that you can call industries
that will be very significantly affected by this regulation because they
include a concentration of activities that involve working on
silica-containing materials, as opposed to being diluted across an awful
lot of other construction industries that don't have much to do with
silica.

		So work on a much finer grain analysis on industries, and we are going
to provide some of this for the final report.

		I guess the other point in this comparison of cost against revenues,
OSHA does not estimate the costs that the construction industry will
bear because of the general industry regulation.  In fact, the general
industry regulation, most of the affected industries in the general
industry regulation make construction products, bricks, block.  Some
don't; foundries don't make much, but most of them do.  Porcelain,
enameling, plumbing fixtures, most of the revenues, value-added, value
of product from the general industries is construction products.  And
the construction industry will bear costs because those general
industries bear compliance cost because of that part of the regulation.

		And you can make whatever assumptions you want about cost
pass-through, you know; maybe a reasonable assumption might be half the
cost borne by the general industries will get passed through to the
construction industries, but that ought to be a part of the economic
impact analysis for the impact of the regulation on the construction
sector.

		Another, this is going farther afield and I'm not sure whether I would
recommend this, but there is a history of MSHA adopting whatever
standards, whatever PELs OSHA promulgates.  And if MSHA adopts a
crystalline silica standard for the mining industries that matches the
construction and general industry PELs, the mining companies that
provide the raw materials, the clay, the stone, etc., that go into
construction materials that the general industry makes, the mining
industries will incur additional costs.

		And you might well, if you were to do the analysis consistent with the
presidential executive order that suggests doing sort of comprehensive
regulatory impact analysis, if you were to consider all the regulations
that affect this industry or all the regulatory impacts that will ensue
from this proposed regulation if it were adopted, arguably the MSHA
costs ought to come into it, too.

		JUDGE SOLOMON:  So that is 12:30.  We're going to go off the record
for an hour, and we'll be back at 1:30.

		(Whereupon, at 12:30 p.m., a lunch recess was taken.)

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

(1:30 p.m.)

		JUDGE SOLOMON:  Okay, we are back on the record for the afternoon
session.  We have the Construction Industry Safety Coalition again.
Mr. Hammock, would you introduce everyone, please?

		MR. HAMMOCK:  Thank you, Your Honor.  To my left is Stu Sessions from
Environomics, Inc., who spoke this morning regarding some of the
economic questions and issues that the coalition has.  And then to my
right, I have Kellie Vazquez, from Holes, Incorporated, who will be
speaking on a variety of issues, and I can introduce her more fully.
And then Kevin Turner, as well, for the record, from Hunt Construction
Group.

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

		MS. RYDER:  Sure.  My name is Anne Ryder from the Solicitor's office.

		JUDGE SOLOMON:  Okay.  I received two documents.  Do you have these
documents?

		MS. RYDER:  Yes.

		JUDGE SOLOMON:  Mr. Hammock, are you going to move these documents?

		MR. HAMMOCK:  Yes, Your Honor.  I'd ask that they both be moved into
the record of the hearing.

		MS. RYDER:  Okay.  Is Ms. Vazquez testifying first?

		MR. HAMMOCK:  Yes.

		MS. RYDER:  Okay.  I'll mark her testimony, Hearing Exhibit 41, and
Mr. Turner's, Hearing Exhibit 42.

		JUDGE SOLOMON:  Okay.  Both are admitted into evidence.

(Whereupon, the documents referred to as Hearing Exhibits 41 and 42 were
marked and received in evidence.)

		JUDGE SOLOMON:  Okay, proceed.

		MR. HAMMOCK:  Thank you, Your Honor.  And thank you, OSHA, for
allowing us some time in the morning to talk through a couple of areas
of concern that we have with the proposed rule.

		I wanted to preface the afternoon session by saying a couple of
things.  The first is to reiterate one of the things I said at the very
outset that the construction industry really does pose some significant
challenges I think obviously for employers with respect to controlling
crystalline silica, but also for OSHA.

		And one of the things that I think came out of the testimony that I
did this morning and Stu did was that we understand that OSHA needs to
make certain assumptions.  We understand what OSHA's burden is.  And we
also understand that it is very difficult to try to fulfill that burden
with respect to construction.

		And we have thrown out some potential different assumptions that can
be made that may be more realistic.  But let me just say that we
understand that there maybe is no right answer here.  It is a very
difficult situation.  And we appreciate you all listening to us and
thinking at least about what we are saying here with respect to some
contrary assumptions that can be made.

		JUDGE SOLOMON:  Now, we had some carryover from this morning.  We have
three hours attributed to this session?

		MR. HAMMOCK:  Correct.

		JUDGE SOLOMON:  Okay.  And then we will have questioning about both
the morning panel and the afternoon panel at the same time.

		MR. HAMMOCK:  And, Your Honor, from our perspective, the actual
testimony in the afternoon will not be a full three hours.  One person
could not attend, so we anticipate being able to hear questions before
then.

		JUDGE SOLOMON:  Okay, thank you.

		MR. HAMMOCK:  Okay.  To start the panel, I will just -- Stu Sessions
would like to discuss one final slide in his PowerPoint.  But before I
turn it over to him, I would like to introduce Kellie and Kevin a little
bit further.  These are folks that are members of two of the
associations that are participants in the Construction Industry Safety
Coalition.  We wanted to have them testify here because, unlike me and
unlike Stu, these are the people that really will have to do this if it
is proposed as finalized.

		Both of these individuals have tremendous experience in construction
safety, as well as with respect to silica.  They are really -- the
amount of experience that they have is really impressive, and so I hope
that what they can give you all is their perspective on folks that
really are going to be implementing this thing come the first day after
this becomes effective in the final rule and hopefully provide you that
sort of immediate feedback.

		But before we get to them, Stu, do you want to just finish up your
final slide on cost.

		MR. SESSIONS:  Yes.  I apologize for taking the stand again here
briefly, but I wanted to go over sort of my bottom line.  I said that
the comparison of compliance cost against the affected industries'
revenues and profits is really a key step in assessing economic
feasibility.  And this final slide actually shows the current state of
our analysis on this comparison of costs against revenues and profits.

		There are several columns here that show the comparison of, in
particular, compliance cost against profits as measured in several ways.
 We have done a little bit of work to redefine profits in a way that I
think more accurately reflects the current construction industry's
financial situation.  We haven't done any redefinition yet on revenues
for the construction industry, so the comparisons that are shown here
are of essentially compliance cost as both we and OSHA measure them
against profits as both we and OSHA measure them.  So there are two sets
of compliance costs, two sets of profit estimates, so four total
comparisons shown out in the right-hand set of columns of the matrix.

		You can't see the exact numbers, but all you have to look at is the
shaded numbers are instances in which the comparison shows one of OSHA's
aggregated industries exceeding the benchmark of 10 percent of profits.
So, essentially, if you see a cell in this matrix that is shaded, that
means a potential economic feasibility issue.

		Essentially, the second column of this table shows a comparison
between compliance costs as we estimate them for the affected industries
and profits for those industries as profits have been redefined somewhat
from the estimates that OSHA generated.  And, on that basis, 5 of the 10
affected industries will bear compliance costs that exceed and well
exceed 10 percent of the profits.

		So, basically, the bottom line is that conclusions with regard to
economic feasibility depend very much on what compliance costs you
measure and how OSHA estimates compliance costs, and they depend very
much on exactly what revenues and profits OSHA estimates.  And we
provided suggestions about that, also.

		The answers in making those comparisons can range anywhere between the
two right-hand columns are OSHA's comparisons in which none of these
industries exceed the benchmarks.  The two left-hand columns are ours,
in which in one of the columns half of the industries exceeded.

		So there is a lot at stake in getting this part of the analysis done
as accurately and as fairly as possible.

		JUDGE SOLOMON:  Go ahead.

		MR. HAMMOCK:  Thank you, Your Honor.  So as we discussed, we have sort
of broken up our presentation into different areas.  We have talked
about the process areas, talked about the technological feasibility
areas, talked about the economic feasibility issue, and now we want to
talk a little bit about the provisions as we see them, what makes sense
in the construction environment and what might.

		The first person will be Kellie Vazquez.  As I mentioned, she is Vice
President of Holes, Incorporated.  And she has really been a leader in
the issue of silica in the construction industry for many years, as she
will explain.

		It's interesting I have gotten to know her through the coalition
process.  I have learned that Holes, they're in the south.  They're in
Texas.  They, as a policy, whenever they can, they always cut wet.  And
so she has a lot of good experience about the effectiveness of that
vis-à-vis the permissible exposure limit.  And she is going to be
spending a lot of time talking about Table 1 and what that might mean to
her.

		I also will say, Your Honor, that her mom and 13-year-old daughter are
in the audience, so the questions have to be nice to Kellie.  Okay,
Kellie, thanks.

		MS. VAZQUEZ:  Can everyone hear me?  I'm not used to speaking in a
microphone.  Thank you.  Thank you for providing me the opportunity to
testify today.  My name is Kellie Vazquez.  I am the Vice President of
Holes, Incorporated.  And I am a member of the Concrete Sawing and
Drilling Association.

		I am here to testify on OSHA's Notice of Proposed Rulemaking on
Occupational Exposure to Crystalline Silica on behalf of the
Construction Industry Safety Coalition.

		Before I discuss the proposal, I'd like to tell you a little bit about
my company and my experience.  Holes, Incorporated, is a family-owned
business that was started by my parents 42 years ago when they decided
to go into business for themselves.  Our employees perform an array of
concrete cutting, wall sawing, slab sawing, core drilling, concrete
breaking, demolition, and load and haul services.

		We have approximately 44 employees.  The average employee has been
with our company for 14 years.  And we have several employees that have
been with us for over 25 years.  We recognize that our employees are our
number one asset.  We could not do the work without them and they are a
part of my family.

		Holes, Incorporated, has been recognized as an industry leader in
safety, performing jobs internationally, in extremely challenging
environments.  We have been selected for these jobs for our safety
record.

		I want to emphasize all of this because my testimony today is based
not on hypotheticals, but on reality.  As the Vice President of Holes, I
am responsible for supervising our field operators and overseeing our
safety disease.  Over the last 10 years, I have had the honor of being
involved in various initiatives and have addressed exposure to
respirable crystalline silica.

		I participated in the SBREFA process when our CEO, my mother, Susan
Hollingsworth was a SBREFA panelist.  I was her helper in 2003 for this
rule.  And I was a member of the silica task force from 2003 to 2006.  I
also contributed and provided guidance for the ASTM standard on the
health requirements relating to occupational exposure to respirable
crystalline silica for construction and demolition activities.

		In addition, I have been a board member of the Concrete Sawing and
Drilling Association since 2009, and I have actively participated on
several committees including the safety committee and the training
committee.  As part of my membership with the CSDA, I provided guidance
and feedback with the CISC on the standard.

		Holes, Incorporated, has an aggressive silica exposure program.  To
the extent feasible, we do cut concrete wet.  We train all employees,
field operators, shop personnel, estimators, project managers, and
executives on the dangers of silica, and how to protect against harmful
exposures to this substance.

