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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April 2, 2014

9:30 a.m.

Frances Perkins Building Auditorium

200 Constitution Avenue, N.W.

Washington, D.C. 20210

BEFORE: 	STEPHEN L. PURCELL

	   	Chief Administrative Law Judge

U.S. DEPARTMENT OF LABOR (DOL):

ALLISON KRAMER

Attorney, Office of the Solicitor

ANNA LAURA BENNETT

Attorney, Office of the Solicitor

OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION (OSHA):

WILLIAM PERRY

Acting Director, Directorate of Standards and Guidance

ROBERT BLICKSILVER

Office of Regulatory Analysis - Health

PETER ANDREWS

Office of Chemical Hazards - Metals

DAVID O'CONNOR

Director, Office of Chemical Hazards - Non-Metals

JOSEPH COBLE, Sc.D., CIH

Director, Office of Technological Feasibility

DALTON MOORE

Office of Technical Feasibility

GREG KUCZURA

Office of Regulatory Analysis - Health

RYAN TREMAIN

Office of Physical Hazards

JANET CARTER

Office of Chemical Hazards - Metals

ROBERT STONE

Director, Office of Regulatory Analysis - Health

NATIONAL ASSOCIATION OF HOME BUILDERS (NAHB):

PAUL EMRATH, Ph.D.

Vice President, Survey and Housing Policy Research

ANTHONY ZIMBELMAN

Zimbelman Construction

NATIONAL ROOFING CONTRACTORS ASSOCIATION (NRCA):

WILLIAM GOOD

Executive Vice President

TILE ROOFING INSTITUTE (TRI):

RICK OLSON

President

TILE COUNCIL OF NORTH AMERICA (TCNA):

JYOTHI RANGINENI, Ph.D.

Research Scientist

ERIC ASTRACHAN

Executive Director

ARCH MASONRY, INC.:

JOSEPH BONIFATE

Vice President

SORPTIVE MINERALS INSTITUTE (SMI):

RICHARD BROWN

Chairman, Technical Committee

NATIONAL AUTOMOBILE DEALERS ASSOCIATION (NADA):

LAUREN BAILEY

Manager, State Franchise Law and Regulatory Initiatives

OTHER PARTICIPANTS:

CHRIS TRAHAN

Building and Construction Trades Department, AFL-CIO

SCOTT SCHNEIDER, CIH

Director of Occupational Safety and Health

Laborers' Health and Safety Fund of North America

ELIZABETH NADEAU

Attorney, International Union of Operating Engineers

BRAD HAMMOCK

Attorney, Jackson Lewis

Construction Industry Safety Coalition

INDEX

										PAGE

INTRODUCTION

Judge Stephen L. Purcell 					  PAGEREF a1Intro \h  3498

NATIONAL ASSOCIATION OF HOME BUILDERS (NAHB)

	Paul Emrath, Ph.D.					 	  PAGEREF a2Emrath \h  3498

	Anthony Zimbelman						  PAGEREF a3Zimbelman \h  3521

	Questions								  PAGEREF a4Questions \h  3530

NATIONAL ROOFING CONTRACTORS ASSOCIATION (NRCA);

TILE ROOFING INSTITUTE (TRI)

	NRCA - William Good						  PAGEREF b1Good \h  3577

	TRI - Rick Olson						  PAGEREF b2Olson \h  3587

	Questions 							  PAGEREF b3Questions \h  3598

TILE COUNCIL OF NORTH AMERICA (TCNA)

	Jyothi Rangineni, Ph.D. 					  PAGEREF c1Rangineni \h  3627

	Eric Astrachan							  PAGEREF c2Astrachan \h  3633

	Questions								  PAGEREF c3Questions \h  3639

ARCH MASONRY, INC.

	Joseph Bonifate						  PAGEREF d1Bonifate \h  3648

	Questions								  PAGEREF d2Questions \h  3667

SORPTIVE MINERALS INSTITUTE (SMI)

	Richard Brown							  PAGEREF f1Brown \h  3689

	Questions								  PAGEREF f2Questions \h  3708

NATIONAL AUTOMOBILE DEALERS ASSOCIATION (NADA)

	Lauren Bailey							  PAGEREF g1Bailey \h  3718

	Questions								  PAGEREF g2Questions \h  3723

ADJOURNMENT								  PAGEREF h1Adjourn \h  3729

EXHIBITS

EXHIBITS		DESCRIPTION				 	PAGE

Exhibit 118	Dr. Emrath's PowerPoint			  PAGEREF ex118 \h  3506

Exhibit 119	Mr. Zimbelman's testimony		  PAGEREF ex119 \h  3529

Exhibit 120	Dr. Emrath's testimony			  PAGEREF ex120 \h  3530

Exhibit 121	Mr. Good's PowerPoint			  PAGEREF ex121 \h  3580

Exhibit 122	Mr. Good's testimony			  PAGEREF ex122 \h  3587

Exhibit 123	Mr. Olson's PowerPoint			  PAGEREF ex123 \h  3590

Exhibit 124	Mr. Olson's testimony		    	  PAGEREF ex124 \h  3597

Exhibit 125	Mr. Astrachan's testimony	    	  PAGEREF ex125through127 \h
3633

Exhibit 126	Dr. Rangineni's testimony	    	  PAGEREF ex125through127 \h
3633

Exhibit 127	Mr. Bettiga's testimony		    	  PAGEREF ex125through127 \h
3633

Exhibit 128	Mr. Bonifate's PowerPoint	    	  PAGEREF ex128 \h  3650

Exhibit 129	Mr. Bonifate's testimony		    	  PAGEREF ex129 \h  3666

Exhibit 130	Mr. Bonifate's flash drive	    	  PAGEREF ex130 \h  3666

Exhibit 131	Reserved - Mr. Brown's

			testimony/PowerPoint 			  PAGEREF ex131 \h  3689

Exhibit 132	Ms. Bailey's testimony      	    	  PAGEREF ex132 \h  3717
P R O C E E D I N G S

(9:30 a.m.)

		JUDGE PURCELL:  Good morning, ladies and gentlemen.  My name is
Stephen Purcell, and I'm the Chief Judge for the U.S. Department of
Labor.  Welcome to Day 12 of the OSHA silica rulemaking hearing.

		Today's date is April 2nd, 2014, Wednesday.  The time is approximately
9:30.  And first on the agenda this morning is the National Association
of Home Builders, represented by Anthony Zimbelman and Paul Emrath.

		Gentlemen, whenever you're ready.

		DR. EMRATH:  Okay.  Thank you very much.  I will start.  My name is
Paul, my name is Paul Emrath.  I'm a Vice President of Survey and
Housing Policy Research at the National Association of Home Builders.
That means that I oversee two departments at NAHB.  One of them does
survey research.  The product there that you might be most familiar with
is our Housing Market Index.  One of my departments produces that.  And
then I also run the Housing Policy Department, where I do things like
review regulations like this one, estimate the economic impact of home
building and things like that.

		So I'm very happy to be here and have a chance to testify on this
topic.  And I'm going to focus largely on the Preliminary Economic
Analysis of the proposed silica rule, or the PEA.

		And there are three shortcomings from the perspective of the home
building industry that I would like to focus on.  I just list them
there.  One is that I think the economic analysis doesn't really capture
important aspects of the structure of the home building industry.
Secondly, it has a very narrow focus that keeps the costs down, but the
regulation is very broad, and the language in the regulation is very
broad, and so there's a mismatch there.  And, third, the use of the
revenue and profits from a period that's atypical, historically.

		So on the topic of failure to capture the structure of the industry,
there are several problems.  Some of them go to analyzing the industry
at a very broad aggregated level using four-digit NAICS codes rather
than the more detailed six-digit NAICS codes.

		So there are a couple of things about that.  one is it's not necessary
to do that.  I checked the data sources that are used as references.
You can pretty much get more industry detail there.  It's inconsistent
because the six-digit codes are used in the economic analysis of general
and maritime industry, but not in construction.  And it leads to some
things that are a little bit misleading.

		One is, it disguises important impacts on certain parts of the
industry because it merges some segments of the industry where there's a
significant effect in terms of cost with other segments of the industry
where there's no cost estimate, and so it's diluted that way, and kind
of disguises the way cost affects certain, you know, particular trade
contractors.

		The other thing is that if you look at the four-digit residential
building construction category, that's got several things in it that are
dissimilar.  It's got single-family construction.  It's got multi-family
construction.  And it's got remodeling.  And so when you lump those in,
you get to ignore some important things that arise in subsets of the
industry like remodeling.  Remodeling is different than new
construction.  And in ways that kind of should complicate the economic
analysis really.  And let's talk about that for a second.

		So what characterizes residential remodeling.  Now, that's a
significant part.  It's running about 140 million dollars a year, not
counting any remodeling that might go into maintenance and repair.  So
it's a significant part of residential construction, but it's somewhat
different.  It's characterized by small firms.

		You see, this is from our member census where the median revenue in
2012, you know, 1.8 million for a single-family building, 4.4 million
for multi-family, but well under 1 million for remodelers, so they're
small.  And it often involves -- we're talking about remodeling now --
disturbing material that you're unfamiliar with, going from one worksite
to another, working on some substrate you don't know what it, what its
silica content is, and that presents some complications, and should, and
I would argue these are largely ignored in the PEA.

		And we're really talking about in remodeling doing a large number of
very small projects.  So let me give you an idea of that.  This is from
our Remodeling Market Index Survey, or RMI.  This is the remodeling
equivalent of the housing market index.

		JUDGE PURCELL:  Mr. Emrath, just for the --

		DR. EMRATH:  Yes?

		JUDGE PURCELL:  -- record, let me point out that that's found on page
3.  That chart you're referring to is found on page 3 of the printed
version of the PowerPoint presentation.

		DR. EMRATH:  Thank you very much.

		So it's a sample of remodeler members who belong to our association
NAHB.  And we asked them to share of their business in a typical year
that comes from remodeling projects of different sizes.  And so you can
see the spread there.  Notice that 10 percent of their revenue comes
from very small projects, under 2500, and another 9 percent are at 2500
to 5,000.  Okay.  You need to do a lot of projects.  You need to do
millions of those in a year in order to get, you know, 10 percent or 9
percent of your revenue.  On the other hand, you know, 21 percent comes
from, you know, large projects, large remodeling projects, 100,000 or
more.  You don't need to do too many of those, but there are a large
number of these.  So that means, you know, again, lots of very small
jobs.

		 And so, you know, I like to think about -- I like to think of this
regulation in terms of remodelers.  Think of people who are doing these
small, only a few-thousand-dollar jobs going from place to place.  And
if you look at the language in the regulation, as proposed, which I put
up there, it says that the employer needs to conduct additional exposure
assessments whenever a change in the process occurs.  And I would argue
that it occurs many times during the course of the year for a typical
remodeler, or someone doing the remodeling, is you're doing these, you
know, few-thousand-dollar projects, one after the other.

		And so some of the PEA's assumptions like these, you know, four-person
crews working in stable work environments where you only have to do a
sub-sample of them and get a small number of assessments, that's not
realistic.  It's not realistic, I would argue, in residential
construction in general, but especially in remodeling, where you have
these small projects.  In fact, I would argue that rather than, you
know, many workers per assessment, you -- if you read the regulation,
it suggests that you need to do many assessments per worker because of
the way their workplace is changing so constantly.

		Okay.  Now, so that's one thing.  So it kind of ignores remodeling.
The economic analysis largely ignores these complications of remodeling.
 There are several other ways where it doesn't seem to recognize what's
really going on in residential construction.

		They start out by defining representative jobs or representative tasks
using a means, heavy construction cost data.  Now, means has equivalent
things for residential construction and for remodeling that you could
use, but they just don't.  So they start out by defining representative
tasks using a source that doesn't have any residential, you know, jobs
in it.  The heavy construction cost data is based on, you know, highway,
bridges, utilities, you know, some other things, but no residential.

		Another thing the PEA does, it ignores, well, what the Census Bureau
calls non-employers.  These are small self-employed people, one person,
you know, running around in a pickup truck or van with no payroll.  So
they're not included in the official government statistics usually
either as employers or employees.  And there are a lot of those in
residential construction, well over 2 million, 2.4 million in the most
recent numbers I could find.  About 1.7 million of those are trade
contractors.

		So, now, what that means is perhaps not entirely obvious.  Because
they're not employees and they're not classified as such, they
technically fall outside the scope of, you know, an OSHA regulation like
this.  But if you think of this from the standpoint of a general
contractor, a home builder who has got many subcontractors, some of
these very small people, and some of them are self-employed, you know
he's not -- the builder is not immune from multi-employer citations.
If he's worried about that, he's got to either find out which of his
subcontractors is self-employed and which one isn't, which is, you know,
a substantial kind of recordkeeping burden.  Or maybe if he doesn't do
that, he has to sort of treat them all as the same and, you know, do
assessments or engineering controls or whatever the prescription is on
all of them.  So that's one possibility.  I want to come back to that a
little bit.

		The other thing that the PEA doesn't seem to recognize is the
prevalence of subcontracting.  And that's just the way homes are built.
Most of the work is really subcontracted out, and it's performed by
trade contractors, not by employees of the home builder.

		So to give you an idea of that, I'm showing you a slide now which
comes from our Housing Market Index Survey from, I think it's, yes, July
2012.

		JUDGE PURCELL:  And Mr. Emrath, just for the record, that bar chart
is found on page 4, the printed version PowerPoint presentation, which
I've marked as Hearing Exhibit 118 and I'll admit in the record.

