exposure?  Is that an appropriate thing to do, do you think?

		DR. MIRER:  I'm not -- I'm pausing to think before I say something.
I don't -- you know, I think our practice over time has been to do them
all the same so you could compare the results the same way.  And so you
can calculate -- you can do any calculation you want; the question is
where does it fit into the regulatory scheme?

		MR. PERRY:  Okay.

		DR. MIRER:  And in this case, there's so much head room between, you
know, significant risk and what you're predicting that it might not
matter, but for another example it might matter a lot.  And you remember
the statute said no worker and then it was sort of redefined by the
courts to say, well, a couple of workers shall suffer the adverse
effect.  So, you know, that's sort of my response.

		MR. PERRY:  Yeah, and I wasn't talking about would it be appropriate
for OSHA to do this for purposes of evaluating significance of risk,
which is when we do -- under Section 6(b)(5) of the Act, we do use an
assumption of 45 years to represent exposure over a working life.  But
if we wanted to, say, estimate the benefits of the rule based on more
realistic assumptions of job tenure and exposure, could I use these same
risk models in a life table approach to make those kinds of estimations?

		DR. MIRER:  All right, so my concern is that latency -- in terms of
measuring health effects, latency is probably more important than
duration or certainly equally important to duration.  So if we cut the
duration from 40 to 20, you -- you know, we don't have the data to go
to what the health effect would be 20 years plus 20 years of
observation.  That's my concern with launching to this.  But, honestly,
this is quite a hypothetical, and I'd like to see it written down and
figure out what --

		MR. PERRY:  Okay.

		DR. MIRER:  -- what the implications were before I tried --

		MR. PERRY:  What I might invite you to do, then, is if you would like,
we have used a similar approach like that in our benefits analysis, so
if you wanted to maybe take a look at that, at the underlying
assumptions.  I think we just assumed that the excess risk after
accumulating the exposure, and there's a lag incorporated in there as
well, just like in our risk assessment, that that would -- that
relative risk would remain constant even though, of course, the
background risk increases with age.

		DR. MIRER:  Yeah.

		MR. PERRY:  So I would invite you to comment on that assumption, if
you would.

		DR. MIRER:  Yeah, just as a personal concern, it used to be we'd say
people over 65 are the people who get cancer and therefore they're not
working, and that was before I got to be 65.  Now I take a different
attitude towards it.

		MR. PERRY:  Okay, very well.

		That's all we have, Your Honor.  Thank you.

		JUDGE SOLOMON:  Ms. Lindberg, do you have anything else?

		MS. LINDBERG:  Nothing further, Your Honor.

		JUDGE SOLOMON:  All right.  So we're going to bring up the AIHA and
the ASSE panel.  I'm not going to go off the record in doing that
because we are pressed for time, like I said.

		Now, I didn't ask the panel any questions, and what I'm about to say
really goes to form and not substance, but there were some issues that
were brought up that are near and dear to my heart, especially
retaliation, because about half my time is spent hearing whistleblower
cases for the Department of Labor.  And the investigating entity in all
of those cases is OSHA, so those cases cut across not only the labor
statutes; those cases cut across a number of other statutes.  We have
jurisdiction over approximately 23 other forms of whistleblowing, and
among those are the environmental whistleblowing statutes.

		Now I'm also a member of ACUS, which is the Administrative Conference
of the United States, and ACUS has been looking at the issue of multiple
agency concurrence -- it isn't that there's concurrent jurisdiction,
but cover the same territory.  And they actually looked into science,
how science is evaluated generally across the government, and they made
some rulings about that.  So, you know, I'm not in a position to tell
anybody what to do, but I mean I didn't see any comments about that.

		And, lastly, this is sort of a commercial.  The American Bar
Association Administrative Law Section is putting on a conference next
week, and the subject is rulemaking.  Some people nodding their heads,
for the record.  And we're going to be here, so we won't be able to be
there, but it could very well be that there will be some valuable
information.  So I thought I would just state that for the record.

		So let me know when everybody's ready here.

		Do we have anybody else that's coming forward?

		So we have the entities, and we have two witnesses.  Would you
introduce yourselves?

		MS. ABRAMS:  Yes.  Good morning, Your Honor.  Good morning, Panel.  My
name is Adele Abrams.  That's A-d-e-l-e A-b-r-a-m-s.  And I am
representing the American Society of Safety Engineers.

		DR. ANNA:  And I'm Daniel Anna, A-n-n-a, Vice President of the
American Industrial Hygiene Association.

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

		DR. ANNA:  I guess I will.

		All right, thank you.  As I said, my name's Daniel Anna.  I'm Vice
President of the American Industrial Hygiene Association, certified
industrial hygienist, certified safety professional, and have been
involved in occupational safety and health for nearly 25 years.  It's a
privilege for me to be here to represent AIHA and our members at this
public hearing.

		AIHA is the premier association serving the needs of professionals
practicing industrial hygiene in industry, government, labor, academic
institutions, and independent organizations.  The AIHA mission is to
promote healthy and safe working environments by advancing the science,
principles, practice, and value of industrial and occupational hygiene.
Our members recognize that a healthy workforce is essential to the
success of our American industry, our national economy, and our position
in the global economy.

		AIHA submitted extensive comments that appear in the federal docket,
and I'd like to just use this opportunity to summarize some of our key
points.

		As stated by OSHA in the announcement of the proposed rule, exposure
to silica can be deadly, and limiting that exposure is essential.
Ultimately the question we posed to our members is:  will this proposal
result in improved employee health and safety?  AIHA answers a
resounding yes and supports OSHA's efforts to move forward with the
proposed rule that helps to protect worker health and reduce illnesses
related to silica exposures.

		AIHA provided responses to questions raised in the Notice of Proposed
Rulemaking published in the Federal Register.  These responses included
the following comments on several aspects of the proposed regulation:

		The proposed standard defines respirable crystalline silica as
airborne particles that contain quartz, cristobalite, and/or tridymite,
and whose measurement is determined by a sampling device to meet the
characteristics for respirable particle-size selective samplers
specified in the International Organization for Standardization, "Air
Quality - Particle Size Fraction Definitions For Health-Related
Sampling."  It's a great title.

		This definition would consider the entirety of a sample of dust
containing any miniscule but detectable quantity of quartz,
cristobalite, or tridymite as respirable crystalline silica.  So AIHA
recommends that OSHA change the beginning of that definition to read:
"Airborne particles of quartz, cristobalite, and/or tridymite," and then
continue with the current definition that's proposed.  That would
clarify that the silica content is what is considered when determining
the airborne concentration.

		Compliance with the PEL should be required until sufficient objective
datasets are assembled to account for the variability of workers' tasks
and materials.  Then acceptable work practice and workplace controls can
be assigned to tasks and activities.  When the performance of these
controls are verified, techniques such as work permits, job
observations, and workplace assessments can be conducted real time to
see if the controls are being properly administered.  Employers
implementing strategies other than monitoring should have researched the
control appropriateness and developed their own strategies to ensure
that the controls are working on a day-to-day basis.

		The AIHA endorses the concept at Table 1, and the options it provides
to the construction contractors.  Although AIHA encourages air
monitoring as an important part of an overall worker exposure assessment
program, the reality is that potential worker exposures on a
construction site are constantly changing.  By the time samples are
collected and analyzed, tasks may have been completed and workers have
disbursed to other jobs, which may minimize the usefulness of monitoring
results.  Use of Table 1 allows contractors to anticipate and implement
protective measures from the start of the project and to avoid the
expense of air monitoring that would provide only minimal information.

		Table 1 also allows contractors to anticipate control needs and factor
costs into a job bid to produce an awarded contract that will contain
needed resources to perform the job with reduced silica exposures.
Smaller contractors without dedicated safety professionals will benefit
because the requirements needed to properly protect workers are more
clearly defined.  Project owners will be able to evaluate bids to ensure
that contractors have incorporated the cost of silica control into their
proposal.

		Many silica-producing tasks on construction sites are of limited
duration during a shift.  OSHA endorses the dual-table format
characterizing exposures as either less than or greater than four hours
in duration.  This acknowledges that a limited duration exposure will
provide a level of protection by reducing a worker's eight-hour time
weighted average exposure and may reduce the cost associated with
respirator use during limited duration activities where other controls
are properly implemented.

		While AIHA endorses the use of Table 1 as a compliance option, there
are six recommendations that we ask OSHA to consider:

		First, several engineering and work practice control methods state
that the equipment should be operated such that no visible dust is
emitted from the process.  AIHA is concerned that this is a subjective
determination and recommends that this requirement be removed.  The
competent person operator and employer are responsible for ensuring
proper use and functioning of the equipment and should evaluate controls
on a case-by-case basis to determine if excessive dust is being
released.

		Second, several of the tasks listed in the table do not require any
supplementary respiratory protection when the task duration is less than
four hours.  AIHA recommends that for any task in Table 1 where no
respirator requirement is listed, that OSHA require the employer to
provide a minimum half-face piece respirator upon employee request or
when a competent person determines that respiratory protection would
indeed be needed for that task.

		Third, because engineering and work practice control methods play a
critical role in exposure control, AIHA recommends that OSHA require the
employer to have a competent person whenever Table 1 is used for
compliance purposes regardless of whether a respirator is used or not.

		JUDGE SOLOMON:  You're at the end of your time, Mr. Anna.

		DR. ANNA:  I thought we had 10 minutes.

		JUDGE SOLOMON:  Ten minutes, right.

		DR. ANNA:  Okay.  May I finish the comment?

		JUDGE SOLOMON:  Sure.

		DR. ANNA:  All right.  We'd also recommend that manufacturers'
instructions are followed for any controls.

		We would recommend that respirator requirements be performance
oriented and based on the assigned protection factor.  What's in there
now we're concerned might lead employers to think that that is the exact
respirator that must be used.

		With medical surveillance, we'd ask you to look at the asbestos
standard and look at the frequency related to medical testing for
younger workers.  We'd also have you consider the 30-day trigger for
medical exams in construction, since that population can be transient.

		And, finally, we would like to see that within the requirements for
industrial hygiene and industrial hygienist that you note that there
should be certification of the industrial hygienist, at least have a
certified industrial hygienist see the professional and technical --
have professional and technical oversight over those professional
activities that people are doing to monitor airborne exposures.

		So thank you for this opportunity.  We appreciate the chance to work
with OSHA in helping achieve a mutual goal of protecting our American
workers.  Thank you.

		JUDGE SOLOMON:  Ms. Abrams.

		MS. ABRAMS:  Yes.  Thank you.

		Good afternoon now.  My name is Adele Abrams, and I'm an attorney and
a certified mine safety professional.  I'm testifying today as a
professional member and also the federal representative for the American
Society of Safety Engineers.  But I am a professional member of ASSE's
construction, mining, and consultant practice specialties, and I'm also
a co-author of the ASSE textbook on construction safety management and
engineering, including the chapter dealing with crystalline silica and
other occupational health issues.  And in addition to this, I serve as
the secretary of the ASTM E34 Committee, which oversaw the development
of the ASTM E1132 and E2625 standards for general industry and
construction.  These set best practices for management of crystalline
silica in the workplace and are referenced in OSHA's proposed rule.

		ASSE is an international professional society of more than 35,000
members, including safety and health professionals who will be affected
by this rule or tasked with its implementation for their employers or
for the customers or clients for whom they consult.  And ASSE previously
submitted written comments on the proposed rule, so I'm going to just
summarize the key points of those, and I'll be happy to respond to any
questions.

		ASSE generally supports the proposed rule and we commend OSHA for
addressing this issue in a manner that should reduce the incidences of
occupational illnesses that may be silica-related.  Silica overexposures
have been linked to occupational illness since the time of the Ancient
Greeks, and silica has been classified as a Group 1 human carcinogen by
the International Agency for Research on Cancer since 1997.

		While no doubt other witnesses will argue over the epidemiological
studies that form the basis for OSHA's risk assessment, ASSE agrees that
there is sufficient scientific evidence to support a reasonable
reduction in the permissible exposure limit, or PEL.  Moreover, the
National Institute for Occupational Safety and Health, NIOSH, which is
tasked under the OSH Act with making recommendations for regulatory
action and developing recommendations on exposure limits as well as
criteria documents for emergent occupational safety and health issues,
has long had a recommended exposure limit of 50 µg/m3, the level
consistent with the proposed PEL in the OSHA rulemaking.

		The action level of 25 µg/m3 proposed in this rule is consistent with
the threshold limit value for crystalline silica adopted by ACGIH.  And
while there remains some concerns about the ability to sample and
analyze workplace exposures with precision down to this action level, we
understand that this rule is anticipated to be technology forcing and
that OSHA intends to provide sufficient time so that laboratories will
be able to render accurate findings about the amount of silica contained
in samples that are used for compliance by employers as well as for
enforcement purposes.