		We have learned that due to the ever-changing conditions on job sites,
and from job site to job site, one of the most important aspects of
employee training is comprehensively educating employees on recognizing
changing conditions on worksites and how these can affect silica
exposures.

		This proposed standard imposes a reduced PEL based on a hazard that is
not supported by evidence.  Since the 1970s, silica disease has been
decreasing.  To impose an action level of 25 on construction when
testing at that level is not technically reliable undercuts any attempt
by OSHA to construct a standard which could even be adhered to.

		In conference with OSHA during the SBREFA process, OSHA proposed three
levels to be considered for the PEL, remain at 100, 75, and 50.  At that
time, during that phone conference, OSHA said if the PEL were to be
reduced to 50, there would be no action level citing technical testing
feasibility.

		We have performed exposure monitoring for the tasks that our employees
perform.  We have historical data on all of our operations, and we base
the need for the respiratory protection on that data.  The testing we
have is on the tasks we perform, and the data includes information to
the extent possible on the environment, weather, ventilation, PPE, and
duration.

		As you could imagine, there are a range of task conditions, work
environments, and locations where we perform our work.  That makes
conducting exposure monitoring challenging.

		Exposure monitoring is also a cost for our company.  Currently, it is
a cost that we can afford.  But, as proposed in the standard, the cost
would greatly increase because the proposed standard requires additional
testing annually, quarterly, weekly; changes in the environment, our
personnel; changes to equipment and/or engineering controls.  This, in
effect, is continuous monitoring which will do very little to protect
the safety and health of construction workers.  Exposure monitoring
should be valid and remain applicable unless there has been a change in
the task equipment or engineering control.

		I will be spending a vast majority of my testimony today focusing on
Table 1 from a very practical perspective.  I have studied Table 1
extensively and discussed it with my fellow participants in the CISC.

		I understand what OSHA is trying to accomplish with Table 1.  And
while the CISC appreciates OSHA's attempt with Table 1 to correct a
performance-based tool for the use in construction that would in theory
make compliance simpler, we believe that Table 1, as proposed, misses
the mark for several reasons.

		As currently drafted, Table 1 is unworkable for most construction
employers.  And I can tell you with a strong degree of certainty if the
rule were to become final, Holes, Incorporated, would not implement
Table 1.  There are several reasons for this.

		First, employers will not use Table 1 due to the notes included in the
engineering and work practice control methods section of the table.
From my perspective, as someone who will need to review any final rule
to ensure we are fully in compliant with it, it is not clear from the
NPRM whether OSHA considers these notes to be required as part of
Table 1 and thus mandatory or whether these notes are merely provided
as suggestions.  The notes were not included in the SBREFA draft,
published over a decade ago; were not included in the draft given to
ACCSH a few years ago; and are such that compliance with Table 1 becomes
impossible.

		Let's assume for a second that the notes are mandatory.  The primary
obstacle to compliance in the notes relates to the requirement that
there be no visible dust admitted from a process after the introduction
of engineering control methods.  The CISC is concerned that essentially
what OSHA is proposing is a general dust rule rather than regulating
crystalline silica.

		While no visible dust is a lofty goal, it has no basis in reality in
the construction environment.  Rarely, if ever, will there be absolutely
no visible dust emitted from a silica-generating activity, even with the
use of wet methods or other engineering controls, or in the ambient air,
depending on weather on a job site.  I can tell you that from our
experience using wet methods in a variety of environments, it is almost
impossible for an employer to count on there being no visible dust
whatsoever when performing certain operations.

		Also, OSHA is assuming all visible dust contains silica and a
percentage of silica that could be dangerous if inhaled.  OSHA must make
sure that the protection methods included in the proposed standard are
based on verifiable studies that show effective solutions.  For certain
types of tools, such as grinders and other handheld pieces of equipment,
it is impossible to perform the work with the tool flush against the
surface being impacted.  At times, there may be a gap, that this will
mean some visible dust is emitted, even when local exhaust ventilation
or wet methods are utilized.

		For example, while using a portable masonry saw with a dustless
package, visible dust will be emitted during the initial cuts into the
concrete.  The blade guard, which encloses the blade and contains the
local exhaust ventilation system, will not touch the concrete until the
blade is buried to a certain depth into the concrete.  The gap, as
mentioned above, will allow visible dust to be emitted and leave
residual dust on the concrete you are cutting or grinding.  Any employer
that utilizes this piece of equipment or something similar will not be
able to use Table 1.

		For employers using wet methods, even attempting to meet the no
visible dust standard will require a tremendous amount of water.  Many
studies discussed in the technological feasibility analysis certainly
support this notion.  Such large amounts of water run counter to OSHA's
contractor's assessment that minimal water should be used to avoid
environmental contamination issues.

		The Agency contends that construction employers communicate any
environmental concerns by utilizing as little water as possible to
prevent accumulations from occurring or potentially damaging residential
or commercial buildings.  Even if utilizing only a little water will
effectively reduce exposures to below the proposed PEL, the CISC has
significant concerns that it will prevent all visible dust from being
emitted.

		Compliance with the specification is also made very difficult on a
multi-employer worksite where other employers are performing
silica-generating activities.  If one employer is conducting operations
where visible dust is being emitted perhaps because the employer has
opted not to follow Table 1, it will be a significant challenge for an
employer conducting operations alongside to demonstrate its dust control
methods did not emit any visible dust.

		I can also tell you from personal experience that performing
operations indoors makes it particularly challenging to perform a task
with no visible dust.  In addition, for those employees working indoors,
Table 1 requires sufficient ventilation be provided to prevent buildup
of visible airborne dust.  If one contractor has opted not to follow
Table 1 and is emitting visible dust, it would be extremely difficult
for a contractor using Table 1 to design and implement ventilation that
would prevent the buildup of visible dust.

		Even if there were times where a process could be controlled so that
no visible dust would be emitted, the requirement is so stringent that
CISC does not believe any construction employer will run the risk of
relying on Table 1 for compliance.  There are so many variables involved
in controlling silica-generating activities on any given day, an
employer could not guarantee that an activity will not generate at least
a little visible dust.

		There are other ambiguities and vague terms used throughout the table
that the CISC respectively asserts will eliminate Table 1 as a realistic
compliance option.

		Change water frequently to avoid silt buildup in water.  This
specification provides no guidance on how frequently water should be
changed or at what level silt buildup is acceptable.

		Ensure saw blade is not excessive worn.  This specification provides
no guidance on what excessively means.

		Cab is maintained as free as practicable from settled dust.  This
specification provides no guidance regarding the term as free as
practicable.

		Cab is air-conditioned and positive pressure is maintained.  This
specification does not account for the fact that few machines are
equipped with cabs with these specifications and enclosed cabs could
create problems with verbal communication and visible obstructions.

		Commercially available shrouds and dust collection systems.  This
specification eliminates specially manufactured products that may be
equally effective.

		Prevent wet slurry from accumulating.  This specification does not
define what it means by accumulation.

		With the specifications included in Table 1 and the ambiguity that
goes along with it, OSHA has unfortunately created a compliance option
that no construction employer will follow.  If an employer, for example,
developed a protocol for replacing blades with excessive wear, it could
still be subject to a citation from a compliance officer if the
compliance officer happened to hold a different view of the definition
of the word excessive.  And this reality applies to all the ambiguous
terms included in the specification in Table 1 of the proposal.

		Much of Table 1 requires employers to implement either wet methods or
local exhaust ventilations to be in compliance with its provisions.
There are times, however, where the nature of the work or the
environmental conditions make use of these control measures impossible.

		There are difficulties associated with cold temperatures and
introducing water into the construction environment.  OSHA recognizes
that water may not be able to be used in certain interior work.
Introducing water can also create other hazards, such as cutting tile on
roofs.

		CISC participating association members have identified other
situations where the use of wet methods or LEVs will not work.

		Selected demolition around or near operating electrical or other
sensitive equipment such as clean rooms for computer operations.

		Specifications for cleaning and sealing concrete joints often require
that no water be introduced to control the dust.  When water is
introduced to the cut line, compressed air must be used to blow the
water out and clean out the joint prior to sealing.

		Work when compacting pavers prevents the use of wet methods or vacuum
systems.

		Grinding existing striping to be repainted on roadways.

		Drilling anchor bolts into the vertical face of a concrete structure,
and removal of fireproofing on columns and refineries.

		When a problem with complying with Table 1 arises, the CISC questions
precisely how the standard will apply.  The proposed standard seems
designed to have employers pick their compliance option up front, then
presumably stick with that option.  So an employer would not conduct
exposure monitoring if the employer made a decision to choose Table 1;
but if a few months down the road the employer counters a worksite where
Table 1 is not capable of being used, what is that employer's
responsibility with respect to exposure monitoring?

		There is also concern regarding the practical implementation of the
four-hour specification in the table.  While the CISC appreciates what
OSHA is trying to do by dividing the table by time spent on an activity,
the reality is that contractors will be unable to keep precise track of
the amount of time each worker has spent performing a particular task or
tasks such that compliance with Table 1 becomes an unrealistic option.

		Contractors currently do not and the CISC believes will not embark on
complicated time tracking of tasks to device when a respirator is needed
or when a respirator is not needed, particularly for those workers who
perform multiple different tasks included in Table 1 throughout the day.
 This just will not happen.

		From a compliance standpoint, I suspect if a contractor is using Table
1, the contractor will feel the need to err on the side of respiratory
protection.  Perhaps this is OSHA's intent with Table 1.

		I know that my employees would express concerns about a
significant -- about such significant respirator use, particularly if
the task has already been addressed through engineering and work
practices controls.

		In addition to the above, OSHA has decided to propose an extremely
narrow use for Table 1.  Table 1 is not a safe harbor for construction
employers by any stretch.  Table 1 should be an outline describing how
employers can perform work and stay below the PEL within an eight-hour
TWA.  All construction tasks should be listed, corresponding equipment,
tools, engineering controls, work practices, and PPE when necessary.
The table should be amendable by employers when testing for compliance
with the PEL and exposure monitoring should not expire.  As written,
Table 1 is confusing, hard to understand, and not a workable solution
for construction.

		Table 1 must be simple and user friendly or it will not be used.  In
the CISC's view, the more notes that are included in a table, the few
contractors will utilize it.  Having a table that no one can or will use
does little to protect the safety and health of construction workers.
Moreover, Table 1 must be a safe harbor for employers in order for
Table 1 to be a viable option for those of us in the construction
industry.

		Because of the numerous issues discussed above and in the CISC's
comments to the proposed rules, we urge OSHA to re-evaluate Table 1 as
currently proposed.  Thank you.

		MR. HAMMOCK:  Thank you, Kellie.  Thank you, Your Honor.  I would echo
what I said at the outset.  We appreciate -- the coalition appreciates
very much Table 1, the concept, what OSHA is trying to do.  I would ask
that OSHA consider what Kellie is saying.  This is someone who has a
very aggressive silica exposure control program, and this is someone who
is a small employer, 40 employees, longstanding employees, and this is
someone who would not use Table 1 as currently configured.  And I think
and OSHA has said if it can make compliance easy, it wants to, and Table
1 is that vehicle.  Unfortunately, as it is currently proposed, what we
hear and I think Kellie expresses this, it is not something that is
really workable and, therefore, it won't be, in fact, used by the
construction industry.

