OSHA: Proposed Standard For Indoor Air Quality: ETS Hearings, September 27, 1994

OSHA: Proposed Standard For Indoor Air Quality: ETS Hearings, September 27, 1994





Tuesday, September 27, 1994

Interstate Commerce Commission

Constitution Avenue, NW

Washington, D.C.

The above-entitled matter came on for hearing, pursuant to notice, at 9:07 a.m.


Administrative Law Judge



Questions of Ms. Peggy Jenkins

Ms. Ward 1488

Paul Christowski 1540

John Rupp 1548

Ms. Sherman 1555

William Turner 1560

Questions of Mr. William Turner

George Benda 1559

Rex Tingle 1585

Matt Chapiewski 1588

Forward Weiser 1592

John Rupp 1601

Michael Jower 1670

Mr. Hathon 1676

Ms. Sherman 1679

Ms. Kaplan 1684

Ms. Janes 1685

Sally Katharine Hammond 1688

Jeff Furr 1740

Ms. Sherman 1793



34 1561 1561

35 1605 1605

36 1689 1689


(9:07 p.m.)

JUDGE VITTONE: Good morning. We ended last night with the direct testimony of Ms. Jenkins. I understand, Ms. Ward, you had some questions.

MS. WARD: Yes, Your Honor.


MS. WARD: Good morning, Ms. Jenkins. My name is Mary Ward, and I'll be asking you some questions this morning on behalf of RJ Reynolds Tobacco Company and other persons who have submitted their notice of intention to participate in this rulemaking.

First, I'd like to ask you a few questions about the California Activity Pattern survey -- the CPA study.

I notice that you mentioned in your written testimony, and I think you said words to the same effect in your oral testimony yesterday, that because interviewers play such a critical role in obtaining accurate information without bias, interviewers were trained and supervised extensively.

In the briefing sessions and the training that covered the objectives of the project, what were the interviewers told about the purpose of the study?

MS. JENKINS: They were told that the purpose was what I said in terms of our study objectives, on one my slides, that we were trying to obtain detailed information about the times -- the time and activities of Californians, where they spend their time and what they're doing during that time.

Essentially, we reviewed the three objectives on that slide.

MS. WARD: Okay. So, if you recall, were they told anything about environmental tobacco smoke exposure?

MS. JENKINS: I don't recall. I was not personally present at the first interviewer training session. I was present at the second. I don't recall any specific discussion.

MS. WARD: Yesterday you also mentioned that you had some pilot interviews in which you identified problems and so forth. What problems did you identify through the pilot interviews?

MS. JENKINS: Okay. First of all, I didn't personally do this. This was more Dr. Robinson,

Jim Wiley, and Dr. Wiley's staff at UC Berkeley Survey Center.

MS. WARD: Right. But you were --


MS. WARD: -- overall, in charge? I mean they were reporting to you.

MS. JENKINS: They kept us up to date on what was going on. I'm sure I don't recall all the details of what they told us. Initially, there were some concerns over the wording of various questions.

The ones that come to mind had more to do with things like paints and solvents, and also they were asked by some of the initial people that they interviewed, I think we had a question about solvents, and they weren't sure what they included.

When we got to adhesives, they were asking, well, what about things like masking tape? Does that count if I use masking tape, because it has adhesive.

There were detailed questions like that about, you know, what does this cover, when someone asks me, do I include this in this category or not?

Other things we were looking at was just the time it took. It's a fairly lengthy interview if people ware giving you the kind of detailed information you want.

I don't recall a lot of other specifics. I mean, there were some questions that the interviewers asked us about. I don't recall the details of that, though. It's been a few years now -- middle age, you know.

MS. WARD: I realize that. If you recall, do you recall there being any problems identified about the question that says were you around any smokers while you were doing that activity?

MS. JENKINS: Not specifically. There was some direction eventually placed in the sort of a final training manual I believe. The main question there that came up early in the study -- I don't recall if this was during the pilot testing or before that -- but the question was what about if the person had identified, prior to that, when we asked the question, did you smoke any cigarettes, cigars or pipes, during your day, if they had answered yes, they were asking -- the wording of the question, as it was originally written, didn't fit those individuals.

It raises a question of should they report being around ETC if they themselves were smoking, and that's why, for smokers, the word "else" cam up in that question. Were you around anyone else who smoked, in that environment.

MS. WARD: I see.

MS. JENKINS: So that clarification was made pretty early in the process. You forget just when.

MS. WARD: Okay. When a subject was reached on the telephone, when you had, I suppose, a successful, contact, what was he or she told about the purpose of the interview?

MS. JENKINS: I don't recall the exact wording. It was a very short introduction and it was short on purpose, so as not to really bias them in any way. I think it basically indicated that we were trying to obtain detailed information about where Californians go and how they spend their time.

I believe I have that -- the written introduction in my files -- which I would be happy to provide. I think was very general.

MS. WARD: Oh, thank you. I would like to see that.

MS. JENKINS: I think they did identify the Air Resources Board as the funding agency, I believe, although I recall there was some discussion about that, even. They have changed it just to a state agency, but I'm not sure.

MS. WARD: Okay. I have a few more questions about the subjects. In the paper to which you referred yesterday, for which you are first author that was filed in Atmospheric Environment in 1992, and I believe it's attached to your docket submission as Item 13G-A, you said the eligible population for sampling excluded between about 6 and 12 percent of the population, since non-English-speaking persons accounted for about 6 percent of the households contacted and about 6 percent of California households may not have telephones.

Further, you went on to say these included groups almost certainly overlap, and thus total less than 12 percent, since some ethnic groups in California are likely to have a disproportionately percent of households without telephones.

My question is: do you know what percentage of the California workforce does not speak English?

MS. JENKINS: No, I don't.

MS. WARD: Do you know how one would go about finding that information from California? What state agency would have that?

MS. JENKINS: There are several that could have information related to that topic, however, I think it would be inaccurate. In California, we have a large number of migrant workers. These are seasonal workers in the agricultural field, and I just think they've ever gotten a very solid count. There is a problem with illegal migration and so on.

MS. WARD: That's what I was going to ask. One certainly, from reading the newspaper, get the impression that there is a high percentage and maybe some politicians are claiming that it's higher than it is.

MS. JENKINS: I don't know who you're talking about there.

MS. WARD: Illegal immigrants and so forth. But what it be -- in your professional opinion, is it likely that California has a higher percentage of non-English speaking persons in the workplace than the rest of the United States?

MS. JENKINS: I really don't know. I would indicate, though, that our study was of California residents, and by virtue of the way we define the study, in terms of the definition of residents, what we came up with, when you're talking about the 6 percent values, our best estimate, the percent of California residents that we miss was between 6 and 9 percent, and that was just using the data that we had available at the time. I personally didn't collect that. One of my staff did from several California agencies.

There wasn't enough to really hang your hat on, but there was enough to say, our best estimate is -- so I think, again, that's why we did a very detailed look at comparing out data to the California population data for that year, so we could determine, does their sample match the California population.

As I indicated, if anything, we're a little bit high on the socioeconomic; not very high. You know, we're again, technically speaking, in the right economic range. The income range was correct.

By most survey research standards for survey you research, that was a very good comparison between the population we were sampling from.

MS. WARD: okay. Well, I understand, and it certainly sounds as if you were very thoroughly in meeting the objectives of your study with regard to California residents. As you've said, that was the objective of your study.

Some of my questions are related to helping OSHA decide how representative your study is for the working population. Of course, the working population may reflect others.

So I take it you would not know what percentage of the California workforce people who were coded under that labor status does not have telephones or how that percentage -- well if you don't know that, you don't know how the percentage would compare with the rest of the United States. I won't ask that question.

Yesterday, at your Slide 15, that was taken from your '92 paper, it may not actually be necessary to look at that slide, but I have a question about that and about the other data in the '92 paper and the atmospheric environment.


MS. WARD: In the data presented there, were the calculations about potential duration of ETS exposure, did that include smokers who reported potential duration as well as nonsmokers?

MS. JENKINS: I believe it did. I would have to double check. But, again, it would include the smokers reporting exposure to other smokers.

MS. WARD: To other smokers?

MS. JENKINS: Right. We had always excluded them reporting exposure to their own.

MS. WARD: I understand.


MS. WARD: In fact, as you showed yesterday, smoking status is the factor most associated with the likelihood of being around another smoker. Is that correct?

MS. JENKINS: This correct.

MS. WARD: Now, you have described a modification to the random digit dialing method, in order to capture potentially significant regional differences in activity patterns. You also mentioned that the data were weighted for analysis in order to generalize the results of the survey to the entire state population.

Now, were these procedures undertaken because information and data taken only from the Los Angeles area would not be representative of the entire state?

MS. JENKINS: Well, that was essentially our hypothesis going into the study, or that was our assumption. One doesn't know, of course, until you collect the data --

MS. WARD: Right.

MS. JENKINS: -- whether there are significant differences. We knew we would end up with a sample size of close to 2000 -- a little under 2000. That's clearly enough to obtain very good estimates of central tendency.

What it would not necessarily get for us would be any sort of good estimates for individuals at the two tails of the distribution -- in other words, the very high and the very low. We weren't sure if that would be enough to -- if, just on straight random sample, sufficient to identify any differences -- any significant differences, even, between say people in the rural areas versus the heavily populated areas, in order to try to tease that out, to give us a sample that would allow us to do that.

That's why we over sampled in the other parts of California. When we weighted it back, it was in the 1 to 2 to 4 ratio for that sampling region.

MS. WARD: Well, I appreciate all of your explanations, but so that I won't get a little confused, did it turn out, then, that information and data taken only from the Los Angeles area, was not represented above the entire state?

MS. JENKINS: I don't think we ever looked at quite in that fashion. We did identify some differences between, for example, the LA population and the San Francisco population and the rest of the state. They're fairly small differences. From what we could tell, there were no huge differences.

We did not go through and do a methodical assessment of that. What we did was, there were certain factors we were interested in looking at.

MS. WARD: But your assumption going in was that information and data, only from the Los Angeles area and presumably, also, only from the San Francisco Bay area, wouldn't necessarily be representative of the entire state.

MS. JENKINS: Well, I would say that it may not be representative, or of the United States as a whole. We've made no assumptions at that time regarding applicability to the rest of the U.S.

MS. WARD: In report No. 3, from the California Activity Pattern Service by Robinson, et al., which is in the docket as No. 4-271, the authors note the following about one of the features of CAPs.

At page 3, if you'd like to refer to it, eligible respondents in each selected household were chosen strictly at random and not by convenience of willingness to participate. Thereby avoiding two factors that could introduce serious biases into the sample for exposure estimation purposes.

Do you agree that selecting subjects by convenience or by their willingness to participate has the potential to introduce serious biases?

MS. JENKINS: It has the potential.

MS. WARD: That's yes, you agree it has the potential to do that?

MS. JENKINS: But with the emphasis on "attention".

MS. WARD: I understand. So, for example, advertising for subjects to participate in a passive smoking study might introduced a bias into the sample; would you agree?

MS. JENKINS: That it might, yes.

MS. WARD: The questionnaire used for CAPs is presented in Appendix B of the final report, and that's attached, I believe, to your testimony as docket entry 13-GB.

You have described in your testimony yesterday when the interviewers were collecting the information for the 24-hour recall diary, for each activity and location reported, the respondents were asked: Were you around who anyone who was smoking a cigarette, cigar or pipe while you were doing this activity.

So I would like to address your attention, please, to Appendix page B3-6.


MS. JENKINS: I'm there.

MS. WARD: Okay. Is the question at the bottom of the page labeled OSMK --

MS. JENKINS: Yes, it is.

MS. WARD: -- the only question that was asked that provided information for you on environmental tobacco smoke exposure?

MS. JENKINS: It's certainly the major one and I think it is the only one. We asked elsewhere about active smoking, and I think we asked about other smoke in their workplace -- are you around smoke.

MS. WARD: And there were no follow up questions asked to determine the exact duration of this potential exposure?

MS. JENKINS: No, because of the way -- well, I think I know what you're getting at, but just to clarify, I think as I said yesterday, the way the response to this question was coded, it was a "yes" for the activity and location that they had just described, and the time -- for each location, we have a time frame. In other words, they gave us the start and stop times, so that's the time to which the reported ETS exposure was allocated.

MS. WARD: While they were in that place, until they changed locations?

MS. JENKINS: Right. Until they changed. That's right.

MS. WARD: Or, presumably, they could have changed what they were doing in the same location? Would that given them --

MS. JENKINS: No, that would have triggered another --

MS. WARD: Another --

MS. JENKINS: If they changed either their activity or their location, that triggered a new round of the three questions, the activity, the location, and the ETS.

MS. WARD: So there were no questions, though, about how many smokers were present?

MS. JENKINS: That's correct.

MS. WARD: And no questions regarding the number of cigarettes that were smoked?

MS. JENKINS: That's correct. That's correct.

MS. WARD: All right. Now, do you have an understanding of what, looking at the question, "around ano who was smoking" means, in terms of proximity to a smoker?

MS. JENKINS: There were instructions in the interviewers' manual. Generally, this was let up to the individual respondent. However, if they questioned it and asked what do you mean, there was guidance given in the manual, and I don't recall the exact wording of the guidance.

There was, I think, general guidance, well, if you can see someone smoking, if you smelled it; in other words, if they were truly conscious for a valid reason, that there was smoke in that environment.

MS. WARD: Oh, I understand. I've asked questions to which you've referred to that manual. Would you be willing to make the manual available to be a part of this record?

MS. JENKINS: Certainly.

MS. WARD: Thank you.

Now, beginning on pages B-1-8 through B-1-10 of that final report, on B-1-8 at the question coded

HTYS -- do you have that?

MS. JENKINS: Yes, I do.

MS. WARD: Okay. There are a series of questions that run over through B-1-10 that seem to be roughly ventilated to ventilation; that is, to heating and cooling in the home. In particular, questions are asked about the type of heater, about doors and windows being open, using of any type of fan and any type of cooling system.

My question is, were there any similar questions asked regarding any of the other locations in which the respondents spent time during the preceding 24 hours?

Let me cut to the chase.

MS. JENKINS: I don't believe so.

MS. WARD: Okay. Specifically, there were no questions regarding the respondent's workplace, if the workplace was a location other than the respondent's home; is that correct?

MS. JENKINS: You mean in terms of ventilation-related questions?

MS. WARD: Yes.

MS. JENKINS: There is a series of questions at page B-1-3 refers to. Does their job involve working on a regular basis; that is, once a week or more often, with, but it does not include ventilation information.

MS. WARD: Thank you.

On page B-3-6 -- would you turn to that page, pleas, because I'd like to ask you a few questions about the location entries that are coded under the designation, WHR.3.

With regarding to entry No. 2, labeled industrial plant factory, is there any way to tell whether a respondent who designated that as a location was working indoors or outdoors?

MS. JENKINS: There was or is -- was.

MS. WARD: Okay.

MS. JENKINS: But it's not as clean of a cut, perhaps, as what you're after.

In the series of recall, the individual indicated what their activity was, and then

where they did it.

MS. WARD: Right.

MS. JENKINS: When they indicated a work activity, first of all, we know from earlier questioning, their occupation and when the activity is reported, it's generally not just, I went to work.

Generally, they were asked, what were you doing at work. Well, like I said, I'm an office worker, so I sat at my desk and did paperwork. That response is typed in to the actual diary itself.

Generally, one can tell if they're indoors or outdoors, but we have not --

MS. WARD: Does that appear anywhere in the coded printout that you get? I think there was an example of one of those printouts in Dr. Robinson's report, No. 3, but I could not tell from that.

MS. JENKINS: I don't think it appears in the printout, no.

MS. WARD: All right. As far as these questions, I was unable to find a specific question that referred to indoors or outdoors, and let me rephrase and see if you agree with this.

What you are saying is, that it was possible in some cases to tell whether it was inside or outside by the way the person described their occupation.


MS. WARD: Let me give you an example. If the person said the worked on the loading dock, even though the location was this entry No. 2 under WHR.3, would y assume that that's outdoor employment?

MS. JENKINS: On the loading dock?

MS. WARD: Yes.


MS. WARD: You must have had some way of breaking this down because I believe you published statistics on the amount of time that people spend indoors versus outdoors.


MS. WARD: Do I understand that that breakdown was made by someone looking at each interview, on a case by case basis?

MS. JENKINS: We looked at a sample of the interviews, and it ended up being almost all of the interviews. It took quite a long time. This was done by one of my staff.

My recollection was that, for certain categories, it was virtually maybe all but five or six times indoors. The one category that comes to mind that showed up was for people who went to the bank, and this was listed under office building bank/post office.

When they went to the bank, if their activity was cashing a check or whatever, it became clear to us that in our society, in the olden days, if you went to the bank, you went inside the bank. Now, you could just walk up to the ATM.

So, for bank individuals, that was the one area where we found some discrepancy.

MS. WARD: My interest in asking the questions an I think OSHA's interest, is in when people were working; when they were being paid for working, and that's what I have looked primarily at this WHR.3, because you presented information to OSHA at their request, regarding non-smokers who worked outside the home.

MS. JENKINS: That's correct.

MS. WARD: Would the same kind of analysis go on if someone had designated No. 8, which is labeled "Restaurant"? In fact, many restaurants, especially in Southern California, have outdoor areas, don't they?

MS. JENKINS: They do.

MS. WARD: Would that have been labeled as indoor or outdoor or might it have been either?

MS. JENKINS: Generally, I think we labeled it indoor, but I don't recall what the proportion of outdoor was. Generally, it's indoors.

MS. WARD: How about for the Category No. 12, Other people's home?

MS. JENKINS: One thing I should note, though, we did not go through any analysis I provided for OSHA. Those are a workplace. We were not stating or implying that they were all indoors.

MS. WARD: You are not.

MS. JENKINS: Well, I did not in my presentation or in my written materials.

MS. WARD: No. And I'm not saying that you did imply that, because that's the purpose of the questions, is to find out.


MS. WARD: Are you saying that that data and information that you've presented in the tables appended to your testimony has the possibility of including work that is performed outdoors?

MS. JENKINS: It has the possibility, but I do know from our prior inspection of the data that the categories that we did assign to indoor categories in our prior analyses, were at least 95 percent indoors by virtue of inspection of the actual diary responses.

MS. WARD: Well, maybe I misunderstood you, then.

I thought I understood you to say that in the information that you have provided to OSHA --


MS. WARD: -- that you weren't asked to took at indoor and outdoor. So, for example, on that tables that refer to non-smokers who worked outside the home, who were exposed, who reported that they worked around other smoking for any part of that time, was there any designation made that they were indoor or outdoor, or might they have been in either categories?

MS. JENKINS: You mean in the tables that I provided to OSHA?

MS. WARD: Yes. That's what I'm referring to.

MS. JENKINS: The work category there could include individuals who worked outdoors.

MS. WARD: Thank you. I appreciate that, because then I won't go down under all these other categories.

Ms. Jenkins, yesterday I appreciated your testimony -- your oral testimony -- on the definition of exposure, which you identified in the slide and also in your written submission as concentration times time.

Now, you've made clear, haven't you, that the information from the CPA study, only collects information relating to the latter half of that equation; is that correct?

MS. JENKINS: That's correct.

MS. WARD: You concluded in your testimony that the value of the data for the purposes of the proposed rulemaking is that they provide a reasonable estimate of duration of exposure to ETS in different locations? That's correct.

MR. TURNER: That's correct.

MS. WARD: In your testimony, you indicated that air measurements of pollutants of interest from other studies could be combined with the activity patterns derived from CAPS to calculate exposure using the concentrations times time equation.

MS. JENKINS: Right, for population estimates.

MS. WARD: For population estimates.


MS. WARD: And I understand the practical limitations and the cost constraints that you've explained regarding the CAP study, but in an ideal world, wouldn't a study that provided both information about intensity of exposure and duration of exposure using the same data set give a more accurate picture of total exposure?

MS. JENKINS: If the study were properly designed and included a truly representative sample of the population that one was trying to characterize, and in an ideal world, we would have all kinds of additional information beyond that. The whole point of gathering this type of information is so that we can model or estimate exposure; if we had true dose data, and so on.

MS. WARD: Well, dose is a separate question from exposure, right?

MS. JENKINS: That's right.

MS. WARD: Dose is a further calculation that involves respiration rates and some pharmacological business. But if you could have had personal monitoring data from the workplace of a variety of ETS indicators for the 462 nonsmokers in Table 1, let's say, you'd have a far more definitive picture of their exposure at work, wouldn't you?

MS. JENKINS: I would say you might have a far more definitive; again, if that population were truly representative, and it would depend upon the size of the population.

MS. WARD: I'm talking about your 462 persons in Table I. To your knowledge, are they unrepresentative in any way?

MS. JENKINS: No, to my knowledge they're not. But you were, I thought, bringing up a more hypothetical...

MS. WARD: No. If in your study you had been able to monitor at work those persons at work for a variety of environmental tobacco smoke indicators, then you'd have a very good picture of their actual exposure at work, because you would know the time, and you would know something about the concentration as well, correct?

MS. JENKINS: If the monitoring methods were good. At the time we did this study, and to my knowledge, even today, I think nicotine and other markers, it's difficult to get good air measurements.

One can, I think we in our particle team study did approach that, but again, you have to have devices that have sufficiently low detection limits.

MS. WOODS: I understand.

MS. JENKINS: ...non-interference, and so on.

MS. WOODS: Yesterday, you discussed some reasons regarding comments that have been made about the CAP study, about whether the data overestimate the duration of exposure or whether they underestimate it.

Now in your written testimony, at least, you said, with regard to the overestimation argument that others have raised, that some components of ETS adhere to carpets and other materials, and some components are re-emitted from the materials.

Which components of environmental tobacco smoke are re-emitted from furnishings and surfaces?

MS. JENKINS: Primarily semi-volatiles; really, there are a number of components that I think have been estimated in a variety of studies.

MS. WARD: Nicotine is one. Do you know that?

MS. JENKINS: Nicotine is generally primarily in the vapor phase, of some particle.

MS. WARD: Yes. And when you say semi-volatiles, are you referring to vapor phase?

