INFORMAL PUBLIC HEARINGS FOR THE PROPOSED RULE

ON OCCUPATIONAL EXPOSURE TO

RESPIRABLE CRYSTALLINE SILICA

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UNITED STATES DEPARTMENT OF LABOR

OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION

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March 31, 2014

9:30 a.m.

Frances Perkins Building Auditorium

200 Constitution Avenue, N.W.

Washington, D.C. 20210

BEFORE: 	STEPHEN L. PURCELL

	   	Chief Administrative Law Judge

U.S. DEPARTMENT OF LABOR (DOL):

ANNE RYDER

Attorney, Office of the Solicitor

ANNA LAURA BENNETT

Attorney, Office of the Solicitor

OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION (OSHA):

DAVID O'CONNOR

Director, Office of Chemical Hazards - Non-Metals

PATRICIA DOWNS

Office of Technologic Feasibility

ROBERT BLICKSILVER

Office of Regulatory Analysis - Health

JOANNA GORSE

Office of Physical Hazards

DALTON MOORE

Office of Technical Feasibility

TOM MOCKLER

Acting Director, Office of Regulatory Analysis

- Safety

MASON CONTRACTORS ASSOCIATION OF AMERICA (MCAA):

RASHOD JOHNSON, PE

NATIONAL CONCRETE MASONRY ASSOCIATION (NCMA):

ROBERT D. THOMAS

President

CONCRETE SAWING AND DRILLING ASSOCIATION (CSDA):

PATRICK O'BRIEN

Executive Director

MILLER AND LONG COMPANY:

FRANCISCO ANTONIO TRUJILLO, CSP, MSOS

Safety Director

iQ POWER TOOLS

JOEL GUTH

President

INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTWORKERS (BAC):

TOM WARD

DALE McNABB

TOMMY TODD

SEAN BARRETT

DENNIS CAHILL

JAMES BOLAND

President

ANNE KEARSE

CARYN HALIFAX

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME):

DIANE MATTHEW BROWN

Health and Safety Specialist

OTHER PARTICIPANTS:

CHRIS TRAHAN

Building and Construction Trades Department, AFL-CIO

SCOTT SCHNEIDER, CIH

Director of Occupational Safety and Health

Laborers' Health and Safety Fund of North America

WALTER JONES

Laborers' Health and Safety Fund

MARK KEMP

Chairman, Mason Contractors Association of America

BRAD HAMMOCK

Attorney, Jackson Lewis

Construction Industry Safety Coalition

JEFF BUCZKIEWICZ

President, Mason Contractors Association of America

PEG SEMINARIO

Safety and Health Director, AFL-CIO

ELIZABETH NADEAU

Attorney, International Union of Operating Engineers

INDEX

										PAGE

INTRODUCTION

Judge Stephen L. Purcell						  PAGEREF Intro \h  2874

MASON CONTRACTORS ASSOCIATION OF AMERICA (MCAA);

NATIONAL CONCRETE MASONRY ASSOCIATION (NCMA);

CONCRETE SAWING AND DRILLING ASSOCIATION (CSDA)

	MCAA - Rashod Johnson, PE				  PAGEREF Johnsontestimony \h  2875

	NCMA - Robert D. Thomas					  PAGEREF Thomastestimony \h  2889

	CSDA - Patrick O'Brien					  PAGEREF OBrientestimony \h  2897

	Questions								  PAGEREF Questions1 \h  2905

MILLER AND LONG COMPANY, INC.; iQ POWER TOOLS

	Miller and Long -

	Francisco Antonio Trujillo, CSP, MSOS		  PAGEREF Trujillotestimony \h
2957

	iQ Power - Joel Guth					  PAGEREF guthtestimony \h  2969

	Questions								  PAGEREF Questions2 \h  2979

INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTWORKERS (BAC)

	Tom Ward								  PAGEREF Wardtestimony \h  3016

	Dale McNabb							  PAGEREF McNabbtestimony \h  3022

	Tommy Todd							  PAGEREF toddtestimony \h  3027

	Sean Barrett							  PAGEREF Barretttestimony \h  3035

	Dennis Cahill							  PAGEREF cahilltestimony \h  3040

	James Boland							  PAGEREF Bolandtestimony \h  3045

	Questions								  PAGEREF Questions3 \h  3051

INDEX

										PAGE

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME)

	Diane Matthew Brown						  PAGEREF Browntestimony \h  3106

	Questions								  PAGEREF Questions4 \h  3118

ADJOURNMENT								  PAGEREF adjournment \h  3131

EXHIBITS

EXHIBITS		DESCRIPTION				 	PAGE

Exhibit 94	Mr. Johnson's testimony			  PAGEREF exh94to96maradm \h  2905

Exhibit 95	Mr. Thomas' testimony			  PAGEREF exh94to96maradm \h  2905

Exhibit 96	Mr. O'Brien's testimony	  		  PAGEREF exh94to96maradm \h
2905

Exhibit 97	Mr. Trujillo's testimony			  PAGEREF exh97markadm \h  2969

Exhibit 97A	Mr. Trujillo's supporting data	  PAGEREF exh97Amarkadm \h
3014

Exhibit 98 	Mr. Guth's PowerPoint/photos 		  PAGEREF exh98to100markadm
\h  2978

Exhibit 98A	Mr. Guth's testimony  	   		  PAGEREF exh98Amarkadm \h  3014

Exhibit 99	Mr. Guth's test data			  PAGEREF exh98to100markadm \h  2978

Exhibit 100	Mr. Guth's test samples	  		  PAGEREF exh98to100markadm \h
2978

Exhibit 101	BAC video						  PAGEREF exh101and102markadm \h  3050

Exhibit 102	BAC PowerPoint			  	   	  PAGEREF exh101and102markadm \h
3050

Exhibit 103	Ms. Brown's testimony			  PAGEREF exh103to107markadm \h
3117

Exhibit 104	AFSCME submission				  PAGEREF exh103to107markadm \h  3117

Exhibit 105	"Silicosis in Dental Laboratory 					Technicians"
PAGEREF exh103to107markadm \h  3117

Exhibit 106 	"Highway Repair: a New Silicosis 					Threat"
PAGEREF exh103to107markadm \h  3117

Exhibit 107	"Dangerous Dust: Exposure to 						Crystalline Silica in
Alberta	  	  PAGEREF exh103to107markadm \h  3117

P R O C E E D I N G S

(9:31 a.m.)

		JUDGE PURCELL:  Good morning, ladies and gentlemen.  My name is
Stephen Purcell, and I'm the Chief Administrative Law Judge for the U.S.
Department of Labor.  Today is Monday, March 31st, and this is the 10th
day of the OSHA hearing on exposure to respirable crystalline silica.

		The first item on the agenda this morning is Rashod Johnson who
represents the Mason Contractors Association of America.  Mr. Johnson,
if you'd come forward, we'll begin with your testimony.

		MS. RYDER:  And, Your Honor, we'd also like Robert Thomas from the
National Concrete Masonry Association to come at the same time so both
can appear.

		JUDGE PURCELL:  All right.  Mr. Thomas, are you here?

		MS. RYDER:  Okay.  And also Patrick O'Brien from the Concrete Sawing
and Drilling Association if he's here.

		JUDGE PURCELL:  Anybody else you'd like   to --

		MS. RYDER:  Not the --

		JUDGE PURCELL:  Okay.

		MS. RYDER:  Just those three.

		JUDGE PURCELL:  Mr. O'Brien, are you here as well?

		MR. JOHNSON:  Hmm?  Go ahead.

		JUDGE PURCELL:  All right.  Gentlemen, if you would introduce
yourselves with your full name and the parties you represent, and then
you can begin your presentations going down in the order we just
described.

		MR. JOHNSON:  Rashod Roderick Johnson representing the Mason
Contractors Association of America.

		MR. THOMAS:  And good morning.  My name is Robert Thomas.  I'm with
the National Concrete Masonry Association.

		MR. O'BRIEN:  And good morning also --  Patrick O'Brien, the Executive
Director with the Concrete Sawing and Drilling Association.

		JUDGE PURCELL:  Okay.  Mr. Johnson?

		MR. JOHNSON:  	Thank you.  Thank you for the opportunity to testify in
front of you.  My name is Rashod Johnson.  I'm here today representing
the Mason Contractors Association of America.

		Before I begin with my comments, allow me to give a brief biography.
I'm an entrepreneur from Chicago that owns two engineering firms.  The
first is a construction materials testing laboratory.  We test
everything from concrete to asphalt, soils, steel.  The second is a
full-service civil engineering design and consulting firm.

		Earned a bachelor's and master's degree in civil and structural
engineering, emphasis in materials, and a master's in business.  I hold
professional engineering licenses in four states including Illinois,
which is my home base of operations.

		Previously I served as the Director of Engineering for the Mason
Contractors Association of America where I was an integral part in
Occupational Health and Safety of MCAA and all of our members.  It was
here, 13 years ago, that I was a member of the Silica Task Force and
began my research in respirable crystalline silica.  I served as the
committee -- Subcommittee Chairman of ASTM E3430 on construction  -- I'm
sorry -- on construction in silica from its inception in 2003 until 2013
when the subcommittee was reorganized.

		That subcommittee oversaw and maintained the development of the first
ever standard practice for controlling occupational exposure to
respirable crystalline silica for construction and demolition
activities.  It was published in 2006 and was tweaked and re-published
in 2009.  I remain an active member of this committee to this day on
behalf of the MCAA.

		Let's talk a little bit about that ASTM standard.  ASTM standard
E2625-09, standard practice for controlling occupational exposure to
respirable crystalline silica for construction and demolition
activities.  After OSHA's 2003 proposed silica rule stalled, the masonry
industry and in particular the Mason Contractors Association of America
realized that our association had missed the boat.  We'd missed the boat
pertaining to protecting our workers and our workforce from exposure to
respirable crystalline silica.  As such, the MCAA encouraged our local
and regional chapters to begin using OSHA's consultative program and
consultative services under the Special Emphasis Program all across the
country so that we can better ascertain what was our real exposure to
respirable crystalline silica.

		This information gathering occurred for the better part of four years.
 In that same four years, from roughly 2003 to 2007 the U.S. saw its
greatest economic upswing in construction industry after World War II.
This allowed us to gather a good amount of information and data
concerning construction exposure to respirable crystalline silica.

		Seeing that OSHA's rulemaking process had somewhat stalled around
2004, 2005, the MCAA and other construction associations decided to take
this data that we had all assembled and use some of this data in order
to develop a national consensus standard to control silica, particularly
and specifically in construction.  We recognized that our workforce was
far too important to neglect silica -- to neglect and silica exposure
posed a danger to all of us.  As a result we led the effort to develop a
standard practice within ASTM.

		After years of due diligence, research, data mining and balloting,
ASTM International, formerly known as the American Society for Testing
of Materials, published ASTM E2625 in 2006 and later improved upon in
2009 which is still the current version of the standard.

		Though ASTM had already developed a silica standard for the general
industry, the committee within ASTM realized and recognized the unique
challenges that construction and demolition activities faced when
dealing with this material.  Therefore, it was best to separate these
documents and focus one document specifically on construction.

		We modeled ASTM E2526 largely after the OSHA proposed rule in 2003.
For example, we instituted a hierarchy of controls, methods of
compliance, exposure monitoring, training, and even medical
surveillance.  More importantly, ASTM E2526 implemented task-based
control strategies similar to the proposed rule in the infamous Table 1.

		As we were developing this document, there were many members of the
construction industry, including some of our own association members,
that felt as though the standard that we were developing in ASTM was far
too stringent.  However, our goal was to develop a standard that
protected both our workforce as well as our members.  We did this by
including the workforce and the employers on the same ASTM committee.
Imagine that concept.  Everybody at the same table developing a standard
that's going to protect everyone in that industry.

		This committee ensured that both parties collaborated and compromised
as to what was in the best interest of the industry.  Let's be clear.
There are many similarities between the proposed rule and ASTM E2526.
This is proven by the at least 25 citations within the proposed rule of
the ASTM standards.  However, we're not here to discuss the
similarities, but rather the stark differences.  In particular there are
two: the permissible exposure limit and Table 1.

		The current construction PEL as calculated is roughly somewhere around
250 µg/m3.  The ASTM committee realized that this was probably too high
in terms of effectively protecting our workforce.  After some serious
internal fights, we were able to compromise within our committee on 100
µg/m3 as our limit.  We did this partially from the data that we had
received and partially from the OSHA Special Emphasis Program.

		Some of the reasons for this were as simple as the type of material
used.  Most of our tests, even when using engineered controls and
sometimes respirators, could not get below a PEL of 100.  We couldn't do
it.  And, again, some of it were as simple as materials.  For example,
depending on the type of aggregate you use, depending on the type of
material you use your PEL could change tremendously in a cut if you use
a brick -- I'm sorry -- a brick where it's clay and there's very little
quartz involved in it silica might or might not be a big issue.  If you
use a highly quartz -- a high quality of quartz inside of a concrete
block your PEL might be a little bit different.  Those are some of the
things that no one even considered when looking at the standard, rather
just putting it all as one big blank slate.

		The PEL of 100 will actually force contractors to make some serious
changes in the way they are currently performing their work and even
then could still potentially set contractors up to fail as it was often
an unachievable limit.  This was at 100 µg/m3.  A PEL of 50 or
effectively 25 will undoubtedly make it such that no mason contractor
under any construction circumstance can comply.  It will ensure that
every single contractor cutting masonry will be in violation.  So if
this is your goal, you will succeed.

		Let's talk about Table 1.  Table 1 in ASTM's E2526, yes, we have a
Table 1 in our standard as well, was developed in a manner that was
supposed to mimic the intent of the proposed rule of 2003.  Basically
should a contractor follow these basic steps they should be protected.
For example, in ASTM E2526, Section 4.4.1 we state, "Where exposure
levels are known from empirical data, a task-based control strategy
shall be applied that matches tasks with controls," and then lists
examples of these tasks and controls.