		Kellie speaks from the standpoint of sort of a small employer, 40
employees, concrete cutting work, sawing, and drilling.  Kevin is here
to testify on a much sort of different -- much different background as
a large general contractor who is responsible for overseeing oftentimes
very large projects with multiple trades.

		As we were having coffee this morning before the hearing, he was
talking about a somewhat recent project that they did in Florida where
they were building a convention center with two attached major hotels,
and any one day you're going to have probably 2,200 construction
employees performing a variety of silica-generating tasks on one
worksite, on that day.  And that can give you a sense about the scope of
what a construction employer is going to be dealing with day in and day
out, whether it's a small project that Kellie is doing or literally
2,200 employees.  He said his normal jobs are about 1,000 employees on
site any given day, all generating a decent amount of silica dust.

		And so we wanted him to come down to talk about some of the other
aspects of this, some of the other ancillary provisions, and give his
perspective as well.  Kevin?

		MR. TURNER:  Thank you, Brad.  Thank you for allowing me the
opportunity to testify.  My name is Kevin Turner.  I am the Director of
Safety for the East Division of Hunt Construction Group and a member of
the Associated General Contractors of America.

		I am here to testify on OSHA's Notice of Proposed Rulemaking on
Occupational Exposure to Crystalline Silica on behalf of the
Construction Industry Safety Coalition.  Before I discuss the proposal,
I want to tell you a little bit about Hunt Construction Group and my
experience.

		Hunt Construction Group is a 70-year-old construction management firm
based in Indianapolis, Indiana, that handles many large and complex
construction projects throughout the United States including sports
arenas, government and education buildings, aviation complexes, and
healthcare facilities.

		As a construction management firm, we work with a number of
construction trades and employers who will be affected by this rule, and
we know firsthand the challenges that employers face in this competitive
market.  I have more than 16 years' experience in the construction
industry and have been a longstanding member of the AGC and AGC's
national health and safety committee.

		As the Director of Safety, I am responsible for the environmental
safety and health programs and training initiatives for the East
Division of Hunt Construction Group.  I am a certified safety
professional and have numerous certifications related to safety and
health, including construction health and safety technician and OSHA 500
construction outreach trainer.

		Based on my numerous years of experience in the construction industry,
I have become aware of the issues concerning occupational exposure to
respirable crystalline silica, and I recently provided guidance and
feedback on OSHA's proposed rule as part of the CISC.

		I fear that what OSHA has proposed here is simply too complex and
overly burdensome for the construction industry.  The CISC comments
explain this further, but I want to just highlight a few issues from my
perspective.

		First, the exposure monitoring provisions which require an employer to
determine the eight-hour TWA exposures of employees representative of
each shift, for each job classification, in each work area are
unworkable given the range of exposure conditions, environments,
operations, materials, and so on that are present in the construction
environment.

		Employees in the construction industry perform work on multiple
locations and job sites every couple of days or weeks, and some even
perform work on multiple job sites per day.  The materials used and the
silica content of said materials are different on almost every project.
Exposure monitoring in construction will need to be an ongoing exercise
given the constantly changing conditions, environments, and work
activities performed by construction workers.

		I have taken a look at just some of the job functions at my company.
As a management firm, we use subcontractors to a large extent.  However,
we have a number of managers, supervision, engineers, safety
professionals, consultants, and so on that work for Hunt and may have
some exposure to crystalline silica throughout the course of the day.
It is possible that the exposure of these individuals would be below the
proposed action level and, thus, we would not have to take specific
action under the proposed rule with respect to these employees.  But I
cannot sit here and say for certain that that is the case and, thus, we
will need to perform monitoring of these workers at the outset to ensure
negative exposure to termination.

		The difficulty of ascertaining a representative exposure of these
workers is significant.  One day, on one site, they may move through
areas that contain mass excavation, concrete work on footers and
foundations, demolition and renovation activities that could include
cutting, grinding, coring, drilling, etc., and be at a site with
abrasive blasting another day with core drilling, and another day with
demolition, and so on.  Exposure monitoring under this rule will be a
daunting exercise.

		Under OSHA's proposal, employers are required to notify each affected
employee within five working days after completing an exposure
assessment of the results of said assessment and if the exposure is
above the PEL.  Employers are also required to describe in the written
notification the corrective action that will be taken to reduce employee
exposures to or below the PEL.  It will be difficult in many
circumstances to determine the corrective action that should be taken to
reduce exposure within five days, as the process of interest may be
completed or changed within the given time frame.

		While I understand why OSHA shortened the timeframe to provide
information to employees, employers may need to perform research, engage
manufacturers, or experts in order to determine how employee exposures
can be further reduced, particularly if they have now moved to a
different job site with different exposures.

		Given the variability and exposure conditions on a construction site,
an employer may have implemented all feasible controls to protect
employees, but still be over the PEL due to adjacent work over which the
employer may have no control.  In addition, any corrective actions may
not apply to different job sites and different projects, making the
effort and time spent in coming up with corrective measures for a job
site that no longer exists meaningless.

		The CISC also has concerns with respect to OSHA's proposal regarding
observation of exposure monitoring by employees or their designated
representatives.

		Some of the requirements are misplaced with respect to crystalline
silica.  For example, under proposed Paragraph (d)(7)(ii), the employer
is required to provide the observer with protective clothing and
equipment when observation and monitoring requires entry into an area
where the use of protective clothing or equipment is required.
Respirators will be required in all circumstances if an employer uses
regulated areas, even if the designated representative is not at risk
for exposures to respirable crystalline silica above the PEL.

		These provisions seem unnecessary given that the observer will not
necessarily be close enough to the silica-generated task to pose a risk
merely because he or she enters a regulated area.  The CISC questions
the utility of requiring respirators and other personal protective
equipment to an observer for a one-time exposure, even a handful of
exposures.  We are not aware of data suggesting short-term exposures to
silica that could occur here posing a risk to employees.  This is
particularly the case given that it is highly unlikely that the
designated individual will need to be right next to the
silica-generating task in order to observe the exposure monitoring even
if the individual is in the regulated area.

		Because of the variable nature of the construction industry and other
reasons addressed above, the CISC cannot support exposure monitoring as
currently proposed.

		Second, the CISC has concerns with respect to the medical surveillance
requirements.  Under proposed Paragraph (h)(1), OSHA requires that
employers provide medical surveillance at no cost to the employee and at
a reasonable time and place for each employee who will be occupationally
exposed to respirable crystalline silica above the PEL for 30 or more
days per year.

		Medical surveillance is difficult, if not impractical, in the
construction industry in light of the transient nature of the workforce
and the turnover rate in the construction industry.  As OSHA
acknowledges, the construction industry has a 64 percent turnover rate.
Many of those individuals will continue to work in the same trade but
for a different employer within the construction industry where they may
be exposed to respirable crystalline silica above the PEL at least 30 or
more days per year.

		As a result, many employees could be subject to medical surveillance
multiple times a year.  Under the proposed paragraph, the new employer
will be required to pay for medical surveillance unless the employee
happens to have his previous records and supplies them to his new
employer or the new employer is able to get the information for the
previous employer.  Both are entirely unlikely.

		I certainly understand that OSHA has included medical surveillance
provisions like these and other construction health standards.  That is
true.  However, the exposures in those substances are much more limited
on construction worksites than silica.  The broad applicability of this
rule to the construction environment raises concerns that I have rarely
experienced in my safety and health work in construction.

		As I have been preparing this testimony, I have tried to take stock of
how common silica is on construction worksites and the types of
operations with potential silica exposure.  As an example, I was
reviewing MSDS, looking at welding rods the other day, and realized that
some have coatings containing crystalline silica which when heated helps
with the metal flow.

		Now, presumably when welding this silica does not become respirable,
but I am not completely sure of that.  And it exemplifies how ubiquitous
crystalline silica is in construction.  To echo what Kellie said,
identifying 12 tasks in Table 1, while well intentioned, will not come
close to covering the number of silica exposure conditions that can
exist on a construction site.

		Third, the CISC has concerns with respect to the proposed regulators
and housekeeping requirements.  OSHA requires the use of regulated areas
or a written access control plan wherever an employee's exposure to
respirable crystalline silica is or can reasonably be expected to be in
excess of the PEL.  It is not clear how the two options are different.

		Both provisions require work areas be demarked and access to said
areas be limited as essential personnel or designated employee
representatives.  Both provisions also require that employers provide
protective clothing when there is a potential for an employee's work
clothing to become grossly contaminated.  The only difference between
the two appears to be that respirators are not absolutely required under
a written access control plan, but need only be provided and used where
respirable crystalline silica exposures may exceed the PEL.

		In addition, OSHA has not defined what reasonably expected means or
otherwise provide any clarity on when an employer should reasonably
expect for an employee to be exposed over the PEL.  This type of
language is fraught with compliance problems.  And, as a result, an
employer will feel compelled to set up a regulated area or written
access control plan in nearly all instances.

		Enforcing regulated areas is incredibly difficult on a multi-employer
construction worksite.  I know this firsthand from the work I do with
Hunt.  Not every individual or employee is under the control of the
contractor putting up the regulated area, and a general contractor may
not be on site at all times during the project.  Moreover, weather and
wind can change silica exposure in many instances, requiring the
employer to continuously evaluate the conditions in order to determine
if the regulated area is properly designated or adjust the area to
account for the changed conditions.

		An employer may need to change the regulated area every time the wind
blows in a different direction because the boundaries of the area have
changed.  Employers simply will not be able to do this effectively due
to site conditions and other employers in the nearby areas.

		Requiring protective work clothing when there is a potential for an
employee's work clothing to become grossly contaminated with finely
divided material containing crystalline silica is confusing, and OSHA
has not adequately described how it will protect workers.

		OSHA does not provide any clarity on when there is a potential for an
employee's work clothing to become grossly contaminated with crystalline
silica.  The potential that an employee's work clothes will become
grossly contaminated exists for most jobs and worksites.  So, in
practicality, employers will be required to provide protective clothing
in nearly all circumstances.

		OSHA asserts that, quote, "Gross contamination refers to a substantial
accumulation of dust on clothing worn by an employee working in a
regulated area such that movement by the individual results in the
release of dust from the clothing," end quote.  On a construction
worksite, clothes will naturally become dirty and covered in dust to a
certain extent.  Not all dust will be silica dust, and visible dust on
clothing is very unlikely to be respirable.  It would not be finely
divided materials.

		OSHA has simply not explained why such a provision is necessary or
likely to protect workers.  Moreover, there are also circumstances where
an employer may not be able to provide protective clothing, something
that OSHA does not recognize or address in the proposed rule.  For
example, employees are not able to wear anything over fire retardant
clothing.