(Whereupon, the document referred to as Hearing Exhibit 118 was marked
and

received in evidence.)

		DR. EMRATH:  Okay.  And so this is from the survey that generates the
Housing Market Index.  It's a page of special questions tacked onto the
end of it.  It means it's from the representative panel of builders that
we maintain to produce the HMI.  And the bottom line here, I would say,
is that two-thirds of these single-family builders subcontract out at
least three-quarters of all their work, you know, substantiating what I
said, that in home building, most of the work is done by subcontractors.

		Now, let me return to the previous slide and talk about some of the
implications for this for a second, think about this a little bit more.
So as is typical for OSHA, when they analyze cost and the effective cost
on the industry, when they do the economic feasibility part of their
analysis, they analyze two polar cases.

		One is all of the costs can be passed on to the consumer.  Okay.
Well, in this case, a lot of the cost falls on the trade contractors,
and the consumer of the output of the trade contractors is the
residential building industry.  So you've got an input and the producer
of the final product both being analyzed here.  And that relationship,
the fact that the cost that the subcontractors bear gets passed down
chain to the builders, is really entirely ignored in the PEA.

		And so if we think about this, let's think about this one case.  Okay.
 We're talking about a case where all costs can be passed on.  Well, if
that's what you're going to do, then what you really should do is you
should analyze the costs of all of the -- the subcontractors and pass
those on with a markup to the home builder who eventually bears them.
Otherwise, you're just really ignoring it, as you saw in the slide,
three-quarters of the home builder's construction cost or more, in some
cases.

		The second case that they analyze is where -- as I said, there are
two polar cases -- the second one is where cost cannot be passed on at
all, and it's just a reduction in industry revenue, you know, the
industry kind of contracts.  That's the other extreme that they analyze.
 If you're analyzing that, okay, and think what happens when you analyze
a subcontractor.  If their output contracts, that means that there's
less of a key input that the home builders need.  And so that's got to
affect what they can produce.  And so you've just -- you've got to
account for this.  You've got to account for the fact that most of the
construction work done by home builders is done by subcontractors.  That
relationship between subcontractors, who really bear a lot of the
estimated cost of the regulation, and the home builders is just not
captured in the economic analysis.

		And if we think about this in terms of the large number of the
non-employers -- I want to return to that, because that factors in
here.  If you're analyzing the first case, and you're assuming that
costs can be passed on from the subcontractor to, say, the home builder,
how can those costs be passed on fully if the home builder has, like,
1.7 million non-employers who fall outside of the scope of this
regulation, if you think they do, and who are, you know, close
substitutes?  So how can the employers pass -- how can the employer
subcontractors pass on their costs to a home builder when the home
builder has as a substitute all of these non-employers?

		In the other case, if the subcontracting, you know, the trade
contracting industry contracts, then what happens?  Well, what happens
to the output that the subcontractors aren't producing, the revenue,
that's lost there?  One possibility is that it goes to the
non-employers.  In other words, if the cost of the regulation reduced
the revenue of employer trade contractors, it could be picked up by
non-employer trade contractors.

		So, again, if you just -- it gets a little complicated, but if you
think about the relationship between a builder and his subcontractors
and all of the non-employer subcontractors that are out there that you
could use, you know, those are important relationships.  And you need to
think about them.  Those sorts of things are entirely ignored in the
economic analysis.

		Okay.  So let's go on to my next broad topic here, which is the
mismatch between the narrow focus of the PEA and the broad language of
the regulation itself.  And so I would argue that -- and the economic
analysis itself says that a lot of residential construction involves
work where silica exposure overall is not very high.  However, many
workers at some point perform some task that generates dust and that
dust could, in some cases, contain silica.  I mean, most construction
workers, you know, drill or cut into something.  It's not always wood or
metal or something that you know has no silica in it.  So it's difficult
or impossible for a builder or remodeler to predict all of this in
advance.

		But the broad language of the regulation puts all of the burden on the
builder or remodeler to figure out, you know, which of the employees or
subcontractors is going to be affected.  And I'm going to argue that the
PEA really ignores a lot of that and really only captures only a very
few of the things that a builder has to worry about.  So let me try to
demonstrate that with a few slides here.

		So in talking about the PEA's narrow focus, okay, as I said, there are
a lot of things that occur very often in almost any kind of construction
work, drilling and sawing and sweeping.  And those are activities that
the PEA starts out by saying are important things that could lead to
dust and silica exposure if the dust has silica in it.

		But that's not the way the economic analysis proceeds.  What they do
is they take a narrow set of representative tasks, which are, you know,
from heavy construction not from residential, and then they map them
into job occupations, and then from these job occupations to industries
to get at the implications of cost for industries.

		So they do this in a very limited way.  So what do I mean by that?
Well, when they look at occupation categories, they ignore flooring
installers, electricians or plumbers.  They just assume there's no cost
associated with those.  For other occupations, they include them only to
a minor extent, like carpenters.  And they really ignore the extent to
which kind of a broad category like carpenters -- carpenters tend to do
a lot of different things -- they ignore some of the things that they
do which could, you know, generate silica dust, you know, installing
kitchen countertops, siding, final cleanup.  The analysis just doesn't
seem to capture those.

		So to give you an idea of that, I'm going to show you a few slides
here.  Let me explain what these are.  What I did is I went into the
occupational classifications within construction.  And what I did is I
highlighted all of the ones where the PEA estimated a percentage of
workers at risk.  And so the shaded areas show things that are captured
by the PEA.  And if they're not shaded, they're just ignored, they're
assumed to have no cost whatsoever.

		And so on this first slide, a couple things to notice.  One is all of
the floorers, carpet installers, floor layers, and so on and so forth,
those are not analyzed.  Some of the categories that are analyzed are
analyzed but assumed that a very small percentage of them are affected.

		For example, the first-line supervisors, there are a lot of those.  I
used the most recent employment numbers I could find because those were
easy.  Those are not the ones that are used in the PEA.  But
nevertheless, you see there are hundreds of thousands of first-line
supervisors, but the PEA assumes 0 percent of them are at risk.

		There are a lot of carpenters, you know, well over half a million of
those.  Only 1 percent of those are assumed to be at risk.  So they're
in there, but almost not, you know, only 1 percent, a very small share
of them.  That's how you get very small cost estimates.  That 1 percent
of carpenters, I would argue, is a very important assumption in
generating very small cost estimates in the PEA.

		Same thing for construction laborers.  There are a lot of those,
825,000, roughly, but only 3 percent.

		So I noticed that some categories like floorers are ignored entirely.
Other important ones like carpenters are captured, but a very small
percentage are assumed to be at risk.

		Here's the second slide, a continuation.  I broke up the slides just
so they would be a little easier to read.  The thing I would say here is
notice that they totally ignore electricians, painters, plumbers, you
know, areas where there are a substantial number of employees in the
economy.

		And this is the third and final page.  Again, we're on the page where
we show the helpers, the helpers for electricians and pipe layers and
roofers -- notice roofing is out of the scope of the PEA -- and
highway maintenance workers, which home builders probably aren't
impacted by that much.  Outside of that, the only thing on this page
that's captured in the PEA is carpenters, and again, they assume only 1
percent are potentially affected.

		JUDGE PURCELL:  And so the record is clear, Mr. Emrath, those three
slides, occupations 1, 2 and 3, are found on pages 6 and 7 of Exhibit
118.

		DR. EMRATH:  Okay.  So it occurred to me that, you know, some of those
things look questionable to me.  So I thought what I could do to get
some evidence on it, and because I conduct this Housing Market Index
Survey every month, I had an opportunity in the March survey to ask some
special questions on this topic.

		And so the questions I asked -- and again, this is of our regular
panel of single-family builders who respond to the HMI every month --
do your employees or subcontractors doing specific tasks, which, you
know, I'll show you on the next page, do they ever saw or drill into
materials other than, you know, wood or metal, or do they sweep
something other than, you know, pure sawdust.  And in the second
question, we asked:  If they don't do that themselves, do they ever work
near someone who is, you know, sawing, drilling or sweeping these
materials?

		And the next couple of slides show the answers to those two questions.
 These are on page 8 of the handout.  So I want to cut to the bottom one
very quickly and get to the third of these slides, but one thing I want
you see is that we did give them the opportunity to tell us they don't
know, because they may not know what their subs or workers are doing in
every single case.  But you can see the categories there.

		And so these are the responses, yes, no, or don't know, to do you
drill -- saw, drill or sweep something that, you know, could
potentially have silica in it.  And this is do you work near, in the
same vicinity is the way we phrased the question, as someone else who's
doing those activities.  We're asking this of the builder, so it's do
your employees or subcontractors do this or work near this.

		So I want to get to the next slide, which appears on page 9 of the
handout, which combines these two questions together.  So what we do
here is we just added to together people who said yes to either one of
those questions.  So for drywall, this means that 71 percent of our
single-family builders said that their drywall installers either, you
know, drilled, sawed into something other than wood or metal, swept up
something other than sawdust or worked near someone doing it.  So that's
the way to read this.

		And one of the things to notice is the high percentage.  It's 71
percent there for drywall.  For plumbers, 68 percent of the builders
said that they do this drilling or sawing or sweeping activity or work
near them.  Plumbing is totally ignored in the PEA.  And flooring, it's
65 percent.  Flooring is totally ignored in the PEA.  Siding, 61
percent.  Cabinets and countertops, 61 percent.  Now, cabinets and
countertops are done by -- usually by someone who's classified as a
carpenter, I'm pretty sure.  So only 1 percent of those in the PEA are
assumed to be impacted.  Electrical is next, you know, 59 percent of
builders say they do one of these activities which could be exposed to
silica.  Electrical contractors are totally ignored in the PEA, just
assumed right up front to have no exposure.

		So just this is what I mean by a mismatch of the narrow focus of the
PEA and the broad language of the regulation, which really obligates
builders to figure out, okay, well, the PEA says only 1 percent of
carpenters are affected, and you get low costs.  So as a trade
association, what do we tell our builders who call us up and ask us, you
know, what they have to do in terms of silica protection for their
carpenters, their carpenters who are doing siding, installing
countertops, doing interior trim and doors, framing, all of those
things.

		The broad language of the regulation puts the burden on the builders
to at least assess, you know, the impacts on these workers, who the
builders are saying are doing something that could, you know, expose
them once in a while at least to the silica.  It may not be all the
time.  The exposure overall might not be very high.  But the broad
language of the regulation sort of obligates builders to deal with all
of this.  And the PEA ignores most of these things or assumes a very
small percentage like 1 percent of carpenters.

		So I'm trying to illustrate what I see as this very serious mismatch,
very broad sweeping implications of the regulations putting a lot of
burden on builders and remodelers to assess all of these different
occupations.  And most of them are ignored or assumed to -- or only a
very small percentage of them are assumed to be impacted by the
regulation.

		Okay.  Another way in which the PEA seems to ignore the broad
implications of the language is, as far as I could tell, there is
nothing explicitly in the PEA on recordkeeping costs.  But the
recordkeeping costs of the regulation are really very broad, explicit,
wide-ranging and pretty extensive.  You've got to, you know, you've got
to -- well, I'll just -- for those of you in the room let you read it
on this slide.  But you've got to -- you know, the operation monitored,
sampling and analytic methods used, number/duration, results of samples,
identity of laboratory, type of personnel, name, Social Security, and
job classification.

		Also, you have to track the materials that they work on.  So again,
think of a small remodeler going from job to job working on, you know,
substrates they've never seen before, many different one of those in a
year.  The regulation puts all the burden on you to keep these records.
And as far as I can tell, the PEA assumes zero recordkeeping costs.  If
you're going to do a good job of estimating the costs, you've got to
have some costs, I would think, associated with this new accounting
system, which, you know, most builders don't have set up right now, nor
do small subcontractors.

		So I just want to briefly, then, touch on my final point here, which
is the use of profit and revenue in the PEA from a really historical,
atypical period.  And what the PEA does, it basically uses 2006.  It
takes revenue from 2006, it takes profits from 2006, and then looks at
the range in profits from 2000 to 2006, saying that that captures a
business cycle.

		But that basically ignores everything that happened after 2006.  And
in the residential construction industry, nothing now looks like it did
in 2006.  And I've got a couple of stats up there, but I think the
easiest way to demonstrate that is just to go to my next graph here,
appears on page 10 of my handout, which is just housing starts.

		So a single-family and multi-family in the top greenish line shows
them added together.  Just to give you an idea of the historical
context, the long-run average is about 1½ million for total starts.
It's 1.500, or this is in thousands, so this is 1½ million here.  This
is like the long-run historic average.  It's the average you would get
in the '60s and '70s in the '80s and '90s.  There's like two generations
of Americans have experience with about 1½ million housing starts a
year.

		Well, in 2006, we were up at 1.8 million, and we were really over 1.5
million for the entire 2005-2006 period.  And what happened after 2006?
We went to a historic crash.  Before we got to this crash and the
downtrend that started very seriously in 2007, before we hit 2008, we
had never since World War II had a year of housing starts less than 1
million.  So this 1 million line here, this is below the worst
post-World War II recession we ever had in the industry until we got
here.  And we've been below that for six straight years.

		So we've got the six worst years in the history of the homebuilding
industry since World War II are the last six.  And whereas this 2000 to
2006 period is a period of years that were all above normal.  And so one
of the things that using a number from here and using this as a range to
capture business cycle and ignoring all of this is it just -- it gives
you no credibility, because nobody who knows really anything about the
experience of the homebuilding industry will take in 2013 anything
seriously based on this that ignores all of this.  So that creates a
very serious credibility problem for the PEA, I would argue.

