INFORMAL PUBLIC HEARINGS FOR THE PROPOSED RULE

ON OCCUPATIONAL EXPOSURE TO

RESPIRABLE CRYSTALLINE SILICA

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UNITED STATES DEPARTMENT OF LABOR

OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION

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March 21, 2014

9:30 a.m.

Frances Perkins Building Auditorium

200 Constitution Avenue, N.W.

Washington, D.C. 20210

BEFORE: 	DANIEL F. SOLOMON

	   	Administrative Law Judge

DEPARTMENT OF LABOR (DOL):

KRISTEN LINDBERG

Attorney, Office of the Solicitor

ALLISON KRAMER

Attorney, Office of the Solicitor

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA):

WILLIAM PERRY

Acting Director, Directorate of Standards and Guidance

JOSEPH COBLE, Sc.D., CIH

Director, Office of Technological Feasibility

ANNETTE IANNUCCI

Health Scientist, Office of Chemical Hazards

- Non-Metals

TIFFANY DeFOE

Office of Chemical Hazards - Metals

ROBERT BLICKSILVER

Office of Regulatory Analysis - Health

DAVID O'CONNOR

Director, Office of Chemical Hazards - Non-Metals

ROBERT BURT

Acting Deputy Director, Directorate of Standards and Guidance

AFL-CIO:

PEG SEMINARIO

Safety and Health Director, AFL-CIO

FRANKLIN MIRER, Ph.D., CIH

Professor, Environmental and Occupational Health

CUNY School of Public Health

RUTH RUTTENBERG, Ph.D.

President, Ruth Ruttenberg and Associates

AMERICAN INDUSTRIAL HYGIENE ASSOCIATION (AIHA):

DANIEL ANNA, Ph.D., CIH, CSP

Vice President

AMERICAN SOCIETY OF SAFETY ENGINEERS (ASSE):

ADELE ABRAMS, CMSP

Attorney, Law Office of Adele L. Abrams, PC

SMALL BUSINESS ADMINISTRATION (SBA):

BRUCE LUNDEGREN

Assistant Chief Counsel for Advocacy

Office of Advocacy

NATIONAL FEDERATION OF INDEPENDENT BUSINESS (NFIB):

DANIEL BOSCH

Manager, Regulatory Policy

U.S. CHAMBER OF COMMERCE:

HENRY CHAJET

Attorney, Jackson Lewis

GREG SIRIANNI, M.S., CIH

Adjunct Professor, University of New Haven

FATEN SABRY, Ph.D.

Senior Vice President, NERA Economic Consulting

RONALD BIRD, Ph.D.

Senior Regulatory Analyst

OTHER PARTICIPANTS:

CHRIS TRAHAN

Building and Construction Trades Department, AFL-CIO

ELIZABETH NADEAU

Attorney, International Union of Operating Engineers

BILL KOJOLA

National Council for Occupational Safety and Health

DARIUS D. SIVIN, Ph.D.

Health and Safety Department, United Auto Workers

SCOTT SCHNEIDER, CIH

Director of Occupational Safety and Health

Laborers' Health and Safety Fund of North America

TRESSI CORDARO

Attorney, Jackson Lewis

MARC FREEDMAN

Director, Labor Law Policy, U.S. Chamber of Commerce

MATTHEW SHUDTZ

Senior Policy Analyst, Center for Progressive Reform

DANIEL GLUCKSMAN

International Safety Equipment Association

FRANK HEARL

Chief of Staff, NIOSH

OTHER PARTICIPANTS (cont.):

ALAN ECHT

Industrial Hygienist, Division of Applied Research and Technology, NIOSH

LAWRENCE HALPRIN

Attorney, Keller and Heckman, LLP

INDEX

										PAGE

INTRODUCTION

Judge Daniel F. Solomon		  				   PAGEREF Welcome \h  914

AFL-CIO

	Peg Seminario						  	   PAGEREF Seminario \h  917

	Franklin Mirer, Ph.D.				    	   PAGEREF Mirer \h  933

	Ruth Ruttenberg, Ph.D.				   	   PAGEREF Ruttenberg \h  949

	Questions							 	   PAGEREF Aquestions \h  968

AMERICAN INDUSTRIAL HYGIENE ASSOCIATION (AIHA)

and AMERICAN SOCIETY OF SAFETY ENGINEERS (ASSE)

	AIHA - Daniel Anna, Ph.D., CIH, CSP	   	  PAGEREF Anna \h  1025

	ASSE - Adele Abrams, CMSP		   		  PAGEREF Abrams \h  1032

	Questions								  PAGEREF BQuestions \h  1038

SMALL BUSINESS ADMINISTRATION (SBA)

	Bruce Lundegren					       PAGEREF Lundegren \h  1057

	Questions								  PAGEREF Cquestions \h  1067

NATIONAL FEDERATION OF INDEPENDENT BUSINESS

(NFIB)

	Daniel Bosch						  	  PAGEREF Bosch \h  1073

	Questions							    	  PAGEREF Dquestion \h  1082

INDEX

										PAGE

U.S. CHAMBER OF COMMERCE

	Greg Sirianni, M.S., CIH				  	  PAGEREF Sirianni \h  1090

	Faten Sabry, Ph.D.					 	  PAGEREF Sabry \h  1105

	Ronald Bird, Ph.D.					 	  PAGEREF Bird \h  1113

	Henry Chajet						  	  PAGEREF Chajet \h  1130

	Questions								  PAGEREF Equestions \h  1144

ADJOURNMENT							  	  PAGEREF Adjourn \h  1207

EXHIBITS

EXHIBITS		DESCRIPTION				 	PAGE

Exhibit 28	Zenz article			    	 	   PAGEREF Exhibit28 \h  914

Exhibit 29	Dr. Mirer's PowerPoint			   PAGEREF Exhibit29 \h  999

Exhibit 30 	Ms. Abrams' testimony			  PAGEREF Ex30and31 \h  1055

Exhibit 31	Dr. Anna's testimony			  PAGEREF Ex30and31 \h  1055

Exhibit 32	Mr. Lundegren's statement		  PAGEREF Ex32 \h  1066

Exhibit 33	Mr. Bosch's comments			  PAGEREF Ex33 \h  1081

Exhibit 34	NFIB Executive Summary			  PAGEREF Ex34 \h  1081

Exhibit 35	Dr. Sabry's PowerPoint			  PAGEREF Ex35and36 \h  1143

Exhibit 36	Mr. Chajet's PowerPoint			  PAGEREF Ex35and36 \h  1143

Exhibit 37 	Reserved - photo of air helmet 	  PAGEREF Exhibit37 \h  1144

P R O C E E D I N G S

(9:30 a.m.)

		JUDGE SOLOMON:  Okay.  We're back on the record.  I'm Daniel Solomon.
I'm an administrative law judge with the United States Department of
Labor, and my address is 800 K Street, Northwest, 4th Floor, Washington,
D.C.

		Ms. Lindberg, do you want to enter your appearance again for the
record?

		MS. LINDBERG:  Sure.  My name is Kristen Lindberg.  I'm an attorney
with the Office of the Solicitor here at the Department of Labor.

		If you don't mind, Judge, I'd like to offer one exhibit to the record.
 This is a submission sent in by Dr. James Cone, who testified
yesterday.  It's a publication entitled, "Analysis of Ventilation in
Older Workers in Foundry Machine Shops and Office."  The author is Carl
Zenz, Z-e-n-z, et al.  And if you don't mind, I'm going to mark this as
Exhibit Number 28.

		JUDGE SOLOMON:  Okay.  Without objection, it's entered into the
record.

(Whereupon, the document referred to as Hearing Exhibit 28 was marked
and received in evidence.)

 		JUDGE SOLOMON:  There were a couple of exhibits that have not been
offered, and I don't know exactly how we're going to handle that.  So
the record is left open for a couple of exhibits.

		Okay, so the AFL-CIO presentation is probably going to take till about
11:05, and then we will have questioning after that.

		So who's going to start?  So just to make sure that it's in the
record, would you introduce everybody, please?

		MS. SEMINARIO:  I will do that.

		Good morning.  My name is Peg Seminario.  I'm Director of Safety and
Health for the AFL-CIO, a position I've held since 1990.  With me today
is Dr. Franklin Mirer and Dr. Ruth Ruttenberg.

		Dr. Mirer is a toxicologist and a certified industrial hygienist.  He
is currently a professor of environmental and occupational health at the
CUNY School of Public Health, where he has been employed since 2006.
His main academic projects are exposure assessment, risk assessment, and
risk assessment policy as applied to regulation, emphasizing the hazards
in the occupational environment.  And prior to joining the faculty at
CUNY, Dr. Mirer served on the UAW staff as an industrial hygienist since
1975, and Director of the Health and Safety Department at the UAW from
1981 until his retirement in 2006.

		Dr. Mirer has participated in the many OSHA rulemaking proceedings as
well as many authoritative professional advisory bodies related to risk
assessment.  And with regard to silica, his specific experience includes
serving on the NTP Board of Scientific Counselors review, which
recommended the listing of crystalline silica as known to be a human
carcinogen and extensive observation of the health effects and controls
and exposure controls in foundries.

		Dr. Ruth Ruttenberg, on my right, is President of Ruth Ruttenberg and
Associates, a consulting firm with a major focus on economic issues
related to regulation.  Over the past 40 years, Dr. Ruttenberg has
participated in numerous OSHA rulemakings on behalf of the AFL-CIO and
other labor organizations, including the rulemakings on noise, coke oven
emissions, lead and hexavalent chromium.  She has conducted
retrospective evaluations on behalf of OSHA, the Office of Technology
Assessment, and NIEHS on OSHA standards on vinyl chloride, cotton dust,
grain handling, ethylene oxide lockout/tagout, and benzene.  Dr.
Ruttenberg is appearing today to provide testimony on OSHA's preliminary
economic analysis on the proposed silica standard.

		I will present my testimony first, followed by Dr. Mirer, and then Dr.
Ruttenberg.

		Good morning.  The AFL-CIO is a federation of 56 national unions
representing 12½ million working people in this country.  We welcome
the opportunity to present our views on OSHA's proposed silica rule on
occupational exposure to crystalline silica.  Our written comments were
submitted to the docket earlier, and this morning I will summarize that
statement with a focus on those areas where the AFL-CIO believes the
standard should be strengthened to reduce the risk of disease from
silica exposure.

		First, let me say that the AFL-CIO strongly supports OSHA's proposed
respirable silica standard.  This proposed rule is long overdue.  The
proposal will significantly reduce workers' exposure to deadly silica
dust and prevent thousands of deaths and diseases a year.  We believe
the proposal is based on extensive scientific medical evidence and
incorporates well-established proven measures and practices that, when
implemented, will prevent hundreds of deaths each year and thousands of
diseases of silica-related disease.

		First, respirable silica is a serious workplace hazard.  It has been
well recognized that it has, you know, very serious lung damaging
effects and that has been recognized for centuries.  In recent decades
it has been confirmed that, in addition to silicosis, exposure to this
hazard causes other lung diseases, including lung cancer, kidney disease
and other toxic effects.  Millions of workers in a wide range of
industries and occupations are exposed to the deadly hazard, including
workers in construction, foundry operations, shipyards, glassmaking, and
dental laboratories.  Workers in many of these industries are
represented by AFL-CIO- affiliated unions, who will also be appearing at
these hearings and will speak to the silica exposures faced by their
members, the impacts of the diseases caused by the exposures, and how
these exposures can and must be controlled.

		The current OSHA standards to limit workplace exposure to respirable
silica are woefully out of date, adopted more than four decades ago
based on the science and evidence that were available at that time.
These standards allow approximately 100 µg/m3 of exposure in general
industry, and between 250 to 500 µg/m3 in construction and maritime.
The construction standard is so out of date that the measurement
technology that the standard is based on no longer even exists.

		I think it's important to point out that these standards only set a
permissible exposure limit.  There are no requirements for exposure
monitoring, no requirements for medical exam or job-specific training on
silica hazards and control measures.  Since these standards were adopted
in the early '70s, evidence on the adverse health effects of silica has
mounted, and it has since been determined that silica also is a known
human carcinogen as well as causing a range of other effects.

		And in response to this clear and growing evidence that exposure to
crystalline silica poses a serious health risk, NIOSH has recommended
that the standard be reduced, the exposure limits be reduced to 50
µg/m3.  And as importantly, authorities in other countries and
jurisdictions have moved to strengthen their standards and reduce
permissible exposure limits to workers.  Japan, Italy, and the Canadian
provinces of Alberta, Nova Scotia, and Saskatchewan have all set
standards reducing legal permissible exposure limits to 25 µg/m3.  It
is time for the United States to take action to protect workers from
this deadly workplace hazard.

		As has been noted here several times in these hearings, that the
proposed silica standard has been in process for a long time.  It is
overdue.  The delays in this rulemaking have cost thousands of workers
their lives.

		Silica was one of the first hazards that was addressed by the Agency
after the passage of the OSHA Act.  In 1974, OSHA issued an advanced
Notice of Proposed Rulemaking response to NIOSH recommendations.  In my
files I found out that in the late 1970s OSHA developed a draft rule to
control silica exposures in abrasive blasting, and I think I still have
a copy of that somewhere.  But neither of these rulemaking efforts led
to an updated final rules.  And finally 17 years ago, in 1997, following
an enhanced silica enforcement outreach program by OSHA, NIOSH, and
MSHA, silica was again placed on OSHA's regulatory agenda and the
present rulemaking began.  But the development of the rule was slow and
stalled several times, largely for political reasons, in response to
industry objections to OSHA's effort to strengthen the standard.