		One of those examples are cutting clay and concrete masonry units.
There's a 90-minute window to allow for occasional cuts without having
to implement controls.  This 90-minute limit in one workday is
significant to contractors because the vast majority do not cut all day.
 And the ones that do cut at cutting stations specifically demarcated
off site or away from the population of construction that allows them to
set aside different engineering and administrative controls.  This
allows for much-needed flexibility that the construction industry needs
to have when looking at controlling respirable crystalline silica.

		The MCAA felt as though ASTM was the best place for this document
because ASTM allows for the standard practice to become a living
document, a living, breathing document that can adapt and change as
technologies in our industry evolves.  In addition, the ASTM standard is
a nationally recognized consensus standard unlike any other -- I'm sorry
-- silica document that may have been developed for any particular
segment of our industry.  It's the only one that brings the entire
industry together, both labor, contractors, owners, everybody at the
same table.

		This distinction allows for the ASTM standard to be specified by
architects and engineers as a part of the official construction
documents of any construction project.  This makes it part of the
construction contract.  Secondly, ASTM standards can be referenced by
national and local building codes such as the International Building
Code or the Masonry Standards Joint Committee, hence making it law by
code adoption.

		Officials at OSHA were not only aware of this standard practice but
also attended and participated in many of our meetings.  We very
purposefully held a lot of our ASTM committee meetings in the D.C. area
with invitations to OSHA officials such that they could come, invite --
we -- they could come, participate, listen, add any sort of influence
that they may have wanted to and they did that for a lot of our
meetings.

		The current proposed rule cites ASTM, again, 25 times.  Oftentimes,
however, it's cited out of context without taking into account the
entire standard practice as a whole.  If given the opportunity, the MCAA
feels as though the ASTM E2625 document can more than adequately protect
the construction industry against overexposure to respirable crystalline
silica.  All we need is the opportunity to prove its effectiveness by
allowing it to be specified in the work in the way that it was intended.
 This will allow us to self-regulate our own industry.  At the end of
the day it's in our best interest to protect our workers, and that's
what we plan on doing.

		Let's talk a little bit about technical feasibility.  OSHA defines
engineering controls as the first and best strategy to control the
hazard at its source.  Engineering controls do this, unlike other
controls that generally focus on the employee exposed to the hazard.
The basic concept behind engineering controls is that to the extent
feasible, to the extent feasible, the work environment and the job
itself should be designed to eliminate hazards or reduce exposure to
hazards.  The key words in this entire definition is, "to the extent
feasible".

		What is feasible?  What is feasible in construction?  That's the key
question.  Construction, masonry construction in particular, is an
extremely mobile industry whose projects last for two to three weeks in
most cases.  Oftentimes mason contractors employ multiple small crews
simultaneously in order to increase efficiency.  So everyone talks about
wet cutting.  Is wet cutting feasible?  Probably, some cases.  Probably
not in others.  Oftentimes wet cutting causes additional hazards that
are rarely mentioned.  For example, the vast majority of masonry saws
provide water on the blade itself.  Water on the blade.  This is solely
for the purpose of cooling off the blade.  The side effect just happens
to be that the dust is sometimes suppressed.

		Now, manufacturers of these saws are starting to explicitly state that
the water used in this blade -- in this system is used for cooling the
blade only and should not be used to suppress dust.  Interesting.  Wet
cutting.  I live in Chicago.  Even though it's been a great winter, it's
still cold outside, extremely cold outside.  But construction is picking
up.  I can promise you there's not a mason contractor in Chicago that
wants to wet cut today.  Anywhere.  Scaffolding, not scaffolding.  You
introduce water to a system that there's not water in subzero
temperatures, and you will provide yourself with a bigger hazard than
you'll ever find from respirable crystalline silica.

		Another example is in California.  The California Environmental
Protection Agency has deemed that the silica slurry produced from wet
cutting is now classified as a hazardous material.  This means that
contractors in California now have to follow hazmat procedures for a
product that they're not really sure is proven harmful in its wet slurry
form.

		Lastly, to mandate wet cutting in all instances is just flat-out
shortsighted.  It's not feasible in all cases.

		Let's talk a little bit about technology.  The technology that's
necessary to comply with the proposed ruling has multiple problems.
From a purely technological perspective, most of the technology is
cutting edge and new.  Even though we've recognized in America or
nationally that silica has been an issue for the past 30 plus years no
one has taken the time, effort, energy to make sure that our technology
can actually do what this proposed rule says it can do.

		By default, cutting edge technology and new technology is largely
unproven, extremely cost prohibitive, especially to small firms, small
contractors, and widely -- and not widely available.  The MCAA realized
this when we published the ASTM standard whose PEL was actually four
times higher than the proposed PEL now.  So if technology, today's
technology, isn't widely enough spread to be used to cover at 100 µg/m3
we feel as though 25 is going to set everything up to fail.

		According to the Center for Disease Control, there are currently about
300 B readers in the entire U.S.  Three hundred.  Let's make the
assumption that they're spread all across America evenly.  What is that?
 Six per state?  Six per state, okay?  Yet the proposed rule would
require millions of construction workers to have this test performed.
In our consultations with OSHA we found that sometimes the B readers
took as long as four months to get results because there are so few.  In
fact, there's only four in all of Texas, for example.  Because there's
so few.

		So if we are doing this on a Special Emphasis Program where we're just
trying to get some small tests performed, imagine what this is going to
look like when millions of workers are going to have to have this test
done.  Four months?  Try four years.

		Simply put, the engineering controls and medical surveillance portion
of this construction industry is largely unready.  The -- this fact will
set thousands of contractors up to fail miserably.  Get cited, pay
fines, close their businesses due to no fault of their own.  Regardless
of the intent of the proposed rule, this will be the effect.

		Let's be clear.  The MCAA is not opposed to national standards.  Not
opposed to regulation of silica on construction sites.  Hell, we even
developed one of our own because we recognized the need to protect our
workers.  But it was for self-regulation of our own industry and begin
steps to protect our own workforce.  However, we feel that the proposed
standard overreaches in many areas with little to no additional benefit
to worker safety while in the meantime destroying the businesses that
are employing these workers.

		That's the irony here.  Small business owners, including myself, mason
contractors in particular, are in the business of mitigating risk.  It's
what we do.  This standard practice makes it almost impossible to
mitigate this risk.  Smart contractors will understand that this risk is
too great and will decide to do something else.  What I'm not sure
everyone understands is most contractors are not contractors.  They're
entrepreneurs.  We're going to make money regardless of where it is.
And if you make it impossible for us to do it in the masonry industry
most entrepreneurs will be okay.  What will happen to the millions of
workers who work for them?

		This economy is still depressed for many in the masonry industry, and
this proposed rule will be the last straw.  There are no workers to
protect if there are no contractors.

		Thank you very much.

		JUDGE PURCELL:  Thank you, Mr. Johnson.  I'm going to withhold
questioning, Mr. Johnson, till all three speakers have had an
opportunity.

		Mr. Thomas, you're next.

		MR. THOMAS:  Thank you, sir.  Oh, I get dual microphones?

		UNIDENTIFIED SPEAKER:  There you go.

		MR. THOMAS:  Thank you, Rashod.  I think you did a nice job with
explaining that, and for our sake on the National Concrete Masonry
Association, I hope the contractors are in business for a long time.  We
need the support of contractors to get our products into the field.

		So let me address my statements today from the National Concrete
Masonry Association.  I thank you for the opportunity to appear for you
-- before you today.  My name is Robert Thomas and I'm -- I serve as the
President of the National Concrete Masonry Association.

		Both the Association and its members are committed to ensuring the
occupational health and safety of its employees and appreciates the
opportunity to engage in deliberations on the best approaches to
accomplish these objectives.

		The products manufactured by our member companies are placed into
service by the laborers and craft workers that Rashod just described.
They're employed across a wide spectrum of contractors ranging from
landscapers to homebuilders to commercial masonry contractors.

		While we have concerns about the impact of this proposed ruling on the
customers of our products and the resulting feasibility of concrete and
masonry construction, I'll primarily stand in support of organizations
such as that of the Mason Contractors Association of America as well as
the Interlocking Concrete Pavement Institute, which will speak later
this week as it relates to construction concerns for masonry and
hardscapes respectively.  As such, I'll spend my time today a little bit
more focusing my comments on the general industry requirements as they
impact manufacturing within our industry.

		The concrete masonry industry has undergone consolidation over the
last couple of decades.  As such, we now have a number of larger
vertically integrated companies in addition to small, one-machine,
family-owned companies.  Certainly the nature of safety programs and
accessibility to resources to address safety issues varies considerably
between companies within these two extremes, but it is important to note
that of the 450 or so concrete block manufacturing companies in
operation today, about 90 percent of them employ less than 100 people,
and 70 percent of them employ less than 20 people.  Thus the average is
about 31 employees per company, a number that drops to about 18 per
manufacturing establishment.

		The first concern I will address today is therefore the basis for
assumptions made on the potential impact of the ruling on small
businesses in ours and in other industries.  Many now realize that the
construction economy in 2006 was a temporary illusion.  New
manufacturing capacity was being acquired at that time to meet the
demand, and newly purchased plants and production lines were being
installed even as late as 2011, several years after the bottom dropped
out on construction.  The result is a completely different business
dynamic than existed when cost feasibility studies were conducted in
2006 and completely different than when the last SBREFA panel was
convened in 2003.

		As evidence of the impact of the recession, please take note that the
industry demographics I articulated represent a decrease of about 25
percent in both the number of companies and establishments as well as a
decrease in payroll and employment of over 30 percent.

		In today's reset construction economy for concrete products, prices
are lower, margins are lower, and many small family-owned businesses
have used up all of their available resources to maintain payrolls
through a long, protracted recession.  There simply are not available
assets for these companies to invest in engineering controls, and there
is little accessibility to credit for equipment upgrades that will not
generate additional revenue or return on investment.

		I believe that it is not overdramatic to say that implementation of
this ruling at this time could drive a significant number of small block
producers out of business.  However, this is too important of an issue
to leave to conjecture.  To truly assess the impact on small businesses
such as those in our industry it is necessary to convene a new SBREFA
panel to appropriately assess the impact and cost benefit of the
proposed rule relative to today's business environment.

		The nature of a concrete block manufacturing facility naturally
induces exposures to employees across a wide range of tasks:  The
handling of raw materials such as sand and gravel; the transport of
materials and manufactured products across what is often an unpaved
storage yard; the possible proximity in common rural locations for
plants to farms and unpaved county roads; the charging of mixers; the
cleaning of mixers; the packaging of manufactured units; the
post-finishing of manufactured products through grinding, polishing and
sawing; and the general in-plant maintenance and cleaning.  Thus there
are a number of possible unique dust-generating tasks in a concrete
block plant, each requiring its own engineering solution.

		NCMA has roughly estimated an annual additional cost of about $25,000
for a typical plant to comply with the PELs in this ruling.  Consider
the -- considering the small size of most of our manufacturing
companies, there are very few employees over which the benefits of the
additional investments by the company can be distributed.  Thus, we have
concluded that not only are the costs of compliance higher than
estimated by OSHA, so too are the costs per employee.

		Given the magnitude of the possible required investment and the
limited availability of capital to these producers to implement
engineering controls, the time line for compliance may be too
restrictive.  A phased approach to reducing the PEL or implementation of
an action level would be more appropriate to reduce financial burdens if
indeed a reduction was implemented.

		The task of grinding, polishing, and antiquing in architectural
concrete block creates probably the most challenging task from a silica
control standpoint even if cost were of no object.  Beyond safety
considerations, there are also market expectations for a dust-free
finished product, creating another incentive for the manufacturers of
these products to limit dust.  So while engineering controls appear
feasible in these operations to meet the current 100 PEL, it has proven
difficult, if not impossible, to regularly comply with the proposed PEL
of 50, much less an action level of 25.

		The nature of dry cast concrete manufacturing where material is wetted
only enough to enable it to be compacted into a mold generates waste
material, which must be cleaned from mixers, from around machines, and
throughout the plant.  Vacuum systems for general cleanup are somewhat
impractical given their cost due to the wide range of needed collection
points throughout the plant.  While most plants avoid compressed air to
blow debris when possible, it is often the only viable approach to reach
hard-to-access areas around equipment.  Only a small percentage of block
plants use sweeping compounds as the compound contaminates the material
such that it cannot be recycled for re-use into the mix.

		Wet methods of cleaning and dust suppression, with the possible
exception of wetting unpaved yards and roads, have been demonstrated to
cause more problems than they solve.  As such, the prohibition of dry
sweeping should be removed from the proposed rule.

		As stated in our previously submitted public comments, the National
Concrete Masonry Association supports the positions of other
organizations such as the Crystalline Silica Panel of the American
Chemistry Council, of which we are a member.  And those comments are
that OSHA has not satisfactorily demonstrated the need for significant
revision to the standard relatives to the benefits being provided by the
current standard, nor has OSHA accurately accounted for the cost
associated with the implementation of the new standard in today's
manufacturing business environment.

		We thank OSHA for the efforts to engage industry in forums such as
these hearings, but respectfully submit that the level of engagement has
still not been adequate.  The producers in our industry have not had
adequate time to truly assess the impact of these requirements, nor do
we believe that there is an accurate understanding of those impacts.

		I would like to conclude with a series of specific recommendations and
requests, and that's that we encourage OSHA to reconvene a new SBREFA
panel to assess the impact of the proposed regulation on those small
businesses operating in today's market prior to finalizing the rule.
And in the event that a revised rule is approved, we recommend that an
extended period of time be permitted for companies to implement
engineering controls and we also request the prohibition of dry sweeping
be removed.

		Thank you.

		JUDGE PURCELL:  Thank you, Mr. Thomas.

		Mr. O'Brien?

