U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Publishing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

99–775 PDF 2016

REVIEWING RECENT CHANGES TO OSHA’S 

SILICA STANDARDS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

HEARING HELD IN WASHINGTON, DC, APRIL 19, 2016 

Serial No. 114–46 

Printed for the use of the Committee on Education and the Workforce 

( 

Available via the World Wide Web: 

www.gpo.gov/fdsys/browse/committee.action?chamber=house&committee=education 

or 

Committee address: http://edworkforce.house.gov 

CEWDOCROOM with DISTILLER

(II) 

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN KLINE, Minnesota, Chairman 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Matt Salmon, Arizona 

Brett Guthrie, Kentucky 

Todd Rokita, Indiana 

Lou Barletta, Pennsylvania 

Joseph J. Heck, Nevada 

Luke Messer, Indiana 

Bradley Byrne, Alabama 

David Brat, Virginia 

Buddy Carter, Georgia 

Michael D. Bishop, Michigan 

Glenn Grothman, Wisconsin 

Steve Russell, Oklahoma 

Carlos Curbelo, Florida 

Elise Stefanik, New York 

Rick Allen, Georgia 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Ranking Member 

Rube ́n Hinojosa, Texas 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Joe Courtney, Connecticut 

Marcia L. Fudge, Ohio 

Jared Polis, Colorado 

Gregorio Kilili Camacho Sablan, 

Northern Mariana Islands 

Frederica S. Wilson, Florida 

Suzanne Bonamici, Oregon 

Mark Pocan, Wisconsin 

Mark Takano, California 

Hakeem S. Jeffries, New York 

Katherine M. Clark, Massachusetts 

Alma S. Adams, North Carolina 

Mark DeSaulnier, California 

Juliane Sullivan, Staff Director 

Denise Forte, Minority Staff Director 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

TIM WALBERG, Michigan, Chairman 

Duncan Hunter, California 

Glenn Thompson, Pennsylvania 

Todd Rokita, Indiana 

Dave Brat, Virginia 

Michael D. Bishop, Michigan 

Steve Russell, Oklahoma 

Elise Stefanik, New York 

Frederica S. Wilson, Florida, 

Ranking Member 

Mark Pocan, Wisconsin 

Katherine M. Clark, Massachusetts 

Alma S. Adams, North Carolina 

Mark DeSaulnier, California 

Marcia L. Fudge, Ohio 

CEWDOCROOM with DISTILLER

(III) 

C O N T E N T S 

Page 

Hearing held on April 19, 2016 .............................................................................. 1 

Statement of Members: 

Walberg, Hon. Tim, Chairman, Subcommittee on Workforce Protections ... 1 

Prepared statement of ............................................................................... 3 

Wilson, Hon. Frederica S., Ranking Member, Subcommittee on Workforce 

Protections ..................................................................................................... 4 

Prepared statement of ............................................................................... 6 

Statement of Witnesses: 

Brady, Mr. Ed, President, Brady Homes of Illinois, Bloomington, IL ......... 22 

Prepared statement of ............................................................................... 24 

Chajet, Mr. Henry, Shareholder, Jackson Lewis P.C., Reston, VA .............. 57 

Prepared statement of ............................................................................... 59 

Herschkowitz, Ms. Janis, President and CEO, PRL Inc., President, Regal 

Cast, Lebanon, PA ........................................................................................ 36 

Prepared statement of ............................................................................... 38 

Melius, Dr. James, Director of Research, Laborers’ Health and Safety 

Fund of North America, Albany, NY ........................................................... 45 

Prepared statement of ............................................................................... 47 

Additional Submissions: 

Mr. Chajet: 

Silicosis: Number of deaths, crude and age-adjusted death rates, 

U.S. residents age 15 and over, 1968-2010, source: NIOSH (CDC), 

September 11, 2014 ............................................................................... 106 

DeSaulnier, Hon. Mark, a Representative in Congress from the State 

of California: 

Control of Silica Exposure in Foundries .................................................. 79 

Ms. Herschkowitz: 

OSHA Fact Sheet ...................................................................................... 70 

Mr. Walberg: 

Regulatory Report from U.S. Chamber of Commerce entitled Regulatory Indifference Hurts Vulnerable Communities ........................... 108 

Article from The Hill: Regular dust monitoring can help prevent 

silicosis - not more regulation ............................................................... 136 

Prepared statement from The National Stone, Sand and Gravel Association (NSSGA) ..................................................................................... 137 

Letter dated April 19, 2016, from The Associated General Contractors 

(AGC) of America ................................................................................... 141 

Letter dated April 28, 2016, from National Industrial Sand Association (NISA) ............................................................................................. 143 

Ms. Wilson: 

Prepared statement from Brown, Mr. Tim .............................................. 18 

Prepared statement from McNabb, Mr. Dale .......................................... 11 

Prepared statement from Ward, Mr. Tom ............................................... 15 

Letter dated April 18, 2016, from United Steelworkers USW ............... 84 

Letter dated April 19, 2016, from BlueGreen Alliance .......................... 86 

Letter dated April 19, 2016, from Public Citizen ................................... 88 

Letter dated April 18, 2016, from American Association for Justice .... 90 

Press release dated March 24, 2016, from American Public Health 

Association (APHA) celebrates OSHA silica rule ................................ 92 

Letter dated April 18, 2016, from Englewood Construction - Management ........................................................................................................ 94 

Letter dated April 19, 2016, from Motley Rice LLC ............................... 95 

Prepared statement from America’s Agenda ........................................... 97 

CEWDOCROOM with DISTILLER

Page

IV 

Additional Submissions—Continued 

Ms. Wilson—Continued 

Prepared statement from International Union of Bricklayers and Allied Craftworkers ................................................................................... 101 

Prepared statement from USW Local Union 593 ................................... 147 

Prepared statement from Union of Concerned Scientists ...................... 150 

Prepared statement from North America’s Building Trades Unions .... 153 

CEWDOCROOM with DISTILLER

(1) 

REVIEWING RECENT CHANGES TO OSHA’S 

SILICA STANDARDS 

Tuesday, April 19, 2016 

U.S. House of Representatives 

Committee on Education and the Workforce 

Subcommittee on Workforce Protections 

Washington, D.C. 

The subcommittee met, pursuant to call, at 10:01 a.m., in Room 

2175, Rayburn House Office Building, Hon. Tim Walberg [Chairman of the subcommittee] presiding. 

Present: Representatives Walberg, Rokita, Brat, Bishop, Wilson, 

Pocan, Adams, and DeSaulnier. 

Also Present: Representatives Kline and Scott. 

Staff Present: Bethany Aronhalt, Press Secretary; Janelle 

Belland, Coalitions and Members Services Coordinator; Ed Gilroy, 

Director of Workforce Policy; Jessica Goodman, Legislative Assistant; Callie Harman, Legislative Assistant; Tyler Hernandez, Deputy Communications Director; Nancy Locke, Chief Clerk; John 

Martin, Professional Staff Member; Dominique McKay, Deputy 

Press Secretary; Krisann Pearce, General Counsel; Molly 

McLaughlin Salmi, Deputy Director of Workforce Policy; Alissa 

Strawcutter, Deputy Clerk; Loren Sweatt, Senior Policy Advisor; 

Olivia Voslow, Staff Assistant; Joseph Wheeler, Professional Staff 

Member; Tylease Alli, Minority Clerk/Intern and Fellow Coordinator; Austin Barbera, Minority Press Assistant; Pierce Blue, Minority Labor Detailee; Denise Forte, Minority Staff Director; Christine Godinez, Minority Staff Assistant; Carolyn Hughes, Minority 

Senior Labor Policy Advisor; Brian Kennedy, Minority General 

Counsel; Richard Miller, Minority Senior Labor Policy Advisor; 

Veronique Pluviose, Minority Civil Rights Counsel; Marni von 

Wilpert, Minority Labor Detailee; and Elizabeth Watson, Minority 

Director of Labor Policy. 

Chairman WALBERG. A quorum being present, the subcommittee 

will come to order. Good morning, everyone. I would like to begin 

by welcoming our witnesses. Thank you for joining us to discuss an 

issue important to everyone in this room, protecting the health and 

safety of American workers. 

We are here today because we all agree that hard-working men 

and women should be able to earn a paycheck without risking a serious injury or being exposed to a deadly disease. Every family deserves the peace of mind that their loved ones are safe on the job. 

CEWDOCROOM with DISTILLER

2 

We also agree that Federal policies play a role in meeting that 

shared goal. 

This hearing is timely because next week marks 45 years that 

the Occupational Safety and Health Administration has helped 

keep American workers safe. As part of this Committee’s oversight 

efforts, we were pleased to have Assistant Secretary Michaels join 

us last October to discuss what more can be done to promote safe 

and healthy working conditions. 

The question before the Committee then and today is whether 

the workplace rules and regulations coming out of Washington 

serve the best interests of employees and their employers. Are they 

practical? Are they responsible? Are they fair? Are they created 

with transparency and enforced effectively? 

These are important questions because the strongest health and 

safety rules will do little to protect America’s workers if the rules 

are not followed and enforced, or if they are too confusing and complex to even implement in the first place. 

I hope we have a thoughtful discussion today that addresses 

these points, particularly as they relate to OSHA’s new silica 

standard. 

In March, OSHA issued a final rule that significantly reduces the 

permissible exposure limit to crystalline silica. Silica is the second 

most common element found in the Earth’s crust and a key component of manufactured products and construction materials. Exposure to high concentrations of silica dust can lead to a dangerous 

debilitating and even life-threatening disease. We have witnessed 

important progress in recent years, but we know there is more that 

can be done to keep workers out of harm’s way. 

That is why this Committee has pressed OSHA to use the tools 

at its disposal to enforce existing standards. Unfortunately, the 

agency has failed to do so. OSHA itself admits that 30 percent of 

tested job sites have not complied with the existing exposure limit 

for silica. The existing exposure limit for silica. Did I mention it 

was the existing exposure limit for silica? 

This is an alarmingly high figure. Instead of enforcing the rules 

already on the books, the department spent significant time and resources crafting an entirely new regulatory regime. The department’s first priority should have been enforcing existing standards, 

and some potentially in the room today may question whether 

these rules were followed and if indeed, as a result of not being enforced across the board, they experienced the results of silicosis. 

If OSHA is unable or unwilling to enforce the current limit for 

silica exposure, why should we expect the results under these new 

standards to be any different? 

Related to enforcement, some have raised concerns about whether the new standards can be responsibly enforced. It has been suggested that silica cannot be accurately measured at the reduced 

limit prescribed in the new law or new rule because many labs do 

not have the technology necessary to provide reliable results. 

Will employers acting in good faith and trying to do the right 

thing be held accountable for an enforcement regime that is not 

feasible or practical? 

These are important questions about enforcement, but there are 

also serious questions concerning implementation. Can these new 

CEWDOCROOM with DISTILLER

3 

rules be effectively implemented on the ground and under the time 

frame prescribed by OSHA? Employers may lack the time and resources necessary to adjust their workplaces to the requirements of 

the new rule. Others may find new controls simply unworkable. 

This is especially true for small businesses. 

According to the National Federation of Independent Business, this rule will cost workplaces more than $7 billion each year. These 

costs will be borne by consumers and taxpayers, and may I suggest 

employees with a loss of jobs or loss of security in their jobs. They 

will be borne by all of these people in the form of higher prices for 

homes, bridges, roads, et cetera. These costs will be borne by workers in the form of fewer jobs. These are significant consequences for 

a rule that may do little to enhance worker health and safety, 

which is our key priority. 

Hundreds of thousands of workplaces nationwide will be impacted by these new rules. We owe it to our Nation’s job creators 

to provide the clarity and certainty they need to expand, hire, and 

succeed. 

Just as importantly, we owe it to workers and their families to 

promote smart, responsible regulatory policies that are implemented and enforced in a way that serves their best interests. The 

workers with us today, and those working on countless job sites 

across the country deserve more than our good intentions and political rhetoric at times. They deserve good policies that lead to good 

results. 

I know that we can work together to protect their health and 

well-being. It has happened here. It has happened here before and 

it can happen now, the well-being of hard-working men and women 

of this country. 