		ASSE supports the goals of this rulemaking and believes it's a
reasonable approach and is consistent with the ASTM E1132 and E2625
voluntary consensus standards.  Under the Technology Transfer Act of
1995, as implemented by OMB Circular A-119, OSHA should consider
adopting these voluntary consensus standards where appropriate.  We note
that the ASTM standards do not include an occupational exposure limit
and they simply delineate standard practices for health requirements
related to occupational exposure to crystalline silica.

		The proposed rule places similar obligations upon employers for
exposure monitoring, medical surveillance and adoption of best
practices, and it emphasizes the hierarchy of controls, with engineering
and administrative controls followed by the use of personal protective
equipment, ranging from full-face respirators and hoods all the way down
to protective masks as a last resort after all other feasible
engineering and administrative controls have been implemented.
Protective clothing is not required, as silica hazards only concern the
respirable fraction.

		Training of workers is a critical component, as required under the
recently revised hazard communication standard and with the additional
training required under this proposed rule, and we agree with this
approach.  We do ask OSHA to reconsider the ban on job or worker
rotation as a tool for reducing worker exposure levels.

		Silica is a ubiquitous substance, and it makes up a significant
portion of the Earth's crust.  Virtually every human being on the planet
is exposed to it to some degree or another.  And while barring worker
rotation to limit the number of exposed employees certainly makes sense
in the context of highly hazardous chemicals, in some trades all workers
are going to have certain levels of exposure, and the goal should be to
use engineering controls plus other feasible administrative options,
including job rotation, to maintain exposures below the legal and
protective limits.

		ASSE supports the exposure monitoring provisions combined with the use
of objective data to demonstrate a level of confidence that respirable
silica will not be expected to be released at or above action levels
under expected circumstances.  We support using electronic storage of
data to minimize paperwork burdens, and use of industrywide data may be
helpful in making determinations.  Hopefully those in management, labor,
and the safety and health profession can all contribute to this effort.
Other reliable sources of data will include safety data sheets from
product manufacturers, prior historical sampling data under comparable
conditions, and aggregated company-wide sampling information.

		Exposure monitoring, we believe, should be done on a periodic
performance-based cycle rather than on a fixed timetable.  ASSE also
supports the task-based approach for construction activities using Table
1 references on methods of reducing construction exposures by particular
trades and functions.  And this again is similar to the approach taken
in ASTM E2625, which has other such charts that OSHA may want to look
at.  If OSHA does adopt this approach, it should also be considering
that an employer implementing all of the recommended actions will be
deemed in compliance with the standard.  OSHA could also perhaps take
this approach in a non-mandatory appendix for some of the general
industry tasks that commonly have silica exposures.

		I'll try to condense here.  We support the potential value of
establishing regulated areas and creating written access control plans.
We do recommend that OSHA define the competent person with respect to
oversight of the access control plans and we suggest having specific
training or certification requirements for this.  CSPs and CIHs are
certainly well qualified to develop and implement exposure control
plans.

		And the issue of exposure time for employees that triggers medical
surveillance needs further consideration when it comes to contingent
workers and those who are transient, as other witnesses have mentioned.
Will the 30-day exposure be per worksite?  Will it follow the worker?
How will a subsequent employer know what the worker's prior exposures
have been during the earlier part of the year?  And without clear
guidance, this can become a documentation enforcement and legal
nightmare.

		Finally, we encourage OSHA to implement timely guidance and compliance
assistance, including guidance in multiple languages to assist employers
and workers for whom English is not a primary language.  And the
excellent outreach that OSHA has done on its revised hazard
communication standard can serve as a model for this.

		So we thank you for the opportunity to present our testimony here, and
we look forward to working with OSHA to bring a robust and effective
silica standard to fruition.

		JUDGE SOLOMON:  Okay.  I'm going to ask how many people want to
question?  There are quite a few people, so starting at Dr. Schneider,
will you line up, please?

		MR. SCHNEIDER:  Scott Schneider,

S-c-h-n-e-i-d-e-r, with Laborers' Health and Safety Fund.

		Thank you very much for your testimony, both of you.

		JUDGE SOLOMON:  Let me stop you.

		Are you going to take those statements as exhibits?

		MS. LINDBERG:  Yes.  If you have your testimony here that I can mark
it as an exhibit?  Just hand it over, please.

		JUDGE SOLOMON:  Okay.  Sorry to break in, Doctor.

		MR. SCHNEIDER:  No, that's fine.

		We've had suggestions from previous commenters and questioners and
witnesses about the efficacy of respiratory protection saying, well,
people could just wear respirators.  What's your expert opinion in terms
of the efficacy of respirators in terms of worker protection relative to
engineering controls and what are some of the problems with relying on
respirators to protect workers?

		DR. ANNA:  What we saw in our comments from members were that they
supported Table 1 with the idea that there are engineering and work
practice controls that would be in place, and then respiratory
protection on top of that in situations where those controls aren't
known to be fully effective.  So as a supplemental method, I think we
saw support for respiratory protection.

		I think we also support that, in cases where it's not necessary
because of the length of exposure, that we shouldn't burden workplaces
with having to require respiratory protection in situations where there
are other controls in place or where the length of exposure is shorter.

		I think the third piece that came out from our membership was that,
within that table, that it should be based on the protection factors as
opposed to specifying what type of respirator should be there.  That way
if a workplace would choose to provide more protection than what's
currently required by saying half-face piece, full-face piece, so forth,
that they would be able to have that opportunity.

		MR. SCHNEIDER:  Yeah.  I wasn't specifically referring to Table 1.  I
was asking more of a general question about the efficacy of respiratory
protection relative to engineering controls.  I don't know.

		MS. ABRAMS:  I would agree largely with what has already been said.
Personal protective equipment, specifically respiratory protection in
this case, can be effective when used properly, when fit tested.  And I
in my own practice doing consulting, do see problems sometimes with fit
testing of respiratory protection, especially in the construction trades
where you have a lot of turnover in personnel.

		From a safety professional's perspective, you should be following a
hierarchy of controls.  Engineering controls should be exhausted to the
extent that they are feasible, followed by administrative controls.  As
I've testified, worker rotation can be used after other administrative
controls are implemented to further reduce exposures, perhaps keeping
them under four hours.  Because personal protective equipment,
respiratory protection, while it can be effective when used properly, it
isn't a solution to minimizing dust exposure or silica exposure in the
workplace.

		MR. SCHNEIDER:  So, but you're saying the hierarchy of controls is
predicated on the premise that engineering controls are more reliable in
terms of protecting workers than respiratory protection is?

		MS. ABRAMS:  Well, in stationary situations it's a permanent fix.  And
even in the construction industry, as shown in Table 1, there are
engineering and administrative controls that can be utilized there
before you have to go to what I consider personally the last resort,
which is personal protective equipment.

		JUDGE SOLOMON:  Okay, thank you.

		MR. SCHNEIDER:  Thank you very much.

		MS. TRAHAN:  Hi.  Chris Trahan,

T-r-a-h-a-n, with the Building Trades.

		Something you said, Adele, you said it's particularly difficult in the
construction industry to do fit testing or do respirator programs
effectively.  I mean, I'm wondering if you are thinking more than just
fit testing?

		MS. ABRAMS:  Yeah, let me clarify.  I know a lot of construction
companies, I work with a lot of construction companies that have great
occupational health programs already, so I don't think that it's
impossible or infeasible for construction companies to have such
programs.

		What I was talking about is, especially with smaller construction
employers, and I'm just speaking a bit anecdotally here, I see a lot of
use of the N95 dust masks, and people aren't aware that you're still
supposed to fit test those.  And so if you're just slapping one of those
on a worker, so to speak, and not giving them instruction, not letting
them know that these are supposed to be one-time use, they're not
supposed to take one mask and use it all week, you're not getting the
effectiveness of that respiratory protection.  And so that worker
actually can be lulled into a sense of complacency thinking they're
being protected when they really aren't, and that's one of the concerns
I have.  You know, it's just something I've seen time and time again in,
you know, over 25 years in the safety field.

		MS. TRAHAN:  Thank you.  And one other question for you and ASSE is,
how extensively did ASSE look at Chapter 4 of the preliminary economic
and technological feasibility document, particularly as they relate to
the construction operations discussed therein?

		MS. ABRAMS:  Well, I will a little bit dodge a bullet on that.  We did
review it, of course, as part of our review and preparation of comments,
but we did not retain any forensic economist to look at that and
challenge any of the underlying assumptions.

		MS. TRAHAN:  I wasn't talking about the economic feasibility.  I was
specifically --

		MS. ABRAMS:  Or the technical feasibility.

		MS. TRAHAN:  -- talking about the tech feas in Chapter 4.

		MS. ABRAMS:  Yeah.  In looking over that, the folks, including myself,
who came from a variety disciplines, who are industrial hygienists as
well as certified safety professionals, in my case a CMSP, came to the
conclusion that this is a feasible rule, both technically and
economically.

		MS. TRAHAN:  Thank you very much.

		MR. KOJOLA:  Hi.  Bill Kojola, K-o-j-o-l-a, and I'm representing the
National Council for Occupational Safety and Health.  I have two quick
questions for both AIHA and ASSE on hierarchy of controls for the
record.

		Does the AIHA and the ASSE fully support the hierarchy of controls as
the fundamental approach for most effectively protecting workers from
exposure to hazards?  AIHA.

		DR. ANNA:  I think the short answer to that is yes.

		MS. ABRAMS:  And also our answer is yes, with the caveat that we did
ask OSHA to reconsider the bar on worker job rotation as an option, you
know, before you get to the point of putting everybody in respirators.

		MS. KOJOLA:  My second question for both AIHA and ASSE is, the
proposed OSHA standard for silica incorporates the control hierarchy by
requiring employers to first use feasible engineering controls and work
practices to reduce the exposure, you know, to or below the PEL, and
that when these controls are not sufficient to reduce exposure to at or
below PEL, only then can respiratory protection, the lowest order in the
hierarchy, only then can it be used to supplement the engineering and
work practice controls.  Does AIHA and ASSE support that exposure
control measure in the proposed silica rule?

		DR. ANNA:  Yeah, we didn't have any specific comments from our members
that addressed that exactly.  So I can tie from the comments that were
made that, you know, particularly with the comments related to Table 1,
where they were looking at it being appropriate that respiratory
protection was an add-on to the controls that were recommended as the
primary in that table.  So I'm going to draw a conclusion and say, at
least to that degree, that our members support that.

		MR. KOJOLA:  Okay.

		MS. ABRAMS:  And we would concur.

		MR. KOJOLA:  Okay.  Thank you very much.

		JUDGE SOLOMON:  Okay.  So now OSHA, Mr. Perry.

		MR. PERRY:  Yes, Your Honor, we do have a few questions, starting with
Dr. Coble.

		DR. COBLE:  Yes, thank you.  Mr. Anna, I appreciate very much the
comments you made on Table 1.  Table 1 represents something of an
innovative approach, and we welcome all comments on that to try to
figure out how to make that work because I think a lot of people are
supportive but have concerns.  You expressed a concern regarding the
inclusion of a "no visible dust" criteria for assessing effectiveness,
and that in fact tends to be a comment that several other people have
made regarding assessing the effectiveness of the controls.

		DR. ANNA:  Right.

		DR. COBLE:  And presumably those controls when properly used and
implemented can reduce exposures to the place where they cannot have to
rely upon respiratory protection.  But the issue is limitations on air
monitoring; as you described, you may not get the result back until
after the fact.

		Would the AIHA be able to provide some language on how we could assess
the effectiveness of -- on site, how you might be able to assess the
effectiveness of control systems and determine whether they're properly
working?

		DR. ANNA:  Sure.  I think we would be able to get our technical
committees to be able to provide some potential language for that.  The
concerns were that it's very subjective to say how much visible dust is
okay or not okay.  But I think that we did have some comments related to
how you might assess that or how you might -- maybe a pre-work
checklist type of approach --

		DR. COBLE:  Yeah.

		DR. ANNA:  -- to look at the factors that might lead to variability
in how much dust would escape.  And so I think we could provide some
input that way, yes.

		DR. COBLE:  Okay, thank you.

		MR. PERRY:  Annette Iannucci has a few questions I think.

		MS. IANNUCCI:  Okay, good morning.  I'd like to start with Ms. Abrams,
but Mr. Anna, feel free to also add to it because you've commented on
this issue also.

		Ms. Abrams, can I clarify with you if you believe that the medical
provision for the transient construction workforce may be possible if
OSHA provides further guidance on how to do that?

		MS. ABRAMS:  Yes.  We're not suggesting that contingent workers or day
laborers should have lesser levels of protection.  It's more a matter of
how do you track that as a practical matter, because you're going to be
holding an employer liable for putting this into motion, the exposure
monitor -- or the medical surveillance, rather, after a certain
threshold of days has been reached.  But if the worker is never with
them for that period of time, they will need to really know what the
actual exposures have been on the previous jobs that that individual has
done.

		And also, this was brought up, I believe, by the economist, there may
be a method of determining has medical surveillance already been done on
this worker, so that you're not repeatedly putting workers through
multiple medical exams, and that will reduce the overall cost and burden
of the rule as well.