		And the most recent delay in the development of this rule came after
the draft proposed rule was submitted to OMB for review under Executive
Order 12866 in February of 2011, where it remained under review for more
than 2½ years, despite the requirement under the executive order that
the review be completed within 90 days.  But finally, in August 2013,
the draft rule was released and then finally published in the Federal
Register as a proposal, September 12th, 2013.

		The AFL-CIO welcomed the release and the issuance of the proposed
rule, but we were dismayed to discover that during the OMB review, the
provisions on medical surveillance were weakened, reducing both the
number of workers covered by the medical surveillance provisions and the
frequency exams.

		The delays in the rulemaking have allowed workers to continue to be
exposed to high levels of silica that have cost workers their lives and
their health.  Just looking at OSHA's current risk assessment with the
estimate that the standard when in place will prevent nearly 700 silica
deaths each year and 1600 cases of silica-related disease.  What we see
is that since 1997 when OSHA began this present rulemaking, an estimated
11,600 workers have died and 27,000 workers have become ill due to
silica exposures that could have and should have been prevented, and
every day that a new standard is delayed, workers will continue to be at
increased risk of death and disease.

		I would now like to turn to the standard that has been proposed, and
my comments this morning will focus on the proposed standard for general
industry and how the rule could and should be strengthened.  The
Building and Construction Trades Department will be testifying next
week, and their testimony will address the proposed construction
standard.

		The first point I would like to make is it is clear from the available
evidence and the risk assessment that silica exposures at the existing
general industry standard of 100 µg/m3 poses a significant risk of harm
to workers.  The risk estimates have been, you know, set forth by OSHA
and I think everyone agrees they are very, very high.  It is a very high
level of risk, particularly compared to other substances to which
workers have been exposed that have been regulated by OSHA.

		And while I'm focusing on the general industry's proposal here, I
think it is important to keep in mind, particularly with those who have
said that the standard does not need to be improved, that the
construction standard allows exposures that are two and a half to five
times those allowed in general industry.  So the risks that are posed to
those workers, who are the greatest numbers of workers exposed, is much,
much greater.

		And so the risk of death from silica exposures that are permitted
under the current standard are clearly significant.  They're well in
excess of the benchmark 1 in 1,000 excess risk that OSHA has used as a
benchmark in other health standards.  And even at the proposed
permissible exposure limit of 50, workers will still face a significant
risk of death from silica exposure.  And, again, those risks that OSHA
has estimated are very high, particularly compared to other substances
that have been regulated by the Agency.  And OSHA itself has
acknowledged that the risk posed to workers at the proposed 50 µg PEL
is significant in that this limit has been proposed due to feasibility
constraints.  Looking at OSHA's risk assessment, it indicates a further
reduction in the PEL to 25 would significantly reduce these risks.

		The AFL-CIO believes that given the high levels of risk that are posed
to workers at the proposed PEL, it is most important that OSHA carefully
review the full record when the rulemaking is completed to determine if
the evidence supports the technological feasibility of a lower PEL and,
if so, include a stricter PEL in the final rule.  At the same time,
given the high level of risk that remains to workers exposed at the PEL,
it is also important for OSHA to consider how the other provisions of
the standard can be strengthened and improved to ensure better control
of silica exposures to further protect and reduce the risk of exposed
workers.  And in that regard, AFL-CIO urges OSHA to strengthen the
general industry standard in the following areas:

		Regulated areas first.  In areas where exposures exceed the PEL, the
proposed standard requires that employers establish a regulated area or
implement a written access plan to limit the number of workers exposed
to silica.  In reviewing the existing body of regulation, I believe this
is the first time in its health standards that OSHA has provided this
option of establishing an actual area that is demarcated or a procedure
that will limit access.  And we are concerned that the written access
control option will not adequately protect workers and limit access to
high exposure areas and think it will be very difficult to enforce.  We
recommend that OSHA eliminate the option of establishing a written
access control plan and limit this provision to regulated areas only.

		The exposure control plan.  The proposed standards to do not include a
requirement for an exposure control plan.  This is in direct contrast to
almost all other OSHA health standards which require a written
compliance plan or exposure control plan.  In looking again at the body
of regulations, my review found that, except for the 13 carcinogens,
which don't have a PEL, every other health standard issued has included
a requirement for some kind of written control plan.

		OSHA hasn't provided any explanation for why it decided not to include
such a requirement for a written compliance plan or exposure control
plan in the silica standard.  And, again, such plans are really
important at the workplace for employers and workers looking at the
particular exposures and coming up with a plan not only to control them
but to keep those exposures under control.  And so we think this is a
very important element of past rules and should be included in the
current standard.

		On respiratory protection, the proposed standard refers to 1910.134,
the general standard on respiratory protection.  There isn't any
provision in 1910.134 or in the silica rule that allows an employee to
request or choose respiratory protection that provides a higher level of
protection.  This has been included in other health standards, including
asbestos and cadmium, and we urge OSHA to include such a provision in
the final rule.

		Turning to medical surveillance, as stated, the proposed standard
includes requirements for medical surveillance.  Those are triggered at
the PEL of 50.  This is the first time that we are aware of that where
OSHA has had an action level that action level has not also triggered
medical surveillance.  As stated before, we were quite concerned when we
saw the draft standard as it went in to OMB and then emerged from OMB,
in that the standard medical surveillance provisions were changed, and
one of the ways they were changed was to change the trigger from the
action level up to the PEL and with that eliminating large numbers of
workers from exposure.

		And, again, it's particularly troubling that this change was made to
eliminate workers who OSHA has acknowledged are at significant risk of
harm, and in other standards the practice has been that where OSHA can
implement additional controls to protect workers at risk, they do so.
That hasn't been done here.  And so we would urge OSHA to look again at
this issue and to set a standard where the medical surveillance in
general industry is triggered at the action level.

		There's a requirement for exposure data.  The exposures will be known
in those sectors.  There's no reason not to cover those workers by
medical surveillance.

		Also, in a large number of OSHA rules, there is a requirement that
medical surveillance also be triggered when a worker reports signs or
symptoms of disease.  Again, that is missing from this rule, and I think
it's critical that the Agency include this kind of provision so if a
worker is demonstrating and coming forward with signs and symptoms of
disease, that they can enter into the medical surveillance program as is
provided by other rules.

		In the area of the physician's written opinion and medical
confidentiality, this is an area that has caused us great concern, as
well as the unions, and you'll hear more about this from the unions as
they testify.  And we are particularly concerned that the standard
allows workers' private medical information to be released to the
employer and that this will put workers at risk of being discriminated
against due to their medical condition.  And specifically, the standard
requires the medical provider to provide the employer with a written
opinion that includes a description of the employee's health condition
as it relates to silica, including the healthcare provider's opinion as
to whether they have detected any medical condition which would place
the employee at increased risk of exposure and recommended limitations
and also on limitations regarding respirators.

		And while the standard doesn't explicitly list medical test related to
silica disease and specific diagnoses as part of what can be released,
there isn't any prohibition on the release of this information.  And,
again, looking at other rules, some of the earlier OSHA standards
actually require the healthcare provider to provide the results of
specific medical tests directly to the employer.

		And we note that since this approach has been used by OSHA, which as
far as I can tell goes back 40 years and has never been changed, there
had been a lot of developments in the area of medical privacy and
confidentiality which, quite frankly, have not been reflected in OSHA
rules.  And looking at the guidance that is provided by ACOEM, again it
is totally out of sync with the guidance that is provided by that
professional organization.  And, again, there's great concern that
employers will use the information to retaliate against workers or
blacklist them from employment in an effort to reduce their obligations
under the standard.

		So we think this is a prime opportunity, and OSHA should definitely
look at this area and in this standard bring its medical surveillance
provisions up to date and reflect current confidentiality practices.
And we recommend that OSHA follow the approach that's in the black lung
regulations of MSHA, its sister agency, and that the final standard
require that the written opinion go directly to the employee, as is the
case in most medical practice, and then the employee can decide what
information is released to the employer, and that is the only
information that should be released.

		And we urge OSHA to look at including a provision in the final rule
that would explicitly prohibit the employer from asking for this
information from the healthcare provider and a prohibition against the
employer for taking any action, adverse action against an employee based
on the employee's participation in the medical surveillance program or
the results of a medical exam.

		The area of medical removal protection, in many of the OSHA health
standards, OSHA has included a provision on MRP, and the reason for
that, the history on that is that MRP is a provision that is necessary
to encourage workers to participate in medical surveillance.  OSHA's
rationale here is that since these conditions for silica are permanent
and not temporary, that it is not appropriate.  We don't agree.  There
are many OSHA standards that include MRP where there are protections for
permanent health conditions, and I could go through and list them.  It's
in my written statement.

		And, again, if the purpose of MRP is primarily as a first order to
encourage participation in medical exams, it is critically important for
workers to participate in medical surveillance for silica.  And so, we
think, absent these protections against retaliation and also the failure
to provide economic protection to workers, they will not participate in
medical surveillance, and so we urge OSHA to include MRP in the final
general industry standard.

		One last area I just want to touch on, and that is in the area of
training and education.  This standard builds on the hazard
communication standard with some additional requirements for employers
to provide employees training about hazards and control measures for
occupational exposure to silica and requirements on control procedures
and medical surveillance.

		And HazCom is a very important rule which we have strongly supported,
but we think that the provisions in this rule, given the exposures to
silica, the hazards that are posed, needs to be enhanced.  And, again,
looking at other standards as the model for what OSHA has done in this
area, the standard must be clear, that there needs to be job-specific
training on control measures, not only what they are, but how they
should be used and how they should be maintained, because the
maintenance of those controls is really important for their
effectiveness.  And, in addition, this standard is lacking a requirement
that when workers are transferred to a job where they may be exposed,
conditions changed, it's not clear that training in those instances is
actually required and what time frame it would be required.

		And, lastly, there isn't any ongoing training.  This looks like it's a
one-time requirement.  And so, again, HazCom doesn't have any
obligations on an ongoing basis.  Most of the other comprehensive health
standards dealing with significant health risk like silica include
provisions for regular and follow-up training, and we would encourage
OSHA to do the same.

		Related to training and employee information, I looked hard but
couldn't find in the standard any requirement for the employer to
actually post the workplace about silica hazards and exposures.  In
virtually every other standard there's very clear requirements for the
kind of signage, the text of that signage providing people, the workers
in the area who are exposed, warnings.  It seems like a very
straightforward issue, particularly in fixed workplaces, And, again,
this is not required under hazard communication.  It is something that
should be added to the final standard so that workers have ready access
to information that silica is present and there is a significant hazard.

		In summary, the AFL-CIO strongly supports OSHA's proposed respirable
silica standard.  This critical protection is long underdue -- overdue
and it will significantly reduce workers' exposure to the deadly silica
dust and prevent thousands of deaths and diseases a year.  As I have
stated, we believe a number of the standards' provisions need to be
strengthened, but I would emphasize, most importantly, the AFL-CIO urges
OSHA to move expeditiously without further delay to complete this
rulemaking and issue a final silica standard to protect workers from
unnecessary disease and death.

		Thank you.

		I now turn to Dr. Mirer.

		DR. MIRER:  Okay.  Thank you.

		In the course of my testimony I will refer back to some of the
experiences and qualifications which support the statements I'm going to
make.  And so, I've been to quite a few OSHA rulemaking -- let me just
do this here -- quite a few OSHA rulemaking hearings, and I never had
a -- now I'm a professor, I have to have a PowerPoint.  I have to have
learning objectives.  And these are the learning objectives.

		MS. LINDBERG:  Will there be a test?

		DR. MIRER:  We can try that later.  That's -- but, see, if you guys
fail the test, then I get fired because that's the way it works with
teachers.  If your students don't pass, you get fired.

		Anyway, the main points of this are silica exposure at prevailing
levels at the current PEL of 100 µg, at the proposed PEL of 50 µg,
subjects workers to a significant risk of lung cancer, COPD, silicosis,
and other health conditions which have been emerging in recent years.
These conclusions are based on multiple studies of workers.  And the
risk assessment principle is that if something turns up in an
epidemiologic study, it's a major, major problem.  Not everything is
found in epidemiology, but if it is found, it's a major problem.

		OSHA's risk assessment procedures supporting this proposal were
advanced and strongly support the proposed rule.  This is a very high
quality document.

		Third, it's feasible to conduct air sampling at exposure levels
equivalent and below the proposed action level of 25 µg/m3.  It's a
straightforward point.  We've heard a lot of chaff about this, but it's
really pretty straightforward.  It's necessary to maintain an action
level trigger below the PEL in order to prevent workers from being
exposed above the PEL.  This is a straightforward statistical issue.

		I have high confidence in OSHA's assessment of technological
feasibility of the proposed PEL in the impacted general industry
segments -- I'll address that in terms of foundry later in my
testimony -- and I conclude with high confidence that it's feasible to
control exposures in many operations in many industries to less than 25
µg/m3, and moderate confidence that control to 25 µg can be achieved
in well-run facilities in the general run of facilities.

		So let's attend to some of the specific issues:

		Risk assessment.  So OSHA did follow the latest recommendations in
risk assessment.  I was a co-author of this 1983 publication by the NAS,
as was Kenny Crump, who was here yesterday and one of OSHA's peer
reviewers.  This was said by NAS to be their best selling ever report,
and so I take some pride in that.