		MR. O'BRIEN:  Thank you, Judge Purcell, and thank you for allowing me
to testify this morning.  My name is Patrick O'Brien.  I serve as the
Executive Director of the Concrete Sawing and Drilling Association.  I'm
here to testify on OSHA's Notice of Proposed Rulemaking on occupational
exposure to crystalline silica.

		My tenure as CSDA Executive Director began in 1991.  Prior to that I
worked for a decade with GE Superbraces (ph.), which manufactures a
synthetic diamond that is used in the saw blades, core drills, diamond
wire and polishing heads.  My career before GE was in the aviation
industry conducting flight tests of jet aircraft on and off the aircraft
carriers for the Department of Defense Naval Air Systems Command.  I
hold a B.S. in aeronautical and astronautical engineering and an M.S. in
management.

		CSDA is a nonprofit trade association of contractors, manufacturers,
and affiliated members from the construction and renovation industry.
The CSDA mission is to promote the use of professional cutting,
polishing, imaging, and selective demolition contractors and their
methods.  In support of this goal, the CSDA Code of Ethics demands that
they pursue the highest quality standards of safety, quality, and
integrity.

		Sawing and drilling with diamond tools offers the construction
industry many benefits, including lower total project costs, precision
cutting, maintenance of structural integrity, reduced down time, reduced
noise, dust and debris, limited access cutting and the ability to cut
heavily reinforced concrete.

		Founded in 1972, CSDA has 500 international members, and CSDA is one
of 25 associations making up the Construction Industry Safety Coalition.

		Based on my 30 years of experience in the construction industry, I am
aware of the issues concerning occupational exposure to respirable
crystalline silica.  I fear that what OSHA has proposed is simply
unworkable for the construction industry and in particular for the
sawing and drilling segment of this industry.

		During my brief testimony I would like to focus on three key points
that are both general to the construction industry and specific to
CSDA-type sawing and drilling contractors.  These are the areas I
believe have not been addressed in prior testimony, to try and not
duplicate what has been said before.

		First, I ask how OSHA can state that lowering the PEL from 100 to 50
or even 25 will save 700 lives.  The Centers for Disease Control
analysis of data from the National Institute of Occupational Safety and
Health and the National Occupational Respiratory Mortality System from
1968 to 2002 that I have researched indicate that deaths attributable to
silicosis in construction have decreased from 1,157 in 1968 to 148 in
2002.  In addition, data from the U.S. Bureau of Labor Statistics
indicate that this figure has been further reduced to 102 by 2012.

		It would appear that the PEL established by OSHA over 40 years ago is
working.  The focus should not be on introducing a vastly more
complicated rule but a way to figure to increase compliance with the
current rule.

		CSDA has taken compliance approach with the current rule that is
simple, but effective.  Simple works in the construction industry.  I
would rather have a simple system that is not 100 percent technically
perfect and correct than a system that will not be used, indeed cannot
be used, for the sawing and drilling contractors.

		CSDA has worked with NIOSH and contractors to collect data of all the
sawing and drilling operations over the last decade to produce a best
practice document, CSDA BP-016, which is this document here.  This is an
effective but simple guide for the contractors to look at the chart and
easily determine if there is respiratory protection as required and what
type of protection is needed.  No cumbersome sampling is needed nor
could even be done.  I believe this approach is simple and would be
utilized by contractors to a much higher degree and thus protect workers
from any possible exposure to airborne silica.

		Second, the proposed silica rule would be laborious and costly in
addition to being overly complicated.  The majority of CSDA-type sawing
and drilling contractors perform work on multiple locations and job
sites each day.  This is the main business for these contractors and an
average operator will be on four to five jobs in a single day.  Many
contractors have had operators on seven to eight jobs in a single day.
To have someone monitor on each of these and take air samples is just
not economically feasible or practical.  In addition, taking an air
sample reading would require meaningless data five days from then as the
operator would never be on that job site again.

		In addition to the impracticality of the logistics, there is the cost.
 There are over 2,000 sawing and drilling companies in the U.S. with an
average revenue of less than $2 million.  This translates into 8 to 10
operators working on four to five job sites per day or up to 100,000 job
sites per day across the country.

		OSHA has estimated that the cost to implement this proposed rule would
be 637 million.  One of our contractors on the Small Business Regulatory
Enforcement Fairness Act Panel in 2003 estimated that the cost for a
sawing and drilling company would be $3 million.  The contractor was
larger than average, but if we assume that the cost of only a quarter of
those 2,000 sawing and drilling contractors was three million, to
implement this proposed rule, then, the cost would be over $1 billion.
This far exceeds the estimate of 637 million for the construction
industry as a whole and sawing and drilling contractors represent less
than one half of one percent of the construction activity.

		Finally I'd like to point out the differences between professional
sawing and drilling contractors and the rest of the construction
industry who utilize diamond tools.  When I see any discussion about
silica, there inevitably is a photo of a saw generating a large plume of
dust.  I believe that the general consensus is that sawing with these
tools can only be done with the resulting dust.  Nothing could be
further from the truth for professional sawing and drilling contractors.
 Nearly 100 percent of the contractors use water on each and every job,
and this has to do with extending the life of the expensive diamond
tools.

		The reason for this is that the diamond will begin to back-convert to
carbon at temperatures above 800 degrees centigrade.  So water is used
to keep the diamond blade cool so that the diamond will not back-convert
and the life will be maximized.

		The use of water has the additional benefit of containing silica
particles that would be -- silica particles that would become airborne.
CSDA invited NIOSH to visit our National Training Center at St.
Petersburg College in Clearwater, Florida to observe our operations.
The NIOSH representative indicated that there was very little chance of
airborne particles using such water systems.  The only time there is any
possibility of exceeding the current PEL would be indoors, and the CSDA
Best Practice addresses those instances.

		I appreciate the opportunity to appear here today, and I know that
OSHA is serious about hearing from stakeholders.  CSDA members are small
family members.  Each and every one cares about their family.
Oftentimes it's husband and wife that run the business with 5 to 6 to 10
to 15 operators, and they do everything possible to ensure their safety
and well-being of their family.

		I hope that OSHA will carefully consider these comments on behalf of
CSDA in determining how best to protect workers in the construction
industry.  I hope they will agree that the best way to protect workers'
health in the construction industry is simple rather than complicated
methods.

		Thank you for your consideration of this testimony.

		JUDGE PURCELL:  Thank you, Mr. O'Brien.  During your presentation you
held up a document.  I'm not sure you identified that on the record, and
I want to make sure the record's clear.  Could you state the caption of
that document?

		MR. O'BRIEN:  This is CSDA Best Practice, CSDA-BP-016, Silica Data
Analysis Chart and I provided a electronic copy of this to --
beforehand.

		JUDGE PURCELL:  To OSHA?  Okay.  Also, I asked Mr. Johnson before we
started, but I haven't asked either you or Mr. Thomas; do you wish to
offer copies of your written testimony into the record as exhibits?

		MR. THOMAS:  I -- we do.

		JUDGE PURCELL:  Okay.  Mr. Thomas [sic], I'll mark yours as Hearing
Exhibit 94.  And if you want to hand that over?

		MR. JOHNSON:  Give you a couple copies.

		JUDGE PURCELL:  Thank you.  And, Mr. Thomas?  If you want to hand me
a copy of yours I'll mark that as Hearing Exhibit --

		MR. THOMAS:  Want to pass that up?

		JUDGE PURCELL:  -- 95.

		MR. THOMAS:  Mr. O'Brien for 95.

		JUDGE PURCELL:  Oh, I'm sorry, Mr. O'Brien.  Thank you.

		MR. O'BRIEN:  And I provided a electronic version of that as well.

		JUDGE PURCELL:  Sorry.  Good.

		Did you want to offer the printed-out copy of the document you --
yeah, fine.  I'll mark that as Hearing Exhibit 96.  Okay.  And all three
exhibits are admitted in the record.

(Whereupon, the documents referred to as Hearing Exhibits 94 through 96
were marked and received in evidence.)

		JUDGE PURCELL:  Now, if I could see a show of hands of individuals who
have questions for any of the three individuals?  Okay.  Looks like
three on this side.

		If you want to start first?  Please approach the lectern, state your
full name, spell your last name, and your affiliation.

		MS. TRAHAN:  Good morning.  Chris Trahan, T-r-a-h-a-n, with the
Building Trades.

		JUDGE PURCELL:  Thank you, Ms. Trahan.  And when you ask questions,
if it's for a particular panel member, just identify who you're asking
to respond.

		MS. TRAHAN:  Yes, sir.

		The first questions I have are for Mr. O'Brien.  Your best practices
guide, I'm happy you submitted it to the record.  Is that a document
that CSDA continues to build on and expand?

		MR. O'BRIEN:  It is.  It -- it's been developed over the last 10
years, and there's a lot of data in there, and it states the specific
test cases that were provided, and we just feel that it's a better
alternative to use in the industry so we promote the use of that to our
members, so in the absence of any other.

		MS. TRAHAN:  And I do know it's available to the public because I
requested and received a copy of it --

		MR. O'BRIEN:  Okay.

		MS. TRAHAN:  -- thank you, as we were preparing for the hearings.  I
think it's a good example of objective data, or could be.

		MR. O'BRIEN:  And it is on the --

		MS. TRAHAN:  With more guidance from OSHA.

		MR. O'BRIEN:  And it is on the website as well, so anybody could
access it.

		MS. TRAHAN:  Okay.  Thanks.

		JUDGE PURCELL:  Mr. O'Brien, can you pull the mic a little closer
when you're responding?

		MR. O'BRIEN:  Okay.

		JUDGE PURCELL:  Thanks.

		MS. TRAHAN:  Does that document encompass all of the data you've
collected regarding silica?

		MR. O'BRIEN:  It does.  It looks at each of the different operations,
whether it's slap sawing, core drilling, wire sawing, hand sawing.  So
it encompasses each of those and also whether it's indoors/outdoors, so
in almost every one of these instances the data that's presented is a
result of a specific test, many of them done by NIOSH.

		MS. TRAHAN:  Does it include member-generated data?

		MR. O'BRIEN:  It does, members that had data contracted with to have
done, so --

		MS. TRAHAN:  Okay.  Thank --

		MR. O'BRIEN:  And it explains it all in there too.

		JUDGE PURCELL:  Mr. O'Brien, I'm not sure the microphone's picking up
--

		MR. O'BRIEN:  Oh.  Okay.

		JUDGE PURCELL:  -- your comments.

		MS. TRAHAN:  Thank you.  The next questions I have are for
Mr. Thomas.  In your written comments you mentioned that local exhaust
ventilation was originally installed to reduce the plume of nuisance
dust associated with charging the mixer in dry cement.  And was that --
did you indicate that was a cost-effective way of collecting the dust?

		MR. THOMAS:  Yes.  That has been a cost-effective approach to handling
that plume of dust during the charging of the mixer.

		MS. TRAHAN:  And that your typical exposures you're seeing in that
activity for employees range from 25 to 125 µg/m3?

		MR. THOMAS:  Yes.  There is a wide range of that depending on some of
the plant configurations.  Some of them are open air, some of them are
closed, some of them have different availabilities for venting, and so
some have been able to get down to those levels of 25, and some have not
yet been able to get down to those levels.

		MS. TRAHAN:  And that's inside your plants?

		MR. THOMAS:  Correct.

		MS. TRAHAN:  Okay.  Other -- another thing in your comments you
indicated exposure ranges from 15 to 75 µg/m3 on cleanup.  Is that --
does that encompass most of the exposure data that you're able to share,
and can you share additional exposure points with the record?

		MR. THOMAS:  Well, we did a -- an informal survey of our members here
during the comment period and got a wide range of results coming back,
and so from that cleaning aspect, I think you're referring to the
cleaning of the mixer at that time?  That sound correct?

		MS. TRAHAN:  I --

		MR. THOMAS:  Or is it general cleanup?  It may --

		MS. TRAHAN:  It was general cleaning.

		MR. THOMAS:  -- be the general cleanup.  Yeah, so general cleanup
obviously, there's, you know, there's dust on the floor, there's dust
that comes off of the conveyors.  There's material throughout the plant.
 And so that process of cleaning generates dust by itself and so, yes,
we saw ranges in that neighborhood of 15 to 75.

		MS. TRAHAN:  Thank you.  And did you have anything to offer as far as
cost effectiveness of using local exhaust ventilation versus not having
to clean up?

		MR. THOMAS:  Well, there's -- using the local exhaust ventilation
systems does not preclude the need for cleanup.  It will certainly
remove a lot of the dust that is generated right around that initial
charging statement.  And generally what -- the plant has other
incentives for controlling that as well because a cement plume creates a
lot of wasted cement into the plant and so to control costs they want to
collect that as well.  So that's an added incentive for them to be able
to do that, but certainly they've been looking at the well-being of the
employees that are in that process as well.  But yes, it has been an
effective approach.

		MR. TRAHAN:  Okay.  Thank you.

		And, Mr. Johnson, I have a few questions.  You -- I believe you had
some exposure data that's been collected through your members, and I
wonder if that is part of the OSHA record or could be provided to OSHA
as part of the rulemaking record?

		MR. JOHNSON:  We do have quite a bit of data.  It is not part of the
OSHA record, and we are able to provide some of it but not all of it.
Part of the reason is because contractors have a very inherent distrust
of OSHA and OSHA-related things because they've all been violated at
some point or gotten some citation at some point.  So when they provide
data for certain things that they've been written up or cited for in the
past, a little hesitant to sign a piece of paper saying that we can use
it with those contractors.  We've told them we'll redact it, et cetera,
but we still need to get their permission in order to do that and that's
not been very easy to get.

		MS. TRAHAN:  I appreciate that.  When -- you talked a lot about the
ASTM standard and one of the things in the ASTM standard is a 90-minute
exemption.  If an activity is being conducted for less than 90 minutes
in a day, the Table 1 in the ASTM standard does not apply, and that's
been the position of a lot of the construction employers, that there
should be some kind of short-term exemption.  How do you know or how do
your members know prior to the work getting started that they will only
be conducting an activity for 90 minutes or less in a day?