MS. JENKINS: Semi-volatiles are compounds that can exist in either phase. I'm not a chemist, so I don't really know the details of absorption and emission. Like many others, I've simply looked at some of the literature in that area and have come away with an awareness that a variety of components do attach and can be re-emitted later on.

MS. WARD: Has your reading indicated anything to this effect: Isn't it true that most volatiles will be removed by ventilation and not be either deposited or re-emitted?

MS. JENKINS: I don't know.

MS. WARD: Are you aware of any literature that indicates that respirable-suspended particles would re-emit after deposition?

MS. JENKINS: I'm aware of some literature that indicates that.

MS. WARD: That indicates re-emission of ESP?


MS. WARD: If you don't have it handy, would you provide a citation to that literature in the post-hearing comments?

MS. JENKINS: I could, yes.

MS. WARD: Thank you. I have one more question about the question in the duration in the activity. From the way it is coded in the questionnaire, is it possible to tell at what point during the duration of the activity that smoking began occurring?

MS. JENKINS: Do you mean in response to the, "Where you around ETS..."

MS. WARD: Correct.

MS. JENKINS: No, there is no way to tell.

MS. WARD: Now, Dr. John Robinson has been identified as the project director for CAPS, on the cover sheet of that report, I think. Is that correct?

MS. JENKINS: He was the co-principal investigator. Dr. Wiley was the principal investigator.

MS. WARD: Okay. And on that first page there it doesn't call him the project director?

MS. JENKINS: Are you talking about his report?

MS. WARD: No, yours.

MS. JENKINS: Yes, it calls him project director. James Wiley, though, was the principal investigator; it's a definition of terms. They acted as co-principals.

MS. WARD: They did.

MS. JENKINS: They did.

MS. WARD: Okay. In Dr. Robinson's Report No. 3 in which he's coined a term, and I think you refer to it in your written testimony, called, "SERD," which stands for smoke exposure related duration, as an indicator variable for potential exposure to ETS, is that right?

MS. JENKINS: That's correct.

MS. WARD: Now on Page 5 of his Report No. 3, which is 4-271 as in the Docket, Dr. Robinson states, doesn't he, "It is probably true that SERD provides estimates of the maximum possible total ETS exposure, a respondent experience during the day."

MS. JENKINS: Where are you reading?

MS. WARD: Page five.

MS. JENKINS: Right, I see that, but where in the...which paragraph?

MS. WARD: I hope I didn't give you the wrong page.

MS. JENKINS: Well, there's some discussion of...

MS. WARD: Page six; I apologize, and it's the third sentence on page six.

MS. JENKINS: That is his statement.

MS. WARD: Does this statement indicates to you that Dr. Robinson believes that any underestimation can be going on with this data?

MS. JENKINS: I don't think the sentence covers any beliefs he may have about underestimation, but also note that Dr. Robinson is not an exposure expert; he's a survey researcher. We in our advisory committee provided the exposure expertise.

MS. WARD: But nevertheless, he concluded it was the maximum... "It's probably true," I want to be accurate; he says, "It's probably true that SERD provides estimates of the maximum possible total ETS exposure."

MS. JENKINS: Again, that's his statement. I would disagree strongly with that. Dr. Robinson is not aware of the cotinine research literature. Again, he's not an exposure expert.

Quite frankly, this was a problem we had with the study where we needed Dr. Robinson's survey research expertise, but I do feel his ability to relate that information...

MS. WARD: You weren't able to teach him anything about exposure.

MS. JENKINS: I wouldn't say we weren't able to teach him anything; I think he is not knowledgeable about the exposure research literature.

MS. WARD: Okay. And this is also on page six. Another serious caution in interpreting this report is that a person's report of other smokers present does not guarantee that the respondent actually was exposed to elevated pollutant concentration caused by the cigarette. Do you disagree with that statement?

MS. JENKINS: No, I would agree that it doesn't guarantee, but I think here is talking about exposure to a different degree. It would depend on how the particular respondent was answering the question; for example, if they were aware of tobacco being smoked, cigarettes being smoked in another part of the building and had responded, "yes" based to a question based on that, which from what we could tell, was an unusual situation.

But had a person done that, they could have then not actually been exposed, had the cigarette emissions from another room in the building not gone through the ventilation, had they not been in that area.

In general, though, I think Dr. Robinson, again because of his lack of expertise in this area, is not aware of exposure actually being possible, even at very low levels of emitted components.

MS. WARD: So your survey then measures...

MS. JENKINS: Reported ETS exposure.

MS. WARD: Reported ETS exposure.

MS. JENKINS: Reported, as, "people reported at..." The reason we feel it's valid information...

MS. WARD: The reported duration.

MS. JENKINS: Excuse, that's correct; reported duration.

MS. WARD: But that duration might also be an overestimate if the smoking occurred near the end of the activity. There's that possibility.

MS. JENKINS: Yes, I think I indicated yesterday because of the coding; however, I also gave several reasons why I feel that that's probably not the case.

MS. WARD: Okay.

MS. JENKINS: Frankly, if smoking occurs at the end of an exposure in the workplace, generally smoking has occurred prior to that, including perhaps the day before, if smoking is allowed in that environment and there are smokers there.

I'm not sure that there's ever a time in a smoking environment, even if a person isn't actively smoking, I think there's still exposure going on, it's just at a much lower level.

MS. WARD: And of course, that's a key figure, a key factor in the equation, correct?

MS. JENKINS: In the equation?

MS. WARD: Exposure is concentration times time.

MS. JENKINS: That's right.

MS. WARD: And you mentioned yesterday, I think, that you thought that not enough attention had been given to duration, because both sides, the answer that you get by solving the equation is equally dependent on both factors.

MS. JENKINS: That's correct. Yes.

MS. WARD: One factor is not more important than the other.

MS. JENKINS: That's correct. You have to have both for an exposure to occur, but again, with concentration you can have very high or very low concentrations.

The point I was trying to make with the one slide, you can initiate an adverse health effect with some compounds even if their exposure, if the concentration of that exposure is very low. If the duration is long, you can still end up with an adverse effect.

I think this is particularly a concern, at least in my mind, for carcinogens because we don't really know it's prolonged long-term low levels of exposure. Science isn't there yet as to whether the acute exposures prompt development of cancer more than the long term.

From the literature on deaths from lung cancer, for example, in nonsmokers, there's I think reason to believe that one does not always have to be exposed to frequent high levels of exposure.

Here I sort of defer to scientists from IARC and other places where they've not found ...

MS. WARD: That's right. As a public health official of the State of California, you're looking to others to make those kinds of determinations, is that correct?

MS. JENKINS: That's correct.

MS. WARD: And you're going to read and evaluate what they've said, perhaps, but you're looking to others to make that determination.

MS. JENKINS: Do you mean in terms of carcinogenicity?

MS. WARD: Right.


MS. WARD: And your slide yesterday that gave sort of a cartoon picture that referred to RSP, did it not?


MS. WARD: No? The one of the guy...

MS. JENKINS: No. That slide referred...do you mean with the figure...

MS. WARD: The three guys sweating...

MS. JENKINS: No, that referred to any number of pollutants.

MS. WARD: Oh, I'm sorry, I thought that was a designation on it.

MS. JENKINS: No. It showed little dots to indicate that those dots were molecules of the pollutants, shall we say. It was just to show an increase concentration, that was not to imply that their particulate.

MS. WARD: All right. So when you said a few minutes ago that if someone had recorded an exposure, let's say, of 153 minutes, even though the smoking might have started occurring on minute 143, it is your opinion that the person was probably exposed anyway, because smoking had probably occurred in that building the day before. So you are interested then, I take it, in really knowing the potential duration to exposures virtually at the molecular level.

MS. JENKINS: Virtually. For carcinogens, until scientists determine that there is a level below which we are safe, I would want to know about any exposure.

MS. WARD: Okay. Now I do have some questions about your tables that are attached to Docket Entry 13G, your statement.

MS. JENKINS: Okay. Are these the PAH tables that you're referring to?

MS. WARD: No, the tables that start with Table I through IV; I think you actually recast them in some of your slides yesterday, but if you have your statement, and I think most persons in the audience have it as well, we can all look at the same pieces of paper.

JUDGE VITTONE: Ms. Ward, let me just ask you, how much longer are you going to be?

MS. WARD: Well, it is going a little slower than I thought. I would say possibly another 30 minutes.

JUDGE VITTONE: Thirty minutes? I'm really going to ask you to tighten it up, please?

MS. WARD: Okay.

MR. RUPP: Your Honor, I indicated that I would need some time. It appears that Ms. Ward is in the process of asking the questions that I was going to ask, so I'm prepared to waive my right to examine, if Ms. Ward can complete hers; otherwise...

JUDGE VITTONE: Okay, but I'm still going to ask you to tighten up, because we're going to have a very long day today.

MS. WARD: All right. Thank you. Now these tables, all of the tables other than the exposure tables, refer to the 462 non-smoking persons over age 18 from the CAP survey outside the home on diary day or to the subset of 164 persons from that group who reported working around a smoker while working, is that correct?

MS. JENKINS: That's correct.

MS. WARD: Now I'd like to turn your attention to the final report on CAPS that is in the docket as 13GB; this time to Appendix A. Please look at Pages A-1 and A-2.


MS. WARD: Which of those activity codes numbered 0-1 through 0-9 are included in the tables as either "work" or "at work?"

MS. JENKINS: 0-1, which is "work," 0-2, which is "unemployed; looking for work," 0-5, which is "other paid work." 0-3 I would have to double check; that is, "travel during work," but I believe that was excluded.

MS. WARD: I take it from the tables, you did not include breaks during work meals during work.

MS. JENKINS: That's correct. The only time that those would have been included, I think I mentioned this; it's in my written testimony, generally respondents indicated when they went on break and when they went to lunch, and those were excluded from their work activity codes.

There were some individuals, though, by inspection of the diary who did include that in their overall work activity, for whatever reason they did not... Or if they took a break, it doesn't show up.

MS. WARD: All right.

MS. JENKINS: Or if they ate lunch, it was at their desk and they were working and so it ended up as being coded as part of O-1, the work activity.

MS. WARD: All right. But just so I'm clear, you did include 0-2, the category that includes, "unemployment, looking for work, applying for food stamps."

MS. JENKINS: That's correct.

MS. WARD: And those are included in your slides, In these tables that you've provided to OSHA.

MS. JENKINS: Oh, excuse me, no that's included in the labor force slides. The codes that I gave for the labor force were those that I just mentioned, 0-1, 0-2, and 0-5. The codes for this category were people who reported actively working away from home on their diary day.

MS. WARD: And what codes then was that under?

MS. JENKINS: That would be Code 0-1.

MS. WARD: 0-1 only.

MS. JENKINS: 0-1 only. Well, excuse me, and 0-5, let's see, 0-5 for those of you that don't have the book is, "other paid work, a second job, paid work activities which are not part of the main job," and 0-1 is the main job.

MS. WARD: Thank you.

MS. JENKINS: I want to clarify one thing, though. Some of the 0-1 codes where it says if they worked at home, those people have indicated as their location, "home," were excluded from the set of tables appended to my written testimony. Again, they are people who worked away from home, and they were teased out by looking at the location codes.

MS. WARD: But I believe I understood you earlier to say that for these tables, and correct me if I'm wrong, did you make any effort through a search strategy to identify whether the 462 persons to which these tables refer worked inside or outside?

MS. JENKINS: Not in preparing these tables; we had looked at this issue earlier, and as I've said, they were coded accordingly, virtually all of our location codes in the indoor/outdoor splits that were done a few years ago were based on the inspection of the reposes.

MS. WARD: Right. Well, I'm happy to hear this explanation, because I think you have a very interesting survey, and I don't mean to cut off, but I'm getting some pressure, and so I'd like to...

MS. JENKINS: It doesn't bother me.

MS. WARD: It bothers me.

JUDGE VITTONE: Ms. Jenkins, let me just remind you that you're going to have an opportunity when

Ms. Ward and the other questioners are done, through questions from Ms. Sherman if she wants to, to clarify anything that you have to say. Go ahead.

MS. WARD: Now look at Table II, please. With regard to the data distribution there, and you noted yesterday that there is a large standard deviation, which you say indicates substantial variability among the sample. You also note in your written testimony that the median value is notable less than the average or mean. Would attempt to represent this data with a common statistical distribution?


MS. WARD: Yes.

MS. JENKINS: Not offhand.

MS. WARD: What did you mean when you said the distribution was long and low?

MS. JENKINS: I think on this one I said it's skewed to the right. There's a solid percentage of individuals up at the 95th percentile with very long exposures, even above the 75th. 475 minutes at the 75th percentile value shows that there's a substantial portion of this group that has extended exposure durations.

MS. WARD: Doesn't it also show that there's a substantial portion at the left side?

MS. JENKINS: Well, because the mean, the arithmetic mean is substantially higher than the median, this would be skewed to the right. There's a greater proportion on the right side, the higher end.

MS. WARD: Right, I understand, but isn't what we see here a demonstration of two very distinct classes of data; one group in a relatively few minutes of potential exposure are clustered in that group, and a second group of high numbers of potential exposure?

MS. JENKINS: I think that's a judgment call.

MS. WARD: Okay, you haven't evaluated it in that way.

MS. JENKINS: No, I have, and I think I stated what my evaluation was. In the 50th percentile, half the people have less than four hours, but half the people have more than four hours of reported exposure, and the shape of the curve is such that with a mean as high as it is, you've got a substantial portion of individuals basically with very high levels. What I'm looking at here is if you go up and look at the 75th percentile value, there's some pretty big jumps.

MS. WARD: Well, if this is the case, does averaging this data and presenting means really present anything meaningful about average minutes of potential exposure in the workplace?

MS. JENKINS: Yes, it does. Means present information; medians present information. These are statistical estimates that are used for...

MS. WARD: To look at the whole set.

MS. JENKINS: For us to understand; right.

MS. WARD: That's right. But do you think that anything could be learned... From your information that you have from this survey, do you think it would be possible to learn any more descriptive information about, let's say, the high category that would allow for making more conclusions about this data?

MS. JENKINS: Possibly, yes. I think the more useful effort is essentially what were asked to do, which is to look at that group of workers, which in fact are defined here in Table 2, those who actually reported exposure at work. They're that 40 percent of the overall group who said, "Yes, I was exposed," and that's what this is an attempt to do, is to say what are the reported exposures of those individuals who were exposed at work.

That's what this is all about; that's why in my first table I did indicate the split of the percentages who did report exposure and those who did not. The more detailed work is to try to get a handle.

All of these tables are an attempt to get a handle on what's going on with that 40 percent.

MS. WARD: Okay. Let me ask you a specific question about Table 3-B. I wasn't looking at my table yesterday when you showing your slides, but I noticed that the "N" columns do not add up to the bottom number.

MS. JENKINS: That's correct.

MS. WARD: Okay.

MS. JENKINS: Because what the "N's" in the columns indicate is the present, for example, if you look under the "males" column, that "N", "22 in the home," 22 in the 248 males reported exposure to ETS in one of the home locations.

MS. WARD: Okay, so there might have been locations in more than one place.

MS. JENKINS: That's right. The same individuals could have also, that same 22 could be part of the 97 at work and ... they're not additive.

MS. WARD: Right. But then how is it that in the "female" column, that the total for "N" in any place, the total for the first four columns is 195. Are there places they might have been exposed that are not included in "home," "work," "other," "indoor," and "outdoors?"

MS. JENKINS: Let's see, you're on Table 3-B?

MS. WARD: 3-B, "females," "N."

MS. JENKINS: This includes individuals who, the three series includes individuals who reported zero minutes at work, that's what the footnote there indicates.

In the three series, these are not individuals who necessarily reported exposure at work. This is a part of the overall 462.

MS. WARD: I understand that we're looking at the 462; I just don't understand why the total for, "in any place," for females adds up to 195 rather than 214. In other words, the "in any place," you must have added in that number the people who included "zero minutes."

MS. JENKINS: Yes, I just wanted to double check. Right. If you go back to Table 1, the selection here is for adults 18 years of age and older, nonsmokers who worked outside the home. That 462 is simply those who worked outside the home without any selection for having reported exposure or not.

MS. WARD: All right.

MS. JENKINS: So the difference there, I believe, is the individual females in this group who reported no exposure at all on their diary day.

MS. WARD: All right. Now let me ask you, you mentioned labor force status as in your logistic regression analysis as being an indicator of exposure duration. Persons who are unemployed are certainly not being exposed to environmental tobacco smoke in the workplace, are they?

MS. JENKINS: Not as workers. Some of them do visit workplaces to turn in applications and so on.

MS. WARD: But not as workers. So while labor force status may be predictive of potential minutes of exposure to ETS, does this regression analysis alone say anything meaningful about the possibility of workplace exposure?

MS. JENKINS: I think it does, because the majority of the people in our sample were actively working. And also in Dr. Robinson's Report No. 3, which you've brought up in Table 1, Page 8, I think the statistical analysis that he did to look at the proportions of the samples with five or more hours of his SERD on the diary day, when he does control for interrelationships among variables, I think his numbers there, for one thing, he shows the "N" of those who were actually working versus looking for work and laid off, and those that ...

MS. WARD: Is that at the parentheses, the "N?"


MS. WARD: Okay. But for "looking for work" and for "laid off," he also finds a pretty high correlation there, doesn't he?

MS. JENKINS: It's fairly close.

MS. WARD: Representatives of OSHA have ...

MS. JENKINS: Excuse me, I do want to clarify, though, that in Table 1 after their control and their adjustment, they do still find a higher correlation with those who are actively working.

MS. WARD: A higher correlation with SERD?


MS. WARD: Okay. In this rulemaking the representatives of OSHA have indicated that they desire to make corrections to their NPR that are called attention, so I'd like to ask you some questions regarding how OSHA has used the CAPS data, and please look in the NPR at Page 15,988.


MS. WARD: In the middle column on that page we get the title to this section in B, Human Activity Pattern Studies Used to Assess Workplace Exposure. Now from the definitions that you've given yesterday of exposure, wouldn't a more accurate title for this section be Human Activity Pattern Studies Used to Estimate Potential Workplace Exposure?


MS. WARD: Yes.

JUDGE VITTONE: If you want to make that argument, that's fine. But I don't know that we should be asking her if they ought to be changing their titles, okay?

MS. WARD: Okay. Let me ask another question then.

Look at the next column.

MS. JENKINS: Are you on page 15,989?

MS. WARD: 15,988.

MS. JENKINS: Okay. The table you just mentioned I find on 15,989. Maybe you've got a different...

MS. WARD: I'm not referring to a table, I said title.

MS. JENKINS: I'm sorry. It may be the accent.


MS. WARD: Look at column three, please.


MS. WARD: Were OSHA is citing to the Robinson et al report number three, that's Docket 4217. All the exposures, all the calculations in that report which reports minutes or percentages of SERD -- smoke exposure related duration -- include smokers who report being around another smoker, isn't that true?

MS. JENKINS: I'm sorry, could you repeat that?

MS. WARD: With regard to Dr. Robinson's report number three, in his calculations of SERD, which includes minutes or percentages of SERD, don't those calculations include smokers who report being around another smoker?

MS. JENKINS: I don't know. I haven't read his report in that degree of detail. I think that was covered in...

MS. WARD: Look on page two of his report, please.

MS. JENKINS: If he says it does, then I guess he included them.

MS. WARD: Well, he doesn't say that. I suppose we could get information from him, but he does mention that in his report number two, in paragraph two, that greater exposure to ETS was reported by people who smoked, and who smoked increasingly more cigarettes on the diary day.

MS. JENKINS: I have not read his report number two.

JUDGE VITTONE: Ms. Ward, I'm going to give you five more minutes.

MS. WARD: All right.

In the first full paragraph on 15,988, it says, "Robinson et all found that men reported higher levels of exposure than women."

First of all, I think they mean higher levels of potential duration of exposure, but taking into account the reanalysis of the data which you provided to OSHA in Table II, doesn't your data indicate that non-smoking women have higher potential durations at work?

MS. JENKINS: Can you say that again? The preamble lost me.

MS. WARD: Okay. Let me just ask a simple question. Doesn't your data that you've provided at OSHA's request indicate that non-smoking women have higher potential durations at work?

MS. JENKINS: It indicates a longer average duration but my data also show that a higher percentage of men reported exposure at work.

MS. WARD: A higher percentage of men reporting...

MS. JENKINS: Of the males, Table I, I think it is.

MS. WARD: Looking at Table III-8 on the next page, if you hold it open, where it says, and they're referring I think to this 313 minute average, the sentence directly before that, "As indicated in Table III-8, 51 percent of male and 38 percent of female smokers reported ETS exposure at work."

That's an incorrect statement, isn't it?

MS. JENKINS: It is. I reported the correct percentages yesterday, and they're in the tables.

MS. WARD: But these tables only refer to, for people who reported exposure, not for all non-smokers at work, but of those who said they had any exposure.

MS. JENKINS: Maybe I should clarify that. I think it is difficult to follow. OSHA's Table III-8 comes from or is related to our Table III series, the III-A, B, C. That is non-smokers who worked outside the home. Their Table III-9 refers to those who reported ETS exposure at work.

MS. WARD: So you could...

MS. JENKINS: That's our Table IV.

MS. WARD: So you could advise OSHA to correctly label III-8?

MS. JENKINS: I have assumed that that label is the information that they wanted to provide and so what I've provided is the correct percentage numbers in my written testimony.

MS. WARD: But it is not all non-smokers, it's only those who claim to be, that they are around a smoker at work.

MS. JENKINS: That's for Table III-9 only. Table III-8 has nothing to do with those who claim they are or aren't. In other words, it includes the zero values.

MS. WARD: Okay, so...

MS. JENKINS: This probably does require clarification. I think what you're looking at is the work. If you're looking across at the work values and they match, that's because in Table II you're selecting for those who had exposure at work. And so you're selecting for the people from Table III who reported exposure.

MS. WARD: Let me just say, in your Table I, you say that the percent non-smokers who are exposed to ETS at work is 47 percent males and 30 percent females.

MS. JENKINS: That sounds correct.