		And we defined the four canonical stages of risk assessment:  hazard
identification, dose-response assessment, and the like.  OSHA followed
that and also followed the recommendations of the newest iteration of
this, Science and Decisions, which says that for nonmalignant endpoints,
non-cancer endpoints, that numerical extrapolation of risk rates should
be done on the same basis that it's done for occupational cancer so they
compare risks and decide what the protection levels ought to be.  And
actually it's a very strong facet of this proposal that OSHA has gone
ahead and done that, and actually adopting recommendations made in the
academic setting.

		So talking a little bit about looking back down memory lane about
silica.  When I was starting out in the '70s, silica was a pure -- the
effect was a pure restrictive lung disease diagnosed on x-ray.  And as
time went by, other problems emerged.  A NIOSH criteria document in 1974
expanded concern to lung function to obstruction as well as restriction,
and that was part of the basis of reducing the proposed -- the REL to
50 µg/m3.

		This was the seminal conference which Dr. Goldsmith organized.  In
1984, compiling evidence for the existence of lung cancer from silica
exposure, I presented at that conference this UAW study we'll talk about
a little longer later.

		IARC has classified exposure to both foundry environment and silica,
evolved over the years.  Foundry has been in front of silica over this
time, but there have been some comments about bias confounding problems
with the epidemiology studies.  IARC has active practicing scientists
review -- I've been on two IARC monographs, but not these monographs,
monograph working groups.  It's been dealt with.  It's been dealt with
over a week of intense discussion between the scientists who are on
these committees, as to whether there's chance bias in confounding which
might have led to these results, and by 1987 for foundries and 1997 for
silica, and it's been decided and reaffirmed.

		So people who don't believe it are deniers, pure and simple.  This is
the scientific consensus.  I was on the NTP Board of Scientific
Counselors when we reviewed the same data.  Known to be a human
carcinogen.  Once you know it's a human carcinogen from studies in
humans, you can calculate risk rates.  It's as simple as that.

		And let's see where we are here.  Let me go  -- oh, one other issue.
Biological plausibility is an important part of interpreting
epidemiology, and the biological plausibility, among other things, is
proved by laboratory bioassays.  Silica was bioassayed three times, or
four by accident.  It was selected as the fibrogenic control for things
that were feared to be carcinogenic, and it turned out that the
carcinogenicity of these agents was due to the silica.

		These studies were not as sensitive as if they had been conducted
according to NTP protocols, but again, they are clear evidence and they
actually showed silica -- the results for silica emerged before the
actual positive bioassays for tobacco smoke were published, and silica
is way more potent, way more potent than tobacco smoke, has the effect
at a lower exposure level, much lower exposure level.

		So let's go on here.  This is the first study was Mount St. Helens
ash, and the second study was oil shale dust, and so forth.

		Finally, the collection of all this epidemiologic data, we have 10
pooled studies, 10 cohorts.  This is the basis for OSHA's risk
assessment, but it doesn't -- this is not a backroom, you know,
commissioned calculation.  These are peer-reviewed studies by major
researchers to generate these risk rates.

		Now, let's turn to what the risk rates are, and the virtue of doing
numerical extrapolation from the epidemiologic studies.  And again to
say, this is not much extrapolation.  These studies are pretty much at
exposure levels equivalent to what we have now.  So we're not
extrapolating a lot.  We're just calculating the point estimate of the
risk practically.

		And what's important here is that -- well, how did I generate this
table?  I took OSHA's table and I subtracted silicosis risk rates from
nonmalignant -- from overall NMRD rate and to get NMRD without
silicosis.  And it's clear that if you look here at these levels
that -- no, I should be doing it up here, right?  You guys can't see
that.

		Anyway, the bulk of the mortality is coming from nonmalignant
respiratory disease other than mortality -- other than silicosis, and
the mortality, next is lung cancer, and only at the end of it comes
silicosis.  So silicosis is the tip of the iceberg.

		And if we do some arithmetic -- oh, and one other comment.  OSHA
probably would do better to settle on a central estimate of the lung
cancer risk, so you could more readily compare it.  That range of lung
cancer risk is from several other studies, different sets of studies,
and it might be better to center on a central estimate of that so that
you could compare directly lung cancer with these other endpoints.  So
that's my peer review.

		But if we look at the risks prevented, by my calculations it's --
arithmetic, 36 out of 1,000 cases would be prevented from going from the
old PEL to the 50 µg/m3, and 54 out of 1,000 deaths from going from the
old PEL to 25.  So there's definitely benefits from going to the lower
exposure level.

		Next issue -- oh.

		MS. SEMINARIO:  That's from general industry, right?

		DR. MIRER:  What?

		MS. SEMINARIO:  That's just for the general industry?

		DR. MIRER:  That's for general industry.  I defer to our construction
colleagues for that same calculation for 250 µg.  But I was not aware
of how much exposure that standard permitted.

		Okay.  Carcinogenic potential demonstrated in 1983 by accident.
Direct observations of cancer among workers long observed, not fully
recognized until 1997.  Slope factors could have been calculated but
were not compiled until the OSHA package just published.  Toxic
potential has been extended to COPD, kidney, and autoimmune, and even
the action level leaves behind very high risks.

		Now, some other points, not so highfalutin, but these are CIH kinds of
points.  Air sampling is feasible at 25 µg/m3 and below for full shift
and even for part shift.  It was dealt with adequately in the OSHA
proposal.  There's been some chaff thrown at that.  Nothing can be more
complex than the methods people, laboratory people explaining what they
do.  So the original proposal was feasible.  OSHA did not take advantage
even of improvements in technology since that old method was actually
created in 1970s, which are higher flow pumps, possibly the use of
impactors rather than the cyclone.  They're much more convenient.

		I've been told that this is not the best pump.  I got it off the
Internet.  There are better pumps than this one.  And this one goes to 4
liters and you can get pumps that go up to 12 liters, and every liter
you increase over 2 is improved sensitivity.

		And, finally, real-time aerosol monitor combined with area samples for
silica would enable source identification, real-time results, knowing
the overexposure within minutes of when it happened rather than waiting
for the lab results to come back.  I believe CPWR has done studies using
this kind of equipment, and the final standard should permit this as an
alternative to the full shift -- you should be able to assess exposure
using this methodology.

		And we have put this into the hands of -- this technology, at the
UAW, we put it in the hands of the UAW GM air sampling technicians who
are hourly workers to map and assess metal working fluid exposures, in
particular.  And that instrument costs about the same as a noise meter,
so it's like a -- it's a bargain compared to the typical industrial
hygiene.

		At the time I prepared my testimony, I did some calculations based on
the advertised 10 µg on a filter, sensitivity of the commercial
laboratories, and since then this is new data.  They've just posted 5
µg.  SKC just posted a 5-µg sensitivity.  So the sensitivity of the
analysis is advertised to be much improved from what was used in the
OSHA assessment.

		Finally let's talk about action level, and I think this all fits
together:  action level, competent person, education and training,
respiratory protection, and continuing monitoring.  It all fits together
into a package which would be very powerful in reducing exposures, even
with whatever technology is in place now, whatever controls are in place
now.

		And so, back to the roots of the action level, the roots of the action
level are in the middle '70s, and it's essentially the conclusion
that -- everybody knows this.  All CIH-ers are supposed to know this.
If you get an air sample according to this at above half the PEL, you
can be pretty certain that there are exposures above the PEL happening.
So a small number of samples underestimates exposure, but the action
level is promulgated based on much less variable exposure than exists in
the workplace.

		Now, that's not a -- that's a challenge, but it's also an
opportunity, because the variation in exposure day to day, worker to
worker, is not magic random.  Things are happening to cause the excess
exposure.  If you identify what's happening on the high days and on the
high workstations, you can discover ways of abating them, and we
actually heard that from the brick people and the sand people the last
couple of days.  However, the action level should be a lower
fraction -- this might be the most radical idea -- the action level
should be at a distinctly lower fraction than one half of the PEL.

		All right.  Foundry issues and technological feasibility.  This
extends -- how am I doing?  I'm doing okay?

		So in my written testimony, there's some general remarks on
feasibility based on the data which OSHA has collected.  As far as I
know, this is the best evidence there is.  The data collection is the
best that's available, and I don't think anybody, except possibly the
foundry people, have presented any competing assessments of exposure
levels.  And the foundry submission says that the exposure levels are
actually lower than OSHA found some years ago, and therefore it makes
the standard even more feasible than it already looks in foundries,
which is the most difficult area.

		So back in the day -- I get a chance to showcase old work.  We
canvassed OSHA offices for UAW represented foundries for, you know,
what's your air sampling results?  So it's not a -- it's not the most
general, but it's actually pretty, pretty general assessment.  And what
we found -- there's some mistakes.  I reproduced my table when I was
young and not able -- and didn't have PowerPoint.  It said that in the
big high production foundries, 38 percent of the air samples taken by
OSHA inspectors were in compliance, and so the remainder were out of
compliance with the PEL, whereas in the small independent foundries,
less mechanized --

		(Tone.)

		DR. MIRER:  Is that me?

		MS. SEMINARIO:  It's your watch.

		DR. MIRER:  Oh.  Actually the majority of the samples were in
compliance.  So this was done with the notion that are the problems in
the big plants or the small plants?  Should OSHA ignore the big plants
and go to the little ones?  The answer is no.  The answer is that
increased mechanization produces more problems.  And so that's -- but
in light of what we said here, this is not the huge overexposures that
everybody's saying happened in the bad old days.  These are, you know,
manageable levels of exposure, and in the captive foundries they were
pretty much managed.

		Going on, General Motors Danville Foundry, the first plant I went into
for the UAW, we eventually conducted a mortality study there.  People
have asked, do you know any sick workers?  We actually don't know the
names of any of these people at this time, but we found --

		(Tone.)

		DR. MIRER:  It's got to be my phone.

		MS. SEMINARIO:  No, no, it's your watch.

		JUDGE SOLOMON:  Well, just for the record, we went from Mozart to
some -- I guess that's just a signal that your time is up, right?

		MS. SEMINARIO:  But he has -- he has more time.

		DR. MIRER:  I asked for a lot of time because I'm -- I think I'm
worth listening to.  You may not agree, but that's what the rules are.

		So we're -- so we found, and this is an old study, 1986, although
this study made it into the IARC review of mortality in the foundry
industry and it made it, I think, into the NTP review also.  And it
would be -- if silica were carcinogenic and they weren't a carcinogenic
risk of foundry work, that would be a real problem for us in doing this
risk assessment, but it's not the case.

		And so, we're pushing about twofold excess for -- a little less than
twofold excess for lung cancer and for respiratory disease, and by my
calculation that meant about 25 excess deaths in the foundry.  And I
believe we had maybe one -- we have check this, Darius.  I think we had
one fatality in this facility.  So that gives you an idea of the
magnitude of fatal disease, fatal burden coming from these chemical
exposures.

		But the most profound -- the thing that struck me most aside from the
excess risk was the excess risk was in the cleaning room.  Cleaning room
is exposure to silica only, not to smoke, not to formaldehyde, not to
metal fume, but it's only silica.  So at that point I was -- decided
that silica had to be a lung carcinogen on that basis, and there's a lot
of other data.

		Now, this is -- I included it because I drew this for the ILO
encyclopedia.  And it shows the foundry operations, and the most
important point from this is that pouring and furnace are operations
where there's no silica generated.  So any silica exposure you find in
these operations is coming from someplace else, and that's also the
finding in the OSHA PEA based on 30 or 40 plant inspections.  The source
of exposure is fugitive silica in the air, and silica being -- fallout
silica being re-suspended by vehicles or by compressed air.

		So that yields this arithmetic.  These are extracted again from the
PEA.  And what do we see here?  We see that even with all of that close
to half of the samples now are below 50, the proposed PEL.  So that
almost gets you to most of the operations most of the time.

		But cleaning is a problem.  Everybody knows it.  And so the mean
exposure in the cleaning samples was almost 200 µg, the median was 77
µg.  Median is a much better statement of the central tendency.  This
is sort of proof of the lognormal distribution.  When your average is
twice or three times what the median is, you know, you have a lognormal
distribution, which means it's being driven by breakdowns, blowouts,
upsets, special circumstances that you could go ahead and control and
bring everything down.

		But the point I -- I wanted to make a quantitative argument here.  If
we subtract cross-contamination -- and cross-contamination is what
you're finding in furnace and pouring.  If you subtract that from
foundries generally or from cleaning room, we're getting in the range of
25 as a feasible exposure limit.  And certainly 50 µg is, I think,
proven feasible by my arithmetic here.

		So general ventilation can be important in controlling fugitive small
particle emissions.  General ventilation is lots cheaper than local
exhaust ventilation and control.  And here is a picture taken from
OSHA's website of a cleaning room, and I think it illustrates what I was
trying to say, which is if we take this guy, this worker, he's exposed
to the dust coming from here and the dust coming from there, the
fugitive dust.  That's where -- as well as what he's generating
himself.  His duty cycle is not 100 percent.  If you isolated him from
those other operations, his exposure would go way down.  But if you look
at the whole cleaning room, the duty cycle probably is 100 percent;
they're generating dust all the time.

		So what I'm saying is there's a virtuous circle here to control; when
you control one operation, you control a lot of other operations.  And
that's the basis for my judgment that, again, high confidence 50 µg,
and moderate to high confidence that 25 µg is feasible, even in a
foundry cleaning room, which is like a big challenge.

		So that's what I got to say.  I'm not going to read my learning
objectives to you again, but I finish every lecture by repeating the
learning objectives, and hopefully this can move the discussion forward.