		MR. JOHNSON:  Well, for mason contractors in particular, 90 minutes is
actually a really long time to be cutting something.  The vast majority
of them are under 15 minutes in any given day.  We don't cut all the
time, and when we do, we have a cutting station, and that person has a
different set of engineering controls at a cutting station.  The average
cut that's cut on a scaffold at the end of a door, et cetera, add it up
and in an entire day it is going to be significantly less than even 90
minutes.

		MS. TRAHAN:  So, but that --

		MR. JOHNSON:  And --

		MS. TRAHAN:  -- that is predictable?

		MR. JOHNSON:  It's not -- well, it's not predictable, because we don't
really know whether or not the architect has designed something with
four- or eight-inch increments that would help us to determine whether
or not we need to cut or not until we get there.  So in most cases we
don't know what we have to cut until we get on the job site and get to
the doorframe or get to the end of the wall or get to wherever it is.  A
lot of those cuts are made in order to fit what's there, not necessarily
can be planned out.

		MS. TRAHAN:  The other -- oh, another thing you said is that the tools
come with water to cool the blades.  Do you see water-equipped tools for
blade cooling being used often among your members?

		MR. JOHNSON:  Similar to what Mr. O'Brien said, all of our blades are
diamond-tip blades as well except they're in hand saws or portable saws,
et cetera, so the manufacturers of those saws want to preserve their
blades as well so the vast majority of the water systems are there to
cool the blade.  And we've seen instances where some of the
manufacturers are putting all types of warnings in their blade systems
saying the water for this system is only for water -- for cooling the
blade and not for dust suppression, which makes us a little bit scared
of it as well.

		MS. TRAHAN:  The -- again, with water-cooled blades and the creation
of a slurry, how do contractors now deal with the water that -- the
slurry that's being created as they're using water-equipped tools?

		MR. JOHNSON:  Just like they would any other material that's on the
job site.  In most cases it's dried up and then it's swept up and put
out -- put away as waste and anything else.  Unless you're in
California, in which case it's hazmat material in which case you have to
put it in a five-gallon drum and spend a inordinate amount of money to
have it disposed of.

		MS. TRAHAN:  So can you describe a little bit more about how your
contractors in California deal with the slurry?  Put it in a five-gallon
drum?

		MR. JOHNSON:  You know, they do it per the hazmat rules and the
California EPA which is onerous from what I understand, but I do not
know the specifics of how a contractor would do that.

		MS. TRAHAN:  You don't?  Okay.  Do you see the use of any local
exhaust ventilation systems on the tools that your contractors use?

		MR. JOHNSON:  On the tools that my contractors use?

		MS. TRAHAN:  Well, you're speaking for --

		MR. JOHNSON:  Very few.

		MR. TRAHAN:  -- your contractors.

		MR. JOHNSON:  Yes.  Very few.  I've seen these that exist, but very
few that I've seen that contractors actually have them.

		MS. TRAHAN:  Okay.  Okay.  That's it.  Thank you.

		JUDGE PURCELL:  Thank you, Ms. Trahan.

		Next individual?  Please state your full name, spell your last name
and your affiliation, sir.

		MR. SCHNEIDER:  Scott Schneider,

S-c-h-n-e-i-d-e-r.  I'm with the Laborers' Health and Safety Fund of
North America.

		JUDGE PURCELL:  Thank you, Mr. Schneider, and identify the individual
you're asking the question of.

		MR. SCHNEIDER:  Okay.

		JUDGE PURCELL:  If it's for the panel generally, then I'm going to ask
the individuals to identify themselves when they respond.

		MR. SCHNEIDER:  Okay.  Thank you.

		Mr. Rashod, I had a couple of questions about the ASTM Center, and I
think it's a very admirable effort and I'm -- I appreciate that.  First
of all, I wanted to ask in terms of setting the 100 µg exposure level
for the ASTM Center, did you guys do any risk assessment or look at the
epidemiological data?

		MR. JOHNSON:  No, we did not.  We actually looked at what we felt our
contractors could and couldn't do, and the vast majority of them could
not do 100, which our goal was to stretch them into it.

		MR. SCHNEIDER:  Okay.  So it wasn't based on the risk that --

		MR. JOHNSON:  It was not based on the --

		MR. SCHNEIDER:  And --

		MR. JOHNSON:  -- risk --

		MR. SCHNEIDER:  And --

		MR. JOHNSON:  -- assessment epidemiology.

		MR. SCHNEIDER:  And the other two panel members where your
recommendation is that they not change the PEL, was that based on a risk
assessment or was it based on just technological -- your estimate of the
technological feasibility?

		MR. THOMAS:  Robert Thomas from National Concrete Masonry Association.
 No.  Ours was not a separate risk assessment.  We were relying more on
the risk assessments that are being done elsewhere.

		MR. O'BRIEN:  And Patrick O'Brien, Concrete Sawing and Drilling.  Ours
was not a risk assessment either.

		MR. SCHNEIDER:  Okay.  Thank you very much.

		Mr. Johnson, in the ASTM standard you have a table, Table 1, where
you recommend, you know, respiratory protection or controls based on the
task and that's based on full-shift exposures, right?

		MR. JOHNSON:  Yes.

		MR. SCHNEIDER:  Is that correct?  Okay.  So you're assuming that
people are working full -- all day doing that at that task?

		MR. JOHNSON:  Yes.

		MR. SCHNEIDER:  Okay.  So --

		MR. JOHNSON:  However, there is the 90-minute exemption for occasional
tasks that's not in that, but --

		MR. SCHNEIDER:  Right.

		MR. JOHNSON:  -- invokes it.

		MR. SCHNEIDER:  All right.  Okay.  And you say the vast majority of
your workers are not being exposed for more than 90 minutes or in some
-- many cases more than 15 minutes per day?

		MR. JOHNSON:  I would say not more than 90 minutes, no.

		MR. SCHNEIDER:  Okay.  And so you -- your contention is that their
exposures are over 100 µg/m3 even though they're only exposed for, say,
15 minutes a day?

		MR. JOHNSON:  I'm sorry, can you repeat the question, Scott?

		MR. SCHNEIDER:  Okay.  Well, you were -- you are -- you were saying
that most of your members are only making cuts, and their total
exposure's about 15 minutes a day.

		MR. JOHNSON:  Yes.

		MR. SCHNEIDER:  In general.

		MR. JOHNSON:  Yes.

		MR. SCHNEIDER:  Okay.  And you're saying that even if they're only
exposed for 15 minutes a day, that it's not feasible for them to be
below 100 µg for an entire day if they're averaged over an eight-hour
day exposure?

		MR. JOHNSON:  Depends on what they're cutting, it depends on where
they're cutting it, depends on what it is.  I mean, there's so many
other factors that go into that where they could have some exposure that
maybe on an eight-hour time-weighted average day may or may not be.

		MR. SCHNEIDER:  But based on the data that you have that you've
collected --

		MR. JOHNSON:  Uh-huh.

		MR. SCHNEIDER:  -- you're saying that if somebody's only cutting for
less than 15 minutes a day their exposure's -- it's not technically
feasible for them to get below 100 µg averaged over an eight-hour day.

		MR. JOHNSON:  No, we don't say that at all.

		MR. SCHNEIDER:  Oh.  Okay.  Well, I'm confused then.  Because you -- I
mean, you said that it's not technologically feasible, and yet most of
your members are only exposed, you said, for less than 15 minutes a day.
 And less than 90 minutes certainly, but --

		MR. JOHNSON:  Right.  But our Table 1 is different than the Table 1
that's in OSHA in that we don't actually -- for our eight-hour
time-weighted average, we don't force you to bump into all of the extra
medical, et cetera.  We make the assumption that you very well may be
over the 100 µg/m3 in the hour and a half that you're doing the cuts,
but without quantifying it for our eight-hour time-weighted average.

		MR. SCHNEIDER:  Oh, okay.  So you're saying it's not feasible for them
to be over -- to get below eight -- 100 µg during that 90 minutes that
they're cutting.

		MR. JOHNSON:  It may or may not be.

		MR. SCHNEIDER:  But averaged over an eight-hour day, that exposure
would be below 100 µg?

		MR. JOHNSON:  It may or may not be.

		MR. SCHNEIDER:  Okay.  That's -- okay.  That's a little confusing.
Okay.  The other question I had was on medical surveillance.  In the
ASTM standard, you said that 120 days of exposure per year you get
kicked into having a medical exam?

		MR. JOHNSON:  Right.

		MR. SCHNEIDER:  Now, we've had complaints from other contractor
associations that they can't comply with the OSHA proposal which is 30
days because people are not counting how many days of exposure that
they're actually having or you can't predict that so how does the ASTM
standard work in that respect?

		MR. JOHNSON:  That's a good question.  So when we were debating some
of those times in our ASTM standard, what we realized is the vast
majority of if someone was going to hire someone for a season, most
construction seasons, if you keep someone longer than six months
chances, are they're going to be on your roll full time.  If you're
picking someone up for a project here or there, they're not going to
last six months on the average payroll.  So we use that six months
number as if someone's going to be on your staff, and you know that
they're going to be a full-time member of your team, the six months is
kind of that time frame to do it.

		Otherwise there'll be transient workers that could go for four or five
or six different contractors, every job, every two or three weeks, and
could be on five different companies in any given construction season.
So that was a negotiation that the committee made, and we felt the six
months was that appropriate number.

		MR. SCHNEIDER:  You meant four months, right?  Hundred and twenty
days, right?

		MR. JOHNSON:  Hundred-twenty work days.

		MR. SCHNEIDER:  Hundred-twenty work days.  Okay.  Great.  I had
another question.  In the Building Trades comments, we've made a strong
push for the requirement that a competent person be on the job site to
-- primarily one of their main duties would be to look at the
effectiveness of controls that are being used.  Are they really -- are
they running out of water, are -- is the exhaust working properly, and
make sure that things are using -- used properly.  And, you know, I'm
sure you're familiar that competent persons are required for a number of
OSHA standards.  I think there's 19 of them.  So do you have a position
on the need for or the value of a competent person on a job site?

		MR. JOHNSON:  We currently have competent persons, as you said, on
various entities, various standards, et cetera, but I'd have to consult
with my members before I gave a position on that.

		MR. SCHNEIDER:  Okay.  Now, you said you had a problem -- serious
problems with Table 1.  Could you be more specific in -- as to how the
-- how your position on Table 1 differs from the table that's used in
the ASTM standard?

		MR. JOHNSON:  Thank you for asking that.  Actually, the major
difference between the two is that Table 1 in the OSHA Regulations
states that you can use this standard and these are the controls that
happen.  However, you have to make the assumption that anyone using this
particular table is over-exposed.

		MR. SCHNEIDER:  All right.

		MR. JOHNSON:  And once you make that assumption, all of the extra
medical surveillance kicks in.  That's not in our ASTM standard.
Frankly, to be very honest, if all you're going to be exempted out of is
the exposure monitoring, the air exposure monitoring, then we might as
well do it.  That's the cheapest part of the standard for us.

		MR. SCHNEIDER:  Uh-huh.

		MR. JOHNSON:  So Table 1 is useless if the only thing that we get out
of it is getting out of air exposure monitoring.

		MR. SCHNEIDER:  Okay.

		MR. JOHNSON:  It's the medical, it's all the extra stuff that's --
that comes after it that you still have to do using OSHA's Table 1 --

		MR. SCHNEIDER:  Uh-huh.

		MR. JOHNSON:  -- that kills us financially.

		MR. SCHNEIDER:  Well, the medical stuff is only kicked in if you're
wearing a respirator.

		MR. JOHNSON:  No.  The medical stuff kicks in in the standard, and it
says, if you know they're overexposed.  And the caveat of Table 1 says
if they're using Table 1, you're making the assumption they're
overexposed.  So you still -- that's what it says.

		MR. SCHNEIDER:  Oh, yeah.

		MR. JOHNSON:  So you're still making the assumption that they're
overexposed which means that you're going to have to go through all of
the fit.

		MR. SCHNEIDER:  Now, who -- I think --

		MR. JOHNSON:  Now, we do think that you made a good move by doing the
four-hour versus eight-hour.  I agree with that because it makes it such
that some people don't need respirators, which I think we're all in the
same -- we're in agreement with that.  We don't want to have everyone in
respirators.  I couldn't wear a respirator.  Why?  I have a goatee.
It's that simple.  So now we're forcing people to shave facial hair just
to be able to work on the job sites.

		MR. SCHNEIDER:  That might be helpful in your case, but --

		MR. JOHNSON:  Aw, that's cold, Scott.

		MR. SCHNEIDER:  No, just kidding.  No.  On note 1 on the Table, what
it says is, "The employer must presume that each employee performing an
operation listed in Table 1 that requires a respirator is exposed above
the PEL."

		MR. JOHNSON:  Right.

		MR. SCHNEIDER:  So, in other words, if you're not requiring a
respirator for an operation on Table 1, then you wouldn't necessarily be
-- you wouldn't presume to -- that you're above the PEL.

		JUDGE PURCELL:  Mr. Schneider, it sounds like you're testifying
rather than asking questions.

		MR. SCHNEIDER:  No, I'm --

		JUDGE PURCELL:  If --

		MR. SCHNEIDER:  -- I'm trying to clarify his --

		JUDGE PURCELL:  Well, you've got Mr. Johnson's response to what he
believes the table provides, so if you have another question, please ask
it.

		MR. SCHNEIDER:  Okay.  Yes, one question.  Some people have complained
about the notes in Table 1.  The notes were put in Table 1 presumably
to try to make sure that the controls are used properly.  And I know --
I notice that you have some notes in your table in ASTM standard and you
can -- and there is concerns about the variability that the need -- you
know, there's so many things that could affect exposure that it's
important to control those, otherwise you can't really predict.  So, I
don't know, do you have an opinion about the notes in Table 1, or is it
just the presumption that you -- that you're overexposed?