		MS. IANNUCCI:  Okay, thank you.

		DR. ANNA:  I would just add that the AIHA concerns were very similar
along the tracking of workers and how to track their days of exposure as
they move from job to job, and also concern about potentially workers
not being hired because they've approached that limit of workdays
exposed.

		MS. IANNUCCI:  Okay, thank you.  And then just one point of
clarification with Mr. Anna.  You mentioned something about frequency of
medical surveillance in younger workers.  Do you believe that an initial
medical exam is still useful in a young worker?

		DR. ANNA:  Yes.  The comments that came back related to medical
surveillance really tied into the idea that doing a lot of that --
doing a lot of the medical exams on the younger workforce that hadn't
had the years of exposure yet would not necessarily lead to early
detection, but after 10 or 15 years of that exposure, then we would
certainly want to see that described in the proposed regulation.

		MS. IANNUCCI:  Okay, thank you.

		JUDGE SOLOMON:  Mr. Perry.

		MR. PERRY:  Thank you.  I have just a few questions.

		First of all, Mr. Anna, just a clarification.  In your written
statement -- or your written submission, talking about exposure
assessment and you recommend, I think, for general industry that they
use the AIHA strategy, and you talk about a sufficient sample set
usually numbering from 6 to 10 samples.  Is that annually or over what
period of time are you looking at?

		DR. ANNA:  Typically annually, or as the job changes, right, to
develop your base of statistical significance over time.

		MR. PERRY:  Okay.  And assuming after taking those samples, the job
is -- conditions are fairly stable, we can cut back on the number?

		DR. ANNA:  Right.  Correct, over time.  And you know, to point out
that's it not just the number of samples, but it's also the entirety of
that strategy in ensuring that it's representative of the workers and
work group you're sampling, and so forth.

		MR. PERRY:  Okay.  Very good.  And then in a construction environment,
you addressed, I guess, the use of personal sampling in construction,
it's not so useful because of the changing environment, but you disagree
that OSHA should exempt any kind of exposure assessment process as part
of complying with Table 1.  So what is the exposure assessment process
in construction that makes sense to you here?

		DR. ANNA:  I think what -- what we heard back from our exposure
assessment folks and our construction folks within our membership
obviously has some diverse opinion.  We represent almost 10,000 people
in different industries.  What kind of streamlined to what you saw in
our submitted comments were that for -- as you mentioned, for
workplaces where we know that things are pretty stable, you can follow a
good exposure assessment guide and strategy.  For construction industry,
the concerns were raised about changes in the work environment and the
usefulness of sampling.  So the balance though is that somewhere along
the line our members wanted to see that there is emphasis on verifying
that those controls that are put in place, whether it be in general
industry or in construction, that they actually are reducing exposures
to the level that's expected.  So it's kind of using the sampling to
verify the controls, but then allowing the exemptions such as are
outlined in Table 1.

		MR. PERRY:  Okay, thank you.

		And, Ms. Abrams, also on the exposure assessment topic, you also
suggested that OSHA not require periodic sampling on a fixed schedule.
And you made a reference to, if we did so, that that would cause some
unnecessary sampling to be done.  So can you give us some examples of
what unnecessary -- when it isn't necessary really to sample?  I mean,
I think we all know under very low exposure conditions you're not going
to learn anything, but what are some others?

		MS. ABRAMS:  Well, I think what we were getting at was if you're
routinely requiring sampling to be done every six months even though the
job has not changed, even though the personnel doing it, the controls,
have not changed.  Those are examples where you would be imposing a
monetary burden without achieving any tangible benefits.

		What we did encourage, I think in both our testimony today and in our
written comments, is that companies should be doing some fairly
aggressive sampling upfront to build a database for different job
classifications, job tasks, to determine the efficacy of their controls.
 And then, again, assuming no changes, no introduction of new equipment,
no unique situations, you would have historical data, which to some
extent is used in the asbestos field as well, so you can rely upon that
without having to continually resample.  And I think for people who are
doing the same type of tasks over and over again, that is important.

		Now, if you introduce something different, there's suddenly demolition
going on nearby which is going to introduce additional respirable silica
into the work environment and this is going to be going on on a
continuing basis, that is going to change the exposures for persons who
are in the zone of danger; additional sampling might be needed there.
But it allows -- the term we used was performance oriented.  So
periodic, but performance-oriented sampling.

		MR. PERRY:  Okay, very good.  Thank you.

		I think in -- I had some questions for each of you on competent
person, but I think in the interest of time I'll just ask you if in
post-hearing comment, it would be very helpful to OSHA if you could give
us some greater detail on the nature and content and duration of
training that you think would be necessary both in general industry and
construction.

		I know, Ms. Abrams, in your written submission you make reference to,
for example, an OSHA 30-hour course.  But what would be the content and
what's the sort of the background of the person and so forth?  If you
could just include that in your post-hearing submission, that would --

		MS. ABRAMS:  Yes, we could certainly do that.  And, you know, just to
say, the OSHA 10- and 30-hour courses cover myriad topics.  Certainly a
person who is going to be handling the access plan should have at least
some content on industrial hygiene so that they understand what it is
they're dealing with.

		MR. PERRY:  Very good.

		You had a question, Ms. Lindberg?

		DR. ANNA:  Could I add a comment to that last one real quickly?

		MR. PERRY:  Oh, yes.  Please do.

		DR. ANNA:  AIHA does have a white paper related to silica competent
persons that could serve as a potential reference for the types of
knowledge and expertise that you would expect somebody in that role to
have.

		MR. PERRY:  Very good.  Thank you.

		MS. LINDBERG:  Just one last question for you, Mr. Anna.  In your
submission you recommended that OSHA come up with a more useful trigger
for medical surveillance in construction, as compared to the, you know,
exposure of more than 30 days over the PEL.  Can you give us a more
specific idea of what that might look like?

		DR. ANNA:  Unfortunately, we didn't have a good idea of what that
might look like.

		MS. LINDBERG:  Okay.

		DR. ANNA:  What came back were the number of concerns that we've
already addressed, but I'll be honest, we didn't get an idea back on how
to recommend a solution to that.

		MS. LINDBERG:  If you do come up with anything and you could submit it
to the record, that would be helpful.

		DR. ANNA:  We will.

		MR. PERRY:  I was going to say, welcome to our world.  I think that's
all we have, Your Honor.

		And, OSHA, we very much appreciate the two of you taking the time to
submit testimony and appear here today.  So thank you.

		MS. LINDBERG:  And if I could get your testimony right now to mark?
Thank you.

		MS. ABRAMS:  Thank you.

		MS. LINDBERG:  I would just like to mark Ms. Abrams' testimony as
Exhibit Number 30 and Mr. Anna's testimony as Exhibit 31, to the
hearing record.

		JUDGE SOLOMON:  Okay.  And you're moving those into evidence and so
moved.

(Whereupon, the documents referred to as Hearing Exhibits 30 and 31 were
marked and received in evidence.)

		MS. LINDBERG:  Thank you.

		MR. PERRY:  Thank you.

		JUDGE SOLOMON:  Okay.  We're going to come back at 1:30.

		(Whereupon, at 12:38 p.m., a lunch recess was taken.)

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

(1:30 p.m.)

		JUDGE SOLOMON:  We've had a change in the cast of characters.  So do
you want to enter your appearance for this afternoon, Ms. Kramer?

		MS. KRAMER:  Hi.  I'm Allison Kramer.  I'm with the Office of the
Solicitor.

		JUDGE SOLOMON:  Okay.  So first up is the Small Business
Administration, and Bruce Lundegren, do you want to state your name and
your affiliation, please?

		MR. LUNDEGREN:  My name is Bruce Lundegren.  I'm with the Office of
Advocacy of the U.S. Small Business Administration.

		JUDGE SOLOMON:  Okay.  So you're going to speak for about 10
minutes --

		MR. LUNDEGREN:  Yes.

		JUDGE SOLOMON:  -- and then we'll have some questions for you.

		MR. LUNDEGREN:  Perfect.  Thank you, Your Honor, and members of the
panel.  My name is Bruce Lundegren, and I am Assistant Chief Counsel for
Advocacy at the U.S. Small Business Administration's Office of Advocacy.

		Advocacy was established by Congress to represent the views of small
entities before federal agencies, the White House, and Congress.
Advocacy is an independent entity within SBA so the views expressed by
Advocacy do not necessarily reflect the views of SBA or the
administration.  Advocacy is responsible for overseeing federal agency
compliance with the Regulatory Flexibility Act, as amended by the Small
Business Regulatory Enforcement Fairness Act, or SBREFA.  The RFA and
SBREFA give small entities a voice in the rulemaking process.  For all
rules that are expected to have a significant economic impact on a
substantial number of small entities, federal agencies are required to
assess the impact of the proposed rule on small business and to consider
less burdensome alternatives.

		Further, OSHA, as a covered agency under SBREFA, must convene a Small
Business Advocacy Review Panel, also known as a SBREFA panel, prior to
proposing any rules that are expected to have a significant economic
impact on a substantial number of small entities.

		OSHA convened a Small Business Advocacy Review Panel for its proposed
silica rule in 2003 to consider the impact of the proposed rule on small
entities.  The panel, which consisted of representatives from OSHA, the
Office of Advocacy, and the Office of Information and Regulatory Affairs
within the Office of Management and Budget, was assisted in its work by
a number of small entity representatives, or SERs, S-E-R's, from
regulated industries who provided advice and recommendations to the
panel.  The panel report was presented to OSHA on December 19, 2003,
over 10 years ago.  The SERs generally opposed lowering the silica PEL
and recommended that OSHA enforce the current PEL because of significant
noncompliance.

		Prior to and following publication of the proposed rule, a number of
small business representatives contacted the Office of Advocacy and
expressed concern about the potential impacts of the proposed rule on
small business.  Advocacy discussed the proposed rule at three small
business roundtables held on September 20th, November 15th, and
January 24th, respectively.  Professional staff members from OSHA
attended the September roundtable meeting and provided an overview of
the proposed rule.

		Advocacy then filed public comments on the proposed rule that are
reflective of the issues raised during the SBREFA panel process and the
roundtable meetings, as well as with additional meetings and discussions
with small entity representatives and small business representatives.  I
will provide a brief overview of those comments, which generally address
the issues of risk, technological and economic feasibility, the
construction industry, the need to consider significant alternatives,
and small business participation in this rulemaking process.  Many of
the concerns centered on the unique challenges of small business in
complying with the proposed rule and the disproportionate burden the
proposed rule would have on small business.

		With respect to risk, the SERs and the small business representatives
remain highly skeptical of OSHA's risk assessment and determination of
significant risk.  During the SBREFA panel, nearly all of the small
entity representatives stated that they have not seen any incidences of
silica-related illness in their industries in many years or even
decades.  For this reason, the SERs recommended that OSHA enforce the
current PEL and conduct compliance assistance to better educate
employers and employees on silica exposure and risk and safe work
practices.

		They also raised a number of other issues, including that residual
illness could be linked to noncompliance, the data OSHA was relying on
was old and unrepresentative of current workplaces, that modern
industrial hygiene practices have changed dramatically, and that
industries with high silica exposures have either gone out of business
or changed significantly.

		They raised issues about sampling methodologies and laboratory
protocols being obsolete and unreliable, that there may be physical
factors in the form and condition of silica that significantly affects
risk among various workplaces, and that if the trend in declining
silica-related disease has continued, even at a slower rate, that the
purported benefits of OSHA's proposed rule could be nonexistent.

		They raised other factors about uncertainty, including confounding
factors, long latency periods, and questions whether a 45-year working
life reflected modern conditions.

		On economic feasibility, the SERs and small entity representatives
expressed concern that compliance with the proposed rule would not be
economically feasible.  In particular, they complained that OSHA's
economic analysis understates costs and exaggerated benefits through the
use of several assumptions, such as calculating costs on a per
overexposed employee basis, assuming that each control would benefit
multiple employees, assuming that firms operate two shifts per day.

		With respect to technological feasibility, the SERs and small business
representatives have expressed concern that the proposed rule is not
technologically feasible.  For example, they complained that OSHA sets
the action level at 25 even though OSHA states that that level is not
technologically feasible, yet they expect small businesses to achieve
that level, or to attempt to achieve that level.

		The construction SERs and small business representatives from the
construction industry also raised technological and economic difficulty
of complying with the proposed rule.  These include the ubiquitous
nature of airborne silica around construction sites, the size and
variability of construction sites, changing environmental conditions and
other factors.  For these reasons, the construction industry has told
Advocacy that Option 1, which is the general industry standard, is
completely unworkable for construction.

		However, many of the construction SERs and small business
representatives from the construction industry have endorsed the concept
of Table 1, but not in its current manifestation.  They noted several
significant problems with Table 1, but most importantly that Table 1 is
not useful because it does not provide a method of achieving compliance
with the PEL and still triggers all of the ancillary provisions except
for exposure monitoring.  They stated that since Table 1 is supposed to
reflect silica-safe work practices, following it should result in
compliance with the PEL and not a presumption of noncompliance.