		DR. RUTTENBERG:  Good morning.  My name is Ruth Ruttenberg, and I am
happy to be here as part of the AFL-CIO panel providing economic
analysis in response to OSHA's preliminary economic analysis of the
proposed silica rule.

		I've appeared before OSHA rulemaking hearings over the last 40 years
on behalf of the AFL-CIO, on behalf of CPWR and other union groups, and
my consulting firm has dealt with regulatory issues, primarily with
OSHA, but also EPA, Consumer Product Safety, Nuclear Regulatory
Commission, and other agencies over the years.  For many years I've also
been a professor at the National Labor College, and many of my teaching
responsibilities have to do with OSHA regulations.  The topic of my
Ph.D. dissertation was also on the technology forcing and the
predictability of future technology when it comes to OSHA rulemaking.

		So I applaud OSHA for proposing this rule.  It's long overdue, and all
of those who are workers exposed to silica, all of those who work on
behalf of those folks, are very pleased that this rule has been issued,
that the proposed rule has been issued.  It's heartening also to see
that OSHA has found that every aspect of the proposed rule is both
economically and technologically feasible.  I urge you to issue this
rule expeditiously, as it will save nearly 700 lives a year, almost 1600
serious illnesses a year.  And if you look at the 40 years of delay in
this rulemaking, it's literally millions of workers being exposed over
time.  And having worked with many of these folks, it's a really
disastrous result of a work experience, to go to work and end up with
silica-related disease.

		So trained as an economist, and I'm going to talk about the economics.
 I think we have to be forever mindful of why we're here, and that is
that the economic system breaks down, workers are not protected when
they are put at serious risk, and that there really is a need for the
regulatory process to intervene in the marketplace so that all the
externalities that every economist, whether they're conservatively
oriented, business oriented, progressively oriented, labor oriented,
whatever, all economists believe that externalities should be brought
into an equation whenever possible.

		The conclusions that can be drawn from my testimony are that OSHA
could reasonably require more in its proposal for no increase in cost,
or require what it proposes for less money than it currently estimates.
Additional significant benefits beyond those identified currently by
OSHA will come to workers, employers, and taxpayers once the rule is
implemented, and these too are discussed as I proceed.

		First, a backdrop, which I have briefly mentioned, of economics and
ethics.  We all know that there is a fundamental paradigm conflict when
conventional economics and industry costs dominate the debate.  This has
been part of every OSHA rulemaking since the '70s.  The domination of
economics in health and safety workplace decisions poses a problem.
Social regulatory policies such as occupational safety and health is in
the public domain precisely because the economic system has failed to
achieve an adequate solution to the problems of workplace hazards.

		Built into the economic analysis that leads to management decisions
are the costs industry is likely to incur and the income that is likely
to accrue.  If industry does not pay for or pays little for a degraded
environment or for sick or injured or dead workers, these problems are
likely to be ignored.  If a business incurs no consequences for the pain
and suffering of an individual worker and his or her family, if a
business continues to have a ready supply of labor, if a business incurs
no additional cost despite increases in public expenditures for
hospitals, research and transfer payments, then all these issues remain
external to business decision making and are treated as if they are
zero.

		Businesses have been getting valuable goods for free, but when asked
to clean up or prevent the negative consequences of their actions, they
often respond as if the burden should not be theirs.  All economists,
all economists, regardless of political persuasion, in theory, agree
that externality should be incorporated into economic decision making.
While the burden of an industry would not be high as estimated by OSHA,
the burden on silica-exposed workers and their families is
extraordinarily high.

		In construction and shipyards, for example, at current PELs, workers
face 37 to 653 deaths per 1,000.  And as Peg mentioned, 1 per 1,000 has
generally been the threshold at which concern begins.  According to
OSHA's assessments in general industry, more than 150 out of 1,000
silica-exposed workers currently die from their exposure.

		Based on the discussion below, costs may actually be many millions of
dollars lower and benefits billions of dollars higher than the OSHA PEA
suggests.  Curiously, as I read industry testimony talking about the
economics of this proposed rule, workers were absent and benefits were
absent.  The only thing that was in discussion, the only thing that was
mentioned at all were costs, and I find this an extremely unbalanced
view for any economist to take.

		So what are some of the examples of OSHA's estimated costs being too
high?  Since the beginning of OSHA over 40 years ago, OSHA analyses have
overestimated costs and underestimated benefits consistently.  This has
been documented in the literature and further corroborated by a number
of OSHA 610 lookback reviews, some of which I authored as a consultant
to OSHA myself.

		Methodology and analytic techniques at OSHA have improved considerably
over the years, and the results of more recent studies are far more
credible than they were previously.  But overly conservative assumptions
and evaluation of data continue to dominate economic and technological
feasibility work, and I want to just mention and highlight a few of
these.

		Number 1.  OSHA overestimates costs when it makes estimates based on
current-level technology only.  Technological improvements, both
engineering and scientific are constantly occurring, especially when
there's a pressure pending or existing regulation.  They provide a
strong incentive to find a way to comply at a lower cost.  The genius of
American industry basically is that once engineers and scientists are
given the challenge of figuring out how to solve a problem, they bring
that to bear, and these technological improvements follow through.  And
every single rulemaking -- I mean, I could go through every rule that
OSHA's been through, the technological improvements that are
consistently and predictably there.

		So these improvements are well documented following promulgation of
rules for vinyl chloride, for coke ovens, for lead, for asbestos, for
lockout/tagout, for cotton dust, for formaldehyde, for ethylene oxide,
for a host of others.  The consistent pattern is that OSHA looks at a
snapshot of what is -- of the technology that exists at the current
moment, feeling that it's not in their purview, I guess, to look into
the crystal ball, but that that crystal ball proverbially leads to
technological improvements which are cost cutting and sometimes even
productivity enhancing.

		OSHA admits that new technology, though, is likely to emerge, saying,
for example, in the PEA the costs presented here do not take into
account the likely development and dissemination of costs in using
compliance technology in response to the proposed rule.  In fact, OSHA's
already predicted what several technological and cost-saving advances
with silica might be, even though the Agency does not incorporate these
cost savings into its analysis, so that if you go to the preliminary
economic analysis, as an example, OSHA predicts that there will be an
expanded use of automated processes which would allow workers to be
isolated from the points of operation that involve silica exposure.

		There would be further development in use of bags with valves that
seal effectively when filled, thereby preventing product leakage and
worker exposure.  There would be integration of compliant control
technology in the reduction equipment as standard equipment, and so
forth.

		And I think what's important is that probably those in specific
industries, both on the union side and on the industry, could give us
lots of these examples of where OSHA hasn't incorporated those cost
savings into its analysis, but if one were to look forward, they would
expect that those would happen.

		Another example of overestimation of costs.  Controls in a non-silica
industry may be easily adaptable to control of silica, thus lowering the
cost of compliance.  And this has happened in many, many other
rulemakings.  While OSHA does not aggressively go out and identify
technologies from non-silica industries that could be easily adapted at
low cost to control silica, its own reports -- not the PEA, but other
reports have identified some of these.  One example just being a 2009
OSHA report on rotary hammers that talks about techniques used in
asbestos control that OSHA says could be adapted to silica control as
well, but those cost savings haven't been incorporated into the
analysis, thus making OSHA's analysis more conservative and with higher
costs than would actually occur.

		OSHA acknowledges that adaptations from hazardous substances to silica
would make compliance even more affordable and even looks at this when
discussing hydraulic fracturing.

		Another example:  Technology will often routinely be built into
equipment after a standard, rather than added on as a retrofit.  So that
while the retrofits are more costly and those are usually the costs that
OSHA uses to estimate the cost of compliance, when incorporated into the
actual equipment, the costs are must lower.  A good example was cotton
dust with the looms that were far cleaner but they were also far faster;
with lockout/tagout, where very quickly the machinery manufacturers put
an easy process in place for locks to be secured on equipment, and the
list goes on there.

		Another example of the overestimation of cost:  There are overlaps in
the proposed silica standard with other health and safety activities,
but OSHA's cost estimates generally do not take these overlaps into
account.  Taking them into account would lower the estimated cost of
compliance with the proposed rule.

		There are examples with respirators with -- and I could give
details -- with exposure assessment, with the assumption of no
portability of records, with the investment of ventilation technology,
and so forth.  So there really are a lot of places where as compliance
comes into place -- and we're seeing it already with ventilation
equipment, that new ventilation equipment is better able to deal with
some of the issues that would be caused by forced compliance with a
regulation, and it's already happening because the machinery
manufacturers are getting their equipment in place to be competitive.

		Another example of OSHA's overestimation of cost has to do with how it
dealt with the economic impact of small business.  And, Frank, I was
fascinated to see that the small foundries were in better compliance,
because usually it's the opposite that's argued.

		OSHA makes an assumption about negative impact on small business and
construction, even though it concluded that costs are not high relative
to profit.  Also, OSHA ignored the fact that other small businesses
would be created to respond to the rule.

		I once did a lot of work on what I call the hazard abatement and
pollution control industry, which is a side benefit of regulation and
better air, better water, safer environments for workers, where there
literally have been thousands of small businesses created, everywhere
from safety boots to ventilation equipment.  There have been thousands
of subsidiaries of large corporations that sell equipment that not only
solve their own problems but that are profit makers for them to sell to
other companies.  These new businesses and new subsidiaries provide
compliance services, recordkeeping, training, medical services, and they
create employment, and they pay taxes, and they make positive
contributions to the overall U.S. economy.  So I don't think we should
forget those at all.

		Another example of overestimation of cost is OSHA used an inflated
size of the construction workforce and the number of construction
establishments.  This has been a really challenging issue for people on
a lot of levels of how to deal with the Great Recession.  Was the Great
Recession a blip in a typical cycle, or is it an entirely new trajectory
in which construction may not ever recover in the way it did, in which
the types of jobs and the organization of jobs and the organization of
work teams might end up being quite different.  So that using a 2006
census number of 13.1 million workers when there really are only -- are
not even 6 million construction workers now, is something that clearly
inflated the cost.  And I understand that, you know, OSHA's under a
great challenge when the economy is moving around in the way it has, but
if the paradigm is shifted, clearly those numbers need to be reworked.

		Okay, another example of overestimation of cost is the
oversimplification of turnover which inflates cost.  OSHA cites turnover
rates of 64 percent for construction and 27 percent for general
industry, and uses these in assessing the cost of medical surveillance,
training, et cetera.  But when individuals leave their jobs, it doesn't
mean that they leave their industry.  An abrasive blaster may well
continue as an abrasive blaster on another job.  A master craftsman in
drywall finishing is more likely to stay in drywall finishing than not
because of their specialized training.  Likewise, a tuckpointing or
heavy equipment operating, that the portability of training and medical
surveillance will also help avoid duplication of services.  And all
these need to be thought of as overestimates in the cost of compliance.

		Another example:  As processes and controls are upgraded, exposure
levels will go down, and these reductions may bring exposures below the
action level and thus decrease compliance costs.

		Another example:  OSHA overestimates cost when it assumes a low level
of controls currently in place to protect exposed workers.  OSHA and its
contractor, ERG, concluded that the large majority of overexposed
workers lacked relevant controls, that overexposures occurred due to the
absence of suitable controls.  OSHA goes on then to rightly admit that
this assumption could in some cases result in an overestimate of cost
where employers merely need to upgrade or better maintain existing
controls or to improve work practices.

		Another example -- and just a few more.  I mean, one could go on and
on and on with all the places where OSHA was conservative in its
estimates and therefore the costs really are not going to be as high as
OSHA has estimated.

		An assumption of a negative impact on productivity led to an
overestimate of cost by OSHA.  This is yet another example of OSHA
erring on the side of being conservative in its cost estimates.  Despite
the fact that some who are interviewed suggested that there would be a
positive impact on productivity, OSHA's PEA assessed anywhere from a
zero to a five percent penalty in productivity loss as a result of OSHA
compliance with the proposed silica rule.

		The impact of an assumption of lost productivity can be profound, and
OSHA acknowledges this.  In its PEA, OSHA says the magnitude of the
productivity impacts can substantially change the estimate of the
overall cost increase associated with controls.  OSHA's estimate in this
preliminary analysis reflects ERG's best professional judgment, it says,
about the likely magnitude of these impacts.  Some of the estimates may
be conservative because under some scenarios for certain tasks the
productivity impacts could be significantly smaller or even positive.
So OSHA acknowledges that the costs are probably lower but uses a higher
estimate.

		And the list goes on.  It's amazing to me that with all that
conservative estimation going on, that one can really begin to talk
about cost being underestimated, as some have suggested at these
hearings.

		And what I really feel very, very strongly about is that OSHA's
estimated benefits are far too low.  I've recently been doing a fair
amount of work on taxpayer burden from regulation.  And whether it's
individual taxpayers or corporate taxpayers, I have pages in my written
testimony that discuss why the benefits are underestimated, and probably
the benefits are two to four times higher when you include all of the
social and economic impact of not regulating.  So that when you prevent
a worker from becoming ill, not only are you preventing that worker from
becoming ill, but you're helping the family be a healthier family.

		I can't tell you how many hundreds and hundreds and hundreds of
children don't go to college because they have to support their families
because they have sick parents.  I mean, and that's hundreds of
thousands of dollars in lifetime earnings that those families are
losing.  I mean, OSHA doesn't come anywhere near trying to grab and
incorporate those folks into the scenario.