MS. WARD: So this is incorrect. It's not that big a deal, but it's just something that needs to be taken care of, right? It's not 51 percent of male and 38 percent of female non-smokers.

MS. JENKINS: Right, it's 47 and 30, and for that subgroup in Table III-8, their means, their average exposure duration is what's shown there. Because it's duplicated in Table III-9 for the work category because that's the group that we were selecting for III-9.

MS. WARD: Okay.


MS. WARD: Thank you, Ms. Jenkins.

MS. JENKINS: Thank you.

JUDGE VITTONE: Let me make sure. There's nobody else who has questions, right?



MR. CHRISTOWSKI: Christowski.

JUDGE VITTONE: How long are you going to be, Mr. Christowski:

MR. CHRISTOWSKI: About 15 or 20 minutes.

JUDGE VITTONE: She didn't cover any of your questions?

MR. CHRISTOWSKI: She did. I believe yesterday I estimated about half an hour, so she's cut it in about half.

JUDGE VITTONE: All right, gentlemen. I really am going to start cutting down on time today. I'm also going to start cutting down on some of the direct presentations, too. But I'm going to start cutting down on the questioning.

Try to reduce it to ten or 15 minutes if you can.

MR. CHRISTOWSKI: My name is Dr. Paul Christowski. I'm with Wash Tech, Docket No. 103.

Ms. Jenkins, I'm not a lawyer, I'm an exposure assessor, and hopefully I'll be able to frame my questions as easily understandable as the lawyers have, but please bear with me.

Are you familiar with the National Academy of Science National Research Council's report on human exposure assessment for airborne pollutants?

MS. JENKINS: I'm familiar with it. I haven't read all of it.

MR. CHRISTOWSKI: In the report, the NRC says that identification of a contaminant, characterization of sources, chemical and physical transformation, and especially spacial and temporal concentration patterns are all important elements of exposure assessment. Would you agree with what the Academy says there?

MS. JENKINS: They're all useful, yes.


In the CAPS report and in your testimony, I believe you've testified that no measurement of ETS components or other levels of pollutants of interest were obtained for the specific micro-environments in this study, is that correct?

MS. JENKINS: That's correct.

MR. CHRISTOWSKI: So what you're saying is in CAPS study did not compile any information about identification of ETS components, characterization of ETS sources, chemical and physical transformations of ETS components, or spacial and temporal concentration patterns of ETS, is that correct?

MS. JENKINS: That's correct. We gathered that type of information in some of our other studies.


I'd like to refer you back to your 1992 paper, I believe it's been discussed quite a bit. On page 2147 of this paper, I believe I'm quoting you correctly in saying that these data illustrate the need to consider, in addition to microenvironmental concentrations of ETS components, both the frequency and duration of smoking in different microenvironments and the frequency and duration of people's visits to these locations in calculating population exposure to ETS. Is that a correct quote from your paper?

MS. JENKINS: I believe so. I was just looking for my paper and I can't find it, but I do recall that portion. That was targeted, of course, at population exposure estimation, which is what we do.

MR. CHRISTOWSKI: Yes, I understand that.

Looking now to the CAPS study, isn't it true that the CAPS study doesn't contain any information about the frequency of exposure, but only focuses on duration?

MS. JENKINS: No, actually it does include information on frequency. We have not looked at that specifically. We haven't teased it out, but we do have that information available. One could analyze to look at how many different microenvironments across the day the individual reported being exposed to ETS.

MR. CHRISTOWSKI: But this information hasn't been reported to OSHA as part of the material that you transmitted for this rulemaking is that correct?

MS. JENKINS: That's correct.

MR. CHRISTOWSKI: Thank you very much.

One question about the CAPS study itself, something I'm trying to figure out here. On page 13A there is a flow chart. Are you familiar with that, or would you like to take a look at it?

MS. JENKINS: Is this the final report?

MR. CHRISTOWSKI: Yes, it's the final report. It's Figure 2.1.



MR. CHRISTOWSKI: In the flow chart I believe that this depicts the process of how the study was conducted, is that correct?

MS. JENKINS: It appears to depict sort of how the initial interviews were conducted, yes.

MR. CHRISTOWSKI: And is this an accurate depiction of that? Is this actually how it happened?

MS. JENKINS: I would have to review it.

MR. CHRISTOWSKI: I believe that Ms. Ward questioned you quite a bit about a particular question on the questionnaire which is on page B3.6, and it's a question designated OSMK about the presence of a smoker?


MR. CHRISTOWSKI: Do you recall that question?


MR. CHRISTOWSKI: Could you please tell me on Figure 2.1 where that question was asked as part of this process?

MS. JENKINS: That's in the third box, the adult time use diary.

MR. CHRISTOWSKI: So this was part of the diary then, rather than part of just a question.

MS. JENKINS: Right. It's part of the diary. As I explained yesterday, for each activity and location they reported during their 24 hour recall diary they were asked this question. It's coded with the diary data so that it can be matched with those activities and locations where it occurred.

MR. CHRISTOWSKI: I only have one more little question here. I'm referring now to the PAH study, the Riverside study.


MR. CHRISTOWSKI: The P Team study.

How did the particular chemicals that are included on this report here get included in the study?

MS. JENKINS: Frankly, we spoke to some individuals in our agency who are knowledgeable about PAHs including Norm Kato who studied mutagenicity of PAHs and other pollutants extensively.

The criteria, back when we actually initiated that study, there's actually been a lot more found out about PAHs since then.

Back then we looked at those that had been identified as carcinogens, those that would be expected to provide for some kind of adverse health affect, some that he had found to be mutagenic at the time but weren't necessarily identified as carcinogens yet. Also, frankly, some that were measurable.

Ideally, we actually funded a study to attempt to develop the methods to identify nitro PAH levels, to be able to measure those with small indoor portable monitors.

That study really didn't do a very good job of developing a method for nitro PAHs. Nitro PAHs are found at much lower levels in environments, so we needed a much better detection limit. There's some handling issues there.

So the PAHs that resulted in that list were those that either were known to have some sort of adverse effect, or suspected due to their mutagenic capability. I'm not sure what the other criteria were. They were primarily looking at it from a health aspect.

MR. CHRISTOWSKI: I'd like to turn your attention now to the second PAH report, the indoor concentrations of polycyclic aromatic hydrocarbons in California residences.


MR. CHRISTOWSKI: Were the same criteria used to select the PAHs for that study?

MS. JENKINS: We used the same list of PAHs for that one.

MR. CHRISTOWSKI: Are you aware of the work of Curtis Travis in 1985 where he describes the PAHs that are associated with wood smoke?

MS. JENKINS: I'm not specifically familiar with that particular work.

MR. CHRISTOWSKI: If I told you that Curtis Travis and his colleagues listed seven potential carcinogens that are associated with wood smoke that are not in these studies, would you be surprised at that?

MS. JENKINS: Not necessarily.

MR. CHRISTOWSKI: Do you think that the failure to include this large number of potential carcinogens from wood smoke would tend to bias this study away from wood smoke and toward other sources of PAHs?

MS. JENKINS: No, I wouldn't, because some of these compounds have been found to be associated with indoor wood smoke in some of the studies that I've cited. Some of the work at Battelle by Jane Chuang et al, some work EPA has done.

Again, this list may not include all of those that are perhaps most highly correlated with wood smoke. It certainly includes some, though. I think I cited those.

MR. CHRISTOWSKI: Thank you very much.

That's all I have, Your Honor.


Mr. Rupp?

MR. RUPP: I think I can be brief.

MS. SHERMAN: I thought you were waiving your questions, Mr. Rupp.

MR. RUPP: I said if Ms. Ward was able to finish, but she did not get to the area of interest that I have, so I do have a few minutes of questions.

Ms. Jenkins, my name is John Rupp, and I think I can be quite brief.

I want to ask you to focus, if you will, on page 14 of your statement. The sentence I have particular interest in is the following: "Thus eliminating ETS from indoor environments would significantly reduce non-smokers' exposure to a number of toxic pollutants."

When you use the word "significantly" in that sentence, are you referring to statistical significance or significance from a biological perspective or both?

MS. JENKINS: Significance from a health perspective.

MR. RUPP: Rather than from the perspective of statistical significance?


MR. RUPP: Are you thinking primarily of cancer when you write that sentence, or are you thinking about other possible health affects?

MS. JENKINS: Primarily cancer, but as I discussed above, there are some other compounds of concern.

MR. RUPP: The other possible health end points that you describe earlier in your statement are health issues. Respiratory disease, for example asthma, that are dose-related, are they not? One cannot speak of them intelligently without saying something about the dose of the compound that might be implicated.

MS. JENKINS: They are dose related. However, recent research and certain investigators do feel that RSP probably has contributed to affects down at extremely low levels. There are individuals who believe there is no threshold for RSP, for example.

MR. RUPP: But you would have to regard those people as being in the minority at this point so far as respiratory affects -- non-carcinogenic respiratory affects, would you not?

MS. JENKINS: That's true.

MR. RUPP: Let's focus on cancer for just a moment. The perspective that you bring to the discussion of cancer is one that suggests, if I understand it correctly, that because no threshold has been specifically and definitively identified, that one has to assume, taking a public health posture, that one should try to regulate to a zero exposure level. Is that a fair statement?

MS. JENKINS: I didn't hear the last part, that one should try to regulate...

MR. RUPP: That one from the public health perspective should be seeking to regulate to a zero exposure level.

MS. JENKINS: If that's possible.

MR. RUPP: Are you familiar with the measure that was enacted in California a few years ago that popularly is known as Proposition 65?


MR. RUPP: And do I understand correctly that that is a measure that requires the state to publish listings of chemicals known to the state to be a cause of cancer or reproductive toxicity?


MR. RUPP: And during the several years Proposition 65 has been in effect, a number of chemicals have been listed under both categories, is that also correct?


MR. RUPP: Do you recall within a range of perhaps eight or ten, how many chemicals have now been listed by the state as chemicals "known to the state to be causes of cancer"?

MS. JENKINS: No. It's a large number, but no, I don't.

MR. RUPP: Seventy, 80 would be not too...

MS. JENKINS: I haven't counted.

MR. RUPP: But it's a substantial number of chemicals?


MR. RUPP: And the state also has listed a substantial number of chemicals as known to the state to be implicated in reproductive toxicity, is that also correct?

MS. JENKINS: I don't know the number.

MR. RUPP: But it's a substantial number again.

MS. JENKINS: I don't know.

MR. RUPP: If we think about the 70 or 80 chemicals and the number may be more, that we can both supply for the record if we care to, that have been listed in the State of California as known to the state to be a cause of cancer, would you be prepared to hazard any kind of guess at the number of sources producing that range of chemicals?


MR. RUPP: If environmental tobacco smoke were banned in all buildings in California, homes and workplaces, what carcinogens on the list, if any, would we have any reason to believe would not be encountered in workplaces and homes in California? Do you have any sense?

MS. JENKINS: First of all, I think you're talking about the wrong list.

MR. RUPP: Pardon me?

MS. JENKINS: The list that I am most familiar with is our toxic air contaminants list and that is different from the Prop 65 list.

MR. RUPP: Right. I'm now focusing on chemicals that are known to the state to cause cancer. I'm really focusing simply on the cancer, and let's leave reproductive toxicity aside for the moment.

Do you have any idea of the number of sources of those chemicals, or of any of the chemicals to which people would not be exposed were smoking banned entirely in California, in homes and in workplaces, as well as any other setting?

MS. JENKINS: No, but I think your question is misleading.

MR. RUPP: In what respect?

MS. JENKINS: I don't think anybody has claimed that eliminating tobacco smoke would completely eliminate workers' exposures to the components of ETS.

Certainly, though, the research that I've been aware of and been involved in in the State of California, as my testimony says, we repeatedly find ETS cropping up as a source of a number of the compounds that we've been looking at on our toxic air contaminants list.

This came out as well in a report that Lawrence Berkeley Laboratories indoor program did for us where we asked them to review our list of potential toxic air contaminants before they were identified, and determine what kinds of source emissions data were available in air concentration.

What that report shows is ETS was really the predominant source of a great number of those. In fact that's why we went ahead and funded our chamber study and so on.

So my perspective, based on our studies and literature reviews that have been done for us under our funding, shows to me that ETS is one of the major sources of many of these compounds. So that is why I do believe that eliminating smoking in enclosed work places would greatly reduce those workers' exposures to that.

MR. RUPP: And the data source that you have in mind when you make that statement is many sources?

MS. JENKINS: You mean literature sources?

MR. RUPP: Yes.

MS. JENKINS: Yes. Many literature sources.

MR. RUPP: Could you give me an example of what you have in mind?

MS. JENKINS: The one that I specifically mentioned is a final report to us from Lawrence Berkeley Laboratory. It is available publicly. It's a final report that they did under contract for us.

MR. RUPP: Has that been published in California?

MS. JENKINS: The final report is. I don't think they've published it in the literature. There's no big news there.

MR. RUPP: Does that report focus on the workplace or focus on...

MS. JENKINS: I'm talking about in general.

MR. RUPP: Does it have data broken out by the workplace?


MR. RUPP: Have you had an opportunity to review the monograph published by Oakridge National Laboratories that focuses on a number of the chemical constituents of ETS and the levels found in smoking and non-smoking areas of the workplace?

MS. JENKINS: No, I haven't.

MR. RUPP: Thank you.

Thank you, Your Honor.

JUDGE VITTONE: Thank you, Mr. Rupp.

Any questioning?

MS. SHERMAN: A few, Your Honor.


MS. SHERMAN: Ms. Jenkins, I believe at the beginning of your testimony you describe some ETS chamber research studies that were being conducted but had not been presented to your State Board yet?

MS. JENKINS: That's correct.

MS. SHERMAN: Would you be willing to make these available to the record when they become available for public consumption?

MS. JENKINS: Yes, I would.

MS. SHERMAN: I believe at some point earlier in your testimony you talked about a 24 hour recall diary. You talked about the advantages of such a diary. Have such diaries been validated in peer review journals?

MS. JENKINS: Yes. Juster and Stafford, I believe Robinson and Hollins was published. I can't recall the journal. I would have to double check.

But they are considered validated in the survey research community based on I believe at least two peer review publications. I believe there are more. I haven't looked at them all.

MS. SHERMAN: If you have any more thoughts on this subject, perhaps you can provide it for a post-hearing comment.


MS. SHERMAN: I believe also in your testimony you said something about possibly oversampling a higher education group?


MS. SHERMAN: Would this possibly mean that the study may have underestimated exposure when you take into account the demographics of smoking patterns?


MS. SHERMAN: Could you describe for me how you believe that you accounted for indoor/outdoor work activities in your study?

MS. JENKINS: What do you mean accounted for? How we classified them as occurring indoors or outdoors?

MS. SHERMAN: That's correct.

MS. JENKINS: In the data, as I said earlier, in the data presented to you they're not really designated as either, but in the work we did earlier, we did examine the diaries and I would have to go back and look in my files about the exact rule of thumb that we used, but I believe that we felt that if 95 percent of the responses were clearly indoor or clearly outdoor, then that's where those codes went.

At one point there was, for the combined dataset in house, we combined our adult and children's dataset.

In that dataset we've gone through and for each diary allocated the indoor/outdoor designation based on the diary contents.

That matches very closely what was reported in our earlier work before we had recorded the few in each category that needed to be recorded. It didn't change the outcome of the basic pie charts we presented in our paper and in the report for indoor and outdoor.

MS. SHERMAN: So in your own mind you have adequately considered this in your evaluation of your own data.


Well, I may not have been clear there, but basically when we reported the data earlier, we made the judgment that if five percent or less of the responses indicated the opposite, say outdoor locations instead of indoor, we went ahead and coded those indoors.

More recently when we combined our datasets we did go back and review each diary and then gave it the proper indoor/outdoor code. When we did the reanalysis, the percentages come out virtually the same, and that's just because where you have five over here considered indoor, you recorded them over here, you have five that are outdoor and they're recorded.

It all comes out in the wash, so to speak. But those codes, in the analysis I did for OSHA when it says "work", that is just work. Whether it was indoors or outdoors. But the rest of the codes are explicitly indoors or outdoors as we indicated in the pie charts.

So our reanalysis and the new coding we've done doesn't necessarily show up exactly in the new pie charts and the new tables, because for the work activity we were more interested there in just workplace and we didn't separate indoor workplace and outdoor workplace.

I don't know if that helps.

MS. SHERMAN: Thank you. Those are all the questions I have.

JUDGE VITTONE: Thank you, Ms. Sherman.

Thank you, Ms. Jenkins. Thank you for your time. We appreciate it.

MS. JENKINS: You're welcome.

JUDGE VITTONE: Who's your next witness?

MS. SHERMAN: May we have a short break, Your Honor?

JUDGE VITTONE: Yes, but I'd like to know who your next witness is.

MS. SHERMAN: I think it would be Mr. Turner.


Let me ask for a quick evaluation from the audience. How much questioning will there be for

Mr. Turner? Anybody have an idea?

MR. RUPP: An hour or an hour and a quarter.

JUDGE VITTONE: Who else had their hand up here?

MR. CHAPIEWSKI: I'm requesting approximately 20 minutes for questioning Mr. Turner.

JUDGE VITTONE: What's your name?

MR. CHAPIEWSKI: Matt Chapiewski, Matric Manufacturing, Docket No. 118.

JUDGE VITTONE: Anybody else?

MR. BENDA: Based on the written testimony, ten to 15 minutes, sir.

JUDGE VITTONE: And your name?

MR. BENDA: George Benda, Chelsea Group Ltd., Docket 173.

JUDGE VITTONE: Anybody else?

(No response)

JUDGE VITTONE: Let's take a five minute recess.

JUDGE VITTONE: Our next witness is Mr. William Turner. Mr. Turner, would you come forward, please.

Mr. Turner has asked if he could speak from the podium. I assume nobody --

MR. TURNER: I'm going to sit down.

JUDGE VITTONE: You're going to sit down. Okay.

JUDGE VITTONE: Mr. Turner, would you state your name for the record, the organization that you represent, please.

MR. TURNER: My name is William A. Turner -- William Alfred Turner. The organization I represent here is the Department of Labor.

Are you talking about my own business?


MR. TURNER: I am a registered professional engineering, and I am vice president of the indoor air quality division of the H.L. Turner Group.

JUDGE VITTONE: You're testifying today on behalf of OSHA Department of Labor?

MR. TURNER: Department of Labor.

JUDGE VITTONE: You've previously submitted a statement on August 12th, 1994, for the record?

MR. TURNER: Correct.

JUDGE VITTONE: Okay. That will be marked as Exhibit 34.

(The document was marked for identification as Exhibit 34 and received into evidence.)

JUDGE VITTONE: Are you going to be using any slides?

MR. TURNER: One overhead.

JUDGE VITTONE: And you're going to be able to provide a copy of that for the record?

MR. TURNER: Yes, I will.

JUDGE VITTONE: Mr. Turner, if you would like to proceed, please do.

MR. TURNER: Most of you have an opportunity to look at my written testimony, and so I will attempt to brief and summarize that, and I will also provide use of one overhead that's not in that written testimony that will be made available to the docket.

In terms of general approach, it should be clear from my testimony that I am in general agreement with the performance approach of the proposed rules. Let that be very clear.

My background for these comments, to summarize, I have a Master's Degree in Mechanical Engineering. My focus was on energy and materials in my undergraduate work, and my graduate work was the focus on air pollution control.

I have approximately 17 years of experience in evaluating indoor air quality conditions in non-industrial space. These evaluations were done partly the 9 years I spent at Harvard University School of Public Health as a full-time researcher and for 8 years as a engineer in private practice, supervising a group of other engineers.

To date, myself and my staff have conducted comprehensive evaluations in the range of 1000 buildings, in access of 2 million square feet of non-industrial type space.

In general, the approach has been to evaluate the performance of those buildings, from an air quality perspective and from a heating, ventilating, and air conditioning perspective.

Our focus has been, historically, on non-industrial spaces, where one tends to find poor HVAC performance, airborne contamination of different contaminations, and clearly operation in some operations beyond the design intent of that building, and a blatant lack of operator knowledge and documentation concerning the functioning of the HVAC system in that building.

As an indoor air quality division, we are part of a full service architectural and engineering firm, so our point of view is not only from a diagnostic perspective but also from a remediation perspective.

That is, in general, we are asked to recommend to our clients, specific ways to mitigate what we find inappropriate in the building. That often includes a compliance plan; it may include the design or redesign of the facilities as needed.

So my perspective, both as an engineer, working in an architectural and engineering firm; my perspective is also from the architects, and the architect's view is, clearly, the building is designed for occupant productivity and comfort.

As a mechanical engineer, that is one of our main focuses.

I have three main points I'd like to focus on today. Point 1 is simply that the training of building operators and occupants is critical with regard to indoor air quality information.

Point 2 is the use of dilution for control of tobacco smoke and other byproducts is not an acceptable control strategy, and I have some data that will help illustrate that.

Point 3: We believe the performance based compliance program in the proposed rule is needed and a necessary component of the rule.

First point: Training of the building operators and occupants is critical with regard to indoor air quality information.

Specifically, in support of paragraph G, employee information and training and the proposed rule, we have found in our experience that many problems in buildings are caused simply by poor training of the operators or the folks responsible for running that building.

I would suggest that at least 50 percent of the buildings we see, the operators have little knowledge of the consequences of how they're operating their building.

Examples of this type of a situation include a large building in the Washington D.C. area, which we're involved in, which was originally designed for condominiums, was used as leased office space.

This directed energy conservation in the building, in fact, led to a total lack of understanding of how the system was supposed to work, and ultimately a multimillion dollar renovation to fix the problems in the building that were caused by its misuse.

Example 2: A building in a humid coastal climate, where over ventilation, where someone's idea of pump the building full of fresh air, in fact, led to extreme contamination in the building, and will result in, again, a multi-thousand dollar fix to fix the building.

Finally, Example 3, a large facility located in Massachusetts, where failure to understand the system and how it worked allowed diluted environmental tobacco smoke to be delivered to a designated smoke free floor, as it was recycled from four other floors, that were not designated to be smoke free.

