INFORMAL PUBLIC HEARINGS FOR THE PROPOSED RULE

ON OCCUPATIONAL EXPOSURE TO

RESPIRABLE CRYSTALLINE SILICA

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UNITED STATES DEPARTMENT OF LABOR

OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION

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March 24, 2014

9:30 a.m.

Frances Perkins Building Auditorium

200 Constitution Avenue, N.W.

Washington, D.C. 20210

BEFORE: 	DANIEL F. SOLOMON

	   	Administrative Law Judge

DEPARTMENT OF LABOR (DOL):

ALLISON KRAMER

Attorney, Office of the Solicitor

ANNE RYDER

Attorney, Office of the Solicitor

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA):

WILLIAM PERRY

Acting Director, Directorate of Standards and Guidance

STEPHEN SCHAYER

Office of Physical Hazards

TIFFANY DeFOE

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

ROBERT STONE

Director, Office of Regulatory Analysis - Health

PATRICIA DOWNS

Office of Technologic Feasibility

ROBERT BURT

Acting Deputy Director, Directorate of Standards and Guidance

ROBERT BLICKSILVER

Office of Regulatory Analysis - Health

OSHA EXPERT WITNESS:

KYLE STEENLAND, Ph.D.

Professor, Department of Environmental Health

Rollins School of Public Health

Emory University, Atlanta

THE CONSTRUCTION INDUSTRY SAFETY COALITION (CISC):

BRAD HAMMOCK

Attorney, Jackson Lewis

STUART SESSIONS

President, Environomics, Inc.

KELLIE VAZQUEZ

Vice President, Holes, Inc.

KEVIN TURNER, CSP, CHST, CRIS

Director of Safety, East Division

Hunt Construction Group

OTHER PARTICIPANTS:

NEIL KING

Attorney, American Chemistry Council's Crystalline Silica Panel

DARIUS D. SIVIN, Ph.D.

Health and Safety Department, United Auto Workers

JAMES FREDERICK

Assistant Director, Health, Safety and Environment  United Steelworkers
Union

ELIZABETH NADEAU

Attorney, International Union of Operating Engineers

BRUCE LUNDEGREN

Assistant Chief Counsel for Advocacy

Office of Advocacy, Small Business Administration

CHRIS TRAHAN

Building and Construction Trades Department, AFL-CIO

ROBERT MATUGA

National Association of Home Builders

OTHER PARTICIPANTS (cont.):

SCOTT SCHNEIDER, CIH

Director of Occupational Safety and Health

Laborers' Health and Safety Fund of North America

MATT GILLEN

Deputy Director, Office of Construction Safety and Health, NIOSH

SEAN THURMAN

Associated Builders and Contractors

PETE CHANEY

Mechanical Contractors Association of America

WAYNE CREASAP

Director of Safety and Health

Association of Union Constructors

INDEX

										PAGE

INTRODUCTION

Judge Daniel F. Solomon		  				  PAGEREF a1Solomon \h  1215

OSHA EXPERT WITNESS

	Kyle Steenland, Ph.D.				  	  PAGEREF b1Steenland \h  1219

	Questions							  	  PAGEREF b1questions \h  1236

THE CONSTRUCTION INDUSTRY SAFETY COALITION (CISC)

	Brad Hammock						  	  PAGEREF c1hammock \h  1269

	Stuart Sessions					  	  PAGEREF c2sessions \h  1296

	Kellie Vazquez						 	  PAGEREF c3Vazquez \h  1350

	Kevin Turner, CSP, CHST, CRIS			 	  PAGEREF c4tURNER \h  1366

	Questions							 	  PAGEREF c5questions \h  1382

ADJOURNMENT							 	  PAGEREF d1adjourn \h  1544

EXHIBITS

EXHIBITS		DESCRIPTION				 	PAGE

Exhibit 38	Dr. Steenland's PowerPoint	   	  PAGEREF Ex38 \h  1236

Exhibit 39	Lacasse study			   		  PAGEREF Ex39 \h  1236

Exhibit 40	Mr. Hammock/Mr. Sessions

			PowerPoint				   	  PAGEREF Ex40 \h  1270

Exhibit 41	Ms. Vazquez' testimony		  	  PAGEREF Ex41and42 \h  1344

Exhibit 42	Mr. Turner's testimony		  	  PAGEREF Ex41and42 \h  1344

P R O C E E D I N G S

(9:30 a.m.)

		JUDGE SOLOMON:  We're on the record.

		I am Daniel Solomon.  I'm an administrative law judge with the United
States Department of Labor.  My address is 800 K Street, Northwest, 4th
Floor, Washington, D.C.  The zip code is 20001.

		Now, with respect to the food in the cafeteria, I will note for the
record that I have coffee in front of me.  It's probably a violation,
and I see that some of you have coffee in front of you, too, but I'm not
going to be very strict with that since I would be a hypocrite in doing
that.

		Last week, there was some controversy about how the procedures would
be handled.  The procedures are laid out in two places, first of all the
memorandum from Dr. David Michaels as to, in quotes, "the hearing and
post-hearing procedures for OSHA's proposed standard on occupational
exposure to respirable crystalline silica," and, number two, the general
rulemaking procedures at 29 C.F.R. Subpart 1911.

		Last week, I read into the record that they were published in the
Federal Register in October of 2013.  I might state also that the
overarching authority for these hearings comes from the rulemaking
procedures which are found at 5 U.S.C. Subsection 503 and following, and
that's generally known as the Administrative Procedure Act.

		The hearing should run from 9:30 to 5:00.  The time set for one lunch
break will be adjusted if necessary.  It is at my discretion, but let me
just say that nature sometimes has something to do with that.  And I
know that some of you have medical problems; if there is a problem,
please let me know.

		As indicated on the hearing schedule sent to participants, the time
allotted for each witness on the panel is for testimony only.  It does
not include time to receive questions from other hearing participants or
the OSHA representatives.

		All participants who wish to deliver testimony must make themselves
available for questions from other participants and OSHA after their
presentations.  This is an integral part of the hearing as it allows
OSHA, along with other interested parties, to more fully develop the
rulemaking period.

		The question and answer portion of the hearing also benefits witnesses
themselves, as OSHA's questions are often aimed at obtaining a further
understanding of the witness testimony so as to give it better
consideration.

		I direct the question of witnesses based on time allotted in the
schedule, as well as considerations such as the number of participants
who wish to ask questions and the amount of time the OSHA panel needs to
ask questions.

		Any participants who do not wish to respond to questions should notify
OSHA before they testify if they wish to be removed from the hearing
schedule.

		As the judge, one of my primary roles is to ensure fairness and order
during the hearing as directed by the regulations, especially at 29
C.F.R. 1911.16, Subparagraph D.  I will use appropriate means to
regulate the conduct of these proceedings.

		If you are on stage and you need to take a break, just let me know and
we'll try to accommodate you.

		Hopefully, this will clarify matters, and we'll try not to go beyond
the 5:30 time.  Now the weather reports say that there is probably snow
starting later on in the afternoon and we may have some problems.  So
when we are off the record, if any of you know of anyone who is going to
have difficulty making the hearings, especially tomorrow morning, please
let us know.

		Okay.  So, at this time, Ms. Kramer, would you enter your appearance
for today?

		MS. KRAMER:  Sure.  My name is Allison Kramer, and I represent the
Office of the Solicitor here in the Department of Labor.  And I would
like to hand it over to Mr. William Perry.

		MR. PERRY:  Thank you, Allison.  This is Bill Perry from OSHA.  Today,
we have appearing before us Dr. Kyle Steenland.  He is a professor in
the Department of Environmental Health at the Rollins School of Public
Health, Emory University, Atlanta.  He is appearing today as a witness
for OSHA, and he is here to testify about work he has done in the past.
Much of it has been the subject of discussion at these hearings already.
 And this work is work that OSHA relied on fairly heavily in its risk
assessment.

		He will also be testifying on the uncertainty analysis that he
performed for OSHA as part of the Agency's preliminary quantitative risk
assessment, as well as work that he has been involved in since that
time.  So, welcome, Dr. Steenland.

		JUDGE SOLOMON:  Would you please state your name?

		DR. STEENLAND:  Kyle Steenland from Emory University in Atlanta,
Georgia.

		JUDGE SOLOMON:  Okay.  Do you want to provide your testimony?

		DR. STEENLAND:  Sure.  I made all these slides, so --

		JUDGE SOLOMON:  You have about 20 minutes.  And then there will be
some questions from the public and then, of course, from the OSHA panel.

		I might say that the second panel this morning will also be held over
to the afternoon.  And so I believe that there is an agreement; is that
right, Ms. Kramer?

		MS. KRAMER:  That's right, Your Honor.  We'd like to have the
questioning for the second panel held over until the afternoon.

		JUDGE SOLOMON:  And I understand there is no opposition to that?

		MS. KRAMER:  Yes, sir, that's correct.

		JUDGE SOLOMON:  Okay.  Sorry about that.  Go ahead.

		DR. STEENLAND:  Okay.  So I'm going to just kind of give an overview
of my feelings and thoughts about the silica standard proposed by OSHA.
If you can't hear -- I think you can hear me, yes.

		So the current standard of .1 mg/m3 was set in 1971, directed at
prohibiting silicosis -- this has kind of got some feedback -- which
was a well-known danger, of course, recognized at the time for silica
exposure.  At that time, early on, there was no data suggesting that
silica was associated or caused lung cancer.

		So I am an epidemiologist who -- further away?  Okay.  And still the
volume is okay back there?  Yeah, okay.

		I'm an epidemiologist.  I worked 20 years at NIOSH, and I did a lot of
studies on silica.  I retired from NIOSH and, rather than retire, I went
to work somewhere else, at Emory, in 2002.

		I should say that NIOSH has recommended lowering the current silica
standard from .1 to .05 since 1974.  So in that sense, there is a long
history of saying the standard is too high, and I am glad that OSHA is
now recommending lowering it to what NIOSH recommended, oh, that must be
40 years ago, something like that.

		So just to say further, I have written a bunch of articles on silica,
and mostly I suppose I have tried to develop exposure-response analyses
to say how much silica results in how much disease.  I have done that
for silicosis, renal disease, and lung cancer.

		So why do we care about that?  Well, quantitative exposure-response
data, when they show a positive trend for a relationship between
exposure and disease, are among the most important data for assessing
that there is some causal relationship between the exposure and disease.
 We have, as epidemiologists, you know, some common sense decisions
about whether something is causally related, which we have inherited
from Bradford Hill in the 1950s.

		And one of those criteria and one of the most important is, is there a
positive exposure response, so not just do people exposed to silica get
disease more than people who are not exposed to silica, but what exactly
is the relationship and is there more disease with more exposure?

		But the second reason that quantitative exposure-response data is
important preferably for humans is for doing risk assessment,
quantitative risk assessment, so that you can say that for a Level X of
exposure, you will get probably Level Y of disease.  So that then they
would set a level of exposure that will be protective against disease in
a quantitative way.  So that's what you need for risk assessment, and
that's what OSHA has done here.

		So it's an important problem.  Everybody knows this.  OSHA estimates
that there is 2 million, 2.2 million workers exposed in the United
States to silica, crystalline silica respirable.  The industries that we
know about, they are foundry, mining, sandblasting, and occasionally
some new things come up like tracking, where NIOSH has done some studies
to show that there is side exposure to silica in a new situation.

		So I'm going to talk about two diseases today, silicosis and lung
cancer.  I am not going to talk about renal disease, but if people want
to, we can.

		So silicosis, we know, is a disabling lung disease for which we have
no cure.  It develops years after exposure, many times after retirement
from the workforce.  So it is diagnosed by x-rays and clinical symptoms.
 And so if you don't have people followed with continual x-rays after
they leave work, you are not going to catch a lot of silicosis.  So
studies that study silicosis among currently employed workers only will
underestimate greatly the eventual occurrence of silicosis, which is a
caveat to some of the studies of silicosis that have been done.

		Silicosis deaths, and this is a very good thing, have dropped
dramatically since the 1960s to today.  You can see the numbers up
there, 1,200 in 1968 to 100 in the early 2000s, so that would certainly
speak to the improvement in conditions and less exposure over time
certainly partly due to the silica standard originally adopted in the
'70s of .1 mg/m3 by OSHA.

		The problem is that that may well underestimate the amount of
silicosis in the world because most people who get silicosis either
don't die of it or, if they do, it is not on the death certificate.  So
we have other sources of silicosis, for example, while we don't -- we
do not have a national surveillance system for silicosis, we do have a
few state systems that try and estimate the occurrence of silicosis.

		For example, in Michigan, Ken Rosenman estimated there were from 3,600
to 7,300 cases based on diagnosis in hospitals in the 1990s per year.
So if we extrapolate that out to the United States, which we can't
exactly, but it is very likely there are tens of thousands of cases of
silicosis a year that occur, most of which we don't know about.  So I am
arguing that it is also an important problem.

		So the current standard was based largely on and in 1971 adopted from
data from the granite workers suggesting that the standard was set
thinking that silicosis would not occur with exposure below that level.

		Now, I should emphasize that a daily limit, an average eight-hour
limit of a certain intensity of .1 mg/m3 ignores a second component of
what causes disease, which is how long you are exposed, so it doesn't
take duration into account.

		Nonetheless, that standard was set thinking that that's going to kind
of keep one from getting silicosis.  But as I mentioned before, already
in '74, NIOSH said no, it's not, it's going to need to be halved to
reasonably prevent silicosis.