		And I was fascinated by some of the prepared testimony from the
Chamber of Commerce that talks about exactly those kind of impacts on
unemployed workers when they were concerned about those unemployed
workers losing their jobs because of the regulation.  Well, you know,
for a sick worker, there are all of those things that the Chamber talks
about happening in unemployment plus all of the medical and health
related issues.  So all of that needs to be considered.

		Also, OSHA uses a very low value, if you're going to put a dollar
value on human life.  Kip Viscusi, one of the most conservative
economists around, uses twice the value that you use.  So that that
would, right there, double the benefits in terms of every life that's
saved as a result of the regulation.

		And then we have to think about healthcare costs.  Many of the people
who become ill from silica are already over 65 because of the latency
period, and well over 60 percent of every healthcare dollar of people
over 65 is paid for out of our tax money.  So that if one wanted to
reduce the cost of Medicare, this is one really good way to do it, to
prevent older people from the kind of illness that comes.

		And there are all kinds of other third-party transfers that -- I
think it's about 43 percent of all the healthcare dollars pre-Obamacare
came out of the federal sector.  All the veterans who also go to work
and are exposed to silica get their care federally funded out of the
Veterans Administration.  There is the CHIP program, and there's the
Social Security disability, and I could go on and on costing out what
the burden is to us as taxpayers when industry allows people to get
sick.

		So through all of those examples, we need to be ever mindful of the
fact that the cost of not regulating or the benefits from the regulation
are much, much, much higher.

		And very quickly, just in summary, OSHA's made a sound case for the
economic and technological feasibility of the standard even when
underestimating benefits and overestimating the cost.  When greater
benefits and fewer costs, as indicated throughout the testimony, occur,
OSHA could lower the PEL, tighten the exposure monitoring, have more
frequent medical surveillance, and/or provide more significant training.
 New and less expensive control technology will emerge.  The genius of
U.S. scientists and engineers always has this occur.  OSHA and its
contractors seem to measure what was methodologically easy to measure,
but what is hard to measure is just as important, and full measurement
could very likely change the decision process even further.

		It's unclear why OSHA didn't choose a 25 µg/m PEL.  In fact, by
OSHA's own estimates there would be more than $1.1 billion increase in
benefits in 2009 dollars, with the cost estimates going from 25 to 50
rising much less, by 670 million.

		Many have died waiting for the standard.  For decades, thousands of
people each year have become sick or died from silica exposure.  More
than 500,000 workers each year are exposed to more than 100 µg of
crystalline silica now, which is 20 million people years over the last
40 years.  But in the OSHA equation, benefits outweigh costs regardless
of how you measure.  These foregone benefits are not insignificant at
OSHA's estimate of annualized net benefits of 4.6 billion.

		Decades of endangering workers has led to inordinate suffering and
dying as well as hundreds of millions of dollars of taxpayer money to
support the victims, while industry has foregone cleanup costs.  The
expected outcomes of regulation cannot possibly be understood without
reference to what would have happened in its absence.  What happened in
its absence, thousands of deaths and illnesses, millions expended by
taxpayers to help the victims and industry reaping increased profits by
not compensating society for the harm that it has caused.

		Part of the health and safety decision making in the regulatory
process historically has been industry, excuse me, crying wolf, claiming
a regulation put them into economic danger when really it did not.
Analysis for the 21st century needs to take this historic reality into
account.  OSHA lookback studies have consistently found that the costs
are not nearly as high as OSHA and, particularly, industry say they will
be.

		Thank you, OSHA, for this proposed rule.  Please issue it quickly.
This year another 688 workers will die, and 1,585 will become seriously
ill for not having a PEL of 50 µg.  Time is of the essence for them.

		MS. SEMINARIO:  And that concludes our testimony.

		JUDGE SOLOMON:  Thank you.  Actually, we're a little bit ahead of
time, but we estimated about 50 minutes between the questioning from the
public and from OSHA.  So how many people from the public have
questions?  Okay, we do have a number.

		All right, starting at this row right here, perhaps you can line up.
Come forward, state your name -- you've been here before, but you have
to spell your last name.  We had some problems --

		MS. TRAHAN:  Chris Trahan, T-r-a-h-a-n, with the Building Trades.  I
wanted to ask you, Ruth, a couple of questions.  You talked a little
about retrospective studies, lookback studies.  Can you describe that a
little bit more?  Like, do you have any idea of the number or how many
retrospective or lookback studies found that OSHA underestimated costs?

		DR. RUTTENBERG:  Every single lookback study has showed that OSHA
overestimated the costs.  And, I mean, it's to be expected just because
of the methodology, that if you expect industry to operate in its best
interest, it's going to find the cheapest and most efficient ways to
comply with the regulation, and that often means technological
improvements, which by OSHA's methodology isn't included because they
don't want to get into the crystal ball game.  So when you have an
incentive for people to do things more efficiently and they find ways,
they're going to find cheaper ways to do it.

		MS. TRAHAN:  Do the lookback studies look at benefits?

		DR. RUTTENBERG:  Some of them do, and some of them are more quantified
than others, so, you know --

		MR. TRAHAN:  Uh-huh.  So do they see anything with the benefits as
compared to what was estimated by OSHA?

		DR. RUTTENBERG:  Well, one of the things that they -- it depends how
you're defining benefits.  If it's benefits to industry, they look at
that.  Because there are industry claims of potential plant closings or
potential movement of plants overseas, and in a lookback you can
actually measure that.  You can see whether or not companies have folded
or not, whether or not there's been movement overseas as a result.  So
those benefits are clearly looked at.

		When trying to measure the benefits of how many fewer workers are
sick, that's a little more difficult because we don't have the kind of
registries in this country that allow us to get really good disease
data.

		MS. TRAHAN:  Yeah, we've -- there's been some discussion on our
lacking surveillance system, I think, already in the hearing.  But you
talked about plant closings or loss of business or -- what has the
lookback seen or what do we -- what evidence have we seen and --

		DR. RUTTENBERG:  Well, my favorite one was in grain handling, where
dozens and dozens, well over 100 companies wrote in to say that they
would go out of business with a grain handling rule.  And so, when I did
the lookback study for OSHA, I called them all up, and one of them had a
disconnected number.  I have no idea whether they were in business or
not, but every single other one, 119 of them answered the telephone.  So
this claim that businesses are going to fold -- the only business that
I know that folded was really going to fold anyway, and when you looked
at the economics -- they blamed it on the rule, but the rule wasn't --
I mean, it was in such trouble beforehand.

		MS. TRAHAN:  Okay.  Thank you.

		DR. RUTTENBERG:  Thank you.

		JUDGE SOLOMON:  Next.

		MS. NADEAU:  Liz Nadeau, International Union of Operating Engineers,
N-a-d-e-a-u.  I have a question for Frank Mirer first.

		Your testimony notes potentially large variability of exposure and
advocates an action of level of less than 50 percent of the PEL.  Does
this variability make compliance more difficult?

		DR. MIRER:  The variability combined with knowing about the
variability through an ongoing monitoring program is the opportunity to
reduce exposure.  Exposures go up and down not by magic but by
particular conditions, differences in work methods, differences in
control efficiency, differences in adjacent operations.

		So just as the brick people said yesterday, and I think the sand
people said yesterday, if you follow up -- if you have continuing
monitoring and you follow up the high levels, you reduce the exposure
average and onward.  And it's being -- I like to say the standard air
sampling method means the industrial hygienist hangs the pump and puts
blinders on, puts a blindfold on, comes back at the end of the shift and
gets the pump and does the analysis, and you lose a lot of the value.

		And, again, we have done this with -- in my history, the best example
probably is Johnson Controls Battery Company, where the UAW health and
safety rep did all the air sampling, also the fit test, also the
statistical analysis, and they were able to dramatically reduce their
exposures with just the same equipment that they had before.  And their
safety manager said they couldn't maintain the lead-in-blood levels
without kind of control technology.

		MS. NADEAU:  I have another question for you.  Your testimony
addressed feasibility of engineering controls in foundries.  Do you have
information on feasibility in other sectors of general industry?

		DR. MIRER:  Well, I did not do the detailed study in those sectors,
but I've been -- we have experience with a dental laboratory.  Well,
dental laboratories are already in compliance at 25, I think.  But we
have experience in pottery, Cullen Manufacturing, and I've toured some
other facilities.  So my view is that if you had -- if there were any
incentive to control those exposures, it could be done relatively
easily.

		MS. NADEAU:  I have a couple more questions.  Is that okay?  Yeah?

		For Ms. Seminario:  Many industry groups have stated that there has
been insufficient time to fully analyze and prepare comments on OSHA's
proposed silica standard.  How does the amount of time that OSHA has
provided for this rulemaking compare to the time for comment on other
major health standards?

		MS. SEMINARIO:  When we started hearing these complaints from the
industry that there wasn't enough time after the rule had been under
development for 17 years, I went back and I looked, and looked at
virtually all the major health standards that had been issued in recent
years, at the rulemaking schedules as to when the proposal had been
issued, how much time for comment, time for hearings, et cetera.  And
what is being provided in silica is, you know, well -- you know, in
conformance, in fact longer amounts of time.

		And these are the major rulemakings.  I didn't look at the -- you
know, some of the smaller rulemakings, but looking at the hazard
communication, global harmonization, which was a major rule covering all
sectors of the economy, looked at hexavalent chromium, looked at
methylene chloride, looked at cadmium, looked at 1,3-butadiene, and
essentially what you have is that this rulemaking is providing the same
amount of time or longer for comment and input.

		And, you know, and we welcome these public hearings.  I think they
provide a forum for the -- you know, for all interested parties to come
forward and to present testimony for people to hear from each other.
And from them you do get a much better, I think, synthesis and culling
in some ways of what the major issues are.  And so I thought it was
really important that OSHA move forward as quickly possible to this
phase of the rulemaking, and with these concluded, hope that they will
again continue to move forward and analyze the record and issue the
final rule certainly before the end of this administration.

		JUDGE SOLOMON:  Let's see how we do with the next three people.

		DR. MIRER:  Could I add something to that?    HYPERLINK
"http://www.regulations.gov/"  Regulations.gov  and the availability of
almost every document in this, except for the copyrighted studies,
almost every document in this rulemaking process is -- it really
facilitates the ability to comment, not just on what OSHA said, but on
what all the other participants have said in advance.  This is a very
well transparent and efficient way of going about it, and we didn't have
that before, and it has to be taken into account when we look at these
time frames.

		JUDGE SOLOMON:  We have three people behind you, so -- but if we have
enough time, I'll call you back.

		MS. NADEAU:  Great.  Thank you.

		MR. KOJOLA:  Thank you very much.  My name is Bill Kojola, and I'm
here representing the National Council for Occupational Safety and
Health.

		JUDGE SOLOMON:  Could you spell your last name, please?

		MR. KOJOLA:  Yes, K-o-j-o-l-a.  Okay, I have a couple of questions for
Peg Seminario.

		Peg, you recommended that OSHA include medical removal protection in
the final silica standard for general industry, yet at the same time you
recommend that the employer be prohibited from receiving medical
information from the examining physician on diagnoses and results
related to silica-related disease; is that correct?

		MS. SEMINARIO:  That's correct.

		MR. KOJOLA:  So how can medical removal protection be provided if the
employer doesn't receive information on recommendations for removal or
transfer due to a silica-related health condition?  Can you explain how
this would work?

		MS. SEMINARIO:  Again, in thinking about this rule, we thought a lot
about, as you saw from my testimony, and looked at what's been the
practice in -- OSHA practice in dealing with other health standards
where that practice has been positive and made a real difference, and
one of the areas is in MRP, we think, for workers exposed to health
hazards.  But as you said, that model under OSHA is different in that
that is all triggered by the results of medical exams and determinations
going to the employer, which create a confidentiality issue.

		And so, looking at, you know, what are other ways of doing this, we
looked at MSHA, where you have lung disease and coal miners receiving
medical exams.  And that approach is different, whereby the decision to
provide the information to the employer is the workers.  It's their
health information.  It's their health status.  They have transfer
rights under the regulations that -- under mine safety, but they are
the ones to make that determination.

		And so what we are proposing here, and we'll be putting in specific
regulatory language to OSHA in our final comments, is that that same
approach work here, that the information goes to the worker, the
recommendation from the physician as to whether they should be removed,
go to the worker, and it's the worker who then makes that determination,
and with their authorization release, the information can be provided to
the employer, but it is not an automatic transfer of the information.
And so, I think the big difference here is that the worker gets to
control their medical information and they get to control, you know, the
decision about their work status.

		MR. KOJOLA:  Okay.  My other question is many industry groups have
argued that the current standard is sufficiently protective and that
OSHA should focus its efforts on enhanced enforcement of the existing
standard.  Do you believe that enhanced enforcement is sufficient to
protect workers from significant risk of disease from exposure to
silica?

		MS. SEMINARIO:  The short answer is no.  I mean, clearly the situation
that we currently have, from all the data that's available and looking
at the exposure data that's available, the data out of the IMIS system
that comes forward, is that there are a lot of workplaces that are
currently out of compliance with the existing rule, with very, very high
levels of exposure.

		One of the difficulties that we have with silica, you know, it's still
regulated as it was when the act was adopted, and that is under a simple
PEL.  Actually, it's not a simple PEL; it's a pretty complicated --

		MR. KOJOLA:  Right.

		MS. SEMINARIO:  -- PEL for both general industry and even more so for
construction.  And as OSHA had commented and I did earlier, the
construction standard is so out of date the technology for measuring the
standard as it's presented doesn't even exist, and so they have to go
through a conversion factor, and so it's quite difficult.  But it's all
dependent, the whole standard, all the exposure is dependent upon the
kind of air monitoring that Dr. Mirer talks about, is you take a
sample, you send it off to a lab, it comes back, you make a
determination, and then you can enforce.