Blatant lack of understanding of how the system was supposed to be operating.

The other item that's important: an understanding of critical care in the system, including maintenance of air filters, air conditioning, condensate pans, humidifier systems, pressure controls, and inter-zonal pressure control in buildings; provide minimum outdoor air design conditions and dampers the control outdoor air and the HVAC controls themselves.

Another category is the lack of understanding of the design intent of the building. Clearly, this rule would require that someone understand what the design intent of their building was, specifically, what are the control capabilities, the HVAC system;

What are the design capacities of the system, how should the building be run during excursion operation;

Planned emergency operation when the facility is above a designed day.

The operator's relying solely on the computer information versus in-space operations;

Operating the building under negative pressure when, in fact, it was designed to be operated under positive pressure, and just plan lack of appropriate balancing in the building.

Probably one of the best examples I have of the health consequences of that is a hospital in the norther climate that, due to poor pressure control in the facility, allowed the loading dock to become the air intake, and the air from the loading dock was next to the dumpster, and the air from the dumpster ended up in the blood bank, and having air from a dumpster in a blood bank, is not real healthy.

So, in summary, training for occupants as well as operators, is important. The proposed rule would require that all employees shall be informed of the content of the standard, including the building occupants.

Typical occupant behaviors that need, perhaps, attention and correction is the addition of local sources, tampering with the HVAC equipment, failure to promptly report illness, odor or discomfort.

What might ask, what is the expected cost-effectiveness of this required training.

Typically, if you survey folks from around the country, you might get an answer that it costs somewhere around $2 a square foot annually to condition and provide air to the occupants of the space versus a personnel budget that might be in the range of $100 to $250 per square foot.

If the budgets were compared, it may be obvious that the improvements one might make would be, in fact, very inexpensive, and potentially be very cost-effective.

In fact, if you believe the OSHA cost estimates for implementing the rule, you could crunch some numbers, and if cost you in the range of 20 cents a square foot, that comes out to something like preventing one day of absence for each employee. Not an unreasonable goal, considering many surveys suggest at least 50 percent of the buildings out there have indoor air quality and

discomfort problems.

Training is also needed because the HVAC system in a building has become, in fact, very complex, and will get more complex as energy costs are taken into consideration.

The advances we see in HVAC technology today are similar to the technological advances you see in the automobile. Certainly one needs trained and retrained individuals to be able to work on one of today's autos.

You need the same training and retraining to be able to maintained an HVAC system in a modern building.

Examples of modern components that one needs to clearly understand include variable air volume systems; how to design them, how to test them, and energy recovery devices.

We all know building costs are constrained and very tightly controlled. As buildings have become more energy efficient, in many ways they become less forgiving as to how much can go wrong before the occupants will perceive a situation of poor indoor air quality.

Training itself is in its infancy. There is basic indoor air quality available -- information available -- from the U.S. EPA, indoor air division; from BOMA; from ASHRAE, and from other private and public institutions.

The expected benefits of this training are somewhat obvious. They included the ability to reduce the likelihood of disease that is caused or exacerbated by workplace exposures and by subsequent lost productivity.

One would expect that training to lead to reduced incidences on acceptable indoor air quality and participants in general that go to these courses, of which I've had the pleasure of teaching many of them, often report that they are helpful in understanding how to approach the indoor air quality problem in buildings.

Thus, I am in support of this training and education approach in the program.

I am in support of the performance approach of the program, the proposed indoor air quality rules which focus on performance, and it's likely that this would provide a reasonable improvement in indoor air quality.

By definition, this means the approach needs to be flexible. In fact, it's our recommendation that a sample plan should be included in the proposed rules.

The plan must address excursion operation. How should the building be operated during extreme weather. How should the building be operated during extreme internal loads?

How do avoid reduction and outdoor air or misdirected energy conservation;

How to reduce the instances of operators shutting off the outdoor air for the name of saving energy.

Outdoor air is always required in a public building for general dilution. We've had laws on the books for many years that require that.

In addition, one will have to investigate part-load operation. That is, when a building is partially occupied, what's the most cost-effective way to ventilate it and provide guidance on that, and how does one manage housekeeping activities.

Point 2: You may remember point 2 as the use of dilution for the control of tobacco smoke is not an acceptable control strategy.

If one looks at page 15991 of the Preamble, I am in support of Section 3, Environmental tobacco smoke, paragraph F, which discusses the inadequacy of general dilution ventilation to address environmental tobacco smoke as a means of exposure control.

Specifically, dilution ventilation is not acceptable control strategy for the byproducts of tobacco combustion.

One has to understand that non-industrial heating, ventilating and air conditioning system are primarily designed as a mixing system. They're designed to be able to provide 55 degree air in a manner that it's comfortable by the time it reaches the occupants.

The classic way to do that is to mix it with room air that's in the range of 74 degrees and get it to the occupant in a comfortable manner. They are not designed for contaminant control.

As a recognized carcinogenic compound containment of the material, isolation and exhaust must be the control strategy that one focuses on.

Delivering contaminated air to nonsmokers is not an acceptable control strategy in today's modern office buildings.

Nonsmokers who smell of tobacco smoke tend to be very vehement complainers. It's just not going to work in today's modern office building, based on our experience and buildings.

Thus, mixing of supply with room air that is contaminated with tobacco smoke byproducts before its delivered to the occupants, is an unacceptable approach for the nonsmoker.

It's also highly economic to attempt to dilute tobacco smoke and it wastes energy.

For an example of that, in one client's facility, although we measured a delivered outdoor air quantity of over 40 cubic feet a minute of outdoor air per person, the nonsmokers still complained of tobacco odors, and that's twice the recommended ASHRAE recommended guideline for office space. It's far above the minimum.

Combustion byproducts must be isolated. Our experience has shown that, unless combustion byproducts, the gaseous, the semi-volatile, and the particles are isolated and prevented from entering the general ventilation system, nonsmokers will be exposed, and this situation is unacceptable.

As an example, I'd like to present some data that is in the docket.

This information has previously been submitted in the docket, and I will be happy to --

JUDGE VITTONE: Excuse me, sir, you're going to have to use the microphone.

MR. TURNER: Okay. I will be back in a second.

JUDGE VITTONE: We have to hear.

MR. TURNER: Can everybody see that?


JUDGE VITTONE: How about that on back there?

MR. TURNER: That will destroy it. Engineers always mess up the room.

This is a little complicated. Let's sort of take a light tour here. As you can see from the top of the plot, this data is a plot of respirable particle data, an innocuous Ice Cream & More restaurant. Obviously, that's a fictitious name to protect the owner.

This is suggested that six cigarettes were observed in a half hour.

On the left side over there, axis, we have particles for cubic foot. That is a standard measurement and a standard device used in clean rooms. There are literally thousands of these laser particles counters in use throughout the country, measuring particle counts and clean rooms.

So we have an instrument. We have two sets of data up there. The little diamonds are outdoor particle levels, and you can see that sort of bounces along at the bottom, in the range of oh, less than 100,000 particles per cubic foot.

Can they ask questions while I'm presenting? No. Well, ask questions later, if you have questions.

You see, the little squares bounce along, the simultaneous indoor/outdoor measurements in this restaurant, and as you can see at around almost 12:30, 16 feet away from the smoke, 16 feet away from the nonsmoker, located in a non-smoking section, someone is observed to light up a cigarette in the smoking section.

This s a restaurant that is approximately 1000 square feet, designed in accordance with RJ Reynolds guidelines on designing for tobacco smoke control in a restaurant, and it's approximately 30 occupants, of which 1 is smoking.

So approximately 16 feet away in the middle of the room, where the tobacco smoking is limited to one side of the rectangle, we're collecting data in the nonsmoking section, and, coincidentally, when someone lights up, the indoor fine particle counts go from the range of a little above outside to roughly 400 percent increase of inside over outside.

You can see that reaches equilibrium while the tobacco smoke is being generated, and as the cigarette is finished, you can see that the K reflected upon the ventilation rate in this space.

This space is being ventilated at roughly 30 cubic feet a minute of outdoor air. Excuse me -- 40 cubic feet a minute of outdoor air, which is in excess of ASHRAE's guidance for cocktail lounges.

So we have excessive outdoor air ventilation in the range of 6 air changes per hour of fresh air and, lo and behold, the nonsmoker, whether they want to or not, is getting to breath the byproducts of tobacco smoke.

Time goes on here and we that another cigarette is lit up and, in fact, the other person at the table lights up, and we have, again, a dramatic increase in exposure to the nonsmoker from the tobacco smoke that's being generated 16 feet away in the smoking section.

Again, as the event finishes, you see that dilution ventilation gradually removes the particles, and again, a little while later, we have the use and again the pattern repeats. You notice as more cigarettes are consumed, in fact, the particle counts are now up at a million particles per cubic foot, where they started out at 100,000 particles per cubic foot.

Pretty dramatic illustration, from my perspective. The dilution ventilation alone is not adequate at preventing exposure, given the strategies that have been recommended currently for restaurants.

Now, one might as the question: gee, what about this air-cleaning stuff. We see aid for air cleaners all the time -- on the tv, on the radio, et cetera.

My experience with air cleaners is rather simple. We have yet to experience an affordable, properly designed and maintained air-cleaning system for gentle ventilation in building that would allow air that's been contaminated by the byproducts of tobacco smoke to be recirculated in the general ventilation of the building.

So my experience has been the most cost-effective mechanism for is to look at isolation and exhaust, which is, in fact, what's recommended in the proposed rule.

So one focuses on engineering controls. The need for isolation and exhaust is the only preferred controlled strategy for an identifiable point source that can easily be located in one location, one that's significant, one that's been documented to be carcinogenic, and one that's easily identified as the use of tobacco.

One might ask the question, how about vertical displacement ventilation? Anyone who is familiar with my publications knows, in fact, I have attempted to design a vertical displacement system in my own office building as a demonstration of a cost-effective way to provide good air quality in a building.

What is a vertical displacement system? It's a carefully designed air barrier system based on displacement ventilation principles.

Displacement ventilation is very different than normal mixing ventilation. In fact, most office buildings -- all office buildings, except for two research facilities in this country -- are designed with general mixing ventilation where you would expect a similar plot to what I just showed in the restaurant, because anything that's generated in the space is immediately mixed and distributed throughout the space.

A displacement ventilation system would be much harder to design, to maintain effective negative air pressures within a control zone where environmental tobacco smoke is released compared to a physical barrier with exhaust.

Isolation, in theory, can be accomplished by displacement ventilation systems, such as a system that has been demonstrated by Philip Morris in the performing arts center that some of you may be familiar with.

That design required -- it was designed for a standing position, and it required very meticulous engineering. It also requires a high ceiling, because if you're going to provide displacement ventilation, you have to figure out how to provide occupant thermal comfort, as well. It requires a high ceiling to accomplish that.

It costs much more than conventional systems, requires extremely diligent maintenance. Other than for research, it has not be demonstrated to control tobacco contaminants in a normal office type setting.

However, on the bright side, displacement up flow system probably have an excellent applications for use and smoking lounges where you've isolated the material and, in fact, now want to minimize energy consumption and maximize the use of your ventilation air, displacement ventilation is likely to reduce exposures to sidestream smoke in the smoking lounge and is likely to save energy, especially in climates where cooling is provided year round.

The approach would waste less energy, less conditioned energy, and also use less fanned horsepower when applied to a smoking lounge.

Back focusing on the proposed rule, I feel that the isolation and exhaust requirement is needed to provide a building wide authority, particularly in leased office space, to provide an even playing field. That is, when you have mixed use facilities, with several tenants, if one knows there are only certain acceptable, defined criteria for dealing with environmental tobacco smoke, one can easily accommodate that.

That's a very awkward and difficult situation for many building owners in today's building market.

Other expected benefits of isolation and exhaust, as I've mentioned, is energy savings. We're all concerned about energy these days. In a building now attempting to dilute tobacco smoke with over 40 cfm per person, that same owner could provide a smoking lounge and most likely be able to reduce general ventilation rate to in the range of 20 cfm per person.

If one were to calculate the economics of providing a 1000 foot smoking lounge with appropriate ventilation versus a 10,000 square foot office space, with double the ventilation that would be required, there's certainly economics to be gained, isolation and exhaust.

Final point, point 3: A performance based compliance program in the proposed rule is needed and a necessary component of the rule. Focusing on paragraph D, Compliance Program Implementation, Items 1 to 12, with these types of items, one could expect the success of this program to work.

If one, in fact, does items 1 to 12, it is likely and logical that there would be drastic improvements in indoor air quality in our buildings.

As stated earlier, it is our experience in the vast majority of indoor air quality problems are often caused or contributed to by a lack of knowledge or understanding on the part of the HVAC system building operator, occupants, and occasionally even the designer of the system.

The current proposed rule will require submittal of a compliance plan; that is, a plan which will need to address the proper operation and maintenance of the system for the current use and to identify the design intent of the facility and how it's designed to be operated to achieve acceptable air quality.

Think about it. If fleet owners operated behaves today in their fleets the way we manage and operate many of our buildings, how often would you reliably get a delivery of your goods and services?

It's just not acceptable in some industries to not have a good plan and to follow it.

Implementation of the proposed rule should go a long way to improving indoor air quality in non-industrial facilities. We have recommended similar compliance programs to our clients with great success.

For example, a large building located in New Hampshire has been understand a compliance program with us for three years now, having been evacuated three years earlier, and the complaints have continued to decrease to the point of which they are at the normal level one might expect in a non-complaint building, at this point.

Several provisions in paragraph D, Compliance Program, will address proper operation of the HVAC system; specifically, maintaining and operating the HVAC system as designed; providing outdoor air minimums as designed.

These provisions are a good starting point for any building. They would assure that the HVAC system is operating during all work shifts. Now, this is a challenging opportunity for a building owner. This would require some type of design for part-load operation, when the building is not fully occupied.

We've actually accomplished this for several clients. In fact, the one client, we've worked with the client to install a minimum baseline ventilation system. It's triggered by a demand control ventilation sensing system, based on carbon dioxide, that when occupancy and low baseline minimum ventilation is supplied, and in fact when the occupancy sensors realize there are a lot of people in the space, the system automatically provides more dilution ventilation.

Now, once these controls are installed, they're available for other options for energy conservation.

Yes, there would be some capital costs associate with being able to operate at part load, but, once installed, one can operate typically at part load more more frequently than one may have operated without the controls.

Another guideline in here requires the monitoring of carbon dioxide during routine maintenance and checks to see that the ventilation system is observed to be operating as it should and that the carbon dioxide levels are above 800 parts per million, one should investigate why.

This is, in our experience, and over 1,000 buildings and millions of square feet, this is a great starting point in buildings. If the CO2 level is above 800, it's important for a building owner to know why. It may be as simple as the system can't do more than that.

It may be as simple as someone has parked a truck in front of air intakes, and you're getting byproducts of combustion, or, in fact, something is downdrafting the biler command.

It's been our experience that if the levels in a building are above 800 ppm, you know, at most, you're only delivering 20 cfm of outdoor air per person. A typical office facilities, this quantity would also be translated to about .15 cfm of outdoor air per square foot, not a real high ventilation rate in today's buildings, or about 1 air change of fresh air per hour, which we consider a reasonable dilution rate in office buildings.

Expected benefits of this type of baseline dilution are somewhat obvious. One air change per hour or for general people occupancy in office space would be expected to dilute the occupant bioeffluence.

This dilution would also be expected to handle many of the low-level disbursed sources found throughout of space for typical office activities.

Finally, let us focus on Item 1: Operate the building as designed.

Probably one of the most important items to identify in this compliance plan is how the HVAC system shall be operated during excursions. Any of you that are mechanical engineers know that the building is not designed to provide comfort under all operating conditions.

It's designed, typically, to provide comfort for the 97th or 99th percentile of operation, which means someone has to have a plan to operate this plan when you're at weather extremes. Too often, that plan has simple shut off the outside air, which is not an acceptable way to operate a modern, energy-efficient tight building.

During these periods, excursion operation, perhaps it be appropriate to produce a ventilation rate that's half of the design rate or a rate that's .5 air change per hour, which is what we're like to see in homes or 10 cfm per person, much better than shutting off the outside air to get through this weather theory.

On has to focus on what's a tolerable level of ventilation during this excursion period.

Finally, overall point in closing: I believe the proposed approach is a logical and flexible program. It's consistent with the U.S. EPA Indoor Air Division Guidance documents; the building air quality guide; is consistent with ASHRAE approaches for commissioning and operation of the HVAC system in buildings.

Thank you.

JUDGE VITTONE: Thank you, Mr. Turner.

One small point. Your chart said 1-1/2 hours, whatever the title was, and I thought you said a half an hour in your direct statement.

MR. TURNER: Would you like me to put it back up?

JUDGE VITTONE: Just turn it back -- put it back up, yes. Maybe it's a small point, but I thought you said a half an hour.

MR. TURNER: The time scale at the bar is 1-1/2.

JUDGE VITTONE: It's 1-1/2 hours? 6

cigarettes --

MR. TURNER: Observed 1-1/2 hours, and I believe if you look at the time scale here, it would be 1-1/2 hours.

JUDGE VITTONE: Okay. I thought you said a half an hour. Okay.

Could you turn this on, please.

MS. SHERMAN: Mr. Turner, could you put your statement and the slide in the record, and I believe that would be Exhibit 34.

MR. TURNER: Yes, I'd be happy to do that. Who do I do that to?

MS. SHERMAN: To the court reporter, please.

JUDGE VITTONE: This lady right here.

We have Mr. Rupp, this gentleman right here. Was there anybody else? Mr. Tingle, do you have any questions, sir?


JUDGE VITTONE: How long do you think you'll be?

MR. TINGLE: Three minutes.

JUDGE VITTONE: Come ahead.

MR. TINGLE: Good morning. My name is Rex Tingle of the AFL-CIO, and I'll be representing that AFL-CIO today.

Mr. Turner, I have one question that has three parts to it.

On page 16035 of the OSHA proposed rule making, under the definition of "Designated person," it does not discussion specific criteria for this individual.

On page 4 and 5 of your testimony, you discuss the problems HVAC back operators have because they are not trained properly.

From your experience -- and I can ask you either all three of these at once, or one at a time, it depends on how you like to answer them.

MR. TURNER: I would prefer one at a time.

MR. TINGLE: Okay. From your experience, what percentage of building operators have you recommended to receive additional training?

MR. TURNER: If I understand the question, the question is, in my experience, in our practice, how often do we recommend building owners receive additional training?

MR. TINGLE: Correct.

MR. TURNER: In at least 50 percent of the time.

MR. TINGLE: Thank you.

Question No. 2: Should OSHA recommend a list of courses and/or experiences that a designated person should have prior to fulfilling this commitment?


MR. TINGLE: The final question: Would the cost of the training be supplemented by the proper operation of the HVAC system that this individual would receive?

MR. TURNER: Would you repeat the question?

MR. TINGLE: What I'm asking is, basically, if the 50 percent of the people that you sent off to have additional training, do the costs of that training and the proper operations of the HVAC system outweigh the costs of that training?

MR. TURNER: My expectation is that if it costs, let's say, in the range of $1,000 for expenses and a week's worth of lost wages, and that became an investment in the direct operation of your facility and your facility is, let's say, larger than 10,000 square feet, one would certainly expect the cost benefit to be there.

Our experience in general is at least 50 percent of the buildings are not operated in a manner that makes economic sense, and it's simply

understanding -- simply requiring someone to look at their building, figure out how it's operating, and operate it in the way it was designed to be, in a manner that makes sense, is likely to save lots of energy and money.

MR. TINGLE: So you're saying yes?


JUDGE VITTONE: Thank you, Mr. Tingle.

Sir, how long do you think you're going to be?


JUDGE VITTONE: All right. Let's do you before the lunch break.

State your name for the record, please, and who you represent.

MR. CHAPIEWSKI: Good afternoon. Matt Chapiewski, Metric Manufacture, Docket No. 118.

Mr. Turner, you have stated in page three, paragraph two of your testimony, you have frequently encountered specific problems of a variety of system components, directly relating to the knowledge and scheduled maintenance and operation of given HVAC systems.

Wouldn't you agree that proper knowledge of the equipment to operation and the capabilities, along with a creation of a preventive maintenance program, would solve these problems?

MR. TURNER: Would solve the problems?


MR. TURNER: No, I would not agree with that. It would reduce the likelihood of a problem.

MR. CHAPIEWSKI: Okay. You're stating that it would reduced the likelihood of air quality?

MR. TURNER: It would reduce the likelihood of a problem occurring.

MR. CHAPIEWSKI: What type of problems?

MR. TURNER: A problem having to do with maintenance and correct operation.

MR. CHAPIEWSKI: When it comes to the training and maintenance of given equipment within an HVAC system, are you suggesting that an outside source or a manufacturer's representative train people on these given equipment?

MR. TURNER: Repeat your question. I don't understand.

MR. CHAPIEWSKI: I'm stating, such as a secondary source in an IAQ maintenance program, individual group, are they better qualified, or is the manufacturer of specific given equipment better qualified to train the operation and maintenance of that given piece of equipment?

MR. TURNER: I have no reason to think one entity is better or less qualified to train, as long as the content of the material covers the topic.

MR. CHAPIEWSKI: Covers the topic?

MR. TURNER: The topic of what do we know about indoor air, how to maintain equipment, how to run it. That's not necessarily covered in manufacturer's literature today.

MR. CHAPIEWSKI: With this training, presumably solving a variety of indoor air quality issues, wouldn't you agree that the mitigation of ETS would also be addressed at the same time, through training and knowledge of equipment?

MR. TURNER: Without a rule requiring isolation and exhaust, I would not agree with that.

MR. CHAPIEWSKI: Are you familiar with various filtration purification methods available today?

MR. TURNER: I've seen most of the manufacturer's literature.

MR. CHAPIEWSKI: All right. Do you have that data, that you feel this equipment is not adequate for mitigation of ETS?

MR. TURNER: I believe if you refer to my statement, I say something like, I haven't seen a successful installation, operation, and maintenance of a system.