I look forward to today’s discussion, and will now yield to Ranking Member Wilson for her opening remarks. 

[The statement of Chairman Walberg follows:] 

Prepared Statement of Hon. Tim Walberg, Subcommittee on Workforce 

Protections 

We’re here today because we all agree that hardworking men and women should 

be able to earn a paycheck without risking a serious injury or being exposed to a 

deadly disease. And every family deserves the peace of mind that their loved ones 

are safe on the job. 

We also agree that federal policies play a role in meeting that shared goal. This 

hearing is timely, because next week marks 45 years that the Occupational Safety 

and Health Administration has helped keep America’s workers safe. As part of this 

committee’s oversight efforts, we were pleased to have Assistant Secretary Michaels 

join us last October to discuss what more can be done to promote safe and healthy 

working conditions. 

The question before the committee then and today is whether the workplace rules 

and regulations coming out of Washington serve the best interests of employees and 

their employers. Are they practical, responsible, and fair? Are they created with 

transparency and enforced effectively? 

These are important questions, because the strongest health and safety rules will 

do little to protect America’s workers if the rules are not followed and enforced— 

or if they’re too confusing and complex to even implement in the first place. I hope 

we can have a thoughtful discussion today that addresses these points, particularly 

as they relate to OSHA’s new silica standard. 

In March, OSHA issued a final rule that significantly reduces the permissible exposure limit to crystalline silica. Silica is the second most common element found 

in the Earth’s crust, and a key component of manufactured products and construction materials. But exposure to high concentrations of silica dust can lead to a dangerous, debilitating—and even life-threatening—disease. We have witnessed imporCEWDOCROOM with DISTILLER

4 

tant progress in recent years, but we know there’s more that can be done to keep 

workers out of harm’s way. 

That is why this committee has pressed OSHA to use the tools at its disposal to 

enforce existing standards. Unfortunately, the agency has failed to do so. 

OSHA itself admits that 30 percent of tested jobsites have not complied with the 

existing exposure limit for silica. This is an alarmingly high figure. But instead of 

enforcing the rules already on the books, the department spent significant time and 

resources crafting an entirely new regulatory regime. 

The department’s first priority should have been enforcing existing standards. If 

OSHA is unable—or unwilling—to enforce the current limit for silica exposure, why 

should we expect the results under these new standards to be any different? 

Related to enforcement, some have raised concerns about whether the new standards can be responsibly enforced. It has been suggested that silica cannot be accurately measured at the reduced limit prescribed in the new rule, because many labs 

don’t have the technology necessary to provide reliable results. Will employers—acting in good faith and trying to do the right thing—be held accountable for an enforcement regime that isn’t feasible or practical? 

These are important questions about enforcement, but there are also serious questions concerning implementation. Can these new rules be effectively implemented 

on the ground and under the timeframe prescribed by OSHA? Employers may lack 

the time and resources necessary to adjust their workplaces to the requirements of 

the new rule. Others may find new controls simply unworkable. 

This is especially true for small businesses. According to the National Federation 

of Independent Business, this rule will cost workplaces more than $7 billion each 

year. These costs will be borne by consumers and taxpayers in the form of higher 

prices for homes, bridges, and roads. And these costs will be borne by workers in 

the form of fewer jobs. These are significant consequences for a rule that may do 

little to enhance worker health and safety. 

We are fortunate to have a second-generation home builder and owner of a small 

family business with us who can speak more to this today. They will also speak to 

the fear of unintended safety consequences stemming from these new rules. In trying to address significant health and safety concerns, we must ensure federal policies do not in any way create new hazards in America’s workplaces. 

Hundreds of thousands of workplaces nationwide will be impacted by these new 

rules. We owe it to our nation’s job creators to provide the clarity and certainty they 

need to expand, hire, and succeed. And, just as importantly, we owe it to workers 

and their families to promote smart, responsible regulatory policies that are implemented and enforced in a way that serves their best interests. The workers with 

us today—and those working on countless jobsites across the country—deserve more 

than our good intentions, they deserve good policies that lead to good results. 

I know that we can work together to protect the health and well-being of the 

hardworking men and women of this country. I look forward to today’s discussion, 

and will now yield to Ranking Member Wilson for her opening remarks. 

Ms. WILSON. Mr. Chairman, thank you for holding this hearing 

today to review OSHA’s long-awaited rule updating the silica 

standard. The science is clear. Since 1974, the National Institute 

for Occupational Safety and Health has called for OSHA to cut the 

permissible exposure limit for general industry from 100 

micrograms per cubic meter to 50. It took 42 years for OSHA’s rule 

to catch up with the science. 

In 1997, the World Health Organization’s International Agency 

for Research on Cancer determined crystalline silica dust is causing damage to humans. The Department of Health and Human 

Services declared the same in 2000. 

Silica dust causes silicosis, lung cancer, respiratory illnesses, 

such as COPD, and kidney disease. Yet, scientific research demonstrates OSHA’s previous 40-year-old silica standard fails to adequately protect workers from these preventable diseases. Let me 

repeat, preventable. These diseases are preventable. 

CEWDOCROOM with DISTILLER

5 

Extensive scientific evidence shows lung cancer and silicosis 

occur at exposure levels below OSHA’s previous permissible exposure limit of 100 micrograms per cubic meter in general industry. 

Surprisingly, the alarmingly out-of-date construction industry 

standard of 250 micrograms per cubic meter stems from a 1929 

Public Health Service recommendation that the government acknowledged was not set at a level to protect workers from silicosis, 

but rather based solely on feasibility considerations of 1920s’ technology and management methods. 

OSHA’s new silica dust standard reflects current science and 

technology. It will save lives. Over 800,000 construction workers 

and another 295,000 workers in general industry and maritime are 

exposed to crystalline silica in excess of the new more protective 

standard of 50 micrograms per cubic meter. 

OSHA estimates this new standard, which includes engineering 

controls, training, prohibitions on dry sweeping, and medical surveillance, will save more than 600 lives each year, and prevent 

more than 900 cases of silicosis each year. 

I just want to show here on the screen pictures of airborne silica. 

This is dust generated by a power saw cutting through concrete 

block with and without engineering controls. All it takes is water 

or air to control silica dust. These pictures make it abundantly 

clear how using simple controls reduces workers’ exposure to silica 

dust, but useful statistics and the pictures fail to communicate the 

true toll on affected workers and their families. 

This includes workers like Dale McNabb, Tom Ward, and Tim 

Brown, who have submitted statements for the record. I ask unanimous consent to include the statements of Mr. McNabb, Mr. Ward, 

and Mr. Brown into the record. 

[The information follows:] 

CEWDOCROOM with DISTILLER

6 

CEWDOCROOM with DISTILLER


Insert offset folio 11 here 99775.011
7 

CEWDOCROOM with DISTILLER


Insert offset folio 12 here 99775.012
8 

CEWDOCROOM with DISTILLER


Insert offset folio 13 here 99775.013
9 

CEWDOCROOM with DISTILLER


Insert offset folio 14 here 99775.014
10 

Chairman WALBERG. Hearing no objection, they will be included. 

Ms. WILSON. Dale McNabb, who has joined us here today, is a 

tile setter from Warren, Michigan, and a member of Bricklayers 

Local Number 2 in Michigan. In his statement, Dale recounts his 

exposure to silica dust while working as a tile helper mixing cement and making cuts. After Dale started wheezing, he went to 

doctors who confirmed his respiratory problems were caused by silica exposure. 

Dale writes, ‘‘I loved my job, and I took a lot of pride in my work. 

I would still be doing it today if my doctors had not told me I could 

not, and that I might never work again because I breathed in silica 

dust. When I get exposed to dust now, and not just silica dust, it 

feels like I have a plastic bag over my head, and someone is pulling 

it shut.’’ 

Also, with us today is Tom Ward. Raise your hand, Tom. Tom is 

a bricklayer from Detroit, Michigan. At 13, Tom lost his father to 

silicosis. In his statement, Tom shares this painful story. Tom 

writes, ‘‘We got the official diagnosis, silicosis, when my dad was 

34 years old. The hardest memory to live with is the last day he 

worked. He came in the door, fell to the floor, and started crying. 

He said I cannot do it anymore. It took just five years for silicosis 

to kill him. It was a slow and very painful process for my dad to 

experience at far too young an age, 34 years old. It was hard for 

me, my sisters, and my mother to witness. In the end, his disease 

actually suffocated him.’’ 

Tom, who is himself a construction worker exposed to silica dust, 

remains stunned at the lack of training on and awareness of the 

dangers of silica dust, and the inconsistent use of engineering controls and personal protective equipment. 

We are also joined by Tim Brown. Raise your hand, Tim. Tim is 

a bricklayer from Milwaukee, and a member of Bricklayers Local 

8, who has worked in dust-producing trades his entire life. In his 

statement, Tim recounts the lack of proper engineering controls on 

worksites and his eventual diagnosis of silicosis. 

Tim writes, ‘‘I have a six-year-old daughter. She knows I am sick, 

and she worries about me. She does not want me to return to construction, but I am not sure how to provide for her if I cannot.’’ 

Dale, Tom, and Tim have testified in support of the new OSHA 

standards so that others would not go through what they have endured. As we deliberate today, Mr. Chairman, I hope that we can 

keep in mind what these and so many other hard-working Americans faced because OSHA’s silica standards were not protective 

enough. 

The 2.3 million workers, mostly in construction, who will gain 

protection under OSHA’s updated rule deserve our support. 

I want to thank our witnesses for being here today, and look forward to their testimony. I want to thank the 50 members of the 

International Union of Bricklayers and Allied Craftworkers who 

have also joined us here today. Raise your hands. Welcome. You 

are our constituents. This is your committee, Workforce Protections, and that is our job. 

Thank you, Mr. Chair. 

[The information follows:] 

CEWDOCROOM with DISTILLER

11 

CEWDOCROOM with DISTILLER


Insert offset folio 1 here 99775.001
12 

CEWDOCROOM with DISTILLER


Insert offset folio 2 here 99775.002
13 

CEWDOCROOM with DISTILLER


Insert offset folio 3 here 99775.003
14 

CEWDOCROOM with DISTILLER


Insert offset folio 4 here 99775.004
15 

CEWDOCROOM with DISTILLER


Insert offset folio 5 here 99775.005
16 

CEWDOCROOM with DISTILLER


Insert offset folio 6 here 99775.006
17 

CEWDOCROOM with DISTILLER


Insert offset folio 7 here 99775.007
18 

CEWDOCROOM with DISTILLER


Insert offset folio 8 here 99775.008
19 

CEWDOCROOM with DISTILLER


Insert offset folio 9 here 99775.009
20 

CEWDOCROOM with DISTILLER


Insert offset folio 10 here 99775.010
21 

Chairman WALBERG. I thank the gentlelady. Pursuant to Committee Rule 7(c), all subcommittee members will be permitted to 

submit written statements to be included in the permanent hearing 

record. Without objection, the hearing will remain open for 14 days 

to allow statements, questions for the record, and other extraneous 

material referenced during the hearing to be submitted in the official hearing record. 

It is now my pleasure to introduce today’s witnesses. Mr. Ed 

Brady is president of Brady Homes of Illinois in Bloomington, Illinois. Mr. Brady serves as NAHB’s 2016 chairman of the board. 

Brady Homes is a family-owned, second-generation building and 

development company founded by his father, William Brady. Mr. 

Brady will also testify on behalf of the National Association of 

Home Builders. Welcome. 

Janis Herschkowitz is president and CEO of PRL Inc., a familyowned, second-generation company located in Lebanon, Pennsylvania. She is also president of Regal Cast, an operating company 

under PRL Inc., that manufactures high-quality specification metal 

castings, fabrications, and metal casting machine components to 

the defense, nuclear, and energy industries. Ms. Herschkowitz will 

also testify on behalf of the American Foundry Society. Welcome. 

Dr. Jim Melius is the director of research for the Laborers’ 

Health and Safety Fund of North America. Dr. Melius is an occupational physician and epidemiologist. He spent several years directing occupational and environmental health programs for the National Institute for Occupational Safety and Health, and for the 

New York State Department of Health. Welcome. 