		And that's my final point.  My last slide here has my contact
information.

		So I referred to a lot of statistics and results from our surveys.
Those are all available.  I'm going to submit at least the report on the
survey on what employees and subcontractors of builders, you know, how
often they drill, saw, sweep into things.  I'm going to submit that
after the hearings.  But anything else that I referred to is available,
any of the methodology in any of the surveys or the sample sizes, most
of which are in the slides, or anything else are all available.  And I'd
be happy to provide them at any time.

		Thank you.

		JUDGE PURCELL:  Thank you very much, Mr. Emrath.

		The next speaker for NAHB is Mr. Anthony Zimbelman.

		Mr. Zimbelman, whenever you're ready.

		MR. ZIMBELMAN:  Thank you, Your Honor, and members of the OSHA panel.
I am Tony Zimbelman, small home builder and general contractor from
Wichita, Kansas.  My company, Zimbelman Construction, has been in
business for 21 years, and over this time, we have built nearly 500
homes.

		Since 1992, my company's philosophy has been to conduct all of our
business relationships with honesty and integrity while operating within
all federal, state and local laws, and industry regulations.  This
philosophy has enabled us to meet our "treat people right" goal and has
allowed our company to be successful.

		I would like to begin by stating that I appreciate OSHA's efforts,
like this hearing, that affords me and my trade association, the
National Association of Home Builders, the opportunity to explain the
unique characteristics of our industry and to discuss OSHA's regulatory
requirements that oftentimes place a tremendous compliance burden on
home builders.

		Today I would like to address one specific issue that concerns me, the
impact of OSHA's proposed silica regulation on small home builders as
well as the specialty trade contractors that perform the vast majority
of construction work necessary to build a home.

		Small home builders and trade contractors are often puzzled by the
complexity and range of OSHA requirements imposed upon them.  And this
proposed silica rule is no exception.  Most small construction firms,
including my own, do not have a full-time safety professional to
implement the array of OSHA regulations because it is simply not
possible or economically feasible to have one staff member dedicated
solely to understanding and implementing safety programs.

		Like many small home builders, I wear many hats in my company.  I am
the owner, the president, the sales manager, job superintendent,
construction scheduler, bookkeeper, as well as the safety person.  In
our industry, over 80 percent of home builders are considered small
businesses.  And typically, these companies build fewer than 25 homes
per year.  And more than half build fewer than 10 homes per year.  Most
small construction companies also employ fewer than 10 workers.  My
company, Zimbelman Construction, only has one employee.  Similarly, most
of my home builder colleagues back in Kansas would fit this profile.

		In addition, home builders typically subcontract out the vast majority
of their construction work to specialty trade contractors, such as
bricklayers, plumbers, drywall contractors, deck builders, granite top
installers, et cetera, who can more efficiently deliver the individual
pieces of the construction process for us.  My subcontractors are also
small businesses, and we typically use 20 to 25 of them to build each
single-family home.  Most of our trade contractors, or partners, as we
call them, have been working with us in excess of 10 years, and a few of
them have been with us since the start.

		I have spent quite a bit of time reviewing the proposed silica rule,
and at the current time, I just don't have a good feel for what I need
to do to comply with this rule.  I have also spent time reviewing OSHA's
proposal with my trade partners, and I would now like to share some of
our collective concerns and some specific examples of why navigating
this proposed rule would be extremely difficult and eventually leading
to noncompliance with the entire silica standard.

		The proposed rule is so complex and long that after reading through
the proposed language and Table 1 a number of times, I am still not sure
what to do to comply.  My trade partners were in no better shape.  They
didn't know how to comply or what to do to be sure they were adequately
protecting themselves and their workers.

		Let's first take a look at Table 1.  The procedures or engineering
controls listed in Table 1 do not specifically address all construction
tasks, especially in the home building business.  For example, our deck
builders hand-mix concrete for setting deck posts, which takes about an
hour.  Because Table 1 does not address this specific task, will these
contractors be required to conduct exposure assessment and monitoring to
determine if their workers are exposed to silica above the permissible
limits?

		This monitoring is complex, time-consuming, and costly.  In my
experience, trade contractors are currently not conducting exposure
testing, and these small employers would definitely have to hire an
outside industrial hygiene firm to do this.  I believe the small
contractors I deal with will see no benefit in this monitoring, won't
know how or when to comply with the requirements, and consequently, will
not comply with it.

		Another issue in Table 1 is that OSHA proposes the use of wet methods
when using stationary masonry saws for cutting bricks.  Any silica
controls requiring a continuous constant water source may not be
feasible in the home building business.  Why?  On my home building
sites, we do not typically get a water meter hooked up for use on our
job sites for two to three months after construction has started on the
home.  My local municipality controls when water service is provided,
and it is often delayed well into the construction process.  During that
time, when water is not available, there are numerous tasks in Table 1
that are conducted while building a home.

		I understand that the issue of water availability on construction
sites has been raised during this hearing.  Clearly, individuals who
have stated that water is always available on construction job sites may
not fully understand the home building industry.

		Finally, in terms of Table 1 and the engineering controls used to
reduce silica dust levels, I have not seen any of these controls being
used on my job sites.  To comply with the existing OSHA silica rule,
most of the contractors are currently using dust masks, respirators to
control worker exposures to silica, mostly because there are very short
periods of exposure when conducting tasks such as mixing concrete for
setting deck posts, as previously mentioned.

		Now, let's look at regulated areas.  This is another area where OSHA's
proposal misses the mark in residential construction.  For example,
silica may be disturbed when granite countertops are being installed.
Although most of the countertop fabrication is done at the shop, there
may need to be -- there may be a need to drill holes for plumbing
fixtures or make a few small grinding adjustments at the job site.

		OSHA would require the marking of a regulated area where the drilling
or grinding is taking place or developing a written plan and restricting
access to only designated workers.  However, in this case, there would
be no reason to establish a regulated area or have an access control
plan to keep other workers out because the granite countertop installers
are usually the only ones at the job site during that timeframe.

		I also understand that the issue of multiple trade contractors being
exposed to silica dust has also been raised during this hearing.  I
don't believe this will be an issue in home building, as generally,
there are only one or two trade contractors working on the job site at
any one time.

		Finally, I have one more issue I would like to speak about.  I am an
authorized OSHA outreach trainer.  And during my training, it's easy for
me to show workers the results of bad fall protection practices by
stating the number of deaths reported each year as a result of falls on
the job site.  By actually seeing and hearing about the dangers of
falls, workers realize they need to protect themselves when working in
high places.

		On the silica issue, it will be difficult to convince employers and
workers these regulations are necessary because there is no demonstrable
data showing deaths from silicosis on construction job sites.

		In conclusion, the vast majority of small construction employers are
overwhelmed by the complexity and breadth of the OSHA requirements
imposed upon them.  If OSHA does not provide a rule that is clear,
concise, and easy for small businesses to understand, implement, access,
and train their workers, then with this proposal, OSHA is setting small
construction employers and their workers up for failure.  OSHA has the
responsibility to provide a clear, concise rule that small businesses
and individuals will be able to understand and actually use.

		Therefore, I would like to take this opportunity to urge OSHA to,
first, withdraw the proposed silica rule.  Second, conduct additional
informal public hearings on the silica proposal in other parts of the
country to obtain firsthand information from construction employers and
workers who would be directly responsible for complying with this rule.
And, of course, I welcome you all to Wichita, Kansas any time you want
to do that.  And third, take what you have learned from these comments
to rework the standard and streamline the requirements so that they make
sense for businesses in our industry, particularly the smaller ones.

		Once again, thank you for allowing me to participate in this hearing.
I am happy to answer any questions you may have.

		JUDGE PURCELL:  Thank you very much, Mr. Zimbelman.

		I'll go ahead and open it up for questions.  Can I see a show of hands
of individuals in the audience?  One, two, three, four, five?  Okay.
We'll start with Ms. Trahan.

		MS. KRAMER:  Your Honor, was there any written testimony that the home
builders would like to submit?

		JUDGE PURCELL:  Mr. Zimbelman, I noticed you were reading from yours.
 Do you have a copy of that?

		MR. ZIMBELMAN:  Yup.

		JUDGE PURCELL:  Okay.  I'll mark that as Hearing Exhibit 119 and admit
it into the record.

(Whereupon, the document referred to as Hearing Exhibit 119 was marked
and received in evidence.)

		DR. EMRATH:  I also have one.

		JUDGE PURCELL:  Okay.  And Mr. Emrath's testimony I'll mark as
Hearing Exhibit 120 and also admit that into the record.

(Whereupon, the document referred to as Hearing Exhibit 120 was marked
and received in evidence.)

		MS. KRAMER:  Thank you.

		JUDGE PURCELL:  All right, Ms. Trahan, if you'll state your name for
the record and your affiliation.

		MS. TRAHAN:  It's Chris Trahan with the Building Trades.  Mr. Emrath,
you said that much of residential construction involves work where
exposures are low.  I think I read that on one of your slides.  Does the
NAHB have any data on exposures in home building?

		DR. EMRATH:  We don't.  I was relying there on what I've heard from
other people and the -- and what was in the preliminary economic
analysis and its precursors done by OSHA's contractor.

		MS. TRAHAN:  Thank you.

		And then the issue of water, and I think this is Mr. Zimbelman, if
I --

		MR. ZIMBELMAN:  Yes.

		MS. TRAHAN:  The issue of water on the job site, you used an example
of cutting brick, that there wouldn't be a water source available to
control dust?

		MR. ZIMBELMAN:  Not a continuous water source like coming out of a
spigot.

		MS. TRAHAN:  Okay.  But typically, when brick is being cut on a job
site, is it also being put in place?  Is it being laid?

		MR. ZIMBELMAN:  My bricklayer uses a hammer to cut brick usually, just
taps it and breaks it.

		MS. TRAHAN:  Oh.

		MR. ZIMBELMAN:  In the instances where he needs to saw, he will set up
his saw and cut all of the bricks he needs to saw, maybe in a period of
about five minutes.  But if he has water, it's because he brought it
from home.

		MS. TRAHAN:  But he would be putting them in at the same time --

		MR. ZIMBELMAN:  Yes.

		MS. TRAHAN:  -- mortar?

		MR. ZIMBELMAN:  Yes.

		MS. TRAHAN:  Okay.  Thank you.

		JUDGE PURCELL:  Thank you, Ms. Trahan.

		Next, Mr. Schneider?

		MR. SCHNEIDER:  Okay.  Scott Schneider with the Laborers' Health and
Safety Fund.  Thank you very much for coming today.

		I had a question.  You were talking a lot about remodeling and the
potential for exposures there.  I mean, when remodelers create dust, is
that something that concerns homeowners, that homeowners may say, well,
you know -- I mean, I know, for example, if someone's coming in to
refinish floors, there could be a substantial amount of dust created,
wood dust, of course, but is that something that home owners often
object to or are concerned about?

		DR. EMRATH:  You know, I would prefer it if we had a remodeler here
who could answer that firsthand, but based on what I've heard from our
remodeler members, that's very important.  If you're remodeling in
general, relations with your consumer and working in a home that's
occupied places a lot of requirements on you.  And in some cases, you
know, employees who can work on new construction can't work in
remodeling projects for that reason.

		So yes, you've got to -- if you don't control it while it's going
on -- and you need to try to, but there's also cleanup, of course.  And
this final cleanup before something is ready to occupy is, I would say,
one of the other things that the PEA doesn't deal with.  It deals with
it in general and maritime industries where they have, like, little
housekeeping stuff, but that housekeeping function, you know, including
in remodeling, makes sure that the thing is clean before people move in,
you know, that involves sweeping.  And so I mean, the short answer is
yes, I would say it's important in remodeling.  The cleanup is also
important in terms of getting a new home ready for the owner.

		MR. SCHNEIDER:  All right.  So would capturing the dust or collecting
it as you're doing the job help reduce your cleanup costs and reduce the
cleanup time that you have?  And the concerns of homeowners?

		DR. EMRATH:  I'd have to look at that before I could say.  I think
it's going to vary case by case depending on the job.  They're just so
variable.  And I know that we've run into some of this with the lead
exposure rule.  And I think, from that, the answer isn't at all clear
which would be less costly.

		MR. SCHNEIDER:  Okay.  In your survey, you asked the survey
participants if they ever drill or saw, but did you ask them also how
frequently they do it or how long they -- the duration of the exposures
are?

		DR. EMRATH:  We did not.  We didn't think in one page of special
questions -- there were two reasons we didn't do it.  One is simply
space and complexity.  And the second page of a two-page questionnaire,
which we need to keep short to get the response write-up for the Housing
Market Index, we didn't have enough room.

		But the second thing is, you know, from the standpoint of a builder,
if their employees ever do this, this means the regulation places the
burden on them, then, to figure out how often and which ones, and so
forth, so that would be kind of like the trigger.  And also, we thought
it might be kind of a stretch that a builder would be able to know that
and give us a real precise answer to that.

		MR. SCHNEIDER:  Are you familiar, in reviewing the regulation, with
the concept of the action level or historical monitoring data?

		DR. EMRATH:  You know, I know that it's there, but I haven't focused
on that a lot and don't really consider myself to have a lot of
expertise on it.

		MR. SCHNEIDER:  Yeah, um-hum, of course.  Well, the action level
essentially says that if you're below the action level, you don't have
any obligations and that you can use historic monitoring data, like, for
example, NAHB could collect data to show that if you're just drilling a
countertop once or doing sawing for 15 minutes a day, that you would be
below the action level and therefore have no obligations.