I would not argue that, in laboratory settings, in theory, there are systems that could, in fact, remove the gaseous, the semivolatile, and the particle phase of byproducts of combustion.

MR. CHAPIEWSKI: In regards to the gaseous and particulate stage, wouldn't you agree that the aldehydes and the particulate stage are the primary source of irritants and the primary source of complaints within a given area, office space, and/or building?

MR. TURNER: It's an interesting question.

My expertise is in ventilation engineering, and I don't propose to be fully aware of all the medical knowledge concerning irritation.

My understanding is there are many, many compounds in the byproducts of combustion, whether it be combustion of wood, combustion of cow dung, combustion of tobacco, that all produce irritating compounds, specifically when the material is allowed to smoulder in the sidestream smoke, and the list of irritating compounds probably goes on for several pages.

MR. CHAPIEWSKI: You have stated also on page 7 that you have yet to experience an affordable, properly designed, maintained air-cleaning system.

MR. TURNER: That would provide clean air back to the general ventilation system.

MR. CHAPIEWSKI: They provide clean air back, so you're talking a recirculatory system?

MR. TURNER: Correct.

MR. CHAPIEWSKI: Do you believe that there's a certain amount of fresh air that should be mandated, brought into the system, in a building?

MR. TURNER: Into any building?

MR. CHAPIEWSKI: Into any building.

MR. TURNER: I, at the moment, as a professional engineer who is required to take the health of the public in mind in designing a facility, am required to consider the professional practice that's available to me as guidance at the time I design a building.

Current guidance is Standard 6289, and I would recommend, as a minimum, the guideline in that standard.

MR. CHAPIEWSKI: Okay. The reason I'm asking this is I want to go back to the question in regards to filtration/purification methods. When it comes to recirculatory devices, isn't it possible to use some form of fresh air and reintroduce, for argument sake, 60 percent recirculatory air and purifying, filtering that through some form of charcoal media?

MR. TURNER: In the laboratory setting, it's conceivable to do that approach. In the protocol setting, the building owner has no idea when to change the charcoal; has no idea long the product will last, and if, in fact, it's really doing the job, probably can't bear the budget to place the pounds of charcoal that will be needed monthly to, in fact, keep the air clean.

Because you know as well as I do, from what your saying, that whatever you put on charcoal, comes back off. It's an adsorb/diasorb process, so when it's saturated, it starts coming back off. It's not exactly the world's most marvelous air cleaning agent.

MR. CHAPIEWSKI: Okay. In regards to filtration, you are familiar with the different filtration purification methods and their manufacturers?

MR. TURNER: I have seen much the literature, yes.

MR. CHAPIEWSKI: Have you observed, in your experience, any of these products in an actual working environment?

MR. TURNER: Successfully, no.

MR. CHAPIEWSKI: Are you familiar with the designs of air flow patterns for mitigation of ETS, creating negatives and positives within an open space?

MR. TURNER: Very much so.

MR. CHAPIEWSKI: Is it your contention that this method is also effective of mitigating ETS?

MR. TURNER: Ask me the specific question of design you're alluding to, please.

MR. CHAPIEWSKI: Specific design in regards

to -- let's use here -- was it Ice Cream and More shop; 1,000 square feet. Is that correct?

MR. TURNER: Correct.

MR. CHAPIEWSKI: The average ceiling height of approximately 8 foot.

MR. TURNER: Correct.

MR. CHAPIEWSKI: We have 8,000 cubic --

MR. TURNER: Actually, 9 feet in that installation.

MR. CHAPIEWSKI: 9,000 cubic feet of air?

MR. TURNER: Correct.

MR. CHAPIEWSKI: It equates to approximately 5 air changes an hour.

MR. TURNER: Correct.

MR. CHAPIEWSKI: With that, my question is on your testing of this room. When you walked into this building, the first entering stage of this building, was that the smoking section or the nonsmoking section?

MR. TURNER: The data was not generated by myself. Clarification: the data is generated in part of research and demonstration for the Massachusetts Tobacco Control Commission.

What is your specific question?

MR. CHAPIEWSKI: The specific question is: Was this room designed properly in regards to creating negatives and positives within a room, virtually having a neutral pressure system, but by isolating the smoking section to a negative pressure and introducing fresh air into your nonsmoking section?

MR. TURNER: I think your question was: Was isolation and exhaust a design control in this space. The answer is no. That's not what's recommended in the RJ Reynolds' document for control.

They attempted to provide 30 to 40 cfm of dilution air per occupant and attempted to provide the smokers with one area of air and the nonsmokers with another, and in the absence of isolation with a barrier or wall, as you can see, it was not successful.

MR. CHAPIEWSKI: Do you feel that by creating a negative pressure within a smoking area and a positive pressure in a nonsmoking area, is effective?

MR. TURNER: Can you give me a specific example of how you would acomplish that in a manner that someone could go build --

JUDGE VITTONE: Mr. Turner, just wait until he asks the question, then try to answer the question.

MR. TURNER: Be happy to.

JUDGE VITTONE: As best you can.

MR. CHAPIEWSKI: Would you agree that, by creating a negative pressure of approximately, we'll say, 15 percent, within a smoking area of a restaurant, Ice Cream and More, introducing the fresh air into the nonsmoking section, creating an air flow pattern, eliminating the migration of ETS via negative pressures into the nonsmoking section; would you agree that would work?

MR. TURNER: I would agree it would work if I could put the laser particle counter and the nonsmoking area and see that this does not tell me that tobacco smoke is being migrated.

MR. CHAPIEWSKI: Would you be willing to provide such a test if I could provide you with such a room?

MR. TURNER: As a paid professional engineering consultant, who loves to measure indoor air pollutants, it sounds like a challenging opportunity.

MR. CHAPIEWSKI: You have stated that you're not quite in agreement with negative pressures and positive pressures, you agree with certain aspects but not all total aspects.

I invite you to listen to our testimony on November 21st in regards to negative pressures and positive pressures and eliminating ETS as a problem.

That is it. I thank you very much. Thank you, Your Honor.

JUDGE VITTONE: Thank you, sir.

It is 12:00. Let's break for lunch. I have listened to your pleas. One hour.


(1:10 p.m.)

JUDGE VITTONE: When we broke for lunch, we were questioning Mr. Turner. During the break, I was approached by this gentleman right here.

Would you please come forward, sir, and identify yourself and your representation.

MR. WEISER: Right. My name is Forward Weiser. I'm with Environmental Dynamics Group. We do Water and Air Filtration for Industrial/Commercial applications.

JUDGE VITTONE: What's your docket number?

MR. WEISER: 192.

JUDGE VITTONE: 192. You have some questions for Mr. Turner?

MR. WEISER: Just a couple of questions in relation to filtration. You mentioned it somewhat in your written testimony.

Just a couple of questions in relation to filtration. You mentioned it somewhat in your written testimony.

Would you agree, to the extent that you can clear air, that you can reuse it?

MR. TURNER: That it's technologically possible?



MR. WEISER: What applications do you think air filtration is an appropriate method for dealing with Indoor air quality problems?

MR. TURNER: When there are no other economic or voluble solutions that can easily be implemented.

MR. WEISER: So in applications where the existing building constraints of design or outdoor air quality might limit the amount of fresh air you might bring in?

MR. TURNER: And where you can prove that it will work, as compliance.

MR. WEISER: What specific components do you think could be treated with filtration or not?

MR. TURNER: General laundry list?

MR. WEISER: Yes. Are there specifically things you don't think you can help with?

MR. TURNER: Normal design of an air-cleaning system, one has to look at what are the gaseous components; are they significant; do I need to control them; what is the particle size that I need to control, and then designing a system that would do either or both.

MR. WEISER: Okay. Do you think a successful air filtration would allow for fresh air levels of less than 20 cfm?

MR. TURNER: It depends on the setting, the circumstances, the contaminant source, the source strength.

MR. WEISER: But, I mean, if you're able to clear out the air, you could probably do that, yes.

MR. TURNER: It's an excellent question.

MR. WEISER: Okay. One thing, on page 7 of your written testimony, you state that you have yet to experience an affordable, properly designed, and maintain air cleaning system for general ventilation air that would allow recirculation of air that has been contaminated with ETS.

I guess I've got three questions that relate to that.

Briefly, what systems have you tested and worked with?

MR. TURNER: Concept?

MR. WEISER: In actual use.

MR. TURNER: Classic system is some type of heaper or electrostatic filter with a charcoal bank downstream, neither of which is maintained adequately, and neither of which was sized adequately to do the job in the first place.

MR. MEISER: Right. Do you have data on the test that you did with that?

MR. TURNER: Not data that's easily accessible.

MR. MEISER: Would you rule out the possibility of such a system existing?

MR. TURNER: Completely rule it out in a laboratory setting, no.

MR. MEISER: No, in a practical setting as well.

MR. TURNER: There are usually more cost-effective ways to approach the problem.

MR. MEISER: Right. In some areas.

MR. TURNER: Owners tend to be focused on cost.


Have you tested, or do you have experience with filtration systems that polarize airborne contaminants, and they either catch them downstream or a mean efficiency passive filters or used as a polarized media?

MR. TURNER: Such as an electrostatic type precipitator?

MR. MEISER: No. Precipitators ionized as to particles. We're talking about polarizing the contaminants.

MR. TURNER: I can't say I have direct experience with that yet.

MR. MEISER: All right. Those are my questions. Thank you.

JUDGE VITTONE: Thank you, sir.

Mr. Rupp.

MR. RUPP: Thank you, Your Honor.

Mr. Turner, my name is John Rupp. I have a series of questions for you. Let me begin, if I may, by making sure I understand your background and your expertise.

It's my understanding you have a bachelor's degree in mechanical engineering and a master's degree in engineering; is that right?

MR. TURNER: Correct.

MR. RUPP: Do you have any degrees, or have you completed any formal training in any of the health sciences?

MR. TURNER: I have not.

MR. RUPP: Would that include epidemiology, pharmacology, pharmacokinetics, toxicology, or oncology?

MR. TURNER: No, sir.

MR. RUPP: Have you done any substantial reading in any of those areas, so that you would be prepared to answer questions, derived from those disciplines?

MR. TURNER: It's not my field of expertise. I would, in general, not answer questions that are beyond my field of expertise.

MR. RUPP: Okay. Fair enough.

I take it, just to be quite clear on some of the issues involved in this proceeding, I take it you would not feel comfortable or be qualified to discuss current theories of carcinogenesis, the biological mechanisms relating to CHD, the scientific literature relating to adult pulmonary health or scientific studies relating to the causes and incidence of pulmonary or other irritation?

MR. TURNER: No, I would not.

MR. RUPP: Okay. My understanding is you've done a substantial amount of work over the years with the U.S. Environmental Protection Agency, including offering on a joint basis with EPA staff, courses relating to managing buildings to achieve indoor air quality improvements.

As a matter of fact, you referred to that work in your testimony this morning.

MR. TURNER: Correct. I was one of the authors of the building air quality guide.

MR. RUPP: Can you give us -- and just take a few seconds, if you will -- to give us a general description of the kind of work you've done with EPA over the years and the people with whom you're working at the Agency?

MR. TURNER: Sure. My first involvement with the Agency was with regard to the identification of the causes of radon problems in homes and subsequently in schools, and recommendations for corrective action to ventilation systems, in those facilities, as part of an overall comprehensive of providing a relatively less risk environment in a school with regard to radon exposure.

MR. RUPP: You also had been giving on a recurring and fairly frequent basis, I take it, a series of courses with EPA staff, on managing indoor air quality and dealing with indoor air quality problems; is that correct as well?

MR. TURNER: Yes. I am a contract teacher for the University of Tulsa and for a few other universities. MR. RUPP: Okay. Now I have come across a brochure, called Advanced Hands on Indoor Air Quality HVAC Diagnostics Training Course for Professionals, from the H.L. Turner Group, Incorporated.

Let me show you this and ask you whether this is typical of the kind of courses you've been offering on a recurring basis.

May I do that?



MR. TURNER: The answer, because I designed the brochure, thank you, that is probably the most advanced, detailed course offered in the country, and it was offered at my facility last summer and this summer.

It's way beyond the level of what one would expect to find in a general, EPA type introductory course.

MR. RUPP: I meant to congratulate you on the brochure, but I wasn't at the microphone at the time, so I'll do so now.

Is this a frequently given course with this group of people, giving it at different sites?

MR. TURNER: That specific course was given three times last summer and twice this summer, period.

MR. RUPP: Your Honor, if there is no objection, I would like to have this brochure added to the exhibits that accompany Mr. Turner's testimony, so the record will reflect what we've been talking about.

Is that okay with you, Ms. Sherman?

MS. SHERMAN: I would ask that you read the name of the course into the transcript, to make it clearer.

MR. RUPP: Yes. I think I did that, but I'll do it again. It's The Advanced Hands on Indoor Air Quality HVAC Diagnostic Training Course for Professionals. I'll provide this for --

MS. SHERMAN: Thank you. That's Exhibit

No. 35.


MR. RUPP: Thank you very much.

(The document referred to was marked for identification as Exhibit No. 35 and was received into evidence.)

MR. RUPP: You've suggested at several points in your printed statement that nonsmoker exposure to even trace amounts of ETS components is -- and I'm using your word here -- unacceptable.

Since you don't have any training or expertise in any of the health sciences, I'd be interested in knowing what you mean to signify by using the word unacceptable in that context?

MR. TURNER: Sure. I didn't use the language "trace".

MR. RUPP: Excuse me?

MR. TURNER: I did not use the language "trace."

MR. RUPP: Did not use the language "trace."

JUDGE VITTONE: Excuse me, a second. Mr. Turner, can you bring that microphone a little closer to you?

MR. TURNER: Certainly.

MR. RUPP: Let me make sure I understand.

I'm still interested in knowing the basis but let's be sure we understand what precisely it is you're testifying.

MR. TURNER: Do I understand you to mean that you're not suggesting that the air in any room, how ever minuscule the levels of ETS might be, would not be unacceptable, that you are taking dosimetric considerations into account?

MR. TURNER: One could, I suppose, use that language to describe what I'm saying.

MR. RUPP: Why don't I let you use your own language, because I certainly want the record to reflect what your views are.

MR. TURNER: By example, the data that I put on the overhead earlier, 400 percent fold an increase from baseline levels, I don't consider as a trace exposure to what's happening in the room.

MR. RUPP: All right. What about trace level? Would you regard a trace level of ETS components to be air that is unacceptable?

MR. TURNER: Unacceptable for?

MR. RUPP: Really just using your language, you didn't provide any kind of conditions or limitations in your testimony, and I'm trying to figure out whether there are any.

MR. TURNER: From a practical perspective --

MR. RUPP: From any perspective you care to offer.

MR. TURNER: -- if I'm working with a client and the nonsmokers are complaining of odors from tobacco smoke, the problem is not going to go away until I figure out how to get the exposure to less than the odor threshold.

MR. RUPP: Okay.

MR. TURNER: From a health risk perspective, there are cognitive authorities beyond I who could discuss the basis of the acceptability of the odor threshold or not.

MR. RUPP: Okay. Let's take it in stages so we are quite clear about where we are before we proceed.

When you use the word "unacceptable," you are not including health considerations because you're not qualified to express opinions on health; would that be fair?

MR. TURNER: I am qualified to read the ASHRAE guidelines and other literature that another engineer might be exposed to in my profession, who has an air quality shingle on their door and be aware of what professional guidance is at the time, but I would not put myself in a position to make a medical opinion on the topic.

MR. RUPP: Okay. So you would not look at a level of 1 PPM of substance X, or 1 plus 1 PPM of substance X, and say that on health grounds you can distinguish the between the two, because that is an area and an issue with respect to which you are qualified by training and experience to express an opinion.

Would that be fair?

MR. TURNER: If one is looking at design of a system and one has identified known materials that are known to be carcinogenic and there are guidelines that should not be exceeded for those compounds, I feel qualified to deal with am I exceeding one of those guidelines or not, that the dilution needed to prevent exceedance, the control strategy needed to present exceedance and the economic implications of the design that I feel qualified to deal with.

MR. RUPP: Okay. To the extent that you're in a situation where the buck stops here, you've got a client and he says, is this something I should do about it, and you've got to make a judgment, you look for other documents, in so far as the question release to health effects, and you would simply rely on those documents to the extent that they provide guidance?

MR. TURNER: That's part of my responsibility as a professional engineer.

MR. RUPP: All right. One of those documents would be the ASHRAE document and preamble, relating to Standard 6289?

MR. TURNER: The whole document, yes.

MR. RUPP: Including the filtration aspect of the ASHRAE standards?

MR. TURNER: There are guidance on filtration.

MR. RUPP: Right. In the preamble and associated materials relating to ASHRAE 6289, is there any extended discussion of the health effects, if any, related to environmental tobacco smoke?

MR. TURNER: My memory of the document and the discussions in current Standard 62 Committee meetings, which I am often a part of, the topic is discussed at length, at different times, and there are different opinions raised, so it's certainly an ongoing issue.

MR. RUPP: But you don't know yourself, today, whether there is any such discussion in the ASHRAE printed materials related to 6289?

MR. TURNER: I would have to review the document to accurately answer the question.

MR. RUPP: What other secondary sources do you typically look to when you're called upon to make judgments of the sort we're describing; and that is, judgments relating to the health implications, if any, of a particular substance that you may find indoors?

MR. TURNER: Professional guidance?

MR. RUPP: Correct.

MR. RUPP: In general, we take a practical approach to any client's problem; i.e., we attempt to define what the complaints are in the building, we attempt measurements to define what is or isn't happening in the building, in terms of dilution rates, in terms of air moving from where it's supposed to or not supposed to, using perhaps a laser particle counter to look at the actual impact of fine particles, whether they be from diesel exhaust or environmental tobacco smoke, and attempt to make a judgment on what we feel would be most cost-effective in providing reasonable air quality for the occupants, such that the complaints go away.

MR. RUPP: That's a fine and reasonably succinct description of the job that you do from an engineering standpoint. I am asking you, however, at this juncture, at least, a different question.

That is, to the extent that the judgments you're required to make or the advice you're called upon to give to clients involve health considerations, what documents, other than the ASHRAE document, do you look to to find that guidance that you can then pass along to your clients?

MR. TURNER: I would normally call a health professional, that I would normally work within the field and deal with those questions with a health professional and convey the answers.

MR. RUPP: All right.

You've referred to the possibility of nonsmokers smelling ETS, and that perhaps constituting a ground for regarding air in which some ETS components can be found to be unacceptable.

Did I understand that portion of your testimony correctly?

MR. TURNER: From an occupant's perspective, yes.

MR. RUPP: Is it your testimony that odor and health implications are largely coterminous phenomenon; if you can smell it it must be bad; if you can't, it isn't?

MR. TURNER: That's a fascinating field of research, as you well now.

MR. RUPP: I agree with you.

MR. TURNER: For some compounds, if you can smell it, you're dead; and for others, if you can smell it, you're just starting to have no effects whatsoever. It depends on the individual compounds.

MR. RUPP: Indeed, there are a number of compounds that you can neither see nor smell that are quite potent and toxic; isn't that correct?

MR. TURNER: That is very correct.

MR. RUPP: There are other things that are quite pungent and are not known to have any significant health effects at the levels in which they are found in the indoor environment. Is that also correct?

MR. TURNER: Qualified. My experience, in general, is that odors are easily measured compounds, are often indicators of the more difficult measured compounds that, in fact, have health effects, but we don't have any easy way of measuring them.

MR. RUPP: Sometimes it is, and sometimes it isn't?

MR. TURNER: Correct.

MR. RUPP: One's nose can be a useful thing and it can be misleading?

MR. TURNER: It can also get burnt out.

MR. RUPP: Right.

Let me go back to this notion of a trace substance and whether air, with various substances is acceptable or unacceptable, because I still don't think I quite understand what your position is on that.

Is it your position that exposure indoors to a single molecule of a substance that has been deemed by a body such as IARC, or EPA, to be a probable, possible, or suspect carcinogen, is -- and again I use the term in precisely the way you've used it -- unacceptable.

MR. TURNER: One molecule? Is the

question --

MR. RUPP: Let's start with 1 molecule.

MR. TURNER: Although risk is not my expertise from my own personal experience, we all take risks, and one molecule of plutonium, I get real excited about.

A molecule of a combustion byproduct, I don't have any reason, at this point, to think that that one molecule is going to cause me dramatic damage.

MR. RUPP: Indeed, it's pretty hard to get through any day in an American city in 1994 and escape exposure to byproducts of combustion, is it not?

MR. TURNER: In fact, the recent fine particle data in the country suggests that it may be the fine particle exposure less than 2.5 microns that's causing us all kind of health problems throughout the country.

MR. RUPP: Again, to make the question quite pointed: It is impossible in an American city today to avoid daily exposure, each and every one of us, to some amount, how ever minuscule it may be, of the byproducts of combustion, whether it's from automobile engines, from cooking operations, from heating, from cooking, from any number of activities or sources.

Is that not correct?

MR. TURNER: Short of putting a PAPR on you with a battery pack and walking around with a funny hood on, it would be impossible.

MR. RUPP: So what we're talking about here is matters of degree. How much of the material one is exposed to and whether those levels of exposure, whatever they may prove to be, through competent testing, have health implications or not? Would that be fair?

MR. TURNER: That's a fair statement.

MR. RUPP: Do you know what IARC means, by the way, when I refer to IARC?

MR. TURNER: I was running the initials by in my head. Could you explain what it is, to make sure I do?

MR. RUPP: International Agency for Research on Cancer. Would that ring a bell?

MR. TURNER: I am vaguely familiar with the term.

MR. RUPP: Okay.

Are you aware that the U.S. EPA's carcinogen classification scheme -- that under that classification scheme -- the inclusion of a substance in Group A does not take into account, nor does it tend to anything about, the potency of the substance, including the potency of the substance at levels that are encountered in any real world environment?

Are you aware of that?

MR. TURNER: I am not intimately familiar with that language.

MR. RUPP: Have you reviewed the EPA carcinogen classification guidelines in an effort to try to figure out what a Group A, or other group classification, of a substance within those guidelines might mean?

MR. TURNER: Not recently.