		Advocacy appreciates OSHA's statutory charge with respect to
mitigating workplace hazards; however, the Regulatory Flexibility Act
also requires OSHA to consider significant alternatives to the proposed
rule which accomplish the stated objectives and which minimize any
significant economic impact on small entities.  Since it is the business
community and thousands of small businesses across the country who will
have to implement any new requirements, Advocacy recommends that OSHA
carefully consider the views and experiences small businesses and their
representatives before proceeding.  Many of the trade associations that
represent small businesses and participated in our roundtables will be
testifying at this hearing in the coming days, and Advocacy recommends
that OSHA pay particular attention to the concerns of their small
business members.

		Advocacy commends OSHA for heeding the advice and recommendations of
the small entity representatives in several respects, most notably in
proposing the Table 1 option for construction, eliminating the ancillary
provisions at the action level except exposure assessments, and removing
the hygiene facility requirements except in regulated and
access-controlled areas.  These changes have resulted in considerable
cost savings for small business; however, OSHA did not follow the advice
and recommendations of the SERs with respect to lowering the current PEL
and proposing an action level one-half the current PEL.

		Finally, small businesses -- small business representatives have
contacted Advocacy and expressed concern about the length of the public
comment period and other deadlines in the proposed rule.  In particular,
they have noted that nearly 10 years have passed since the conclusion of
the Small Business Advocacy Review Panel in 2003, that the proposed rule
and associated analyses comprise thousands of pages of material and that
the comment period was interrupted by the federal government shutdown
and Thanksgiving, Christmas, and New Year's holidays.  For these
reasons -- I'm just about done, Your Honor -- for these reasons
Advocacy is concerned that small businesses and their representatives
had not had adequate opportunity to fully participate in the rulemaking
and recommend that OSHA consider providing additional opportunities for
their participation, including the possibility of regional hearings
targeted at small businesses or convening a new SBREFA panel to consider
all of the data and information that has been included in the docket
over the past decade, including the hydraulic fracturing industry, which
was not represented during the panel.

		Advocacy appreciates the opportunity to provide this testimony on
OSHA's proposed rule and hopes these comments are helpful and
constructive.  Again, Advocacy commends OSHA for making several changes
to the proposed rule that would reduce the impact on small entities and
hopes that OSHA will continue to carefully consider the views of small
entities before proceeding.

		Thank you.  And I will be happy to answer any questions.

		JUDGE SOLOMON:  Mr. Perry.

		MS. KRAMER:  Your Honor, a quick housekeeping matter.

		Mr. Lundegren, do you have a copy of your written statement --

		MR. LUNDEGREN:  I do.

		MS. KRAMER:  -- you could submit to the record?  Thank you.

		Your Honor, I believe we're up to Hearing Exhibit Number 32.  If I
could have Mr. Lundegren's written statement submitted as Hearing
Exhibit Number 32?

		JUDGE SOLOMON:  Okay.  Did you mark it?

		MS. KRAMER:  I will do so.

		JUDGE SOLOMON:  Okay.  It is admitted into evidence.

(Whereupon, the document referred to as Hearing Exhibits 32 was marked
and received in evidence.)

		MS. KRAMER:  Thank you.

		JUDGE SOLOMON:  Okay.  Are there any questions from -- okay, I see
two hands.  So let's race to the microphone.

		State your name and spell your last name.

		MR. FREEMAN:  Thank you, Your Honor.  It's Marc Freedman.  First name
is M-a-r-c; last name is Freedman, F-r-e-e-d-m-a-n.  With the U.S.
Chamber.

		Bruce, just a quick, you know, quick set of questions here.  Did the
2003 SBREFA report include any representatives from the fracking
industry?

		MR. LUNDEGREN:  No.  As I just stated in my testimony, it did not.

		MR. FREEDMAN:  And have you had a chance to review the analysis that
was submitted to the record by NIOSH on the fracking industry?

		MR. LUNDEGREN:  Yes, I have.

		MR. FREEDMAN:  Okay.  Would that in any way duplicate a SBREFA panel
report?

		MR. LUNDEGREN:  I don't -- I just mentioned in my testimony that I
think that if OSHA thinks that convening a new SBREFA panel with respect
to the fracking industry would be helpful to their decision making
concerning that industry, that the Office of Advocacy would be happy to
assist in convening and holding that panel.

		MR. FREEDMAN:  And how long does it usually take a SBREFA panel to
conclude their meetings and issue a report?

		MR. LUNDEGREN:  Well, the statute requires a 60-day panel process, but
in reality it takes at least 120 days per OSHA's internal procedures.
So at a minimum of 120 days.

		MR. FREEDMAN:  And you're familiar with how long this reg was under
review at LIRA?

		MR. LUNDEGREN:  Yes, I am.

		MR. FREEDMAN:  And presumably --

		MR. LUNDEGREN:  Two and a half years.

		MR. FREEDMAN:  -- presumably part of that time was for NIOSH to go
out and conduct their SBREFA -- excuse me -- conduct their review of
the fracking industry?

		MR. LUNDEGREN:  Oh, you'd have to ask OSHA that question, so --

		MR. FREEDMAN:  We can't tell, but we know that happened during that
period.

		MR. LUNDEGREN:  Right.

		MR. FREEDMAN:  Okay.

		MR. LUNDEGREN:  We participated in the interagency review of
regulations, and those are considered to be confidential.

		MR. FREEDMAN:  Understood.  Thank you.

		MR. LUNDEGREN:  Thank you.

		MR. SHUDTZ:  Hi.  Thanks.  I'm Matthew Shudtz.  That's S-h-u-d-t-z,
with the Center for Progressive Reform.

		In your written comments you note that the Office of Advocacy
conducted extensive outreach on the proposal with small business
representatives.  I'm just wondering if, consistent with other
advocates' disclosure of their clients' identities, can you provide a
list of the small business representatives who you contacted or who
contacted you in preparation for these remarks or your written comments?

		MR. LUNDEGREN:  Yes, we have a list of the people who were invited to
the roundtable.  I don't necessarily have a complete list of who
attended, and I do not have a meeting records of who said what.  It
was -- it's my recollection of what was said.

		MR. SHUDTZ:  Okay.  And would --

		MR. LUNDEGREN:  But they are not clients of the Office of Advocacy.
These are open meetings that anyone is welcome to attend.

		MR. SHUDTZ:  To comply with the Freedom of Information Act, though, I
would assume that your communications with outside parties with
reference to this rule, whether it be through the roundtables or
otherwise, should be docketed in some way?

		MR. LUNDEGREN:  They are subject to FOIA, yes.

		MR. SHUDTZ:  And when you sought small businesses' input on this rule,
did you develop a survey instrument that would ensure a statistically
valid sample of small businesses, or was it more of an ad hoc approach?

		MR. LUNDEGREN:  It is an ad hoc approach.

		MR. SHUDTZ:  Okay.  And do you have any -- we heard some testimony
earlier from Dr. Ruttenberg about small businesses, hazard abatement
firms, for instance, that might benefit from this rule.  I wonder if you
could speak to any --

		MR. LUNDEGREN:  Yes.  The Regulatory Flexibility Act, which is the
statute that the Office of Advocacy operates under, or oversees agency
compliance with, deals with the directly regulated entities.  So those
are the entities that OSHA has to assess in their reg flex analysis, and
those are the ones that we're concerned with.  But there would obviously
be many other small businesses, such as consultants, safety equipment
manufacturers, and others who are not regulated entities but obviously
have an interest in the rule.

		MR. SHUDTZ:  Thank you.

		JUDGE SOLOMON:  Thank you.

		Does OSHA have any questions?

		MR. O'CONNOR:  Yes, we do.  Bob Burt will begin OSHA'S questions.

		MR. BURT:  I just wanted to ask one or two questions about the panel
process.  If any representatives of the fracking industry had come
forward at the time of that panel, do you think they would have been
included in the panel as SERs?

		MR. LUNDEGREN:  Yes, I'm sure they would have been.

		MR. BURT:  And we've conducted a number of panels.  Are we normally
able to have every single affected industry represented?

		MR. LUNDEGREN:  No, it's a representative sample of industry.

		MR. BURT:  Thank you.

		MR. O'CONNOR:  And Allison Kramer will continue with questions.

		MS. KRAMER:  I just have a couple questions for you.  First, related
to your comments on the substantive issues in this rule, I just wanted
to confirm my understanding of a couple things.

		First, SBA has no independent source of expertise in these matters,
you know, things like risk, sampling analysis.  Your comments were
mainly just summarizing things that you heard from the folks that you
represent; is that right?

		MR. LUNDEGREN:  Yes, that is correct.

		MS. KRAMER:  Okay.  And, second, since you are mainly summarizing, and
this is similar to what Mr. Shudtz was asking about you, the comments of
these representatives -- I just want to make sure we understand who
they are.  Aren't some of them trade representatives that represent both
large and small businesses?

		MR. LUNDEGREN:  Yes, they are.  But the focus of our meetings is on
the small business effects.

		MS. KRAMER:  Okay.  Thank you.

		JUDGE SOLOMON:  Okay.  If there's nothing else, thank you very much.

		MR. LUNDEGREN:  Thank you.

		JUDGE SOLOMON:  I might say that your agency is also affiliated with
ACUS.

		MR. LUNDEGREN:  Yes, we are.

		JUDGE SOLOMON:  I talked about the data, that you're involved in that
data.  Okay.  Thank you very much.

		MR. LUNDEGREN:  Thank you.

		JUDGE SOLOMON:  So next is the National Federation of Independent
Business.  Okay.  State your name, please.

		MR. BOSCH:  My name is Dan Bosch.

		JUDGE SOLOMON:  And you have a statement?

		MR. BOSCH:  I do.

		JUDGE SOLOMON:  You'll have 10 minutes.  Go ahead.

		MR. BOSCH:  Thank you.

		My name is Dan Bosch.  I represent the National Federation of
Independent Business.  NFIB represents about 350,000 independent
business owners who are located throughout the United States.  At least
25 percent of NFIB's members are in industry categories that OSHA has
identified will be directly regulated.

		Our membership fully understands the need to protect workers from any
dangers presented by the exposure to respirable silica; however, they
believe that this proposed rule is not the answer.  In the written
comments NFIB submitted February 10, we highlighted several reasons why
this is the case. 			The first reason is OSHA never adequately analyzed
if increase in compliance with current standard would improve rates of
silica illnesses or deaths.  According to CDC data, since the 1960s,
rates of silicosis deaths have dropped 93 percent, despite OSHA's
estimate that 30 percent of the regulated population is not currently in
compliance.

		Given the success of OSHA's current standard, and with technology
constantly improving, the most logical approach the Agency should have
considered is helping the regulated community, like our small business
members, achieve compliance.  Unfortunately, OSHA reviewed nine other
alternatives, including the proposed rule.  It is unclear why the Agency
looked at so many, yet avoided the most obvious alternative.  This is
further troubling because the 2003 Small Business Advocacy Review Panel
specifically recommended that OSHA explore this possibility.

		The second reason is that OSHA has not adequately justified why a new
rule is necessary.  It has greatly overestimated the number of lives
this rule purportedly would save.  OSHA's analysis says 375
silicosis-related deaths would be saved annually; however, according to
the CDC, only about 150 deaths per year occur in cases where silicosis
was the underlying cause or contributing factor.  Therefore, OSHA has
overestimated lives saved from silicosis by about 150 percent.

		Further justification based on market failures is also inadequate.
NFIB finds two overarching problems with this analysis.  First, the
evidence cited for each market failure is very general and could be used
as justification for virtually any type of perceived workplace market
failure in the American economy.  Regardless, none of these
justifications necessitate further government intervention.  Second,
OSHA seemingly makes its case of market failures without acknowledging
that the government has already intervened in the market with success.
That success has only been limited by OSHA's inability to help the 30
percent of the market not in compliance achieve it.

		The third reason we oppose the rule is that OSHA offers no explanation
for how it would ensure compliance with the proposed PEL.  Given that
the primary reason for why the current PEL has not been as successful as
it could be is because OSHA has not been able to ensure compliance, it
is illogical that the Agency would decide the best way to further lower
silica-related deaths and illnesses is to lower the PEL, add in
expensive new employer requirements, and include a virtually
unattainable action limit.  If OSHA cannot ensure compliance with the
current standard, why would it seek to layer on more requirements and
more stringent standards which would further tax OSHA compliance and
enforcement staff?

		A fourth reason is OSHA's inadequate Regulatory Flexibility Act
compliance.  Under the RFA and SBREFA, OSHA has certain obligations to
adequately consider the impact of a regulation on small businesses.
Specifically, OSHA is required to perform adequate outreach to small
businesses when a proposed rule is expected to have a significant
economic impact on a substantial number of small entities.