		OSHA asserts that the purpose of regulated areas is to ensure that the
employer makes employees aware of the presence of respirable crystalline
silica at levels above the PEL.  In CISC's view, providing required
training of all employees potentially exposed to silica would be equally
effective in making employees aware of the presence of respirable
crystalline silica without all the issues associated with regulated
areas.

		The training would cover tasks where employees are likely to be
exposed to silica, as well as good housekeeping instruction to reduce
risks such as staying away from silica-generating tasks unless
absolutely necessary and positioning one's body away from clouds of
dust.

		The CISC also does not support several of the housekeeping
requirements provided in the proposed rule.  OSHA is prohibiting
employers from using compressed air, dry sweeping, and dry brushing to
clean clothing or surfaces contaminated with crystalline silica where
such activities could contribute to the employee exposure to respirable
crystalline silica above the PEL.  OSHA does not explain or provide any
clarity on when dry sweeping or dry brushing could contribute to
employee exposures to respirable crystalline silica that exceeds the
PEL.  Personally, I have no idea how to make that determination to
ensure full compliance.

		OSHA alternative to dry sweeping appears to be using vacuums equipped
with a HEPA filter.  A HEPA filter vacuum will not be able to pick up
anything beyond small dirt or dust particles and, thus, would be
completely ineffective at picking up electrical wires, pieces of
drywall, and other debris often found throughout a construction
worksite.  Some projects also may not have access to an electrical
source in order to run the vacuum, and the HEPA filters would need to be
changed frequently in order for the vacuum to remain effective.
Depending upon the size of the project and the location of
silica-generating tasks, an employer may need to provide more than one
vacuum.

		Finally, I would be remiss if I did not speak on the concerns that we
have with application of the multi-employer worksite doctrine to this
rule.  As a controlling contractor for many large construction projects,
we may be held responsible under certain conditions for the actions of
subcontractors.  We understand this and do not shy away from that
responsibility.

		With the dynamic nature of construction sites and the prevalence of
crystalline silica on those sites, however, we are very concerned that
despite our best efforts, we will be subject to multiple citations for
conditions outside of our control and even the control of contractors on
our worksites.

		I appreciate the opportunity to appear here today and know that OSHA
is serious about hearing from all stakeholders.  I hope that OSHA
carefully considers these comments and the comments of the CISC in
determining how to proceed with the proposed rule.  Thank you.

		JUDGE SOLOMON:  Mr. Hammock?

		MR. HAMMOCK:  Thank you, Your Honor.  Thank you, Kevin.  I would like
to echo just a couple of things that you said, one of which is the
coalition recognizes that a lot of the ancillary provisions that are
included in the proposed standard are based on OSHA's historical
approach to health standards in construction and certainly in general
industry.

		I think one of the things that Kevin touched on, though, was that some
of those health standards, lead, asbestos, are sort of a different order
of magnitude from what we would facing with respect to silica on these
construction worksites.  And from what they tell me, Kellie and Kevin,
that those have really become specialized tasks.  And applying some of
those standard, health standard type ancillary provisions to silica is
much more challenging.

		The other thing I would just pick up on as from the multi-employer
worksite perspective, and this touches on something that Stu said, in
terms of whether it would be appropriate for OSHA to include some cost
item for self-employed individuals, those who are not technically
covered under the OSH Act, but may be essentially forced to undertake
actions as a result of this standard.  I think another layer to that for
OSHA's consideration is that multi-employer worksites where Kevin, for
example, is the general contractor and is going to need to take certain
measures to ensure that all employers and even independent contractors
are following X, Y, and Z so that we can all be in compliance with the
standard.

		They are going to be enforcing some of these same requirements on
individuals whether they are technically an employer or not under the
OSH Act.  I think that's even more of a direct situation where you could
see these types of folks being essentially required to comply with the
standard even though they are not employers under the OSH Act.

		Thank you very much, Your Honor.  That concludes our testimony.  And
we look forward to questions from that side of the room on our
testimony.  See.

		JUDGE SOLOMON:  Okay.  How many members of the public have questions?
Lots.  So we'll start with this row here.  Ms. Nardeau [sic], you're
first.  And then after that, we'll line up behind her by row, if
possible.  So the people in the next row who had raised your hands, if
you would get the -- assume the position, we could say.

		MS. NADEAU:  Hi, I'm Elizabeth Nadeau, N-a-d-e-a-u, and I'm with the
International Union of Operating Engineers.

		JUDGE SOLOMON:  Did I mispronounce your name?

		MS. NADEAU:  I don't know.  I didn't pay attention.  I didn't really
listen to it, sorry.

		What steps does your company take, or you individually, or the
companies that you represent to protect workers when buildings are
sealed off to prevent exposures to the general public as required by
state fugitive emission standards or local ordinances?  What steps would
you take, at that point, to essentially beef up controls to protect the
workers?

		MR. HAMMOCK:  Just so I understand, so when you've got a situation
where due to state and local ordinances what, for dust exposure or
environmental contamination, or those sorts of things?

		MS. NADEAU:  There is a number of them, but there's dust exposures and
there is also other contaminants that state laws regulate in local
ordinances, particularly in populated areas.

		MR. HAMMOCK:  Sure.

		MS. NADEAU:  You may get a lot of complaints about cars getting dusty
or exposures to kids at schools or any of those sorts of things.  So
often there is a sealing off of the building to protect the public,
which would create no ventilation for the employees.  So I was wondering
what additional exposure controls you would use to protect the employees
when you are having to protect the public, so you have a balancing
there.  What would you do in that -- what do you do in those
situations?

		MR. HAMMOCK:  Do you want to start with Kevin and then go to Kellie?
Is that fair for that?  Kevin?

		MR. TURNER:  Sure.  From the controlling contractor side, I end up
being the idea man, I guess, for lack of better language.  And we
require a site-specific safety plan which addresses the hazards dealt
with in that particular's contractor's scope of work.  As far as the
operators go, we've had a lot of different shots at this simply because
of the different areas we go into.  We're really fortunate when a
contractor can roll on and they have enclosed caps.  That's fantastic
because that allows us to do a whole lot of different things as far as
wetting down materials, etc., etc.

		Really, it's based on the contractor and how they want to skin the
cat, if you will.  If they want to use water and that does impact their
excavations or their work, they can go about that.  If they have a
different way to handle that then that's up to them.  But, really, as
far as means and methods, it goes to each contract to do that.  All we
require is that they meet the letter of the law.

		MR. HAMMOCK:  And let me just say one other thing because I just had
this thought before we ask Kellie the same question, you know, this is
an area that I hadn't thought about, that's the reason I asked you a
question, because I don't know to what extent OSHA has also thought
about this type of situation.  But this is a situation where you've
essentially got other regulatory agencies that are enforcing situations
upon contractors which could significantly affect exposures.  And if you
can get to the proposed PEL under sunny skies or rainy days outside,
it's much different if you are now forced to do the work for other
reasons in an enclosed environment.  And I don't know to what extent I
would throw that to OSHA, don't know to what extent you have included
that in your tech feas analysis or even your ec feas analysis as well.
I'm sorry, go ahead.  Kellie?

		MS. VAZQUEZ:  We kind of address it the same way that Kevin has said.
What we would need to know is -- I'd have to have the job safety
analysis, and I'd have to look at the job because we would have to
identify what task we were doing to identify what piece of equipment we
were going to use.  And then identify what engineering controls are
going to be used.  And then identify the PPE necessary.  So that's the
steps.

		MS. NADEAU:  And then the opposite is, is if you are outside --

		MS. VAZQUEZ:  It's the same.  It's the same thing.

		MS. NADEAU:  -- and you need to comply with these state fugitive
emission laws or local ordinances, the monies that you are already
spending to comply with those, how would that factor into the economic
analysis of what you would need to comply with the OSHA standard since
you are already spending those resources to comply with local ordinances
and state regulations?

		MS. VAZQUEZ:  I've never -- me, personally, and Holes, Incorporated,
I have never been hit with a state ordinance in that effect.  I go by
the job site and what's required to me on that job site.  I think the
state ordinance would be for the hiring contractor.  The general
contractor is probably going to deal with that more than I would.  He
would then tell me what I would need to do or show me the job that I was
there to do.

		MS. NADEAU:  You don't operate in a state where they, for instance,
like Connecticut, both the general and -- the owner and the sub would
get cited.  So there are states where that may be the case, and so you
would have to be aware of your obligations under state law.

		MS. VAZQUEZ:  Right.  Like I said, I don't really -- Holes,
Incorporated, I do not really deal with that, so I don't really know.
But you got it?  Go ahead.

		MR. HAMMOCK:  I could just add one other thing then to what Kevin
said, I also wonder in that scenario, I think your question is a very
good one and, you know, what was, you know, how is a contractor
otherwise going to deal with that cost and have they already essentially
figured that cost out as a matter of what their job would entail.  And I
think that does underscore a point that Stu made in his testimony which
is when you are focusing on how costs are actually going to be filtered
in, you really essentially have to assume a degree of control measure
vis-à-vis every time you go out on a job.

		You have to essentially account for those situations.  And, of course,
we recommend that OSHA account for those, too, in terms of their control
measures.  Sorry, Kevin.

		MR. TURNER:  It's all right.  I function mainly east of Denver.
That's about as far west as I go.  And I know we have spent a little
time in Connecticut.  We've spent a whole lot of time in Arizona.  We do
have people trained to do the opacity test and so on, and we expect our
contractors to do the same.

		I think where we are talking apples and oranges here is that's a
visual assessment that is done and there are certain cues there, whereas
as far as silica goes you may not see it, and there needs to be testing
done, sampling by an appropriate qualified IH in the labs, and so on and
so forth.  There is not necessarily all of those materials done as far
as what you're talking about, the fugitive dust, at least that's been my
experience.

		MS. NADEAU:  I have another question, and it goes to rock crushing
operations, which we represent employees who perform that.  And I'm
asking about the production -- the protections that you already have in
place and the persons, the competent persons that you would have on the
site already during rock crushing to prevent traumatic injuries such as
getting an arm caught in a conveyor belt when somebody is reaching in to
remove debris, or a fall protection, or anything that you have in place
already, any personnel that are already required to be on site to deal
with the prevention of acute safety hazards.

		MR. HAMMOCK:  And maybe, Kellie, you can take that because I think you
do have some experience with that type of equipment.  And also you might
be interested to reiterate your testimony about how you approach the
training issue with respect to all your folks.

		MS. VAZQUEZ:  Okay, not a problem.  I don't do any rock crushing in
the manner that you're saying, but how we treat our employees, my guys
are one-man crews.  So I will have one operator in a truck and that
truck is loaded with his equipment to go do his multiple jobs per day.
He is his own operator, his own equipment operator, his own supervisor,
his own foreman.  He has the right to shut down any job he feels that is
not safe.

		I don't have a second man, or a competent person, or a supervisor go
with him on site to look at the job and verify if it is safe or not.
That's his responsibility.  That's what he is trained to do.  My
operators have 30-hour OSHA.  They are trained in trenching and
excavation.  They are competent people in trenching and excavation.
They are scaffold builders.  They get aerial lift trained.  They are
their own foreman, their own supervisor.