MR. RUPP: Have you ever reviewed them?

MR. TURNER: Quite a while ago.

MR. RUPP: But you're not able today to tell us what distinguishes a Group A substance from a Group B substance, or are you, because I'd like to pursue that, if you can.

MR. TURNER: I could not recite that criteria to you, at the moment.

MR. RUPP: Okay. Is it your position that the merest whiff of ETS is, again using your word, unacceptable, because, even at a trace level, ETS has been shown to be harmful. Is that your understanding?

Let me make this clear, because I don't want to ask you to answer a question you've already answered.

MR. TURNER: This is a health question?

MR. RUPP: Let me give you the context first, and then I'll repeat the question.

MR. TURNER: I know you are not capable of reaching your own judgments about this, so I am going to ask you what your understanding is.

Is it your understanding that the merest whiff of ETS is unacceptable because, even at a trace level, ETS has been shown to be harmful?

MR. TURNER: It's been my experience that --

MR. RUPP: I asked you what your understanding is now, and I'm asking you whether it is your understanding that it presents a health hazard even at the trace level.

MR. TURNER: The answer to that question is not clear to me, at this point.

MR. RUPP: Okay. You're just not sure. Okay.

Let me ask you a related question.

Is it your position that even at trace levels, some people, for social or psychological reasons, do not like ETS?


MR. RUPP: Okay. We've all met people like that, have we not?


MR. RUPP: And we've all met people who profess to like the smell of a good cigar or cigarette smoke, indeed. So there's a whole host of social and psychological reasons that form those views that people have? Would you agree with that?

MR. TURNER: I have met people who enjoy the volatile organic compounds that come off of cherry wood, et cetera. I have also met people that, by definition, of smelling the byproducts of tobacco, combustion, know that they're being exposed to benz (a), benzene and all the other nasty pyrrolised materials that come from partially burning any bio-mass and don't particular enjoy that exposure with regard to their health.

MR. RUPP: You used the word "nasty". Let's pursue that for just a second.

Are those substances nasty at the molecular level; that is, a single molecule of them has to be regarded, should appropriately be regarded; out of prudence must be regarded as presenting a health hazard to individuals who are exposed?

MR. TURNER: Excellent question. My general understanding of exposure to partially burned anything is that more is not better.

MR. RUPP: That's fair enough, and that's not the question that I asked. Let me ask the question that I asked one more time.

That's a dosimetry-based answer. I was taking it in two steps: The first step, of course, is at any level, how ever modest, even at the molecule level, are these substances appropriately or prudently regarded to be nasty; that is, to have direct and immediate measurable health consequences?

MR. TURNER: I am not familiar with the literature well enough to know whether the site of reaction from the exposure immediately causes DNA damage, et cetera, or what the theory is, so I cannot answer the question.

MR. RUPP: Okay. Would it be fair to say -- I think this is what you have said, but let me test it -- that people's likes or dislikes in this respect may or may not be consistent with what health scientists would advise so far as health implications are concerned.

Have we not agreed upon that point? It may agree and it may not agree?

MR. TURNER: It's a reasonable point.

MR. RUPP: Okay. Are you aware that adhesives, carpets, fabrics, dry clean clothes, furniture polish, cleaning supplies, copying machines, indeed people themselves, contribute trace or greater quantities of VOCs to the indoor environment, including benzene?

MR. TURNER: Very much so.

MR. RUPP: Are you aware that benzene has been classified by the United States Environmental Protection Agency as a Group A carcinogen?

MR. TURNER: I am aware that it is classified as a carcinogen.

MR. RUPP: Okay. If you were here this morning, you may have listened to an exchange that I had with Ms. Jenkins, who appeared before you, about Proposition 65 in California. Were you here when we were discussing Prop 65?

MR. TURNER: I was here for about five minutes, but that's about it.

MR. RUPP: Do you know what Proposition 65 is?

MR. TURNER: I know the general requirements of it but not the details of the law.

MR. RUPP: Would it remind you of something you know, if I were to say that Proposition 65 requires listing of chemicals -- and I'm using now the statutory terms -- known to the state to cause cancer?

MR. TURNER: Sounds right.

MR. RUPP: Or to be carcinogenic, in other words? Sounds right?

And do you know that the State of California has listed several score of individual chemicals and compounds, under that general statutory authority?


MR. RUPP: Would it surprise you to know that there are several hundred, if not several thousand, indoor air sources for the dozens and dozens of chemicals that have been listed under Proposition 65 is known to the State of California to cause cancer?

MR. TURNER: Wouldn't surprise me at all.

MR. RUPP: Do you endorse, generally, ASHRAE's Standard 6289?

MR. TURNER: The principal in the standards, I am happy to endorse. Some of the specific guidelines, I don't professionally agree with.

MR. RUPP: Okay.

You're aware that that standard requires minimum levels of outdoor air to be brought into buildings, are you not?


MR. RUPP: And it is that aspect of the standard you do agree with, that outside air is important to bring into buildings at some level?

MR. TURNER: Depending on the quality of the outside air, yes.

MR. RUPP: Let's break that down into two parts. If the outdoor air is quite dirty, quite contaminated, would you advise a building owner to seal up his or her building entirely and rely on 100 percent recirculated air over an extended period of time, or would you advise the builder owner or operator to attempt to clean the air entering the building, so it is at a level that it's relatively clean? Meets national ambient air quality standards, for example?


MR. RUPP: You would advise -- well, I don't think you could do both. That is --

MR. TURNER: I would advise the owner to seal off the building as tight as possible to control the unwanted infiltration --

MR. RUPP: Right.

MR. TURNER: -- to gain a positive control over the facility, and to put in sophisticated air cleaning devices on both the outdoor air and the recirculated air, as the only economical way to approach, provided adequate air quality to the facility.

MR. RUPP: That approach, of course, would permit you to bring in that contaminated outdoor air, that unacceptably contaminated outdoor air; clean it up, and then add it to the air already in the building, and deliver that reconditioned air, if you will, to occupants of the building?

MR. TURNER: And there are specific compounds that are not easy to clean up, which is why one would need to do what you just suggested.

MR. RUPP: Right.

Let's take the second half of the equation and make sure I understand whether you would or would not advise a building owner to do this.

Would you ever advise a building owner to seal up that building, so it was essentially an airtight envelope, and be content to run the building over an extended period of time, as a 100 percent recirculated air building?

MR. TURNER: What is the question? Would I advise that?

MR. RUPP: Would you be content to advise an owner?



MR. TURNER: I would not.

MR. RUPP: There are all sorts of problems in constant recirculation of the same air over an extended period, are there not?

MR. TURNER: More problems than with a blend of outdoor air to help you dilute some compounds that are hard to clean.

MR. RUPP: Indeed, one of the problems is the pollution produced by people.

MR. TURNER: We all emit bioeffluence.

MR. RUPP: Right.

One of the major ones would be carbon dioxide.

MR. RUPP: Correct.

MR. TURNER: The furnishings in buildings emit all sorts of gases and particles, do they not?

MR. TURNER: The gases I'm familiar with. I haven't seen a lot of literature on particle release from furnishings.

MR. RUPP: When you do indoor air quality monitoring, is it a rigid and systematic part of your monitoring effort, that you measure particles and attempt to create a baseline particle count for buildings that you investigate?

MR. TURNER: That is correct.

MR. RUPP: The outdoor air contains, does it not, dozens of substances that have been classified by one authoritative body or another, or purportedly authoritative body -- IARC, the U.S. EPA, the State of California -- contains substances that have been classified as carcinogens.

MR. TURNER: In many parts of the country, that's correct.

MR. RUPP: Is there any part of the country in which the air that we breathe does not contain carcinogens? Is there a location in the country that you could recommend that we could escape carcinogens in the air?

MR. TURNER: Give that there's some data to show that one cannot escape global pollution anywhere, the answer is probably no. There are locations where you would be less likely to experience elevated levels.

MR. RUPP: Greater or lesser amounts. For example, the air in Flagstaff, Arizona, may be somewhat cleaner over the air in Los Angeles.

MR. TURNER: Depending on the meteorology.

MR. RUPP: Right. But the air in both places is going to contain carcinogens, is it not?

MR. TURNER: If you've got a good enough detection limit, I assume you're going to find some.

MR. RUPP: Right. When the ASHRAE

standard -- and I take it this is one portion of the ASHRAE standard with which you would agree -- recommends quite strongly, I might add -- that, at minimum -- let's leave the level aside -- that some outdoor air be brought into every building that is served by a mechanical ventilation system. And when we add to that that that air is going to take some level of carcinogen, would you regard that air, once brought into the building, to be unacceptable, in your terms?

Again, just so I'm not hiding the ball here, I'm still trying to make sure that I understand how you're using the word "unacceptable," in this context.

MR. TURNER: Repeat the question, please.

MR. RUPP: Yes. The ASHRAE standard recommends that the owners and operators of buildings ventilate office space at 20 cfm. Let's leave aside whether you agree or disagree with 20 cfm.

You do agree that outdoor air ought to be brought in the buildings, right?

MR. TURNER: ASHRAE also suggests if it doesn't meet national air quality guidelines, that you clean it before you bring it in.

MR. RUPP: Right. And we've discussed that. If it doesn't meet national ambient air quality standards, you use filtration devices and air cleaners before it runs across the chill coils, and then that air is delivered to occupied spaces?

MR. TURNER: You have no other choice.

MR. RUPP: Right. Do you know whether the air, even as cleaned and purified, would still contain, trace amounts of materials that have been classified by one or more purportedly authoritative bodies to contain carcinogens?

MR. TURNER: Although I can't do anything to prevent that from happening at that point, you're probably correct.

MR. RUPP: Okay. I'm just going to proceed one more step, to try to clarify the record for all of our benefits.

Is that air that we've just described now moving down the air vents toward occupied spaces unacceptable, because inevitably, how ever good the technology and air cleaning and filtration, it's going to contain trace amounts of carcinogens.

Or are you using the word "acceptable" in another context?

MR. TURNER: I'd have to say I'm using "unacceptable" in a different sense.

MR. RUPP: Okay. Why don't you explain to me again, so that we can focus on the sense in which you are using the word "unacceptable", how precisely you are using that word?

MR. TURNER: From a hierarchy of control perspective, closed envelope of a building, one has to focus on what are the sources I'm trying to control, what control do I have over the generation rate, and what is the most logical means of providing acceptable air quality to the occupants to that building?

For example, with something like emission and formaldehyde, because it essentially comes out of everything we use, including the clothes you or I have been wearing, the carpets, the glues, the papers, et cetera, general dilution if probably the only acceptable control strategy for that material, because it's ubiquitous to our existence.

From a control perspective of identifiable combustion source, from an engineering perspective, it is only logical to me to capture that material where it's generated, when I can, and to prevent the exposure of the occupants to those combustion byproducts.

MR. RUPP: To make clear again, that's an engineering perspective, and you are not taking into account, as I think we've now had you testify two or three times, you're not competent to take into account what the health implications of various levels of the particular items might be.

MR. TURNER: That is correct.

MR. RUPP: Just so that's clear.

Let's go back to our old friend, or our old enemy, benzene, for a moment.

Are you aware that published reports, focusing on offices that allow discretionary smoking but meeting ASHRAE standard 6289 ventilation standard, typically find benzene levels to be below 0.002 parts per million? Benzene, that is, 500 times below the applicable PEL for benzene?

MR. TURNER: Am I familiar with that literature?

MR. RUPP: Yes.


MR. RUPP: Do you know what a PEL is?


MR. RUPP: What is that?

MR. TURNER: Permissible exposure level.

MR. RUPP: By whom is that set, or by what is that set?

MR. TURNER: I believe NIOSH.

MR. RUPP: Do you know on what basis PELs are set?

MR. TURNER: I could not site to you the criteria for developing a PEL.

MR. RUPP: All right. Do you believe that OSHA or NIOSH, if that's the agency you think is involved, should lower it's benzene standard below 0.002 PPM, for example, to 0.001 PPM, or are you not capable or don't feel comfortable making a recommendation?

MR. TURNER: Not being a health expert, I do not feel comfortable making a recommendation.

MR. RUPP: Okay. Do you have any reason to believe that benzene is more or less harmful when produced as a result of smoking or the use of a furniture polish or a copying machine?

MR. TURNER: Could you repeat the question?

MR. RUPP: Do you have any reason to believe that benzene is any more or less harmful when it's produced by furniture polish or a copying machine than when produced by smoking? Is benzene benzene?

MR. TURNER: Well I assume the real question is what are the other byproducts that are along with it from the source?

MR. RUPP: No, I'm focusing on benzene, so we can go onto other byproducts if you want.

MR. TURNER: I think benzene is benzene, I have no basis to think there's a difference.

MR. RUPP: It's a little bit like a rose is a rose is a rose; what's a chemical is a chemical is chemical.

MR. TURNER: And so what's combined with it?

MR. RUPP: Well, let's --

MR. TURNER: It depends on what --

MR. RUPP: -- talk about benzene first without combination --

MR. TURNER: -- does it had to have been a particle or is it just a gas?

MR. RUPP: Okay. But benzene, how ever produced, the source is irrelevant, is it not?

MR. TURNER: I don't have a basis for making that judgment. If it's attached to a particle that's deposited in the lungs, it may be very different and it's from a gaseous emission from furniture polish that you just put on with wax.

MR. RUPP: Is benzene an item that would attach to particles?

MR. TURNER: Certainly, I make the assumption, as in any other VOC, it could adsorb to a particle, particularly if it's from a combustion process.

MR. RUPP: Is benzene produced by cigarette smoking more or less likely to attach to particles because it's produced by cigarette smoking as opposed to furniture polish or copying machines?

MR. TURNER: I make the assumption from first principles that if it was generated in the combustion process, it's more likely to be found adsorbed to one of the particles from that process, then if it was generated from furniture polish.

MR. RUPP: Okay. There are particles in the area, whether smoking is permitted are not, are there not?

MR. TURNER: There certainly are.

MR. RUPP: Okay. Let's focus on the combustion byproducts from cooking, whether through a microwave or a restaurant kitchen operation.

MR. TURNER: Probably very different type of particles.

MR. RUPP: Do you suppose so?

MR. TURNER: It depends on whether you're frying, baking, broiling, et cetera.

MR. RUPP: Have you looked at the composition and developed a profile of particles from cooking operations?

MR. TURNER: No. I'm vaguely familiar with the literature.

MR. RUPP: Let me ask a general question. Do you attempt to keep abreast of the various OSHA or NIOSH PELs for substances found indoors? Would you be able to recite some of those to us?

MR. TURNER: Generally, no.

MR. RUPP: Are you aware of any instance in the past in which OSHA has set or attempted to set a zero exposure level for any substance, whether or not classified as a carcinogen?

MR. TURNER: I'm not familiar with that literature.

MR. RUPP: Do you know of any so-called carcinogens in ETS that are unique to ETS? That is, are produced by no other source or activity?

MR. TURNER: As I mentioned earlier, the general principle, whether you burn cow dung, tobacco, or wood, you get similar by-products. It depends on how you burn it.

MR. RUPP: Would it surprise you if I were to represent to you, and if I were to be correct, that a comprehensive look at all of the North American indoor air quality studies has shown that the levels of ETS constituents found indoors, constituents, chemical constituents that can be traced to smoking, are many orders of magnitude below applicable OSHA PELs for those substances?

MR. TURNER: It wouldn't surprise me in the least.

MR. RUPP: I note here that in its indoor air quality rule, OSHA has not proposed to seal off through the use of negative pressure or separate exhaust the cooking areas of restaurants, office cafeterias, or office snack rooms containing microwave ovens. Is that a mistake on OSHA's part?

MR. TURNER: Based on health risk, based on odor perception?

MR. RUPP: Based on...

MR. TURNER: In general for a client we would recommend any cooking operations be isolated and exhausted because people may not like smelling popcorn or some other material in their work space when it isn't supposed to be there.

MR. RUPP: In your line of work, and it's not my line of work, as you can well imagine, so I'm really just trying to understand it. If you go into a building and you have people saying, "I just don't like it." That's important to you, isn't it?

MR. TURNER: Occupant comfort and perception and productivity from my clients is extremely important.

MR. RUPP: And you have to respond to it, do you not?

MR. TURNER: That's correct.

MR. RUPP: Whether it has any health implications or not.

MR. TURNER: That is correct.

MR. RUPP: Let's move to another area.

You state that it is, and I quote, "highly uneconomical to attempt to dilute ETS or to remove it through general air cleaning." Upon what specific facts are you relying, and what data can you offer to us in support of that proposition?

I'm not going to be satisfied here by general perceptions. I want specific facts and data.

MR. TURNER: Facts have to be based on first principles. First principles is always containment and control is less expensive than general dilution to maintain an acceptable level.

MR. RUPP: That's not what I've asked you. That may be your first principle, but I'm asking you what are the datasets that you are relying upon to derive that first principle or any other principle you may care to inform us of today?

MR. TURNER: I do not have an extensive dataset to defend that first principle, nor where it's a first principle, do I need it. I can give you...

MR. RUPP: Is it conceivable that there are circumstances in which that first principle, whatever its general validity may be, would be quite invalid?

MR. TURNER: It is conceivable. Would you like an example?

MR. RUPP: Yes, I would like an example, as a matter of fact. And maybe we can draw on some others. Or some examples that...

MR. TURNER: If I'm a tenant and have absolutely no control over the HVAC and I still can't stand breathing tobacco smoke, and I can't get the landlord to do anything else, the only avenue left to me is the extremely expensive option of air cleaning.

MR. RUPP: What if we were to have a situation where we used spacial separation of one sort or another, dividers, plants, coupled with air cleaners? Completely uneconomical and unacceptable in your view?

MR. TURNER: In general, I have not seen it demonstrated to work, and several people have tried. If you give me the example, and we put the laser particle counter in there, we do a tracer gas release and it doesn't show up in the non-smokers area, wonderful. You did it.

MR. RUPP: I think we're mixing up a couple of things. If I understand your testimony correctly you have stated several times, and I think quite persuasively, I'm persuaded, that you don't have any basis for judging the health significance of items found in the air. So whether trace levels exist or not is not a health issue for you because you're not competent to judge that.

But you've also testified that perception is extremely important, and if people don't like it, they don't like it, and you're not going to go in and tell them they should start liking it, right?

MR. TURNER: It's usually not productive.

MR. RUPP: That's not why they bring you in there, is it? To give them a new...

MR. TURNER: The owner wants the problem to go away.

MR. RUPP: Let's take a full floor of a large Washington office building. Indeed, let's take my own at 1201 Pennsylvania Avenue. A very large building with very large floors. Let's assume that I'm the only person on the floor who is a smoker, and I have a private office and I work with my door closed most of the day. Is there any chance at all that people midway down that hall are going to have the slightest notion when I have a cigarette?

MR. TURNER: It's highly likely that everyone around you will know when you're smoking.

MR. RUPP: That's because you have taken surveys of people, that their noses are so sensitive that if one person in that building that we've described lights up a cigarette, everybody on the floor is going to know about it?

MR. TURNER: It's likely that your office is not going to contain the tobacco smoke, and that in fact your office will probably be running positive to the other spaces, and as soon as you light up everyone around you knows it because they're being exposed to the odors, the byproducts of tobacco combustion.

MR. RUPP: Some of the byproducts of the cigarette might be distributed to other parts of the building, is that right?


MR. RUPP: Have you undertaken any surveys... And we don't know whether that has any health significance, do we? We've established that.

MR. TURNER: You've mentioned several times that I don't have the ability, and I would agree with you, to make the judgment about trace exposures, and I'm not going to argue with you on that.

MR. RUPP: Fair enough. Now we're going to talk about odor and perceptibility from a perceptual or comfort standpoint. It's your testimony that you believe that if a single cigarette is smoked in a building of the sort I've described, that most people are going to regard that as an unacceptable odoriferous and otherwise inappropriate kind of thing to have to encounter?

MR. TURNER: Most non-smokers are not going to find it real fun.

MR. RUPP: What data -- surveys, systematically collected database, would you offer OSHA in support of that proposition?

MR. TURNER: What I believe people's perceptions are?

MR. RUPP: Correct.

MR. TURNER: My experience with clients. No vast database in terms of occupant surveys. Most of us private folks can't afford to do large occupant surveys.

MR. RUPP: Okay. I take it that people's views of their likes or dislikes can be affected by a whole variety of factors, can they not be?

MR. TURNER: Certainly most of my clients at this point do not regard exposing their occupants to a Class A carcinogen as good behavior.

MR. RUPP: But we don't know whether that's right or not do we? You and I, because we're not health scientists.

MR. TURNER: At the moment I'm willing to accept something that's rated a Class A carcinogen as something to be concerned about.

MR. RUPP: I'm now focusing on odor and I'm trying to figure out what we're talking about in this area.

If I invite you over to my house on Saturday, which I may do, and say, "Bill, I'd like you to come over because I'm going to put a steak on the barbecue and we're going to have a beer and it's going to be great." What would you say? It smells great, it would be great, love it. Most people would.

MR. TURNER: Are you talking about you or someone else?


MR. RUPP: Let's make the question harder for you. What if Judge Vittone were to extend that most generous offer to you?


MR. RUPP: You'd say, "Judge Vittone, I'd be delighted," wouldn't you?

MR. TURNER: It would be hard to refuse.

MR. RUPP: It would, indeed.

JUDGE VITTONE: I cook a great steak.

MR. RUPP: What if I said to you instead, or Judge Vittone were to say to you instead, "Bill, I'd like you to come over on Saturday because I'm going to cook up some dead animal flesh, and I'd like you to smell it with me." It would turn your stomach, wouldn't it?

MR. TURNER: I suppose. It depends on what I know about this person.


MR. RUPP: The point is this, and I'd ask you whether you agree or disagree. One's perception and classification of an odorous positive or negative is likely to be influenced by a whole range of factors, is it not? I'm going to name some in just a moment, but would you agree with that general proposition?

MR. TURNER: Including are you directly downwind of the occurrence, or...

MR. RUPP: I'm assuming that we're talking about someone here who can smell the item, and I'm asking you as a general proposition would you agree that one's perception of it, whether positive or negative, can be affected by a whole range of factors?