		In such a case, OSHA is to convene a Small Business Advocacy Review
Panel of small entity representatives to obtain input on a forthcoming
proposed rule.  In 2003, OSHA convened a panel each for general industry
and construction regarding a forthcoming silica rule that was later put
on hold.  These panels overwhelmingly recommended that OSHA not continue
to pursue a rule.  The panel determined that the rule was unnecessary,
overly burdensome, and it would not necessarily address the problem.

		Rather than convene a new panel for this proposed rule, OSHA is using
the 2003 panel to meet its obligations under the RFA.  NFIB believes
that panel is inadequate.  OSHA must perform outreach through the
reasonable use of techniques, including panels.  Relying on a
10-year-old panel is not reasonable in our opinion.  As an example, this
proposed rule covers hydraulic fracturing, an industry that was nascent
10 years ago and was not discussed by either the panels nor the draft
rule they considered.

		Changes in technology have made things safer for workers and helped
further lower respirable silica exposures.  Affected businesses have
reported to us that there is now widespread use of devices that release
water at the point of cutting to help reduce dust particles dispersed in
the air.  There is also greater use of tools with dust collection
components to help prevent particles from being breathed in.  These are
just a couple of examples where OSHA's 2003 panel is not reflective of
current technologies.

		Furthermore, two NFIB members that participated in the 2003 panels
disapprove of OSHA using that panel for this NPRM.  Specifically, they
cited changes in work practices and technology as key reasons why a new
panel should have been convened before the proposed rule was published.
In addition, one noted that the new data that OSHA has put forward in an
attempt to justify the NPRM still does not demonstrate a risk to workers
that would require additional regulation nor does it demonstrate that
OSHA's proposed scheme would actually achieve its goals.

		NFIB strongly believes that OSHA has not fulfilled its legal
obligations under the RFA and urges the Agency to, at a minimum,
withdraw this NPRM and convene a new panel to adequately reflect changes
that have occurred since 2003.

		The final problem to mention is that NFIB research shows OSHA has
severely underestimated costs to businesses and the economy.  OSHA
estimates total compliance cost for employers to be about 637 million
annually over 10 years; the average annual cost for all firms would be
about $1200, while those firms with 20 or fewer employees, truly small
businesses, will have an average cost of 550.  NFIB's research
foundation conducted its own analysis, and using OSHA's own compliance
cost estimates, found the total cost for the economy to average $7.2
billion annually over 10 years.  The study also found net job losses of
27,000 jobs over the 10-year analysis window.  A copy of this report was
submitted for the rulemaking record as an appendix to our written
comments.

		Importantly, the NFIB study found that for general industry and
maritime, firms with 4 or fewer employees were more than double -- face
more than double the cost as opposed to employers with 100 to 499
employees.  Specifically, the smallest firms will face about $2200 per
year, while the 100 to 499 employee group would realize about $1,000 per
year.  For construction, the smallest firms would face nearly $4,000 per
year, about eight times OSHA's estimate.

		Getting back to the Agency's estimate, OSHA finds its assumed cost to
be insignificant relative to the revenues and profits of the industries
it examined; however, the financial figures it uses for the analysis are
from 2008 and earlier, before the recession.  In many industries,
particularly construction, revenues and profits are lower today than
they were back then.  The costs accordingly represent a higher
percentage of impact today than six years ago.  To obtain a realistic
projection of impact, OSHA should redo the analysis with current
figures.

		Further, in determining the cost estimate of this NPRM, OSHA has
assumed full compliance with the current PEL, even though its own data
show that 30 percent of the regulated population is not currently in
compliance.  Therefore, the cost estimate is entirely inaccurate, even
assuming all other assumptions are true.

		In conclusion, we believe OSHA should withdraw the proposed rule, and
it should explore how silica-related illnesses and deaths would be
affected by improving compliance rates with the current scheme because
it cannot justify the proposed changes.  Even if OSHA were to enact this
proposal, it gives no description of how it would ensure compliance with
it, even though it can't ensure compliance currently.

It needs to convene a new SBAR panel, and last but not least, it needs
to produce a more realistic cost estimate.

		JUDGE SOLOMON:  Okay.  Thank you, Mr. Bosch.

		Ms. Kramer.

		MS. KRAMER:  Mr. Bosch, do you have a copy of your written testimony
that we could have marked and entered into the record today?

		MR. BOSCH:  I do, yes.

		JUDGE SOLOMON:  Are there members of the public who want to ask Mr.
Bosch any questions?

		Not seeing any -- oh, one.  Is that a hand?

		Come forward, please.

		MS. KRAMER:  Your Honor, Mr. Bosch handed me two documents.  The first
appears to be their comments on the silica rule.  I'd like to mark that
as Hearing Exhibit Number 33 and have it admitted to the record.

		JUDGE SOLOMON:  So admitted.

(Whereupon, the document referred to as Hearing Exhibits 33 was marked
and received in evidence.)

		MS. KRAMER:  And the second seems to be the executive summary of the
NFIB small business impact studies.  I'd like to mark that as Hearing
Exhibit Number 34 and have that admitted as well.

		JUDGE SOLOMON:  Okay.  That is also admitted into evidence.

(Whereupon, the document referred to as Hearing Exhibits 34 was marked
and received in evidence.)

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

		MS. SEMINARIO:  Yes, my name is Peg Seminario, S-e-m-i-n-a-r-i-o, from
the AFL-CIO.  Thank you for your testimony.  Just a couple of questions.

		You mentioned in your testimony that the NFIB members had reported
that there had been changes in technology since the SBREFA panel back in
2003 to the present time, and you talked about the -- you know, some of
the particular controls with respect to local exhaust ventilation on
tools, wet methods, et cetera.  Do you have -- did your members provide
specific information on these control measures and could you provide it
to the record?

		MR. BOSCH:  They did not.  I can see if we could come up with some,
but the specifics that I cited in my testimony were anecdotal.

		MS. SEMINARIO:  Okay.  Now, did any of your members -- did you
request and did you receive any exposure data from any of your members
on what current levels of exposure are being seen in their operations
currently?

		MR. BOSCH:  We did not.

		MS. SEMINARIO:  All right.  Thank you.

		You also mentioned that a number of people, and I don't know, many of
them I'm sure were NFIB members, participated in the 2003 panels.  I
guess there was one on construction and there was on general industry.
Are any of those individuals, are they appearing in this proceeding at
this time?

		MR. BOSCH:  They are not as far as the testimony portion.  I know that
one of the members that participated in the panel process submitted a
letter for the record during the written comment period.

		MS. SEMINARIO:  So they have submitted some comments.  Because this
hearing as well does provide an opportunity for people to come forward
and present their views and present additional testimony, correct?

		MR. BOSCH:  It does, yes.

		MS. SEMINARIO:  It does.  So there --

		MR. BOSCH:  If I may, I think for a lot of our members that are trying
to run their businesses, getting to Washington, D.C. isn't the most
convenient for them, but it's -- we understand that they can submit a
written comment.

		MS. SEMINARIO:  No, we understand that.  We've got a lot of workers
who are coming in and they have jobs, and so we do understand that can
be an issue.  But they have had the full -- they've had the same
opportunity to participate --

		MR. BOSCH:  Sure.

		MS. SEMINARIO:  -- that everybody else has.

		MR. BOSCH:  Absolutely.

		MS. SEMINARIO:  Thank you very much.

		JUDGE SOLOMON:  Thank you.

		Okay, Ms. Kramer.

		MS. KRAMER:  I believe Bob Burt has a couple questions.

		MR. BURT:  Yeah, I had a couple of questions about the economic
analysis that you provided.  And you stated that in your testimony that
the smallest firms would pay twice the costs that others would, as well
as the attachment includes a number of tables showing costs for various
sizes of firms.  How were these derived?

		MR. BOSCH:  That, I'm not sure.  I'd have to speak with my economist
about that, but I'd be happy to provide something in follow-up.

		MR. BURT:  Yeah, that would be very critical.

		MR. BOSCH:  Sure.

		MR. BURT:  Because they're very different than OSHA's, and there's no
explanation.  They're just giving the tables.

		MR. BOSCH:  Okay.

		MR. BURT:  Second, similar question is, there are a lot of ways you
can enter data into a model such as the one you used.  And a little more
detail on just exactly how the model's parameters were manipulated would
be helpful in evaluating this.

		MR. BOSCH:  Absolutely.

		MR. BURT:  I'd also ask you to contrast this to -- there are two
other model results in this record:  one, I believe, done by
Environomics; one by OSHA, which see much smaller ratio of effects to
costs.  For example, the Environomics model done for, I believe, ACC and
some others, shows 10 times the cost has a job loss of only 17,000.
Similarly, it has -- with again 10 times the cost, a relatively -- a
much smaller multiplier than you have of the total impact.  OSHA's had
fairly -- with much smaller -- with the same costs you used, had
fairly negligible impacts.  To the extent that you could help us out in
explaining why this model has so much higher impacts, that would be
helpful.

		MR. BOSCH:  Okay, we will do that.

		MR. BURT:  Thank you.

		MR. BOSCH:  Thank you.

		JUDGE SOLOMON:  Anything else?

		MR. O'CONNOR:  Yes.  Mr. Bosch, in your testimony you referred to OSHA
not being able to ensure compliance with its current rule.  To the
extent that there is noncompliance, do you have a sense as to why
there's noncompliance?  Is it a matter of employers not being aware of
what exposures are in their workplaces and what the current limits are,
or are there other reasons?

		MR. BOSCH:  If I had to guess, I would say that it is simply the
inability of our members to fully understand exactly what's expected of
them and exactly how to prevent as many exposures as possible.

		MR. O'CONNOR:  Thank you.

		MS. KRAMER:  If I can just follow up on that.  You mentioned that if
you had to guess that would be your answer.  Have you spoken to any of
your members?  Have they suggested anything like that to you?

		MR. BOSCH:  Yes.  They absolutely have.  I've spoken to at least a
dozen of our members on this.

		MS. KRAMER:  And your sense from those discussions is that they simply
don't understand the current rule?

		MR. BOSCH:  That is -- that's a considerable part of it.  A lot of it
is also that, you know, they just -- they may not be able to, you know,
fully get their arms around, you know, places to go to get answers.  So,
yes, you're right.

		MS. KRAMER:  Okay, thank you.

		MS. BOSCH:  Yep.

		MR. O'CONNOR:  We have nothing further.

		MR. BOSCH:  Thank you.

		JUDGE SOLOMON:  Okay.  Thank you very much.

		The next panel is the U.S. Chamber of Commerce revisited.  Let's go
off the record for a minute or two while they make their way forward.

		(Off the record.)

		(On the record.)

		JUDGE SOLOMON:  Okay.  Mr. Chajet, introduce the panel, please.

		MR. CHAJET:  Yes.  Thank you very much.

		Testifying today on behalf of the United States Chamber of Commerce
are three more expert witnesses, and then I'll have a short statement at
the end.

		First of all, Mr. Greg Sirianni is going to be testifying.  Mr.
Sirianni is an adjunct professor at the University of New Haven.  He
teaches several subjects within the Department of Fire Science,
including the performance characteristics of personal protective
equipment used in industry and in the fire service.  He's a certified
industrial hygienist.  He has conducted a number of industrial hygiene
field surveys and exposure assessments in a variety of mines, foundries,
automobile and truck manufacturing plants, wood treatment facilities,
marine vessels and granite quarries.  I'm happy to have Dr. Sirianni
with us today, who's going to talk a little bit about the practical
elements of protection from silica exposure.

		We also have with us today Dr. Faten Sabry.  Dr. Sabry is a Senior
Vice President in the securities and mass torts practice of NERA
Economic Consulting.  She's responsible for providing economic analysis
and testimony in cases involving product liability, mass torts, complex
damages in securities.  Her work has included estimating future personal
injury claims in toxic torts, analyzing liabilities related to
environmental contamination, and analyzing economic issues involved in
class certification.  Dr. Sabry has testified as an expert in state and
federal courts and is the author of various articles on the econometric
analysis of claiming behavior, impact of tort reforms and regulatory
changes, and determinations of trade protection.  Her research has been
published in the Journal of Investment Compliance, Journal of
Alternative Investment, Business Economics International Trade Journal,
and others.

		And last but not least, we have with us Dr. Ronald Bird, an economist
specializing in costs and benefits of regulation.  He received his Ph.D.
at the University of North Carolina, Chapel Hill, and he has faculty
affiliations at North Carolina and the University of Alabama.  He served
as an economic regulatory analysis consultant from 1989 to 1999 to OSHA,
EPA, the U.S. Army Corps of Engineers, U.S. Navy, U.S. Department of
Energy.  He was the chief economist at the U.S. Department of Labor from
2005 to 2008, and he was at the United States Department of Labor during
President George Bush's administration.

		With that, I'm happy to welcome our experts, and I call on Mr.
Sirianni to speak to you --

		JUDGE SOLOMON:  Okay.  Let me just say we have two hours attributed,
and we assume that there are going to be a lot of questions, and I'm
sure that OSHA will have a lot of questions.  Go ahead.

		MR. SIRIANNI:  Okay.  Can you hear me?  Yes?