		I believe and Holes, Incorporated, believes that under general duty,
every employee has a right to work under a safe environment.  Therefore,
it's his -- he need to be trained to be aware of what a safe
environment is.  And so that's how we go with silica training.  That's
why we are all trained.  My operators are trained.  My mechanics are
trained.  My project managers are trained.  My estimators are trained.
I'm trained.  The president of the company is trained, all on the
hazards of silica and how to protect ourselves from it.

		So I don't have that second person, that second supervisor.  My own
personal operator, he takes on that responsibility.

		MR. HAMMOCK:  Kevin, do you have anything to add to that, and Stu?

		MR. SESSIONS:  Yeah.  I'd like to add one comment on how analytically
in the cost analysis it is appropriate to take a count of protective
measures that are already being implemented.  And I think OSHA has
recognized this issue and deals with it appropriately.

		OSHA has expended a substantial effort in trying to portray the degree
to -- the manner in which tasks are currently conducted.  For example,
to what extent is wet cutting already used indoors versus outdoors?  And
OSHA makes a determination about that and determines as part of the
baseline that outdoors it is masonry is usually cut wet and does not
count in the cost analysis any additional cost for cutting it wet,
because it is already part of the baseline.  And that's entirely
appropriate.

		So I agree that safety measures that are already undertaken are in a
sense part of the baseline and should not be incremental costs that are
charged to, if you will, the regulation.

		MS. NADEAU:  And you have an answer that's different, I assume, since
you have more than one-person crews?

		MR. TURNER:  Well, again, we're construction professionals.  We don't
have trades performing work.  Rock crushing is a rarity.  I've seen it
on one project in my time with Hunt.  And we treat it as most of the
other jobs in the fact that you have to have a safe-to-work plan.  You
have to have all the appropriate checklists and sign-offs.

		I have safety professionals that I staff; however, they have to know
safe work practices literally from the time we strip off the topsoil
till the time we top out that 40-story building.  So they have a very
broad, expansive knowledge, not that they won't go through a checklist
with someone.  But it's approached in a safe work practice manner and,
obviously, there's a lot of difference in equipment and we would expect
the contractor to sit down with us and walk through their process with
us, so that way we can learn and make sure they're doing it right.

		JUDGE SOLOMON:  How much more do you have?

		MS. NADEAU:  Just a couple more.

		JUDGE SOLOMON:  Okay.

		MS. NADEAU:  In your comments, you talked about variability quite a
bit in terms of exposure controls, and I was wondering what other
aspects of your construction activities during the course of the day
would be affected by changing wind conditions?  For instance, operation
of a crane would be significantly affected by changing wind conditions.
So I was wondering besides silica and cranes, what else do you have to
sort of adjust to the variability of wind conditions, other activities?

		MR. HAMMOCK:  Outside of silica and cranes?

		MS. NADEAU:  Right.  You're on the worksite.  You have to react to the
fact that there is a change in wind conditions.  Are there any other
operations that you perform during the course of the day that would need
to be changed because of wind or rain or mist, or how you perform the
functions?

		MR. HAMMOCK:  Well, I can certainly -- we can certainly brainstorm
here, and I don't know if Kevin or Kellie have ideas off the top.  I
mean I think, obviously, construction is a dynamic environment.  I mean
I don't think that we are suggesting that the dynamic nature of the
environment is only related to silica and cranes even.  I mean I think
there are others, and we can certainly, you know, think about some more.

		I think that, though, with respect to silica, those considerations are
particularly acute.  And our position, at least one of our points in the
testimony is that OSHA needs to account for that.

		I am amazed, and I said this to them as I've met with folks, I am
amazed at the ability of employers, employees, safety professionals to
adjust to whether it's a new regulatory scheme or whatever else they
have to deal with, so I think there probably are a number of instances
where that's the case.

		Irrespective of those instances, I believe that OSHA needs to account
for those here and I question the extent to which they have done so.
Now, I don't know if you guys have some other examples with that?

		MR. TURNER:  I'll just take a real quick swipe.  You hit cranes.
That's a huge one for us, especially when you're talking 400 for the
stick in the air, you know, 25 mile an hour wind, you're done for the
day.  When we go in our high-rise buildings, there are instances where
we may have scissor lifts or swing stages, stuff like that.  Those kinds
of things get shut down.

		But, again, we're talking 15, 20, 30 mile an hour winds, whereas when
you've got dust in the air, it may be 2, 3, 4, 5 mile an hour.  So I
think that's the serious consideration here as to your atmospheric
conditions.  And that goes to humidity and all the other stuff, you
know, a good rain is a really good thing as far as dust goes and my
concern, Mother Nature taking care of the dust for us.

		It's something that needs to be looked at and considered, because when
you're dealing with engineering pieces of equipment versus dust and how
Mother Nature carries that around, I think are kind of two different
things there.

		MS. NADEAU:  And I have one final question for Kellie.  You said that
you have a training program that trains all your individual workers on
all the broad scope of whatever might confront them in the workplace.
What specifically do you have in place and how many hours would you have
involving invisible contaminants or hazards?

		MS. VAZQUEZ:  Well, I'm just going to -- I'll base it on crystalline
silica.  What we do on our crystalline silica training is that when they
are hired on, they get it on their training when they are hired on.  And
then we do it annually, so everyone gets hit on it every year.

		MS. NADEAU:  But how comprehensive is the program?

		MS. VAZQUEZ:  What we do, I would say they watch a video.  They go
over a booklet with us.  And then a little test.  But then we go over
all of our operations with like the required, you know, engineering
controls, so I don't know, maybe an hour, two hours, and that's just the
verbal, new hire training.  And then at an annual safety meeting, maybe
an hour there, 30 minutes to an hour there.

		MS. NADEAU:  So you do the video, the interactive, and then the test
within an hour or two on silica training?

		MS. VAZQUEZ:  Something like that, yes.

		MS. NADEAU:  Thank you.

		MR. HAMMOCK:  One of the things, if I may, Your Honor, just if you
could stay, if that's okay?

		MS. NADEAU:  Sure, that's fine.

		MR. HAMMOCK:  One of the things that we have learned talking to a
number of different members of the associations who make up our
coalition is that there is a tremendous variety in the scope of silica
training obviously based upon the diversity of the work that the
contractor may do.  So Kellie's example might be X that she gave, but
she's got maybe a more, you know, concrete -- jeez, sorry, long day.

		JUDGE SOLOMON:  Actually, that's a remarkable pun.

		MR. HAMMOCK:  A set of exposures.  And so it may be that what she laid
out is appropriate, but there may be many different circumstances out
there.  So what we found talking to folks is it really varies.  I think
the coalition is a very, I think our testimony says, a very strong
proponent of safety training with respect to silica.

		MS. NADEAU:  So it's engineering control specific that you would be
doing the training on.

		MR. HAMMOCK:  Well, that one aspect of obviously what would be
comprehensive.  And I did, I also wanted to put a plug in, by the way,
for the Operating Engineers' comments.  We have started to review those.
 And I wanted to highlight one point that you all make that I think is
interesting, I won't put words in your mouth so take it for what it's
worth.  But one of the points that we understood it to mean is that with
respect to work with certain types of excavating equipment and millers
and the like, there needs to be a more granular analysis that OSHA has
in terms of the intended affects and the application of Table 1.  I
think that's consistent with what we're saying to really dive into all
the different exposure circumstances.

		MS. NADEAU:  Well, I think I'm not on the answering end.  You're going
to have our testimony.

		MR. HAMMOCK:  I know, I didn't mean --

		MS. NADEAU:  Okay, thanks.

		JUDGE SOLOMON:  You get to testify next week, I believe.  Looks like
Mr. Lundegren?

		MR. LUNDEGREN:  Yes, thank you.  My name is Bruce Lundegren,
L-u-n-d-e-g-r-e-n.  Stu, in your experience as a regulatory economist
over many years, do you find that federal regulations tend to have a
disproportionate burden on small businesses versus large business?

		MR. SESSIONS:  Yes, measured as in terms of impact on revenues or
profits, yes.

		MR. LUNDEGREN:  Okay.  And you talked a lot in your presentation about
the cost of the rule and provided a critique of OSHA's analysis.  Have
you looked at the regulatory flexibility analysis and whether there are
disproportionate impacts on small businesses that haven't been accounted
for?

		MR. SESSIONS:  I think this is one of the substantial shortcomings in
OSHA's current analysis is, in many respects, they treat small
businesses as proportionately scaled down large businesses.  And
don't -- let me expand on that.  On the cost side, for example, there
are any number of respects in which OSHA does not recognize the greater
existence of fixed compliance costs that are fixed per business that
have a much greater impact on small business than a large.

		For example, I talked about this issue of OSHA's assumption about 56
percent of employers currently have regulatory protection programs --
sorry, respiratory.  You know, my guess would be that would be close to
zero percent of small businesses would have existing respiratory
protection programs, and the large fraction of large construction
businesses would have it, so that this cost, which has been treated in
OSHA's analysis, it's a cost per employee, in fact is a very
differential cost for small versus large businesses and will be a much
greater proportional cost on small businesses.  So that's an issue of
how far along is the business towards compliance right now.

		Another sort of issue in that vein is the question of we talked about
this question about whether you do full or incremental compliance
costing and whether you essentially don't count the cost that will need
to be incurred to come into compliance with the current PEL.  Well, my
guess is that small businesses are substantially more likely to be
noncompliant currently than large businesses.

		So this issue about full versus incremental cost is really a small
versus large business issue.  And to do a really good small entity
analysis, you ought to handle the differential compliance rates between
small and large business.

		On another dimension of this, which is the ability to pay these costs,
OSHA makes the assumption, for example, that the profitability or the
profit rate is exactly identical between small and large businesses.
And that isn't the case at all.  The sort of data source that OSHA
chooses to use in looking at profits is graded by size of business.  And
one could do a small versus large business profitability analysis, and I
would highly recommend that.

		In most such analysis I've looked at, small businesses typically have
lower profitability rates than large businesses and that needs to be
reflected in the analysis, also.

		So it's a whole set of things like this where sort of a more intensive
and a more really good faith effort to capture the small business impact
would look in much more detail than the Agency currently has.

		MR. LUNDEGREN:  Okay.  And you said that OSHA's analysis looks at
costs from coming into compliance from the existing PEL to the proposed
PEL, rather than from actual current exposures to the PEL.  Do you think
that this masks a lot of small business noncompliance and that will make
it more difficult for small businesses to come into compliance with any
new PEL?

		MR. SESSIONS:  Yes.  I think that the way OSHA has handled that issue
substantially underestimates the burden on small businesses, and it
underestimates the burden on small businesses to a greater extent than
it underestimates the burden on large businesses.  So the way OSHA has
handled that issue sort of torques the analysis in a way that doesn't
accurately reflect the position that small businesses find themselves
in.

		MR. LUNDEGREN:  And small businesses make up a very substantial
segment of the construction industry?

		MR. SESSIONS:  Yeah.  Yeah.

		MR. LUNDEGREN:  Do you know what percent?

		MR. SESSIONS:  No, I don't.