MR. TURNER: I'm not a psychologist, but it makes some sense to me.

MR. RUPP: It might be affected, for example, by a barrage of publicity that suggests that the particular substance has demonstrable, immediate, and rather grave health consequences, might it not be? If I thought a particular substance was going to give me lung cancer within the week...

MR. TURNER: That's pretty much my regard for plutonium.

MR. RUPP: Okay. And if I had not been subject to that kind of publicity, as I have not been with respect to barbecuing, I might have a slightly milder, or indeed, an even quite different reaction to it, isn't that also accurate?

MR. TURNER: Yes, but if you've read the literature you know eating burned meat over an open flame is not a healthy thing to do in the long run.

MR. RUPP: But how healthy or unhealthy is something you and I agree we don't know.

MR. TURNER: I'd agree with that.

MR. RUPP: Do you have any data that you could offer to OSHA for this proceeding that would confirm the level of ETS components that might be found in recirculated air in any of a variety of optional kinds of smoking restrictions and building construction situations? Have you taken a look at the question of recirculated air?

MR. TURNER: We do not normally measure and sample because it's difficult for the byproducts of tobacco combustion.

MR. RUPP: And that's because the products are quite small?

MR. TURNER: Which one would you like to measure for and how much money would you like to spend, is the issue.

MR. RUPP: It can be expensive.

MR. TURNER: I guess I see a 400-fold increase in a laser particle counter that doesn't cost me a lot to measure, is pretty much demonstrable that there's a problem here that needs to be addressed.

MR. RUPP: Let me ask this. Four hundred percent of one is four. Right?

MR. TURNER: Yes, but that's not...

MR. RUPP: Let me go on.

MR. TURNER: We seldom have air that clean, but yes.

MR. RUPP: Four hundred percent of 400 takes you up to 1600, or if I do my math wrong, it's probably 2,000, right?

MR. TURNER: How about we talk some real numbers? It's normal to have somewhere between 60,000 and 100,000 particles per cubic foot in some settings, based on my experience. When you see that number double, triple, or quadruple, what it's telling you is hey, there's another source around that maybe you ought to think about addressing.

MR. RUPP: Let's go to that chart which I have not seen before this morning. Let me see if I understand what that overhead meant.

First, can you translate those numbers into micrograms per cubic meter which is how most of the literature in this area has been reported?

MR. TURNER: That's an interesting question. With enough study, one could attempt to do that. There are no direct mathematical correlations for that, although there are some attempts at that work.

MR. RUPP: Are you aware that most of the literature, indeed I think virtually all of the scientifically published literature in this area, is in micrograms per cubic meter?

MR. TURNER: Well, there's a problem with that literature because...

MR. RUPP: I'm asking whether you're aware of that, then we'll go to the problems with it, if there are any. Are you aware that it's in micrograms per cubic meter?

MR. TURNER: I'm aware that most of the literature is based on gramometrics which when it comes to fine particles is not an acceptable measurement criteria. Fine particles don't weigh a lot.

MR. RUPP: You're aware, or are you not aware, that almost all, indeed virtually all of the literature in the area that we are now discussing, which are particle levels in the air, is expressed in terms of micrograms per cubic meter?

MR. TURNER: The health literature.

MR. RUPP: No, I'm talking about the exposure monitoring literature.

MR. TURNER: Well, if you look at clean rooms we're talking laser particle counts, and none of it's in micrograms per cubic meter.

MR. RUPP: What about the literature on the level of particle constituents found in the indoor air in real buildings spaced around the country?

MR. TURNER: It turns out there's a company called Healthy Buildings International that used to make all kinds of particle count measurements in private buildings up until a few years ago, so there was a vast private dataset available, but accessing that dataset is not easily accomplished.

MR. RUPP: I'm now talking about published literature. Are you aware that the overwhelming majority, indeed if not all of the published literature in scientific and other professional journals, is in micrograms per cubic meter?


MR. RUPP: Why is it, so that it's clear for the record, that you cannot translate the measures that you gave us this morning into micrograms per cubic meter? So that we can compare it with the literature that's out there.

MR. TURNER: Would you like a brief explanation?

MR. RUPP: Brief, yes.

MR. TURNER: One cannot convert particle counts to gramometrics without knowing the size distribution of the compound and the per unit weight of that size distribution. However, there is a equipment now available that can measure real time gramometric exposures. The cost of that equipment is, in general, prohibitive.

MR. RUPP: Do you know what micron size cutoff was used in the experiment that you discussed in your testimony this morning?

MR. TURNER: .5 to five microns.

MR. RUPP: So the upper point, that is the sensitivity was .5, is your understanding, and the upper cutoff was 5.0?

MR. TURNER: .5 to five is my understanding at this point.

MR. RUPP: I think I interrupted you so I'm not sure that the reporter got it.

MR. TURNER: .5 to five microns is my understanding at this point.

MR. RUPP: So the upper limit, that is the largest particles that would have been counted and registered on the chart that you gave us this morning, was .5 microns.

MR. TURNER: I believe that to be correct. I'm sure it could be verified.

MR. RUPP: What equipment was used in that experiment?

MR. TURNER: A climate laser particle counter.

MR. RUPP: Do you have a test or balance report available for that site?

MR. TURNER: I do not know the answer to that question. It's not my data.

MR. RUPP: And you have not seen a test or balance report for that site?

MR. TURNER: I haven't seen one, no.

MR. RUPP: I take it then you don't know what the air conditioning or filtration system in that facility looked like.

MR. TURNER: I know what the general layout of the system was. I do not know of the level of filtration that was provided.

MR. RUPP: Do you know the direction of air flow or the impetus of the air flow?

MR. TURNER: I do, it was a well mixed room. Conventional I-aspiration, ceiling diffusers, the way we design all spaces to date.

MR. RUPP: We? At H. P. Turner?

MR. TURNER: The way office buildings in general throughout this country have been designed for many years.

MR. RUPP: This is solely through the use of air diffusers?

MR. TURNER: Not solely. I mentioned earlier, I have an office that has attempted to be designed differently.

MR. RUPP: The fact is that there are all sorts of designs in buildings, are there not? Indeed, this building is not equipped with ceiling air diffusers, but uses a different system.

MR. TURNER: It's designed for high quality mixing.

MR. RUPP: So your view is that this is a site, despite the fact that you've not seen a test and balance report that involved a high degree of air diffusion within the occupied space?

MR. TURNER: The restaurant or here?

MR. RUPP: The restaurant.


MR. RUPP: Do you have a report that suggests that or have you visited the site?

MR. TURNER: I have not seen the site. I have seen the data on the diffuser placement. I have no reason to think it is not well mixed.

MR. RUPP: Would you be prepared to provide the data and information that you have seen on that site so far as air and balance, test and balance report type information for the record?

MR. TURNER: I do not have it to provide, but I can tell you who to contact to get it.

MR. RUPP: That would be fine, if you could maybe give us that for the record.

MR. TURNER: The data is being generated as part of a research study by Mr. David Bayard, a professional engineer and colleague of mine.

MR. RUPP: And the funding for that study is what?

MR. TURNER: I don't know for a fact. I believe it is the Massachusetts Tobacco Control Program.

MR. RUPP: And David Bayard is who? How might we get in touch with him?

MR. TURNER: I would be happy to give you an address for him for the record.

MR. RUPP: If you could do that after we finish.

I think you said earlier in your testimony and I let it go at the time, but I'd like to pursue it because I think it could be quite important in understanding your testimony. I think you said that you do do a fair amount of indoor air quality monitoring, is that right?

MR. TURNER: Correct.

MR. RUPP: Have you published any of those data?

MR. TURNER: Volumes full.

MR. RUPP: And those are data that look at particles, gases and vapors in the indoor environment?

MR. TURNER: Most of the data I have published is an attempt at training other people to figure out how to think about all this stuff.

MR. RUPP: I'm looking for a different kind of data. That is data that would help OSHA and all of us to get a reasonably clear notion of the particle vapor and burden of gases that might be found in the variety of environments that one encounters in non-industrial workplaces in the United States. Is that data that you generate, and have you published any such data?

MR. TURNER: I have proposed a CIAR to collect some of that data and never been funded to do it.

MR. RUPP: So you haven't done it yet, is that it?


MR. RUPP: But it's something you would like to undertake?

MR. TURNER: Measuring air pollution is always a fascinating activity.

MR. RUPP: Have you ever used personal monitors in any of the work that you've done?

MR. TURNER: I have used them.

MR. RUPP: Which personal monitors have you used?

MR. TURNER: I designed a personal monitor during my nine years at Harvard School of Public Health which was used to develop an exposure assessment for children and adults in a national six-city health study.

MR. RUPP: Which chemicals were those personal monitors capable of detecting?

MR. TURNER: At the time I was there they were primarily used to look at fine particle fraction that would be inhalable into the depths of the lung.

MR. RUPP: What cutoff?

MR. TURNER: Originally 3.5 ACGIH type criteria, and in later years, 2.5 or ten micron sharp ETA size cut criteria.

MR. RUPP: What was the energy source for that pump?

MR. TURNER: Battery power.

MR. RUPP: You have not undertaken yourself any systematic personal sampling exercises using that device?

MR. TURNER: I have not.

MR. RUPP: Are you familiar with a recent study by Light and Gay which was funded by the United States Public Health Service?

MR. TURNER: I am not.

MR. RUPP: This is an exposure study on levels of ETS constituents in recirculated air. Have you looked at that at all?

MR. TURNER: I'm not familiar with it.

MR. RUPP: You've testified a bit, and again I just want to try to clear up a few points that I think have not been left completely clear by the testimony and the other questions that have been asked, so I'll try to avoid being redundant here. Do you know how many manufacturers of air cleaning and filtration devices there are specifically designed to remove ETS components from the environment?

MR. TURNER: The exact number, no.

MR. RUPP: Would it surprise you to know there are about 40?

MR. TURNER: Advertising is very interesting.

MR. RUPP: These manufacturers include Honeywell, United Air Specialists, Cosatron. Is it your view that those products do not work outside the laboratory, or in your view they are uneconomical?

MR. TURNER: I would have to answer with in many situations they would not be economically, and I have not seen independent test data outside of the laboratory that can be verified to show that they work.

MR. RUPP: Have you made a systematic analysis of the literature to determine whether such data do or do not exist?

MR. TURNER: Not recently.

MR. RUPP: When you regard them to be uneconomical, that is a judgment you are making based on an assumption that you have about the cost of those items, both capital costs and operating costs...

MR. TURNER: And maintenance.

MR. RUPP: And maintenance costs. Contrasted with the costs or cost savings, I take it, that an employer might be able to realize were he or she to ban smoking in the indoor environment? Is that the notion...

MR. TURNER: Would you repeat the question?

MR. RUPP: Yes. I take it the cost judgment you're making here is a comparative one. That is, these are uneconomical items in your view, compared to what is the question.

MR. TURNER: The application in general would be a client wishing to use them in a smoking lounge type environment, and recirculating the air back to the airstream.

MR. RUPP: What if a client said, "Look, Mr. Turner. What I'd like to consider dong is using these much more broadly because, in fact, they are not unique to ETS, they can be of some assistance to me in a variety of applications throughout the particular facility that I have, and that taking productivity and employee comfort and morale into consideration, my view is it's a quite fine investment." Would you tell that person that you're an idiot?

MR. TURNER: I would have to understand better the person's rationale for believing that.

MR. RUPP: When you are talking about a particular air cleaning device being uneconomical, would I be far off the track if I were to say that that whole notion makes no sense at all unless we say compared to what? What are your other options?

MR. TURNER: One would have to compare baseline to other options.

MR. RUPP: For example, if I say to myself I'd like to get to New York but the plane costs $150, that's uneconomical. I'd have to take into account how much a train costs or how much time I'd lose if I walked to New York.

MR. TURNER: Let's use a more realistic example. If I...

MR. RUPP: Let me pursue this one first. For example, it may turn out that the plane was the most economical option available to me, isn't that correct? Given the other opportunities and their costs, both opportunity wise and direct capital outlays.

MR. TURNER: Of course.

MR. RUPP: Let's go back to our air filtration devices. Have you made any systematic analysis, and do you have any data to offer for the record about the productivity losses that employers may or may not incur if they prohibit the smoking of tobacco products at individual work stations requiring their employees, should they desire to have a cigarette to go out on the street to have one?

MR. TURNER: I do not.

MR. RUPP: Have you made any analysis or do you know of any literature that would give us any insights into the kind of health care problems that might be created by forcing people outside in rainy weather, in cold weather, and other kinds of inclement conditions?

MR. TURNER: Why that as opposed to a smoking room?

MR. RUPP: I'm asking you this question first.

MR. TURNER: Repeat the question, please.

MR. RUPP: Have you undertaken any studies or are you aware of any literature that would give us and OSHA any insights into the health care costs that an employer can expect to incur if he or she forces his employees outside regardless of the degree of inclementness of the weather? We'll come to a smoking lounge next.

MR. TURNER: I guess the reason I'm pausing is asking anyone to do anything unprotected in lousy weather is not a good policy...

MR. RUPP: I would think not either.

Now let's think about a smoking lounge. Let's again take a large office building such as the one I find myself in most days. And we have a smoking lounge. The OSHA rule proposes, of course, that no employee be permitted to smoke at his or her workstation, are you aware of that?

MR. TURNER: I think that's a reasonable interpretation of the law.

MR. RUPP: That's exactly what it says, isn't it?

MR. TURNER: ...in a smoking lounge...

MR. RUPP: At his or her workstation, I said.

MR. TURNER: I said if my workstation was in a smoking lounge, I don't know how that law would be interpreted.

MR. RUPP: Is it your understanding that under the OSHA proposal as it's currently written, one could undertake paid-for work in a smoking lounge?

MR. TURNER: I'm not familiar with the law. I believe not.

MR. RUPP: It won't be very productive for us to pursue that, but why don't you assume with me for purposes of the questions I now plan to ask you, that under the OSHA rule, one is not permitted to actually do work in the smoking lounge.

MR. TURNER: I'm willing to assume that.

MR. RUPP: If people are not permitted to do work in the smoking lounge, of course, you would recognize some productivity losses, would you not?

MR. TURNER: I have seen no studies to confirm that.

MR. RUPP: And indeed, in a matter of that sort having good data as opposed to relying upon unsubstantiated speculation is a very wise rule to apply, isn't it?

MR. TURNER: I'm assuming there are other costs that the employee would have to trade off concerning health care costs, etcetera, as part of their economic judgment of a productivity loss versus a penalty, etcetera.

MR. RUPP: Let's talk about the cost of smoking lounges. Is that an area in which you would claim substantial expertise?

MR. TURNER: I do not have the data with me to clarify that. I'd be happy to talk in first cost estimates, and I could actually produce data for the record of the actual cost to install smoking lounges if that was needed.

MR. RUPP: You may want to consult with the OSHA staff about that. Let me just ask a couple of limited questions since you have no data with you now and would want to do some further work before expressing definitive feelings about it.

I take it when we're talking about a smoking lounge we do have a number of recurring costs, and one of the major recurring costs is going to be the cost of the space.

MR. TURNER: A fair statement.

MR. RUPP: And given, depending on the particular location, that could be $30 a square foot, $40 a square foot in New York, $60 a square foot, or if it's in Timbuctu, it could be $8 a square foot.

MR. TURNER: Just like the cost of a restroom.

MR. RUPP: But it is a recurring costs. Most building owners don't contribute these spaces free.

MR. TURNER: It sounds right.

MR. RUPP: And the facility that one would have, the ease of one's building of a smoking lounge is going to depend very largely on the configuration of the building, the climate in which we find ourselves, whether space is available on the exterior or one is confined to the interior. Those would be factors.

MR. TURNER: Whether you own it, whether you lease it.

MR. RUPP: Exactly. What the esthetics of the building are so that whether you have any hope at all of convincing the building owner to permit you to pierce the envelope of the building to put an exhaust in it. Or whether you're going to have to go back into an already existing air duct system -- for example, the system servicing the toilets. It's a complicated matter, is it not?

MR. TURNER: It can be. It totally depends on the situation you're dealing with. It could be a very simple matter.

MR. RUPP: It could be simple, it could be quite complicated.

MR. TURNER: Those simplicities and those complications are the sorts of things one will need to take into account across the range of building stock that exists in the non-industrial workplace to try to develop a judgment, I take it, about the overall costs that one would incur on requiring several hundred million smoking lounges or several million smoking lounges to be built in this country, would you agree with that?

MR. TURNER: It could be five bucks a square foot, it could be 30 bucks a square foot.

MR. RUPP: On average?

MR. TURNER: It depends on the building. Most HVAC systems can be manipulated on a large scale for five bucks a square foot; on a small scale, small renovation may cost $30 a square foot. It depends on what you've got to do and depends on the architectural considerations.

MR. RUPP: But you haven't undertaken any study at this point of that quite complicated issue.

MR. TURNER: No. I can produce data if someone wanted it on smoking lounge construction for a particular client.

MR. RUPP: Did I understand your testimony correctly to suggest that 40 cfm per person per minute may or may not be adequate to deal with ETS?

MR. TURNER: General dilution? Is that what you're...

MR. RUPP: Forty cfm, and let's first talk about general dilution.

MR. TURNER: In my experience with particular clients, it has not worked. If you look at the ASHRAE data, the actual research from which the 60 cfm a smoker was developed, and you actually look at what the true number is, it may be closer to 100 cfm a smoker than 60 cfm a smoker.

MR. RUPP: The ASHRAE committee that was responsible for the drafting of 6289 concluded, did they not, that 60 cfm in a smoking lounge was going to be an adequate supply of fresh air to the occupants of that room and was not going to lead to appreciable discomfort nor measurable health affects?

MR. TURNER: I have no idea whether the conclusions were as you state. My experience at ASHRAE meetings is that the ultimate number that gets agreed to is part of a consensus process where everyone has had a chance to speak their piece. It may not be a scientifically based number.

MR. RUPP: When you concluded that the air at 40 cfm in the building that you described was inadequate, what constituents did you measure and what did your protocol look like?

MR. TURNER: Fine particle counts and occupant complaints.

MR. RUPP: Fine particle counts at what micron cutoff?

MR. TURNER: .5 micron.

MR. RUPP: What did you find expressed in micrograms per cubic meter?

MR. TURNER: You can't do that.

MR. RUPP: I see.

JUDGE VITTONE: Excuse me, Mr. Rupp.

MR. RUPP: Yes?

MR. TURNER: We've been going for an hour and ten minutes now.

MR. RUPP: I think I can wrap up, Your Honor, if you'll indulge me, certainly within ten minutes, and perhaps more quickly.


MR. RUPP: Thank you very much.

Again, we're back to the question of acceptability, are we not, when we are trying to interpret that statement? That is, whether it is acceptable or unacceptable depends upon our frame of reference?

MR. TURNER: This particular client had designated it as a smoke-free floor.

MR. RUPP: Okay. So he wanted not a single molecule of ETS to reach the smoke-free floor?

MR. TURNER: Depends on your interpretation of smoke-free. When all the air you get to breathe comes from the floors that have freely smoking on them, it's certainly not smoke-free air.

MR. RUPP: But whether it contains trace amounts of ETS, whether the amounts of ETS are significant from a health perspective, you and I would agree once again we just don't know.

MR. TURNER: We agree.

MR. RUPP: But your testimony is that the people on the other floor or some percentage of the people on the other floor expressed, shall we say, some degree of unhappiness with the odor?

MR. TURNER: Occasionally we get knocked over with the odor and almost always when we get home our clothes smell like tobacco smoke.

MR. RUPP: I see. Any filtration used, filtration devices used on that smoking floor?

MR. TURNER: Eighty-five percent bags.

MR. RUPP: Excuse me?

MR. TURNER: Eighty-five percent ASHRAE dust spot efficiency, high efficiency bag filters.

MR. RUPP: And which was the manufacturer of those filters? Well, there's several different manufacturers?

MR. TURNER: Eighty-five percent dust spot efficiency usually means an objective test criteria.

MR. RUPP: Yes, 85 percent is very high. I'd like to know what the manufacturer was in that building.

MR. TURNER: I do not know that information.

MR. RUPP: Were the bag filters in good condition or in poor condition?

MR. TURNER: They were in excellent condition.

MR. RUPP: And had they been recently installed?


MR. RUPP: Any kind of charcoal filtration used?

MR. TURNER: The answer is of course not because of the cost to use it.

MR. RUPP: Okay. But then you're making a judgment, are you not, about the cost and the options and the relative cost of other options that might have been available. You're putting yourself in the position of the building owner himself. I'm asking you a different question.

MR. TURNER: The cost to add a charcoal filter bed to an existing air handler that could actually work is extremely prohibitive.

MR. RUPP: Prohibitive because you wouldn't want to buy one or no building owner in the United States would ever want to put in a charcoal filter?

MR. TURNER: Most building owners would not want to bear the cost.

MR. RUPP: Have you done a survey of that?

MR. TURNER: No, I have not.

MR. RUPP: But that's your impression?

MR. TURNER: That's my opinion. That's my impression.

MR. RUPP: Okay. All right. Now, do you know of any other substance that is regulated by OSHA on the basis of a kind of sniffing test? My clothes smell, I can smell it on the floor next to it and OSHA has set a PEL based on a sniff test?

MR. TURNER: I have no reason to think OSHA has set a PEL based on a sniff test.

MR. RUPP: Okay. I think I have only one other small area to cover with you and this, I think, really is in your area of expertise so maybe you can help us a fair amount.

In the proposed rule, OSHA has estimated a training cost and described, frankly, the training that would be required along the lines of your description this morning, your recommendations this morning, if the air quality rule is put into effect. And OSHA in the preamble has suggested that the cost of training would be $6.84 per maintenance employee. That is, as I read the preamble, they assume a half an hour's worth of training, they assume an average wage cost of about $10.50, give or take a few pennies. They assume that the trainer would be paid at $7.50 an hour and they put it all together and they come up with a figure of $6.84. And my question to you is would you be willing to offer training of the sort that you described this morning if the IAQ rule is put into effect at $6.84 per affected maintenance worker? That is, per maintenance worker needing training.