		DR. EMRATH:  I take your point.  I guess my point would be that stuff
hasn't been done, and OSHA could have done that also and given us a much
easier to follow blueprint.  But somebody's got to do that, and maybe
that's possible in that case, and maybe in many of the other cases.  But
you know, to me, it seems like the way the regulation is written, it
places all of the burden for doing those things and establishing those
practices and getting that data on the business, the employer.

		MR. SCHNEIDER:  Um-hum.  Okay.  I have one more question.  I know you
follow trends in the industry.  My understanding is there's a lot more
of manufacturing going on, manufactured homes or pre-manufacturing of,
you know, windows and doors and a lot of stuff so that there's less work
being done actually on the site, and it's basically assembly on the
site.  Is that the case?  So many of those exposures could be controlled
in the manufacturing facility?

		DR. EMRATH:  The panel, I can get you the actual numbers if you want,
but -- actually, I might have -- can I have a second just to see if
I've got some --

		JUDGE PURCELL:  Sure, go ahead, Mr. Emrath.

		DR. EMRATH:  -- statistics with me?  The percentage of manufactured
housing or panelized is still, you know, it's still pretty small.  Let's
see.  So in 2013, you know, if we look at manufactured home shipments,
just an example -- that's one component only of what you're talking
about -- it's, you know, 60,000 compared to, like, 929,000 new housing
starts.  So that component of this is small.  In the survey of
construction, you can get a percentage of modular or panelized.  Those
are just a couple percent of the industry also.  They're still small.
So that would be the first part of my answer, that those are still
small.

		The second part is I'm not sure what the implications are, because if
you do this factory construction, you know, modular or manufactured
housing or building panels, or whatever, that's done, like, in a tent
somewhere.  But the construction techniques are, like, the same.  It's
like building something else only you do it in a more controlled
environment before shipping it.  So I think all of the, you know, the
workers doing different sorts of tasks would still apply.  And then, of
course, all of the attaching of these things to foundations occurs on
site.  And I guess I could ask Tony if I'm right, but I think in a lot
of the cases where you're drilling into maybe concrete or something,
that would occur when you're dealing with attaching something to a
foundation.  Would that be reasonable?

		MR. ZIMBELMAN:  Yeah.  I haven't done a panelized home, but I suspect
the typical installation would be to set it on the slab and then drill
through the bottom plate and into the concrete and put an anchor bolt
in.

		JUDGE PURCELL:  And for the record, that last response was by
Mr. Zimbelman.

		MR. ZIMBELMAN:  I'm sorry.

		JUDGE PURCELL:  That's fine.

		MR. ZIMBELMAN:  Thank you.

		MR. SCHNEIDER:  Okay.  Thank you very much.

		JUDGE PURCELL:  Thank you, Mr. Schneider.

		No other questions?

		Ms. Nadeau, please state your name for the record and your
affiliation?

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

		I have a question regarding the overall safety assessment that takes
place before the remodeling or construction of a home.  Who's
responsible and what's the depth and breadth of the assessment that's
done?

		DR. EMRATH:  Tony, I think that would be a question for you, because
that's outside of my expertise.

		MR. ZIMBELMAN:  All right.

		JUDGE PURCELL:  And that was Mr. Emrath.

		MR. ZIMBELMAN:  This is Tony Zimbelman.  The large majority of the
remodeling companies are small.  There might be an owner and then three
or four workers.

		MS. NADEAU:  Um-hum.

		MR. ZIMBELMAN:  And then the subcontractors that go along with it.  It
would be up to the owner or his designated competent person to make that
assessment before they ever start.

		MS. NADEAU:  So what does it entail?  What does the competent person
actually do in assessing --

		MR. ZIMBELMAN:  Oh, they'd have to figure out where they need to put
dust partitions up.  They would have to figure out how to control the
dust that they make from getting into the rest of the house.  They would
have to have a plan that, you know, after each task we're going to clean
up, where is all the debris going to be disposed, are we going to
have --

		MS. NADEAU:  So that's what they do now?

		MR. ZIMBELMAN:  Yes.

		MS. NADEAU:  And is there -- for instance, one of the things that was
said that I was confused by is it often involves removing or altering
materials of unknown silica content.  If you don't know the silica
content, do you know what else might be there, like asbestos or any lead
or anything else when you -- I'm wondering how that occurs.

		MR. ZIMBELMAN:  Well, it depends -- that would depend on the age of
the house.  Of course we have the lead-based paint regulations for all
pre-'78 houses.  So if it's earlier than that, you pretty much know it's
in there.  Asbestos, they would either have to hire a remediation firm
to come in and make that determination or maybe some of them are good
enough to know.  They're good enough that they know it already.

		MS. NADEAU:  So the assessments of what materials might be involved in
the house that would be remodeled, that's already occurring for other
types of dangers that might be there, respirable contaminants or other
dangers?

		MR. ZIMBELMAN:  I can't answer that.  I don't do remodel.  I'm just
telling you what I would do if I was a remodeler.

		MS. NADEAU:  Okay.  And there was a question or something about use of
respirators for short periods of time.  And I was wondering whether

-- how that works.  Do you have a program where people are fit-tested
and that sort of thing?  How does the typical home builder deal with
short-term use of respirators?

		MR. ZIMBELMAN:  Okay.  Well, in my situation, which I can only speak
to mine, just about all of my subcontractors are either one-man shows or
them and their son or them and their son-in-law.  And so they have --
and they inherently know that if they're sawing control joints in
concrete, that's going to create dust, and that's probably not the kind
of dust you need to breathe.  So they wear dusts masks when they do
that.  It's a decision they make.  I mean, even though I tell them, you
know, this is what we should be doing, most of those decisions are made
by them for their own safety.

		MS. NADEAU:  So you recommend the use of a respirator for certain
functions?

		MR. ZIMBELMAN:  Yes, um-hum.

		MS. NADEAU:  And a couple of other questions.  There's been a lot of
testimony or discussion during the course of the hearing about local
standards of dust control, where homeowners or builders can be cited for
failing to control dust to the standards that the locality or even state
would require.  And if you're working adjacent to other homes,
that's -- we found during the testimony that that was one of the
biggest sources of complaints.  So I'm wondering how you deal with local
dust ordinances.

		MR. ZIMBELMAN:  Okay.  This is Tony Zimbelman again.  We have not had
that problem in our area.  We have no complaints like that.

		MS. NADEAU:  There's no ordinance or you've never had to address it?

		MR. ZIMBELMAN:  I do not know if there is an ordinance, but we have
never had to address it.

		MS. NADEAU:  Do you have any knowledge of a --

		DR. EMRATH:  I have never had a builder raise that issue with me.

		JUDGE PURCELL:  And that's Mr. Emrath responding.

		MS. NADEAU:  Okay.  One more question.  In terms of conducting your
survey, what level of resources went into developing the survey and
disseminating the survey and analyzing the survey?

		DR. EMRATH:  Sure.  This is Paul Emrath again.  Well, the key to
knowing how the survey is conducted is to realize it's a page of special
questions that we add on to the instrument whose primary purpose is to
generate the Housing Market Index.  So we have a panel of builders.  We
try to keep it at about 2,000.  We refresh it once a year, creating a
new panel and merging them together to see that the new panel is
responding the same way as the old panel to the constant questions.  And
we shoot for about, you know, 400 responses.  This is at the end of the
cycle, so we only had 200 and some.  The sample is stratified by the
four census regions and by the size of builders.  They're single-family
builder members.  And so that's how -- that's kind of how the survey is
conducted.

		With the special questions -- because -- they're generated in
different ways, but in this case, I initiated it myself, and I drafted
the questions, and I circulated them to my staff, who are survey experts
and our chief economist, Dave Crowe, to comment on.  And I showed them
also to our labor staff to comment on and incorporated any suggestions.
And that's pretty much how it went.

		MS. NADEAU:  Do you think some of these resources could be devoted to
developing databases so that when the contractors perform the same
activities again and again and again that they could have a reasonable
expectation as to whether there might be silica exposures at the action
level?

		DR. EMRATH:  I think given the number of tasks that you'd have to
analyze and what you'd need to do to get, you know, enough of a
representative sample on that.  I think that's way beyond one page of
special questions on our monthly survey, so --

		MS. NADEAU:  Well, how many tasks are done repeatedly every time you
go to a house like drilling a countertop or, you know, removing the
existing pieces of structure.  I mean, is that done repeatedly again and
again and again from house to house to house?

		DR. EMRATH:  I think there are certainly a subset of tasks that are
done repeatedly like that where it would make sense to build up a
database like that.  I mean, that requires more resources than my
department has.  I mean, our survey department is me and, you know,
three other people, and we have to, you know, generate something like
100 surveys a year.  And I think -- you know -- this is Paul Emrath
again.  I'll go back to something I said before, which I think it would
be nice to have a database like that.  I can see where it would be
developed, but it doesn't exist right now.

		MS. NADEAU:  Well, are there any tasks that when you go to remodel a
house you say, gee, this is a surprise, I wasn't expecting to have to do
that?  Does that happen?  Is that the norm, that you go into a house and
you realize, gee, I didn't know that I was going to have to cut brick or
I didn't know that I was going to have to drill countertops or --

		DR. EMRATH:  This is Paul Emrath again.  And I would prefer to have,
you know, some hard statistical evidence, but anecdotally, remodelers
tell me that there's always -- they're always surprised when they go
in.  They always wind up doing things that they weren't expecting to do.

		MS. NADEAU:  Such as?

		DR. EMRATH:  Opening up a new wall because there was something behind
there that no one had anticipated or the owners didn't even know.

		MS. NADEAU:  But I guess what I'm saying is they may have not
predicted it in a particular situation, but over time, the unexpected
becomes the expected because it -- if you have experience, it will have
happened again over months and years of doing the same business?

		DR. EMRATH:  I think it's -- this is Paul Emrath again -- I think
it's quite reasonable to expect that there are a large number of tasks
that would fit that model, where you could build up a database like
that.  But to my knowledge, that doesn't exist now.

		MS. NADEAU:  Thank you.

		JUDGE PURCELL:  Thanks, Ms. Nadeau.

		Next questioner, I believe, is Mr. Hammock?

		MR. HAMMOCK:  Thank you, Your Honor.  Brad Hammock from Jackson Lewis
on behalf of the Construction Industry Safety Coalition.

		Thank you all for being here.  I just have a few questions.  And I
wanted to start with some questions related to this category of
employers you're talking about who are not employers under the OSH Act.
In other words, they don't actually have employees, so I'll just call
them the self-employed category of employers out there.

		In a situation -- and this is for both of you -- in a situation
where you have someone working alongside, someone with employees,
working literally alongside someone who doesn't have employees, how do
you get -- how do you handle a situation -- an OSHA compliance
situation in that scenario?

		DR. EMRATH:  Well, this is Paul Emrath, and I have the same question
you do, so you know, I sort of wonder about that, so I'm going to turn
that over to Tony, I'm afraid.

		MR. ZIMBELMAN:  This is Tony Zimbelman.  So your question is if I have
an electrician out there that doesn't have any employees, and he's
working next to the plumber that may have a plumber and a helper?

		MR. HAMMOCK:  Right.

		MR. ZIMBELMAN:  And the plumber now -- the plumber is drilling a hole
through the basement wall, and the electrician is down there, right?

		MR. HAMMOCK:  Yeah.

		MR. ZIMBELMAN:  The plumber drilling the wall would generally be
wearing a dust mask, P95, because it's only going to take him about
three minutes to get through that wall.

		MR. HAMMOCK:  Um-hum.

		MR. ZIMBELMAN:  The electrician, quite frankly, goes about his
business like nothing else was going on, because it's such a small
amount of time that the event happened.

		MR. HAMMOCK:  Let me take it out of the silica context, because I'm
really interested in your views on how it works just generally.  And I
don't know this because -- and I don't mean to testify, Your Honor, but
just to set the predicate for the question -- the OSH Act doesn't
technically cover these people.  So you could have an employee -- you
could have a self-employed individual with no employees engaging in a
number of hazardous activities that might not affect their -- and they
don't care from an OSHA compliance perspective.  We'll just say that.
How do you handle a situation where they're working right next to an
employer who is covered in dealing with that hazardous condition?

		MR. ZIMBELMAN:  Okay.  This is Tony Zimbelman again.  We have -- I
have a safety plan for my company, and I recommend that they all have
safety plans.  And I would hope that all of my subcontractors would be
following their safety plan like they're supposed to be and abiding by
the OSHA regulations.  If I would see that, I would say something about
it.  But I can only speak for, you know, what's going on on my job
sites, and I just don't see that happening.  I don't see my subs putting
other subs in danger because they're all kind of practicing what they're
supposed to be doing safety-wise.

		DR. EMRATH:  This is Paul Emrath.  One thing that seems relevant to me
is just how difficult it is for the builder to determine which category
his subs fall into because one employee anywhere in your firm will make
the difference.  And there are a lot of small trade contractors with one
or two employees, very often family members.  That's a very common
arrangement.  And you know, you might decide you don't like your
brother-in-law Fred that much and don't need him and lay him off.  And
how would the builder know?  And in some cases, the employee may be just
one -- someone who helps you with the books, and the builder, general
contractor, would never see that person who triggers the change in
status.  So it's a very difficult thing for a general contractor to
always know if his subs are, you know, the -- what the Census calls
non-employers or actual establishments with employees.

		MR. HAMMOCK:  Would it also be safe to say that if you repeatedly were
having an experience with a subcontractor who was not compliant with
OSHA standards that you may stop working with that subcontractor?