		And so by the 1990s, there were seven new publications of
exposure-response data for silicosis.  And so I reviewed those studies
in 2005 and concluded that the lifetime risk of silicosis after 45 years
of employment, which is typically what OSHA assumes in doing these
things, at the current standard of .1 would result in about half of the
exposed workers getting silicosis, which is an enormous burden of
disease.  That is based on the seven studies and in this publication in
2005.

		At that point, with those seven studies, it looked to me like the
standard that would be needed to reduce silicosis to 1 in 1,000 exposed
workers over a 45-year period would be .01, 1/10th of the current
standard.  I assumed in that article, in 2005, that that decrease to .01
was not a feasible decrease and, therefore, suggested that anything you
could do to lower it would be better.

		So OSHA now has reviewed seven studies with exposure-response data for
silica with long follow-up sufficient for disease to develop and from
these studies concluded that approximately 30 out of 100 workers exposed
over a lifetime at the current standard would get silicosis, which
given -- it is not that much different from the same conclusion I
reached earlier.  So lowering the standard to .05 is expected to lower
lifetime risk to 5 out of 100, which still is too high, but a huge
improvement over 30.  So I would say that my conclusions in 2005 and
OSHA's in 2013-2014 are quite similar in that regard with silicosis.

		So now I want to move to lung cancer.  So by the late 1990s, a number
of studies showed an increased risk of lung cancer for silica-exposed
workers.  These data were sufficient in 1997 for the International
Agency for Research on Cancer, IARC, which is a dependent of the World
Health Organization, to classify silica as a definite Class 1 human
carcinogen.  And in 2000, the U.S.-based National Toxicology Program,
NTP, followed suit and did the same classification.

		These decisions remain controversial in some quarters.  They were
primarily based on increased lung cancer risk among exposed workers
compared to non-exposed workers, and there were no exposure-response
data at that time or very little.

		I would say that by the late 2000s, there were 100 studies of lung
cancer and silica, so the thing mushroomed, and there were more than 15
with exposure-response data.

		It is worth pointing out that IARC then evaluated silica in 2012 and
concluded and confirmed its original judgment that it was a Class 1
definite carcinogen based on much more abundant data, and that NTP
follow suit again.

		So, furthermore, as I mentioned, the exposure-response data now
available permitted a quantitative risk assessment, and I'll talk about
that a bit now.

		So, in 2001, I worked with a bunch of other people in different
countries to assemble a pooled cohort of about 60,000 workers who were
followed over time.  I was working at IARC at the time, and we pooled
these data, which means you take all the raw data from these 10 cohorts
and you put them together, and you then analyze that data together.  And
there were, like I said, 60,000 workers and about 1,000 lung cancer
deaths.  So this was a data with -- a rich dataset with high
statistical power to see anything, if there was anything to see.

		And we, indeed, found a statistically significant positive exposure
response between cumulative silica exposure and lung cancer mortality,
with the risk of lung cancer increased about 50 percent for those with
the highest exposure versus the lowest.  So this was what we call an
internal analysis.  We're comparing high exposed to low exposed, so
we're sort of comparing workers to workers here.

		Cumulative exposure, I might say, is often the best predictor of
chronic disease in general, in epidemiology.  We also did analyses with
average exposure, which gets to the intensity, and that showed similar
results.

		We concluded that this positive exposure response was not likely due
to different smoking habits between high exposed and low exposed
workers.  And the reason we did that was twofold.  First, workers tend
to smoke similar amounts regardless of their exposure level in general.
We often worry about comparing workers to the general population because
workers tend to smoke more than the general population.  But, in
internal analyses, we don't have this problem very often.

		When we have smoking data, we see that it is not related to exposure,
so a priori we don't think it is likely to be a strong confounder in
internal analyses.

		Secondly, a number of the studies we used in our pool cohort had
smoking data, either for the whole cohort or partially.  And when they
took that into account, their results did not change.  In fact, they
also found that smoking was not related to exposure in their studies,
which means that it won't affect the exposure-disease relationship
because if it is going to do that, it has to differ between the high
exposed and the low exposed, and it generally did not.

		So those were the two reasons we thought smoking was less likely to be
an important factor here.

		We further investigated whether there was a level below which there
was no increase in risk, the so-called threshold.  So we fit models that
had a threshold versus those that didn't, and we explored various
thresholds that might apply.  And we found, in fact, that there was a
threshold model that fit better than a no-threshold model, not
enormously better but better statistically, but that threshold was
extremely low.  It was equivalent to a 45-year exposure of .007 mg/m3,
which is 7 times lower than the proposed OSHA standard.  So there is lot
of, in our view, lung cancer risk increased after a very low level of
silica exposure, far below the suggested proposed silica standard
proposed by OSHA.

		And we further investigated the effect of measurement error in our
study.  Now, measurement error, there is a couple of things you can do.
One is you can, if you're lucky, you've got some actual -- in a subset
of your population, you have some actual data which is what we call a
gold standard, so you know the true exposure for this subset.  And you
also know the estimated exposure that you use for the whole population.
And then you can compare for that subsample the true exposure to the
estimated, and you can see if the estimated has some systematic bias or
error involved in it.

		And when you have that, you can then correct, if you will, the entire
dataset for the known relationship between true and estimated in the
subsample.  That's called the gold standard.  We didn't have it.

		So absent the gold standard, what we did was basically a sensitivity
analysis where we said the observed -- the estimated exposure that we
give to each person is likely to have some error involved in it and we
estimated what that error might do.  If you had some assumption about
how big that error was around the estimate for each person and you kind
of randomly sampled from distribution of that error around that person's
assigned level, what happens to your dose-response estimate?  And the
answer was not much.

		We did 50 simulations and found that the mean result over those 50,
taking an exposure error into account, changed our estimate about 5
percent, which is more or less negligible.  So we felt that was a good
sign.  And that was for the lung cancer analysis.

		Since our study in 2001, another study has combined results of 10
separate studies of silica with exposure-response data.  This is by a
fellow named Lacasse in 2009.

		In his 10 cohorts that he used or perhaps it's a she, they -- we'll
call them they, they did a meta-analysis, so they didn't actually have
the raw data, and put it together, and analyze it.  They took the
results of 10 studies and their corresponding confidence intervals and
pooled those results, not the raw data.  So that's called a
meta-analysis.

		And in their meta-analysis, they required two things.  Every study had
to have exposure-response data so we could estimate the exposure
response, and they had to have smoking data.  So after they did that,
they found a significant exposure-response trend which was also
positive, similar to what we found.  And this, of course, took smoking
into account directly.

		So only two of the studies used by Lacasse et al. were the same as the
ones that we used, so this is a more or less independent, although
slightly different approach with the meta-analysis versus the pooled, an
independent confirmation of what we found.

		So from our study we estimated with a lifetime of 45 years of exposure
at the current standard, there would be about 25 extra lung cancer
deaths beyond what you would expect from just background lung cancer
risk.  That's per 1,000 workers exposed.

		So how does that compare to what OSHA came up with?  Now, of course,
OSHA used our study, among others, and then they kind of took an average
of what various studies had estimated.  But they came up with an
estimate there would be an increased risk of 13 to 60 lung cancer deaths
per 1,000 workers, so our estimate is kind of in the middle of that.
Cutting permissible levels in half, as the new standard proposes,
reduces that estimate from 6 to 20 extra lung cancer risks, again still
too high since we generally want to shoot for 1 in 1,000 excess, but a
big improvement.

		So I want to talk a few more minutes about the Chinese study that just
came out last year, and that is an important study for a couple of
reasons.  First of all, it's big.  They had 34,000 silica-exposed
workers.  They had 540 lung cancer deaths and 34 years follow-up.

		So these workers were a subset of what we had already done in 2001,
and yet they had a further follow-up of 10 years, so there were
different lung cancers and more follow-up and more strength in that
sense, and therefore somewhat different than what we had done before.

		Again, and I worked together with this so I say "we," we found a
significant positive exposure response categorical analysis shown there
versus a non-exposed group were showing risk ratios of excess risk of 26
percent, 54, and 68, and 70 percent as exposure increased in quartiles
of cumulative exposure compared to a group with no exposure.  These
results were also adjusted for smoking, as they had smoking on everyone
in their cohort.

		But the Chinese study was able to address two questions that had not
been able to be addressed in other data.  Are you trying to make me
finish?

		JUDGE SOLOMON:  You're right at 20 minutes.

		DR. STEENLAND:  I'm right about finished, too.

		JUDGE SOLOMON:  Go ahead.

		DR. STEENLAND:  That's going to work out, I think, give me one more
minute.

		JUDGE SOLOMON:  Sure.

		DR. STEENLAND:  Okay.  So the two things that the Chinese study were
able to answer was, one, do you get -- is there increased risk of lung
cancer with higher silica exposure if you have never smoked?  And the
second question is, is the risk increased with more cumulative exposure
if you never get silicosis?

		So they found a significant or we found a significant positive
response trend among workers who never had silicosis because they had
silicosis data, x-ray monitoring every year on all their workers, so
they knew who had silicosis.  And a good percentage of the population
never got silicosis, and yet the same lung cancer dose-response trend,
exposure-response trend was seen for those who never had silicosis.
That was an important point because some people had been arguing that
silicosis was a necessary intermediate stage between exposure and lung
cancer, and this would argue that's not the case, so there is an
independent mechanism.

		Silicosis, of course, is a marker of high exposure in the first place,
so it's difficult to disentangle.  But these guys had the first dataset
making that possible.

		And I mentioned the smoking.  They had a bunch of never-smokers, and
they had 77 lung cancers among never-smokers and were able to see a dose
response among never-smokers as well.

		So, in conclusion, high quality studies with exposure-response data
for both silicosis and lung cancer are now available and form a solid
basis for risk assessment.

		In my judgment, OSHA has done a very capable job in conducting the
summary of the literature and doing its own risk assessment.  And I
think it's well-justified and overdue.  And that's it.

		JUDGE SOLOMON:  So could I have an idea of how many members of the
public want to ask questions?  Okay, we have about three or four.  Mr.
King, you are up.  While he is on his way to the microphone, you talked
around it, but that's the Liu study you were referring to?

		DR. STEENLAND:  Yes, Liu et al.

		JUDGE SOLOMON:  Okay.

		MS. KRAMER:  Your Honor?

		JUDGE SOLOMON:  Yes?

		MS. KRAMER:  Two quick things.  First, I'd like to mark Dr.
Steenland's PowerPoint as Hearing Exhibit 38 and have it admitted to the
record.

		JUDGE SOLOMON:  Do you need my copy?

		MS. KRAMER:  I have a fresh one here.  And as well --

		JUDGE SOLOMON:  As there are no objections, it is admitted into
evidence.

(Whereupon, the document referred to as Hearing Exhibit 38 was marked
and received in evidence.)

		MS. KRAMER:  Fantastic, thank you.  The second item is one of the
studies that Dr. Steenland referenced in his PowerPoint.  It is the
study by Lacasse.  It is entitled, "Dose Response Meta-analysis of
Silica and Lung Cancer."  I'd like to mark that as Hearing Exhibit 39
and have it admitted.

		JUDGE SOLOMON:  As there is no objection, that is admitted also.

(Whereupon, the document referred to as Hearing Exhibit 39 was marked
and received in evidence.)

		MS. KRAMER:  And in case folks are interested in checking this out
later, it will soon be available on   HYPERLINK
"http://www.regulations.gov/"  regulations.gov .  Thank you.

		JUDGE SOLOMON:  Okay, Mr. King, state your name.  You have to spell
your last name.

		MR. KING:  I am Neil King, K-i-n-g, representing the American
Chemistry Council's Crystalline Silica Panel.

		Dr. Steenland, I'd like to ask you some questions about the Liu study
that you just discussed, and I'll, for shorthand, refer to it as your
study sometimes just for simplicity.

		As I understand it, this study looked at workers from six tungsten
mines, one iron mine, and four potteries that were a subset of the
larger Chinese miner and pottery worker cohort that I think had 29 mines
and potteries.  And that had been studied earlier by Chen et al. for
example in 2007 and 2012, and a number of earlier studies as well.

		JUDGE SOLOMON:  Let the record reflect that the witness is nodding his
head in affirmance.

		MR. KING:  Can you tell me why and how you selected the four pottery
factories for your study out of the, I guess, eight pottery factories
that were included in the Chen, 2007 and 2012, studies?

		DR. STEENLAND:  Yes.  They selected the four out of the eight because
they had low PAH exposure, and they were concerned about PAH as a
confounder, so they wanted to select in general cohorts for that
analysis that did not have any occupational confounders that would be
likely to occur.

		MR. KING:  Are the data relating to the PAH exposures in the various
potteries, these and the other four that weren't selected, are those
available?

		DR. STEENLAND:  I could probably get them, but I don't have them with
me.

		MR. KING:  Could those be entered into the record?  I'm asking OSHA,
as well.

		JUDGE SOLOMON:  What is the actual title?

		MR. KING:  This would be the, the polycyclic aromatic hydrocarbon
exposure data for the eight potteries in the Chinese study, the four
that were used in the Liu study and the four that were not used.

		JUDGE SOLOMON:  Ms. Kramer?

		MS. KRAMER:  Dr. Steenland, if you are okay with making an effort to
get that data, we'd be happy to put it in.