		MR. LUNDEGREN:  It depends on the sector?

		MR. SESSIONS:  Yeah.  I mean, you know, among specialty trade
contractors and the various trade contractor-defined industries, small
businesses are an extremely high percentage, well over 90 percent.
Among some of the other industries like commercial construction, small
businesses are a smaller percentage.  So it's an industry-specific.

		MR. LUNDEGREN:  And you mentioned in your analysis or your
presentation that OSHA went down to a four-digit NAICS code, rather than
the six-digit NAICS code that we use, the Small Business Administration
has adopted for purposes of the Regulatory Flexibility Act.  Do you
think that that tends to shield a lot of small businesses from being
captured in the analysis?

		MR. SESSIONS:  Yes, very definitely.  The example that I raised on
masonry contractors, which is a six-digit NAICS industry, will be very,
very substantially affected by this regulation.  And they are not
analyzed because they are lumped in with another six -- many others,
but at least one other six-digit industry, which is framing contractors,
who are guys who work with wood.  And they aren't affected by this
regulation at all.  So the analysis at the six-digit level would show
substantial impacts for masonry contractors who are small business,
heavily small business, which the analysis currently doesn't show.

		MR. LUNDEGREN:  And OSHA did, in fairness, they ran their analysis
with a dual baseline where they used the NAICS code and then they used a
standard of 20 employees or less.  But do you think that that still hid
a lot of the small business impacts?

		MR. SESSIONS:  Yes, I do.  I do.  That's right.  OSHA did, they ran
essentially three economic impact analyses, if you will, one for the
industry as a whole and all participants in it; one for all small
businesses in it, which is typically businesses with less than 500
employees; and another analysis for all very small businesses which have
less than 20 employees.  So OSHA did do these three different analyses,
but OSHA did not, in my view, spend a sufficient amount of time to
accurately characterize, to make an effort to characterize the
differences among these segments of the industries.

		MR. LUNDEGREN:  Okay, thank you very much.  Kellie, on behalf of the
chief counsel for advocacy, I'd like to thank you for your participation
in the SBREFA panel.  I know as an actual small business, that takes a
lot of time and effort, so thank you very much for assisting with that.

		When you were part of the SBREFA panel, although your mother was
actually the SER, you were the helper, what did that panel process
entail?

		MS. VAZQUEZ:  Oh, we did -- sorry, that's when I first got involved
in silica and started learning about it.  And so it was a very intense
learning process for many months for pairing our paperwork and getting
our numbers together and brainstorming on how the standard, the proposed
standard was going to affect Holes, Incorporated.  And then not only us,
but also other concrete sawing and drilling companies across the United
States.

		We reached out to many of our partners across the United States
through the Concrete Sawing and Drilling Association and asked them
questions, and had them help us come up with our comments and how it was
going to affect our businesses.  So it was a lot of research, a lot of
brainstorming, and just to see how our business would change and what
changes we would need to make to comply, and if we could make those
changes and stay in business.  That's really what it taught us, and
that's really what I remember from it.

		MR. LUNDEGREN:  And OSHA provided documents for all of the small
entity representatives.

		MS. VAZQUEZ:  Yes.

		MR. LUNDEGREN:  I think there were about 60 small business
representatives from maritime construction and general industry.

		MS. VAZQUEZ:  Yes.

		MR. LUNDEGREN:  And what were the documents that you reviewed?

		MS. VAZQUEZ:  Oh, wow.

		MR. LUNDEGREN:  The draft proposed rule?

		MS. VAZQUEZ:  Yeah, the draft -- we had the ERG and the draft
proposal.  And it was just as complex as, you know, 757-page document
that we received in August here recently, so it was a lot of reading and
a lot of late nights.

		MR. LUNDEGREN:  And it was very technical and comprehensive.

		MS. VAZQUEZ:  Yes.

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

		MR. LUNDEGREN:  Just two questions.  Did the SERs, the small entity
representatives, have a broad-based opinion about what OSHA should do
with respect to the permissible exposure limit and the issue of
noncompliance?

		MS. VAZQUEZ:  Yes.  We all asked OSHA to keep the PEL the same, to
enforce the current PEL.  There was a widespread of overexposure 10
years ago and OSHA had released that in their documents.  And so we
asked OSHA for education for outreach and to enforce the current PEL.

		MR. LUNDEGREN:  Okay.  And as a small business person who will have to
implement any new rule, is there any advice you would give to OSHA on
how they should proceed?

		MS. VAZQUEZ:  Yes.  I would say I believe, my belief is that the
current PEL works.  And I believe that the special emphasis program that
was implemented a few years back worked.  And education and outreach on
the hazards of silica is what needs to continue and then but keeping the
PEL the same.  I see that construction, current construction data, 75
percent of it has come back at the PEL or below, but we still have that
25 percent that is over the PEL; therefore, I say get that 25 percent
and let's bring them under the PEL, and let's enforce our current PEL,
and let's bring those numbers down, and let's get to that 95 percent,
100 percent of compliance.  That's what I would like to see, education
and outreach.

		MR. LUNDEGREN:  Thank you, Your Honor.  And thank you, again,
Kellie --

		MS. VAZQUEZ:  Thanks.

		MR. LUNDEGREN:  -- for participating on the panel.

		JUDGE SOLOMON:  Ms. Trahan?

		MS. TRAHAN:  Hi, Chris Trahan with the building trades department.
It's T-r-a-h-a-n.  I've got a few questions.  And I think,
Mr. Sessions, this one might be aimed at you.  You mentioned an
extensive membership survey that you undertook on behalf of the
coalition.  How many respondents were there?

		MR. SESSIONS:  Between 75 and 85.

		MS. TRAHAN:  So between 75 and 85 out of more than a quarter million
employers represented by the coalition.  Is that a statistically valid
sample?

		MR. SESSIONS:  No.  We asked each of our members to provide a couple
of respondent couplings.

		MS. TRAHAN:  Okay.  And would you be willing to share the survey
instrument with OSHA so we can see what questions were asked?

		MR. HAMMOCK:  A couple of things I want to add to that.  We're
certainly open to consider that.  This is one of the things that with
respect to the survey and when we met with OSHA a few months ago, we are
worried and are still concerned that what we had intended to do with the
survey, which is to get as broad a response as possible to as many
members as possible, to be able to integrate it fully into the analysis,
we did not have enough time to do given the amount of time allotted for
the public comment period.

		So what we have been able to do is to the best of our ability take
what we were able to discern in the amount of time allotted and
integrate that into our thinking.  I will be the first to admit that
it's not fully integrated, and we will try to do that in post-hearing
submissions.  And we will look to see if we could make it available,
certainly, to the extent it would benefit OSHA.  But I'm worried that
given the time constraints, it wouldn't necessarily be fully
represented.  So I just wanted to add that caveat.

		MS. TRAHAN:  Thank you.  Did the survey include respiratory protection
practices in place, in the construction industry, because you have
suggested the level of respiratory protection programs that are
implemented in the construction industry?  I was wondering if that was
based on the survey.

		MR. SESSIONS:  No.  My comments earlier were not based on the survey.
My comments earlier are based upon what I understand to be OSHA's
interpretation of the data that underlies a survey that they have looked
at.

		MS. TRAHAN:  So it's a review of what is in the docket is what you
base your levels at?

		MR. SESSIONS:  Yes, yes, of what's the economic analysis.

		MS. TRAHAN:  Okay.

		MR. SESSIONS:  Basically, we did have a couple of questions in the
survey with regard to respiratory protection.  And among other
responses, we asked if companies had experience in providing respirators
to the workers, what was the typical cost per worker to be covered with
a certain sort of respirator and typical cost per worker covered with
another sort of respirator.  We got some number of responses on that,
and that will inform some of my comments on the unit cost assumptions
that OSHA made in their respirator comments, respiratory costing.

		MS. TRAHAN:  Thank you.  One thing, Judge, this is not a question for
the panel, but I noticed that there were several people who raised their
hand who are not testifying at this hearing.  And I was wondering if --

		JUDGE SOLOMON:  We were provided a list of people who had submitted
requests or comments.  So I have a list of the participants.

		MS. TRAHAN:  Who filed a notice of intention to appear?

		JUDGE SOLOMON:  Right.  That's how I have learned all these last names
over the last several days.

		MS. TRAHAN:  Okay.

		JUDGE SOLOMON:  So are you objecting to some of the people asking
questions who are not on the list?

		MS. TRAHAN:  Well, that haven't filed a notice of intention to appear.
 I noticed some folks who are --

		JUDGE SOLOMON:  Who are not on the list?

		MS. TRAHAN:  Well, on the list of notice of intention to appear.

		JUDGE SOLOMON:  Right.

		MS. TRAHAN:  May I ask another question of the panel now?

		JUDGE SOLOMON:  Sure.

		MS. TRAHAN:  Okay, thank you.  So a quarter million employers, you're
up here representing.  The question that I have next is California, any
of those employers do work in California?

		MR. HAMMOCK:  In our membership?

		MS. TRAHAN:  Yes.

		MR. HAMMOCK:  In the membership of the -- the members of the members
of the coalition?

		MS. TRAHAN:  The quarter million employers you are representing.

		MR. HAMMOCK:  I suspect that there are, yes.

		MS. TRAHAN:  And do you have any information as to their experience
with the California law on dust control?

		MR. HAMMOCK:  No.  It's interesting, though, there are some states
that have taken some other current approaches.  There is a lot of other
things out there.  We have not directly looked at that.  That's
something that we can think to do.  I will say this that one of the
things, and I say this not knowing for certain, but I will throw it out
there anyway, that some folks in our coalition who do roofing said that
there has been an exception for wet cutting for roofing out there
because of the hazards that exist with introducing water when you're up
on a roof.

		And I would say that that's something that maybe OSHA should consider
as well.  I flag that not because I'm an expert in it, but I know that
is one source of feedback that we have gotten.

		MS. TRAHAN:  We actually have a roofer from California who is on our
panel.

		MR. HAMMOCK:  Oh, interesting.  That's great.  And you guys are
testifying tomorrow, right?

		MS. TRAHAN:  Yes, sir.

		MR. HAMMOCK:  Okay.

		MS. TRAHAN:  The question, well, Ms. Vazquez, you are here
representing as a small employer, and I think it has been very helpful
to hear what you have to say.  Are there other small employers amongst
the quarter million employers that you are representing?

		MR. HAMMOCK:  Well, I would think most of them are.

		MS. TRAHAN:  Okay, thank you.  Actually, this is a question for you,
Ms. Vazquez.  You talk about your silica exposure control program and I
was wondering if that is a program that Holes, Incorporated, maintains
in writing?

		MS. VAZQUEZ:  Yes.  We have a silica policy.

		MS. TRAHAN:  Would you be willing to share that with the record so it
can be part of the rulemaking?

		MS. VAZQUEZ:  I can look into that.

		MS. TRAHAN:  Okay.  And, likewise, you've expressed that you have done
exposure monitoring for the tasks your workers perform.

		MS. VAZQUEZ:  Yes.