		MR. ZIMBELMAN:  Tony Zimbelman.  Yes, absolutely.  And I might add one
more thing if I could.  In a typical building of the home process, there
are not that many situations where what you're talking about comes up.
Generally, it's like -- we saw control joints in our basement floors.
That's done the day after they pour the floor.  They're the only people
there.  They're the only people that have any reason to be there.  The
bricklayers would cause some dust every now and then.  They're outside.
There's nobody else outside working.  The siding has already been done
because they're laying the brick up to the siding.  And those would --
and the other big silica event would be in the drywall, and they're the
only ones in there.  When they show up to tape and mud and sand, they're
it, that's the only person in there.  So it just doesn't come up that
much in the normal course of homebuilding.

		MR. HAMMOCK:  Um-hum.  And when you are building a home, let's say
you're building it from scratch, who dictates the materials that you
have to install in that home?

		MR. ZIMBELMAN:  This is Tony Zimbelman again.  That would be me.

		MR. HAMMOCK:  Okay.  Do you get specs from customers or anything like
that?

		MR. ZIMBELMAN:  In a custom home, we have to submit our specifications
to the lender with a set of plans, et cetera.  So yes, we do specify
certain materials.  Others are left up for the owner to pick out.

		MR. HAMMOCK:  Final question.  Are there circumstances when you're
building a new home where you cannot introduce water into the home
related to a building method that you're utilizing?  And putting aside
the thing you testified to earlier, which was related to whether there's
water on the site.  Let's assume there is water on the site.  Are there
situations where you are building, say, inside a home where you can't
introduce water?

		MR. ZIMBELMAN:  Tony Zimbelman again.  The answer is yes.  The most
obvious one would be at the end when you're getting ready to lay carpet.
 If you wet everything down to sweep it up, it's going to seep through
the substrate, go down in the basement, stain the ceiling, cause a mess
down there.  So it's just prohibitive.  You just cannot do that.

		MR. HAMMOCK:  Okay.  Thank you, Your Honor.

		JUDGE PURCELL:  Thank you, Mr. Hammock.

		Other questions from the audience?

		(No response.)

		JUDGE PURCELL:  Seeing no additional hands, I'll turn it over to OSHA.

		MR. PERRY:  Thank you, Your Honor.  This is Bill Perry.  And first of
all, let me thank both of you for appearing today and giving your
testimony.  We really appreciate it.  You're helping us out with this.

		Okay.  Bob Blicksilver will begin our questioning.

		MR. BLICKSILVER:  Bob Blicksilver.  Good morning.

		Dr. Emrath, I'd like to ask some questions about remodeling.  You
appear to take issue with OSHA's estimate of cost per establishment, and
you've provided some data on the sorts of trades that could be involved
in remodeling.  But I don't see in your written testimony or your oral
testimony any indication of what NAHB estimates to be the estimated cost
per, say, remodeler.  Do you plan or have you done any sort of profile
of a typical remodeling job, or is that something you could put into the
record in post-hearing comments for us?

		DR. EMRATH:  This is Paul Emrath.  We do ask in our Remodeling Market
Index Survey periodically what are the most -- what we ask is what are
the common remodeling tasks you have performed during the past year.
And we did that very recently.  We did that in the fourth quarter of
2013.  And so the most common types of remodeling projects are bathrooms
and kitchens.  Those are always one or two.  Right now, roughly 70
percent of our remodelers tell us they commonly do bathrooms or kitchen,
or each of those separately, we get somewhere around 70 percent.  And I
would be happy to provide that report that shows that if you would like.
 I think I might even have a copy of it with me.

		MR. BLICKSILVER:  Okay.  It would help us if in your interviews or any
survey or polling of the specialists, the typical trades that encounter
silica, the amount of time they're spending in those tasks, any controls
they may already have in place to control dust exposure, that type of
information.  Say, you know, a profile of a typical, again, a typical
sort of remodeling job if you have an opportunity to interview someone
who specializes in that activity.

		DR. EMRATH:  Okay.  This is Paul Emrath again.  I'd be happy to look
into that.  I mean, this is a little more complicated than what we would
normally do in a survey, but I understand it's important, and we'd like
to help.  Would it possible for me to communicate with you on developing
a questionnaire when we're doing that?

		MR. BLICKSILVER:  Yes, I believe so.

		DR. EMRATH:  Okay.

		MR. BLICKSILVER:  Yes, okay.  Thank you.

		The question about employees or subs who either saw or drill or sweep
non-wood or metal, do you think that you've captured all silica
materials?  I mean, I'm thinking just plastic and vinyl might be
considered non-wood or metal, and I don't know how much silica is in
that.  So, you know, I wonder just how much we've really restricted
these activities or trades to strictly silica exposure.

		DR. EMRATH:  This is Paul Emrath again.  Yes.  Again, you know, in the
context of a very, you know, simple one-page questionnaire, we had to,
you know, had to have a brief description.  And we had -- we did
provide a brief paragraph on -- at the top of the questionnaire saying
what -- listing some of the things like, you know, asphalt and concrete
and things that we know contain silica, which I'll also get that to you.

		But I wanted to -- well, I thought there was a gray area.  I thought,
you know -- there are a couple things.  Our labor staff, you know, were
able to tell me, you know, wood does not contain silica.  A lot of other
things -- either it's the material itself or the -- or maybe some of
the materials that are used in attaching it together or whatever might
contain silica.  So I mean, it was deliberately a broad question that
was designed just to rule out at this first go-around things that we
knew could not contain silica, which I think are relatively few,
although important categories of construction material like, you know,
steel and lumber.

		MR. BLICKSILVER:  Okay.  So again, maybe in post-hearing comments, you
could sort of clarify those particular materials where your members
believe they do encounter silica just to sort of narrowly define the
types of materials.  Is that something that you could, again, interview
a few of your members and just to sort of refine that scope question?

		DR. EMRATH:  We can certainly try to do that.  I would say -- this is
Emrath again -- I would say the same thing I did in terms of asking a
remodeler these questions.  I'd like to be able to work with you on the
questionnaire.

		MR. BLICKSILVER:  Okay.  Sure.

		DR. EMRATH:  I will say when I did these things, realizing that I'm
not an expert on the silica content of various things, I did go to our
labor staff, particularly Rob Matuga, who knows a lot more about that
than I did, and you know, so I had some expertise driving how I phrased
the question.

		MR. BLICKSILVER:  Thank you.  Okay.  Now, on the use of objective
data, you answered some questions earlier.  Do any of your larger
members or even smaller, any of your members use objective data?  Are
you aware that some may be using objective data in guiding the
contractors in, you know, assigning controls and setting up regulated
areas and those types of things?

		DR. EMRATH:  This is Paul Emrath again.  We haven't asked a particular
question like that, so I don't have any first-hand knowledge.  If you
ask me to, you know, speculate, I would say some of the larger
operations, it's likely they have, you know, some of the people who have
more construction employees of their own, which would be, you know, some
of the larger builders.  They'd be more likely to do that.

		MR. BLICKSILVER:  Thank you.

		On regulated areas, you indicate in one of your slides that there are
no costs for certain trades, electricians, plumbers, flooring
installers.  Could you foresee that regulated areas or access control
plans, that those might limit exposures to some of these trades and
concentrate those trades with higher exposures, and again, sort of limit
the ones who may be sort of peripherally exposed to silica?

		DR. EMRATH:  This is Paul Emrath.  That's a very general question
that's asking me to speculate an awful lot.  There's certainly going to
be some subset of activities and trades that fall into a category like
that.  But I would think if you look at an occupation like carpenters
and just the different things that those people will do in the, you
know, in the course of their job, in the different kinds of carpenters
and people, you know, doing the countertops, doing the siding.  I think
it's going to be hard to narrow the focus on carpenters very much, for
example.

		MR. BLICKSILVER:  Okay.  Just a couple more questions on your profit,
your comments on OSHA's profit rate estimates.  And in one of your
written comments, you provided a timeline of profit rates. And I just
note for the record that your NAHB cost of doing business study
determined that the profit rate in 2012 was 5.7 percent.  And there
seems to be also a trend upward from 2008 to 2012 of average profit for
single-family home builders, 1.4 percent in 2008, 4.7 percent in 2010,
and 6.0 percent in 2012.  You seem to be critical of OSHA's applying of
a profit rate across a range of establishment sizes.  Has NAHB estimated
profit rates for smaller employers that would guide us -- guide the
Agency?

		DR. EMRATH:  This is Paul Emrath again.  You've pretty much seen what
we have in that written testimony.  That's what we have.  I'd be willing
to take a look at breaking that down further.  The chart he's referring
to distinguishes between small volume builders with fewer than 26 starts
per year and production builders, defined as 26+ starts a year.

		MR. BLICKSILVER:  Um-hum.

		DR. EMRATH:  Just the size and scope of that survey, I'm afraid, isn't
going to allow us to break it down much further than that and get any
kind of reliable results.  But I can take a look at it.

		MR. BLICKSILVER:  With a small volume builder, would that be a pretty
good sort of proxy for an SBA-defined small employer in the home
building industry?

		DR. EMRATH:  I think almost all builders are -- this is Paul Emrath
again -- are small.  I mean, the SBA, their threshold is $33½ million
of revenue.  Very few of our members have, you know, $10 million if
they're single-family builders.

		MR. BLICKSILVER:  Okay.  Finally, you commented that you didn't see
any recordkeeping costs in the PEA, and I just wonder if you in the
Federal Register notice were aware that there's a report on the
information collection requirements, the recordkeeping burden.  There's
a section in the proposed rulemaking with totals on page 5643(a).  Did
you get a chance to look at that, or could you please just to return
comment on what you see there?  Also, there's an ICR paperwork package
with the detailed estimates by provision if you could review that and
comment on that as well?

		DR. EMRATH:  This is Paul Emrath, and I'd be -- I was aware of the
first of those, but I didn't spend a lot of time on it just because my
assignment was really to, you know, review the PEA.  That's something
that our labor staff asked me to do.  But yes, I'd be happy to look at
it and provide written comments --

		MR. BLICKSILVER:  Thank you.

		DR. EMRATH:  -- for both of those.

		MR. BLICKSILVER:  Okay.  That's all.

		MR. ANDREWS:  Hi, this is Pete Andrews.  First of all, thank you for
coming.  I have a question for Mr. Zimbelman.  This is in regards to
training.  Do you provide training on the hazards of silica exposure for
your members?  Please describe for the record.  And how do you determine
the trigger for a certain exposure level on who to train?

		MR. ZIMBELMAN:  Okay.  When you say members, are you talking about my
local association members, do I provide training to them, or are you
talking about my subcontractors on the job?

		MR. ANDREWS:  Both.

		MR. ZIMBELMAN:  In answer to the first question, we do a training
session on the HazCom or GHS, Global Harmonization, we offer that course
about twice a year.  And when we do teach that, yes, they get a little
bit of information on hazardous chemicals, hazardous materials.  I'm not
sure we address silica directly because it hasn't been that big a deal
up till now, but I suspect we probably will in the future bring it up
more.

		As far as my subcontractors, like I stated before, we all have safety
plans.  I have shown them all my safety plan. I require them to do their
own.  We also had our association teach a course on a written safety
plan.  So if they come to the course, it's a pretty elaborate two or
three-hour long course, but when they're done, they have a safety plan
that we'll type up for them, and it's specifically contoured to their
business.

		So yes, as far as me training them personally, between me and my
subcontractors, it's more of just a day-to-day kind of dialogue of what
we need to be doing.

		MR. ANDREWS:  Thank you.

		MR. ZIMBELMAN:  You're welcome.

		MR. ANDREWS:  I'm going to turn this over to David O'Connor.

		MR. O'CONNOR:  Thanks, Pete, and thank you for appearing to testify
today.

		I wanted to explore a bit more about use of respiratory protection and
the indications in the NAHB written comments that there is increased use
of respiratory protection, particularly 95 respirators.  But there was
also an indication both in the written comments and testimony we heard
this morning that exposure monitoring isn't typically done.

		And I was just wondering what the basis was for deciding when that
respiratory protection would be used and deciding that the N95 would be
the appropriate type of respiratory protection?

		DR. EMRATH:  Well, this is Paul Emrath. I mean, I personally, you
know, since I'm not a home builder don't make that decision for anyone,
so if Tony can't answer it, we'll have to do some research and maybe get
back to you, but --

		MR. ZIMBELMAN:  Yeah, this is Tony Zimbelman.  I'm going to have to
defer to NAHB staff to get you an answer on that.

		MR. O'CONNOR:  Okay.  Thank you.  And one other request.  There is
some mention in the written comments, and Mr. Zimbelman, you touched on
it in your testimony this morning as well, that OSHA needs to have a
clear, concise, easy to understand standard.  And I was wondering if you
had any specific suggestions.  Clearly, from what we heard, NAHB has
some issues with what we've proposed, but I was wondering if you had any
specific suggestions as to what changes would be appropriate short of
withdrawing the rule and going back to the drawing board?

		MR. ZIMBELMAN:  That's funny you should ask.  Yes, I do.  I guess
my -- what I would envision is that the Table 1 could either be revised
or scrapped and start over, but what I would like to see is a category
by trade, like one for the masonry people, one for the concrete people,
and each task that they would do whether it be, you know, sawing control
joints or sawing bricks, that -- and you're not going to like this, but
I would think that that would be OSHA's responsibility to do that
testing, figure out that task, and then put in that report this is what
you need to do if you're doing this task.  That way, you would know
beforehand.  Right now, I kind of feel like you're making me do that.
You're making me decide what's dangerous and what isn't.