		DR. STEENLAND:  I can try.  I don't have it with me.  I mean I don't
own it, but --

		MS. KRAMER:  Sure.

		DR. STEENLAND:  I can write the people in China.

		MS. KRAMER:  That would be great.

		DR. STEENLAND:  I should say something further, well, the Chen et al.
in 2007 noted that when the eight potteries are included, PAH is an
important confounder.  There is a couple of things besides the fact that
the Liu et al. study used four of those eight potteries without much PAH
in them.  It also involved 10 more years follow-up, so the lung cancers
are not the same in the Liu study that are in the previous analyses by
Chen.

		MR. KING:  Is it important then if you have a study of the same basic
cohort but one study extends follow-up for 10 more years, you're saying
that would generally supersede findings of the earlier study?

		DR. STEENLAND:  It should enrich the data and make it more powerful
minimally.

		MR. KING:  Make it more powerful, okay.  Thank you.  Did your
study -- incidentally, did you find an increased risk of lung cancer
and a trend in the pottery workers specifically?  The study kind of
lumps all the workers together.

		DR. STEENLAND:  Yeah.

		MR. KING:  And it doesn't break out tungsten versus pottery.

		DR. STEENLAND:  Yeah, I'd have to go look.  I don't know the answer to
that.

		JUDGE SOLOMON:  Dr. Sivin, do you want to get in position here?  There
was another hand or two back there.  Okay.

		MR. KING:  I gather that the earlier study by Chen didn't, for
example, find an increased association between silica exposure and lung
cancer in the tungsten miners.  Your study did, or is that also
something you would have to check when you break it out?

		DR. STEENLAND:  Any division of the cohort into pieces I'd have to
check.  I don't have that data.

		MR. KING:  Is that data also that could be furnished for the record?

		DR. STEENLAND:  I can ask.

		MR. KING:  The breakdown as among pottery and tungsten?

		DR. STEENLAND:  I can ask.

		MR. KING:  Thank you.  I'd appreciate that.

		JUDGE SOLOMON:  How much longer do you have, Mr. King?

		MR. KING:  Oh, I'd say --

		JUDGE SOLOMON:  Would you want to wait for the other questioners to
get a chance --

		MR. KING:  And then come back?

		JUDGE SOLOMON:  -- and then possibly come back.  We'll see what
happens.  See how much time we have.

		MR. KING:  Okay, let me just finish on the Liu study, if I could?

		JUDGE SOLOMON:  Sure.

		MR. KING:  Your study indicates that yearly radiographs were taken of
all the workers exposed to silica dust, but the study by Chen et al. of
2012 says that workers exposed to silica dust received chest x-rays
every two to four years.

		DR. STEENLAND:  I misspoke.  Not yearly, every two to four.

		MR. KING:  Two to four years.

		DR. STEENLAND:  Yeah.

		MR. KING:  And do you know whether the silica exposed workers
continued to receive chest x-rays after their employment ended?

		DR. STEENLAND:  Yes.

		MR. KING:  And at what frequency and for how long did that continue?

		DR. STEENLAND:  Yeah, I think it went through the end of follow-up and
at the same frequency of two to four years.  I can check that, but I
believe that to be true.

		MR. KING:  Okay, I'd appreciate it if you could check it and let us
know.  Is it possible that a worker may have developed silica after the
date of his last x-ray?

		DR. STEENLAND:  Sure.

		MR. KING:  And is it possible that silicotic type opacities may have
been present but not yet sufficiently numerous to justify a
classification of silicosis under the Chinese system?

		DR. STEENLAND:  Yeah, although the correlation between the Chinese
system and the ILO system has been shown and documented to be quite
good.

		MR. KING:  But, I'm sorry, I didn't make it clear.  They used the
Chinese system and so I was referring to it.  But even if you were using
the ILO system, isn't it possible that silicotic type opacities might be
present but not yet sufficiently numerous to --

		DR. STEENLAND:  Sure.  They were using the criteria typical of
silicosis studies of 1/1 on the ILO basis, but certainly there could be
opacities that would fall below that.

		JUDGE SOLOMON:  Okay, thank you, Mr. King.  State your name and spell
your last name.

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

		Dr. Steenland, last week we heard from a Dr. Anthony Cox that OSHA's
risk assessment was capable of demonstrating an association but didn't
actually show causation and didn't actually show that reducing the
silica PEL would reduce disease.  What would be your opinion of that
kind of argument?

		DR. STEENLAND:  Well, lots of times we have studies in epidemiology
which show a finding.  And to infer causality, and I mentioned this
before about Bradford Hill in the '50s, we have a number of fairly
commonsense criteria, one of which is consistency.  So that means that
you need more than one study that show the same thing.

		And, furthermore, strength of association is another one, so if it's a
strong association that provides evidence in favor of causality.  And a
positive exposure-response relationship is another criteria from
Bradford Hill, as I mentioned, which argues in favor of causality.
Probably the key requirement is that exposure is known to precede
disease.  This is clearly the case in silica where we start with
exposure and follow people to see if they get disease.  Most of the
Bradford Hill criteria are well -- and biological plausibility is
another one, and clearly that occurs as well.  So most of the Bradford
Hill criteria apply here.

		You know you can never prove causality.  But when the evidence builds
up to such an extent and you have 100 studies and they tend to be fairly
consistent, that's when we draw a causal conclusion.  And that was the
case for cigarette smoke in lung cancer.  That was the case for asbestos
in lung cancer.  And when the evidence builds up to a certain point, you
say, yeah, it's a reasonable assumption that this thing causes, X causes
Y.

		DR. SIVIN:  And would you say the science relied on by OSHA for its
risk assessment satisfied OSHA's burden to establish a significant risk
that can be reduced by reducing the PEL?

		DR. STEENLAND:  Yes.

		DR. SIVIN:  Thank you.  One other question, in your written comments
and I believe you also stated today, you stated that the epidemiologic
evidence for kidney disease is less conclusive than for lung cancer.
OSHA estimated 39 deaths from kidney disease per 1,000 workers with a
lifetime exposure.  Essentially the same question, would you say the
science that OSHA used to come up with that estimate pretty much
satisfied OSHA's burden to establish a significant risk that can be
reduced by reducing the PEL?

		DR. STEENLAND:  So the renal question is a little more complicated
because there is not as many studies so that consistency criteria of
Bradford Hill is not as strongly fulfilled.  Two of the studies OSHA
relied on were mine, so I have to support them.

		But, no, I think there is pretty good evidence that silica causes
renal disease.  I just think that there is not as big a database as
there is for lung cancer and silicosis.  And so there is more
uncertainty.

		DR. SIVIN:  Thank you much, Dr. Steenland.

		JUDGE SOLOMON:  Thank you.  Next?  State your name and please spell
your last name.

		MR. FREDERICK:  Good morning.  I'm Jim Frederick with the United
Steelworkers, and it's F-r-e-d-e-r-i-c-k.  Just a couple of questions.
You have researched quite a bit of -- reviewed quite a bit of the
research on the body of silica.  In your review of the information and
research available, is the body of evidence pertaining to silica of
equal quality to evidence of other occupational health hazards?

		DR. STEENLAND:  Yes.

		MR. FREDERICK:  Okay.  And you also spoke a bit about the
underestimates on the number of silicosis cases diagnosed.  Do you have
any information pertaining to also a misdiagnosis, people that come into
a physician with apparently silicosis but are diagnosed with other
illnesses?

		DR. STEENLAND:  I don't have any quantitative information, but my
impression is that if you -- someone comes in with symptoms of
silicosis and you don't take an x-ray which is read by someone who is
qualified to pick up the opacities, you might miss it.

		MR. FREDERICK:  Okay, very well.  Thank you.

		JUDGE SOLOMON:  Thank you.  Mr. King, do you have anything further?

		MR. KING:  Yes, thank you.  I appreciate it.

		JUDGE SOLOMON:  How much more do you have?

		MR. KING:  I guess somewhere between -- the answer is 5 to 10
minutes.

		JUDGE SOLOMON:  Okay, let's go with five.

		DR. STEENLAND:  Mr. Hill, my answers will be short.

		JUDGE SOLOMON:  Especially if they're on cross-examination.  Go ahead.

		MR. KING:  You mentioned that silicosis deaths may be underreported.
Would that have been true in 1968, as well as today?

		DR. STEENLAND:  I would think so.

		MR. KING:  No reason it would be any less underreported back then than
today?

		DR. STEENLAND:  I can't think of any.

		MR. KING:  Thank you.  The threshold that you mentioned, I think you
said it was 0.007 mg/m3 for a 45-year exposure, is that a threshold that
you developed based on chronic exposure and then kind of translated it
back into an average exposure level for 45 years?

		DR. STEENLAND:  Yes.  We took it from our study, and we simply looked
at what level we did find no risk up to what point.  And then given that
cumulative exposure, how does that translate over a 45-year period?

		MR. KING:  Thank you.  That's what I thought.  How do you explain the
fact when OSHA predicted the silicosis morbidity risk using just studies
that had the post-employment follow-up, the estimates varied by I
believe over two orders of magnitude?

		DR. STEENLAND:  Estimates of what?

		MR. KING:  Silicosis morbidity.

		DR. STEENLAND:  I don't know.  I'd have to go back and look at the
studies.  But there is a lot of variability in diagnostic -- in
diagnosis of silicosis.

		MR. KING:  Again turning back to the Liu study, am I correct that the
available monitoring data that was used for these mines and potteries
consisted of Chinese total dust concentrations collected by area
samples?

		DR. STEENLAND:  Yes.

		MR. KING:  I understand that conversion factors for these Chinese
total dust values to respirable crystalline silica were developed in
side-by-side sampling using a cyclone sampler to collect the respirable
particles and the traditional Chinese total dust area sampler.  Is it
correct that there was large variability in the crystalline silica
content of the bulk samples collected at the tungsten mines in this
1988-89 sampling exercise?

		DR. STEENLAND:  I would imagine there was.  If you take a bunch of
area samples in a mine, you're going to get a lot of variability.

		MR. KING:  These were bulk samples, I'm sorry.

		DR. STEENLAND:  You mean they pooled them all?

		MR. KING:  The bulk samples, just the -- I'm talking about the silica
content of the bulk samples.

		DR. STEENLAND:  Again, I think if you took dust samples from different
places in a workplace, they might have different amounts of silica in
them.

		MR. KING:  And is it correct there was significant differences in the
historical silica content measurement of bulk samples in the potteries
over time?

		DR. STEENLAND:  You mean did the dust content of --

		MR. KING:  Not the dust content.

		DR. STEENLAND:  The silica content of the dust change over time in the
potteries?

		MR. KING:  Well, I don't think they did actual silica content of the
dust.  I think they did it of the bulk samples, if I'm correct.

		DR. STEENLAND:  I'm a little confused what you mean by bulk samples.
Are they bulk samples of dust?

		MR. KING:  Okay.  And is it true that those varied significantly over
time in the pottery?

		DR. STEENLAND:  This I don't remember, but I would not be surprised.
Most workplaces change, hopefully improve over time.

		MR. KING:  In your study, did you use industrywide conversion factors
or facility specific conversion factors, or something else?

		DR. STEENLAND:  For?

		MR. KING:  For converting the Chinese total dust measurements to the
respirable dust measurements.

		DR. STEENLAND:  Ah, this I'm not sure.  I'd have to go back and look.

		MR. KING:  Is it correct that in deriving conversion factors, the
distribution of particle size is an important factor to be considered?

		DR. STEENLAND:  I would think so.  I'm not an industrial hygienist.
I'm an epidemiologist, so I can't answer that without further --

		MR. KING:  And so you wouldn't know how that would have been taken
into account in applying the conversion factors in this study?

		DR. STEENLAND:  No.  I'd have to go back and look.

		MR. KING:  Okay.  How confident are you in the exposure estimates that
were used in the pooled analysis that you published in 2001?

		DR. STEENLAND:  I thought they were pretty good.  You know if you find
a strong dose response for silicosis using your exposure measurements,
which we did, that's indication that you're unreasonable estimation.

		MR. KING:  Am I right, though, there is considerable heterogeneity in
the exposure response coefficients among the 10 studies that you
included in that analysis?

		DR. STEENLAND:  If you take the log transformation of the exposure
measurements, of the cumulative exposure, there was no heterogeneity
between the 10 studies.  If you didn't take the log transformation,
there was, and particularly the South African study had a different
coefficient.

		JUDGE SOLOMON:  Okay, I gave you an additional five minutes, so --

		MR. KING:  Okay, thank you.  I appreciate it.

		JUDGE SOLOMON:  Ms. Kramer, Mr. Perry, do you have questions for the
witness?

		MR. PERRY:  Yes, thank you, Your Honor.  We will have some questions
for the witness beginning with Stephen Schayer.

		MR. SCHAYER:  Oh, good morning, Dr. Steenland and thank you for your
testimony.  I have a couple of questions on exposure measurement error.
So last week, we heard testimony that the cohorts used in the literature
are subject to potentially large sources of exposure measurement error
and that these errors can bias regression coefficients, modify the shape
of exposure-response curves, and obscure the presence of a threshold.

		So you mentioned that you had used Monte Carlo simulations for your
uncertainty analysis.  We received a comment that Monte Carlo may not be
the correct approach for an uncertainty analysis.  We were just
wondering if you agree with this.