		MR. JOHNSON:  I think that the notes in Table 1 go a little further
than we're comfortable with.  The notes in the Table 1 in ASTM standard
are what we compromised to and we felt like covers the exposure
adequately.

		MR. SCHNEIDER:  So you think merely saying that you have to use a
water-fed system is sufficient to control exposures to be able to
predict them adequately?

		MR. JOHNSON:  I believe that the notes that are in Table 1 on the
proposed standard go too far, and I believe that the notes that are in
ASTM 2526 are adequate.

		MR. SCHNEIDER:  Okay.  Thank you very much.

		JUDGE PURCELL:  Thank you, Mr. Schneider.

		I believe there was one more?  Please state your name for the record,
sir, spell your last name, and identify your affiliation.

		MR. JONES:  How you doing?  Walter Jones, J-o-n-e-s.  I'm with the
Laborers' Health and Safety Fund.  I only have one question, and that
was for Rashod.  I don't want to beat you up any more.

		MR. JOHNSON:  Bring it.

		MR. JONES:  You talked about Chicago earlier and how cold it is and
the fact that no one's using water today to control the dust plumes.
Doesn't Chicago environmental protection rule -- have a rule about the
-- controlling dust plumes associated with silica?  And if they're not
using water because it's too cold, what are they doing to comply with
that rule?

		MR. JOHNSON:  No, Chicago actually uses water, and they're wrong to.

		MR. JONES:  So you are -- so that person that you were talking about
is probably using a wet method today?

		MR. JOHNSON:  Oh, no.  They're not complying with that standard
either.

		MR. JONES:  Oh, okay.  All right.  Is there anything that you guys do
to control dust plumes from falling into the air?  I understand there's
this -- I guess this underlying concept that once the dust plumes go in
the air, they're no one's responsibility, but is there a control when
these dust plumes fall on nearby cars or fall into pedestrians walking
by?  Are there measures done to control that or is it just, oh well?

		MR. JOHNSON:  Well, respirable crystalline silica can't fall on cars
because it's not -- it's in the air.

		MR. JONES:  Or the -- not the -- just say the dust plumes.  No?

		MR. JOHNSON:  Okay, well, dust plumes.

		MR. JONES:  Yeah.

		MR. JOHNSON:  I -- we don't address it.

		MR. JONES:  Okay.  Thank you.

		JUDGE PURCELL:  Thank you, Mr. Jones.

		Any further questions for any of the three individuals?  Okay.  I
don't see any hands.  I'll turn it over to OSHA.

		MR. O'CONNOR:  Yes.  Patti Downs has a few questions.

		MS. DOWNS:  Just got to get the microphone working.  Sorry.  Well,
first of all, I'd like to thank you gentlemen for coming in and talking
with us this morning.  I --

		JUDGE PURCELL:  Please identify yourself for the record.

		MS. DOWNS:  Oh, I'm sorry.  I'm Patti Downs with OSHA.

		JUDGE PURCELL:  Thank you.

		MS. DOWNS:  I have a couple questions I'd like to start with for
Mr. O'Brien, and this is regarding the document you just handed, the
BP-016.

		MR. O'BRIEN:  Uh-huh.

		MS. DOWNS:  I notice on here that you have -- it's essentially samples
that have been taken, and then you list the conditions where the work
was being conducted, the length of the sample time, the sample result
and then the recommended respirator, whether or not there is one.

		MR. O'BRIEN:  Uh-huh.

		MS. DOWNS:  How is an employer supposed to use this document to apply
to different durations of task?  So if somebody's only doing something
for 15 minutes, 20 minutes, an hour, four hours, are they supposed to
just treat it the same as somebody who's working for a full eight hours
or does this document allow for any of that?

		MR. O'BRIEN:  Pat O'Brien with CSDA.  What we try to do is make it
very simple so that if somebody identified an operation in their flat
sawing of concrete outside, they don't need respirator based on the
test.  If they're flat sawing inside, then they need an N100 or whatever
the respiratory --

		MS. DOWNS:  So --

		MR. O'BRIEN:  -- protection, so we tried to take all that test data
and make it simple so that if an operator goes on a job, whether he's
there for five minutes or five hours, and just look at the chart and be
able to determine if respiratory protection is needed and what kind.

		MS. DOWNS:  Okay.  Thank you.  And then at the bottom of the document
you -- it talks about having a fully qualified trained professional
personnel who are competent to evaluate the situation.  What type of
background or training do you think that competent person needs?

		MR. O'BRIEN:  I -- I'm probably not going to answer that because I
don't have an answer for you, so I -- this is developed in our committee
and I don't -- I can't give you an adequate answer, so I'll probably --

		MS. DOWNS:  Do you --

		MR. O'BRIEN:  -- I could get back to you on that.

		MS. DOWNS:  Do you have any suggestions just, I mean, in your own
personal opinion?

		MR. O'BRIEN:  I think in general what we're trying to do is that in
the absence of anything else, and sawing and drilling as I said earlier
is less than one half of one percent of the construction industry in
terms of what it represents, so we fall kind of out of the radar of a
lot of different systems that would apply to a lot of other people.

		So what we try and do on our own is to try and work to develop our own
systems, our own methods.  And, you know, are they perfect?  No, but
it's our best effort to try and make that.  And what we do with any of
these documents is to try and constantly update them.

		And then in addition to that, you know, we -- since we are a small
segment of the construction industry, we have formed with other sawing
and drilling associations around the world, the International
Association of Concrete Drilling and Sawing, and so we work with them so
all the sawing and drilling associations from Australia to Europe work
together to try and develop our own systems and our own methods and
tolerances and different things, so --

		MS. DOWNS:  Okay.

		MR. O'BRIEN:  But I could get an answer for you if you would like.

		MS. DOWNS:  Okay.  That would be great.  Thank you.

		MR. O'BRIEN:  On that specific -- yep.

		MS. DOWNS:  Okay.  And then I just have a couple questions I'm going
to direct at Mr. Johnson.

		The ASTM standard states that no compressed air can be used on
surfaces or clothing and that HEPA vacuum cleaners, water sprays, wet
floor sweepers shall be used to reduce exposures to dust.  Is it fair to
assume that most of the committee members believed that these were all
kind of feasible alternatives and activities?

		MR. JOHNSON:  It's fair to assume that the ASTM process happened and
allowed for that to be inserted into the standard.  I don't know that --
the ASTM process doesn't necessarily go into majorities.  There's a
whole slew of rules that happened and then the process happened for the
consensus standard and that's what was published.  Your question was the
majority of the members.  I can't speak for the majority of the members.

		MS. DOWNS:  So then is it fair to assume that enough thought it was a
plausible alternative?

		MR. JOHNSON:  The ASTM standard process worked out and that's what
ended up in the standard.

		MS. DOWNS:  Okay.  Thank you.  And now how does the ASTM standard
protect bystanders in the area?  We've had a lot of discussion about
secondary exposure and whatnot.

		MR. JOHNSON:  Well, again, we do a lot of the same -- similar things
from a perspective of having local exhaust systems when necessary and
when needed, wet cutting when necessary and when needed.  So we do most
of the same things that the OSHA regulation does in terms of protecting
bystanders.

		MS. DOWNS:  Okay.  And then I just have a few more questions I'm going
to direct at all three members of the panel, so anybody who has a good
response or wants to answer, feel free.

		We've had a lot of talk about saws using water for cooling the blades
and we've had a lot of discussion about whether or not what methods can
be used in cold and freezing temperatures.  So my question is how do you
use water to cool the blade in cold and freezing temperatures?

		MR. O'BRIEN:  Pat O'Brien, CSDA.  There are a number of methods that
our members use and, you know, and there's a whole variety of additives
and other methods, using dry ice even and other things that are
utilized.  So, I mean, we have members up in Canada and they cut all
year long.  And so there are some methods and techniques, and then we've
done some projects on that in terms of defining all the different
methods, so there are a number of different methods that are used to be
able to use water in cold climates, so --

		MS. DOWNS:  Okay.  And would those same methods be applicable to using
water for dust suppression or --

		MR. O'BRIEN:  Yeah.  I think any time that you're cutting and you're
using water, it's going to, you know, suppress what goes into the air,
so --

		MS. DOWNS:  Okay.  And I know in a lot of the written comments you
suggested that there's usually more than one task going on while your
workers are on the job site, plumbers, electricians.  Can you tell me a
little bit about typically what other activities are going on when you
have workers there cutting or sawing or drilling into silica-containing
materials and what processes you currently have in place to kind of
protect those other employees, if any?  I mean, is it a regulate -- or,
you know, proximity barriers or hazard communication?

		MR. JOHNSON:  So in the masonry industry in particular --

		JUDGE PURCELL:  Mr. Johnson?

		MR. JOHNSON:  I'm sorry.  Rashod Johnson, Mason Contractors
Association of America.

		In the masonry industry, in particular the OSHA regulation, actually,
1926.702(b) requires us to have a restricted access zone for only people
working for masonry in the masonry industry for fall protection and for
masonry wall-bracing.  So the vast majority of ours are going to be in
our restricted zone anyway so we try not to allow people into that area
that's not actively working on masonry.  However, we don't have final
control over that.  The general contractor does, and if the general
contractor does then we're going to have to force them, through the
general contractor, to do all of the same type of safety things that
we're doing.

		MS. DOWNS:  Anyone else?  And then, Mr. Johnson, you, I believe it
was you, made a comment about how most of your workers don't cut for the
entire period of their work shift.  Sometimes it's as little as 15
minutes a day.  What are the other sources of silica exposure for your
workers when they're not cutting?

		MR. JOHNSON:  Rashod Johnson, Mason Contractors Association.  Well, I
do actually want to go back to the one thing you talked about, about
wet-cutting.

		MS. DOWNS:  Uh-huh.

		MR. JOHNSON:  The vast majority of hand saws and portable saws are not
stationary wet-cut saws.  So even when you force wet cutting on
something that doesn't have something cooling the blade they're just not
-- so you'd have to actually outfit that hand or portable saw with water
and that just doesn't happen in cold climates.

		But to answer your question, the -- similar to I think Mr. Thomas
said and other things in terms of sweeping up, cleaning up, et cetera,
some of the plume, as it was called earlier, that could have an effect
as well as we might not always cut brick or block.  Sometimes we just
chop it or hit it.  So there might be some other ways that it happens as
well.

		Even mixing, mixing some of the mortar.  But most of the mixing is
done not on the wall.  It's done before, and in most cases in large
silos around where the person who's mixing has a different set of
engineering controls than the rest of everyone else.  So we do our best
to try to control those types of high-silica exposure environments so
that it's not all of the masonry workers.

		MS. DOWNS:  And then I just have one question left that I'd like to
ask all three members of the panel and it's kind of a two-part question.
 But if you could very specifically tell me what controls you currently
have in place to reduce silica exposures for your workers and then what
you think the biggest obstacle for complying with the proposed PEL would
be?

		MR. THOMAS:  Sure, I'll start with that one.  This is Robert Thomas
from the National Concrete Masonry Association.  There's a -- as I kind
of articulated in some of my testimony, there's a wide range of
different exposures that are out there, some of which have controls that
are being implemented, some which really do not.  So, you know, for
example we use forklifts out in unpaved yards and really the only option
of control there is either wetting the yard, which has the ability to
bring dust back into the plant which is not advantageous or using
enclosed cabs.  And only a very small percentage of our companies
currently have enclosed cabs that are hermetically sealed, and that cost
would be astronomical in order to get in compliance from those types of
exposures.

		You know, for us we have a lot of wetting  -- wet-saw cutting.  You
know, we primarily in the plant have a little bit more control than what
you do on a construction site so we certainly would use those
opportunities.  Where we have grinding and antiquing and other areas
what -- we usually try to put local vacuum systems on, and those are the
areas where I've said we've had very much difficulty regardless of the
cost of getting into compliance for those types of applications which
would generally require respirators in those environments currently.

		The big difference for us is still the haves and the have-nots.  I
mean, the large producer versus a small producer.  I've been amazed at
the cost that some of the larger producers have invested in a number of
these controls, whether it's local exhaust systems, LEVs, or whether
it's a mobile vacuum system where you can plug in at different locations
throughout the plant, which could be in the hundreds of thousands of
dollars to implement some of those things.

		Some, of course, with success and some without successes.  There's a
lot of experimentation going on with different approaches to try to
achieve those.

		MR. JOHNSON:  Rashod Johnson, Mason Contractors Association of
America.  Some of the controls that we're currently using are very
similar to the controls that are in the proposed standard.  We don't
debate that those are things that work in some areas and we've put a lot
of those into the ASTM standard that we developed because we recognize
that those are useful tools.  And, again, I think that our biggest
issues are much more the PEL and tweaking Table 1.

		As it pertains to the biggest obstacle for the proposed PEL, I think
it's going to be feasibility.  We've done testing that shows that a
hundred is difficult.  And I don't ever remember seeing any data for any
of our guys that were -- that was under 25.  We're worried that this is
going to be an impossible standard to meet because of the transient
environment and the constantly changing environment of construction.

		So I think our biggest obstacle is there's far too many variables.
It's a one-stop shop for all of construction and it's going to be
difficult, if not impossible, to meet a PEL -- an action level of 25.

		MS. DOWNS:  Can I just interrupt?  I just want to clarify.  So when
you say too many variables, you mean variables in the materials you use,
the environment, the ability of the controls to capture everything, work
practices, all of the above?

		MR. JOHNSON:  Couldn't have said it better myself.

		MR. O'BRIEN:  Pat O'Brien, Concrete Sawing and Drilling Association.
I think water is obviously our best method to control the silica and, as
I explained before, it isn't the primary reason that it's used but it
has the secondary benefit of doing that.