Finally, Henry Chajet, a shareholder in the Washington, D.C., 

regional office of Jackson Lewis, P.C., will testify on behalf of the 

U.S. Chamber of Commerce. Mr. Chajet is well-versed in environmental safety and health law involving Federal entities such as 

OSHA, MSHA, and EPA. Welcome. 

I will now ask our witnesses to stand and raise your right hands. 

[Witnesses sworn.] 

Chairman WALBERG. You may be seated. Let the record reflect 

the witnesses answered in the affirmative, and we appreciate that. 

Before I recognize you for your testimony, let me briefly explain 

our lighting system, very simple, like the traffic lights on the roadway. You have five minutes to testify. Keep it as close that as humanly possible. If it comes to the end of the time and you have a 

finishing sentence or paragraph, go ahead and do that. You will 

each have five minutes to present. When you see the yellow light 

go on, that means you have a minute left in your testimony time. 

The red light, you know what that means. 

After you testify, the members will have five minutes each to ask 

questions as well. We will attempt to keep that as well to fiveminute questioning so we can get through as much as possible this 

morning in the hearing time. 

So, now it is time to recognize the witnesses for their five minutes of testimony. Mr. Brady, I recognize you now for five minutes. 

CEWDOCROOM with DISTILLER

22 

TESTIMONY OF ED BRADY, PRESIDENT, BRADY HOMES ILLINOIS, BLOOMINGTON, IL, TESTIFYING ON BEHALF OF THE 

NATIONAL ASSOCIATION OF HOME BUILDERS 

Mr. BRADY. Thank you, Chairman Walberg, Ranking Member 

Wilson, members of the Committee. On behalf of the 140,000 members of the National Association of Home Builders, I appreciate the 

opportunity to testify here today. 

OSHA’s new silica rule is the most significant health and safety 

standard ever issued for the construction industry. Throughout the 

rulemaking process, NAHB sought to engage with OSHA to create 

a workable rule which protects our workers. Unfortunately, OSHA 

failed to address many of the industry concerns, and the final rule 

reflects a fundamental lack of understanding of construction and is 

technologically and economically infeasible. 

We strongly urge OSHA to revisit the rule and work with us to 

create a new rule that protects workers while also balancing the 

technological and economic challenges in the residential construction sector. Absent that, Congress must move swiftly to stop this 

flawed rule. 

OSHA’s new silica standard requires a staggering 80 percent reduction in the permissible exposure limit, or PEL, for the construction industry. To achieve this dramatically lower PEL, OSHA has 

concocted an aggressive compliance regime of engineering and work 

practice controls that in many cases cannot be applied in residential construction. 

If this rule goes into effect, we will have two options to comply. 

The first option is to measure the amount of silica a worker is exposed to. This is incredibly challenging to do in the field where 

multiple workers may be performing multiple tasks and where 

many environmental factors play a significant role. 

Employers would need to track individual employees and would 

be required to pay for the worker to receive a thorough medical 

checkup, even though the medical checkup and the results will not 

tell what tasks or even on which jobsite might, and I emphasize 

‘‘might’’ be contributing to the potential health problems. 

The second option is for employers to follow the engineering and 

work practice control requirements in Table 1. Unfortunately, these 

requirements are often impractical and at times impossible to implement in the field. 

For example, Table 1 relies heavily on wet cutting methods. That 

seems simple, but, frankly, we might not even have water service 

to the jobsite for weeks or possibly months after the job starts. Wet 

cutting is also impractical indoors, adding water to an indoor environment, and during the winter months, can unrealistically or 

could potentially create even greater hazards outdoors. 

It is also important to consider the economic impact of this rule 

on the construction industry. OSHA estimates that the total costs 

of the final rule are just over $1 billion annually. This estimate 

drastically underestimates the impact this rule will have on our industry. 

An independent analysis of the rule, which NAHB helped fund, estimated the true cost at nearly $5 billion. Residential construction’s share of this cost means nearly 25 percent of the profits for 

the industry would be consumed by this single rule. 

CEWDOCROOM with DISTILLER

23 

You might have a notion that homebuilders have high profit 

margins. The reality is the typical margin is around 6.4 percent. 

I raise this point because OSHA’s guidelines for justifying a new 

rule is the cost should be no more than 10 percent of the industry’s 

profits. They missed the mark here. 

To see how far they are off, let’s look quickly at the health 

screening I mentioned earlier. OSHA estimates the screening will 

run at least $377 per test, each. There are 3.2 million construction 

workers. If each construction employee required one screening per 

year, that cost alone would be roughly $1.2 billion a year. 

OSHA also severely underestimated other compliance costs. Most 

of our members at NAHB are small firms, family businesses, and 

do not have the expertise to comply with some of the requirements 

of the rule. Many will need to contract for the services of recordkeeping. OSHA’s economic analysis identifies just over 477,000 affected businesses in the construction industry. If you assume a 

minimal cost of routine bookkeeping services at $200 a month, it 

would work out to $1.1 billion per year just for the recordkeeping 

compliance. 

We feel that OSHA simply failed to account for the true costs of 

these expenses in their economic analysis. 

Let me be clear. NAHB joins OSHA in its stated goal of reducing 

workplace illnesses and injuries. The debate is not over whether to 

protect our workers, but how best to protect our workers. 

I urge Congress to consider ways to forestall the implementation 

of this deeply flawed rule until OSHA has revisited the potential 

burden this rule will put on small businesses. 

I thank you for the opportunity to share my views, Mr. Chairman. 

[The statement of Mr. Brady follows:] 

CEWDOCROOM with DISTILLER

24 

CEWDOCROOM with DISTILLER


Insert offset folio 15 here 99775.015
25 

CEWDOCROOM with DISTILLER


Insert offset folio 16 here 99775.016
26 

CEWDOCROOM with DISTILLER


Insert offset folio 17 here 99775.017
27 

CEWDOCROOM with DISTILLER


Insert offset folio 18 here 99775.018
28 

CEWDOCROOM with DISTILLER


Insert offset folio 19 here 99775.019
29 

CEWDOCROOM with DISTILLER


Insert offset folio 20 here 99775.020
30 

CEWDOCROOM with DISTILLER


Insert offset folio 21 here 99775.021
31 

CEWDOCROOM with DISTILLER


Insert offset folio 22 here 99775.022
32 

CEWDOCROOM with DISTILLER


Insert offset folio 23 here 99775.023
33 

CEWDOCROOM with DISTILLER


Insert offset folio 24 here 99775.024
34 

CEWDOCROOM with DISTILLER


Insert offset folio 25 here 99775.025
35 

CEWDOCROOM with DISTILLER


Insert offset folio 26 here 99775.026
36 

Chairman WALBERG. Thank you, Mr. Brady. I recognize Ms. 

Herschkowitz for your five minutes of testimony. 

TESTIMONY OF JANIS HERSCHKOWITZ, PRESIDENT AND CEO 

OF PRL INC., PRESIDENT, REGAL CAST, LEBANON, PA, TESTIFYING ON BEHALF OF THE AMERICAN FOUNDRY SOCIETY 

Ms. HERSCHKOWITZ. Thank you, Chairman Walberg, Ranking 

Member Wilson, and members of the subcommittee. Thank you for 

the opportunity to discuss OSHA’s recently published silica rule 

and its detrimental impact on the U.S. metal casting industry. 

My name is Jan Herschkowitz, president of PRL, Inc. My family 

moved to the States from Bolivia in 1971 to pursue the American 

dream. My father purchased a small company with 13 employees, 

which he eventually grew to three companies. In 1988, I moved 

back to Pennsylvania from Chicago to run the family business after 

he was diagnosed with cancer. Following his death in 1989, I 

opened a foundry which is one of the cleanest and most advanced 

foundries in the U.S. 

Today, we have four manufacturing facilities, are a key military 

supplier, and proudly employ 150 highly skilled workers who play 

a vital role in our success. 

I am testifying before you today as a member of the American 

Foundry Society, our industry’s trade association, which is comprised of more than 7,500 members. 

Our industry employs over 200,000 workers who are proud that 

their metal castings have applications in virtually every capital 

and consumer good produced. Eighty percent of all foundries employ fewer workers than 100, including ours. 

As a Nation, we depend on castings in all facets of our lives, including transportation, heating our homes, and, most importantly, 

providing us with power, and playing a critical role in our Nation’s 

defense, including submarines and carriers. PRL’s key customers 

include Electric Boat, Northrop-Grumman, and Curtiss-Wright. 

AFS members are highly committed to protecting their employees and implementing sound safety policies. PRL’s culture is one of 

safety first above all else, as the risks of pouring molten metal are 

taken very seriously by every co-worker, and we continually invest 

in safety equipment, experts, preventive maintenance, and training. We also have a certified safety committee which consists of coworkers from every level of our organization. 

Realizing the silica sand we are talking about today is used by 

foundries to make molten metal, and it is the same sand that is 

found on our beaches. I will only discuss a few of the ways this regulation will impact the foundry industry as my submitted testimony is much more detailed. 

Under the rule, the sharply reduced permissible exposure levels 

of 50 micrograms and an action level of 25 micrograms equates to 

the contents of a packet of Sweet’N Low sugar over a football field 

13 feet high. This is the same air quality requirements of a clean 

room. Metal casting operations are simply not capable of achieving 

this level of dust control. 

The rule also mandates extensive and costly engineering controls. Metal casters will have to exhaust all feasible engineering 

and work practice controls to meet the expense of requirements beCEWDOCROOM with DISTILLER

37 

fore we are allowed to use respirators. This means we could be 

forced to spend well over $1.4 million with no guarantee they will 

work. 

There are certain operations in the foundry, such as grinding, 

where no matter how much is spent on controls, consistent compliance will not be achieved. Under the rule, regulated areas with 

control access and mandatory respirator usage will need to be established. This presents a logistical nightmare as it means that a 

forklift operator or a manager who may be in the area for just a 

minute will need to put on a respirator and will not be able to talk. 

Under the regulation, dry vacuuming is not allowed and a wet 

vac will now be required. This is wrong. As everybody knows, you 

never, ever want to introduce water in an area where molten metal 

is poured. An explosion could occur, and workers lives’ would be 

jeopardized. Also, other metal objects which may be wet, might not 

even be wet, but may be wet, can no longer be recycled and will 

go into our landfills. 

OSHA drastically underestimates the cost to comply, and disregards the intent of SBREFA. In reality, the actual costs of the 

rule are 50 times higher than OSHA estimates, and in the final 

rule, OSHA estimated costs of compliance for the foundry industry 

was at $47 million or $32,000 per foundry. Our independent analysis shows the rule actually costs the industry over $2.2 billion, 

which equates to over $1 million per foundry. 

Additional costs include capital equipment, plant modifications, 

lost production time, recordkeeping, training, legal, medical, permits, engineering, monitoring, cleaning, and sand disposal expenses. 

In closing, although very well intended, our concern is that 

OSHA’s silica regulation will cause significant foundry closures 

which will shift production offshore to countries like China, who 

have minimum worker safety rules. 

I firmly believe that this rule not only poses a threat to our national security, but it will also cause many good, highly skilled people from numerous manufacturing sectors to lose their jobs. 

Mr. Chairman, I would submit this is simply wrong. Thank you 

for the opportunity to be here today, and I would be happy to respond to any questions. 

[The statement of Ms. Herschkowitz follows:] 

CEWDOCROOM with DISTILLER

38 

CEWDOCROOM with DISTILLER


Insert offset folio 27 here 99775.027
39 

CEWDOCROOM with DISTILLER


Insert offset folio 28 here 99775.028
40 

CEWDOCROOM with DISTILLER


Insert offset folio 29 here 99775.029
41 

CEWDOCROOM with DISTILLER


Insert offset folio 30 here 99775.030
42 

CEWDOCROOM with DISTILLER


Insert offset folio 31 here 99775.031
43 

CEWDOCROOM with DISTILLER


Insert offset folio 32 here 99775.032
44 

CEWDOCROOM with DISTILLER


Insert offset folio 33 here 99775.033
45 

Chairman WALBERG. Thank you, Ms. Herschkowitz. Dr. Melius, 

your 5 minutes are recognized right now. 