		DR. STEENLAND:  Again, absent a gold standard to do some sort of
correction of errors in measurement, the Monte Carlo approach is a
reasonable approach to estimate the possible effect of measurement
errors absent any, again, gold standard.  So I think it was a reasonable
way to go.

		MR. SCHAYER:  Great.  So say you believe this analysis, then, you
know, it shows that the studies were not too affected by exposure
measurement error in your analysis.

		DR. STEENLAND:  I think that's a reasonable conclusion.

		MR. SCHAYER:  Okay, great.  Another commenter also suggested that a
larger number of simulations should have been performed in the Monte
Carlo analysis.  So we were wondering how likely it is that additional
simulations would change the results?

		DR. STEENLAND:  Unlikely.  There is some literature that says that 50
simulations of the type we did are quite enough.  Given the amount of
computer time to do each simulation, it's quite burdensome.  So
certainly you always can do more, but I think 50 should be reasonable.

		MR. SCHAYER:  Great, thank you.  So some commenters also suggested
several other sources of exposure measurement error.  These included
those focused on variability in measurement samplers, duration of
sampling, location of sampling, laboratories and particle potency.  So
we were wondering if there is data available for these sources of error
or potential sources of error.

		DR. STEENLAND:  You're asking industrial hygiene questions again,
which I don't know the answer to, but my guess is no.

		MR. SCHAYER:  Okay, thank you.  And then I just have a couple of
questions on your 2001 pooled study of lung cancer.  Could you comment
on your use of the spline model and tell us if the spline model provides
evidence of a threshold in OSHA's region of interest, namely .05 mg/m3?

		DR. STEENLAND:  So a word about spline models.  We often do two kinds
of analyses to look at the shape of the exposure response before we try
and pin it down to a specific parametric model where you have a linear
or a loglinear relationship between exposure and disease in the two.  So
we did categorical analyses, which are parametric free in the sense that
you're just looking at, well, we've divided the group into five
categories of higher exposure and did we see increased risk of lung
cancer across those five.

		And the spline analysis is similar.  It's a very flexible look at the
exposure response without having to pin it down to a particular model.
So we then go from there to pick a particular model, and that's what we
do risk assessment with usually, which is what we did.

		Your question specifically says what about the spline threshold.  If
you look at the figure in our paper, the threshold for the spline that's
apparent, and again I wouldn't judge a -- I wouldn't probably pick the
best threshold based on the spline, but it's quite consistent with the
threshold.  We did, in fact, estimate using the log transform cumulative
exposure as we did in our 2002 paper response to OMB.

		And even if you look at the figure, you see that the curve of the
spline starts to go up around four on the log scale of microgram per
meter cubed days.  And if you transform that from the log to the regular
scale, that is quite consistent with the threshold we got when we did a
formal analysis using the log transform model.

		MR. SCHAYER:  Okay, great.  Thank you.

		DR. STEENLAND:  Long answer.

		MR. SCHAYER:  Very good answer, thank you very much.  And then the
last question I had, so you mentioned in your presentation about how
smoking was controlled for in the pooled analysis.  So we were just
wondering is it appropriate, or do you think it's appropriate to compare
risk groups, such as ever, never, and unknown if you have incomplete
smoking histories?

		DR. STEENLAND:  Sure, ever smokers versus never smokers.  Well, I
don't know about unknown, you can't do anything, but ever smokers versus
never smokers is often done absent more specific data, and certainly
ever smokers are known to have much higher risk than never smokers.  So
it's a method of adjustment that you can use.  It's maybe not ideal
compared to having detailed smoking history on everybody, but sometimes
you don't have that.

		We didn't control for smoking in our pooled analysis because we didn't
have smoking data on all our cohorts, by the way.  But I did say why I
thought that was not a relevant problem, and then subsequent studies
have a control for smoking, the Chinese did and the analysis, the
meta-analysis by Lacasse.

		MR. SCHAYER:  Okay, great.  Thank you very much.  So I think Tiffany
DeFoe has some questions now.

		MS. DEFOE:  Thank you.  First, I'd just like to check on something you
just commented on in response to Steve's question about your spline
analysis.  You said that in your analysis, you started to see exposure
response increase around 4 mg per cubic meter days in your chart, in
2001.  And we've seen this chart cited earlier in Dr. Cox's testimony,
I believe, and he said that it showed an increase around 4 to 6 mg per
cubic meter years.  And, in fact, along the x-axis, I do see it listed
as mg per cubic meter years in his slide.  Is it years or days?

		DR. STEENLAND:  It's days.  It's an error in the paper.  We sent a
correction in later, I believe.

		MS. DEFOE:  Oh, okay.

		DR. STEENLAND:  But it should be pretty apparent.  If you
exponentiate, you know, it goes out to 11.  If you exponentiate 11,
you're going to be days, not years.  That's a big number.

		MS. DEFOE:  Okay, thank you.

		DR. STEENLAND:  But it's a mistake in the paper.

		MS. DEFOE:  Thanks for clarifying.  Okay, now also on Dr. Cox's
testimony last week, he testified that OSHA's risk assessment did not
correctly account for a variety of biases that can occur in
epidemiological studies including model biases, model selection bias,
model form specification bias, model over-fitting bias, and model
uncertainty bias.  And he suggested that a technique biasing model
averaging could be used to properly account for these.  Are you familiar
with this technique, and do you believe that it would benefit OSHA's
risk assessment?

		DR. STEENLAND:  I'm familiar with it.  No, I don't believe it would
benefit OSHA's risk assessment.  Biasing model averaging basically says,
well, you've got a bunch of models and they give you different results,
so how are we going to average them?  Well, we have some prior beliefs
about which ones are better, which we take into account when we average
them, so we give more weight to one versus another.

		That makes more sense when you don't have a lot of data.  In general,
biasing analysis, which requires some sort of interjection of a prior
belief into your conclusions beyond what the datas say, are most useful
when you don't have a lot of data.  And when you do have a lot of data,
the data should drive your conclusions about what the best model is, and
you should use that best model rather than say I think that this other
model should be weighted importantly and we should average them based on
some prior belief.

		We don't have really a prior belief about what model is better, but we
do have an abundance of data and, therefore, sort of a biasing prior
analysis is not usually used.  And that's probably the last point on
this is that biasing model averaging, to my knowledge, has not been used
in risk assessment ever.  And so, sure, you could try that.  You could
try a million things.  But I think OSHA has correctly used standard
methods to do their risk assessment and biasing model averages is not
one of those standard methods.

		MS. DEFOE:  Thank you.  Dr. Cox also brought up the use of regression
diagnostics and stated that this was a better mode of finding the best
model to fit the data and suggested that residual analysis and other
regression diagnostics should have been performed in OSHA's risk
assessment.  Did you use regression diagnostics?

		DR. STEENLAND:  No.  Regression diagnostics typical of linear
regression are not often used in Cox regression, which is what we used,
where the outcome is binary.  And what we did to assess model fit is
what, again, standardly is done, looking at the model likelihood and
penalizing it with the number of degrees of freedom of the covariates in
the model and calculating something called the AIC, Akaike's information
criteria, which you compare one model to another and the lower is the
best.  So, again, standard procedure for this sort of regression is what
we used.

		MS. DEFOE:  Okay, thanks.  And you said that the Cox model was
typically used when the outcome is binary.  Is it the case that since
lung cancer and silicosis outcomes are all binary, that this is the
standard approach for pretty much any dataset --

		DR. STEENLAND:  Yes.

		MS. DEFOE:  -- that we're using, looking at here.  Thank you.

		DR. STEENLAND:  Sure.  I mean there's other binary things you can use,
like logistic regression.  But in a survival analysis situation where
you're looking at people surviving over time and then failing at a
certain point, Cox regression is the usual method.

		MS. DEFOE:  Okay, thanks.  Now, earlier also in one of your responses
to Mr. Schayer's question, you made a statement, you said I wouldn't
pick a threshold based on a spline.  Could you elaborate on that?  Why
would it be difficult to pick a particular level for the threshold using
the spline analysis?

		DR. STEENLAND:  Yeah, well, it's a little harder to program, and the
spline has got a lot of cubic terms in it, and it's a very flexible way
to look at the exposure response.  You could estimate a threshold with
it.  In fact, we did.  But I would say that, in general, using the
spline to pick the best parametric model is what we did, and then when
you've got that parametric model, estimate the threshold with that is a
preferable way to go.

		MS. DEFOE:  Okay.

		DR. STEENLAND:  The answer doesn't differ much.

		MS. DEFOE:  Okay, thank you.  Let's see here, I just have a couple
more.  In response to a question by one of the audience members, you
were discussing the Bradford Hill criteria, and you were saying that if
you meet various ones of these criteria, you can be fairly confident
that there is a causal relationship between the exposure of interest and
the disease of interest.

		And you stated very clearly that these relationships were met in the
case of asbestos and smoking.  And it seemed that you were implying that
they were also met for silicosis, but I just wanted to confirm.  Is that
what you meant to say that they were, in fact, met for silicosis?

		DR. STEENLAND:  For silicosis or for lung cancer.  I had said they're
met for both.

		MS. DEFOE:  Oh, yes, both.

		DR. STEENLAND:  Yes.

		MS. DEFOE:  Thank you.  Earlier in your testimony, you said that if
you had a gold standard subset in a dataset, you can use that gold
standard for your exposure measurements, and you have that in a subset
of your data, you can use that subset to correct exposure error in the
rest of the dataset.

		And you stated that in your 2001 analysis, you didn't have such a
subset.  Are you aware of other studies in the silica literature that do
have the necessary gold standard to correct for exposure error?

		DR. STEENLAND:  Not off the top of my head.  The industrial sand
industry has a lot of historical measurements that could be useful
perhaps, but I'm not sure.  I can't answer that question without doing a
little bit of study.

		MS. DEFOE:  Okay, that's the end of my questions.  Thank you.

		JUDGE SOLOMON:  Mr. Perry?

		MS. DEFOE:  Oh, I'm sorry, my mistake.  I did, in fact, have one more
question I neglected to ask.  I know that you have done a good bit of
work in the area of exposure-response attenuation at high exposure
levels.  Do you have any insight you can share with us on whether this
is a common occurrence in epidemiological datasets and why it occurs?

		DR. STEENLAND:  Yeah.  It's a very common occurrence in occupational
datasets, and there are four or five reasons why it is likely to occur.
And one of these, well, I can just mention what they are.  One is you
might have more exposure measurement error at higher exposures, which is
often the case, and that tends to, in general, exposure measurement
error tends to, in general, bias things to the null.  So you would have
less of an exposure-response trend.  And if that occurs at higher
exposures, it tends to pull the curve down at higher exposures, which is
one reason for attenuation.

		Another reason is that susceptible people, who are susceptible, get
disease, get the disease and at the end there is hardly any -- with
people cumulative exposures far out with the follow-up with the cohort
and the susceptibles are gone.  So that's depletion of the susceptibles.

		Another important reason which I think is often the case, although it
is unknown, is that biological pathways get saturated so that after a
certain point with higher exposure, it doesn't do any more damage; for
example, platelet aggregation is a problem in smoking and platelet
aggregation with more cigarette smoke at a certain point no longer --
the platelets don't get any more sticky than they already are.  And so
that might be reason why some cigarette studies show attenuation after
cumulative exposure for certain amounts, so biological saturation
pathways is another.

		So there are a number of reasons why this might occur.  And what I
would stress is it's extremely common in occupational studies.  And we
wrote an article about it that Leslie Stayner is first author on in, I
think it's 2003, kind of outlining this and showing in dozens of
occupational studies.  I'd say it's more the rule than the exception.

		MS. DEFOE:  Thank you.  And actually I just noticed, I promise this is
the last one.  I do have just one last question.  In your response to an
earlier question, you said that in your 2001 study, if you take the log
transform of exposure, you didn't see heterogeneity between the cohorts,
and if you did not take the log, you did see heterogeneity.  Why is it
that taking the log transform reduced heterogeneity?

		DR. STEENLAND:  You say why would that be?

		MS. DEFOE:  Right.

		DR. STEENLAND:  Well, taking the log transform gives less influence to
really high exposures because it pulls them in toward the middle.  And
high exposures, as I mentioned, may be more mismeasured than low
exposures because there are fewer of them.  You are estimating some
average for a job that has very high exposures and you have less
sampling data to back that up.  So my guess is that the influence of
outliers, if you will, in the exposure data is lessened by the log
transformation.  It often makes things less heterogeneous in pooled
analyses.

		MS. DEFOE:  So if I understand correctly, it's helping to reduce the
effect of exposure measurement error?

		DR. STEENLAND:  Yes.  It certainly has helped -- it reduces the
effect of the very highest exposures being able to drive an
exposure-response curve because those exposures are often way out-skewed
to the right, because occupational exposure data is often log normal.
With some very high exposures, they are sort of extreme, and that can
drive your exposure-response curve.  And you take the log, it pulls them
in, and so therefore gives less influence to those high data points.
And I think those high data points are often measured with more error.

		MS. DEFOE:  Thank you very much.  Thanks for your patience.

		JUDGE SOLOMON:  Mr. Perry?

		MR. PERRY:  Thank you.  I have I think just two very quick questions
for Dr. Steenland.  You were asked a number of questions about the
exposure estimates and information that were used in the Liu study.
Could you tell us, in general, if in fact we are not assessing exposures
for the cohort members correctly, what is generally the effect of
misclassification on epidemiologic studies such as this one?