		MS. KRAMER:  Yes.

		MR. SIRIANNI:  Affirmation.  Okay.

		My name is Greg Sirianni.  As Mr. Chajet said, I am adjunct professor
at the University of New Haven, and I spent many years looking
specifically at silica and silica-related issues and exposures in a
variety of workplaces.  And I came here today sort of to try and lend a
little bit of my experience with how we can control some of these
out-of-compliance issues with something that will protect the workers.

		You know, I come from a background in a lot of the industry that I've
been in of what you can do that works best in certain scenarios.  And I
think for silica, there are a lot of particular jobs out there that have
really high exposures that we just require certain controls that aren't
feasible.

		Last year, at the end of last year, a paper came out by a
NIOSH-related person whose name was Esswein, and he described and
discussed exposures in the fracking industry.  Now, fracking industry
and certain construction jobs tend to have some of the highest exposures
that we see and are in environments that don't lend themselves to the
typical control hierarchy is what -- you know, people like to get into
this discussion of, you know, the hierarchy of controls and, you know,
you're going to do A, and then you're going to do B, and then you're
going to do C.  In the last decade or so, that sort of discussion of
hierarchy of controls really doesn't fit for all types of workplaces,
so -- and certainly that's the case for some of these silica-related
jobs.

		So I'm here to discuss the proper use of powered air-purifying
respirators and respiratory equipment in lieu of large-scale engineering
controls that aren't feasible and not practicable and have been -- are
sort of in design stages and not available for large segments of the
working population right now.

		So some of the jobs in the fracking that were described in the Esswein
paper are the sand mover operator and transfer belt operators, and these
jobs have -- were shown to be 20 times the current PEL.  And that puts
you in a situation where you can't use, you know, a traditional
half-mask respirator.  You need to use something like a full-face mask
respirator, which has an assigned protection factor of about 50, or
powered air-purifying respirators.

		I actually brought with me an example of some of the newer -- one of
the newer powered air-purifying respirators that's available so you get
a sense of sort of the light-weight materials and its incorporation of
all types of PPE into one unit.  So this has a face shield and a dust
shield that wraps around the neck.  There's also a very small fan unit
that will attach to a belt and a very small battery pack.  Okay, and --

		JUDGE SOLOMON:  Let me just say, I have -- this is déjà vu for me.
I get these all the time.

		So you've already described pretty much what is -- what it looks
like, right?  We have -- we're making a record and --

		MR. SIRIANNI:  Okay.

		JUDGE SOLOMON:  -- transcribing this.  So are you going to provide us
with a picture of it, or --

		MR. CHAJET:  We'd be happy to provide --

		MR. SIRIANNI:  Sure.

		MR. CHAJET:  -- a photograph, Your Honor.

		JUDGE SOLOMON:  Okay.

		MR. SIRIANNI:  Or I could -- there's even, you know --

		MR. CHAJET:  We have two hours.  We want our witness to feel
comfortable about his testimony.  We don't want to speed him up.  We
want him to say whatever he has to say.

		MR. SIRIANNI:  Okay.  So I'll let it sit like this.  There, it's a
host.

		So basically this unit can now integrate all forms of personal
protective equipment into it.  So you can literally clip on some
earmuffs for noise control if needed; it has face protection already
integrated.  So it's really sort of a really nice system.

		Secondly, the batteries that are utilized now are -- have come an
exceptionally long way in just the last few years.  So they're very
lightweight, they recharge very quickly, and they're a lower cost.  So
it's something that, you know, the cost has come down on these units
quite a bit.

		So getting back to the fracking operation and the exposures that we
have seen, you're really going to need something along these lines to
protect workers in areas that you can't quite retrofit or add on
engineering controls.  You know, you're going to -- in these
operations, you know, the amount of air that you would need to put a
hood over something is -- it's just not, it's not possible.

		I've been in dozens of mine environments and they move air with these
huge fans and, you know, you need something along, you know, those
lines, but then with some type of capture hood and filtering mechanism,
and to move that much air it's just not practical.  So this would be a
way that you can immediately protect workers and have a positive effect
on the exposures that they are seeing in some of these jobs.

		Now, NIOSH themselves in this document also point to the use when the
controls are not feasible, and so respirators may be used when
engineering and work practice controls are not technically feasible or
when they fail and need to be supplemented.  So not only is this
something good for areas that even do have engineering controls already,
but with the potential for exposure that's there with the amount of
silica that can potentially be in the air with the amount that they're
using for, you know, the injection process and all that.  If an
engineering control fails, you have an exorbitant amount of material
that's going to be spilling into the work environment.

		People have been talking about, you know, you can monitor by looking
at, you know, dust in the air.  I can tell you if you look at the dust
cloud in the air when, you know, these materials are being ingested,
it's opaque, you know, if one of these units would fail.  So at that
point where are you?  You have just a huge exposure that's uncontrolled.
 So I would like to see workers be able to utilize something like this,
just because of the practicality of it and the like.

		So NIOSH and also OSHA also put out a hazard alert on fracking and
they outlined some work practice changes and a few engineering controls
in order to limit exposure.  And some of these engineering controls are
only in concept stage and so, you know, you're left in this area that,
you know, people are being left unprotected.

		So NIOSH also proposed the use of respiratory protection as a control
measure.  Specifically they state:  Respiratory protection, when it is
needed to protect workers when engineering work practice controls are
not feasible, while they are being implemented or when they do not
reduce silica levels below OSHA PELs, employers must provide workers
with respirators.

		So then if silica level is more than 10 times the PEL, a half-face
respirator is not adequate and in which case a full-face powered
air-purifying respirator must be provided.  And, in general, workers
find PAPRs more comfortable.

		There was also Dr. Mirer -- I don't know if he's still here.  He
was --

		DR. MIRER:  Hi.

		MR. SIRIANNI:  Hello.  How are you?

		So, you know, he mentioned something back in 1937 when there was lead
soldering or something happening, and then he went to speak on powered
air-purifying respirators and how they were discounted as being useful.
I have to say it's interesting that the current lead standard actually
recommends the use of powered air-purifying respirators when the
employee chooses to use one and when they are adequate for the
environment.  So that tells me that OSHA has looked at these as a
benefit.

		And as far as Dr. Mirer saying that these were not useful, I mean,
they were first developed in like the early '60s, and that was really
under the direction of respirator manufacturers trying to do something
about those individuals that have physiological issues or physical
issues with maybe facial malformations or -- it's very hip to wear
beards now.  So even folks that have beards typically couldn't wear a
traditional respirator because of the face seal.  This is something that
allows folks with respiratory ailments, facial conditions, even dental
problems, that can't wear a traditional respirator to put one on without
the need for fit testing.

		Which is another complaint that folks seem to have with respiratory
protection equipment is the need for fit testing and, you know, people
come in and they change jobs and then you need to fit test somebody
else.  And what is great about these is someone can be trained on a new
job -- there's a lot of, you know, temporary workers, people that come
in to do certain roles, and you don't need to, you know, send them out
or have a full course.  You can teach someone how to wear one of these
properly because they are -- they're relatively fool proof.  They're an
incredibly advanced technology, but -- and they're getting better all
the time, but they're very simple to use.

		Now, the NIOSH certification of these units, they look at both the
helmet and the mask, all the components, the fan systems, the
filtration, and they're really -- for the silica standard, they're sort
of ideal in the sense that when NIOSH certifies these respirators
they're looking at silica when they do the tests.  So they have these,
you know, four-hour dust test and they'll try and overload the mechanics
of them to try and see how they perform, the volume of air that's being
drawn through them, and, you know, from start to finish they can only
reduce a certain amount of their volume.  So anything that's certified
has been certified actually against, you know, dust and material that is
reminiscent of what we're trying to regulate here.  So they're good for
that purpose.

		Now, we talked about assigned protection factors, and the assigned
protection factor for a powered air-purifying respirator is 25, and that
is what NIOSH and OSHA have come up with.  NIOSH in their respirator
decision logic, and OSHA actually has a footnote related to these units.
 Because we know, you know, in all the newer peer-reviewed literature
and studies of these units that are more modernized than ones that Dr.
Mirer was mentioning, we know that they perform exceptionally well.  In
some cases, you know, in hundreds of thousands of protection factors.
So, you know, there's a certain point -- I'm not going to get into the
statistics where you cut it off and say, well, that's, you know, you
don't need to get into that level of protection because it would
essentially be like trying to inhale a cinderblock or something.

		But on the bottom end of that, they're also conservative in the level
at which they say here is your assigned protection factor.  They'll look
at the bottom five percent of not just an individual but between
individuals.  So there's, you know, a lot of conservative estimates that
go into these assigned protection factors.  OSHA themselves will give
you a 1,000 protection factor if you can display that in your own
workplace.  So that would be getting a unit like this and putting a
probe somewhere in and sampling on the inside and the outside
simultaneously and seeing the difference.

		I want to get into how far along these units have come in just the
last few years even.  They are useful and they work.  And, you know, my
students -- I have a lot of students that are -- they're basically
fire service; they're going into the fire service.  They're going to be
chiefs or assistant chiefs, and they require a good background in
occupational safety and health because they are actually -- they're
going to actually run their OSH programs, you know, within their own
departments someday.  And, you know, these guys are -- and gals are
very aware of personal protective equipment, and in the fire service
it's your only line of defense.  And they wear SCBAs and similar in
nature to -- sort of getting off track but -- sometimes I get off
track.  I apologize.  I'm just going to stay with this.

		So they're useful and they work, and there have been a lot of papers
recently that describe this.  They'll go and they'll get a bunch of
these units, and they'll test a variety of different PAPRs in different
working conditions, different work environments, different workplaces.
Some do it in a laboratory setting and those are what are called
simulated workplace protection factors, but this -- and then they do
them in the actual workplace.  And of all these studies that I've seen
recently, these have been shown to achieve that 1,000 workplace
protection factor, you know.  So that's a very conservative value.

		In the early days when these were sort of coming online and being
utilized, NIOSH had reduced their assigned protection factor from 1,000
down to 25.  And that was due to some early studies that looked at some
of these, you know, some of the first versions of these units.  And one
study that somehow just kept getting through and was very influential in
what they ultimately determined to then reduce these from 1,000 down to
25, was a study by Myers -- not Mirer, not the football star -- but
Myers.

		And this paper, buried in there in one paragraph, one line at the
bottom said, we also found some dust in the blower unit between the hose
and the connection.  So it literally had -- the unit itself had failed
and air was getting through behind the filter, but somehow they just
ended up keeping this study as being useful.  And so there's -- you
know, not only were those units sold, but some of the early studies were
kind of fraught with disaster.  So ANSI has these units at 1,000 with
the helmets like this.  And right out of the box there are some
additions that you can add where you can get that thousand protection
factor.

		But as far as being comfortable for the workers, I just really think
that if we're going to try and protect folks in areas that, you know,
we're obviously having difficulty, then this is the right way to go.

		So on top of just their comfort, they are also -- they don't impose
what's known as a physiological burden.  So traditional respirators,
they're what are known as negative pressure.  So you literally have a
seal against your face, and when you breathe in, it takes your lung
capacity and all that resistance to draw air through the filter and then
to inside the mask.  If you don't get a good fit or a good seal, if you
have to breathe deeply, which a lot of folks do in like hard working
environments or if you're real physical labor, you end up breathing
really rapidly, really fast, it's difficult, you end up -- you know,
you have heat load, reduced carbon dioxide, reduced oxygen levels,
carbon dioxide in the mask, you can draw contaminants in and around the
filter.

		These units essentially do away with all that.  They're powered, they
put fresh air at a decent volume into the mask.  It's easy to breathe.
You just breathe normally.  There's no reduced capacity for yourself,
and everybody finds them very comfortable.

		In my experience, I've had a lot of workers that were adverse to
traditional respiratory protection.  They had, you know, claustrophobia,
you know, I've had all these description of, you know, how people are
uncomfortable, and those aren't even people that are actually
physiologically affected.  They're just psychologically affected.  And
so these types of units had done away with those problems.  So, in
essence, there's been a lot of studies that also show how comfortable,
and there's been no physiological burden associated.

		NIOSH even addresses the protection of PAPRs in the context of
potential use in the hydraulic fracturing industry where they say:
"Full-face powered air-purifying respirators provide more protection
than half-face air-purifying respirators and, in general, workers find
PAPRs to be more comfortable."

		So while NIOSH proposes the use of full-face PAPR due to their comfort
and protection, it should be noted that the hood and helmet style have
inherently more comfort due to not having that seal pressed against your
face as compared with other respirators.

		And also another thing that I think is very important in trying to
control these exposures is realizing that if a worker finds something
comfortable, they have a tendency to wear it.  You know, I battled this
constantly in different work environments is folks taking off their
protective gear because it wasn't comfortable or it was obtrusive in
some way.  And folks across all types of work environments, including
EMTs going into certain locations where there's like, you know, a CBRN
issue or something and need to provide resuscitation, have utilized
these inside ambulances and have commented on the fact that they're
comfortable and they have no hindrance even moving around the confines
of an ambulance.