TESTIMONY OF JAMES MELIUS, DIRECTOR OF RESEARCH, LABORERS’ HEALTH AND SAFETY FUND OF NORTH AMERICA, 

ALBANY, NY 

Dr. MELIUS. Thank you, Honorable Chairman Walberg, Ranking 

Member Wilson, other members of the subcommittee. I greatly appreciate the opportunity to appear before you today at this hearing. 

As you said earlier, I was an occupational physician and epidemiologist. I currently work for labor-management organizations 

within the unionized construction industry, focusing on health and 

safety issues in construction. 

I have over 40 years of experience in occupational and environmental health. I have been involved, I have followed the development and public review of the recently released OSHA silica standard, submitted comments, and testified at the hearings, and submitted post-hearing comments on the proposed standard. 

One of my first patients, while working in an occupational medicine clinic in Chicago in the 1970s, was a young man with severe 

and rapidly progressive silicosis caused by his work in a foundry. 

He died while in his early thirties from this disease, leaving a 

young family. 

Throughout my career in occupational health, I have continued 

to encounter cases of silicosis among foundry and construction 

workers. As Representative Wilson has already introduced, the 

three bricklayers and family members of bricklayers are behind 

me, who experienced in their family or themselves silicosis. 

We recently did a small survey of our tunnel workers in New 

York and found nearly 40 percent of them—again, young tunnel 

workers—had developed early stages of silicosis as a result of their 

work building tunnels in the New York City area. 

Silicosis is not just a disease of the past. Workers continue to develop this disease and the illness can have a serious impact on 

their health, their ability to work, and on their families. 

I believe that OSHA has done an excellent job of developing the 

new silicosis standard. I would like to outline a few of the major 

reasons why I believe this regulation is a significant step forward 

in addressing this major occupational health problem. 

OSHA’s review of the available scientific data and additional scientific studies presented during the rulemaking process provide a 

sound scientific basis for the new standard. They have identified 

key diseases, and the more recent scientific studies have provided 

the basis for the new standard that they put forward of 50 

micrograms per cubic meter. 

The current OSHA standard, as has been mentioned, comes from 

the 1920s. It was based on a purely practical way of what could be 

done to deal with some of the extremely high exposures in some of 

the industries at that time, tunnel, quarry work, and so forth. 

That standard has not been changed until recently, and if that 

standard were still in place and left in place, one could have a very 

high rate of cancer, silicosis, and other silica related diseases 

among people working at those levels of exposure. 

CEWDOCROOM with DISTILLER

46 

Some of the extrapolations in the OSHA rulemaking process estimated up to 100 percent of construction workers exposed to silica 

would at the then-current standard develop silicosis. It is clearly 

unacceptable not to control this to a much lower limit. 

We do not view and I do not view the major problem to be an 

issue of enforcement. I believe the major problem is that the current standard in place is not adequate to prevent most silica-related illnesses. We need to change the standard, it has gone on for 

far too long. 

I think it is also important as some of the other witnesses have 

stated, that we need to have practical ways of controlling exposure. 

As I look at it, whether it is a half- full or half empty glass, I think 

a major step forward in construction is to have these tasks outlined 

and to make compliance easier in that industry. 

Up here, I am showing two of the pictures. These are people, 

bricklayers, and the effect of ventilation from the equipment they 

use. This is a milling machine that is used to take up old pavement. I do not know if you can turn that so it can be seen by the 

committee. Again, this is a before and after picture. 

The asphalt paving industry put a lot of effort into developing 

proper ventilation controls for their industry in order to be able to 

meet the silica standards. This work started long before the standard was even proposed. 

As you can see in the first picture, and if you have ever been behind a milling machine, you know how much dust is generated, 

and in the second picture, which I actually believe is a picture from 

Michigan, by the way, the Upper Peninsula, where some of this research was done, showing that with proper ventilation, ventilation 

being readily available through all manufacturers, you can control 

silica exposures. They were able to meet the new standard through 

this, and at a relatively reasonable price for doing so. 

I think this kind of development—I think one thing that is important in looking at costs and effectiveness is not only the fact 

that people will meet the standard, but they will develop better 

technology and better approaches to be able to do that. 

I think we have to take that into account as we look forward to 

what is going to happen as a result of this standard going into 

place. 

I will end my oral testimony here. I am out of time, I see. I 

would be glad to answer any questions later. Thank you. 

[The statement and additional submission of Dr. Melius follows:] 

CEWDOCROOM with DISTILLER

47 

CEWDOCROOM with DISTILLER


Insert offset folio 34 here 99775.034
48 

CEWDOCROOM with DISTILLER


Insert offset folio 35 here 99775.035
49 

CEWDOCROOM with DISTILLER


Insert offset folio 36 here 99775.036
50 

CEWDOCROOM with DISTILLER


Insert offset folio 37 here 99775.037
51 

CEWDOCROOM with DISTILLER


Insert offset folio 38 here 99775.038
52 

CEWDOCROOM with DISTILLER


Insert offset folio 39 here 99775.039
53 

CEWDOCROOM with DISTILLER


Insert offset folio 40 here 99775.040
54 

CEWDOCROOM with DISTILLER


Insert offset folio 41 here 99775.041
55 

CEWDOCROOM with DISTILLER


Insert offset folio 42 here 99775.042
56 

CEWDOCROOM with DISTILLER


Insert offset folio 43 here 99775.043
57 

Chairman WALBERG. Thank you, Doctor, and thank you for 

bringing my thoughts back to Pure Michigan. Now, for your five 

minutes of testimony, we recognize Mr. Chajet. 

TESTIMONY OF HENRY CHAJET, SHAREHOLDER, JACKSON 

LEWIS P.C., RESTON, VA, TESTIFYING ON BEHALF OF THE 

U.S. CHAMBER OF COMMERCE 

Mr. CHAJET. Thank you, Mr. Chairman, and members of the 

Committee. 

Chairman WALBERG. Turn your microphone on there, if you 

would, please. 

Mr. CHAJET. Thank you, Mr. Chairman, and members of the 

Committee. We appreciate the opportunity to present the views of 

the U.S. Chamber of Commerce on this new OSHA rule impacting 

silica. 

If I may, I would like to start with the concept that this is about 

sand. Silica, essentially, is sand. One of the things that we do not 

see in these pictures is the hundreds of trillions of tons of sand 

that exists all over the world. This rule impacts millions of people, 

and perhaps millions of employment sites as well. 

Sand is an essential, critical element in a variety of consumer 

products, construction products, national defense products, home 

builder products. It is extensively used. I think OSHA lists over 30 

industry groups, and there are many more that are impacted by 

this rule. At least two million people work in areas where sand or 

silica is present, disturbed, or used. This is a massive rule. 

That is a little bit of perspective. Much of this product or material is used in truckloads. The amount of silica dust that it would 

take to exceed the exposure limit is an eye drop in this room. One 

eye drop in a teaspoon dispersed over the size of this room would 

essentially exceed the exposure limit. It is an infinitesimal small 

amount of dust. 

In addition, it is not just the fact that we are concerned about 

silica, we are concerned about respirable silica, tiny, tiny, small 

particles of silica. Those are the ones that can get into a lung and 

can cause a significant hazard, no question about that. 

One case of silicosis, one fatality, one illness, is one too many, 

and we have to prevent them. We are preventing them. We have 

submitted for the record, and I would hope you would allow our 

statement to be placed in the record, a graph from the Centers for 

Disease Control. I thought we were going to have a copy of it to 

show. It demonstrates the success of American industry and OSHA 

in controlling and reducing silica related disease. 

These are data taken from the Health and Human Services’ Centers for Disease Control Agency that collects mortality. You will notice that just in our lifetimes, we have reduced successfully the 

number of cases from silica related disease. We are approaching 

zero. It is a wonderful public health success story. It is a story that 

I am proud to have been a part of for my 35 years of occupational 

safety and health experience, helping companies to understand 

their obligations and to work to continue this trend. 

This was established with the current standards in place. In fact, 

the current standards, as you stated in your opening, Mr. Chairman, not only do we see OSHA not enforcing them, they have a 

CEWDOCROOM with DISTILLER

58 

compliance problem, 30 percent or so or out of compliance, more exposure than the current problem, but a significant portion, perhaps 

two-thirds of that, is two to three times over exposure. 

We have a compliance problem that is not going to be solved by 

a new set of regulations that took this many pages of the Federal 

Register to explain, not to mention the thousands of attachments 

to it. That is going to be an impossibility for any small to medium 

sized business to comprehend. 

We have this regulation, and it is based on a series of fantasies. 

The very concept of respirable dust is written out of this regulation 

by a new definition that says it is whatever dust is collected by the 

sampler. So, we are not even regulating the hazard. We are regulating an inaccurate sampling and analysis method that is the best 

OSHA could do. 

In light of that fantasy, there are additional ones in the assumptions for how you calculate risk here. According to OSHA, there are 

thousands, if not hundreds of thousands, of people who should be 

recorded with disease, and they are not there. We do not have a 

silica epidemic. 

There are many problems here with this rule. OSHA needs to 

refocus on reality. We have not seen a focus on drug and alcohol 

abuse in the workplace, one of the leading causes of fatalities, and 

it is impacting our entire workforce and our families. Why not a 

focus where we need it? 

Thank you, Mr. Chairman. I would be glad to answer questions. 

[The statement and additional submission of Mr. Chajet follows:] 

CEWDOCROOM with DISTILLER

59 

CEWDOCROOM with DISTILLER


Insert offset folio 44 here 99775.044
60 

CEWDOCROOM with DISTILLER


Insert offset folio 45 here 99775.045
61 

CEWDOCROOM with DISTILLER


Insert offset folio 46 here 99775.046
62 

CEWDOCROOM with DISTILLER


Insert offset folio 47 here 99775.047
63 

CEWDOCROOM with DISTILLER


Insert offset folio 48 here 99775.048
64 

CEWDOCROOM with DISTILLER


Insert offset folio 49 here 99775.049
65 

CEWDOCROOM with DISTILLER


Insert offset folio 50 here 99775.050
66 

CEWDOCROOM with DISTILLER


Insert offset folio 51 here 99775.051
67 

CEWDOCROOM with DISTILLER


Insert offset folio 52 here 99775.052
68 

Chairman WALBERG. Thank you. Thank you to each of the panel 

for the time and attention you gave to present your perspectives, 

valuable for us to hear as well as to see evidence of ways we have 

achieved success, as well as ways that we can achieve further success. 

Having said that, let me recognize for the opening five minutes 

of questioning for our panel, Mr. Rokita. You are up on deck right 

now. 

Mr. ROKITA. Thank you, Chairman. I appreciate having this 

hearing. Mr. Chajet, you have practiced law, you have experience 

practicing administrative law, correct? 

Mr. CHAJET. Yes. 

Mr. ROKITA. This was an informal rulemaking? 

Mr. CHAJET. It was an informal rulemaking, although the cross 

examination was cut off. 

Mr. ROKITA. Why? 

Mr. CHAJET. I have no idea. I personally was standing asking 

questions, and OSHA short-circuited my ability and stopped me 

from asking questions. 

Mr. ROKITA. And you have no idea why? Have you ever experienced that in your practice before? 

Mr. CHAJET. I have never experienced my cross to be stopped. 

Mr. ROKITA. In just a couple of seconds, try to explain for the 

record the difference between an informal rulemaking and a more 

structured formal rulemaking or negotiated rulemaking, and how 

this is different, and why in the world given the nature of an informal rulemaking you would be cut off from your testimony. 

Mr. CHAJET. Well, this is a hybrid kind of rulemaking, but there 

is an administrative law judge present, and the administrative law 

judge in the OSHA world controls the hearing process and procedure. The administrative law judge, I am sure, with OSHA’s approval and consent or discussion, cut off cross examination. 

It was particularly egregious because the other side, the advocates for the rule, were allowed to question until they were done. 

The industry side was cut off. That was only one problem. 

All of these kinds of rulemakings rely on data, transparency, and 

truth, and that is what you want, a record that is truthful with 

transparency. 

Mr. ROKITA. That did not occur here? 

Mr. CHAJET. We did not have that here. We did not have that 

here. 

Mr. ROKITA. We have a rule with some kind of proceeding, 

sounds like a kangaroo court, based on untruths, half-truths, lack 

of transparency, facts that were not allowed to come into evidence, 

and testimony that was literally cut off. Is that accurate? 