		DR. STEENLAND:  Right.  So there are a lot of caveats to this, but
misclassification I would say in general tends to bias things to the
null.  It's harder to see positive exposure-response trends in the face
of misclassification.

		It depends partly on the type of error, and it gets fairly complicated
about the error structure and whether it is classical or Berkson,
whereas Berkson doesn't show such attenuation but simply more variance.
And the classical error in fact shows attenuation in most circumstances.
 But, on the whole, I would say that exposure measurement tends to bias
things down rather than up.

		MR. PERRY:  Thank you.  Also, I think you were asked about OSHA's
estimates of silicosis morbidity risks where, for example, 45 years of
exposure at the current general industry standard, OSHA estimates a
range of between 60 to 773 silicosis cases per 1,000 workers.  That's a
little more than one order magnitude; would that be correct?

		DR. STEENLAND:  Say those two numbers again?

		MR. PERRY:  Between 60 and 773.

		DR. STEENLAND:  Right.

		MR. PERRY:  So that's about one order of magnitude --

		DR. STEENLAND:  Yes.

		MR. PERRY:  -- or a little more.  All right, thank you very much.
That's all I have, Your Honor.

		JUDGE SOLOMON:  Ms. Kramer?

		MS. KRAMER:  I don't have any questions for this witness, just my
thanks for coming in.

		JUDGE SOLOMON:  Okay, thank you very much.  The next panel is the
Construction Industry Safety Coalition, Mr. Hammock, Mr. Sessions.
Let's go off the record while they come forward.

		MS. KRAMER:  Your Honor?

		JUDGE SOLOMON:  Yes?

		MS. KRAMER:  One thing real quick.  The next panel has graciously
agreed, as you noted earlier, to hold their questions -- their
answering of questions until after the lunch break.  Since we have gone
a little bit longer here than we had anticipated, we would ask that you
hold the lunch break until they have had a sufficient amount of time to
present their testimony.

		JUDGE SOLOMON:  Right.  They get about two hours.

		MS. KRAMER:  Thank you.

		(Off the record at 10:40 a.m.)

		(On the record at 10:44 a.m.)

		JUDGE SOLOMON:  Let's go on the record.  As I said, they get about two
hours, so it may mean that we will have to give up part of the lunch
hour.  But I'll play it by ear.  Mr. Hammock, do you want to introduce
yourself and your witness.

		MR. HAMMOCK:  Great.  Thank you, Your Honor.  My name is Brad Hammock.
 I'm a lawyer with the law firm of Jackson Lewis.  I am here
representing the Construction Industry Safety Coalition.  Testifying
with me to my right is Stu Sessions, who is President -- is that what
you are, President?

		MR. SESSIONS:  Yes.

		MR. HAMMOCK:  President of Environomics, Inc., which is a consulting
firm in the Washington, D.C. area.

		JUDGE SOLOMON:  Okay.  So do you have any exhibits you want to start
with, Ms. Kramer?

		MR. HAMMOCK:  Yes, Your Honor.  And depending upon how OSHA and
Ms. Kramer would like to proceed -- and as was pointed out, we are
going to have four witnesses total today, two this morning I believe and
then two this afternoon.  And for timing purposes, Your Honor, I believe
the actual testimony will be longer with the two of us than it will be
in the afternoon.  So however that factors in from a timing perspective.

		And we prepared a PowerPoint, which we have given to the participants,
which we would ask to be submitted into the record as part of this
hearing.

		JUDGE SOLOMON:  So is that marked?

		MS. KRAMER:  Sure.  I'd like to mark it as Hearing Exhibit 40 and have
it admitted.

		JUDGE SOLOMON:  Okay.  As there is no objection, it is hereby admitted
into evidence.

(Whereupon, the document referred to as Hearing Exhibit 40 was marked
and received in evidence.)

		MS. KRAMER:  Thank you.

		JUDGE SOLOMON:  Go ahead.

		MR. HAMMOCK:  Thank you, Your Honor.  Thank you, OSHA.  Let me just
get started by saying a couple of things, and that is to thank OSHA for
putting on these hearings and, in particular, it occurred to me
listening last week to some of the testimony, there has been quite a bit
of recognition on behalf of a number of witnesses and on behalf of OSHA
with respect to the unique challenges that the construction environment
brings with respect to controlling occupational exposure to crystalline
silica.

		And I would just say at the outset what probably everyone here is
anticipating and certainly OSHA is anticipating, we're going to spend
the next four or five hours being very critical of OSHA in the approach
that was taken and all that sort of thing.  And I know that's what the
expectation is, but I would like to put that in context and say that we
appreciate OSHA's recognition of the differences in construction and
general industry, the challenges that are there.

		And I will also say one of the things we will talk about is Table 1
and some of the concerns and questions that we have related to Table 1.
But I do want to say that we appreciate Table 1 in concept, and we
understand that when OSHA put that together, it was in response to some
of the things that they heard from the construction industry.

		And while we'll spend quite a bit of time criticizing it, we want you
to know that we appreciate it and the thought process involved.  So,
hopefully, our comments will provide some good information for OSHA to
consider as they figure out how to proceed with this very important
proposed rule.

		Okay, first, to begin, as I mentioned, I'm here on behalf of what's
called the Construction Industry Safety Coalition.  We are a group, a
coalition of approximately 25 different construction industry trade
associations.  And I am going to actually flip through very quickly all
the different members of the coalition.  We had to get it on three
slides.

		Talking with folks that are involved in this, they say that it is
probably the first time that they can imagine where this number and this
diversity of trades have gotten together to form one coalition.  And I
think it speaks to the importance of this proposed rule certainly to the
construction industry.  And, again, to echo what I said at the first
instance, I appreciate that OSHA has also recognized that this probably
is in many ways the most significant rulemaking undertaken with respect
to the construction industry given the degrees of exposure and the
challenges that are there.

		What I want to do today is talk through several things.  And as I
mentioned, there are going to be four of us testifying here today.
Starting, we're going to talk a little bit just quickly about some
process issues, some things that we would recommend, and some
considerations that we have there.

		Then we want to spend a little bit of time talking generally about
OSHA's technological feasibility analysis.  OSHA spent obviously a lot
of time and a lot of energy and a lot of resources trying to make the
determination whether reaching a PEL of 50 µg is technologically
feasible in the construction industry.  We want to talk a little bit
about that and some of the concerns with respect to the underlying
analysis that OSHA actually undertook.

		Then I will turn it over to Stu Sessions, who will spend probably way
too much time talking about all the different cost concerns and
considerations that we have related to OSHA's economic feasibility
analysis.  And then, finally, we are going to hear from two members of
association participants, Kellie Vazquez and Kevin Turner, who are going
to really speak about the ancillary provisions and some of the concerns
that they have if they were to have to implement the proposed rule as
put forward by OSHA.

		That's what we want to accomplish in the next three, four, five hours
or however much time we have, and obviously we look forward to receiving
questions from folks, from OSHA, and the public participants.

		Okay, let's get started.  The first thing I wanted to talk about a
little bit relates to process.  I'm certain last week there was some
discussion about the process that OSHA has undertaken to develop this
proposed rule has certainly been under analysis and promulgation for
several years within OSHA.  We do want to highlight two things from the
construction industry's perspective.

		OSHA conducted a SBREFA panel on this proposed rule about 10 years
ago, and a couple of things are very striking about that SBREFA process.
 First of all, it was 10 years old.  The construction industry looks
much different today than it did 10 years ago.  We understand as an
industry that the SBREFA process does not need to take place two months
before a proposed rule is issued.  We understand that is not possible.

		However, we do believe and believe strongly that 10 years is simply
too long a period of time to really make the SBREFA process adequate and
helpful to the Agency as it conducts its various analyses, and certainly
with respect to economic feasibility, and some of the costs, and some of
the economic impacts that go along with the proposed rule.  The reality
is things are much different today than they were 10 years ago.

		There is obviously nothing that prevents OSHA during that 10-year
period of time from conducting another SBREFA panel or reaching out even
informally with small businesses to discuss the impact of the proposed
rule on them.

		We would say to OSHA that 10 years is too long and would consider
using this opportunity as a chance to get more information about the
effects of a proposed rule, and then consider reissuing a proposal going
forward.

		The other thing I would like to highlight about the SBREFA panel is
Table 1 was, while included in the package, much different than what it
appears today.  And one of the things that we are going to be talking
about today relates to the notes in Table 1.  There are a number of
notes which we'll talk about, that talk about there being no visible
dust exhibited when a particular process is undertaken in the
construction environment, under Table 1.  And those types of -- that
type of information was not included in the SBREFA draft, nor was there
any indication that there could be an action level of 25, which we'll
talk about a lot during this presentation as well.  We think there could
have been a lot more value given to the SBREFA process for small
business outreach generally.

		The other thing I want to talk a little bit is ACCSH.  Obviously, the
Agency has a responsibility and a requirement to consult with the
construction advisory committee on proposed rules and provide the
construction advisory committee with as much detail and as much
information as possible so that the advisory committee can make
recommendations to the Agency with respect to the Agency's proposal.

		Here, OSHA did go to ACCSH on one occasion.  They limited the
discussion to about three issues on one day.  And we don't believe that
ACCSH was engaged fully in a complete assessment of the rule.  What was
again proposed to ACCSH was different, much different than what was
here.  Back to Table 1, there were no notes in the table.  There was no
indication of an action level of 25.  There was no firm indication of a
permissible exposure limit that was given to ACCSH at that time.

		We believe it was incumbent upon the Agency to go to ACCSH and more
fully explain the proposal, where it was, where OSHA was thinking and
going to go with respect to the proposal than what occurred here.  And,
of course, the construction industry and I'm sure ACCSH would welcome
another opportunity to provide that feedback to the Agency, but we
wanted to at least highlight those two aspects of the procedural parts
of the pool.

		Okay, I want to turn a little bit to the first what I would call
substantive portion of the presentation related to technological
feasibility.  Obviously, as we know, OSHA is required to show that its
rules are technologically feasible, capable of being done in most of the
operations most of the time.

		Okay, putting aside economic feasibility considerations for the
moment, I want to focus just specifically on technological feasibility.
And for purposes of construction, it is very basic.  It is basically can
the construction industry reach a permissible exposure limit of 50
µg/m3 in most of the operations most of the time?  That's what we're
talking about and are going to be talking about over the next few
minutes.

		We do not believe that OSHA has met its burden to show technological
feasibility in this proposed rule.  And to put everything in context, as
folks here know, it is the Agency's burden in the first instance to show
technological feasibility.  At that point, the rule sort of is assumed
to be feasible in all construction industries.  And in the context of
any specific enforcement action, the burden gets shifted to the employer
to demonstrate that it is not technologically feasible to reach a
certain permissible exposure limit in a particular job, at a particular
time.

		The key to that burden shift, though, which places the responsibility
on an employer in any particular OSHA enforcement action, is that OSHA
makes that initial finding up front in the proposed rule.  If they fail
to do that, that burden doesn't shift.  Fundamentally, we believe that
OSHA has not met that burden in this proposed rule.

		We are not going to spend the whole time regurgitating what our
comments are, but there are a number of basic reasons why we believe
that burden has not been met.  And we'll go through them now.

		First and foremost, we believe that OSHA has not identified and
evaluated all of the construction tasks that would be affected by the
proposed rule in its technological feasibility analysis.  What OSHA has
done in their feasibility analysis, which analytically makes some sense,
is to basically group large tasks and large operations into 12 major
groupings, whether sort of rock crushing, or drywall finishing, whatever
it is, major grouping that they put together.  And then they have looked
at a number of samples, some in the laboratory, some from their SEP, and
determined that, in general, with the exception of two out of those 12
tasks, that the types of operations can reach a PEL of 50 in most
operations, most of the time.

		We believe, though, that there are a number of tasks that are not
actually reflected in those broad categories.  We list those tasks in
our written comments, and I'm not going to repeat those here.  But there
are a number of holes, so to speak, that are not filled.  And, remember,
what OSHA is doing is shifting the burden from a feasibility assessment.
 So you are shifting what OSHA has to prove to what the employer has to
prove.

		And the result of that is that OSHA has not incorporated all the tasks
that are potentially affected and puts an unfair burden on employers.
We believe that OSHA has not captured all of those tasks.  And we
provide a list, frankly, of those tasks in our written comments.

		And let me just say one of the things that OSHA raised in their
proposal was they sought questions from the public as to what are the
tasks that haven't been included.  We have already provided some of
those tasks, and we'll continue to look at that to try to provide
feedback on those types of areas that we think OSHA needs to do more
from a tech feas perspective to actually fill in the gaps that currently
exist.

		So we appreciate that OSHA has requested comment on that.  We have
already provided some and hope to do so in post-hearing comments to
provide other types of tasks that were not covered.

		That's the first thing that we don't think constitutes meeting the
burden of tech feas.  The second is, in our view, OSHA is incorrect and
unjustified in assuming that for all exposure samples of less than a
full shift duration, that there is no exposure after the sampling period
ends.

		All right, so what is going on here, and I think everyone who is
listening understands what this issue is all about, OSHA has relied on a
number of different samples for coming up with their tech feas
conclusion.  Some of those samples are full shift samples, 8 hours, for
example; some are partial shift, 4 hours, 6 hours; some are a very small
portion of time, 15 minutes, maybe 30 minutes, maybe an hour.  This is
the sampling data that OSHA has and it has a number of different samples
that is included.