		I think in terms of the proposed rule the biggest challenge is that,
you know, CSDA contractors are a little bit different than perhaps a lot
of other industries where, you know, you may be on a job for a week or a
month or six months or whatever and our contractors are generally called
in by a general contractor to come in and fix something that has
happened.  So they come in and they need to core drill two holes and
they may have to cut 10 feet of floor or, you know, take out a wall
opening or whatever.  So they typically are on the job for a very short
period of time just to do that work and then get out.

		And so to try and figure out, you know, what's happening in that
particular time and be able to come up with something other than what we
have proposed, which is very specific to our industry which is you look
at a chart and you figure out what the operation is and it tells you
whether you need protection or not, so --

		MS. DOWNS:  Great.  Thank you so much, gentlemen.

		JUDGE PURCELL:  Further questions from OSHA?

		MR. BLICKSILVER:  Bob Blicksilver.

		Mr. Thomas, I don't know if you mentioned it in testimony this
morning or in question and answers, but in your written comments you
mentioned a December 2013 survey of your members.  Has that been
submitted into the record or will you be submitting it?  I -- is there
-- also let me ask, please, if there is any further work that you're
doing on that survey.

		MR. THOMAS:  That was a survey of individuals within our industry.  We
had maybe a hundred or so responses that came back to that.  No, we have
not planned on entering that into public record.  What we did find from
that is a wide variety of understanding of the, you know, of the
standard as it's proposed, and it was just a means for us to get a
handle on what people's experiences have been with collecting
information, but it was certainly not a scientific survey, and so we
would feel like we would need something that's much more robust in order
to submit into the record.

		MR. BLICKSILVER:  Well, could we still request -- however you want to
mask, you know, identity or however you want to frame the material, we
probably would -- still would find it helpful if we could put that
request out to you, you know, just in terms of even if it's anecdotal or
certain company case studies or, you know, certain examples, that sort
of material.

		MR. THOMAS:  Yeah.  I'd be glad to work with you on that after the
hearings and discuss a possible means of sharing information.

		MR. BLICKSILVER:  Thank you.  Now, you mention a range of exposures
for some operations, some as low as 25 µg/m3 and could you please
describe what controls have enabled those plants to reach 25?

		MR. THOMAS:  The -- that's where I was trying to get at the point of
wide different approaches and investment in terms of capital equipment.
So I would say in some of our larger companies that have more than a
hundred employees that have a much more capital-intensive manufacturing
facility have invested in some of these vacuum-base systems that may
have different collection points throughout the plant.  And so those
have assisted in some.

		I think the others are some of the very abilities that Rashod has
mentioned in terms of whether it's open air issues, you know, types of
materials that we may be working with at the time.  So it's -- it has
been difficult at this point to really assess the reasons for the range.
 So in my testimony where I reported the range, it was just a range of
what people had reported that they had observed for some of these
different tasks.

		So to get a much better understanding into why would take a much more
costly survey to get   into --

		MR. BLICKSILVER:  Sure.

		MR. THOMAS:  -- ascertaining the reasons for those.

		MR. BLICKSILVER:  Now, you described that the average company size, if
I got this right, is something like 31 employees.  And then you said
something like 18 for manufacturing firms.  Could you --

		MR. THOMAS:  Yeah, there's a different --

		MR. BLICKSILVER:  -- further clarify that for me, please?

		MR. THOMAS:  Yeah.  Some -- most of the plants in our -- or companies
in our industry are one-plant companies, and so there are a number of
companies that certainly have multiple plants and so that is based on
the average per company versus average per plant.

		MR. BLICKSILVER:  I see.  Okay.  Now, these LEV systems you described
that the larger companies have invested in; have -- do you -- are those
conceivably able to be scaled down so that the smaller plants could
install those types of systems or have they already?  Have you observed
smaller plants installing those types of systems?

		MR. THOMAS:  Yes.  Again, I think the experimentation has occurred at
multiple levels in that case so some were using much less costly
approaches to some of those, again with varying degrees of success I
think.  Some may be just, you know, positive pressure and ventilation
fans.  Others are using much more complex LEV systems.

		MR. BLICKSILVER:  And presumably all these plants continue to operate,
continue to turn a profit, continue to maintain employment?

		MR. THOMAS:  Well, the profit is the -- is a point that I was trying
to make in my testimony.  The profit is really not there for most of
these 70 percent of our manufacturers over the last five years.  The
margins are still low as a result of the protracted recession and many
people are hanging on at this point waiting for a construction rebound
but, so they've been continually operating, but profit is a completely
different issue in the environment that we've had.

		MR. BLICKSILVER:  All right.  In response to a question earlier you
mentioned -- well, I don't want to put words in your mouth or restate
it, but a type of productivity benefit through the use of LEV.  I think
--

		MR. THOMAS:  Uh-huh.

		MR. BLICKSILVER:  -- you described how in controlling waste, excess
dust and so on that the LEV systems prove to be cost effective.  Could
you clarify or expand upon that, please?

		MR. THOMAS:  Yeah.  And, you know, certainly the use of cement, cement
is probably one of the most expensive raw materials that we would use in
concrete systems and so there is an advantage to collecting the cement
dust, if you will, and re-introducing that back into the mix.

		MR. BLICKSILVER:  Thank you.  Mr. Johnson, you -- I think you
volunteered to provide some exposure data into the record?  Did I
understand you -- I understand that there's some hesitancy on the part
of certain company data, but did I understand you to say that you may be
able to provide some data to the record?

		MR. JOHNSON:  Absolutely, and we'll --

		MR. BLICKSILVER:  Okay.

		MR. JOHNSON:  -- we'll work with you as well to get some data to you.

		MR. BLICKSILVER:  Good.  Thank you.  Are there data on controls
associated with those exposures as well?  Do you have a way to sort of
profile the controls connected with those exposures?

		MR. JOHNSON:  Yes.

		MR. BLICKSILVER:  Good.  Thank you.

		Mr. O'Brien, with the CSDA best practices standard, it sounds like
you've been able to collect some data, some exposure data.  Have you
made use of objective data?  It sounds like that has helped to guide
various types of task-based approaches or best practices, so you have a
body of exposure data that you've collected?

		MR. O'BRIEN:  That's correct.  Basically -- Pat O'Brien, CSDA.  We had
gone in and for each of the different types of operations, different
materials, different tools we've tried to do testing and collect testing
on all of those particular instances.

		MR. BLICKSILVER:  Okay.  And so you have data on the -- on control
strategy, the controls that are associated with the objective data?

		MR. O'BRIEN:  Uh-huh.

		MR. BLICKSILVER:  Do you have a set of data that relate the controls
to the exposures themselves?

		MR. O'BRIEN:  Yes.

		MR. BLICKSILVER:  Okay.  Can you provide that for the record, or have
you or --

		MR. O'BRIEN:  We have supporting data for all of this and I'm -- I
will have to find out how we want to, as an association, to provide
that, but we do have supporting data, and I think we could probably
provide that.  And actually I think this information is not new to OSHA
because I think we've provided this to OSHA more than 10 years ago, so
--

		MR. BLICKSILVER:  Good.  Thank you.

		Also I guess I heard testimony from maybe all three with regard to the
challenges of the ancillary provisions.  I wonder if in post-hearing
comments you can provide any material, any information on current
practices.  I don't know -- if from any informal surveys, anecdotal
information on currently what your membership are conducting in terms of
medical surveillance.  That in particular.  I -- exposure monitoring as
well.  Okay.

		Thank you.  I think that's all I have.

		MS. RYDER:  And did all of you say yes, for the record?

		UNIDENTIFIED SPEAKER:  Oh.

		MR. BLICKSILVER:  I'm sorry.

		JUDGE PURCELL:  I didn't hear any response either.

		MR. BLICKSILVER:  It looked like they were jotting down the --

		JUDGE PURCELL:  If any of the panel has a comment or wish to put their
position on the record please go ahead and do so --  Identify yourself.

		MR. O'BRIEN:  I mean, I -- Pat O'Brien, CSDA.  I mean, if we have some
information we'd be glad to share it, so --

		JUDGE PURCELL:  All right.  Mr. Thomas?

		MR. THOMAS:  Yeah.  Mr. Thomas.  I -- same.  If -- whatever we have
that we can share we'd be glad to talk with you about that.

		MR. BLICKSILVER:  Thank you.

		JUDGE PURCELL:  And, Mr. Johnson, you were nodding your head.

		MR. JOHNSON:  Rashod Johnson, MCAA, ditto.

		JUDGE PURCELL:  Thank you.  Okay.

		MR. BLICKSILVER:  Thank you.

		JUDGE PURCELL:  Further questions from OSHA?

		MR. O'CONNOR:  Yes.  This is Dave O'Connor.  Mr. Johnson, in your
written comments you had indicated that the ASTM standard is a
nationally recognized consensus standard and that this distinction
allows the ASTM standard to be specified by architects and engineers as
part of the official construction documents and therefore it becomes
part of the construction contract, and I was just wondering if, from
your experience, or from the experience of any of the other panel
members, the ASTM standard is incorporated in construction contracts.

		MR. JOHNSON:  Well, because it's an ASTM standard, the only way that
it's incorporated is if it's referenced or if someone specifies it as a
specifier.  So all we've been doing at our association is trying to get
the word out to as many specifiers that we know that we have access to
who specify masonry to specify ASTM 2526 when doing their projects.
It's the same thing with any materials specification, any standard
practices for any other things.  It's all about getting the market to
understand, recognize it, and then specify it.

		MR. O'CONNOR:  From your experience, has anyone been specifying it up
to this point?

		MR. JOHNSON:  I do know of a few cases, but it's not widely spread at
all, which is why we've been trying to get the word out as well.

		MR. O'CONNOR:  Okay.  Thanks.  You also mentioned that it could be
referenced by national and local building codes.  Are you aware of any
national or local building codes that reference the ASTM standard at
this point?

		MR. JOHNSON:  No.  So the national building codes happen every five
years, and typically it happens four years before that before it's
published, so if it were to get installed today, we still wouldn't see
it before 2016, maybe 2018.  That process is so onerous, and the
standard frankly is extremely new.  And I know that sounds weird
considering it's been 2006 and 2009, but it's an extremely new standard,
and it takes a significant amount of time to usually get them in the
building codes.

		MR. O'CONNOR:  Okay.  Thanks.  Also there was some earlier discussion
about the 90-minute limit in the ASTM standard, if I can get that out,
with regard to Table 1 and how that is applied.  And I just didn't quite
understand how a contractor's approaching this with regard to masonry
when you said that it really depends and is somewhat unpredictable how
much cutting was going to be going on during the course of a day.  So at
the beginning of a day, is it typical for the contractor to make some
estimate as to whether that 90-minute time limit would be exceeded or
not in determining whether Table 1 and the ASTM standard would be
followed, or how is that handled?

		MR. JOHNSON:  Well, I think that the best way to do that is probably
to just make sure that no one cuts for more than 90 minutes and then
it's no issue.  So once someone has done a certain amount of cuts, then
they're no longer doing those cuts anymore for the remainder of the day
if they get close to the 90 minutes.

		MR. O'CONNOR:  Okay.  So it's really then a matter of not following
Table 1 in the ASTM -- I -- I'm having so much trouble with this this
morning, with the ASTM standard but rather looking at alternatives to
that?

		MR. JOHNSON:  So the way it's currently written is that as long as
you're doing a sum total of cutting of less than 90 minutes, then you do
not have to comply with Table 1.

		MR. O'CONNOR:  Okay.  So contractors are making it a point then of
cutting at a duration that would avoid putting them in a situation where
they needed to follow Table 1?

		MR. JOHNSON:  When the standard is specified, that would probably be
what a smart contractor would do, yeah.

		MR. O'CONNOR:  Okay.  Thank you.  Also you had mentioned a couple of
differences that you saw between the OSHA proposed rule and the ASTM
standard that you considered significant, one being the PEL.  Do I
gather from this that you are supportive of the 100 µg/m3 limit that's
laid out in the ASTM standard?

		MR. JOHNSON:  That was the limit that was agreed upon in the ASTM
process.  However, yes, I personally and MCAA supports 100.

		MR. O'CONNOR:  Okay.  Thank you.  And another question; I was just
wondering when applying that standard, how you're making a determination
as to when medical surveillance would be required.  You had indicated
Table 1 and its relationship to medical surveillance in the OSHA
proposal as being something you took issue with.  I was just wondering
how contractors made a determination with regard to Table 1 and the
ASTM standard.

		MR. JOHNSON:  We do not require medical surveillance for use of Table
1, and it only kicks in when you have an employee over 120 days.

		MR. O'CONNOR:  Yes, but how is an evaluation made that an employee is
over 100 µg/m3, then?

		MR. JOHNSON:  Exposure monitoring.

		MR. O'CONNOR:  Okay.  That's all I have.

		MS. RYDER:  I have a few questions.

		JUDGE PURCELL:  Ms. Ryder?

		MS. RYDER:  My first question is for Mr. O'Brien.  You mentioned that
you have members in Canada and they are using, I think you said, wet
methods year round, that they've developed some methods and techniques
to address the cold weather.  Can you tell us a little bit more what
those methods and techniques are?

		MR. O'BRIEN:  We did a -- Pat O'Brien, CSDA.  We did a roundtable
discussion on a board meeting that we held up in Calgary a number of
years ago and just tried to summarize and collect all the different
methods that were out there that people had used.  I mean, typically it
involves some kind of additive or whatever that's put in the water, an
environmentally safe additive that -- to be able to cut in the cold
weather, so --

		MS. RYDER:  Is that something like antifreeze or --  I don't know if
that's environmentally safe.

		MR. O'BRIEN:  It's -- no, I don't think it's environmentally safe but
no, there are some and I don't know specifically.  I mean, I could --
would be happy to provide you with a copy of the proceedings from this
roundtable that we held on cold weather cutting, so --

		MS. RYDER:  Yeah.  I think that would be excellent.  That'd be really
useful.

		Jumping off of that, Mr. Johnson, have you used any of those
different methods, like using an additive to deal with the cold weather?