Mr. CHAJET. It is accurate. We had the leading laboratory expert 

perhaps in the world from Bureau Veritas testifying about the inability to measure. He was responded to by an OSHA staff witness 

who runs their laboratory who said to him would you believe that 

we have this secret data that we have not published that proves 

we can measure at this level, and I sat back and could not believe 

my ears. 

This was not a legitimate rulemaking. 

Mr. ROKITA. They admitted to secret data? What do you mean? 

CEWDOCROOM with DISTILLER

69 

Mr. CHAJET. They did. During the hearing— 

Mr. ROKITA. I used the pronoun, I hate doing that. I used ‘‘they.’’ 

Who is ‘‘they’’ again? 

Mr. CHAJET. I am sorry, I did not hear you. 

Mr. ROKITA. Excuse me. I used the pronoun ‘‘they.’’ Who is ‘‘they’’ 

again? I said ‘‘they used secret.’’ 

Mr. CHAJET. OSHA staff. 

Mr. ROKITA. All right. Thank you very much. Ms. Herschkowitz, 

I appreciate your personal story, that of you and your family. Can 

you go into detail on how OSHA has failed to take into account 

public perspectives like yours, and how this is harmful to a free Republic? 

Ms. HERSCHKOWITZ. Wow, where to begin. The issue with 

OSHA—we did testify before OIRA. They absolutely totally ignored 

the 50 pages, I think, of testimony that we submitted. 

Mr. ROKITA. What do you mean ‘‘ignored?’’ 

Ms. HERSCHKOWITZ. Well, they did not take into account all the 

costs, but just to give you an example, here is an OSHA fact sheet. 

I pulled this off the Internet on April 6. This is after the rule was 

passed. We spoke very strongly about the costs that this will entail. 

On this fact sheet, it says, ‘‘The annual cost to a firm with fewer 

than 20 employees would be less, averaging about $550.’’ The average cost for our employees we viewed to be $143,000. This was the 

exact facts I gave to the OIRA Committee when I went and talked 

before them. 

It also says, ‘‘The proposed rule is expected to have no 

discernable impact on U.S. employment.’’ 

I think this speaks volumes. The other thing is why can we not 

just go with respirators first because the worker is breathing clean 

air. OSHA insists right now upon putting and measuring air respirators outside of the air respirator, and we have to put money in 

for dust collection systems that we feel will not work. 

They also ignore the fact that you cannot just add one more dust 

collector, one more dust collector, and one more dust collector. It 

is not additive. You have to get a dust collector, and I am not even 

sure if that exists in today’s world, that actually can take all that 

sand out, and it will easily be over $1 million. 

So, that is how we were disregarded by OSHA. 

Mr. ROKITA. Thank you very much. Mr. Chairman, without objection, I would ask for inclusion of the document Ms. Herschkowitz 

was referring to into the record. 

Chairman WALBERG. Hearing no objection, the document will be 

included. 

[The information follows:] 

CEWDOCROOM with DISTILLER

70 

CEWDOCROOM with DISTILLER


Insert offset folio 53 here 99775.053
71 

CEWDOCROOM with DISTILLER


Insert offset folio 54 here 99775.054
72 

Mr. ROKITA. My time has expired. I yield back. 

Ms. HERSCHKOWITZ. Thank you. 

Chairman WALBERG. I thank the gentleman. I recognize the 

ranking member, Ms. Wilson, for her five minutes of questioning. 

Ms. WILSON. Thank you, Mr. Chair. Dr. Melius, your testimony 

says that the permissible exposure limit for construction that has 

been in place since 1971 was based on a recommendation from the 

Public Health Service in the 1920s. Was that recommendation from 

the 1920s based on preventing silicosis or was it simply based on 

the feasibility of ventilation controls available in the 1920s? 

Dr. MELIUS. Well, it was to some extent to prevent silicosis but 

the level set was what the Public Health Service staff at the time 

felt was feasible to be met, that could be met in the industries 

where they had noted the high silica exposures. So, they recognized 

that it would not completely prevent all cases of silicosis in those 

industries. 

Ms. WILSON. Some people argue that reported cases of silicosis 

are declining in recent years, and there is not a significant risk. 

Does this argument exclude other health outcomes other than silicosis that have been well established, lung cancer, renal disease, 

respiratory diseases, such as COPD? 

Dr. MELIUS. Yes, it does exclude those. We do not have the good 

surveillance mechanisms for following or detecting those diseases 

and reporting, and certainly not ones that would relate those to 

silica exposure. 

The Bricklayers and Allied Craftworkers actually have submitted 

some data to the record for the OSHA hearing showing lung disease—deaths from lung disease among their workforce, their members, actually had stayed steady throughout, up until close to the 

present time. So, they do not see a decline among their members. 

That would include both silicosis and chronic obstructive pulmonary disease. 

Ms. WILSON. Is there a significant risk from silica dust exposure 

today? What is that risk, and what is wrong with the argument 

made by the U.S. Chamber that OSHA is chasing a nearly insignificant risk? 

Dr. MELIUS. Well, I think it is—the risk we know is recurrence 

of silicosis, lung cancer, kidney disease, and chronic obstructive 

pulmonary disease. These are all serious health problems and can 

cause people to die related to their past work or current work with 

silica. 

So, these are obviously significant to the people who suffer. You 

have heard the testimony, and the three people sitting behind me 

can testify, too. 

They are also significant in the sense that among the populations 

exposed, one of the problems with the death certificate surveillance 

that Mr. Chajet showed from the Centers for Disease Control, those 

are death certificates, and silicosis is not included on many death 

certificates, even among people that have it. We do fewer autopsies 

now. 

I think there is an estimate actually from the State of Michigan, 

where they have done a statistical analysis and showed over 85 

percent of people with silicosis do not have silicosis put on their 

death certificate. It is just an artifact of how we practice medicine 

CEWDOCROOM with DISTILLER

73 

now and how many autopsies and what happens when a person 

dies in terms of what the doctor writes on the death certificate. 

Now, we also know that the amount of exposure to silica is decreasing overall in terms of the people exposed because many of the 

industries that use silica, particularly the foundry industry, has decreased. The number of foundries and number of foundry workers 

in this country have gone greatly down, and that was a major 

group at risk of silicosis. 

So, without foundries themselves, the ones that currently exist, 

we could still very well have a high rate of silicosis, maybe not in 

all foundries but many foundries, even if they meet the previous 

standard. 

Ms. WILSON. One witness argues that all that is needed is more 

OSHA enforcement to address the problem. If there was 100 percent enforcement wall to wall for each facility each year, would 

that eliminate the need for more protective standards? 

Dr. MELIUS. No. It certainly would be a change, but it would not, 

because the current standard is not protective. There will continue 

to be a number of cases of silicosis that occur. I mean, OSHA has 

done an estimate of that. 

I think we know from all the health risk assessments that have 

been done for this standard, again, peer reviewed by outside scientists, that this is not protective, and even with comprehensive 

and complete enforcement, we would continue to have not only silicosis cases, but cases of lung cancer, kidney disease, and the other 

illnesses related to silica exposure. 

Ms. WILSON. Thank you, Mr. Chair. 

Chairman WALBERG. I thank the gentlelady. I recognize now the 

gentleman from Michigan, Mr. Bishop, for your five minutes of 

questioning. 

Mr. BISHOP. Thank you, Mr. Chairman, and thank you for your 

attention to this matter, bringing this before the Committee, and 

thank you to the panel for being here today and providing your testimony. 

Mr. Brady, I was interested in hearing all of this testimony. It 

is amazing to me what is going on here and how pervasive it is 

across the government and the economy. We hear the same concern 

in just about every section of the economy that is regulated by the 

Federal government. 

Your testimony highlights some of the safety concerns that engineering controls create, such as water sprays on a tile roof. It 

seems to me that we might be solving a problem and creating another. Can you explain how the final rule fails to adequately address the safety concerns? 

Mr. BRADY. I think there are a number of different areas during 

construction that OSHA has not paid attention to, and that is the 

practical side of—I am in Illinois, Michigan, Indiana, Midwestern 

States, we are building throughout the year. 

There are freezing temperatures. If they are required to add 

water to the exterior, whether it is brick cutting, block cutting, tile 

roof installation, it potentially creates, certainly on a 6–12 pitch 

roof, a hazard probably more or equal to the possibility of adding 

water to cutting those tiles, again depending on the pitch of the 

roof and the installation procedure. 

CEWDOCROOM with DISTILLER

74 

So, there are many elements of the rule that actually could create hazards in trying to protect from the silica. 

Mr. BISHOP. Maybe it is just me, but that seems like a pretty obvious problem. Was that ever taken into consideration? 

Mr. BRADY. In our remarks about the rule, and we commented 

on a number of these issues, we feel that OSHA just did not look 

at and pay attention to the number of comments that we made, did 

not incorporate them into the rule on a practical and technologically feasible and economically feasible position. 

Again, we are willing to work with OSHA on these, and we were 

willing, and we have put hours and hours and hours in working 

with OSHA, but they ignored most of what—I will say I will give 

them a bit. They took adding water to dust or the dirt on a floor 

before you sweep it, they took that out, and if any of you try to 

sweep a mud floor, it is not so easily done. So, those are the types 

of practical things that they ignored in great part. 

Mr. BISHOP. Okay. Thank you very much. So many questions. 

Ms. Herschkowitz, I noted your discussion about the respirator and 

some of the protective equipment that is out there. Has the quality 

of that equipment changed over the years? I know this rule has 

been kind of lingering since, what, 1990. Has it changed over the 

past couple of decades? 

Ms. HERSCHKOWITZ. Oh, absolutely. The old respirators used to 

be very bulky, very uncomfortable, and there has been a lot of research on respirators which has turned into much better products, 

much more comfortable for the person to use. 

What we would like under this regulation is to use the respirators first versus going with the expensive dust collectors. 

Mr. BISHOP. I would assume that the current respirators are far 

better at doing what they are supposed to do than the previous 

iterations. 

Ms. HERSCHKOWITZ. By far. OSHA does measure the air quality 

outside of the respirator, which is not indicative of what a worker 

is breathing. A worker is actually breathing clean air, and we do 

use respirators in our facilities for certain jobs right now. 

Mr. BISHOP. Okay, great. Mr. Chajet, did I pronounce that right? 

Mr. CHAJET. Chajet. 

Mr. BISHOP. Thank you. We were just talking about personal protective equipment. OSHA seems to dismiss the use of personal protective equipment as an effective way to protect employees from 

silica exposure. Is that true? Can you share with me your thoughts 

on that? 

Mr. CHAJET. Congressman, the agency has really lost its focus on 

protecting people. I am not sure what they are protecting. The 

state of respirator science—I do not even call them respirators, 

they are mini-environments. Some of these devices are very comfortable hard hats that put fresh air over a person’s face. It is filtered or it is clean. They are comfortable, and they do not provide 

any pressure. Others are paper, incredibly high-quality, simple, 

like painter mask-type respirators. 

Again, I am not so sure what you call ‘‘respirators’’ other than 

mini-environments. When we have such effective technology for 

protecting people, why should we discount it? Why should we not 

CEWDOCROOM with DISTILLER

75 

credit an employer who is protecting their employees with this 

technology? 

It is the way of the future, and OSHA is living in the past. 

Mr. BISHOP. Thank you, sir. Mr. Chairman, I yield back. 

Chairman WALBERG. I thank the gentleman. I recognize the gentleman from Wisconsin, a northern State as well, Mr. Pocan. 

Mr. POCAN. Thank you, Mr. Chairman, and thank you to the witnesses for being here. I think this is my third hearing on silica. 

I have to admit sometimes I start to lose my patience a little as 

we go through these hearings when I hear some of the comments. 

I am not a lawyer. I am not the CEO of a big business. I have a 

small specialty printing business, a union shop. I have done every 

job that any employee in my business has done over the years. I 

only make money when I have customers and when I have employees to do the work because I cannot do everything. I value my employees far more than I value my equipment. 

We just bought a brand new UV printer that was about $75,000. 