		So I think that there's enough data here to show that folks like them,
they provide adequate protection, they have no physiological burden and
they're useful.  And I think that they should be entered into the
discussion outside of the realm of this antiquated hierarchy of controls
to really put these things in a different category, because the
technology is there and there are thousands of workers that need
something immediately and this, I think, is the best way to provide
adequate protection.

		Okay.  And I'm going to wrap it up.  There are obviously benefits to
engineering controls, and by all means I want the use of engineering
controls when they are possible.  And in certain work environments, you
know, basically outdoor environments, continually changing workforces,
you need to have something that can protect all workers in all
scenarios, and engineering controls are good for most cases, but there
are a lot of workers out there that need something like this, and I
really recommend their use.

		I think that should do it for me.

		DR. SABRY:  Thank you.

		JUDGE SOLOMON:  Next.

		DR. SABRY:  Thank you.  Good afternoon, Your Honor.  Good afternoon.
My name is Faten Sabry.  I am a Senior Vice President at NERA Economic
Consulting, and I'm an economist by training.

		I have examined OSHA's methodology of estimating expected benefits of
the proposed silica rule, and I have also assessed the associated
Federal Register as well as various calculations and data files that
OSHA made available to the public.  And I would like to raise concerns
about specific quantitative issues that would affect OSHA's estimates of
the benefits of the proposed rule.  And please note that my comments are
mainly specific to the estimates related to the fracking industry.

		My first comment really has to do with the size of the samples that
OSHA used to estimate the exposure profiles -- or to estimate the
exposure profiles of various job categories in the fracking industry.
The first step in OSHA's computation of benefits is based on exposure
profiles of different job categories.  And in doing that OSHA -- or the
OSHA study relied on NIOSH reports for 11 fracking sites that were
conducted in 2010 and 2011.

		And in my first slide, I am showing you the summary or the breakdown
of the size of the samples for each job category that OSHA relied on for
fracking.  And, for example, for ancillary workers the sample size was
6; for conveyor belt tenders there were 2; for remote workers there were
a total of 26.  So this is the total of the size of the sample that OSHA
relied for this first step in deciding how many workers are exposed at
different levels of silica.

		When I added -- after replicating OSHA's computations, I've added to
that table a computation with a very standard statistical metric or
measure of certainty or reliability, which is a 95 percent confidence
interval of these estimates.  And as you can see from this table, for
example, the 95 percent confidence interval around the estimate of
silica exposure for ancillary workers ranges from 20 to 8,088.  What
does that mean?  Well, it means that there is roughly a 95 percent
chance that the true exposure level of workers in that job category be
as low as 20 and as high as 8,088.  And OSHA acknowledged in their
papers that these sites, the NIOSH sites were not randomly selected and
that the data does not exist to assess whether the sites are
representative.

		But even if one assumes that the sample size are representative of all
the sites in the fracking industry, a standard statistical measure like
the 95 percent confidence interval document a high level of uncertainty
in OSHA's estimates of silica exposure, which is their first step in
computing the benefits.

		My next comment has to do with the step that follows that in OSHA's
methodology.  So once OSHA computes or once OSHA's study computes the
exposure for the various jobs, they extrapolate to the population of
workers in the fracking industry.  The following step is where the study
would rely on the epidemiological literature to compute excess risk of
various diseases.

		To be very specific, OSHA relied on three epidemiological studies on
the dose-response function of documenting the relation between silica
and lung cancer, and used four models from these studies:  two from the
Steenland study, one from Rice, and one from a study by Attfield and
Costello.

		And that, I have a comment about the Attfield and Costello effect on
OSHA's estimate of excess risk for lung cancer in particular.  And to
demonstrate that I will -- I'll bring your attention to the chart that
I'm presenting to you here.  And this chart is -- I computed this chart
using the exact same models, four models that OSHA used to compute the
excess risk of lung cancer using the exact same functional forms.  And
the only thing I did is I varied the level of exposure on the horizontal
axis and what I'm measuring on the vertical axis, and what you're seeing
is the level of excess risk.

		And as you can see, for example, at an exposure level of 100 on that
chart, the Attfield and Costello model would predict an excess risk of
lung cancer that is twice as large as every -- as any of the other
models that OSHA relied on to compute the excess risk of lung cancer
among the fracking workers.  And as you can tell from the chart, that
impact or the outlier result of Attfield and Costello increases as the
exposure level increases.

		And to assess the impact of that study, I also computed the avoided
fatalities or the -- as well -- the same way that OSHA did, using
their backup files, and computed the annual number of avoided fatalities
from lung cancer without that one study, and I find that the results
would decrease by 46 percent.  That one study has that significant
impact on the computations.  And it would have been helpful to maybe
report the results with and without the effect of this one clear study
that seems to be an outlier relative to the other studies, particularly
for lung cancer.

		My third comment has to do with the way OSHA treated the use of
respirators when calculating the cost and benefits for the fracking
industry.  And, again, all my comments are based on an analysis of the
data and the computations underlying OSHA's results.

		So when OSHA estimated the cost of the proposed rule in the fracking
industry, the computations took into account that some workers were
already in compliance in terms of the use of respirators.  Okay.  So
assuming everything else is the same, that would lead to a lower cost of
compliance than would have been had you also had to tagalong or add on
the additional cost of respirators.  But then when OSHA came to compute
the benefits of reducing the exposure level, OSHA assumed that there was
no respirator usage in the fracking industry.  And that in itself, at
least for the fracking industry, there was evidence in the record from
ERG, and this is -- the slide here just shows a table directly from
ERG's report, where they indicate that there was a -- as far as
respirators are concerned, there was at least a 98 percent compliance in
the fracking crew, according to ERG.  This is not a number that I
independently verified.

		However, in order to assess the possible impact on OSHA's results of
the use of respirators -- and this is a hypothetical or an example --
what I did is, I computed the percentage of workers in the fracking
industry whose exposure would exceed 50 had we taken into account a use
of half-mask respirators, not even full-mask respirators.  And that
would have taken OSHA's reported percent of 69 percent down to 23
percent.  So if we were take -- we were to make an adjustment or an
acknowledgment that there is some application or use of respirator in
the industry, then OSHA's estimate that 69 percent of fracking workers
are now, are currently at exceeding the 50 mark would have gone down to
23 percent.

		My next comment has to do with the methodology that was used to
compute the benefits.  So once that OSHA computed the exposure levels at
the various job categories and extrapolated that to the workers in the
fracking, the next step was to apply the epidemiological studies to
identify the amount of excess risk related to various diseases among the
relevant workers.

		In order to compute the benefits, the OSHA study developed two
counter-factual worlds:  one in which all workers were assumed to be in
compliance at 100 PEL; then they computed the avoided fatalities and
illnesses assuming compliance at 50, and then they took the difference
between those two numbers.  And that's how -- that's the methodology
that was used definitely for computing the benefits of the proposed rule
in terms of avoided fatalities and illnesses in the fracking industry.

		And my comment is based on, you know, again, the same data files and
computations that OSHA provided.  If we were to use the exact same
logic, the same methodology, and compute the number of avoided deaths
and illnesses between the baseline exposure, which is where we are today
in the fracking industry, and full compliance at 100 percent, and again
I am reporting numbers in OSHA's own backup data files, you will find
that the benefits in terms of avoided fatalities and illnesses would
have been substantially higher than the benefits of going from full
compliance at 100 to full compliance at 50.  More specifically,
achieving full compliance at the current PEL would be about 11 times
more effective than the reduction that went from 100 to 50 in terms of
avoided fatalities, and 4 times more effective in terms of avoided
illnesses.  So I would suggest -- you know, I think given these results
and given that these results were in the backup files of the
computations that OSHA did, it would be important to consider the
implications of these comparisons.

		And my final comment has to do with silicosis-related deaths.
According to the National Occupational Respiratory Mortality System,
NORMS, as you can see, the number of deaths with silicosis as an
underlying cause had dropped from 557 in 1968 to 52, according to NORMS.
 And for clarification, the CDC defines underlying cause of death as the
disease or injury that initiates a train of events leading directly to
death.

		Now, let's compare that to OSHA's predictions that the annual number
of avoided silicosis-related deaths for all industries due to the
proposed rule would be 102 once the proposed rule is fully effective.
That would be nearly twice the number of actual silicosis deaths in
2010.

		This data, which is directly taken and compiled from the CDC website,
raises questions about the computation of the expected benefit from the
proposed rule.  Thank you very much.

		JUDGE SOLOMON:  Mr. Bird.

		DR. BIRD:  Thank you.  I'll try not to spill that.  Your Honor, my
name is Ronald Bird,

B-i-r-d, and I am Senior Regulatory Economist for the United States
Chamber of Commerce.  I'm here today to discuss my review of the
analysis of compliance costs and economic feasibility of the proposed
respirable silica standard as presented by OSHA in its Notice of
Proposed Rulemaking.  The full text of my review has already been
submitted to the record and my remarks today are a brief summary of
that -- those findings that are already in the record.

		OSHA, in my opinion, has not shown that the proposed rule is
economically feasible.  And this is because OSHA has failed to consider
important aspects of the problem of assessing the costs of economic
feasibility of the proposed rule, including the variability of
compliance costs across the distribution of facilities, including the
effect of the proposed compliance schedule on compliance cost and
feasibility, including the extreme uncertainty surrounding its cost
estimate, and including the impact of the proposed rule to possibly
create a labor market shortage of industrial hygienist professionals.

		Considering all the flaws, errors, and omissions that I've seen in
OSHA's analysis, it is my opinion that the compliance cost for this
proposed rule could range from 1.5 billion to 6 billion or more per
year, 2 to 10 times the amount forecast by OSHA.  I think that such a
high range of uncertainty suggests that the risk is too great to support
a regulatory decision based on OSHA's current analysis.  There is just
too much that is unknown and uncertain.  Even the lower end of the
likely cost range could imply economic infeasibility for many employers,
and the upper end of the possible cost range could imply economic
infeasibility for most.

		The following points summarize the salient flaws in OSHA's analysis
and the reasons why I think OSHA's proposal does not demonstrate
economic feasibility.

		First, OSHA's analytical approach is fundamentally flawed by OSHA's
entire failure to consider the distribution of compliance costs across
the spectrum of affected establishments in each industry, and by OSHA's
failure to conduct the necessary surveys and research to obtain data to
accurately characterize the distribution of compliance costs.  OSHA
assumes that a single typical facility characterizes the spectrum of
firms in each industry, and it ignores the reality that facilities of
different age, different configuration, and different production
specifics will likely experience quite different compliance costs,
especially for installation of engineering controls.

		Secondly, OSHA's preliminary economic analysis is incomplete.
Significant cost elements have been entirely omitted.  Significant
numbers of establishments that will incur costs have been omitted and
significant secondary economic impacts on the U.S. economy have been
ignored.

		Third, OSHA's preliminary economic analysis is not accurate.  OSHA's
compliance cost analysis is rife with instances where key cost
computation parameters are given arbitrary values without a clear basis
in fact, and in other instances OSHA relies on flimsy and I think
unrepresentative observations to establish critical baseline conditions
for determining the level and distribution of compliance costs.

		Fourth, OSHA failed to conduct the basic survey research and
scientific experiments on which an analysis of economic impact and a
determination of economic feasibility for such a complex and
broad-reaching regulation should be based.  OSHA's failure to consider
and assess the time dimension of Number 5, of time of compliance cost,
is another concern.  OSHA should have assessed the impact of the time
dimension in relation to its proposed compliance schedule.  OSHA's
proposal would require employers to achieve complete compliance with the
proposed PEL by retrofitting or in some cases having to rebuild
facilities to incorporate engineering controls within one year of the
effective date of the final rule.

		OSHA has ignored the realities that especially significant changes in
the structure and the organization and the operation and the equipment
in a complex facility requires months, if not years, of planning,
design, obtaining appropriate governmental permits, of testing and
training.  And just the work of getting a contract done and getting a
contract in place and having the work done, including also possible
backlogs because so many facilities will be having to comply with this
new rule, there may be shortages of critical pieces of equipment and
materials in the pipeline.  These problems and challenges seem not to
have been taken into account in OSHA's analysis, and each of these can
have significant impacts on the actual cost in relation to the speed
with which you try to bring a facility into compliance.

		Sixth, OSHA failed to examine the adequacy of the supply of
occupational health professionals to meet the demand for services that
would be required to enable employers to comply with the proposed
regulation.  There is a significant risk, I think, that the lack of
available service providers or the resulting escalation in the costs of
their services because of such shortages, will render compliance with
the proposed rule within the schedule proposed by OSHA technically and
economically infeasible.  And also, there's the danger that the attempt
to comply with this rule will compete critical occupational safety and
health resources away from other important safety and health activities
and, therefore, result in offsetting of effects of higher injuries and
illnesses from other causes because of the shift of resources that this
proposed rule will mandate.