		The question for OSHA is what do you assume beyond that sampled period
as to what is the exposure of the individual to silica after the
sampling period ends?  In the case of construction, OSHA has assumed for
essentially all partial shift exposures that there is no other exposure
to silica for the remainder of the shift.  OSHA admits that this
particular assumption probably has the effect of underestimating
exposure both from a corrective methods perspective, as well as a
baseline perspective.  But OSHA says that it is the best available
option to the Agency.

		We contend that it probably is not the best available option.  To
assume for all unsampled portions of the shift that there is no
additional exposure to crystalline silica doesn't really reflect the
differences that exist in the different trades, information upon which
OSHA has information in its tech feas analysis.  For example, OSHA has
information that folks who operate various types of excavating equipment
usually operate and are exposed to silica for essentially a full shift.
Yet, if OSHA has only a partial shift sample for those folks, it assumes
that there is no additional exposure to occupational silica for the
remainder of that shift.  We believe that that does not accurately
reflect what is actually going on.  And we think OSHA can do better in
terms of how it is actually assessing and assuming those different
exposures.

		We are not saying necessarily that OSHA has to assume a worst case
and, therefore, assume maybe a full shift for every single unsampled
portion of an exposure assessment that it has.  But we also conversely
don't think you can assume for all tasks that there is no additional
silica exposure for the remainder of an unsampled portion of the shift.
That's the second issue that we have with OSHA's tech feas analysis.

		All right, the third issue is that we fundamentally do not believe
that OSHA's analysis considers the broad scope of tasks and environments
affected.  And I did want to start this discussion with a quote, because
I think ERG really says it best.  And it says the following in its
report regarding feasibility, "The construction industry presents
several challenges that affect both exposure analysis and the task of
controlling exposure.  Important considerations include irregular
schedules, variability in the silica content of work materials,
different types of mechanical actions that generate silica-containing
dust, secondary exposure from adjacent activities, and the effect of
weather on work that is frequently performed outdoors."

		There are a number of factors in the construction industry that day in
and day out are going to affect exposures and the ability of control
measures to get exposures below the permissible exposure limit, in this
case of 50 µg/m3.

		It is funny, when I was here last week and NIOSH was testifying, I
asked the panel at what level did they believe a prudent employer would
need to make sure exposures reached in order to be fully sure that they
would be in compliance with a PEL of 50.  And the response I got was you
had to be essentially at or below the action level of 25 µg/m3.

		What NIOSH is telling me and what I think ERG is saying here is that
there is so much variability, there are so many things that factor into
a particular assessment, a particular exposure level, that in order to
meet the PEL, you have to be significantly below it.  And we'll talk
about that at length.  But what that means for OSHA is you have to
understand and analyze at least a strong cross section of the types of
exposures and environments that are there.  You can't assume that you're
going to be in compliance with a PEL of 50 if you have not factored in
all of these different things, the winds, the environments, the dry day,
the muddy day, the brick that contains 20 percent silica, the brick that
contains 5 percent silica, the concrete that contains 35 percent silica
or 5 percent silica.  You have to look at all of those conditions to
make a determination that it is technologically feasible to comply with
a PEL of 50 in most operations most of the time.

		We don't believe on the whole that OSHA's dataset accomplishes that
particular task.  Unfortunately, there are some where there are a number
of different data points, but we don't think that it meets the type of
distribution that would reach that threshold level.  And that is a
significant concern that we have with respect to the tech feas analysis.

		Okay.  We also have concerns about OSHA's assumption about compliance
on multi-employer worksites with respect to exposure effects and
secondary exposures.  Our read of the tech feas analysis, and we're
obviously welcome from OSHA's perspective to hear if we're wrong on
this, our read is that there was no -- that OSHA did not consider any
secondary exposure effects when folks are essentially performing
silica-generating tasks side by side.

		The thought process of OSHA was, at least in our view, that everyone
is going to be controlling silica below the PEL and, therefore, there
should be no secondary exposure effects that would factor into whether
you can actually reach the PEL of 50.  And so my take on this and this
is sort of the basic, sort of the lawyer take is if someone is cutting
concrete here on this side of the stage and someone else is cutting
concrete there on that side of the stage, different contractors, let's
just say different methods, but they are both under 50, let's just say
they are both 49 µg/m3, those different employers will not affect the
exposure.  Okay?

		Now, it may be that -- and everyone is sitting there saying, well, if
they're both under 50, then that's probably true, right?  They both
controlled it.  But when you are actually looking at what the level is
that they have to reach in terms of implementing their engineering
controls, in our view it has to be below what that 50 would be.  So they
could have been using wet methods and get below 50 Day 1, when there is
no one else cutting a wall on this side of the stage, but when someone
else is cutting a wall on that side of the stage, they actually have to
have their exposures significantly below that level, below where they
had previously been.  And that is something that is not factored in, at
least in our view, in OSHA's analysis.

		The upshot is you actually have to get much lower than a 50 µg/m3
limit to make sure that you are in compliance with this PEL.  OSHA's
tech feas analysis, in our view, does not actually analyze getting down
to that level.  And it kind of goes back, frankly, to what NIOSH was
telling me last week, which is if you're an employer and you have to
think about all these things, you have to think about the fact that
someone could be cutting right next to you, or you have to think about
that the winds could be coming in, blowing a bunch of silica dust from
another activity, that you actually have to be much lower than what OSHA
has assumed in this analysis.  You have to be at 25 or below.  Simply
being at 50 is not going to get you there, and that is something that we
don't think OSHA has fully analyzed here.

		Okay, we also believe that Table 1 shows that the proposed rule is
infeasible.  We're going to talk a lot about Table 1, and I don't want
to belabor that here because, as I said in the beginning, we very much
appreciate what OSHA has done with Table 1 and what it has tried to do.

		But we think, at the same time, that it fundamentally shows that the
rule is not feasible.  And I say this because of the heavy reliance on
respiratory protection that exists in the table.  Something like 8 out
of the 13 different tasks that are included in Table 1 require some form
of respiratory protection.

		You could be working in a situation, let's say you're cutting concrete
with a masonry saw, you could be in a situation where you're fully
implementing wet methods per the table.  You've controlled things so
that there is no visible dust whatsoever because you're fully in
compliance with Table 1.  You have taken a variety of different work
practice control methods to make sure that wet slurry is not
accumulating and drying.  You have prohibited dry sweeping.  You have
done all of these things and, yet, you're still performing this task for
four hours and one minute, and you've got to be in a respirator the
whole time.

		I understand that OSHA is taking a conservative take on Table 1, and
that's why it included that respiratory protection.  But it also shows
to me that fundamentally OSHA is saying employers can't reach a level of
50 µg/m3 in most of the operations most of the time.  And the reason is
they are requiring employees to be in respirators if you use Table 1.

		You have full implementation, full implementation of the engineering
controls that OSHA expects employers to implement in the construction
industry, wet methods or LEV showing no visible dust whatsoever, along
with a number of other protective measures, and OSHA is saying in Table
1 that you still need respiratory protection.

		OSHA has historically stated that technological feasibility should be
shown without regard to the use of respirators.  Here, OSHA is relying
heavily on respirators.  And, in our view, the reason is you can't reach
a PEL of 50 in most operations most of the time, at least in the
construction industry.

		Okay.  Finally, as a general matter, and I have alluded to this
before, OSHA's analysis includes no finding whatsoever that it is
technologically feasible to reach the action level of 25 µg/m3, with
the exception I will say of working with drywall compound that is
silica-free.  In that situation, OSHA has concluded that it is feasible
to reach an action level of 25.

		Now, everyone is probably saying that's fine, Brad, why does that
matter; the obligation is to reach a PEL of 50.  Except what we have
heard here last week and I think it continues to develop over the course
of these hearings, that in order to be in compliance with the PEL in
construction, because of the variability of conditions that exist, you
actually have to be at a 25 µg/m3 level.

		Given that as the case, it is incumbent upon the Agency, in our view,
to demonstrate that it is actually technologically feasible to get down
to that level.  OSHA has made no finding of that.  And if you have
looked at the ERG report, we certainly did not see, again with the
exception of drywall finishing with silica-free joint compound, any
evidence that you can get to 25 µg/m3 in any of the tasks defined.

		We think basically OSHA is reaching here.  We do not believe
fundamentally that a PEL of 50 µg/m3 is technologically feasible right
now in the construction industry.  And even if and given, yes, OSHA can
be technology forcing, we don't think that there is any evidence out
there that we can get to that level based upon all of these, as well as
other individual reasons.

		In our written comments, we talk about each individual activity that
OSHA looks at in its tech feas analysis, and we're not going to belittle
that -- I mean belabor that here.  I did want to bring one example,
though, actually a couple of examples about some of the questions and
concerns we have about the individual tasks that OSHA has identified
here in its tech feas analysis.

		What I want to talk a little bit about is rock crushing machine
operators and tenders.  And one thing I want to talk about is
tuckpointers and grinders, because I think it shows a little bit of a
difference of approach that the Agency has taken with respect to tech
feas that is useful to highlight.

		Let's talk a little bit about what OSHA has done with rock crushing
machine operators and tenders, okay.  That's one of the tasks that OSHA
has looked at.  And, essentially, OSHA concluded that for these
particular -- this particular task, operators and tenders, that it is
technologically feasible for folks to get to the proposed PEL of 50 with
a combination of three things.  And I say folks, I really mean
operators, because with tenders, which we'll talk about later, OSHA
really has no data to support that finding.

		But, essentially, it says for operators, you can get to the 50 µg
level if you do three things.  If you use a climate-controlled
protective enclosure, okay, that's number one; if you use an effectively
designed and maintained water spray system, that's number two; and,
number three, the operator is able to spend at least 85 percent of his
or her shift in the enclosure.  So if all three of those things take
place -- if all three of those things take place, OSHA says you can
reach a PEL of 50, okay.

		Let me just say, though, parenthetically, OSHA does say in its tech
feas analysis even with that, there are some instances where respiratory
protection is needed in the form of a haz mask.  This is what
essentially, in our view and our take, OSHA has relied upon to come up
with this finding.  And let's talk about what they have done for
operators.

		Okay.  In large measure, OSHA relies on a site visit that it conducted
with a stationary crusher, okay.  They went out to one site, looked at a
stationary crusher, which did the following, it used a fine mist of
water spray with multiple water spray nozzles, and it says in this
particular study that this employer checked the nozzles and the spray
frequently and replaced them as needed.  Okay, so you've got a situation
where OSHA relies on a stationary crusher using wet methods that were
presumable well maintained.

		OSHA also says that the sampling, itself, was performed on a muddy
day.  Okay, it was wet conditions, so it had been raining.  It was
muddy.  And OSHA says, look, that probably kept the silica exposure
down.  Despite all of that -- despite all of that, for the operators,
OSHA concluded that, and based upon the readings, that the exposures
were above the PEL.  OSHA has got a situation here where you've got wet
methods that are used, okay.  You've got sampling that is performed
under environmental conditions which are going to reduce the amount of
dust.  Everything seemed to be maintained well.  And, yet, OSHA finds
that the exposures were above the PEL.  I think the level was 54 or 56
µg/m3.

		OSHA takes this study and looks at another study from India where it
was concluded that they were unable to determine if similar water spray
systems would be equally effective on equipment used in the United
States.  And concluded based upon this data that it was capable of being
done in these operations of meeting a proposed PEL of below 50.  We
don't think that data fully supports what OSHA's conclusion is.

		Then OSHA goes and talks about tenders.  Now, operators are folks that
are going to spend some time in enclosures, right, maybe they go outside
the enclosure but they are generally going to spend some time in
enclosures.  Tenders are folks who generally operate around the rock
crusher, for example.  OSHA also concludes that tenders, this particular
job category, can reach a PEL of 50.  Except this is the information
that they base that conclusion on, the exposure information available to
OSHA for rock crushers is limited to workers either controlling the
machine or alternatively controlling and tending the equipment to clear
foreign or impacted material.  No construction industry data are
available for workers strictly tending crushing machines without also
spending time operating them.

		There is a category of workers out there that are strictly tenders.
OSHA has concluded based upon no information whatsoever that this
particular category of workers can reach a proposed PEL of 50 µg in
most of the tasks most of the time.

		In our view, this simply isn't adequate to show technological
feasibility or at least to shift the burden of feasibility and any
particular enforcement action onto the employer.  OSHA simply hasn't
made its case here.

		The final thing I want to talk about relates to tuckpointers and
grinders, because I think this actually shows OSHA getting it right,
okay.  Now, as I said at the outset, OSHA concluded that technological
feasibility had been met in 10 out of 12 particular industries.  One of
those industries where it found that it was not technologically feasible
to reach a PEL of 50 was in tuckpointing and grinding.  Now, the other
one was abrasive blasting.

		The interesting thing was OSHA, it seemed to us, and we're happy to
engage in a discussion on this, that it took a different approach to
tuckpointing and grinding.  And that is in this situation it assumed
non-ideal conditions in the construction environment, exactly what the
CISC thinks OSHA should do for all aspects of the tech feas analysis.

		Essentially, OSHA had data and had studies that showed that in certain
circumstances you could reach below 50 when you're performing
tuckpointing and grinding.  But then OSHA said something that we
fundamentally believe, and that is that construction sites do not
represent ideal conditions and you cannot take this one study that was
done in ideal conditions and assume that it is going to be applicable in
all other types of tasks and operations.