I can buy a cheaper solvent printer for $25,000, but that puts organic compounds into the air, causes health risks. There are other 

good things about the printer, but clearly, part of the decision I 

made was I want to make sure my employees are not exposed to 

problems. 

I have heard a lot of bad math and slippery language during this 

debate. So, if I can maybe just try to address some of this and ask 

a few questions. 

Mr. Chajet, I am going to pass on you right now and ask the people who are employers questions. I know you raised a lot of concerns about sand. Honestly, my guess is as a lawyer for the U.S. 

Chamber, the closest you are going to get to exposure to sand is 

if you go on vacation to the Caribbean. 

Let me ask Mr. Brady a question, if I could, specifically. There 

is another construction company, a medium-sized company in Illinois, Englewood Construction, and the director of operations there, 

if I could just read his quote real quickly in the time I have. Let 

me just get to the relevant part maybe. 

He said, ‘‘Many of the new silica guidelines formulize existing 

best practices. Elements of the silica rule will require real change 

and will take time, effort, and yes, money, to implement consistently. It is easy to see the cost of protection for our workers, but 

how do you put a price on workers’ health and long-term wellbeing?’’ He goes on a little longer. 

I really sympathize with that because I understand. I think you 

have employees and I am sure you go to their family events, you 

watch their kids graduate, and everything, and I know that is an 

important part of it. One of the things you said is you talked about 

up to 3.2 million construction workers and these physicals they are 

going to have. 

The reality is it is only if they have 30 days on a respirator, and 

that is only a fraction, a very small fraction of the jobs that require 

it, and it is every three years. I put that in the ‘‘slippery language’’ 

category. It is not quite where it is at. 

I would ask the question, how do you value what a life is worth? 

What is a life worth? It is a tough question. 

CEWDOCROOM with DISTILLER

76 

Mr. BRADY. Yes, it is a pretty tough question. It is not a question 

of whether or not our industry wants to protect lives. It is a question of whether or not technologically or economically this rule is 

feasible. I would not get into an argument whether or not any protection is worth a life. It is whether you can provide it. Somebody 

mentioned earlier, 93 percent, silica related illnesses have been reduced by 93 percent in the last— 

Mr. POCAN. I am going to steal my time back. Again, there are 

fewer people in the industry, so that same graph that the person 

who is afraid of the beach sand has—also shows the employee 

numbers in those fields have gone down. Again, it is a little bit of 

slippery language. 

Mr. BRADY. There is— 

Mr. POCAN. Let me reclaim back my time, Mr. Brady. I only have 

a minute and a half left and I want to ask another question of Ms. 

Herschkowitz. Of the pictures that you have here, you do a lot of 

work for submarines, I see. I have a company in my district that 

does a lot of work for submarines. 

How much is too much that we would have to spend if we knew 

we could fix something on a submarine to make it healthier for the 

people, the service members, what amount would be a fair amount, 

that you would say is a fair amount to put in to protect the people 

who are on that submarine? Is there a dollar figure you would say, 

$50,000, $100,000, $500,000? 

Ms. HERSCHKOWITZ. I think workplaces should be very, very safe. 

We do a lot to make it safe. 

Mr. POCAN. Per foundry, what it is going to cost, and OSHA said $32,000. You are saying $1 million. I am asking specifically what 

would be the dollar figure you would assign that you would be willing to spend to make a submarine safe for the people who work on 

a submarine? A dollar question. 

Ms. HERSCHKOWITZ. First of all, all the components we put on 

the submarine are very, very— 

Mr. POCAN. Do you have an amount you would recommend? How 

about how many sugar packs worth of silica in that football field 

that is 13 high would you say is acceptable? How many sugar packets are a problem? You want to talk about the safety, but you do 

not actually want to answer the question. I have asked you very 

direct questions. 

Let’s go back to the submarine question. I want you to answer. 

How much would you spend to make a submarine safe? It is a dollar question. 

Ms. HERSCHKOWITZ. It is a question in terms of putting— 

Mr. POCAN. You do not want to answer the questions. 

Chairman WALBERG. The gentleman’s time has expired. 

Ms. HERSCHKOWITZ. I am trying to answer the question. 

Mr. POCAN. No, you are not. 

Chairman WALBERG. I will now recognize the Ranking Member 

of the full Committee, Mr. Scott, for his questioning. 

Mr. SCOTT. Thank you, Mr. Chairman. Dr. Melius, can you give 

us a little history about how long we have known about the dangers of silica? 

Dr. MELIUS. Well, the history of our knowledge of silicosis resulting from quarry and other kinds of work like that go back to 

CEWDOCROOM with DISTILLER

77 

Roman times. Socrates recognized it. It goes back up into the 

Italian Renaissance, 1600s. A doctor named Ramazzini described it 

also throughout, up through the centuries; and then in the United 

States, we recognized it back in the early part of the 1900s, last 

century, because we had epidemics of silicosis among quarry workers, particularly up in Vermont. We had tunneling workers, West 

Virginia, other areas, New York, and among foundry workers. 

So, it was recognized in the early part of the century in the 

United States as a public health problem, in fact. Again, we talked 

earlier about that is where the standard came from, originally 

came from, that is being used. 

The knowledge goes way back, and certainly we are well aware 

of it in the United States for many years. 

Mr. SCOTT. Did I understand you to say that the chance of coming down with silicosis if you are exposed at the present level is 

about 100 percent? 

Dr. MELIUS. Yes, sir. If you go look at the construction standard 

and you look at how that might project out in the number of recurrence of silicosis, people exposed to that standard, 100 percent of 

them could develop silicosis because of that exposure. 

Mr. SCOTT. Can you describe the health problems that result? 

Dr. MELIUS. Yes. The obvious health problem we mostly talk 

about is a stiffening fibrosis of the lungs. The lungs just became 

so stiff that a person can no longer breathe, so a very horrible disease to experience. We also have other illnesses, lung cancer, which 

has been relatively recently, in the last 30 or 40 years, recognized 

as a risk from silica exposure, as well as kidney disease and other 

pulmonary disease from that exposure. 

So, it is not just silicosis but these other diseases that are a very 

significant risk for anybody working with silica. 

Mr. SCOTT. What kind of health cost savings can be generated if 

you reduce exposure? 

Dr. MELIUS. They would be very significant given that—I cannot 

give you an exact number, but the cost to treat a case of lung cancer is in the hundreds of thousands of dollars a year, if they survive for any period of time. Silicosis, a person with severe silicosis, 

medical costs can be extremely high with repeated hospitalizations 

and the kind of medication and other care they may need, same 

with the chronic obstructive pulmonary disease and kidney disease. 

These are very high and they are very devastating for families 

to experience. 

Mr. SCOTT. I have been advised that OSHA estimates an annual 

net benefit over the next 60 years of $3.8- to $7.7 billion, after an 

annual cost of the rule of about $1 billion, a net benefit of 3.8 to 

7.7. What kind of underlying numbers would they be looking at? 

Dr. MELIUS. What they would be looking at would be the medical 

costs, the cost of loss of employment for the people that are affected 

by those diseases who no longer work, so they are going to be getting Workers’ Compensation, Social Security Disability, other forms 

of income assistance, hopefully. 

So, the main costs would be a loss of productivity, people would 

lose their trained workforce, skilled workforce. 

CEWDOCROOM with DISTILLER

78 

Mr. SCOTT. Some businesses have to pay this in terms of higher 

health care costs, health care premiums, and Workers’ Compensation, is that right? 

Dr. MELIUS. Absolutely. 

Mr. SCOTT. Now, someone talked about the costs. Could you tell 

me if you are aware if the National Asphalt Paving Association has 

taken a position on the rule? 

Dr. MELIUS. Yes, I am. That is the group I work with closely on 

both looking at controlling exposures to asphalt as well as controlling silica exposures, the two pictures we have up there. They are 

supportive of the rule. They submitted comments. OSHA was responsive to those comments regarding the requirement for respirators. When the rule came out, they came out in support of that 

rule. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Chairman WALBERG. I thank the gentleman. Now, I recognize 

the gentlelady from the beautiful State of North Carolina, Ms. 

Adams. 

Ms. ADAMS. Thank you, Chairman Walberg and Ranking Member Wilson, and I would also like to thank our witnesses for testifying today. 

Before I get started, I want to just make a very simple point 

about the Department of Labor. One of their primary reasons for 

existence is to improve working conditions for working people. It is 

clear that the purpose of this rule is to improve the working conditions of some of our most vulnerable employees. 

As we know, exposure to silica is a serious health hazard, and 

while many have pointed to reductions in silicosis as a reason to 

oppose this rule, I believe these generalizations are very misguided, 

especially for low-wage workers who are often workers of color. 

Silica dust-related illnesses have a greater impact on low-income 

and ethnic minority groups than on the job populations, and it is 

especially true for the Latino community. 

Dr. Melius, with that in mind, can you speak to the positive impact this rule will have on low-wage earners and communities of 

color who are disproportionately affected by silica-related illnesses? 

Dr. MELIUS. Yes, actually there is data that show—actually, from 

the State of Michigan—that African-American workers are at a 

much higher risk of developing silicosis. So, what you are saying 

is what we can actually see in some of the data that we do collect 

about the risk of silicosis. 

This rule should benefit everybody that is exposed to silica. We 

also know African-American, Hispanic, and Latino workers tend to 

work in so-called ‘‘dirty jobs,’’ where there is more exposure. 

If this rule is put in place and completely enforced, properly enforced, we should see great benefits to them because they may 

often work in so-called ‘‘the dirtiest jobs,’’ the jobs with the higher 

exposures. Hopefully, if this rule goes in place, they will be protected as well as everybody else that is exposed to silica. 

Ms. ADAMS. Thank you, sir. It is your opinion that this is a step 

in the right direction in addressing racial health disparities? 

Dr. MELIUS. Absolutely. 

Ms. ADAMS. In addition to saving many lives and reducing illnesses among workers who are exposed to silica dust, this rule will 

CEWDOCROOM with DISTILLER

79 

also create billions in benefits. Dr. Melius, can you explain on what 

some of those benefits will be and how they will play into the industry’s ability to capture savings associated with safer and 

healthier employees? 

Dr. MELIUS. Yes, certainly. There will be reduced medical costs 

for caring for employees, reduced either through health insurance 

or Workers’ Compensation for those employees. 

There will be a better ability to retain highly trained and skilled 

workers in the workplace but not having to replace people because 

they are becoming ill, your most experienced and trusted workers, 

they will be able to work for a longer period of time, which will 

help maintain and improve productivity for the industries involved, 

whether it is general industry or in the construction industry. 

Ms. ADAMS. Thank you very much, sir, I appreciate. Mr. Chairman, I am going to yield my time back. 

Chairman WALBERG. I thank the gentlelady. I recognize the gentleman from California, Mr. DeSaulnier. 

Mr. DESAULNIER. Thank you, Mr. Chairman. First, a question for 

Ms. Herschkowitz. I was just handed this document that I am told 

is part of a trade association that you are a part of, ‘‘Control Silica 

Exposure in Foundries,’’ are you familiar with this? 

Ms. HERSCHKOWITZ. I have seen it, but I have not read it. I just 

saw it this morning. 

Mr. DESAULNIER. Mr. Chairman, I would like to enter it into the 

record. 

[The information follows:] 

Extensive material was submitted by Mr. Desaulnier. The submission for the record is in the committee archive for this hearing.] 

Mr. DESAULNIER. It seems at a very quick look that the organization has done a lot of work in this regard. Again, just preliminarily 

looking at it, it seems there are some contradictions. Just having 

sat here and listened to the contradiction between Dr. Melius and 

the rest of you about we are all on the same page we want to use 

cost-effective implementation and feasibility. 

Dr. Melius, in terms of the feasibility, and you are a public 

health expert, I appreciate Mr. Brady’s comments about everybody 

wanting to invest effectively on reducing the public health issue 

and the graph that has been presented by the Chamber. Do you 

have comments on how feasible, you think, recognizing you are a 

public health person? 

Dr. MELIUS. I believe that the control recommendations that are 

directly contained in the standard or that will be developed in response to the standard are very feasible to control and achieve the 

levels that are involved. OSHA and everyone involved spent a lot 

of time looking at it. 