		I think that that table should be definitive that if I'm a bricklayer
and I'm going to stand there and cut bricks for four hours, I need to do
this.  If I don't have any water, I need to do this.  If I have water,
fine.  We use the water.  And it could -- and drywall, masonry,
plumbers, anybody that has one of these silica-related tasks to do, all
they got to do is look at the table and say I'm a plumber, I'm doing
this, this is what I have to do.

		MR. O'CONNOR:  Okay.  So do I understand correctly that in your view,
Table 1 doesn't get into sufficient detail or simply needs to be broken
down by the various trades in order to provide appropriate guidance?

		MR. ZIMBELMAN:  Yeah.  This is Tony Zimbelman again.  The way Table 1
is written right now, personally, I have trouble even figuring it out.
My subcontractors definitely will have trouble figuring it out.  And
there's not nearly all the tasks that happen silica-related in the
table.  I think we talked about several of them today.  Plumbers drill
holes through concrete walls.  They're not in there.  What are they
supposed to do?  Deck builders mix concrete by hand.  They're not in
there.  What are they supposed to do?  There's several of the -- our
carpenters that put up siding, cement siding, they cut cement siding
with saws.  It's not in there. What are they supposed to do?

		MR. O'CONNOR:  Thank you.

		DR. COBLE:  This is Joe Coble.  And a question for Mr. Kimbelman
[sic] regarding what is your estimation of the percent of time during
the construction of a new home that people are involved in working on
materials that are known to contain silica?

		MR. ZIMBELMAN:  What percent of the time?  This is Tony Zimbelman.

		DR. COBLE:  Or just how often, I mean, roughly?

		MR. ZIMBELMAN:  Well, the entire foundation process, which would be
the basement and the floors, of course, is all concrete in our neck of
the woods.

		DR. COBLE:  Um-hum.

		MR. ZIMBELMAN:  I don't know how to put a percentage on it, but I can
tell you that takes about a week and a half to two weeks that you have
workers actually dealing with concrete every day.  The masonry crews on
a typical house can lay up all the brick or stone in about three days.
The drywall crew is in the house -- a typical house of mine, a drywall
crew will be in there a week and a half.  And the other tasks are, you
know, just so small, they're kind of insignificant when they happen.

		DR. COBLE:  Okay.  Thank you.  I was interested in the issue of the
OSHA compliance with your subcontractors.  Now, with these
subcontractors, do you actually have a contract that you sign with these
people?  I mean, do they -- is there a written contract?

		MR. ZIMBELMAN:  Tony Zimbelman again.  When we started out many, many
years ago, we had contracts.  Over the years, it's kind of become I'll
do what I say, you do what you say.

		DR. COBLE:  Yeah.

		MR. ZIMBELMAN:  And we'll be happy.  And it's worked very well.

		DR. COBLE:  When you have written contracts, does it specify anything
about doing the work in accordance with applicable OSHA standards in the
contract?

		MR. ZIMBELMAN:  Yes.  Originally, we use kind of a boilerplate
purchase order or whatever you want to call it, a subcontract agreement,
that all of that in there.  And technically, I suppose I could say we're
still working under them since we signed them, you know, some of them 15
years ago.

		DR. COBLE:  So even these non-employers could conceivably have an
obligation to comply with OSHA regulations with respect to doing the
work the way you want it done as a subcontractor?

		MR. ZIMBELMAN:  I think even my subcontractors that are sole
proprietors, self-employed, I still think they have an obligation to
abide by the OSHA regulations.  Even though, you know, technically,
they're exempt from them, they're still part of the overall building
process, and if they work around other people, they need to be safe.

		DR. COBLE:  Right.  And then, finally, just on Table 1, in the
interest of trying to simplify and make it workable, if, for example,
the table said "when drilling holes through concrete indoors the drill
should be equipped with a local exhaust ventilation system," would that,
in your mind, be a reasonable entry on the table?  You know, regardless
whether anybody else is around or just as a precautionary measure, you
want to require local exhaust ventilation when drilling concrete walls
and doors by plumbers?

		MR. ZIMBELMAN:  This is Tony Zimbelman.  I think you should test that
operation, and if it's above the PEL limit, then make the appropriate
engineering control required.  If it's not, let him use a dust mask.

		DR. COBLE:  And just let the dust fly everywhere --

		MR. ZIMBELMAN:  Well, that's what --

		DR. COBLE:  -- and potentially expose other employees?

		MR. ZIMBELMAN:  That's what you're going to test.  The dust may not
fly everywhere.  When you're drilling a hole through a basement wall, it
just falls down in a pile.  It doesn't go everywhere.

		DR. COBLE:  Okay.

		MR. ZIMBELMAN:  So you may not need any engineering control at that
point.  But that's what I'm getting at.  It would be easier if they
could just -- if that operation had been tested that we know we'll be
safe if we do this.

		DR. COBLE:  Um-hum.  Okay.  Thank you.

		MR. ZIMBELMAN:  You're welcome.

		MS. KRAMER:  This is Alison Kramer.  I just have a couple questions
for you guys.  My first is for Mr. Emrath.  I know you've answered a
lot of questions about your survey so far.  I have one more.  Did the
"don't know" responses include the survey respondents who just didn't
respond to that question?

		DR. EMRATH:  This is Paul Emrath.  No.  It included only -- the
tabulations and those charts were based only on people who gave answers.
 They could check it was not applicable, and I think we got very few of
those, and they weren't in there either.  So the "don't knows" are
people who specifically checked a box saying they don't know.

		MS. KRAMER:  Okay.  So there may have been some subset of the 203
respondents that didn't answer that question but that weren't captured
in the "don't knows" or in the --

		DR. EMRATH:  Oh, yes.  That's correct.

		MS. KRAMER:  Okay.

		DR. EMRATH:  And if you're really interested, I can get you all of
those percentages.  We have tables with those.

		MS. KRAMER:  That'd be great.

		DR. EMRATH:  And in fact, I think it'll be in the report that I'm
going to submit later.

		MS. KRAMER:  Perfect.  Thank you.

		Moving on from the survey, I am interested in how Mr. Zimbelman, how
you keep your records now.  I imagine as a small business owner you have
to keep a number of records, tax, payroll, how to comply with lead
standard, the asbestos standard, things like that.  How do you keep your
records now?

		MR. ZIMBELMAN:  I'm responsible for all of that.  So I do the required
documentation and keep them in a file in my office.

		MS. KRAMER:  So paper, not computerized?  Just checking.

		MR. ZIMBELMAN:  Yeah, it's -- I'm 62.  I'm not much of an IT guy.
Yeah, it's paper.

		MS. KRAMER:  Do you -- no, I think that answers my question on that.

		MR. ZIMBELMAN:  Okay.

		MS. KRAMER:  Now, I appreciate your invitation to come to Kansas.
I've only been there so far in the summer.  I'm told it's quite cold in
the winter.  Do you do construction in the winter in Kansas?

		MR. ZIMBELMAN:  Yes, we do.  Our winters are -- they're not like
Minnesota where it might get cold and never get above freezing.  It'll
get cold for two, three, four days, and then it might get up into the
40s for a couple of days.  That allows us -- if we need to get a
basement in, we can actually do that in that time span.  Once we get the
basement in, which is really the only thing the weather kind of hinders
us on, we can go ahead and, you know, frame and roof and do things like
that.  Of course, we would have problems with laying masonry when it's
cold, and stuff like that.  But there, again, you get those two or three
days where it's nicer, and you can still work.  So we're never
completely shut down.  The longest I can ever remember in my 21, 22
years is I went for 30 days once and never did one single thing.

		MS. KRAMER:  Okay.  Thank you.  I have one last question.  When
Ms. Nadeau was talking with Mr. Emrath about tasks that were done
repeatedly from house to house, I believe you were nodding your head
during that to kind of indicate that that was your experience.  Could
you say a little bit more about that?

		MR. ZIMBELMAN:  Could you repeat that?  I'm sorry.

		MS. KRAMER:  Of course.  I believe Ms. Nadeau was asking Mr. Emrath
about tasks that were done repeatedly.  So say if you're working on a
granite countertop, you always know that you're going to need to drill
some holes in that granite countertop.  Do you find that you can kind of
predict, all right, house A, I'm going to need to do these tasks.
They're the same tasks that are going to happen roughly on the same day
in house B.

		MR. ZIMBELMAN:  Yes.  This is Tony Zimbelman.  The reason I was
nodding my head is because it kind of fits into this schedule that I
would like to see in that, yes, we can predict pretty much on every
house these things will happen almost every time.  And that's why it
would be easier if everybody knew when they walked in the house, you
know, after a period of time, after they got used to it, they would just
automatically do what they're supposed to do.  It'd be part of their
routine.  They'd get their respirator out or whatever they need to do
the task.

		MS. KRAMER:  Thank you.

		MR. ZIMBELMAN:  Yes.

		JUDGE PURCELL:  Thank you, Ms. Kramer.

		Any further questions from OSHA?

		MR. PERRY:  Yes.  This Bill Perry.  I have just a few.  Let's see.  A
question about respirator use because -- and I'm going off of the
NAHB's written comments here a bit, too, where -- and I think we've
heard you, both of you, I think, say that N95s are the predominant means
of dust control in the home building industry.  Would you agree that
that just kind of -- are people just not aware that there is a current
exposure limit for crystalline silica in our construction regs and that
that rule requires the use of engineering controls where it's feasible
to use them?  Are people just not aware of that or is there something
else going on there?

		MR. ZIMBELMAN:  Tony Zimbelman.  I would agree with you.  I think it
is a lack of knowledge of the regulation, the current regulation, and I
think what they're doing right now is, you know, when -- you kind of
inherently know when you're doing something and you shouldn't be
breathing that, then you get a dust mask on.  Like, when I sweep out
houses now, I wear a dust mask just because I know that's probably the
right thing to do.  And I've done enough of it in my life that it
probably would have built up on me by now.  Currently, I think that's
what's going on.  It's just they know I probably need to take this
precaution when I do this event.

		MR. PERRY:  Okay.  Thank you.  And I get a sense from what you were
saying earlier about your subcontractors -- I think it was the issue of
regulated areas -- that there's pretty good communication, it sounds
like, between subcontractors, your various subcontractors on site, that
if somebody's doing something hazardous or might affect the work of
another, they communicate.  Is that -- would you say that that's fairly
typical in the industry also?

		MR. ZIMBELMAN:  Yeah, this is Tony Zimbelman.  Yes, absolutely.  I
think the difference, or the misconception maybe it is, is like a
national home builder, he might be building -- he might have 40 houses
going in one development, you know, all next door to each other.  But
there's still just a few people in each house.

		MR. PERRY:  Um-hum.

		MR. ZIMBELMAN:  It's the daily events that they need to do.  And then
the next day or three days later, they all move over a house.  So even
though there's a lot of people in that development, there's still a very
small exposure in each house.  Does that make sense?

		MR. PERRY:  No, it does.  It's a scale.  I mean --

		MR. ZIMBELMAN:  Yes, yeah.

		MR. PERRY:  -- a small scale than, say, commercial --

		MR. ZIMBELMAN:  Right.  And I'm sure even in -- you know, my subs are
friendly with each other and understand, and I'm sure on the bigger
developments, they even have a better concept of the safety because, you
know, they have a safety director, and they're getting these weekly
talks.  So yeah, I think it's pretty common.  Everybody is friendly to
each other, and nobody's trying to hurt each other.  And nobody's, you
know, purposely throwing silica.  I mean, there is a general
understanding in the home building business that dust can be dangerous,
and you need to take some precautions, but maybe not as far as what
you're suggesting.

		MR. PERRY:  Okay.  Very good.  Just wanted to ask about a comment in
the NAHB submission.  I don't know if you have it in front of you.  It's
on page 29.  But it deals with water, where they say water is not
necessarily immediately available on residential construction sites.
And I think you spoke to this also.  Is that mostly a cost issue or is
there any reason why if water needed to be present on a residential site
before the continuous supply is made available, is there any reason why
it can't be made available?

		MR. ZIMBELMAN:  Tony Zimbelman.  Okay.  I think there's a difference
in the regions that we build in.  Like, some states don't put in
basements, so when they do the infrastructure, they probably put in the
water meters at the same time.  When we put a basement under a house,
the water supply line comes through the basement wall.  So first of all,
I have to have a basement -- and I understand what you're saying.  I
just want you to know why we can't get water when we need it on a house
with a basement.  I know you're asking about could we set up a 55-gallon
barrel and make a -- is that what you're --

		MR. PERRY:  Or truck it in, yes.

		MR. ZIMBELMAN:  Or truck it in.  I mean, if we had to, we would.  I
mean, if this goes through, that's probably what we'd have to do.  But
right now, everybody hauls their own water in.  The bricklayer will
bring a 55-gallon barrel, and he'll either get water from one of our
model homes or he'll bring it from home, or I'm sure some neighbor's
water gets stolen.  I'm not that naïve.

		MR. PERRY:  No, I'm just --

		(Laughter.)

		MR. ZIMBELMAN:  The drywallers bring their own water if we don't have
water.  So up to this point, there hasn't been any -- everybody
survives.

		MR. PERRY:  Right, right.  Okay.  Very good.  Thank you.

		Just one last question, Mr. Emrath.  I think you commented earlier in
response to a question that you thought it might -- and tell me if I'm
mischaracterizing this, okay?  But I think what I heard you say was you
thought it wouldn't be possible to collect enough exposure information
to really characterize the exposure of different kinds of work in
different conditions so that it might enable somebody to anticipate on a
future job what do expect.  But you haven't -- have you or anyone at
NAHB really done an analysis or consulted with people in the -- with
heightened industrial hygiene expertise to really kind of figure out a
plan or a program that might develop useful information?