		And particularly in mobile worksites, and I'm sure the construction
unions will speak more to this when they testify next week, the
exposures may not last that long.  The jobs don't last that long.  And
so, you know, one of the questions is how do you -- and it really was
the focus of much of my comments.  It's a standard that's designed to
get control of the dust.  And so, the exposure level is really
important, but so are all the other provisions of it that bring about
that control.  And so, it's only a PEL.  There are no requirements right
now, there are no requirements for employers in this country to monitor
silica exposure in the workplace.

None.  Which is pretty amazing when you think about it, given what we
know about silica.  There's no requirements for medical exams, none.
There aren't any requirements for the specific kind of training, and
there's certainly not any requirements for MRP and all those other
things.

		And so, simply enforcing the rule doesn't really get you to a level of
exposure, but it's also really not a very good way to control exposures.
 And that doesn't even get to the issue of OSHA's capacity to get out to
workplaces, particularly in construction, where again the bulk of
workers are now exposed to silica.

		And so I think when you just say I'll go, you know, enforce the law,
it's not as though OSHA's getting a lot more money.  I haven't seen the
Chamber or other groups up on the Hill when we're up there trying to get
more enforcement money for OSHA.  It's a fairly lonely exercise.  So
enforcement alone -- I mean, enforcement is necessary.  Enforcement of
the rule is necessary, but the other point I would make, looking at the
history of OSHA, if you look where the huge changes have come and where
this agency has been the most effective, it is with the very
forward-looking standards it has put into place because what they do is
they change practice.  They change practice at whole industries across
the board.  And the Agency can take, you know, great pride and credit
for all it has done in protecting workers.  And I think, so the
standards activity changes the whole baseline.  It doesn't just go in
and deal in particular workplaces.  And so, they need a standard for all
the reasons that I've talked about, you know, backed up by enforcement.
But without the standard, I don't think much is going to change.

		MR. KOJOLA:  Okay.  Thank you very much.

		JUDGE SOLOMON:  Dr. Sivin.  I know how to spell your last name, but
you still have to spell it.

		DR. SIVIN:  Dr. Darius Sivin, United Auto Workers, Health and Safety
Department.  S-i-v-i-n.

		Ms. Seminario, you have recommended that the final standard prohibit
retaliation based on medical examination results.

		MS. SEMINARIO:  Um-hum.

		DR. SIVIN:  Next week the UAW panel will include someone from an
employer against whom the UAW has filed numerous 11(c)'s without much
success.  Could you explain the flaws in 11(c) that might have led to
that lack of success and how a specific prohibition in the standard
against retaliation might do better than 11(c)?

		MS. SEMINARIO:  The 11(c) protections of the OSHA Act are really --
they're important.  As imperfect as they are, they are important because
they do establish as a legal matter that workers cannot be retaliated
against for exercising their rights under the statute.  That being said,
the enforcement mechanisms in 11(c) are very, very weak.  There is
no -- under 11(c), you file a complaint but that complaint has to be
taken up by the Secretary.  It's enforced in District Court.  There
isn't an administrative process like there is for compliance for regular
violations of the standard, you know, through the Review Commission.
And so the process is one that if you look at the program activity with
respect to 11(c), you find that very few cases are actually -- you
know, move forward.  They're not taken up.

		And so one of the things that 11(c) also doesn't, is it doesn't -- it
deals with individual cases, which is important, but it doesn't get to
practice.  It doesn't get to broad practices.  And the concern about
retaliation, it's a broad concern as a practice by employers of
retaliating against workers, whether it's for reporting injuries, for
having a, you know, a disease status, and it's particularly of concern,
I know, for the construction unions with respect to blacklisting for
future employment, that people won't be hired.

		And so we think that it's fundamental to the protection of workers
that that issue be dealt with and dealt with in the context of a silica
rule, where it becomes very clear the practice that, you know, is
allowed/is not allowed, and it's spelled out and that there's
enforcement as part of a comprehensive silica rule.

		DR. SIVIN:  Thank you.

		Dr. Mirer, you presented an epidemiologic study of a UAW foundry which
found elevated rates of cancer, among other things, and you mentioned
that we don't know the names of any of the deceased.  Next week the UAW
panel will include folks who work in foundries and other UAW silica
workplaces who do know the names of sick and deceased people.  Do you
have additional evidence that would corroborate the kind of anecdotal
evidence that will be presented by that panel next week?

		DR. MIRER:  Well, first, it turns -- we actually did know the names
because the local union had been collecting the death certificates, and
so the death certificates had names.  So I misspoke about that, but it's
a long time ago.

		The other thing I left out about that study is that back when GM was
GM, they re-read the chest x-rays -- they were giving regular chest
x-rays.  They re-read the chest x-rays of every one of those
nonmalignant respiratory disease victims and told us that none of them
had silicosis.  So I think it goes to the question of completeness of
silicosis.

		But a study presented by Dr. Rosenman in that foundry in Indianapolis,
that was Chrysler foundry, and the reason why he was able to do that
study as well as he did was because we had negotiated as part of an OSHA
settlement regular air sampling of all the elevated jobs there using the
area sampling real-time monitoring technique that we talked about.
Allis-Chalmers foundry was a UAW foundry, and there's a half a dozen
other -- not half a dozen -- there's several other studies have been
done in UAW- represented plants, and excess mortality was found in most
of them.

		DR. SIVIN:  Thank you.

		JUDGE SOLOMON:  Okay, next.

		MR. SCHNEIDER:  Okay, Scott Schneider with the Laborers' Health and
Safety Fund of North America, and it's S-c-h-n-e-i-d-e-r.

		Dr. Mirer, I had a couple questions for you.  In terms of the need --
in construction we use a lot of competent persons, and there is a
limited provision in the proposed rule for competent persons in
construction.  How could they be beneficial perhaps in the general
industry workplaces and what kind of qualifications should they have?

		DR. MIRER:  Well, to do the -- I mean, it would be nice to say a
certified industrial hygienist has to be in charge of all of these
programs, but you don't need a certified industrial hygienist to operate
what has to be operated.  Unless you know what the exposures are, you
can't train workers how to protect themselves.  Unless you know what the
exposures are and how they vary, you can't implement an effective
respiratory protection program, you can't train the workers, you
can't -- you also can't oversee the control measures, like ventilation
and work methods.  So I think there's definitely a need for --
competent means authority to get things fixed, but it also means
knowledge of what needs to be fixed, and we need it.  In a foundry you
need it.  Probably in a pottery you need it.  And, I mean, the precedent
is in -- I think it has to be defined better in construction than it is
now, but we certainly need it in general industry as well.

		MR. SCHNEIDER:  Okay.  Now, yesterday we heard some testimony from the
sand folks and from others that said that they don't use industrial
hygienists to do their sampling.  The National Industry of Sand
Association said they had 46,000 samples and they train their own
in-house people and it's a lot more cost effective.  What's been your
experience with the UAW IH techs?

		DR. MIRER:  Well, it's -- in General Motors we have a union rep who
does all the air sampling, and he also or she also has responsibly for
the hazard communication and some of the other chemically related
issues, and it's a benefit.  They know the jobs better than somebody
from outside.  They know the people and can interact with the people.
It just works very well.

		And as I mentioned, Johnson Controls was a much more -- they only had
one process and it was -- making batteries is a difficult process.  And
I can say from labor-management relations, we didn't agree with much --
Johnson Controls very much.  We went to the Supreme Court, UAW v.
Johnson Controls.  But on that we agreed that hourly people and -- you
know, can do this.  And certainly the regular kind of facility
management safety rep can do it as well.

		MR. SCHNEIDER:  Okay.  I just have two quick questions.  One is, is
there evidence of a threshold for lung cancer or other silica effects?

		DR. MIRER:  First of all, everybody knows, if we listen to Kenny
Crump, you cannot demonstrate a threshold.  And Crump will say there
might be a threshold, but you don't even know what it is and you can't
demonstrate it.  So there's very limited evidence for that, and most of
the studies quoted for demonstrating threshold effects were very
short-term studies in small groups of animals that found a no-effect
level.  And everybody in the risk assessment field knows that the
no-effect level is about a 10 percent effect level, and it's just a
non-acceptable risk rate.

		So the short of it is no.  And a lot of the discussion of threshold is
confusing a no-effect level with a threshold, which it's not evidence
that there is one.

		MR. SCHNEIDER:  Okay, thank you.

		MS. CORDARO:  I have one quick question.  My name's Tressi Cordaro.
And spell the first and last name?

		JUDGE SOLOMON:  Yes.

		MS. CORDARO:  T-r-e-s-s-i, Cordaro,

C-o-r-d-a-r-o.  I'm with Jackson Lewis.

		This is for Dr. Mirer.  I got your last name right?  Sorry.

		DR. MIRER:  Mirer, yes.

		MS. CORDARO:  Okay.

		DR. MIRER:  Like the quarterback.

		MS. CORDARO:  Okay.  I just want to make sure I understand the scope
of your technological feasibility analysis and the expert conclusions
that you drew.  They were limited in your written testimony, and I'm
assuming here as well.  Those expert conclusions were limited to general
industry and to foundry operations; is that correct?

		DR. MIRER:  Well, general industry is everything and --

		MS. CORDARO:  Except for construction.  Right.

		DR. MIRER:  Except for construction.

		MS. CORDARO:  Okay, so that's what I want to make clear, that your
expert testimony --

		DR. MIRER:  Right.

		MS. CORDARO:  -- with respect to technological feasibility does not
include conclusions with respect to the construction industry?

		DR. MIRER:  No.  I didn't -- I guess you're right.

		MS. CORDARO:  I just want to make sure.  Okay, thank you.  That's all,
thanks.

		JUDGE SOLOMON:  Okay.  Ms. Nadeau, do you want to come back or --

		MS. NADEAU:  Sure.  I have one question.

		I have one more question for Mr. Mirer.  Is a no-effect level evidence
for a threshold?

		DR. MIRER:  Yeah, I think that -- I tried to say that before.  The
answer is no.  A no-effect -- the entire risk assessment structure at
EPA is based on the fact that the no-effect level is an effect level and
that you need to have some means of setting an exposure limit below the
no-effect level in order to protect people.  And how far below is --
some of that is accomplished by the risk extrapolation that OSHA has
done.  But just crudely, you have to go tenfold below before you're
getting any -- you're getting close to a real no-effect level.

		MS. NADEAU:  And I have one question for Ms. Ruttenberg.  In terms of
your economic analysis and the big fact that you -- your discussion of
OSHA's conservative estimate of costs, is there something in your
analysis that deals with the economic costs for persons who cannot work
because they are the caretaker of somebody who has silica?

		DR. RUTTENBERG:  Absolutely.  And, I mean, there are two sides to
that.  You have people who need to hire caretakers and then you have
families where someone has to drop out of the workforce to be that
caretaker, and in both cases, significant financial costs.

		MS. NADEAU:  With silica, have you found that people have prolonged
periods where they need somebody to be daily taking care of them for --
it could be for years potentially?

		DR. RUTTENBERG:  Right.  I mean, once you get a chronic disease that
sets in and is increasingly debilitating, the caretaking is
overwhelming.  And there are also costs that have to do with the space
in a person's home.  I mean, you basically turn a home into a hospital.
And, you know, the most common place for a sick or an ill person to live
is the dining room.  I mean, that's just what people have found.  And
so, nothing in the household is the same again, and it affects everybody
in multiple ways, and that also is a cost that needs to be considered.

		MS. NADEAU:  Thank you.

		JUDGE SOLOMON:  Dr. Crump, you're the only one who -- from the peer,
I assume.

		DR. CRUMP:  No, that's not --

		JUDGE SOLOMON:  Are there any other questions from the --

		MS. LINDBERG:  Your Honor, we don't have the peer reviewers here
today, so --

		JUDGE SOLOMON:  Okay.  Well, he's in the position of one.  You may be
sued --

		DR. MIRER:  He's sitting a peer review seat, yeah.

		JUDGE SOLOMON:  So you get about a couple hours this afternoon.

		MR. CHAJET:  Good morning.

		JUDGE SOLOMON:  Would you state your name and spell your last name,
please?

		MR. CHAJET:  Yes, my name is Henry Chajet, C-h-a-j-e-t, and I'm
counsel to the Chamber of Commerce.  Good morning.

		Good morning, Dr. Mirer.

		DR. MIRER:  Good, glad you're here.

		MR. CHAJET:  It's been a while since we've seen each other.  I think
the last --

		DR. MIRER:  I was hoping you would be here.  I was feeling abandoned,
disrespected by your not being here.

		MR. CHAJET:  The last time we visited, you were sitting on one side of
me, and Dr. Michaels was sitting on the other side of me, and we were
testifying in front of the United States Congress at a hearing that was
held by --

		JUDGE SOLOMON:  Is this a question, Mr. Chajet?

		MR. CHAJET:  It is, it is.

		JUDGE SOLOMON:  Okay.

		DR. MIRER:  This is a great story.  He should tell it.

		MR. CHAJET:  Charlie Norwood, by way of background, the late Dr.
Norwood, was chairing the hearing, and you and Dr. Michaels were
testifying in support of the ACGIH TLVs.  Do you remember that?

		DR. MIRER:  Yes.

		MR. CHAJET:  And I was testifying that they were not consensus
standards and they shouldn't be used for public policy.

		DR. MIRER:  Right.