		MR. JOHNSON:  So the masonry building code does not allow for you to
use antifreeze because it corrodes steel, and steel is much more
important to hold the building up than anything else, so we don't allow
for you to use those additives without an architect or engineer allowing
that to be specified in any mortar, grout, or any other masonry units.

		MS. RYDER:  Are -- but are you aware of any additives being used to
deal with the cold weather?

		MR. JOHNSON:  I know there are some admixtures that you can use, yes,
but it's more for the mortar and the ground than it has to do with
cutting.  As I stated earlier, the vast majority of the cutting we do
isn't wet anyway because it's small cuts, very mobile, very -- we --
unless it's a cutting station.  So, no, we don't -- I don't know of any
that's specifically for cutting.

		MS. RYDER:  Okay.  I just wanted to follow up with you, Mr. Johnson,
about what employees are -- how employees are being protected today when
they're cutting in Chicago where it's, I think, maybe below freezing,
and you seem to indicate that it's too cold to use wet methods.

		MR. JOHNSON:  So even in cold weather where it is too cold to use a
wet method, our people will wear a respirator.  It's just not a
medically fit N100, go to the doctor, spend thousands of dollars, shave
your goatee type of respirator.

		MS. RYDER:  What type of respirator are they using?

		MR. JOHNSON:  Just a standard respirator that's going to stop them
from getting any sort of airborne dust.

		MS. RYDER:  So is that a, like, a dust mask?

		MR. JOHNSON:  I would assume so, yeah.

		MS. RYDER:  Okay.  And if you know do you know how many of your
members have respiratory protection programs?

		MR. JOHNSON:  I do not know.

		MS. RYDER:  Okay.  Is that something that's, you know, part of the
guidance that your association recommends?

		MR. JOHNSON:  Well, because there is no standard that forces it, I
imagine that there's probably not very many, but we've been pushing
everything in our ASTM standard to all of our members, and that does
include a respiratory protection program.

		MS. RYDER:  Okay.  I have another question for you, Mr. Johnson.  I
took a look at the Masonry Contractor Association's website, and it
looks like you maybe have about 10 resources for controlling exposure to
respirable crystalline silica, and I'm not sure if those have been
submitted to the docket yet.  Is that something that you can submit
during the post-hearing comment period?

		MR. JOHNSON:  If it's on our website, I don't see it being a problem.

		MS. RYDER:  Okay.  Great.  Thank you.  I think that's it for me.
Thanks.

		JUDGE PURCELL:  All right.  Any further questions from the OSHA panel?

		MR. O'CONNOR:  No.  We would like to thank the panel members for
appearing and testifying today.

		MR. JOHNSON:  Thank you.

		MR. O'BRIEN:  Yeah.  Thanks for having us.

		MR. THOMAS:  Thank you.

		JUDGE PURCELL:  Mr. Johnson, Mr. Thomas, Mr. O'Brien, I thank you
as well.  You're excused.

		And the next two presenters are Francisco Antonio Trujillo for Miller
and Long Company and Joel, and I hope I'm pronouncing it right, Guth,

G-u-t-h, of iQ Power Tools.  I'd invite them to come up at this time.

		All right.  Mr. Trujillo, if you're ready please introduce yourself
and your association, then I'll ask Mr. Guth to do the same, and then
you can begin with your testimony.

		MR. TRUJILLO:  Sure.  My name is Francisco Antonio Trujillo.  I'm the
Safety Director for Miller and Long Concrete Construction here in the
D.C. Metropolitan Area.

		JUDGE PURCELL:  Okay.  Thank you.

		And Mr. Guth?

		MR. GUTH:  Joe Guth, President of iQ Power Tools.

		JUDGE PURCELL:  Thank you.

		Mr. Trujillo, if you'd like to present your testimony?  And also do
you intend to mark your written testimony as an exhibit?

		MR. TRUJILLO:  I will.

		JUDGE PURCELL:  Okay.  After you do that, just hand it to me.  I'll
mark it as an exhibit and admit it at that time.

		MR. TRUJILLO:  Yes, sir.  Again, my name is Francisco Antonio
Trujillo.  I work for Miller and Long Co., Inc., a concrete framing
contractor that builds many of the structures you see here in the D.C.
skyline.  We employ approximately 1,500 field employees including
laborers, carpenters, concrete finishers, and many others.  Our main
goal every day is to get concrete poured without a single injury.
That's how we get paid, and injuries don't pay.  Everybody knows that.

		Today we would probably pour, on a nice day, hopefully we got a nice
day, we're going to have about 2,000 cubic yards of concrete poured.
That's quite a bit of concrete, and not one teaspoon of that amount of
concrete is worth an accident or an injury or an illness.

		We often focus on, you know, obvious hazards like falls, cranes, power
tools, et cetera.  But we also remain very aware that the lifeblood of
our industry, concrete, holds many hazards of its own.  In its liquid
form it's a very caustic material that it can -- that can burn exposed
tissue.  However, when it solidifies a new hazard waits to be unleashed.
 This hazard, everyone, crystalline silica, is typically associated with
work activities that fracture, cut, crush, and grind silica-containing
materials like concrete.

		Many of these activities are represented in Table 1.  While these
activities should absolutely be part of a silica discussion we must also
understand that crystalline silica can become airborne without the
assistance of power or hand tools.  In fact, seemingly benign activities
like removing or handling plywood forms or walking on recently cured
concrete surfaces can create airborne crystalline silica exposures very
close to the proposed PEL and action levels.

		While I intend to address the feasibility and effectiveness of
crystalline silica mitigation methods for activities like grinding
concrete, it is important that I make everyone aware of the potentially
large scope of this regulation.  If the proposed action level and PEL
levels are adopted as written, concrete contractors could be forced to
enroll a large majority of their workforce in respiratory protection
programs.  Most contractors, concrete contractors, like Miller and Long
are not currently set up to manage such a massive respiratory protection
program.  I personally would need to hire a full-time industrial
hygienist to properly implement such a large program.

		Please let me stress that I do not mean to discount the dangers of
overexposure to respirable crystalline silica or the impact on workers
and their families.  I simply ask that we take a hard look at what we're
trying to achieve and ensure that we all understand what it will take to
get there.  I believe that there is a workable compromise out there and
we can work together to find it.

		I'd like to switch gears to address Table 1 and mitigation methods.
While Miller and Long may have many routine tasks that we perform day in
and day out, each condition is unique and requires competent personnel
to assess exposure hazards.  There is no magic table or tool that holds
all the answers we seek.  I would also like to note that the phrase
"operate equipment such that no visible dust is emitted from the
process" appears 11 times in Table 1.  There is no completely dustless
method that I have personally observed in the real world.  There is no
-- if there is no completely dustless system, how can we comply with
Table 1?

		Let me stress that Table 1 is not without value.  It could serve as a
great non-mandatory appendix for easier reference and guidance.  In
specifically addressing proposed 25 µg/m3 action level and 15 µg/m3
PEL, I believe that based on my sampling results, these numbers are far
too low.  I believe that a PEL of 100 µg/m3 and an action level of 75
µg/m3 would be much more appropriate for the construction industry.  I
have found that employees performing form work removal activities where
you take plywood and remove it from a recently poured concrete column or
wall in open air were exposed to crystalline silica levels of 20 µg/m3,
which is dangerously close to the proposed action level.  These
employees were not doing this all day, they were in open air, they were
not using any tools.  They were removing plywood from concrete.  Twenty
µg/m3.

		Another employee was sweeping up sawdust, not slurry, not silica,
sawdust at a carpentry station and received an exposure of 37 µg/m3
which placed her over the proposed action level.

		Incorporating employees that perform just these two activities could
easily result in Miller and Long having to enroll another 900 of our
1,500 employees in our respiratory protection and exposure assessment
program.  While vacuum systems could be used to help control the dust
for the sweeper, there is no engineering control for concrete form work
removal.

		In referencing engineering controls, I'd like to disclose my findings
regarding the effectiveness of dust collection systems for concrete
grinding systems.  In the past 12 months, I focused my sampling efforts
on powered ceiling and hand grinders.  And I've heard a lot of talk
about water systems used for cutting, and I think a lot of people in
here are picturing saw-cutting floors and things like that and things
that are on a flat surface.  But a lot of the work, especially in the
construction industry today, the architects are very, very -- they're in
love with exposed concrete.  All right?  You cannot pour concrete in a
way that's pleasing to the eye unless you go back and you make it look
pretty.  So if you walk around D.C., there's a lot of glass and a lot of
exposed concrete.

		Now, we did try -- now we have to grind these ceilings too.  There's a
lot of exposed ceilings.  I was pleasantly surprised when assessing the
effectiveness of Ostec's vacuum system designed for use with the ceiling
grinders.  I found that it greatly reduced the amount of dust expelled
from the process but did not completely eliminate it.  It was a very,
very, dusty activity, and now it's moderately so --

		The visual results were so promising that I had to continually remind
my employees performing these activities to wear their respiratory
protection.  The employees argued with me that they shouldn't have to
wear the protection if there was hardly any visible dust and that, as I
informed them, their exposure levels were under the current PEL, I
reminded them that the respirators provide an extra protection in case
the vacuum system began to fail.  In fact, even the promising visual
results yielded only one in five sampled ceiling grinder observations
were found to be below the proposed action level.  Hardly any visible
dust, still only one in five was below the proposed action level.

		All of the samples were found to be below the current permissible
exposure limit that we have now, but three of the five samples were
found to be above the proposed permissible exposure limit.

		On the other hand, dust collection systems used on hand grinders
received very disappointing results.  In fact, no hand grinder equipped
with a dust collection system was capable of bringing exposure levels
below the current PEL.  The limitations of these systems are not due to
poor engineering or lack of effort by the manufacturers.  I've talked to
Makita, and I've talked to DeWalt, I've talked Bosch, and I've worked
with many of them and own many of their systems and we're trying them.
We're working with them.  But they're not effective.

		The limitations were the result of many varied configurations in which
the tools must be used.  They're frustrated, but the tools are forced to
be used in many, many different configurations, whether it be grinding a
wall or a ceiling or in the corner.  Dust shroud systems used in the
corner don't allow the grinding system to get up in that corner to
finish it.

		No dust collection system is capable of overcoming incomplete surface
contact, which is encountered many times when grinding columns and
walls.  The inherent limitations of dust collection systems and changes
in site conditions requires consistent evaluation by competent persons
to ensure chosen protective equipment is adequate for the task being
performed.

		In addressing regulated areas, I feel that a real-life example would
best describe the challenges associated with implementing such controls.
 Imagine, if you will, here in D.C. or this is a tall building example,
so maybe Rosslyn, a five-story structure coming out of the ground.
Concrete.  Twenty more stories to go.  Each floor is approximately
20,000 square feet, so roughly a hundred feet by 200 feet, not uncommon.
 Workers have removed the concrete form work supporting the third floor
because it's no longer needed for re-shoring.  The floor is now open on
all sides to the air and it's protected with cable guard rail systems
all the way around.

		A worker is grinding the ceiling to smooth the seams left behind when
concrete seeps between the layers of plywood decking form work.  Another
worker is grinding the sides of approximately 76 concrete columns to
provide a smooth finish per the job site specifications.  Both workers
are using dust control systems, but complete dust mitigation is
impossible.  Both workers are controlled in the -- are enrolled in the
employer's respiratory protection program and are wearing appropriate
respiratory protection based on the previously conducted exposure
assessments.

		The entire ceiling and all columns will be finished in approximately
two business days.  This means that the ceiling grinder will have
finished approximately 10,000 square feet of ceiling per day, and the
column grinder will have finished approximately 38 concrete columns per
day.

		It works for me.  I hope it does for you to provide some perspective
of the speed at which these workers are moving.  As these workers cover
this large distance in a day, wind speed and direction is constantly
changing.  This causes the escaping dust to travel in unexpected
directions and at inconsistent distances.  At the same time, we have the
electrical, HVAC, plumbing contractors and others that have been waiting
for this form work to be removed that want to access the floor and
attempt installing their work as scheduled.

		Given the example above, I challenge any safety professional to
establish and maintain definite demarcation zones where no worker could
ever be possibly overexposed to crystalline silica.

		A simple answer could be to block off the entire floor while finishing
operations are ongoing, halt the schedule.  This would represent an
unrealistic and infeasible option.  To further represent the
infeasibility of this approach, try to understand that concrete finish
requirements can change during the scope of a project.  An architect can
decide that this room wasn't finished concrete and now it is.  Change
orders are issued and work will start.

		This would require operations described in the example to be
potentially ongoing at various points throughout the building for weeks
or months at the time.  To completely isolate these areas, large
sections of the building, or the entire building itself would have to be
designated as an exclusion or demarcation zone so that no other people
were exposed.

		I feel, as in most hazard abatement methods, education is paramount.
Each contractor must inform their employees of the hazards of silica
overexposure, how to identify those hazards and what to do if those
hazards are encountered.  Barricades and signs are not the answer for
the construction industry.

		In regards to exposure assessments, I agree that work processes should
be evaluated to determine employee exposure levels.  Additional exposure
assessments should be conducted as needed to address significant
environmental changes or modification to our processes.

		I propose the following be incorporated into amended version of
Section D.  Employee exposure levels determined to be in excess of 100
µg/m3 must be protected by appropriate engineering controls and/or
personal protective equipment.  Employee exposure levels determined to
be in excess of 50 µg/m3 but less than 75 µg/m3 must be closely
monitored by the employer to identify changes in workplace conditions
that could cause exposure levels to increase.

		Work processes with exposure levels falling between 75 µg/m3 and 100
µg/m3 must be evaluated and sampled every six months to verify
consistent exposure unless the employer voluntarily implements identical
control methods to those chosen for those in excess of 100 µg/m3.  They
can go above and beyond to eliminate the continued sampling requirement.

		It is my belief that this simplified method of assessment, evaluation,
and control can provide the same results with far less administrative
burden.