I mentioned the silica milling machines. That work started almost 10 years ago in terms of getting ready for the possibility of 

a new standard. The foundry document that you mentioned goes 

back, I believe, to 2010, 2008, I cannot remember directly, but 

again, people recognizing that there may be a standard coming and 

getting prepared for it, the kind of ventilation that is on this kind 

of saw (in front of the witness at the table) is also something that 

people have been working with to demonstrate that there are practical ways of meeting the standard, and they are cost-effective. 

CEWDOCROOM with DISTILLER

80 

Mr. DESAULNIER. Mr. Brady, I appreciate meeting with you, and 

you know about my concern, coming from Northern California, 

about the need for affordable housing. In California, since 2008, the 

standards went to the higher standards in terms of prevention. 

Do you have any comments about that or any of your California 

colleagues? Knowing many people in the home building industry, 

as when I met with you in my office in Richmond, California, they 

are able to work in a fairly—I am choosing my words here—aggressive regulatory atmosphere and still make a handsome profit and 

provide the product that we need. 

Mr. BRADY. Well, I think even in our conversation, again, this is 

not about providing—the issue is not only health. It is about providing a product for a price. In your district alone, starter homes 

are $450,000. You know that better than I do. 

Mr. DESAULNIER. I do not think I could find a $450,000 home 

right now. 

Mr. BRADY. You have to have balance in regulatory reform. You 

have to have balance whether or not you can provide it economically but even technologically, whether or not—as somebody said, 

silica is in soil. As we are grading alot, silica is kicked up in soil. 

How do you economically and feasibly or technologically provide 

that at an affordable cost and be able to provide a product that consumers can buy? 

Mr. DESAULNIER. I appreciate that having heard that argument 

in the air quality field for 20 years when it came to sulfur, lead, 

MTBE, but we were able to pass regulatory investments that the 

affected community came up to the standards, and we provided off 

ramps if they were not making it. 

So, my question was we have had the more aggressive prevention 

at Cal/OSHA in place since 2008, and the industry has coped with 

it. Granted, they will have to come up to these higher standards 

in terms of the micrograms, but have you had any input from your 

members as to what a disadvantage that is? Honestly, I have not 

heard it, and it has been in place for 8 years. 

Mr. BRADY. Again, no, dollar for dollar, no. I understand from 

our members this is a very cumbersome compliance issue. Our industry seems to be targeted specifically to this rule because they 

will have a huge impact on the cost to provide product. 

Now, again, over the last 40 years, our industry—drywall mud 

is a good example where our industry took silica out of drywall 

mud. It is no longer a hazard. Our industry continued to do that. 

Yes, maybe there are fewer workers, but they are also building better product, and that is the type of environment, cooperative environment, that we would like to work with OSHA to make practically, economically, and technologically feasible. 

Mr. DESAULNIER. Appreciate that. I would love to have further 

discussion with you and OSHA in doing that. I just want to note 

that there are Canadian provinces that are actually at 25 

micrograms, so we might look at that and see how cost-effective 

that has been as well. Thank you, Mr. Chairman. 

Chairman WALBERG. I thank the gentleman. I now recognize myself for my five minutes of questioning. 

Ms. Herschkowitz, it is not up to you really how much it will cost 

for a safe submarine component, is it? Who is it up to decide how 

CEWDOCROOM with DISTILLER

81 

much it will cost? Would you not say it is the Federal Government 

and the contracting process and Electric Boat, and ultimately, you 

have to find a way to produce that product if they say so, and if 

you cannot, someone else will have to produce it, correct? 

Ms. HERSCHKOWITZ. Absolutely. 

Chairman WALBERG. I think that is a crucial point we need to 

make here. 

Ms. HERSCHKOWITZ. I also want to make the point that in our 

foundry, it is safety first. Anybody can stop a heat if they feel it 

is unsafe. We have safety leaders at every levels of the organization. We have spent an awful lot of money on safety and are very, 

very proud of our safety record, and I value our employees very 

much. 

Chairman WALBERG. And I would expect that. Those people who 

work for you provide the opportunity to get a contract with Electric 

Boat. 

Ms. HERSCHKOWITZ. It is not easy. 

Chairman WALBERG. It is not easy to get. 

Ms. HERSCHKOWITZ. It is not easy. 

Chairman WALBERG. They ultimately decide what a cost will be 

for safe. They expect that component to work. 

Ms. HERSCHKOWITZ. Certainly, and I never ever want to sacrifice 

cost for safety. 

Chairman WALBERG. OSHA suggests that the company, talking 

about the brick industry as was pointed out, can pay the necessary 

engineering alterations out of the first year’s profits. Could your 

company pay for the necessary compliance activity out of the first 

year’s profits as OSHA has suggested in its preamble? 

Ms. HERSCHKOWITZ. No, we have four separate companies. We 

opened a foundry last just because we could no longer buy castings 

in this country, and we are probably the most vertically integrated 

sand foundry in the country. We view our foundry as a cost center, 

not a profit center. According to the AFS, the cost of putting these 

regulations in place is 273 percent of the profits of a company, but 

it is even higher for a foundry, it is even much, much higher for 

us. 

Chairman WALBERG. In that case, the castings that cannot be 

purchased now for your components, your products, your production, if this goes through, the castings cannot be produced in this 

country, again, since you will be there, correct? 

Ms. HERSCHKOWITZ. Right, conceivably. 

Chairman WALBERG. Conceivably. It goes back to that creative 

tension between jobs, the necessity of jobs, having the successful 

ability to create, sustain, and carry on versus putting in safety, and 

we want to go as close as possible meeting that need in both ways, 

but there definitely are cost issues that will influence whether you 

can do them. 

Ms. HERSCHKOWITZ. That is correct. The foundry industry standard PEL of 100, 70 percent of the foundries are able to meet, 30 

percent are not. I personally, and I am not speaking for the AFS 

right now, I have personally as a 25-year foundry woman have 

never heard of a case of silicosis, much less within our own companies. 

CEWDOCROOM with DISTILLER

82 

Chairman WALBERG. Mr. Brady, construction is fundamentally 

different than other professions. Your testimony discusses how 

Table 1 of the regulation does not adjust appropriately for the modern construction workforce. Can you expand on the concerns of the 

industry as a whole with Table 1? 

Mr. BRADY. Well, Table 1, I think, has 18 points to it. Our industry is so complex. I will have 100 people on a construction site during the three months that I am building, on a home building. Remodeling is entirely different. A remodeling project is a good example of where Table 1 does not really answer some of these questions, so they default to the very stringent—there are no remediation issues potentially on the remodeling side, so they default to 

the very restrictive compliance issues, because they cannot comply 

with throwing water into a home when they demolish a wall, they 

cannot throw water into that wall, so they have to use other 

means. 

This rule really sets up our members, from builder, remodeler, 

to the associates, to the thousands of members throughout the 

country, for failure, because technologically, we will not be able to 

comply with this rule. 

Chairman WALBERG. How does the specialty contractors that 

often work concurrently with you add to this mix, specifically the 

multiemployer citation policy that OSHA has? How does that add 

to additional problems in compliance? 

Mr. BRADY. Well, again, we are a fairly transient business. I am 

a general contractor so I use small business subcontractors. Their 

employees move seasonally, they move from employer to employer, 

they move around. It is going to be very cumbersome, number one, 

if I have to test—say I am a brick mason and I have to test my 

employee today, I have to do a baseline medical exam, three 

months later, they are working in Indiana with another contractor. 

I think the rule suggests they have to be baselined, so to say 

they are only going to be tested every three years is a miscalculation because our business is transient and people move, so just 

kind of with the logistics of these specialty contractors and their 

employees, it is going to be very difficult to comply with. 

Chairman WALBERG. I thank you. My time has expired. Now, I 

will recognize the Ranking Member, Ms. Wilson, for her closing 

comments. 

Ms. WILSON. Thank you, Chairman Walberg, for calling today’s 

hearing, and giving us the opportunity to discuss this very important rule. I want to thank the witnesses for your testimony, and 

thank you for coming. 

At every committee hearing, every markup, every press conference, I endeavor to remind my colleagues of our purpose as a 

subcommittee member. This is the Workforce Protections Subcommittee, and that means our job is to protect our workers. 

I stand with my colleagues in strong support of DOL’s updated 

silica dust standard. We know that the science is clear. Workers 

exposed to silica dust at levels allowable under the previous OSHA 

silica standard are at risk from developing deadly and debilitating 

diseases, such as silicosis, lung cancer, and renal disease. 

The Department of Labor took a long-awaited strong step towards helping the 2.3 million workers exposed to silica dust by fiCEWDOCROOM with DISTILLER

83 

nalizing its updated rule on March 23, 2016. We know that controlling silica dust is feasible, controlling silica dust is a well understood and time-tested proposition. 

Wet the dust down or vacuum it up. Water or air. States like 

California and New Jersey already have in place standards and 

regulations requiring companies to use water systems or vacuums 

to control dust. Nationwide, many companies put their workers’ 

health first by controlling silica dust with existing technology. New 

equipment now comes equipped with dust controls of water spray 

hookups. 

We know that this rule will protect worker health. Above all, we 

must judge this rule by its ability to protect our workers. 

As we have heard, once fully implemented, this updated rule will 

save more than 600 lives and prevent more than 900 cases of silicosis each year. OSHA’s new standard includes engineering controls, training, prohibitions on dry sweeping, and medical surveillance that will do much to protect workers, especially in the building trades. 

There is strong support for DOL’s updated silica rule to protect 

workers. I ask unanimous consent to enter into the record letters 

of support from the following organizations: United Steelworkers, 

the BlueGreen Alliance, Public Citizen’s Congress Watch, American 

Association for Justice, American Public Health Association, Englewood Construction, Motley Rice LLC, America’s Agenda, International Union of Bricklayers and Allied Craftworkers. 

[The information follows:] 

CEWDOCROOM with DISTILLER

84 

CEWDOCROOM with DISTILLER


Insert offset folio 55 here 99775.055
85 

CEWDOCROOM with DISTILLER


Insert offset folio 56 here 99775.056
86 

CEWDOCROOM with DISTILLER


Insert offset folio 57 here 99775.057
87 

CEWDOCROOM with DISTILLER


Insert offset folio 58 here 99775.058
88 

CEWDOCROOM with DISTILLER


Insert offset folio 59 here 99775.059
89 

CEWDOCROOM with DISTILLER


Insert offset folio 60 here 99775.060
90 

CEWDOCROOM with DISTILLER


Insert offset folio 61 here 99775.061
91 

CEWDOCROOM with DISTILLER


Insert offset folio 62 here 99775.062
92 

CEWDOCROOM with DISTILLER


Insert offset folio 63 here 99775.063
93 

CEWDOCROOM with DISTILLER


Insert offset folio 64 here 99775.064
94 

CEWDOCROOM with DISTILLER


Insert offset folio 146 here 99775.146
95 

CEWDOCROOM with DISTILLER


Insert offset folio 65 here 99775.065
96 

CEWDOCROOM with DISTILLER


Insert offset folio 66 here 99775.066
97 

CEWDOCROOM with DISTILLER


Insert offset folio 67 here 99775.067
98 

CEWDOCROOM with DISTILLER


Insert offset folio 68 here 99775.068
99 

CEWDOCROOM with DISTILLER


Insert offset folio 69 here 99775.069
100 

CEWDOCROOM with DISTILLER


Insert offset folio 70 here 99775.070
101 

CEWDOCROOM with DISTILLER


Insert offset folio 71 here 99775.071
102 

CEWDOCROOM with DISTILLER


Insert offset folio 72 here 99775.072
103 

Ms. WILSON. I want to thank the witnesses again for being here 

today, and I want to thank those in the audience who have traveled to join us and your support for DOL’s updated silica rule. 

I want to read a letter, part of a letter from Chuck Taylor of Englewood Construction, a mid-sized construction contractor based in 

Lemont, Illinois, with projects underway in eight States. He writes 

this: ‘‘We realize it will take time and effort to implement the updated silica dust exposure guidelines and, in some cases, there will 

be an added cost, but we also believe we owe it to the workers who 

are so vital to the construction industry to do what we can to protect their health and their safety.’’ 

This is a very powerful statement from a company with skin in 

the game. How can you put a price on a human life or on their suffering, and on the suffering of their families? You just morally cannot put a price on that. 