		MR. CHAJET:  And that's still an issue today, but I'm --

		DR. MIRER:  Right.

		MR. CHAJET:  -- I'm glad to see you here so I could ask you a couple
questions.

		Number 1 on your slide talks about other diseases, lung cancer, COPD,
other health conditions.  You agree that these other diseases that are
discussed are also caused by other causes, right?  Smoking?

		DR. MIRER:  Well, the emerging consensus is that dust causes, and
silica dust in particular, causes COPD.  There are other causes, but
dust -- I mean, there's other causes of lung cancer too.

		MR. CHAJET:  And you would agree that some of those other kinds of
dust cause these conditions?  That's, I think, apparent in the OSHA risk
document where they talk about dusts of different kinds cause COPD,
right?

		DR. MIRER:  Almost all the studies that talk about dust in general are
talking about increased COPD in populations who are exposed to silica
dust, construction workers, other categories who are exposed to silica
dust.  So I'm not sure what I'm agreeing, does other dust -- so,
anyway, most of those are silica-exposed workers.

		MR. CHAJET:  Those are dust overload studies?

		DR. MIRER:  No, dust overload is a Houdini risk assessment hypothesis
that doesn't -- I mean, it's just -- it's a made-up hypothesis.  It's
clear that if you have more exposure to silica in a group of animals, a
group of people, you're going to have more nonmalignant respiratory
disease in addition to increased lung cancer, but there's no way to
prove that it's secondary or that it's inflammation or a threshold.

		MR. CHAJET:  So you don't think that you have to -- do you think this
is a silica rule, or do you think this is a general dust rule?

		DR. MIRER:  It's a silica rule.

		MR. CHAJET:  Okay.  So you would have to show the cause and the risk
based on silica, right?

		DR. MIRER:  Yes.  It's a silica rule.

		MR. CHAJET:  Okay.  So when there are other causes and other risk
factors, you have to separate those out, right?

		DR. MIRER:  Yes.

		MR. CHAJET:  Okay.  So are you familiar -- I mean, did you review the
OSHA risk assessments?

		DR. MIRER:  Yes, I did.

		MR. CHAJET:  So are you familiar with any construction worker that has
a 45-year life exposure to silica?

		DR. MIRER:  The silica -- the risk assessment was based on studies in
mostly industrial populations and some mining populations.  So I don't
know many construction workers, actually.

		MR. CHAJET:  Okay.  And you would agree that the 45-year expectancy of
continued exposure doesn't apply to many of these temporary site
workforces like construction or fracking or other places where you go to
from site to site; 45 years has nothing to do with their reality, right?

		DR. MIRER:  I don't agree with that.  They may be at the fracking site
for a week, two weeks, three weeks.  Then they pick up their equipment
and go to the next site.  So the -- and the same with temporary
worksite construction workers.  They don't, like, fall off the earth
when the job is done; they go on to another job.  So they have extended
histories.

		MR. CHAJET:  Have you seen any studies that document what their
projected exposure work time is, lifetime exposure?  Any studies at all?

		DR. MIRER:  I'm not aware of a -- do you have those studies?

		MR. CHAJET:  We do.  We actually do.

		DR. MIRER:  Okay, very good.

		MR. CHAJET:  They're in the record.  So you agree that a risk
assessment should measure real risk, right?

		DR. MIRER:  What do you mean by real, I guess, is the question?  There
is a standardized approach to risk assessment, which OSHA has adopted
going back through many, many chemicals.  And so, to establish a stand
operating procedure, they have adopted a duration of exposure criteria.

		MR. CHAJET:  Okay.  So if somebody is having a work experience and
they use respiratory protection and they do it all right and they have
fit testing and they're protected and they're within with the protection
factor, that impacts risk, right?

		DR. MIRER:  Boy, that's a whole lot of assumptions about the
effectiveness of the respiratory protection program.

		MR. CHAJET:  But you agree it impacts risk?  It reduces risk?

		DR. MIRER:  I don't agree that a respiratory protection program
that -- facility-wide or something like that actually does reduce risk.

		MR. CHAJET:  You don't think you're better off wearing a personal
protective device under all the proper conditions and uses and -- you
don't think you're better off wearing that than not wearing it in the
face of dust exposure?

		DR. MIRER:  Well, let me give you an example from my misspent youth.
There's a process in the car plant used to be called solder grind.  And
when it was introduced in 1937 there was an outbreak of lead poisoning
and fatalities in Detroit.  It's documented in textbooks.  And the
adopted corrective measure was a positive pressure air fed helmet, the
top of the line protection.  And when the OSHA standard came in,
management sampled the lead exposure inside that top of the line
protection and found numerous exposures above the lead PEL.  So it
doesn't provide protection.

		MR. CHAJET:  Have you seen any recent reviews of personal protective
equipment?  Have you read any of the research on new technology?

		DR. MIRER:  Yes, I have read it, and it's not adequate to demonstrate
effectiveness.

		MR. CHAJET:  Okay.  So when you're measuring risk in the risk
assessment, shouldn't you examine whether there is risk reduction or not
by use of personal protection?

		DR. MIRER:  I'm not -- so the OSHA risk assessment is addressed at
what the risk is at the PEL, the current PEL.

		MR. CHAJET:  Without regard to personal protection?

		DR. MIRER:  If somebody's exposed at the PEL, that's what their risk
is.

		MR. CHAJET:  Okay, you don't know that the OSHA risk assessment,
according to their own contractor, ERG, ignores personal protection?
You're not aware of that?

		DR. MIRER:  I think the risk assessment is oriented to what the -- to
what risk the employee would have if they were exposed at the PEL.

		JUDGE SOLOMON:  Okay.  I think I'm going to stop you now, Mr. Chajet.

		MR. CHAJET:  Can I have two more questions?

		JUDGE SOLOMON:  Well, OSHA gets to ask some questions.  You know, we
don't have a lot -- how long are these questions?

		MR. CHAJET:  Less than five minutes.

		DR. MIRER:  He's going to say it depends on how long the answer is.

		MR. CHAJET:  Well, that's true too.

		JUDGE SOLOMON:  The last couple were sort of argumentative, and we
don't get a definite answer --

		MR. CHAJET:  Dr. Mirer and I know each other.  We don't argue.

		JUDGE SOLOMON:  So I think what we're going to do is go to the OSHA
panel.

		MR. CHAJET:  So I'm going to be prohibited from asking two more
questions?

		JUDGE SOLOMON:  That is correct.

		MR. CHAJET:  Okay.  Note our objection for the record, please.

		DR. MIRER:  He cut me off yesterday.

		MR. CHAJET:  I think you should object as well.

		DR. MIRER:  Well, I'm not involved in a legal process, so --

		MR. CHAJET:  Thank you very much.

		JUDGE SOLOMON:  Okay, Ms. Lindberg?  Well, first of all, are there any
other exhibits that we didn't get?

		MS. LINDBERG:  I have Mr. Mirer's presentation here.

		DR. MIRER:  Yes.

		MS. LINDBERG:  If you don't mind, I'm going to mark that as Exhibit 29
for the hearing record.

(Whereupon, the document referred to as Hearing Exhibit 29 was marked
and received in evidence.)

		MS. LINDBERG:  Are there any other materials that you would like me to
mark as exhibits to your testimony or anything like that?

		MS. SEMINARIO:  I think all the written testimony was included in the
record when we submitted it back in February.  I didn't bring extra
copies, but it's already in the docket, so --

		MS. LINDBERG:  Okay.  If we already have it, that's great.

		MS. SEMINARIO:  You do.

		MS. LINDBERG:  Thank you.

		JUDGE SOLOMON:  Mr. Perry.

		MR. PERRY:  Thank you, Your Honor.  It's Bill --

		JUDGE SOLOMON:  William Perry again.

		MR. PERRY:  This is Bill Perry, yes.  And, first of all, the OSHA
panel appreciates the time and consideration that AFL's given for your
appearance and testimony here today.  So thank you for that.

		We will start with Joe Coble and a few questions.

		DR. COBLE:  Yes.  Good morning.

		DR. MIRER:  I think that's Dr. Coble, right?

		DR. COBLE:  Yes.  Yes, thank you.

		My first question to Dr. Mirer relates to clarification on the scope
of your analysis.  In the NPRM, OSHA lists 23 industry sectors that
detailed feasibility analysis were conducted.

		DR. MIRER:  Yes.

		DR. COBLE:  You provided analysis of foundries but make a general
statement that you have high confidence it's achievable across these 23.
 Is that what you intend to imply by this slide?

		DR. MIRER:  That's what I intended to imply.  I looked at the, you
know, the variation in exposure across those categories and inferred
what could, you know, what could be achieved from people doing things
that they never attempted to do.

		DR. COBLE:  And then -- and furthermore, in your judgment, foundries
represents one of the more challenging sectors?

		DR. MIRER:  That's true.

		DR. COBLE:  But you find that it's nonetheless feasible?

		DR. MIRER:  Yes.  And I --

		DR. COBLE:  To achieve 50?

		DR. MIRER:  Yeah, and I physically observed the Rock of Ages granite
shed of the -- the granite shed in Vermont that's sort of the source of
a lot of this data.  I've observed pottery making and toilet bowl making
at Kohler in Wisconsin.  I'm aware of the processes, but I don't have
detailed knowledge of what the no exposure job would be.

		DR. COBLE:  Sure.  And just, you also state that you have -- that the
evidence presented is less convincing regarding 25?

		DR. MIRER:  I have moderate confidence that --

		DR. COBLE:  You would make that distinction?

		DR. MIRER:  I have moderate confidence that 25 is achievable, but
that's still confidence.

		DR. COBLE:  Yes.  So in your experience with UAW, have you seen
examples of effective controls applied in foundries that have resulted
in significant reductions?

		DR. MIRER:  Absolutely.

		DR. COBLE:  To what extent are some of these technologies transferable
to either other foundries or comparable operations, say, maybe for
example, you know, sand handling at a fracking operation?

		DR. MIRER:  Well, the conveyor in sand mixing is sort of the start of
the foundry process.  As I understand it, that's the start of the
fracking process as well.  So ventilation designs, ventilation capacity,
maintenance, enclosure for a conveyor is the same whatever the process
is, and so that would be applicable to fracking.

		DR. COBLE:  So it's your position that these controls are available
and currently in use at various operations that could potentially be
applied to operations that don't have controls?

		DR. MIRER:  That's correct.

		DR. COBLE:  Okay.  I want to ask, in your experience, how would
setting up a regulated area work in a foundry?  Is that a workable
proposition to set up a regulated area in a foundry?

		DR. MIRER:  Yes.  You post signs.  I mean, in a foundry the regulated
area is probably a workstation or a series of workstations.  And you
indicate the -- you determine probably with short-term monitoring.  But
you determine the extent of the dust cloud, assuming it's still there,
and you post it.  I don't see that -- this is like a simple concept,
not something very difficult.

		DR. COBLE:  Um-hum.  So in your assessment, it's not that complicated
to establish a regulated area?

		DR. MIRER:  I don't think it's complicated at all.  The problem
goes -- once you have a viable control system so you're not spewing
things from the shakeout over the pouring station, you can do it pretty
well.

		DR. COBLE:  You mentioned real-time monitoring in your presentation.

		DR. MIRER:  Yeah.

		DR. COBLE:  Can you expand on how real-time monitoring might be used
to establish and maintain regulated areas?

		DR. MIRER:  Yeah.  Well, Chrysler did it at its Chrysler Indianapolis
foundry.  Rather than -- we accepted it anyway, that rather than do
full shift sampling at each station in the cleaning room and whatever,
they took area samples -- and this is just what the lamented [sic]
particle count method was.  You take area samples for silica, and then
you use a dust monitor at each position to look at what the mass is,
apply the silica content, and you've got it.

		DR. COBLE:  So that's actually been done?  You've seen where that's
been done?

		DR. MIRER:  It's been done.  It's also been done in metal working
fluid operations, particularly in GM.

		DR. COBLE:  Right.  We've heard a little bit of discussion about use
of PAPRs and maybe advancements in respiratory protection.  Have you
seen a situation in which you would think PAPRs would provide effective
control in lieu of engineering controls as opposed to in addition to?

		DR. MIRER:  So the respirator reduces the amount in the operator's
breathing zone, but the maintenance requirements for these are -- we
wouldn't need a requirement that a worker could get a higher level of
control if it were a zero effort change.

		DR. COBLE:  Right.

		DR. MIRER:  So let's go back to the regulated area.

		DR. COBLE:  Sure.

		DR. MIRER:  Exposure mapping is a well-recognized technique.  Again,
in GM it's done by hourly industrial hygiene workers or by industrial
hygiene students on a summer job.  So the contours of that map establish
where the exposure limits are, and that would define what the regulated
area would have to be.

		When we get to PAPRs, the mode of failure of a respirator is usually a
catastrophic failure; that is, some workers it's not fitted right and
they don't get any protection, and other workers could get a hundredfold
protection, a thousandfold protection, and your problem is you don't
know which one they are unless you sample underneath the helmet on a
regular basis.

		DR. COBLE:  Irrespective of the efficiency of the PAPR itself, there
is disadvantages to using a personal protective -- a respirator, in
lieu of an engineering control.  Is that --

		DR. MIRER:  I'm sorry, I got --

		DR. COBLE:  Irrespective of the actual effectiveness of the PAPR and
the design improvements, there would be disadvantages to using a PAPR as
opposed to an engineering control; is that correct?

		DR. MIRER:  Yes, and you have people walking through the clouds
anyway.

		DR. COBLE:  What about this issue of cross-contamination?