		In conclusion, I ask that the Occupational Safety and Health
Administration set a reasonable permissible exposure limit and action
level for silica exposures that provide the maximum worker protection
while maintaining industry implementation feasibility.  I further ask
that methods for achieving compliance with these limits and levels be
left to industry safety professionals like myself who are more than
capable of achieving the results you desire -- desired by industry,
labor, and OSHA.

		Thank you for the opportunity to testify here today.  I also have a
copy of my submitted testimony that I put in through the website, and
unfortunately in my haste to get it in, I recognized one typographical
error, so I modified it and I have it here for you today if --

		JUDGE PURCELL:  Thank you, Mr. Trujillo.  If you'll hand it to me,
I'll mark it as Hearing Exhibit Number 97 and admit it into the record.

(Whereupon, the object referred to as Hearing Exhibit 97 was marked and
received in evidence.)

		JUDGE PURCELL:  And did you have any other exhibits you wish to offer?

		MR. TRUJILLO:  Not right now, sir.

		JUDGE PURCELL:  Okay.  Thank you.

		Mr. Guth?  You're up next.

		MR. GUTH:  My name is Joel Guth, President of iQ Power Tools.  My
background, I'm a journeyman mason and a 25-year mason contractor with
licenses in three states.  I'm also a founding member of MITA, the
Masonry Industry Training Association, and a 10-year board member of the
Mason Contractors Association of California.  It was there that I had
the opportunity to work with Cal/OSHA to rewrite the silica standard
several years ago.

		Fourteen years ago I had a silica dust problem, and I didn't even know
it.  You see, I was a masonry contractor with 80 employees, and we were
dry cutting.  I have a couple of photos here.  We were dry cutting
concrete masonry materials like the ones you see here every day.

		JUDGE PURCELL:  Mr. Guth, do you have a printed copy of the slides
you're showing?

		MR. GUTH:  Just one.

		JUDGE PURCELL:  Okay.  After you finish, I'll ask you to mark that as
an exhibit.

		MR. GUTH:  Okay.

		JUDGE PURCELL:  But while you're describing those, if you would, do
you -- can you number those photographs?

		MR. GUTH:  Yes.  Yes, we will.

		JUDGE PURCELL:  Okay.  You've showed one just before the one that's on
the screen now, and if you'll identify the photo and what's portrayed in
there?

		MR. GUTH:  You -- right now you'd like me to do that?

		JUDGE PURCELL:  Yes, please.

		MR. GUTH:  This is a power cutter that is being run dry.  The person
is wearing a respirator.  This is on one of my job sites.  This is an
activity that happened on a daily basis.  It's very common in our
industry.

		JUDGE PURCELL:  Okay.  And as you go along, just please identify the
photograph.

		MR. GUTH:  This is a 14-inch table saw.  Very common, also cutting
dry.

		My story growing up in the construction business working for my
father's masonry company I started out with a shovel in my hand at the
entry level as apprentice mason, journeyman, foreman, and then a
contractor for 25 years and having over a hundred employees.  Over that
30 years I've had first-hand experience doing these jobs using these
tools inhaling that dust.  And when I say it sucks, I mean it really
sucks.  It is not a pleasant job.  Ask anyone who's ever run one of
these tools for even an hour in a day, and they will tell you about the
gray/green muck that comes out of your nose in the shower at the end of
the day.  It's not pretty.  But it's real.

		In 2001 I saw the light or the need to eliminate this dust from our
job sites.  I had attended an NCMA silica seminar, and progressively
from there I started to learn more and more about the true hazards this
dust causes to my men.  Many of these people are my friends that I've
known for more than 20 years.  As our education increased, we started to
search for solutions.  What we quickly found was either you wet cut,
which reduced the exposure to a point, or you dry cut and find a way to
capture the dust completely.  But nothing was available, so we had to
build our own.

		This is a picture of our first --

		JUDGE PURCELL:  And, Mr. Guth, I'm sorry to interrupt you, but you
had displayed on the screen a photograph of a hand with dust, and then
you went on to the next one, so --

		MR. GUTH:  That is a picture of silica phlegm that comes out of your
nostrils at the end of a day.

		JUDGE PURCELL:  Okay.  Thank you.  Not a pretty picture.

		MR. GUTH:  It's not a pretty picture.

		This is a picture of our first system.  It was very primitive but
very, very effective.  We took this first unit and tried to get major
manufacturers to understand the problem with the dust and to build these
for us.  But no one wanted to invest the time or the money.  That's how
we got into the business, to supply our own crews with effective
solutions to eliminate that nasty silica dust.

		We'd like to submit a copy of our air monitoring test data and also
these are several pictures of the tools we built to help us solve this
problem.  This is a -- an iQ 2000 system on a conventional masonry saw
with our table, and I know several block manufacturers that are using
these currently and -- to maintain and eliminate the dust on -- at their
block plants and also on commercial masonry construction sites.

		This is our iQ 360.  It's a 14-inch table saw, and this is the type of
saw that you could bring right inside this room and cut brick and stone
with it and stay under the exposure limits.

		And this is the newest version we have.  This is a PC912.  This is a
very common tool used dry, and we've incorporated dust collection and
filter system on it to collect up to 90 percent of the dust, and we have
test data in here using this tool.

		So you may ask why isn't everyone just using one of the methods,
either wet or dry, to reduce or eliminate the silica dust hazards from
their job sites.  That's a good question.  What we know from the last 10
years is that 15 to 20 percent of the contractors have found ways to
protect their people, and most of them are represented by the group
speaking before this panel.  It's the other 80 percent that are most
concerning.

		I've had the opportunity to personally speak face-to-face with over
5,000 workers in the last six months.  I asked them three questions.
The first question: Is dust a problem on your job site and how do you
deal with it?  The second question: Do you know OSHA?  And the third
question: Do you know what a PEL is, specifically the silica PEL?

		The answer to the first question is scary.  Some cut wet most of the
time, some cut dry with vacuum systems or respirators, that's that 15 to
20 percent.  But the scary part is over 80 percent cut dry without any
controls or personal protective equipment.

		So the second question, do they know OSHA?  Most of them know and have
heard of OSHA.  What about the silica PEL?  I find that less than one
percent even know what a silica PEL is or have even heard about it.
Now, when I ask how many of these people can explain the PEL, I've found
no one in this industry that can explain it.  You see, they were like me
15 years ago.  I had an idea this dust might be a problem and not be
good for you, but no clue of the real permanent damage it does to your
lungs at 10 to 100 times the PEL.

		We found very quickly that no one clearly understands or can explain
the PEL at 250 parts per million or 100 µg per meter or what this PEL
means to them and the people they work with.  It wasn't until I could
run a series of math equations and weigh out a real live samples of this
dust before I could clearly understand and explain the PEL to someone.
That's how we came up with these tests that measure out a day, a week, a
month and a year of total dust exposure at the silica PEL using an
average breathing rate.  And I have some of my test samples I -- in my
brief case.  I'll share with those.

		And then comparing these with a total amount of dust generated from
one brick or paver cut.  That's what's in this photo.  This is a
comparison of the amount of dust that one paver cut, 44 grams, compared
to the allowable 16,800 µg, which is a total amount of respirable dust
at a 10 percent silica content.  This small pile you see here on the
penny represents eight hours of dust at 100 µg of silica at a 10
percent silica content.  The large pile is the dust from one cut.

		In this industry they cut 100 to 400 times this much on tens of
thousands of job sites every single day, and 80 percent or more of these
people are not using anything to protect themselves from this dust.
Why?  They do not understand the true short-term or long-term hazards
associated with this dust.

		Will changing the silica PEL from 250 parts per million or 100 µg per
meter square change the mindset or the work habits of these tens of
thousands of people?  Not at all.  Why?  Because they do not even know
what a PEL is, and second they do not understand the hazards.

		We've got to change this.  We've got to educate, educate, educate the
80 plus percent of the people in the industry who continue to severely
overexpose themselves.  We have to explain to people in clear, simple
terms what 100 µg per meter square really means to them on a daily
basis.  We have to show them in graphic terms and pictures what this
silica dust is doing to their lungs and we have to show them and teach
them safe, efficient methods to get their job done.  Give them good
options to solve this problem.

		To do this is going to take a unified effort from all the stakeholders
in the construction industry.  That means everyone in this room.  We've
got to stop wasting time debating.  Instead, we all need to agree that
too many people are severely overexposed on a daily basis in certain
segments of the construction industry and we're going to work together
to change this.  Let's choose a target goal and work together to get
there.

		At iQ Power Tools, we'd like to make available some of the silica
education tools we use and propose a silica three times 100 as a target
we can get to.  Three times 100 means 100 percent of the people, 100 µg
or less silica, 100 percent of the time.  Thank you.

		JUDGE PURCELL:  Thank you, Mr. Guth.  With your permission I'd like
to mark your written testimony as Hearing Exhibit Number 98.  That
testimony I noted includes copies of the photographs so it'll show where
in your testimony those eight photographs appeared.  Then you'd
mentioned some test data, which I'll mark as Hearing Exhibit Number 99
and admit it on the record.  And then did you want to offer any
additional exhibits other than these?

		MR. GUTH:  I do have some test samples in my briefcase that I'd like
to share also --

		JUDGE PURCELL:  Okay.  I'll mark those as Hearing Exhibit 100 and
admit those into the record.

(Whereupon, the objects referred to as Hearing Exhibits 98 through 100
were marked and received in evidence.)

		JUDGE PURCELL:  If you could hand those two documents to me and then
the other copy --

		MR. GUTH:  Can I give you the other copy?  This has some notes on it
of my personal notes.

		JUDGE PURCELL:  Certainly.  That --

		MR. GUTH:  I have another copy in my briefcase --

		JUDGE PURCELL:  That's fine.

		MR. GUTH:  -- I'll submit.

		JUDGE PURCELL:  If you can go ahead and hand those to me, I'll mark
them now and admit them into the record.  Do you have your briefcase up
here with you?

		MR. GUTH:  No, I don't.

		JUDGE PURCELL:  Oh, okay.

		MR. GUTH:  It's back in my seat.  If we can get it when we finish?

		JUDGE PURCELL:  After we break, you can do that and then the sample
data as well.

		With that I'll ask how many people have questions for the panel.
Okay.  Ms. Trahan?  Please state your name and your affiliation for the
record.

		MS. TRAHAN:  Chris Trahan, T-r-a-h-a-n, with the Building Trades.
Mr. Trujillo, thank you for your testimony.  I think it's really
important to hear from contractors in these hearings and you're few and
far between, so thank you.

		MR. TRUJILLO:  Thank you.

		MS. TRAHAN:  You mentioned a brand name of Ostec of one of the tools
equipped with local exhaust ventilation --

		MR. TRUJILLO:  Uh-huh.

		MS. TRAHAN:  -- that you've used on your job site and that you've done
air sampling with that tool.  Is -- have you provided that data to the
record and if not would you?

		MR. TRUJILLO:  I have not yet, and I will.

		MS. TRAHAN:  Okay.  Thanks.  And the type of specifics like the
conditions it was used in and the specific engineering control used I
think would be very helpful.

		MR. TRUJILLO:  Okay.

		MS. TRAHAN:  If you can do that.

		JUDGE PURCELL:  Ms. Trahan, your voice kind of trails off.  If you
could pull the mic a little closer?  Thank you.

		MS. TRAHAN:  You also mentioned a role for competent personnel to
assess and evaluate efforts to mitigate exposures.  What kind of
knowledge or training do those people -- would those people need to have
in order to --

		MR. TRUJILLO:  Well, I --

		MS. TRAHAN:  -- perform on the job site?

		MR. TRUJILLO:  I'm a, you know, we have competent persons for almost
everything and the definition of a competent person pretty much says it
pretty well which is whoever that person is needs to have knowledge of
the existing and predictable hazards and they all -- more importantly
they have to have authority to take some sort of action with regards to
that hazard recognized and the mitigation method identified.

		MS. TRAHAN:  As far as the specific knowledge as -- where silica goes?

		MR. TRUJILLO:  Well, I would think that they would need to have some
knowledge of the work process and the hazards associated and maybe even
have been -- some knowledge of prior sampling evaluations so they know
what they're looking at, you know?  You can't look at silica and know
what the exposure levels are.  You need to know -- have some data behind
it.  And anybody that I personally would make in -- put in charge of
monitoring that type of activity would definitely know what they were
looking out for and the, kind of the telltale signs of overexposure
based on sampling results.

		MS. TRAHAN:  Okay.  Thank you.

		Mr. Guth, the -- we're happy to see you here because we don't see a
lot of people who are making engineering controls in this hearing and
it's very nice.  We've heard that there's some productivity benefits
associated with the use of your equipment.  Can you describe some of
those productivity benefits?

		MR. GUTH:  In certain industries we've been able to measure the time
savings from cleaning up the silica dust and here we're focusing not on
the, maybe the commercial contractors, but this is more the residential
contractors that are using these products and not doing anything about
it.  And so we're trying to educate them.  But what it does, it saves
them one to two to three hours a day in cleanup time because they don't
have to wash down the house or wash the windows or wash the bushes where
they're inherently dry cutting.

		MS. TRAHAN:  Wow.  And do you have new equipment on the market?

		MR. GUTH:  Yes.  The one piece, the PC912 is a new piece of equipment
out just this year.

		MS. TRAHAN:  And I saw that you submitted some sampling data
associated with your equipment.  Is that included in the data that you
--

		MR. GUTH:  Yes, it is.

		MS. TRAHAN:  Okay.  Thank you.  And what types of tasks and projects
would your equipment be used for --

		MR. GUTH:  It varies quite a bit.  They're pretty universal.  A power
cutter is used, you know, gasoline powered hand-held saw is used on
everything from cutting asphalt to cutting concrete to cutting pavers to
cutting pretty much any type of cementitious materials which generate
silica, but that's a wide range.  And I want to add that any of these
tools, to be used properly, they have to be used by a trained
professional.  They can't be just with zero training and expect to get
the results achievable to meet the PELs.