		DR. EMRATH:  Well, I haven't done that.  That would be a little
outside the scope of what I would normally get involved in, but I can
relay that question to some of our other staff who would be more likely
to do that.

		MR. PERRY:  Okay.  Very good.  That would be helpful.  I appreciate
that.

		That's all I have, Your Honor.

		And thank you both again for appearing today.

		JUDGE PURCELL:  Thank you, Mr. Perry.

		And thank you, gentlemen, for your testimony today.  I appreciate it.

		Let's go off the record for a minute.  I want to check and see if the
next two speakers are here, William Good --

		(Off the record.)

		(On the record.)

		JUDGE PURCELL:  The first is William, representing the National
Roofing Contractors Association, and the second speaker is Rick Olson,
representing the Tile Roofing Institute.

		Welcome, gentlemen.  After you have a chance to set up, whenever
you're ready, you may begin.  And we'll start with Mr. Good.

		MR. GOOD:  Thank you, Your Honor.  Thank you for having us.  And my
name is William Good.  I'm the Executive Vice President of the National
Roofing Contractors Association, NRCA.  NRCA was founded in 1886 and
today has about 36 or 37 hundred members in all 50 states and in some 54
foreign countries.  Our members, we believe, do about two-thirds of the
roofing work that's done every year in the U.S.

		We very much appreciate the opportunity to comment on this proposed
rule on occupational exposure to crystalline silica.  Let me begin by
saying the obvious, which is that our members want to reduce, wherever
possible, exposures to harmful substances at the work site, including
silica.

		Silica exposures in roofing, however, we believe, are very rare, and
are generally limited to operations where tile roofs are being installed
or replaced because the tiles need to be cut to fit in place on the
rooftop.  Tile roofing represents less than 10 percent of the
residential roofing market, and the residential roofing market itself is
roughly a third of the total roofing market.  So we think we're talking
about a relatively small piece of the roofing industry that will be
affected by this rule.

		And we know from earlier studies that, typically, the only person, we
believe, that's at risk from silica exposure during roof tile operations
is the person actually using the saw to cut the tiles on the rooftop.
And we want to do everything we can do to protect that person.  But
again, that person operating a saw on a roof represents a very small
segment of the roofing workforce.

		In roofing, as we know, OSHA understands very well, our overriding
concern is and always has been falls.  The leading cause of serious
injury and death in roofing is from falls.  And falls occur generally
from three different -- in three different ways on a roof.  They occur
off the edge.  They occur through openings on the rooftop, and they
occur from ladders.  And, interestingly, I think it's about a third, a
third, and a third, from your data and from data that we have.

		So the very best safety practices in the roofing industry include
keeping roofing workers away from the edges of the roof to the extent
that we can, protecting them on the rooftop from openings and from falls
and tripping.  The last thing we want them to do is be sliding around.
And then minimizing their trips up and down ladders because we know
falls from ladders account, again, for about a third of the falls that
we have to deal with.

		And our fear here, unfortunately, is that the proposed silica rule
will dramatically increase the risk of falls because of the unique
nature of roofing work.  And I'd like to explain that.

		And first of all, I'd like to just show, for the record, what a tile
roofing job looks like, because I'm not sure that's very well
understood.  And I'd point out two or three things just from taking a
look at that photograph.

		JUDGE PURCELL:  Mr. Good?

		MR. GOOD:  Yes, sir?

		JUDGE PURCELL:  Just so the record is clear, I've been provided with a
written copy of your PowerPoint presentation.  And I'm going to mark it
as Hearing Exhibit 121 and admit it into evidence.

					(Whereupon, the document 						referred to as Hearing
Exhibit 121 was marked and 						received in evidence.)

		JUDGE PURCELL:  And I note the first photographs you're referring to
appears on page 2 of that document.

		MR. GOOD:  Thank you.

		I would point out just a couple things from this photograph.  First of
all, it I hope goes without saying, but we're outdoors when we do
roofing work.  But more important than that, we're the only trade on the
roof in almost all situations.  There aren't other tradesman up on the
roof during roof installation time.  So we don't have other trades that
are affected by the activities that are done on the rooftop.

		Second, you'll notice that the tiles are preloaded.  Loading is a term
we use in the roofing industry for placing the tiles on the roof before
the job begins.  What that means is there's a lot of movement and a lot
of activity because the tiles have to be moved around to be put in place
by the installing roofer.

		And then the third thing you'll notice is that the roofers are now
under the new fall protection rules, wearing harnesses and lanyards.  So
we already have one rope, if you will, on the rooftop that these workers
have to work around.

		The new rule would require -- whoops, I'm sorry -- the new rule
would require engineering controls to be used as the first resort to
control silica emissions.  And for roofing, engineering controls mean we
either use wetting methods or we use dust reduction through --
presumably through vacuuming.  Both of those, however, introduce new
tripping hazards on the job site, because both involve adding hoses or
air lines -- water hoses or air hoses on the rooftop.

		In addition to that, when we wet roof tiles, we wind up with slippery
tiles.  And we contribute, then, to the possibility of tripping and
slipping.  And especially on a roof that's pitched or steep, because
most tile installations are done on roofs that are pitched or steep.
The last thing we want to introduce to the roofing worker is the
possibility of slipping and falling even with safety belts and harnesses
and life lines, that becomes problematic for us.

		We also note that attaching vacuums to handheld saws, which is what we
use to cut tiles on the rooftop, in addition to being cumbersome, those
saws when you start attaching things to them get to be very heavy.  We
know that that's not always an effective methodology.  And that's
because of the nature of the roofing operation.  When we cut tiles on
the roof, there's a lot of movement involved, and the vacuums just don't
work well in all those conditions.

		In addition to that, not all roof tiles are created the same.  So we
have different sizes, we have different weights, we have different
profiles.  And capturing the emissions off of those tiles is not as
consistent as you might otherwise imagine.

		One seemingly easy solution would be to wet the tiles on the ground
while they're being cut.  But there are two problems with that.  First,
the tiles need to be fit.  They need to be custom cut so that they can
fit around the edges and corners on the roof where they're being
installed.  And if we're cutting them on the ground, we can't get the
kind of precise measurement and exact cutting that we need.  So the
result of that can be that the roof just won't perform the way it's
supposed to perform and won't look the way that it's supposed to look.

		And, second, if we're cutting the tiles on the ground, what that means
is somehow we have to get those tiles back to the rooftop.  And
typically, what that means is we're putting more people on ladders going
up and down ladders to get the tiles to the rooftop.  And, again, that's
one of the things that we try in this industry very hard to avoid.  We
try to minimize the time that we have people on ladders.  We try to
minimize -- the other way to get tiles to the rooftop is through some
kind of hoisting system.  That would require more workers working near
the edge of the roof, and that's another thing that we try very hard to
avoid.

		The proposed rule also provides for the use of respirators when
engineering controls alone don't work, and in some cases, requires the
use of respirators in addition to engineering controls.  We know that
respirators constrict the user's field of vision.  We know it makes it
more difficult for them to communicate.  And we know it can create
shortness of breath.

		We also know, from experience with other materials, that when roofing
workers are required to wear respirators, they simply take them off,
because of all these difficulties, because they can't hear one another,
they can't see as well, and breathing becomes more difficult.

		So consider, if you will, the use of a respirator outdoors in Phoenix
in August when you're putting a roof on, and imagine what happens.  And
we know what happens, sadly, is that the workers simply either slide
them off of their faces so they can breathe better, because roofing is
strenuous work, or just simply take them off.

		JUDGE PURCELL:  And for the record, the photograph now being displayed
is on page 3 of Exhibit 121.

		MR. GOOD:  So taking all this into account, my point today is a simple
one, which is that ours is a unique industry.  We think we have unique
hazards, and we're concerned that a one size fits all approach to
reducing silica exposures not only won't work for us, but will likely,
in fact, create other hazards that are much more immediate and much more
life-threatening.

		State officials in both California and Arizona working with NIOSH,
labor, and management have studied the issue of silica exposures to
roofing workers and have concluded that conventional engineering
controls like wetting and vacuuming are not effective and that half-mask
respirators are not practical.  In those states, work practices have
been approved until and unless better engineering and long-term
solutions can be found.  So there's an exception for dust collection on
roofing in those states.  We think that exception that was made in those
states was appropriate, and we would ask OSHA to take a similar approach
in this rulemaking.

		Let me also comment briefly on the cost estimates for complying with
the proposed rule.  The estimates that OSHA has would -- for a
small -- for a typical small business are in the neighborhood of $500
per year.  And we know that the cost of the equipment, the engineering
control equipment, just for one roofing crew would be somewhere in the
neighborhood of $2,000.  We've seen estimates even more than that.  Many
contractors operate with several crews.  They're not using that
equipment today, so all these costs would be new costs for the
contractor.  And that's just the equipment cost.  It doesn't include the
cost of air monitoring, costs of medical surveillance, cost of training,
and all the other costs associated with compliance.

		And what we fear, as we always fear, is that higher costs for
compliance for a small part of the industry will simply encourage the
unprofessional contractors and the one-person contractors to do nothing
and take their chances.  That's not good for OSHA, it's not good for
NRCA, and it's certainly not good for the cause of worker safety.

		So we think it would be much better for us to work with OSHA, work
with the United Union of Roofers, Waterproofers and Allied Workers, and
we've had ongoing dialogue with that union, and see if we can arrive at
workable practical solutions that really get at what we all want to get
at, but do it in a way that doesn't create these additional hazards, and
especially the additional hazards for falls from the rooftop.

		Appreciate the opportunity to be here again, and happy to answer any
questions.

		JUDGE PURCELL:  Thank you very much, Mr. Good.  Would you like to
offer a written copy of your testimony for the record?

		MR. GOOD:  I'd be happy to do that.  There is already one that was
e-mailed, but I have another clean copy here.

		JUDGE PURCELL:  I'll mark that as Hearing Exhibit 122 and admit it
into the record.

					(Whereupon, the document 						referred to as Hearing
Exhibit 122 was marked and 						received in evidence.)

		JUDGE PURCELL:  And with that, the next speaker is Mr. Rick Olson,
the Tile Roofing Institute.

		Mr. Olson?

		MR. OLSON:  All right.  Thank you very much.  I'm just waiting for the
PowerPoint to come up.

		All right.  Good morning.  My name's Richard Olson, and I am the
President of the Tile Roofing Institute.  And we're also known as the
TRI.  We were founded in 1974, and we're the only organization that
represents both the concrete and clay roofing tile manufacturers.  As of
today, we have over 95 percent of the capacity to make these tiles
within our ranks, and we include international manufacturers from around
the globe.  We have close to 300 contractor member companies, and we
have affiliated members that represent roofing accessories and related
products.  I wish to thank the panel for the opportunity for us to come
and provide input on the silica issue today.

		As Bill indicated earlier, we're the tile roofing industry, and we
wish to support and promote the need for safer job site environments.
We want to help reduce the silica or any other harmful substance that
might occur as part of that goal.

		Tile is a roofing product that's installed on steep slope
applications, making it a little different from other products that are
predominantly low slope.  For us, we are only 4 percent of the overall
residential steep slope market.  If we get added into flat roof, we're
insignificant.  We're less than 1 percent of that overall market.

		We're primarily located in the Sunbelt regions of the U.S. and the
snow and cold regions of the Rocky Mountains and the Midwest.  As a TRI,
we have supported the position of the construction industry safety
coalitions -- questions whether a rule of this magnitude costs and lack
of their validity is really a necessary role.

		But even more so, as we look forward, as we talked earlier, we're a
steep slope application.  And first and foremost, we're very aware of
the need to prioritize for proper fall protection and -- practices to
ensure compliance with existing regulations.  In the case of residential
roofing, the majority of the roof pitches will be greater than 4 and 12,
or what we commonly would say a 4-inch rise and a 12-inch run.  And as
the pictures show on the top left, today's architectural construction is
going to greater and greater roof pitches.

		JUDGE PURCELL:  Mr. Olson, do you have a printed copy of the --

		MR. OLSON:  I do, and I will be presenting that.

		JUDGE PURCELL:  Okay.

		MR. OLSON:  Yeah.

		JUDGE PURCELL:  You might describe -- there's three photographs in
that.

		MR. OLSON:  Yeah.  The upper left photograph is the one I'm referring
to there that shows how the common new construction is going to more
steeper slopes with more cut up and various roof planes that are on
there.

		The lower left, obviously, is somewhat of a traditional one, but
shows, as Bill Good talked, about the fall protection and the difficulty
right now in going up and climbing onto a roof, just trying to get up
there to do any type of remodeling, remaintenance, anything there.

		The picture to the right shows that we also do do part of what we do
in commercial applications.  And in this case, we can get on rather
high-rise buildings.  In the Sunbelt region of the country, we're the
predominant roofing product that's used on steep slope, and so
therefore, we have to be able to come up with methodologies that we can
use to go on such high applications.

		JUDGE PURCELL:  Thank you, Mr. Olson.  Ms. Kramer handed me a copy
of the PowerPoint presentation.

		MR. OLSON:  Oh, okay.

		JUDGE PURCELL:  And I'll mark that as Hearing Exhibit 123 and will
admit it into the record.

					(Whereupon, the document 						referred to as Hearing
Exhibit 123 was marked and 						received in evidence.)

		JUDGE PURCELL:  And the caption of those three photographs is Roofing
Tiles or Steep Slope.