		DR. MIRER:  Well, that's -- it's very clear in -- I did read other
sections of the PEA than just the foundry, but it's clear that
cross-contamination is listed as a source of exposure on many, many --
many, many jobs.

		DR. COBLE:  So your estimate that OSHA's feasibility analysis may have
in fact underestimated the reductions achievable due to control
technologies rests partly on this assumption that we have not accounted
for cross-contamination?

		DR. MIRER:  I don't want to state it that -- the PEA does not account
for cross-contamination.  If the guy who has no -- not generating any
silica, like on the pouring line, has 50 µg/m3 of exposure, you can
assume that the worker who is generating silica, like in the cleaning
room, is getting 50 µg from all that other stuff plus whatever he's
generating for himself or herself.  And so, I think you get to --
legitimately should be subtracting that from what the exposure at the
workstation is.

		The other issue, and again this is especially in the cleaning room,
and it's been looked it, you have individual workstations.  And so, the
worker is not hitting the casting with a tool every minute of every day.
 There's a duty cycle.  But there is some worker in the cleaning room is
hitting that casting every minute of every day and generating dust, and
that's going from workstation to workstation.  And if you isolate them,
you can control and then typically that grinding booth also controls for
noise.

		DR. COBLE:  Okay.  Okay, thank you.

		DR. MIRER:  Thank you.

		MR. PERRY:  Next Annette Iannucci.

		We have to do the musical chairs because we have a couple of dead
microphones back here.

		MS. IANNUCCI:  Good morning.  I have a couple of questions for Ms.
Seminario.

		We thank you for bringing the issue of medical privacy to our
attention, and we very much understand your concerns; however, are you
concerned at all that if a worker with a silica-related illness chose
not to disclose it to the employer, that the employer wouldn't know that
the worker may be placing himself at further risk from further silica
exposure or that there might be an uncontrolled silica exposure at the
company that the employer wouldn't know about and therefore not be able
to address?

		MS. SEMINARIO:  There are numerous related issues here.  I mean, I
think there is -- you know, there's no question about that.  But I
think ultimately that the approach that, say, was taken under mine
safety, which leaves the decision about the medical information in the
hands of the worker to make that decision, is the right one.  The
employer has a lot of information.  They should be basing controls
primarily on exposure levels and whether or not the situation is being
controlled.

		And so, you know, while I think there is, you know, an interest in the
employer of having some knowledge, that the decision on whether or not
that information is provided to the employer should be the worker's.
And I think in situations where the worker believes the employer will
take the correct action, you know, protect the individual, that that
information will be forthcoming.

		So it's not an easy issue, but I think the construct that OSHA has is
the wrong one and that a better construct would be to have that
information be provided upon the decision of the individual worker,
particularly since there really isn't any protection for that individual
in this rule, as I read it.  If the employer takes any action against
him because they have been determined to have a disease, then there's no
protection for that individual, which I think has got to be a
consideration that is dealt with squarely by the Agency.

		DR. MIRER:  And if I could say, I've had some experience in industry.
The hypothetical you posed, I don't think it ever happened.  I don't
think that a report of respiratory illness has spurred engineering
controls by itself.  I don't, I just don't -- it never happened, in my
experience.

		MS. IANNUCCI:  Okay.  If we did add a provision for protection, would
that change your view, or would your view remain the same on reporting
of medical results?

		MS. SEMINARIO:  It would remain the same.  I mean, if you -- again,
if you look at MSHA model, it has both of those components in it:
basically that the worker is provided the information, they get to
decide what goes to the employer, and then they are provided with, you
know, the right of transfer.  But, again, they make that decision.

		MS. IANNUCCI:  And then one final question.  In your written comments
you give the example of Alan White, who was transferred to a low dust
job under his union contract after he was diagnosed with silicosis.
Could you give me some information on how union contracts generally work
in regards to medical removal protection?

		MS. SEMINARIO:  I would suggest that you ask the individual unions who
will be appearing.  They're most familiar with their provisions, either
of their collective bargaining agreements in that regard.  And there may
not be specific provisions that deal specifically with silica medical
removal protection, but there are provisions for people to, you know, to
transfer and have bidding rights, et cetera.  So it's -- the provisions
and the protections under collective bargaining may be, you know, more
general and more comprehensive, but also applicable to the kind of
situation that Alan White found himself in, and other workers do.  But
they are certainly not a substitute for what is needed for all workers,
particularly, you know, given the fact that so many of these workers are
not represented, have no collective bargaining rights and no protection.

		MS. IANNUCCI:  Okay, thank you.

		JUDGE SOLOMON:  Mr. Perry.

		MR. PERRY:  I believe Tiffany DeFoe has a few questions.

		MS. DeFOE:  My questions are for Dr. Mirer.

		Dr. Mirer, early in your testimony you said -- I believe you said
something very close to if something turns up in an epidemiological
study it's a major problem.  Not everything turns up in epidemiological
studies, but if it does, it's a major problem.  Would you please explain
what you meant by that statement and why you believe that to be the
case?

		DR. MIRER:  Well, I was thinking about lung cancer, but the same would
apply to chronic obstructive pulmonary disease and any common condition
of that nature.  So the average rate of lung cancer among American
males, about 5 per 100, 5 percent, 6 percent, something like that.  So
if you find an excess, you're talking about 1 in 100, 2 in 100, 3 in 100
attack rate, you know, within the 1 in 1,000.  So you're talking about
1, 2 percent of the population.  That's number one.

		Number two, it's happening at a exposure level which prevails in
workplaces, in modern workplaces.  So that's a measure of potency right
there.  And so, that's what I'm saying, you've got a big number; 1
percent is 1,000 -- is 100 times what's considered a significant risk,
and it's happening within, you know, within the range of exposures that
prevail.  So that's why it's a huge problem.

		We have this joke:  A public health crisis is something that's so bad
even an epidemiologist can find it.  And that arithmetic is what
supports that joke.

		MS. DeFOE:  Is it the case that there's something about
epidemiological studies that can make it difficult to see an effect if
there is one?

		DR. MIRER:  Oh, the cohort mortality study, which is the big gun,
is -- first of all, you have to get through the healthy worker effect.
So typically your starting population has a significant -- a
meaningfully lower rate of every disease than the general population.
Our world-record SMR was, I think, 60 at Lordstown Assembly.

		So first you had to get through the healthy worker effect.  And Leslie
Stayner and Kyle Steenland have written on this.  They would be more
eloquent and better grounded.

		So first you have to get through that.  Then you have to try and
demonstrate exposure response.  Well, the problem with exposure response
is that people leave work, the sicker people leave work early, and so
they have less exposure because they've left.  And so that's an obstacle
to observing.  It's called the healthy worker survivor effect, and it's
an obstacle again to finding something.

		And, lastly, when you're looking at a distribution of exposures, in a
workplace you can have non-differential classification, but -- this
classification, but the high exposed group is usually smaller than the
next highest exposure group.  That's just the way it is.  So the high
exposure group is contaminated with more moderate exposure workers
than -- and that flattens your exposure response relationship.  But Dr.
Steenland is like the world's expert on this.  He and Leslie Stayner are
the world's experts, and you could get better with them -- get better
opinion from them.

		MS. DeFOE:  Thank you.

		About exposure measurement, over the couple -- last couple of days of
the hearing, OSHA has heard a variety of commenters who have argued that
the risk assessment methods used by the Agency and the methods of the
epidemiology relied on by OSHA has insufficiently addressed the effects
of possible errors in exposure estimates, and that the consequence is
that OSHA has overestimated the risk of disease related to silica
exposure or has identified a risk where none, in fact, exists.

		As an expert in both industrial hygiene and risk assessment, do you
have any insights you can share with us on the ways that errors in
exposure estimates typically affect epidemiology and risk assessment?

		DR. MIRER:  Essentially, the errors obscure exposure response rather
than -- I can't think of a way in which you could create an exposure
response relationship through uncertainty, and typically it's an
obstacle to see an exposure response relationship if it's there.

		There was testimony that there are -- there is some kind of error
that doesn't, you know, that doesn't obscure exposure response, but in
my experience it doesn't create exposure response, you can't create
exposure response through that.  On top of that, OSHA has essentially
extracted information from peer-reviewed studies, well-respected
peer-reviewed studies, so I don't see how OSHA has created anything that
wasn't there before.  So I don't see the criticism.  I mean, you can
raise it, but I think the consensus would be that the uncertainties go
the other way.

		MS. DeFOE:  Thanks.  And just one more.  I think you stated that as an
employer identifies and controls its highest-level exposures, that this
will reduce not just the average, but also the variability of exposures
in the facility.  Would you expect this reduction in exposure
variability to function on a day-to-basis?  That is, should getting the
highest exposures under control increase the employer's confidence that
a TWA exposure sampled on one day is representative of the TWA exposure
on unsampled days?

		DR. MIRER:  There's actually a formula where you can infer the average
from the -- from knowing the geometric standard deviation, you can
infer the average exposure from the geometric mean.  And when you reduce
the variation, you reduce the divergence and you end up with a lower
arithmetic mean, which is actually what the worker is exposed to.  So
reducing variability reduces exposure because you're knocking down the
highs.  You aren't trying to intervene on the low exposures and make
them higher; you're trying to reduce the high exposures.  So it's sort
of a double improvement.

		MS. DeFOE:  I was actually -- thank you for that.  The direction of
my question had more to do with -- it wasn't in this case so much about
the way that it affects worker exposure overall, but more about how
reduction in variability might affect an employer's confidence that
they're in compliance with the rule.

		DR. MIRER:  I'm not sure I'm getting the question.  If the employer
knows that his or her process is well controlled and is generating
exposure results which are in compliance, that would be more -- they
would have more confidence than if they didn't think it was under
control.  I can't -- I'm not sure what you're -- the question is.
This is like one of my exam questions.

		MS. DeFOE:  Sorry.  I apologize for that.

		JUDGE SOLOMON:  That's what's called a declaration against interest.

		MS. DeFOE:  Thank you.

		JUDGE SOLOMON:  Okay, we have about five minutes allocated to OSHA.
Are you going to be able to do this in five minutes or do we have to --

		MR. PERRY:  We will certainly do our best.

		JUDGE SOLOMON:  The plan right now is to have the AIHA and ASSE
constitute a panel, and that would take place in about five minutes, and
then we would have questioning.  So that means lunch would be about
12:30, and we would resume this afternoon at about 1:30.  Go ahead.

		MR. PERRY:  This is Robert Blicksilver from our Office of Regulatory
Analysis.

		MR. BLICKSILVER:  Good morning.

		Dr. Ruttenberg, you, in your testimony, in your written comments, you
identified an apparent conservatism you've observed in your review of
regulatory analyses over the years and overestimation of costs, and you
give an example of technology built into equipment is often cheaper than
technology retrofitted into equipment.

		Could you please elaborate on that point and if you have some examples
to give, and also in your post-hearing comments and your review of the
record, if you could provide any more evidence that you've identified of
that phenomenon?  Thank you.

		DR. RUTTENBERG:  I mean, there are many examples.  You know,
retrofitting a piece of equipment is kind of like putting a band-aid on
it, and if you design the equipment to be safe from the beginning, you
often not only solve the problem but you can enhance productivity.  I
mean, for example, in noise when you have metal on metal and you do
something to try and muffle that noise, that's not improving
productivity at all.  But if you change some of that metal to plastic,
just as an example, and the noise is reduced, it often is also less wear
and tear on the equipment because the metal on metal, like, breaks down
faster.  And so you get the equipment moving better and you also solve
the problem.  And, I mean, there are many, many, many examples, and I'd
be happy to provide them in post-hearing.

		MR. BLICKSILVER:  So that's an example of equipment productivity
enhancement, you would say?

		DR. RUTTENBERG:  Right.

		MR. BLICKSILVER:  Okay.  You also mentioned worker productivity
improvements:  Limiting dust increases visibility for workers --

		DR. RUTTENBERG:  Right.

		MR. BLICKSILVER:  -- vacuum systems speed up drilling because
continuous removal of drill cuttings from the hole reduce the need for
workers to periodically stop and clean.  Are there any other examples
that come to mind or, again, in post-hearing comments if you could
provide any for the record?

		DR. RUTTENBERG:  Examples of that kind of problem in other --

		MR. BLICKSILVER:  Of worker productivity improvements through
implementation of controls.

		DR. RUTTENBERG:  I mean, in the textile industry it happened
profoundly because as they made the looms bigger and bigger, and quieter
and quieter and less dusty, they also had less breakdown of the small
looms and so workers weren't stopping their work and fixing them.  As
the looms got bigger, it was more important to industry to keep those
breakdowns from happening, because if a big loom stops, you lose a lot
more work product than when a small loom stops.  And so all kinds of
controls were put in there to keep that as a continuous process that
would move.

		And when I talk to the industry people who had decried the possibility
of even operating textile machinery before the rule, they admitted quite
frankly that there had been productivity enhancement and that the OSHA
rule had moved them ahead and gotten them investing in the best and most
productive equipment sooner than they would have otherwise.

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

		JUDGE SOLOMON:  It's 11:55.  Do you have any more?

		MR. PERRY:  I have one question for Dr. Mirer, if I may.

		Dr. Mirer, okay, you made reference, I think, in answering a question
to our risk assessment and using 45 years as a basis for estimating
risk, which, you know, you're correct, OSHA has typically done.  Would
you consider it appropriate if I take -- if these risk models were then
used in life tables to estimate lifetime risks for less than working
life or less than 45 years to estimate risk of a partial lifetime