		We believe that what OSHA did with tuckpointing and grinding in
concluding that it was not technologically feasible to reach that level
is exactly what OSHA needs to do and should have done with respect to
all of the tasks.  Unfortunately, we don't think that OSHA has
consistently applied that same methodology, and as a result, frankly,
OSHA is being too aggressive in determining that it is technologically
feasible to reach the level of 50 in most operations most of the time.

		Tuckpointing, we believe OSHA got it right.  Now, interestingly, OSHA
did also happen to conclude that it was not technologically feasible to
reach a PEL of 50 in tuckpointing.  But it's key how OSHA did the
analysis there in assuming non-ideal conditions.  That's what the Agency
needs to do throughout.

		That's the tech feas aspect of our presentation.  The second aspect
obviously of OSHA's burden, not just to prove that something is
technologically feasible, but also that it is economically feasible to
comply with the rule and the proposal.

		The Construction Industry Safety Coalition contracted with Stu
Sessions from Environomics to discuss those issues and analyze those
issues, and so I'm going to turn it over to him to walk us through that.

		MR. SESSIONS:  Thank you, Brent.

		JUDGE SOLOMON:  How much time are you going to take, Mr. Sessions?

		MR. SESSIONS:  My presentation is quite lengthy.  I'll take an hour.

		I want to apologize starting out.  I'm getting over a cold, and I'm
not sure that I'm going to be able to speak comfortably for a full hour,
but I'll give it a try.  With some water here, that'll help.  And I
apologize also for the level of detail of this presentation, but OSHA's
analysis, economic analysis is incredibly detailed, and it deserves a
great deal of scrutiny and every effort to make it as good as possible.

		Again, I'm Stuart Sessions.  I'm the President of Environomics,
Incorporated, a consulting firm located in Bethesda, Maryland.  I'm an
economist.  I've got more than 35 years of experience in analyzing the
economic impacts of regulatory and policy issues involving the
environment, occupational health, and energy.  I've worked many years
for both government and private industry.  I have consulted for both
government and private industry on these issues.  I've done previous
analytical work, several years' worth of work on the crystalline silica
regulation.  I have worked previously on hexavalent chromium, and I have
worked also on potential OSHA standards for beryllium and noise.

		I'm testifying, as Brad said, on behalf of the Construction Industry
Safety Coalition, which has supported my work.  My testimony focuses on
the cost and economic feasibility of the proposed standard for
construction.

		In a sense, my testimony is an interim report on my work.  My work is
not completed.  I have not yet done all the work that the coalition has
asked me to perform.  And so I am reporting on the results to date.  I
will complete the report and complete the work and present a final
report in the post-hearing comments.

		Today, I am specifically going to cover four topics.  Number one, nine
specific changes that I recommend that OSHA implement in the Agency's
analysis in which the Agency estimates the cost of the proposed rule for
the construction industry.  This will be a very detailed critique of
what OSHA has done and how they can improve the analysis.

		Secondly, I am going to report in much less detail on where we stand,
where I stand in re-estimating the cost of the rule.  Essentially, we're
attempting to take OSHA's cost estimates for the rule and rework them so
as to reflect these nine particular changes that we are proposing.  And
that work in particular is not yet complete, so I'm going to give kind
of a partial report on where we stand in re-estimating cost.  So more
detail on what OSHA ought to be doing or what we would like OSHA to be
doing in costing, much less detail on what we have done thus far.

		Expanding a bit, my third and fourth topics are essentially going
beyond cost, what are the economic impacts of this proposed rule on the
construction industry.  And, again, on that topic, I bifurcate into two
subjects, one, some detail on suggestions about how OSHA ought to be
revising their economic impact analysis, how they ought to be revising
their assessment of economic feasibility for the industry, and much less
detail on the results to-date as we attempt to redo and improve OSHA's
analysis and the results we're attempting to find or we are finding.

		So getting into the details of the first issue, improving OSHA's cost
analysis, I have said I'm going to go through nine detailed suggestions.
 And, again, I apologize for the detail, but here we go.

		Number one, OSHA, in our view, omits at least 1½ million construction
workers from the cost analysis.  OSHA's cost analysis is based upon
protecting workers.  In many ways, the cost analysis is a function of
how many workers need to be protected.  And, in our view, OSHA has
missed an awful lot of construction workers who routinely perform tasks
that expose themselves and potentially others to crystalline silica.
And the tasks these construction workers perform that have been omitted
from the analysis are very, very similar to the tasks that OSHA does
include in the analysis and the workers that OSHA includes in the
analysis.

		So some of the admitted occupations, plumbers and helpers; roofers, I
say actually it should be roofers and helpers; electricians and helpers;
plasterers and stucco masons; tile and marble setters.  Maybe, we
haven't yet in our analysis, in attempting to redo it, included HVAC
installers, mechanical contractors, but I think there is a good case for
potentially including them, also.

		All of these construction trades, if you will, all of these sorts of
workers perform exactly the same sorts of activities as to other
categories of construction workers that OSHA does include in the
analysis.  Basically, these enumerated trades here on the slide work on
a wide variety of silicate-containing materials, brick, block, tile,
plaster, stucco, stone, etc.  And they work on it by drilling into it,
they cut it, they break it, they abrade it, they finish it, they scarify
it, and they generate silica dust.

		A plumber will do it just as a carpenter, which OSHA does include in
the analysis; a plumber will do it.  In fact, one of the highest
exposure samples that OSHA has in their database is a plumber working in
a building, operating with what's called a stationary, a portable
masonry saw, and that is OSHA's highest single exposure data point for
this activity, operating a masonry saw, and it is a plumber.  And this
is an occupation that OSHA has excluded from the analysis.

		So what is our evidence that these omitted trades in fact conduct
these sorts of activities that generate silica?  Well, the first piece
of evidence is you talk to any of these tradesmen, you talk to a
plumber, you talk to a stucco mason, and they'll say, oh yeah, oh yeah,
yeah, we cut and abrade silica-containing materials.  The plumber says
he cuts into concrete floors to put in drain lines and the stucco mason
says that, yeah, he finishes stucco, and he applies a grinder to it, and
he generates silica dust.  So talk to them.  They do it.

		Number two, OSHA's source for the initial list of tasks that they
analyze that sort of is the starting basis for the entire analysis is a
document called, RSMeans Heavy Construction Cost Data.  And this is a
standard reference in the industry for estimating the cost of performing
various construction jobs.  And OSHA picks out of this RSMeans Heavy
Construction data source a variety of activities, and they use this
source to sort of estimate the fraction of the activity that consists of
labor and the fraction that consists of materials, and they really start
the analysis with this data from the heavy construction book.

		OSHA did not look at the RSMeans Residential Construction book, nor
the RSMeans Repair and Remodeling book.  These two books contain any
number of additional construction tasks that construction workers
perform that generate silica that are rather different in nature from
the ones in the heavy construction book.  And so in the residential
book, you find plumbers drilling into concrete.  You find stucco masons
working on the stucco exterior of houses.  You find tile and marble
setters cutting countertops and grinding countertops, and generating
silica dust in that manner.  So a second point is basically OSHA has
looked at too limited a set of data sources to capture the full range of
activities that construction workers perform that generate silica.

		A third sort of source is OSHA's own -- not OSHA's own, OSHA
participates in the Silica-Safe website.  And this website lists a wide
variety of construction materials and then lists a wide variety of
activities that get performed on these materials that generate silica.
And then if you drill down into the website, it tells the person
accessing the website how they can control this activity on this
silica-containing material, how they can perform it safely.  Well, so
this is a huge list of construction materials and activities, only a
fraction of which are covered in OSHA's analysis.  And all of these
activities are conducted by a much wider set of trades than OSHA
considers in the analysis.

		A final data source is just plain exposure data that exists on these
omitted trades when performing activities that generate silica.  And if
you do a search of the PEA and you put in the word plumber, you will
find a number of exposure data samples that OSHA has that show plumbers
being exposed to substantial contributions of crystalline silica and, in
fact, as I said, the highest single sample result that has been found
when this plumber was working on multiple floors with a stationary
masonry saw.

		Another data source, there is a list of the reference, it's a set of
Canadian researchers who have assembled the available data worldwide on
construction exposures to silica and have put it into a database.  And
in contrast to OSHA's database of exposure samples, this Quebec database
is searchable.  And so you can search the Quebec database for a plumber,
an electrician, for tile setter, etc., and, yes, you find loads of
samples where they are exposed.

		So, basically, the first issue is OSHA has missed a lot of activities
and workers that do, in fact, generate silica that will be covered by
the rule.

		How many of these people are there?  Well, I don't want to go through
this chart in total, but the top half of the chart is some of the sorts
of construction occupations that OSHA does include in the analysis and
the bottom half is some that we contend do raise silica dust and whom
OSHA has omitted from the analysis.  And the net result is the omitted
trades add up to when -- let me back up a little bit.

		A key issue in the analysis is how much time each of these trades
spends doing activities that generate silica.  And the second to the
right column are the estimates of the percentage of time that different
construction trades are key in instigating a task that generates silica.
 So, for example, OSHA estimates that brick masons and block masons
spend 22 percent of their time initiating and performing tasks that
generate silica.

		Well, the reason that number is important is because ultimately OSHA's
cost analysis depends partly on the number of workers who might, at some
point, do a silica-generating job, but it depends very extensively on
the amount of time that the silica-generating job occurs.  And,
ultimately, much of OSHA's analysis depends upon the full-time
equivalence, the worker full-time equivalence that involved generating
silica.  And so, essentially, in OSHA's analysis, the Agency takes the
percent of time and multiplies it by the number of workers in order to
get the FTE that are involved in doing the job.

		And, kind of interestingly, OSHA has the last row in the OSHA section
of the table, carpenters, in OSHA's assessment, spend one percent of
their time on average doing a job that generates silica, and that job
specifically is drilling holes into concrete or other masonry in order
to affix anchors, in order that you can attach something to the concrete
or the masonry.  And, typically, carpenters are drilling into concrete
so that they can attach wood framing to continue with construction.

		Anyway, carpenters, in OSHA's estimate, spend one percent of their
time doing that sort of thing.  And you get 7,800 FTEs of carpenter time
doing that.

		Well, we have taken a crack at making similar judgments about how much
time the omitted professions spend doing silica-related jobs, and for
some of them, plumbers, they don't spend very much time generating
silica, but they do spend some time.  They not only drill into concrete,
they cut concrete.  And plumbers do some amount of sort of demolition
work on plaster and concrete and other things in prepatory for
remodeling and things like that.

		Anyway, we have estimated that plumbers spend three percent of their
time.  And that result is that OSHA includes in the analysis 636,000
FTEs at risk who do silica-related jobs and we think there is a good
case for adding at least 103,000.

		And I'll speak to the very last line in our part of the table, which
is carpenters.  We think carpenters do more that generate silica than
drill into masonry for the purpose of affixing anchors.  Carpenters also
drill through masonry for various reasons.  Carpenters also saw masonry.

		My next door neighbor just last week, they're doing a remodeling job,
their carpenter was out there on a scaffold, outside their brick kitchen
with a reciprocating saw, and he was sawing through that brick in order
to expand the window opening.  And this is a remodeling task, very
standard, expand the opening for a door or window.  And he's cutting
through brick on the outside, and he's cutting through actually a
plaster wall on the inside with this reciprocating saw.

		And OSHA doesn't cover the carpenter doing that sort of activity.
They don't have carpenters doing any sawing that generates silica.  So
we think carpenters do more than drill to affix anchors.  They saw.
They do additional things.  So we have added -- OSHA has 7,800 FTEs of
carpenters in the analysis.  We have added 3 times as much, 23,000 FTEs
of carpenters.

		So Point 1 one was omitted activities and workers.  Point 2, and this
is a complicated one, OSHA's analysis estimates far too little need for
engineering control equipment.  And I am going to state these couple of
propositions and then I'm going to explain them.  And I don't think
people will understand them when I just state them.

		OSHA essentially provides in the analysis enough control equipment to
exactly match the duration of time that the covered workers spend
generating silica.  So when I said that OSHA gives the carpenter one
percent of his time doing something that generates silica, OSHA provides
an amount of control, the control for this carpenter silica-generating
activity, exactly equal to an amount of time which is one percent of all
carpenter time in the United States.

		So the time that the control is costed out, made available and costed
out in OSHA's analysis, matches the amount of time the worker does the
silica-generating activity.  To the contrary, I think that this issue
needs to be thought about in a different way.

		Yes, the carpenter generates the silica.  But you can think of it also
as his tool generates the silica.  It is his using the drill in OSHA's
case that generates the silica.  And in controlling -- and the
particular controls for this activity involve equipping the drill in a
different way.

		Well, the way you need to cost this out is not think of how much time
the carpenter spends, but think about equipping the tool and the
carpenter has to have that tool equipped to perform the task right any
time he is going to use the tool.

		The carpenter goes to the worksite in the morning, and he may or may
not drill holes that day.  He's got his saw out in the truck.  He has to
have the saw in the truck otherwise he can't do the range of tasks he's
going to do.  If he has any possibility of doing drilling work on that
day, the drill out in the truck has to have the control available.  He
can't, when he starts to drill a hole, go find the control equipment
somewhere or go borrow it from somebody else.  The control has to be
available with the tool any time you're going to do the job that may
require the tool.