		MS. TRAHAN:  Can you share that exposure monitoring in whatever detail
you can with the rulemaking?  And just to inform the question, I think
it's really important that OSHA build what I hope is a great Table 1 on
really good data.  And I think that it sounds like you have some really
good data, and it would be helpful, I think, for the record to share it.

		MR. TURNER:  If I might real quick?  Kellie and I co-chair the silica
task force for the AGC, America's national health and safety committee,
and we actually have a form that is filled out by our member contractors
for their monitoring.  And so we have a database inside the AGC that we
are currently compiling.

		MS. TRAHAN:  Wow, that's great.

		MR. TURNER:  It is nowhere near done, but that's what we are hoping to
do is get a well-informed Table 1 out there for all contractors.

		MS. TRAHAN:  So just to follow up on that, Mr. Turner, will you be
submitting that data to the record in this rulemaking?

		MR. TURNER:  It's AGC's data, so we would have to --

		MS. TRAHAN:  Will you ask AGC to submit that data?

		MR. TURNER:  I'd be more than happy to ask.

		MR. HAMMOCK:  And let me say, because I think you raise a great point,
which is the more data that OSHA has, the better.  When we met with OSHA
again, we made that and frankly the amount of time that we had available
to gather, look at, analyze, make it meaningful to everyone simply
wasn't there.  So we spent our time doing the best we can analyzing what
OSHA has done, preparing these comments.  We have presumably an extra 45
days to try to get additional data into the record.  We will do what we
can, but we did ask OSHA on numerous occasions for more time to enhance
that record, because you are absolutely right, the more data they have
the better.

		MS. TRAHAN:  And I would venture to suggest that they would take data
in any form you have it without it having to be shiny and polished.

		MR. HAMMOCK:  Right, well, true, that is true.  But one of the things
that we have learned is that simply having a data point that says this
particular exposure was at .05 milligrams doesn't do you any good if you
don't know what the exposure conditions were, what the control measures
that were being used, what the control measures that were not being
used, was it dry, what kind of -- what percentage of silica was in it,
otherwise, it's just a data point that provides very little value, in
our view.  So to get that information is another gargantuan task, in our
view.

		MS. TRAHAN:  Thank you.  And, Ms. Vazquez, when you plan a job, do
you typically plan for having engineering controls or wet methods in
place in your operations?

		MS. VAZQUEZ:  Yes.  Let me see how I can explain our work.
Seventy-five percent of our work is called in over the phone, so I'll
get a phone call, I need two 8-inch holes drilled into a wall.  And then
the next day we'll go do it.  But my equipment, yes, has the engineering
controls on it.  We cut wet, so my equipment comes with the engineering
controls in it to cut wet.

		MS. TRAHAN:  Okay, thank you.  And, Mr. Turner, you mentioned safe
work plans.  What did you mean by that?  It's a term you used I think in
describing how contractors who you hire as the construction manager
perform their work, they follow their safe work plans.

		MR. TURNER:  It's just another terminology for a task hazard analysis,
job hazard analysis, something like that that identifies the risks and
how they are going to mitigate those risks on our projects.

		MS. TRAHAN:  So JHAs, task hazard, that's a routine part of the
business of the contractors you hire to do work?

		MR. TURNER:  Absolutely.

		MS. TRAHAN:  And how do you, as a construction manager or general
contractor, how do you ensure that the contractors or subcontractors
that you hire are arriving at the job site at the right time?

		MR. TURNER:  We put together --

		MS. TRAHAN:  Well, let me follow up that by my understanding is that
Hunt is an incredible company, and we believe that your job sites are
run very tightly.  So I was wondering if you could explain how you do
that.

		MR. TURNER:  Thank you.  We think we're a good company, too.

		JUDGE SOLOMON:  That's called bolstering testimony.

		MS. TRAHAN:  I apologize, Your Honor.

		JUDGE SOLOMON:  Go ahead.

		MR. TURNER:  I haven't closed the deal yet; hold on.  We go through
quite a long process.  We have a subcontractor prequalification that
starts out just by going through our website so we can review a
contractor's ability to perform the work.  We have pre-bid meetings
which are regularly scheduled depending on the project and kind of the
phases of work that need to go through.  Our team, obviously, dissects
the project in the various phases.

		We have a post-bid meeting with the contractor that may be awarded to
really dive into what they plan on doing on our project and how they are
going to meet the intended phases of work.  All that being said, there
is a master schedule that says mass excavation will happen for 60 days,
just to give an example, and each job as the project moves through, each
task as the project moves through is scheduled for an allotted amount of
time.  And that is so we can phase workflow.

		MS. TRAHAN:  That's interesting.  That's a lot of pre-job planning
that happens.  Now, once the job gets started, how do you monitor and
ensure that the overall project plan stays?  How does that continued
communication happen?

		MR. TURNER:  A lot of meetings.

		MS. TRAHAN:  And amongst whom?

		MR. TURNER:  The project team which includes our professional staff
and those key individuals from all of our subcontractors.  And there's
daily observations performed by our staff and those people to make sure
they are achieving what they need to achieve in the way of whether it's
safety production, schedule, whatever.

		MS. TRAHAN:  So, for example, you've got a floor poured and you're
ready to put some holes through it, and so you know when Holes,
Incorporated is scheduled to come in and perhaps the Holes,
Incorporated, if you were to work on the same project, would -- you'd
know that she was coming in.

		MS. VAZQUEZ:  Do you know 100 percent of the time, the 100 percent of
people that are on your project, I think is what she's trying to ask.  I
would think that would be hard.

		MR. TURNER:  Well, first things first.  If everything goes according
to the project documents which have been engineered, and architect, and
all that other stuff, the appropriate holes are sleeved and left out.
So when Kellie comes in --

		MS. VAZQUEZ:  We know why that happens.  It's called prevention
through design.

		MR. TURNER:  It could put you out of work.  So, yes, we know when
Kellie needs to come in, because that impacts the engineering on our
building and we need to ensure that we're not going to create a
structural issue with that.  So we absolutely know when something is
going to be altered on our buildings.

		JUDGE SOLOMON:  How much more do you have?

		MS. TRAHAN:  Well, I think I'll -- if there is time afterwards, I
might come back for a couple.  Thank you, Judge.  Thank you.

		JUDGE SOLOMON:  Next?

		MR. HAMMOCK:  Your Honor, while the next questioner is coming up, can
I just make, underscore a couple of things just for OSHA's
consideration?  One of the things that Kellie was saying was that 75
percent, I think you said, of her business is call-in, which is calling
up and saying I need you to cut a hole in this concrete wall of mine
tomorrow.  And what that means is despite the planning that she does,
she doesn't know necessarily what the silica percent, silica content is
of that or ever, doesn't know if there is going to be someone else right
next to her that's sandblasting.

		And all those affect whether, when she shows up at that job, she's got
to be below 50, because if a compliance officer also shows up, she's got
to be below that.  So the level that she needs to reach is much lower
than 50.

		The other thing that I would just underscore is the coordination that
Kevin spoke of, and I don't know, I have not focused on the economic
analysis, but what he was describing for certainly larger jobs is quite
extensive in terms of costs to do the kind of coordination that a Hunt
would do in that kind of situation, significant time from what I'm
hearing from you.

		MR. TURNER:  Yes.  We have full departments that do nothing but
schedule our projects and continue almost on a daily basis contact with
our projects to make sure everything is phased appropriately.
Obviously, you can't put a ceiling in until you have the structure below
it, so everything goes in an orderly manner if we have our way.

		MS. VAZQUEZ:  And then if I can just reiterate that his schedule
is -- my work is a lot of time emergency based, therefore, it's like I
needed you yesterday, and so the holes that he's saying that should have
been sleeved that now need to be cored, they need us to get in there and
move in there as soon as possible to core those holes so they can run
their electrical, their plumbing, or whatever they're going to do, you
know, cutting the slab.  So there is not a lot of time for us to be able
to go in there and plan.

		We go in with the same factor.  We look at the job and we have the
equipment to do our type of work and to protect our workers.  But
there's not a lot of time.  We can't spend a week planning a concrete
cutting job.  It can't be done.

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

		MR. MATUGA:  Sure.  It's Robert Matuga, M-a-t-u-g-a.  I'm not sure,
Your Honor, if my name is actually on that list or not, but NAHB is who
I work for, the National Association of Home Builders.  We did request
time to speak, and we are going to speak I believe on April 2nd.  A
homebuilder from Kansas, Anthony Zimbelman, will be coming in to
testify.  And, unfortunately, he is in Kansas building homes right now,
so I am the representative.  And, hopefully, you will be allowing me to
ask --

		JUDGE SOLOMON:  Go ahead.

		MR. MATUGA:  -- questions.  Thank you.

		JUDGE SOLOMON:  Go ahead.

		MR. MATUGA:  This question is for Ms. Vazquez and Mr. Turner.  It
seems like you all have spent quite a bit of time reviewing I'm assuming
the Federal Register notice, probably in particular the actual rule,
proposed silica rule itself.  Can you guys give us a sense as to, and
the OSHA staff and the audience, how much time and effort you have
actually put in so far just taking a look at the silica proposed rule?

		MS. VAZQUEZ:  I've been looking -- oh, again, sorry.  I guess since
August of 2013, September, that first weekend that it came out, I went
to Kinko's and I made several copies of it, and I carried it around with
me everywhere.  And read it, read a big proportion of it that first
week, and have continued studying it and going through all the medical
studies, and the coming to D.C. often to have the meetings.  I would say
for the past five months, probably three out of the four weekends of
every month I've been working on it at my house.

		So a lot of time has been spent going through the documents.  And I
still have questions.  I still have questions on how it's going to work
and how Holes can comply, because I'm still very confused by some of the
aspects of the document, but I have spent a lot of time going through
it.

		MR. TURNER:  I actually asked for a code to bill this to, and they
wouldn't let me do that.  I have to commiserate with Kelly in the fact
that since the day this came out, I've spent time every week looking at
this.  I spent a lot of time speaking to IH folks, other folks that
we're associate members with, and how they plan on dealing with this.

		Obviously, luckily, safety isn't trademarked, and so my peers in the
industry and I get together from time to time, and basically we talk
about our best approach to handle whatever is coming down the pike and
whatever may be the hot topic.  And this is obviously a hot topic.  So
if I had to put an hour time frame to it, it would easily be hundreds of
hours.

		MR. MATUGA:  Thank you.  As a follow-up to that, with the time that
you all have spent looking at this, do you have a good sense as to what
your compliance obligations would be under the proposed rule?  I know
that in your testimony you were talking about some of the difficulties
in understanding what the rule was actually saying, what it would
require.  Can you comment on what you believe whether or not you
actually have a good handle on how you would go about complying with
this?

		MS. VAZQUEZ:  I see for Holes, Incorporated to be able to comply, I
would think that we would have to continuous monitor.  So that would be
monitoring each one of my employees every single day for an eight-hour
time weighted average.  So I would think an industrial -- hiring an
industrial hygienist I would think the daily, for my 24 operators, doing
daily monitoring of their activities.