		MR. OLSON:  Okay.  Because of the nature of our roofing work compared
to other construction disciplines, where silica-based materials are
used, the new proposed silica rule will increase the risk of falls,
resulting in a greater number of injuries and fatalities.  Proper
installation protocols requires that our tiles are preloaded or stacked
on the roof to allow the access from the roofing professional with a
minimum of lifting, moving and shifting of the product during the
installation process.

		Once again, we put a slide there to show how various stacks can be
done up on the roof, but it really helps illustrate the complexity of
trying to move around on the roof when we're trying to install a
product.  Different from other roofing materials, where they're stacked
totally on the ridge line going down.

		And our case, due to access and the weight of the products, they have
to be relatively stacked close to where they're going to go in.  This
allows the ability for the roofing contractor to navigate around these
stacks with proper fall protection, which is already a challenge for a
current requirement.

		JUDGE PURCELL:  And for the record, that last slide was captioned
Roofing Tiles Are Preloaded.

		MR. OLSON:  While other masonry materials have the options of cutting
on the ground or on a level surface, roofing tiles do now.  The proper
application of the tiles requires the fit of the individual coursing of
tiles in addition to proper alignment at this transitional points, where
custom cutting is necessary to obtain the required coverage.

		To achieve the same effect by cutting on the ground, there will be
numerous trips up and down ladders on steep slopes, where the mean roof
heights can range from 30 to 60 feet above the ground, significantly
increasing the fall hazards.

		In the case of roofing tiles, the limited exposure to dust will occur
during the cutting of the accessory tiles found in the valleys, rakes
and ridge areas of the roof.  As the roof is installed, these areas are
addressed for cutting where final measurements on the roof can be made
to ensure a proper with minimum cutting and proper alignment, as
required by industry standards.

		And the lower right picture kind of shows as we lay out a valley,
which is the predominant place we cut, we have to have the ability to be
up there to measure a proper distance from the center for the metal
lines.

		JUDGE PURCELL:  And for the record, the caption on that slide showing
four photographs is Require Rooftop Cutting for Proper Fit: Limited Time
Exposure.

		MR. OLSON:  And, once again, this dependent upon the amount of tile
being cut.  It's not a full-time function for any one employee and will
vary from job to job, as they have different configurations.  So it'll
depend upon the number of valleys on a given roof design to really
understand what that total exposure might be.

		The new rule as proposed would mandate engineering controls to be used
as a first resort to control silica emissions.  For roofing, engineering
controls will require either a wetting or vacuuming apparatus for
cutting, which brings additional fall hazard potential in either case
from hoses and/or balance issues from heavier and more awkward saws with
vacuum containers.

		In the case of wet saws, introducing water onto steep, uneven surfaces
greatly increases the risk, slips that can occur from -- that can
create such falls.  Such falls account for 76 percent of the fatalities
in roofing.  And 668 fatalities in 2012.  As of this date, we're not
aware of any reported silicosis deaths from cutting of our roof tiles.

		In addition, the proposed rule requires the use of respirators in
addition to engineering controls in some circumstances.  As we stated
above, our primary roofing tile markets are found in the Sunbelt regions
of the U.S. where extreme outdoor temperatures are present for most of
the roofing seasons.  The reduced vision, condensation, and lack of
audible conversation from respirators creates a serious safety hazard.
In addition, the proper fit of the respirators requires the removal of
facial hair.  There is a cultural aspect for a significant portion of
the blue collar roofing workforce in these areas where our tiles are
installed.  Finally, the current gas-powered saws also require hearing
protection that will further hinder communication, which is critical to
maintaining the safety of all the people on and below that roof.

		In 2006, the TRI worked collaboratively with the Arizona Contractors
Association, Arizona OSHA, Cal/OSHA and NIOSH to review all the current
practices and possible engineering controls that would help reduce that
exposure to silica.  We held demonstrations of various equipments
proposed by several manufacturers as being able to reduce that exposure.
 These included handheld wet saws and dust collecting saws, as well as
full-size table-style saws.

		Collectively, at that time, we were not able to identify any option
that would address both the silica and fall protection needs to properly
protect the roofer during installation of our tiles.  As a result, in
those states, current work practices have been approved until and unless
better long-term solutions can be found.  And over the last few months,
we have even met with saw manufacturers to further review possible new
technology that have not yielded any additional options for us.

		As a TRI, we continue to advocate that the exception for roofing that
is allowed in California and Arizona is appropriate to maximize the
safety of the installers on the tile roofs, and we ask OSHA to follow a
similar approach in this rulemaking.  We cannot in good conscience allow
this ruling to decrease the safety of so many of our members in the
roofing industry.  We owe it to them to make sure they are safe as
possible, to have the peace of mind that they are able to go to work and
return home to their families uninjured.

		If the proposed rule is not withdrawn, we would therefore ask that
OSHA conclude that, due to the unique nature of steep slope
applications, it will make it necessary to provide an exception for dust
reduction systems in rooftop operations with roof tile, roofing pavers
or similar materials.

		Let me also comment briefly on OSHA's cost estimate for complying with
the rule.  OSHA estimates the full cost of compliance would be in the
$500 per year for a typical small business.  Our database of contractors
indicate that almost all steep slope roofing contractors are small
businesses and to comply, the cost is far more than 500 provided in the
draft regulation.

		The hard cost of just the potential cutting equipment if we could even
find a viable option would be far greater than that.  It is estimated at
more than $2,000 per unit, and numerous units would be required where
multiple job locations are under construction for just the hard cost.
Due to the nature of these devices, they do have a shorter lifespan
requiring more frequent replacement further adding to the cost.

		The medical evaluation time for training, air monitoring and
recordkeeping also add up to additional costs that can amount, in our
opinion, to more than $500 per employee.  Therefore, small business
owners, they would be coping with an undue financial burden that the
larger companies would not have to bear in the same proportion.

		So as the TRI, we wish to be an active stakeholder in the process of
developing safe roofing practices that cover all aspects of the safety,
including fall protection.  We would also ask that OSHA follow the
footsteps of the regional and state OSHA offices by holding additional
stakeholder meetings with NIOSH, our industry, and the roofing
contractors associations all at the table.  It is only through this open
dialogue that the advancement and effective engineering controls can
really be made.

		And, again, we do thank you for the opportunity to present today.

		JUDGE PURCELL:  Thank you, Mr. Olson.  Would you like to offer a
written copy of your testimony?

		MR. OLSON:  I will do.  Thank you, Your Honor.

		JUDGE PURCELL:  All right.  I'll mark that as Hearing Exhibit 124 and
admit it into the record.

					(Whereupon, the document 						referred to as Hearing
Exhibit 121 was marked and 						received in evidence.)

		JUDGE PURCELL:  With that, could I see a show of hands from the
audience from individuals who have questions?  I see one.  Okay.

		Ms. Trahan?

		MS. TRAHAN:  Hi.  Chris Trahan with the Building Trades.  I do have a
few questions.  And Mr. Olson, you primarily manufacture the tile?

		MR. OLSON:  Yeah.  I represent the industry that actually make the
products.

		MS. TRAHAN:  Okay.  So we talked about -- I think you talked about
the California standard and the exemption that's in place.  This is a
question for Mr. Good.  Are there steps that your members have taken to
address the challenges of cutting roofing tiles since the passage of the
California rule?

		MR. GOOD:  Well, yeah.  We've continued to try to arrive at either
engineering controls that could help with that or work practices that
could help with that.  Unfortunately, the way the proposal is written,
we don't have the opportunity to address the concerns through work
practices.  It has to be addressed through engineering controls.  And
right now, those are not where we would like them to be.  We continue to
work with manufacturers of vacuum equipment and cutting equipment who I
think would tell you that they haven't found the perfect solutions yet.

		MS. TRAHAN:  So you indicate that you've identified work practice?

		MR. GOOD:  Well, we haven't identified work practices, but we think
there may be some.  For example, job rotation might be an appropriate
solution.  We don't know yet.  And the way this rule is written, we
couldn't do that.  It's expressly prohibited.

		MS. TRAHAN:  Right.  Is that the only work practice that -- and I
guess maybe this is a question for both of you because you mentioned
work practices.  Is job rotation, in your view, the only work practice
that you've been able to identify to reduce exposure?

		MR. GOOD:  I think there are others that might be appropriate.  We
haven't done a lot of study in it, but for example, we know that just
the location of where the cutting is done on the rooftop, which way the
wind is blowing has a big effect on what the exposure might be to the
worker using the saw, and those kinds of things we really could explore.

		JUDGE PURCELL:  That response was by Mr. Good.  Mr. Olson, do you
have anything you'd like --

		MR. OLSON:  Yeah.  This is Mr. Olson.  We mark on all of our
materials that are going out in the shipment and in our installation
guides that the exposure to such silica is of concern and standards need
to be followed.  And through that and a lot of lessons learned from 2006
work was really how the workers in these areas that tile is so
predominant lay out their crews.

		So as Bill said, the ability to take a look at roofs and reduce the
amount of time that we exposed doing the cutting to get all the other
things kind of laid up and be ready to go, as we did work analysis back
then and saw that, gosh, they'd get over to there, and the rest of the
roofing crew was standing right there when they were cutting.  Now when
you go to a job, you'll see where they're using the dust masks, where
only the person that's directly, as I showed in the picture, measuring
and doing the cutting is present.

		And those were some of the lessons learned that have slowly in the
Arizona roofing contractors and western states roofing contractors as
they work with their people and their safety officers are saying, you
know, these are best practices that can be put in place.  So it's a
topic that has been to the forefront in those areas.

		MS. TRAHAN:  Okay.  So some of the controls are planning the work and
respirator use?

		MR. OLSON:  Could be, yes.

		MS. TRAHAN:  Is what you've identified as being --

		MR. OLSON:  Yes.

		MS. TRAHAN:  You mentioned that there are different variables that
affected exposure during cutting the tile on the roof, wind, other
variables.  Do you have exposure monitoring that either association has
conducted that you're able to introduce them to the record?

		MR. OLSON:  No.  OSHA and NIOSH in 2006-7 did some work in the Arizona
and California area that was the basis of it.  Since then, I'm aware of
a Florida OSHA one where they did a roofing contractor that had no
exposure trickle over to the current ones.  We have been trying to
perform a little bit, but since this regulation was drafted that we've
been doing in conjunction, and once that's completed, we're happy to
share those numbers that, you know, come out from that.

		JUDGE PURCELL:  That's Mr. Olson responding.

		MR. OLSON:  Oh, I'm sorry.

		JUDGE PURCELL:  That's all right.

		MS. TRAHAN:  So there is air sampling that's been conducted more
recently?

		JUDGE PURCELL:  Ms. Trahan, let me just ask Mr. Olson if he -- or
I'm sorry -- Mr. Good if he had anything to add to that.

		MR. GOOD:  Only that, yeah, only in response to her last question.
Yes, there is some recent air sampling, very limited, that's been done
that has not yet been completed.  It was done after the proposal was
issued.

		MS. TRAHAN:  Is it --

		MR. GOOD:  We'll be happy to make it available once it's completed.
It's not -- it's still in the final analysis stage.

		MS. TRAHAN:  Okay.  Thank you.

		MR. GOOD:  Um-hum.

		MS. TRAHAN:  And this is for Mr. Olson.  In your written comments,
you say, and I'm quoting, "Current regulations and best practices that
have been implemented to date have helped improve the best practices and
engineering controls used in the roofing trades, resulting in a
significant reduction in silica-based illness and deaths over the last
decade."  Can you describe the best practice -- the practices and
engineering controls and what you base this illness and death reduction
statement on?

		MR. OLSON:  The best practices that were done, as I say, the way
we -- the crews are out there and the way they look at it doing -- and
the job rotation and the awareness that they should be wearing at least
the N95 mask.  Our comments about it helps reduce is really just looking
at the overall statistics, the reductions that have been seen from
silicosis deaths, because the hard part is we cannot find anywhere where
there is an attributed silicose death to the cutting of roof tiles.

		And we know there are roof tiles -- one of our oldest roof tile
manufacturers, Ludowici, started producing tile in the U.S. in 1922.  So
we know tiles have been around, and you know, they're on the Supreme
Court here and some other facilities in town.  But in the mainstay part,
tile has been there for a lot of years.  But that's where it came from,
is that I am not aware as we reached out for any statistical data that
showed that we had an issue, so we only have to say that the overall
concern for silicosis in the last decade has shown a reduction in those
deaths.

		MS. TRAHAN:  Okay.  Thank you.  And for either panel member, any
medical surveillance conducted on workers exposed to silica from cutting
roofing tile?

		MR. GOOD:  Not that I'm aware of.

		JUDGE PURCELL:  That was Mr. Good.

		MR. GOOD:  Mr. Good, yes.

		MR. OLSON:  Yeah, and Mr. Olson says the same.  You know, it's not an
issue.  We had seen it was a high-risk exposure, saw the damage
controls.  For us, it's known from the old days, you know, crystalline
silica goes way back to the mining days.  And I can tell you I grew up
in the masonry business making pipe.  And it was known and stated on
every invoice that the cutting of this product can create that.  So it's
been the awareness, but I think it's been through the educational
process of raising the awareness.  Actually, after 2006, OSHA actually
came out with a silica one that addressed some tile cutting in it, and
that was the first time we had ever seen such, you know, action there.
And that's good.

		MS. TRAHAN:  Okay.  And, again, this is a question for both of you.
The equipment and size blades that are currently used for cutting tile,
can you describe that?

		JUDGE PURCELL:  Ms. Trahan, could you move the mic a little closer?
I'm not sure it's picking up everything.