		So, in a sense, just as the tool is going to sit inactive for a long
time, the carpenter may not drill today, he's not working in the
basement where there is masonry, he's working up on the framing and he
isn't drilling any holes into masonry.  Tomorrow, he is going to be
working in the basement and he is drilling holes in the masonry.  He
needs the tool tomorrow.  In fact, the tool is in the truck every day.
The control has to be in the truck every day.  And you have to cost the
control to go with the tool.  The control has to be available when the
tool might be used.  The control is not available -- it will not work
if the control is available only specifically when the carpenter drills.

		Sorry to go into a little bit more detail on this.  The particular
control that we are talking about here for the carpenter drilling is
something called dust shroud vacuum system.  Basically, there is a kind
of a housing at the tip of the drill that you can attach to the drill.
And it attaches to a hose and the hose runs back, and the hose is
attached to a 10 to 15 gallon HEPA vacuum.

		And, essentially, when the carpenter is going to drill, what he does
is he attaches this dust shroud to the drill.  He then attaches the hose
from the attachment on the drill to the HEPA filter.  And he goes over
and turns on the HEPA vacuum, and then he drills his hole.  And then he
may -- then he turns off the vacuum and then he may go and drill a hole
over in some other part of the house that he's working on, and he drags
the vacuum over there and he reattaches the piece to the drill, etc.

		The way OSHA costs this control out is OSHA figures out the cost per
day for this control, and it turns out to be $4.96 between the dust
extractor and the HEPA vacuum.  And the way OSHA figures that out is
they take the cost of what does it cost to buy these two pieces of
control equipment and then you amortize the cost of purchasing that over
the number of years that this control equipment will still be
functional.  And I think the dust shroud OSHA assumes is good for a
year, wears out after a year.  The HEPA vacuum is good for two years.
So you amortize the cost over an assumed 150 days of use for each year
for this equipment and it comes out to be $4.96 per day for this control
equipment.  That's the way OSHA costs the control for carpenters
drilling holes.

		Okay.  The charts on the right side of the table are who drills and
how much do they drill.  Well, okay, I have said there are 783,000
carpenters.  Other people to drill are carpenters helpers, according to
OSHA.  And each of them spends one percent on average of their time
drilling.  So the FTE that are involved in hole drilling is a total of
86,111 FTEs, and then OSHA figures the cost for this control is you take
86,111 FTEs, an FTE works on average 250 days a year, you multiply the
FTEs times the 250 days per year, times the $4.96 per day, and OSHA
comes up with a cost per year for controlling hole drilling of $11
million a year.

		Okay.  That's the way OSHA does it.  Well, okay, does that fit the way
in fact this task is actually done?  Possibility Number 1, who drills
holes?  Well, let's say that Possibility Number 1 is carpenters are
incredibly specialized and 1 percent of them spend all their time
drilling the holes and 99 percent of them spend none of their time
drilling holes.

		In this case, OSHA has got it right.  There are 8,611 carpenter
drills -- there are 86,111 carpenters who do drilling.  Each of them
has a drill.  You need to equip each drill with the controls.  And that
$11 million a year is the right number, if carpenters specialize in hole
drilling and if all the hole drilling is performed by one percent of the
carpenters.

		What happens to the contrary if there is no specialization, every
carpenter in the country at some point in the year drills holes into
masonry, how do you equip them?  Well, the answer is every one of those
carpenters has got a drill.  It is 861,000 carpenters and helpers who
have got a drill.  You need to buy 861,000 dust extraction kits and HEPA
vacuums to equip all of those contractors who, at some point, they have
their drill in the truck.  They may drill 2 holes today, no holes the
next day, no holes the next day, 20 holes the next day.  And they have
to go out to the truck to get their drill.  And that drill has to have
the controls with it.

		So, in this case, which is more like reality I have to say, where most
every carpenter does this silica-generating activity, you need to
control vastly more control equipment than OSHA assumes.  You can't
provide the controls only for the fraction of time that the carpenter
spends drilling.

		This guy drills one hole in the day, two minutes.  You know, you can't
cost that out as two minutes worth of needing the drill control.  His
drill needs to be controlled no matter how much time he is going to
spend drilling.

		So most of these tasks are of the nature that they are not specialized
tasks, you know, every carpenter drills holes.  Almost every carpenter
will saw into masonry.  Almost every plumber will drill holes into
concrete.  Almost every plumber will do some sort of demolition on
plaster in preparing for, in remodeling jobs.  You need to equip a
vastly larger number of tools and workers than what OSHA says and then
what OSHA predicts.

		And basically the issues that OSHA needs to think about in getting
this aspect of costing right is (a) what fraction of all employees of
this job category do the job we're talking about?  Is it 100 percent of
carpenters who do it or is it 1 percent of carpenters?  And that's a
different issue than what percentage of total carpenter time.  It's does
a carpenter do this or not during the year?  They need to think about
how the work is distributed among the full set of employees.

		Number two, they need to think about what is the size, and OSHA does
think about this, what is the size of the crew that does the job?  Maybe
the crew involves several workers with a single tool.  And, in fact,
many of the tasks do involve several workers with a single tool.  So, by
providing the control for the single tool, you essentially protect all
of the workers who are performing the task.  And that's a crew size
issue and that makes sense.

		Another issue is to what extent can the tools be shared across crews.
Is it possible for a carpenter crew that is doing hole drilling here to
share the control in some manner with another carpenter crew that is
doing hole drilling?  The answer there is, on that one, no.  It's
probably pretty unlikely to be able to share.  The carpenter that's
drilling in the next house is not, you know, we're doing construction.
We're making homes in a new subdivision, and there are carpenters
working in a number of houses next to each other.  No, they are not
going to run over to the carpenters in the other houses and borrow their
control drills in order to drill for two minutes and return it.

		So another issue is sharing.  But, anyway, these are the sorts of
things that OSHA needs to think about to kind of get this issue right.

		Issue Number 3, this is a very complicated one, and I don't want to go
through this in detail.  Basically, the commentators back in 2003 have
taken OSHA to task for using RSMeans that has very high labor rates.
And I think some of the commentators that raised this issue before sort
of didn't understand exactly how OSHA was doing the analysis.

		My point is entirely different.  The different point is when you use
high labor rates in one stage of the analysis early on in figuring out
the fraction of the job cost that's attributable to labor, as opposed to
the fraction of the job cost that's attributable to tools, when you use
high labor rates, you underestimate or you get a low fraction of job
cost that's attributable to tools.

		If I figure the carpenter is getting paid $50 an hour, as opposed to
the $25 that arguably he may be getting, the fraction of the job cost
that is labor is high when you use the RSMeans wage rates.  Well,
eventually, and OSHA in the analysis picks up and uses this information
on the fraction of the job that's labor, as opposed to the fraction of
the job that is tool.  And I contend that as OSHA starts this analysis
out, they come up with low fractions attributable to tools because
they've used the high labor rate.

		Well, at the tail end of the analysis, OSHA undoes this and OSHA
essentially uses a different labor rate in figuring out the total value
of the task.  And OSHA switches back to a different data source on labor
rates, which is the Bureau of Labor Statistics, and uses much lower
labor rates.  And the net result is that OSHA's fraction of the job that
is tool and that needs to be controlled as a result of the first step in
the analysis is way too low.  And that gives wrong answers when OSHA
takes the tail end of the analysis and uses that low tool fraction at
the tail end of the analysis.

		And I won't flip back to the previous page, but I had a number of,
what was it, $10,700 -- $10,700,000 for the carpenter tool job that
OSHA figures.  In fact, OSHA figures only less than $9 million.  OSHA
would figure about this $10.7 million if they did it right, but they
figure only about $9 million per year because of this problem in
shifting with labor rates.  And it is about a 15 percent, 15 to 20
percent error in figuring out the cost of engineering controls.  Enough
said about that.

		Point 4, another aspect of the cost analysis is I've been talking
about equipping tools as part of the engineering control cost, equipping
tools with the controls.  Another part of the analysis is what OSHA
calls productivity penalties.  Essentially, in performing the task, the
task may well take longer because of the controls you are using.  So in
the case of the carpenters with the dust extraction equipment on the
drill and the HEPA vacuum, the carpenter takes a little bit longer to do
his hole-drilling task because he's got to attach the equipment to the
drill.  He's got to attach the hose to the HEPA vacuum.  He's got to
walk over before he drills and he's got to turn on the HEPA vacuum.
Then after he drills, he's got to turn off the HEPA vacuum.  He's got to
periodically empty the HEPA vacuum.  He's got to worry about the vacuum
hose from the drill to the vacuum getting kinked and all that sort of
thing.  So the job takes a little bit longer.

		And OSHA has thought hard about this issue and has included costs to
reflect this productivity penalty, this in a sense the job taking longer
to some degree when you use controls.  OSHA's productivity penalties
range from -- they are figured out in terms of percent and they range
from zero to five percent depending upon the nature of the job,
depending upon the specific job, and sort of in a sense how onerous the
controls are.

		Okay, that's not an unreasonable approach.  We, in fact, the coalition
did an extensive survey of its membership on a variety of economic and
work practice issues.  And we asked a lot of construction companies
questions about this productivity penalty idea and they came up with two
conclusions which suggest modifying -- which would suggest OSHA
modifying the approach they take in handling productivity penalties.

		A first suggestion is that they think of productivity penalties as
involving both a fixed cost and a variable cost component.  So the fixed
cost is sort of setting up the control equipment at the start of the
day, taking it down at the end of the day, and cleaning up if the
controls have caused a mess that you need to clean up.  And in the case
of wet methods, in particular, there are definitely some cleanups that
are needed when you do cutting and sawing wet as opposed to doing it
dry.

		In some other tasks, in fact, there may be a productivity net gain in
terms of cleanup from using a control.  So it could go either direction.
 But one strong suggestion is think about the penalty as consisting of
two parts, a fixed cost which is setup, takedown, and cleanup, and a
variable cost which reflects the percentage of additional time that the
task takes.  And the variable cost, it is right to think about that as
applied to the FTE that is spent doing the job.

		So, in a sense, OSHA has I believe done right in applying a percentage
productivity penalty to the FTE that actually is spent drilling holes to
the extent that the penalty is a variable increase in the time that is
spent, that is required to drill the holes, to the extent while drilling
the hole, the carpenter has to go back and turn on and off the vacuum,
and move it around in the basement where he is drilling holes here,
versus things like that, that increases the amount of time that he
spends doing the task and that increases as a percentage the FTEs, the
total duration of FTE that is spent doing the task.  That is correct.

		But setup and takedown is different.  That is, in a sense, a fixed
cost, and you don't apply that to the FTE spent doing a job.  You've got
to think about exactly how much each day is spent on setup and takedown
for each of the different tasks and each of the different controls.  And
that is a fixed cost and that operates in a different manner.  Okay, so
that's Point 1.

		Point 2 is the other sort of point we heard loud and clear from the
industry in commenting on this productivity penalty issue is that you
not only need to think about the productivity penalties that are
typically involved in typical conditions when you do the job, but you
need to think about essentially OSHA's Table 1 prescribes that you use
these -- if you're going to use Table 1, prescribes that you use these
controls in every instance when you perform this at-risk task.

		So in every instance when you are drilling holes or cutting concrete,
if you're using Table 1, in every instance you have to use these
controls.  Well, in some fraction of these instances, the controls are
hellaciously difficult to use.  You can't use wet methods at all easily
when you are working in building houses where the utilities are not yet
in and the water is not yet in.  You can't hook up a hose to run a wet
masonry hose if there is no water available.  So, in many instances,
situations are not such as to make it easy to go find the water for wet
methods or, in fact, to go find electricity to use the drill with the
shroud and the HEPA vacuum.

		We had one commenter, who works in parking garages all the time, and
they do a lot of concrete work in parking garages, and they are
refinishing concrete, and cutting slabs out, and things like that.  And
the guy says a major problem is finding places to hook the extension
cords in the parking garages.  You know there aren't many outlets.  And
you don't want to run the extension cord from the outlet, 40 yards over
there across the parking lot where people are going to be driving in and
out of the Safeway parking lot.

		It's a difficult job to get power to some instances.  It's a difficult
job to get power up to tuckpointers who are doing work on scaffolding,
on the 6th floor of a masonry building.  It's a difficult job to get
power to the upper floors of any number of commercial buildings under
construction before the utilities have been put in.  It is a difficult
job to use wet methods outdoors in the winter, in Colorado or North
Dakota.

		And, basically, the point is don't think in estimating productivity
penalties just about the typical situations, but you in a sense need to
take consideration of the extreme and more difficult circumstances.
And, you know, I'm thinking of some kind of decision tree approach where
what percentage of the outdoor construction work is conducted in the
winter, in the north.  Is it 15 percent?  I don't know.  So 15 percent
of the time, there is going to be big problems in using wet methods.
And factor that in and sort of do an expected value sort of productivity
penalty that reflects the range of circumstances over which -- how am I
doing?

		MR. HAMMOCK:  You're about, I would say about 35 minutes in.

		MR. SESSIONS:  Well, okay.

		JUDGE SOLOMON:  It is 12:01, and I figured from the last time it would
be about 12:20, based on what you had said previously.

		MR. SESSIONS:  Okay.  Well, I'm going to skip a couple of slides about
specifically what we are thinking about productivity penalties, and we
will put this in a full report.  And we'll document it, etc.  And in
many cases we kind of agree with OSHA on productivity penalties.  In
some cases, we think they ought to be different.

		Okay, I'll try to move fast.  Point Number 5, productivity penalties,