		And then I would also have to hire additional manpower -- if
regulated areas or the written control plans were required, I would have
to hire additional manpower to go to the jobs ahead of time, look at the
jobs, see what needs to be done, see how the regulated areas, how work
with the general contractors or the subcontractors that we're working
for to see how they could be built or where they would be built.

		I guess I see a lot of costs involved in enforcing it, but at the same
time I don't see any exposure less to my employees.  The equipment has
not changed.  My engineering controls are not changing, because I do cut
wet.  I do supply respirators when necessary.  So I don't see their
exposure changing, but I do see a lot of cost going out the door to set
up these other ancillary provisions.

		MR. HAMMOCK:  And I just want to add one thing, if I could.  I do
think that OSHA has recognized historically with this standard the need
to try to make the standard as simple as possible for construction
employers out there, particularly small construction employers.  And
that was one, I think, one of the driving forces behind Table 1.

		I do think, though, as this is currently proposed, it is pretty
complicated.  And as I have been looking through some of the other
comments, I know I think one labor union who also commented, in the
construction industry, recommended a flowchart to try to make it easier
to understand.

		I do think that those types of things would be welcome.  I think what
Kellie and Kevin reflect is however it turns out, it will take employers
a lot of time, and I guess this is a cost of compliance, a lot of time
to sit down with it, figure it out, and then ultimately implement it in
their facilities.  I don't know what the cost, the digit is for that,
but I would think it's going to be quite extensive given the
effectiveness in the construction industry.

		MS. VAZQUEZ:  I think the protective clothing in Houston, Texas, when
our summers are over 100 degrees, the heat stress factors of that, I
don't see how I can have my employees wear those.  And also trying to
convince my operators that respiratory protection will be necessary
every single day to comply with the PEL, I don't see them wanting to
wear respiratory protection every single day, either.

		It's very cumbersome.  I do have two employees that are medically
unfit not to wear respirators.  Therefore, I don't know what I would
have to tell them.  And they are long-term employees.  So it's a lot
to -- if this were to go into effect, it would affect our company a lot
on how we do our day-to-day activities and the cost involved with
enforcing this and complying with it.

		MR. MATUGA:  This question is probably for Mr. Sessions.  Speaking of
small businesses, do you believe has there been enough consideration
given to the economic impact of small businesses that could be I guess
inadvertently blamed for exposures that occurred previously from another
employer?

		As I think you stated in your testimony, there is a lot of turnover in
the construction industry.  Is this a concern that OSHA should take a
look at?

		MR. SESSIONS:  Boy, you're talking about sort of employer liability
and compensation, and that sort of thing for illnesses that may show up,
that may be due to previous exposures, previously under previous
employers.  But that's potentially a difficult issue.  And probably the
attorneys would have more to say about that that the economist.  The
economist would like not to have to deal with that question.

		MR. HAMMOCK:  I will also -- it's a good question.  I will also dodge
it.  But I think it is a good question.  It does underscore the
transient nature of the industry, and it is a significant consideration
that is there.  It is not something that OSHA has historically
considered or is probably required to consider in any way.  But it is a
real consideration for Holes and Hunt and the folks that will have to
deal with that.  It is a very, very real issue.

		MR. MATUGA:  Okay, thanks.  Sort of switching gears, Mr. Hammock, you
had mentioned in this session a little bit of sort of comparing and
contrasting the lead standard, the asbestos standard that OSHA has.  Can
you talk a little bit about the differences between what OSHA has
proposed here for the silica regulation versus the asbestos and lead
standard you sort of mentioned?  Can you expand on that just a little
bit?

		You mentioned that much of the asbestos abatement, much of the lead
abatement has become really specialized and that could be problematic
for silica because it is everywhere on construction sites.

		MR. HAMMOCK:  Yeah, I would.  You know, OSHA's historical perspective
on health standards has been something that has sort of been relatively
consistent over the last 40 years.  Their ancillary provisions have, for
the most part, been upheld by the courts of appeals.  And it is
certainly natural for them to want to continue that and they have had
success.

		I think as I said in the silica world, I think it's just quite
different.  It's an order of magnitude different.  And when I have
spoken with Kellie, and I'll also turn the microphone over to her, she
described it as the lead and asbestos, those were so contained, so small
now on construction sites for a number of reasons, the workers that do
that work are sort of very specialized.  And it's just a very different
thing.

		It does also bring an interesting analytical point that OSHA has made
in the preamble to the proposed rule which is also probably worth
discussing a little bit and that is OSHA has speculated that as this
rule becomes final, you will actually see the same type of
specialization happen in the construction industry.

		OSHA has looked at its past patterns with respect to lead and asbestos
and said, well, the number -- the percentage of workers that are
actually doing those tasks are shrinking because the industry is
reacting and becoming more specialized.  OSHA has suggested that the
same thing might occur here.  In other words, rather than having a
number of different folks exposed to a little bit of silica, you're
going to have fewer folks exposed to a lot of silica.  That would be
what they are suggesting could be a natural reaction.

		Whether or not that takes place with respect to silica, I'm not sure.
But I do think for the Agency's consideration, it does have an impact on
how they are calculating costs and particular technological feasibility.
 And it gets back to the assumption that they make with respect to
whether in an un-sampled portion of a shift, there is going to be zero
or full exposure.

		OSHA is saying on the one hand in the preamble that as this rule goes
final, more folks will be getting more silica exposure for longer
periods of time.  That should be something that they recognize in their
tech feas analysis and certainly their underlying assumption with
respect to an un-sampled portion of a shift in their underlying
analysis.

		I would like to get your perspective, though, Kellie, on the asbestos
and lead piece.

		MS. VAZQUEZ:  Yeah, I do agree that those portions of construction
have gotten smaller and they are more technical.  Asbestos and lead,
they are not the building blocks of construction like concrete is, or a
cement block, or brick or mortar.  So we're dealing with an element that
is the building blocks, or the buildings that we are cutting into, or
that we are building.  And it is everywhere.  And so due to that, it
affects a widespread of construction, not just a specialized part of it.

		JUDGE SOLOMON:  Okay.  Mr. Schneider has been waiting for quite some
time.

		MR. MATUGA:  Can I just ask one quick follow-up question to this?

		JUDGE SOLOMON:  No.  No, you can't.  What can I say?  You're an
interloper.  We may have time later on, but Mr. Schneider has been
standing there for some time, and we have to get back to the --

		MR. MATUGA:  If I can just also thank Mr. Turner, Ms. Vazquez.  I
recognize you all spent an awful lot of time and effort on this.  One of
NHB's members, Bob Masterson, was supposed to testify today, and
unfortunately his schedule couldn't make, you know, accommodate that.
So I appreciate your time.

		MS. VAZQUEZ:  Thanks, Rob.

		JUDGE SOLOMON:  Okay.  It looks like there is somebody behind you,
too, Mr. Schneider.  There wasn't anybody there previously, so --

		MR. SCHNEIDER:  Okay, my name is --

		JUDGE SOLOMON:  It's 3:21, and we'd like to get some time for OSHA.

		MR. SCHNEIDER:  Yeah, of course.  Thank you.

		MR. HAMMOCK:  We're happy to give them their time, Your Honor.

		MR. SCHNEIDER:  My name is Scott Schneider with the Laborers' Health
and Safety Fund.  That's

S-c-h-n-e-i-d-e-r.  And that's here in Washington, D.C.  So I have
questions for each of the panel members.

		The first one I wanted to go to Mr. Hammock.  You said that most of
the operations, most of the time, it was not feasible to control.  Is
that based on your survey data, or is it based on a tally from Table 1
as to how many of those operations --

		MR. HAMMOCK:  It's not necessarily.  I would say, a little bit of
everything, okay, and I'll explain.  My -- our analysis of
technological feasibility is based upon our review of the PEA, looking
at 10 of the 12 tasks that OSHA did and the data that they relied upon.
And based upon the time that we had and looking at their underlying
studies and data, we do not believe that they have been able to make
that finding.

		Now, there is, in my view, and I'm happy to hear differently from
OSHA, there is in my view some overlap between Table 1 and the tech feas
analysis.  And I think if you read the preamble description to Table 1,
they do reference some of the studies in the tech feas analysis to make
the decision about how to handle respiratory protection.  So I think
Table 1 can be used as some barometer as to whether the rule, in and of
itself, its technological feasibility.

		MR. SCHNEIDER:  Okay.  So you haven't like weighted that table by how
common those tasks are?  Because it could be that ones where you have to
use respirators are very uncommon tasks, I don't know.

		MR. HAMMOCK:  Yeah, that's a terrific point.  And our assessment is
not at this point based upon any weighting.  But I would also, and
you're absolutely right, we'll try to do something like that in the
post-hearing comments.

		I would also encourage OSHA to the extent that is the case to also
take us through that analysis in the preamble, because you might be very
right, it may be that these tasks are so rare that it doesn't make any
difference from a tech feas perspective.  It's certainly not readily
apparent from my read of the tech feas analysis or the preamble that
OSHA has done that.  And, again, I might be wrong, but that's my take.

		MR. SCHNEIDER:  Okay.  You listed a number of tasks that you said that
OSHA should have considered.  And do you have any independent exposure
data on those tasks to show what the levels are and are you going to
submit that to the record?

		MR. HAMMOCK:  Yeah, I hope so.  As I said earlier to questioning, we
have asked folks for data.  We have gotten some data.  To the extent we
can get it together, submit it to the record on time, we will absolutely
try to do that.  From the very beginning, we have said to OSHA the more
time the better because getting this data together and making it
meaningful takes a long time.

		MR. SCHNEIDER:  I'm talking about specifically on those tasks that --

		MR. HAMMOCK:  No, I know, I know, yeah.  And the answer to your
question is, yes, we'll do whatever we can to submit that kind of
information to the record.

		MR. SCHNEIDER:  Okay.  Mr. Sessions, you mentioned in your testimony
that there are in many cases productivity benefits from use of controls.
 And like, for example, I know when Ms. Vazquez uses, you know, cuts
concrete, the saw blades wear out and that use of water can help prolong
the life of a saw blade.  Have you calculated any of the benefits of
controls?

		MR. SESSIONS:  No.  And I think OSHA's analysis appropriately
recognizes that there are sometimes productivity benefits of the sort
that you mentioned.  Also, for example, enclosed cabs for heavy
equipment have some benefits in terms of increased operator comfort and
functionality, as well as potentially some dis-benefits in terms of more
frequent need to check jammed HEPA filters and things like that.  But,
yes, conceptually, that's right, there can be productivity benefits, as
well as dis-benefits.

		MR. SCHNEIDER:  But you haven't considered those in your analysis?

		MR. SESSIONS:  We asked respondents to the survey to comment on OSHA's
estimates, positive or negative.  And, in fact, we got a few responses
to the effect that OSHA had missed some benefits that did exist with
control equipment, yes.  So our characterization of the survey responses
was on balance.  They thought that on the whole OSHA had underestimated
the productivity costs, and I cited a couple of dimensions in particular
in which there was consistent thematic observation in that direction.

		MR. HAMMOCK:  That's also something that we can look at, you know.  As