		I think there is a significant risk that this rule, if adopted, will
have serious adverse economic consequences for the nation.  And that's
the central question of economic feasibility.

		Let me give you an example.  In the context of analysis of feasibility
of controlling exposure to the proposed new PEL in foundries, OSHA's
primary consultant, ERG, in 2008, in a 2008 report, advised OSHA that,
quote, "operators in some foundries will not reach this level,"
referring to the PEL, "because casting size or the need to manipulate
castings will make it more difficult to fully enclose this high energy
operation.  For some older, less modernized facilities, it might be more
practical to replace existing open shakeout equipment with more modern
enclosed or automated equipment for separating sand from castings."  In
some instances, ERG writes -- "In some of these cases," ERG writes,
"foundries would need to fully automate and rebuild the facility to
reach exposure levels of 50 µg/m3 or less."

		Now, the recovery of manufacturing is at the foundation of the
President's agenda to restore economic well-being of middle class
Americans.  The foundries described in the ERG report in 2008 are
critical elements of America's manufacturing infrastructure and a
regulatory action that would necessitate the total rebuilding/replacing
of a substantial number of these facilities, and along with that the
potential that when it has to be replaced it might well be off shore to
another country, this would have a profound negative impact on the
economic resurgence of America that is just underway.  We need to ask
how prevalent are cases where retrofitting engineering controls will
force employers and industries to close or rebuild existing facilities,
and possibly lead them to decide instead of rebuilding here where we
are, we'll move off shore.

		These are questions that go to the heart of the determination of
economic feasibility of the proposed rule, and these are questions that
OSHA has not answered with credible evidence.  OSHA has not answered the
necessary questions about the distribution of economic impacts across
facilities by facilities' age, by their design, by their operations, by
their condition, and by the region in which they operate with any of its
available data.  A full-scale, a full-scale national survey of baseline
conditions, practices, exposures, and other characteristics in the
affected industry sectors, on an industry-by-industry basis and on a
construction-activity-by-construction-activity basis is needed to reveal
the full range of costs and economic impacts of the proposed rule and to
determined accurately and credibly the economic feasibility of this
proposal.  OSHA's current analysis cannot be relied upon as an accurate
basis for determining the economic feasibility of the proposed rule
because this essential step has been omitted.

		So here we have the fundamental flaw in OSHA's analysis of compliance
and economic feasibility as its "one size fits all" approach, which
assumes that a single typical facility in an industry adequately
represents the entire industry sector for purposes of assessing
compliance cost and feasibility.  This is a flaw that permeates OSHA's
analysis for every one of the 25 general industry and maritime sectors
and 6 construction activities for which OSHA assesses technological
feasibility compliance cost and economic feasibility.

		It is a flaw that cannot be corrected with the existing data that OSHA
has compiled and reviewed because that data is not statistically
representative of any of the industry sectors or activities of concern.
It is a flaw that can only be corrected by OSHA doing the statistically
representative sampling and surveys that OSHA should have known from the
very beginning was necessary and that OSHA certainly should have become
aware was necessary and essential following the 2008 report from its
contractor, ERG.

		The question of economic feasibility of the proposed standard cannot
be answered with any degree of economic certainty without the results of
a comprehensive national statistically representative survey for each
affected industry of the baseline exposures, current control practices,
and assessment of the specific compliance engineering retrofit costs
including, where applicable, rebuilding, as suggested by ERG for
each -- to do this for each facility in the sample.  Such a survey
could have been done by OSHA over the past 10 years.  Such a survey
should have been done.  And I believe that such a survey must be done
before the present rulemaking moves forward.

		Another concern that I have involves underestimation of cost impacts
that OSHA did address -- or rather, that OSHA did not include in its
analysis.  OSHA omitted key elements, and among these are general
familiarization costs with the rule, specific initial and ongoing risk
assessment and exposure monitoring costs, and costs for financing the
capital investments needed for retrofitting or totally -- and in some
cases, totally rebuilding facilities, which flows from the lack of
looking at the distribution of the types of facilities that I referenced
earlier.

		Now, I'll talk a minute about familiarization costs.  General
familiarization costs comprise an element of the compliance costs of
every regulation, and I'm puzzled that this really hasn't been addressed
in OSHA's analysis here, because I know from my personal experience
of -- including as a former contractor providing support for OSHA in
various contexts, that this is an issue that has been recognized and has
been discussed in the past.

		For any new or revised regulation, every employer covered by the
Occupational Safety and Health Act will need to make an initial
determination of whether any of the establishments that the employer
operates are affected in any way by the new or revised rule.
Familiarization covers at least the basic initial screening of the
published new rule to determine the likelihood that the regulation
contains any applicable requirements or exposes the employer to any
legal liabilities that might merit further examination.

		For employers who are unable to conclude, then, from an initial
screening whether a new or revised rule applies or does not apply, there
then would be a further extended familiarization process required to
fully review the regulation to determine in detail what elements of the
regulation apply and to then plan organizational responses, adjustments,
and so forth to comply with the rules.  This is before actually
implementing anything, just to see what do we have to do and let's think
about how we would proceed to do it.

		These initial and extended familiarization steps impose costs on
employers.  Knowledge of new or revised legal obligations or the fact
that you don't have any obligations is information that does not flow to
employers by costless osmosis.  Someone, the owner or the chief
operating officer, a designated management or legal specialist or
occupational safety and health specialist, must expend time and effort
to obtain and process new or revised regulatory information and figure
out what it means for the organization.  In large corporations this task
may entail time and effort of coordination and communication among
several highly compensated executives and professional specialists.

		The cost is not only imposed on the actual targets of the regulation,
the million or so of -- the actual number of affected establishments
that OSHA identifies in its cost analysis as having potentially to incur
costs, but on a much wider number.  Because even though OSHA may know,
think it knows who is affected and who is not, I don't know whether I'm
one of the lucky winners or not, whether I'm in or out.  And so, the
cost is imposed on a broad range, on all employers, because each
employer must exert at least some effort, at least an initial effort,
and thereby suffer some opportunity cost in the process to determine
whether or not that firm and its establishments are inside or outside
the affected pool.

		Now, once you've made that determination, am I in or am I out, then
the extended element of familiarization cost is also relevant.  And this
element applies to those who answer the initial question with yes, this
revised rule does apply to me.  The extended element of familiarization
cost then entails the question, okay, what do I need to do?  Answering
this question requires the employer to thoroughly review the regulation
and to interpret it in the context of the specific facilities, which
requires some further investigation and looking around, and activities
of that specific firm.

		For the 1 million establishments listed by OSHA where employees are
potentially exposed to silica, regardless of the level of exposure, this
extended familiarization process could take many hours of professional
labor time.  And this has not been addressed anywhere that I can find in
the PEA or in any of the other supporting documents.  OSHA has not
considered this important cost element, and it is potentially very, very
large.

		I can't at this stage say what a precise number should be, but even if
you just hypothesize a reasonable kind of number of hours, you get a
number in the hundreds of millions of dollars for at least the initial
year.  And this is a number that affects at least the economic
feasibility of initial compliance in the initial year.

		OSHA should address this issue with appropriate empirical research,
including surveys or controlled experiments.  You can conduct an
experiment just to see how long it takes an educated person to read the
regulation and correctly answer questions about what it says, you know.
You can -- in fact, I've done this with students in classes, and it's
very revealing about how important it is for agencies when they
promulgate new regulations to try to really write the regulation text in
such a way that, up front, people really know right off the bat whether
they're included or not included.

		But if you look at the proposed regulation text here, you see a whole
lot of circuitous references that you're enclosed, you're under this if
you refer to this other rule -- you've got to go referring somewhere
else to find out where you're in, where you're out, and all of this
takes time, instead of writing it in plain language that at least
somebody can quickly assess, hey, this applies to me or, hey, this
doesn't.

		This is the kind of issue that in fact OSHA previously tried to
address also through compliance assistance, expert systems, and other
kind of products, which may help, but a problem we -- that's always
been encountered in that context is that all an employer can really rely
on is, not some summary or some online press release, but the actual
regulatory text.  So it's important that the regulatory text itself be
written in a clear manner.

		Now another issue of -- just in the couple of minutes that I've got
left, I want to touch on, is -- involves OSHA's calculation of economic
benefits based on the assumption that every worker exposed to
current -- currently to levels of silica above the proposed PEL would,
in the absence of the proposed rule, continue to be exposed constantly,
8 hours daily every working day, for 45 years.

		There are two errors embedded, I think, in OSHA's calculation here:
first, the 45-year working life assumption; and second, the continuous
year-round exposure assumption.  Each of these contributes, I think, to
a gross overestimation of the economic benefits of the proposed rule.
Despite OSHA's claim that the proposed level of protection is needed
because some worker hypothetically could work under constant daily
exposure for 45 years, does not translate into a benefits calculation
that the benefits should be based on the assumption that every currently
exposed worker is exposed to that extreme scenario.

		And, finally, another item that I think is important to consider is
OSHA's failure to consider the question of whether the supply of
occupational safety and health professionals can adequately respond to
the demand shock of the proposed regulation, especially given the time
schedule of implementation that OSHA is proposing.

		Of particular concern is the supply of certified industrial
hygienists, who are involved at critical junctures in a number of
aspects of compliance with the proposed rule.  They have to conduct
extensive new exposure assessments, collection of workers' silica air
sampling, consultation regarding adoption of controls, and the necessity
of respirator use in certain circumstances, et cetera.  BLS data for
2012 show that the total supply of college-educated occupational safety
and health professionals in the United States is only 62,900, of which
certified industrial hygienists comprise a subset.  Unemployment among
these professionals is practically nothing today.  The additional work
demanded from these professionals to help employers comply with the
proposed standard would likely exceed the capacity of the existing
supply of already fully employed professional service providers,
especially given the short time frame.

		For the 1 million potentially affected establishments identified by
OSHA in this analysis, a mere 3 days, 24 work hours per year per
establishment of professional occupational health services would require
12,000 full-time professional workers.  This would represent a 19
percent increase in the supply of professional health workers, and the
compliance schedule proposed by OSHA would require this increase to
happen almost immediately, despite the fact that to train a professional
occupational health worker takes at least a four-year college degree and
often a two-year master's degree beyond that.  Such an immediate
increase in the professional labor supply seems impossible.

		And I'm not saying by my example that this is the number of hours and
this is the number you come up with.  I'm just saying just a -- I think
positing a reasonable idea, a fairly small idea of what it would be
implies a big problem for the labor market, which is why OSHA should at
least have addressed this issue in detail by really analyzing, well, how
much services will we be requiring?  Maybe it'll be 24 hours a year per
establishment; maybe it'll be less, maybe it'll be more.  The point is
we don't know.  OSHA doesn't know because OSHA hasn't even apparently
thought about the problem.

		In conclusion, I think OSHA just simply has not conducted the research
that is needed to provide a credible foundation for the determination
that this complex broad-reaching proposal is economically feasible.  It
seems that at every juncture OSHA has chosen to do less rather than more
of the difficult complex research work and data collection that needs to
be done, and never enough of the detailed field research that such a
rulemaking requires.

		Thank you.

		JUDGE SOLOMON:  Mr. Chajet.

		MR. CHAJET:  Thank you, Your Honor.

		I have to get another slide back up here.

		So let there be no mistake, the United States Chamber of Commerce and
all of the businesses and entities that it represents believes that all
occupational health and safety problems must be solved and that not one
illness or injury is acceptable.  But we also believe that the current
performance of American industry is the most incredible success story in
occupational health in the last 100 years.  And if you look at these CDC
numbers, you can look at them all day long, and they show nothing but
incredible achievement of trend, as the discussion that took place the
other day by David Goldsmith and one of our witnesses exemplify.

		David Goldsmith, Dr. Goldsmith was one of the first people that ever
talked to me about silica disease 30 years ago or more, and this
achievement is a marvelous achievement.  It is the best set of data we
have, and you can try to change that data all you want, but it is the
Center for Disease Control data.  And if you run analysis of this, no
matter how you analyze it, it's a steeply, steeply declining trend and a
tremendous success story that needs to be and will be continued.  So
that's the first point.

		This is Dr. Sabry's slide, where they statistically extended this
graph for another few years, and it shows the continued trend.

		So let me stop there and say that this has been a hearing for several
days that has been somewhat disappointing to us and we want to register
these procedural objections to the hearing and to the process.  We may
have others, but this is a good start, and we want to make sure that
everyone understands that the failure to conduct a SBREFA review of
current conditions that includes the fracking industry is a major
procedural problem for this rulemaking.  Relying on 11-year-old
proceedings and outdated economic data from before the recession doesn't
work.

		We are concerned that there was an allegation that there were OMB
documents withheld and no explanations made, and we join in the request
that all documents relevant to this rulemaking be released for public
viewing and for transparency purposes.  We have not seen any number of
the peer review documents.  We have not seen the correspondence or the
individual comments.  We've not seen the e-mails and memoranda involving
this rulemaking.  We've not seen the documents related to OSHA's
contractors who did most of the work, particularly ERG.  We've not seen