I want to close with the words of Tim Brown, a worker with silicosis, who has joined us here today. You met him earlier. Raise 

your hand, Tim. Tim writes, ‘‘We must prevent this from happening to any other bricklayers. To my fellow union members and 

to my unorganized colleagues, no worker should suffer what I have. 

The previous standard did not protect me, but if we enforce the 

new comprehensive rule, what happened to me will not happen to 

other bricklayers. We cannot let others suffer and become ill just 

for doing an honest day’s work.’’ 

Thank you, Tim, for your words. Thank you, Tom and Dale, for 

bravely representing the millions of workers and families affected 

by silica. 

I hope our subcommittee can honor the lives of those who have 

become ill or have died from silica related illnesses and support 

this updated rule. I yield the remainder of my time, and thank you, 

Mr. Chair. 

Chairman WALBERG. I thank the gentlelady. We would certainly 

identify with a number of your sentiments very clearly. There is no 

price for a life. It is important. 

Our responsibility is to make sure those lives are able to work 

in a beneficial way on the jobsite, and carry on and pass that on 

as well to family members for an opportunity that this country affords, unlike any other country in the world. 

I like that chart that was displayed earlier, put up on the board, 

and just for context again, at the very least, we can agree that is 

the direction we want to go, reducing silicosis. 

There might be variables in the numbers there, a little bit up, 

a little bit down, but that is the direction we want to go, and with 

the present standard, even with weaknesses in the actual enforcement of that standard, that is where we are at. 

Through all of the hearings that we have had, and it is correct, 

we have had multiple hearings on this silicosis rule, trying to press 

upon OSHA, the Department of Labor, that this is a serious consideration and that it impacts all of us in the room, all outside this 

room, on industry continuing to provide the products and the services that are necessary in this great country. 

It has been stated by a colleague of mine on the other side of the 

aisle that China is not doing these things. We do not want to go 

backwards to what China is doing. We do not want to give our 

CEWDOCROOM with DISTILLER

104 

products away to China either, or any other country. We want to 

continue to compete. 

This is not only the construction industry. This crosses the board, 

as we have heard about multiple industries with the impact of silica. 

There have been literally thousands of comments submitted to 

OSHA in the rulemaking process. Sadly, it is clear that some of 

those comments were rejected, not simply rejected because they did 

not make sense, but just out of hand, apparently for philosophical 

differences. That does not bode well for a standard that works. 

My father worked at U.S. Steel. I do not know whether he eventually got lung cancer as a result of that job, but he did. Ultimately, thankfully, due to experimental therapy, he not only lived 

but he went on to work until he was 73 years old as a machinist/ 

tool and dye maker, because he loved it, and he would have worked 

longer if he did not wear out. 

I worked at that same plant, U.S. Steel South Works, on the 

south side of Chicago, out of high school. My second job after being 

a laborer there at the plant was as a furnace and ladle repairman’s 

helper. It was an interesting job. I mixed a lot of mortar, I cut a 

lot of tile and bricks for those ladles that took the molten steel 

from the furnace, as well as got inside those furnaces when they 

were shut down to help repair those as well. 

I do not know, well, I guess I could say, I am sure that the policies that are in place right now probably were not in place back 

in 1969, at least fully. I am still breathing okay, and I hope that 

continues. I do not know about the ladle repairman, whether he is 

or not. 

We wanted to see things work well. That same plant, those same 

set of furnaces, ten minutes after I left work one night, left the 

locker room heading back to my car, half a mile from the Number 

2 electric furnace where I worked, exploded. The entire locker room 

was gone. Everything around it was gone because a burn through 

from the heat went down into the sewer and blew up. 

I agree with you, Ms. Herschkowitz, we do not want to mess 

around with water around molten steel. 

These are considerations that OSHA ought to take into consideration. We are talking here about flexibility. We are talking about 

using controls, we are talking about using technology, we are talking about using tools, we ought to be at least to protect the worker, 

make a clean breathing space for them to carry on the necessary 

work they do, and not have a simple one-size-fits-all because we 

think it ought to be that way. 

That is why we had this hearing again today. It is after a fact. 

I am still hopeful that somehow, some way, we can make sure we 

preserve jobs, we preserve trades, we preserve futures for people in 

this country that they can pass on doing good work that needs to 

be done here and not someplace else. 

We can make sure there are foundry jobs available. Every one of 

you are safer as a result of that, maybe. We will not have those 

foundry jobs, we will not have those products built. That is what 

we wrestle with. It is not an issue of whether we discount life, it 

is an issue of whether we sustain life, and move industry forward 

to make America what it is. That is what this is about. 

CEWDOCROOM with DISTILLER

105 

I want to express my deep appreciation to my colleagues on both 

sides of the aisle. I want to express my appreciation to the witnesses, all four at the table, and everyone in this room today, for 

taking this seriously. 

I hope as a result, we will see OSHA maybe even step back and 

say we might want to listen to some of the information more carefully. We might have a better way that ultimately protects the individuals involved with this as well as the workplace. 

Having got on and off my hobby horse right now, and seeing 

there is no further business for the subcommittee today, the Committee stands adjourned. 

[Additional submission by Mr. Chajet follows:] 

CEWDOCROOM with DISTILLER

106 

CEWDOCROOM with DISTILLER


Insert offset folio 79 here 99775.079
107 

[Additional submissions by Mr. Walberg follow:] 

CEWDOCROOM with DISTILLER

108 

CEWDOCROOM with DISTILLER


Insert offset folio 108 here 99775.108
109 

CEWDOCROOM with DISTILLER


Insert offset folio 109 here 99775.109
110 

CEWDOCROOM with DISTILLER


Insert offset folio 110 here 99775.110
111 

CEWDOCROOM with DISTILLER


Insert offset folio 111 here 99775.111
112 

CEWDOCROOM with DISTILLER


Insert offset folio 112 here 99775.112
113 

CEWDOCROOM with DISTILLER


Insert offset folio 113 here 99775.113
114 

CEWDOCROOM with DISTILLER


Insert offset folio 114 here 99775.114
115 

CEWDOCROOM with DISTILLER


Insert offset folio 115 here 99775.115
116 

CEWDOCROOM with DISTILLER


Insert offset folio 116 here 99775.116
117 

CEWDOCROOM with DISTILLER


Insert offset folio 117 here 99775.117
118 

CEWDOCROOM with DISTILLER


Insert offset folio 118 here 99775.118
119 

CEWDOCROOM with DISTILLER


Insert offset folio 119 here 99775.119
120 

CEWDOCROOM with DISTILLER


Insert offset folio 120 here 99775.120
121 

CEWDOCROOM with DISTILLER


Insert offset folio 121 here 99775.121
122 

CEWDOCROOM with DISTILLER


Insert offset folio 122 here 99775.122
123 

CEWDOCROOM with DISTILLER


Insert offset folio 123 here 99775.123
124 

CEWDOCROOM with DISTILLER


Insert offset folio 124 here 99775.124
125 

CEWDOCROOM with DISTILLER


Insert offset folio 125 here 99775.125
126 

CEWDOCROOM with DISTILLER


Insert offset folio 126 here 99775.126
127 

CEWDOCROOM with DISTILLER


Insert offset folio 127 here 99775.127
128 

CEWDOCROOM with DISTILLER


Insert offset folio 128 here 99775.128
129 

CEWDOCROOM with DISTILLER


Insert offset folio 129 here 99775.129
130 

CEWDOCROOM with DISTILLER


Insert offset folio 130 here 99775.130
131 

CEWDOCROOM with DISTILLER


Insert offset folio 131 here 99775.131
132 

CEWDOCROOM with DISTILLER


Insert offset folio 132 here 99775.132
133 

CEWDOCROOM with DISTILLER


Insert offset folio 133 here 99775.133
134 

CEWDOCROOM with DISTILLER


Insert offset folio 134 here 99775.134
135 

CEWDOCROOM with DISTILLER


Insert offset folio 135 here 99775.135
136 

CEWDOCROOM with DISTILLER


Insert offset folio 136 here 99775.136
137 

CEWDOCROOM with DISTILLER


Insert offset folio 137 here 99775.137
138 

CEWDOCROOM with DISTILLER


Insert offset folio 138 here 99775.138
139 

CEWDOCROOM with DISTILLER


Insert offset folio 139 here 99775.139
140 

CEWDOCROOM with DISTILLER


Insert offset folio 140 here 99775.140
141 

CEWDOCROOM with DISTILLER


Insert offset folio 141 here 99775.141
142 

CEWDOCROOM with DISTILLER


Insert offset folio 142 here 99775.142
143 

CEWDOCROOM with DISTILLER


Insert offset folio 143 here 99775.143
144 

CEWDOCROOM with DISTILLER


Insert offset folio 144 here 99775.144
145 

CEWDOCROOM with DISTILLER


Insert offset folio 145 here 99775.145
146 

[Additional submissions by Ms. Wilson follow:] 

CEWDOCROOM with DISTILLER

147 

CEWDOCROOM with DISTILLER


Insert offset folio 73 here 99775.073
148 

CEWDOCROOM with DISTILLER


Insert offset folio 74 here 99775.074
149 

CEWDOCROOM with DISTILLER


Insert offset folio 75 here 99775.075
150 

CEWDOCROOM with DISTILLER


Insert offset folio 76 here 99775.076
151 

CEWDOCROOM with DISTILLER


Insert offset folio 77 here 99775.077
152 

CEWDOCROOM with DISTILLER


Insert offset folio 78 here 99775.078
153 

CEWDOCROOM with DISTILLER


Insert offset folio 80 here 99775.080
154 

CEWDOCROOM with DISTILLER


Insert offset folio 81 here 99775.081
155 

CEWDOCROOM with DISTILLER


Insert offset folio 82 here 99775.082
156 

CEWDOCROOM with DISTILLER


Insert offset folio 83 here 99775.083
157 

CEWDOCROOM with DISTILLER


Insert offset folio 84 here 99775.084
158 

CEWDOCROOM with DISTILLER


Insert offset folio 85 here 99775.085
159 

CEWDOCROOM with DISTILLER


Insert offset folio 86 here 99775.086
160 

CEWDOCROOM with DISTILLER


Insert offset folio 87 here 99775.087
161 

CEWDOCROOM with DISTILLER


Insert offset folio 88 here 99775.088
162 

CEWDOCROOM with DISTILLER


Insert offset folio 89 here 99775.089
163 

CEWDOCROOM with DISTILLER


Insert offset folio 90 here 99775.090
164 

CEWDOCROOM with DISTILLER


Insert offset folio 91 here 99775.091
165 

CEWDOCROOM with DISTILLER


Insert offset folio 92 here 99775.092
166 

CEWDOCROOM with DISTILLER


Insert offset folio 93 here 99775.093
167 

CEWDOCROOM with DISTILLER


Insert offset folio 94 here 99775.094
168 

CEWDOCROOM with DISTILLER


Insert offset folio 95 here 99775.095
169 

CEWDOCROOM with DISTILLER


Insert offset folio 96 here 99775.096
170 

CEWDOCROOM with DISTILLER


Insert offset folio 97 here 99775.097
171 

CEWDOCROOM with DISTILLER


Insert offset folio 98 here 99775.098
172 

CEWDOCROOM with DISTILLER


Insert offset folio 99 here 99775.099
173 

CEWDOCROOM with DISTILLER


Insert offset folio 100 here 99775.100
174 

CEWDOCROOM with DISTILLER


Insert offset folio 101 here 99775.101
175 

CEWDOCROOM with DISTILLER


Insert offset folio 102 here 99775.102
176 

CEWDOCROOM with DISTILLER


Insert offset folio 103 here 99775.103
177 

CEWDOCROOM with DISTILLER


Insert offset folio 104 here 99775.104
178 

CEWDOCROOM with DISTILLER


Insert offset folio 105 here 99775.105
179 

CEWDOCROOM with DISTILLER


Insert offset folio 106 here 99775.106
180 

CEWDOCROOM with DISTILLER


Insert offset folio 107 here 99775.107
181 

[Whereupon, at 11:40 a.m., the subcommittee was adjourned.] 

Æ 

CEWDOCROOM with DISTILLER