MR. TURNER: Well, the numbers you present don't quite make sense.

MR. RUPP: They didn't to me either but I'm trying to get your reaction to them.

MR. TURNER: If they're accurate numbers.

MR. RUPP: Well, let's assume they're accurate. They don't make any sense, do they?

MR. TURNER: I would have to know the assumptions that went into the data before I could comment on it.

MR. RUPP: Okay. How much do you charge, if this is not proprietary, how much would you charge typically forę-- well, let's take it in two steps. Let's take a reasonable size office building and you go in and you offer the kind of training that you believe ought to be offered to people, what is the neighborhood of the charges we're talking about here? A thousand dollars I think you mentioned as one figure. Twelve hundred dollars a day? What are we talking about?

MR. TURNER: Depending on the expertise that needed to be conveyed, it is conceivable to me that one could train perhaps 40 people in a day for somewhere in the range of $800 to $1000 per day.

MR. RUPP: Okay. And the success of that training, I would take it, would depend upon whether all of the people in the training session were going to be put at the controls and had to figure their way around buildings that were quite similar in design construction and similar in the equipment that was utilized in the particular places. For example, it's hard to train people to run an apple and an orange in the same session, is it not?

MR. TURNER: Well, I made the crude assumption with the scenario I just described you would target your training to the level needed for the folks who were in attendance and for the person pushing the mop, it would include some type of training about what a volatile organic compound is and what personal protection is and for the person turning the dials on the air handler, it might include some basic understanding of what outdoor air is and how you know whether it's being delivered to the space.

MR. RUPP: Well, these people have to know a little bit, don't they? And I think you've already started the answer to this. They need to know a little bit about basic chemistry, what a volatile organic is, what a particle is.

MR. TURNER: There are many people that would be useful information to.

MR. RUPP: All right. They need to know something, would they not, about how material moves around in a building?

MR. TURNER: It's also my understanding training can be done in written or publications, not necessarily classroom time.

MR. RUPP: Is that an alternative that OSHA ought to be recommending in this rule?

MR. TURNER: My impression of the law, unless I've misread it, is that it suggests that that is a possibility.

MR. RUPP: Okay. Given the course that you offer, do you think that one would take the same or enough information away from it in writing as the hands-on approach that you appear to recommend?

MR. TURNER: Well, let's face it, for $25 you can buy the VAQ guide that if you actually sit down and read it, is a wealth of information and it's a pretty good guide.

MR. RUPP: I take it the people are also going to have to get some training on microbial contamination, what a microbe is, how it grows, the conditions they ought to be sensitive to, how they stop it, what kind ofę--

MR. TURNER: Oh, I think that's real simple. If water condenses in your building, figure out how to not have it happen because you know something will grow there if it does happen. That's pretty simple stuff.

MR. RUPP: And you probably need to know something about cooling towers?

MR. TURNER: Hopefully, they know something about cooling towers if they own one.

MR. RUPP: And they need to know something about if they look at some standing water whether what they're looking at presents any kind of problem, given the light and the humidity attached, the temperature?

MR. TURNER: Right. All of theę--

MR. RUPP: As well as light and darkness.

MR. TURNER: All the topics we're discussing are covered in ASHRAE's commissioning and O&M guidance, it's nothing new.

MR. RUPP: Why do you suppose that despite the availability of those documents there's the kind of widespread ignorance that you've testified to? It's kind of complicated for a lot of people.

MR. TURNER: I hate this answer but I think the answer is because no one's making people read it.

MR. RUPP: Right. Is another answer that there are an awful lot of people in this country who are just not very good at receiving or processing information when they're required to read it? You need to show them in the hands-on approach that you have recommended in your brochure and appear to be following as the only approach that really is going to work in the long run?

MR. TURNER: Well, that particular course is marketed to be the best course in the country to get us a niche above all the other courses that are offered and I don't think one has to be at that level of detail for all the audience there is to be trained.

MR. RUPP: But at least we're going to be able to agree that you're not going to be prepared to do a lot of work in this area for $6.84 per maintenance employee.

MR. TURNER: Well, I'm not convinced that at 25ębucks a copy and a shared copy among maintenance employees the number is that unfeasible.

MR. RUPP: I'm asking you whether you, H.L. Turner, are going to be prepared to give courses at $6.84 per employee.

MR. TURNER: One would have to look at the economics.

MR. RUPP: Well, let's make it clear it for the record that I won't do it for $6.84.

Thank you.

MR. TURNER: For the record, occasionally I teach for free. It's called pro bono.

JUDGE VITTONE: I'm sorry, this gentleman right down here. You indicatedę-- I forgot who you're with, sir?

MR. BENDA: George Benda, Chelsea Group.

All my questions have been asked.

JUDGE VITTONE: All of your questions? Thank you very much, sir.

I think that takes care of everyone.

The representative from BOMA? I'm sorry. I've forgotten your name.

MR. JOWER: Michael Jower with Building Owners and Managers Association.


MR. TURNER: Excuse me. I missed the organization.

MR. JOWER: BOMA, Building Owners and Managers Association.

MR. TURNER: Thank you.

MR. JOWER: I just have a handful of questions.

Last week, Hal Levin, who is an indoor air consultant from California, are you familiar with Hal Levin?

MR. TURNER: I know Hal Levin.

MR. JOWER: He stated that in his experience, tobacco smoke in buildings had been one of if not the major cause of complaints in the buildings with which he was familiar. Given that you've investigated over a thousand buildings, is your experience at all similar to his?

MR. TURNER: My experience is that when smoking is allowed in the building, it has usually not be successfully isolated and exhausted and is usually a source of complaint for some of the individuals.

MR. JOWER: So when you state as you have in your comments that environmental tobacco smoke exposure is not acceptable, you were speaking from a building operations perspective as well as the perspective of the occupants in those buildings in which smoking is permitted?

MR. TURNER: The perspective is from my education at this point it doesn't make sense to expose your employees to a Class A carcinogen if you can easily avoid it and building occupants who are non-smokers who end up breathing odors from the byproducts of combustion are usually not real happy campers.

MR. JOWER: I'd like to ask you a couple of questions on another area and that is in your written comments you refer to OSHA's proposal about 800 parts per million of carbon dioxide to be used as a yard stick in effect that building owners and managers should test the performance of their ventilation systems against.

Given that existing ASHRAE guidance specifies 1000 parts per million as an indicator of indoor air quality, do you advise 800 parts per million as the appropriate barometer and, if so, why?

MR. TURNER: I likeę-- personally, I like the number 800 because it gives you potentially breathing room for identifying whether you're like to have a problem, already have a problem or something is broken. So I would never say that, gee, if you go above 800 there is something wrong. I'd say, gee, if you're at 800, you ought to know what's going on.

You've got a truck parked at the air intake or you're already maxed out and can't do any better. You ought to understand what the system is doing when you're at 800 PPM.

MR. JOWER: In the buildings that you've investigated, have you found a significant difference in indoor air quality when you've measured carbon dioxide at 800 parts per million versus 1000 parts per million versus 1100 or 1200 parts per million?

MR. TURNER: Significant difference in occupant perception or what's your question?

MR. JOWER: Well, let's look at it in both respects. Occupant perception and then measurable, what you can measure in terms of recommending methods to improve the indoor air.

MR. TURNER: In general, if you do a spot check for carbon dioxide, most likely you have not reached equilibrium. So whatever number you measure you are underestimating what the number truly is because of the dynamics of an HVAC system. And we simply use measured carbon dioxide as a surrogate for ventilation rates to understand is the building performing the way it's designed, is it not performing the way it's designed, is lack of adequate dilution part of the problem along with what sources are around and, in some cases, what are the exposures to those sources.

MR. JOWER: Is it fair to say that carbon dioxide is primarily a measure of occupant comfort as opposed to health, inasmuch as, for example, the carbon dioxide measurements are typically influenced, I presume, in the work space by the occupant load in that area.

MR. TURNER: Well, I actually wouldn't use it for either a measure of health or comfort. I'd use it as a diagnostic tool for a surrogate for ventilation and delivery and focus on its use for understanding the HVAC system, not understanding the expected comfort or health of the occupants.

MR. JOWER: Is the carbon dioxide level influence by the presence and operation of equipment in the office such as laser printers, copy machines, et cetera?

MR. TURNER: In my experience to date, the only influence I have seen is byproducts of combustion of something other than a human being. You know, we're low level combustion, that's why we produce CO2.

MR. JOWER: So if we've got a work space in which you've got a higher occupant load than the space was designed and you have additionally X number of copy machines, printers and so forth that there may not have been when the space was originally built and the tenant was originally occupying that space, the carbon dioxide level, I presume, would be higher, just looking historically at the way that space and that tenant's occupancy has evolved.

MR. TURNER: Well, I would expect the CO2 to be proportional to the occupant density and have nothing to do with the laser printers, et cetera. However, if you read the literature, dry process copying produces all kinds of irritating compounds that we will eventually learn how to deal with in buildings.

MR. JOWER: Just to go back, then, to what you stated a moment ago, if you could sate it again for me, the carbon dioxide level in your estimation, whatever level you're looking at, you said you would not look at it on the basis as an indicator, that is, of health or comfort but as an indication ofę--

MR. TURNER: If we're doing carbon dioxide monitoring, it's to understand what the ventilation system does or doesn't do with regard to the occupancy of the facility.

Certainly if the numbers are at 3000 PPM, number one, you know you don't have a lot of dilution going on or you have one heck of an occupancy load compared to what the space was designed for.

If you understand the occupant density and you're at 3000 PPM and you don't have a lot of dilution going on, you know whatever other contaminants are around besides the bioeffluence of the occupants themselves also have a propensity to be higher.

It's a great surrogate for ventilation delivery if the occupant density is high enough to use carbon dioxide as an occupant generated tracer gas.

MR. JOWER: Is there literature that you rely on or is it your own experience that you advocate 800 parts per million as opposed to 1000 parts per million or any other level?

MR. TURNER: As a starting point, I mean, what I've said is 800 is a good starting point. If you're at 800, you ought tot know what your system is doing. You could say the same thing for 600, gee, if you're at 600 you know you've got people in there, you ought to know how much outdoor air you're delivering.

I suppose you could use 1000 but at that point I'm a little concerned that your dilution is getting low enough that not only do you know you've got people in there, you're starting to look at what other contaminants might be around besides people.

MR. JOWER: Very well. Thank you.

JUDGE VITTONE: Thank you, Mr. Jawer.

Ms. Sherman?

MS. SHERMAN: Mr. Hathon has some questions first.


MR. HATHON: Mr. Turner, during your testimony you described meteorological conditions, excursions that affect ventilation and specifically you mentioned some building operators will shut the outside air damper when the design cooling capacity is exceeded on very hot days.

Could you in general explainę-- or how do HVAC temperature control strategies affect dilution and removal of contaminants in a building?

Would you like me to repeat the question?

MR. TURNER: Briefly.

MR. HATHON: Okay. In general, how do HVAC temperature control strategies affect ventilation or dilution and removal of contaminants?

MR. TURNER: The simplest answer is the amount of outdoor air brought into a building that can be adequately conditioned before it's delivered to the occupant has a design limit that was designed into the building when it was built such that if one is significantly colder than that design criteria or hot and humid, and humidity is an important factor in that design criteria, the equipment may not be capable of providing the design quantity of outdoor air and one will lose control over the environment that's being produced.

Consequently, if you cut down on the outdoor air quantity to gain either thermal comfort from heating or humidity comfort in cooling, consequently you've reduced the dilution air that is available to that space.

MR. HATHON: Are there any other temperature control strategies from the automatic temperature control systems in a building that may also affect ventilation? Again, dilution and removal of contaminants.

MR. TURNER: More recently, engineers are considering designing for flow controlled outdoor air and looking at other strategies to allow you to maintain a consistent delivery of outdoor air, whether it be load shedding internally or something that allows you to maintain a certain minimum ventilation rating.

MR. HATHON: Maybe specifically I could ask you how about variable air volume systems in buildings? Would they affect ventilation strategies?

MR. TURNER: Well, variable air volume system by nature of the term and the design is designed to provide cooling when needed in a space and consequently if a space is cool enough the air flow is pinched off, so no ventilation is provided unless someone has designed a system that doesn't allow that to happen.

Historically, that was allowed to happen much more frequently than of recent years. Engineers are learning that a pinch down on a VAV system is okay but it may not be okay to put it all the way off.

MR. HATHON: On page 8, you made some mention about some displacement ventilation systems. You mentioned the system from Philip Morris.

Do you have any information from personal experience with displacement ventilation systems and regarding their cost? Incrementally how much more it may cost to design, build and operate a displacement ventilation system versus the mixing air diffusion method that is used in 100 percent of facilities today.

MR. TURNER: I have some experiential cost factors. By experience, if you were designing to provide displacement ventilation for the control of bioeffluents, i.e., there are no known quote nasties to be generated in the space other than what the people themselves generate, it's reasonable to think that in new construction you might be able with not a high occupant density and not a high equipment load, you might be able to provide displacement ventilation for 1.25 times the cost of a conventional system or, in extreme cases of low occupant density, possibly less.

The minute one is faced with high occupant densities and any kind of identifiable contaminant such as environmental tobacco smoke, machine, a lathe producing smoke or something like that, one is immediately faced with architectural considerations like the height of the ceiling.

Displacement ventilation has been shown to be rather easy to accomplish with a 15 or 20-foot ceiling. When one looks at a ceiling that's a height of eight or nine feet, it's a very difficult thing to accomplish. And when you add the architectural consideration to the need to move air, you would expect the cost to dramatically increase.

MR. HATHON: Thank you, Mr. Turner.

MS. SHERMAN: I have a couple, Mr. Turner.

I believe in your testimony you referred to a large building in New Hampshire that had to be evacuated.

MR. TURNER: Correct.

MS. SHERMAN: These were your clients?

MR. TURNER: Correct.

MS. SHERMAN: What types of complaints forced this evacuation?

MR. TURNER: In summary, nothing to do with environmental tobacco smoke.

MS. SHERMAN: How about poor indoor air quality?

MR. TURNER: Poor indoor air quality, occupant eye irritation, the laundry list of calamities that go along with a building getting in trouble.

MS. SHERMAN: With the building what?

MR. TURNER: With the occupants being dissatisfied with the indoor air quality in a building.

MS. SHERMAN: So they had a number of complaints that caused lost work time and much unhappiness?

MR. TURNER: That's an understatement.

MS. SHERMAN: And how did you end up remedying the situation?

MR. TURNER: Several options were given to the owner after the owner found out they weren't providing any outdoor air. The most cost effective solution for that particular case was to replace the whole system even though it was only four years old.

MS. SHERMAN: Did the employer have a system of records so that you were able to track down the source of the complaints, so that you could trace it to particular days or areas of the building, et cetera?

MR. TURNER: The occupant complaints were fairly well documented. The HVAC operation and maintenance were not documented at all.

MS. SHERMAN: Do you think that from your review of the OSHA proposal, if the building owner and the employer had been following the proposal they could have avoided some of the difficulties they encountered?

MR. TURNER: Most definitely.

MS. SHERMAN: Do you believe that the same training is appropriate for all building operators in terms of their ability to manage the indoor air quality of the building?

MR. TURNER: No. I believe a facilities manager needs a certain type of training, an engineer needs a different type of training. A technician needs a different type of training and a maintenance worker subsequently would need a different type of training. One needs to focus on the knowledge that's needed for that occupation.

MS. SHERMAN: Well, in addition to the knowledge that is needed for a particular career specialty such as maintenance, might not the training that was appropriate differ with the type of the building to which it had to be applied?

MR. TURNER: Yes. If you were dealing with conventional office space with no special sources, it would be a different level of training than if you were dealing with an animal facility used for raising animals for laboratory grade research or a laboratory itself with specialty use areas.

MS. SHERMAN: So wouldn't you agree that it might be a little bit difficult for OSHA to specify in tremendous detail the type or amount of training for each one of these types of buildings and specialties


MS. SHERMAN: In the restaurant slide that you showed, where was the smoking area in the restaurant in relation to the door? Do you have that information?

MR. TURNER: I do not have that information, that I know of.

MS. SHERMAN: Would you be able to provide it for the record?

MR. TURNER: I believe Mr. Baird would be able to provide it for the record.

MS. SHERMAN: I believe that you expressed your opinion, and I hope I quote you correctly, that containment is more cost effective than dilution ventilation when you're dealing with ETS.

MR. TURNER: That has been my experience to date.

MS. SHERMAN: Is this based on your personal experience designing ventilation systems or helping to fix problem buildings?

MR. TURNER: Correct.

MS. SHERMAN: I believe you also said in your testimony that most building owners did not want to bear the cost of filtration. Is this also based upon your knowledge and your experience as to what such a thing would cost in a particular building application?

MR. TURNER: We would have to clarify gaseous filtration versus particle filtration because as of last year there is a filter technology available that would allow one to do particle filtration at the 95 percent ASHRAE dust spot efficiency level without increases in fan horsepower to provide that level of filtration. That technology did not exist widespread until last year.

So one could relatively easily now without having to increase fan horsepower, if you have the room, add a one-foot deep, multi-pleat filter technology to a building to accomplish high efficiency particle filtration in that setting.

The issue with applying that information to environmental tobacco smoke is we need to deal with more than just particles and, in fact, if you capture the particles, the semi-volatile compounds that you've captured come back off again as the particle sits on the filter.

MS. SHERMAN: Okay. So that's your answer as to particles. The other thing that you wanted to address was gaseous elements, is that true?

MR. TURNER: Gaseous filtration is extremely difficult to do. The only good technologies we have at the moment are charcoal or perhaps charcoal with an oxidizer in it, neither of which last too long.

There have been attempts at room temperature which have failed. There is no magic media out there that you put in an air duct and it gaseously cleans the material. The pressure drop is prohibitive. The material is expensive. And I do not see many people doing it.

MS. SHERMAN: And this opinion of yours is based on your experience

MR. TURNER: It's based on my experience and my familiarity with the literature.

MS. SHERMAN: Thank you. I think there is one more question.

MS. KAPLAN: I believe you mentioned the displacement ventilation system developed by Philip Morris and I think you said it's designed for the standing position? Could you explain that?

MR. TURNER: My understanding of the performance arts system, it's actually an elegant system. It sort of looks like it was designed without cost being a criteria. It dramatically delivers large volumes of air in a vertical displacement manner.

It has gaseous cleaning systems and air cleaning systems and movesę-- it's something in the range of, I believe, 12 air changes per hour, like double what you would normally do in a space. And I believe it was designed for the standing position.

The issue with having a mixed standing and sitting person is if you accomplish vertical displacement, when you have a point source like a tobacco byproduct from a cigarette, that material will be released in what's called a galsing plume distribution, so as it comes off the cigarette the buoyancy from the smoke will make it rise but it will also spread to the side to some level.

So designing for a sitting and a standing position becomes a very interesting design challenge to make it work effectively.

MS. KAPLAN: Thank you.

MS. JANES: With your vast experience in ASHRAE, could you tell us what the criteria were for establishing the 80 percent occupant comfort?

MS. JANES: ...comfort and compare that to more or less 70 percent that they accept for ETS and then the 85 percent that they accept for thermal comfort based on ASHRAE Standard 55.

MR. TURNER: Factually, I cannot give you the criteria for those arbitrary numbers.

MS. JANES: We have two other questions based on your testimony. On page eight of your testimony when you are speaking about the economics of dilution ventilation with ETS you say it is also highly uneconomical to attempt t dilute ETS. Do you have any data that would help us quantify that?

MR. TURNER: I have no factual data other than knowing that 40 cfm a person still isn't enough with a minimal level of smoking based on buildings I've been in in terms of odor, and 40 is double 20.

It's expensive to deliver 40 cfm per person, particularly if you were to look in a southern climate where you have to air condition and treat all that air.

MS. JANES: The last question is, on page ten of your testimony under the compliance program implementation, it has been our experience that the vast majority of indoor air quality problems are often caused of contributed to by a lack of knowledge and understanding on the part of the HVAC system, etcetera.

Do you have any data about quantifying the vast majority of indoor air quality problems in your experience?

What percentage are caused due to the lack of knowledge or understanding on the part of the HVAC system building and operators?

MR. TURNER: I have never sat down and looked at all of the buildings we've looked at and tabulated the contribution to that. Based on a gut feeling, it's an awful lot of buildings. It's the majority.

MS. JANES: It's the majority of buildings?

MR. TURNER: It's the majority of buildings. It may not be that the operator didn't understand the equipment.

It may be that the owner didn't understand how the equipment interacted with the building itself and the interzonal behavior within the building, not just the equipment.

MS. SHERMAN: No further questions, Your Honor.

JUDGE VITTONE: Thank you very much.

Just to make sure we have it all. Mr. Turner's testimony is Exhibit No. 34 plus his one slide, and that's been received into the record.

Mr. Rupp, you're going to provide a copy of 35? Okay. No. 35 is Mr. Turner's pamphlet. We have that for the record.

Thank you very much, sir. You may step down.

We're going to take a very short recess. Ten minutes.

JUDGE VITTONE: On the record.

Our next witness is Dr. S. Katherine Hammond.

Dr. Hammond, would you take the witness chair, please?




JUDGE VITTONE: Dr. Hammond, would you state your full name for the record, please, and the organization that you represent, please?

DR. HAMMOND: My name is Sally Katharine Hammond, and I'm here at the request of OSHA. I currently work at the University of Massachusetts Medical Center. I head the Environmental Health Sciences Division in the Department of Family and Community Medicine.

In terms of background, I have a bachelor's degree in chemistry from Oberlin College, master's degree in environmental health sciences from Harvard University, and a PhD in chemistry from Brandeis University.

I'm an industrial hygienist, certified by the American Board of Industrial Hygiene, and I've spent the last 14 years conducting research for exposure assessment, predominantly for epidemiologic studies.

Most of my research has been in the occupational setting, and studying workers' exposures to air contaminants such as diesel exhaust, oil mist, machining fluids among auto workers, styrene exposure among boat builders, just as a part of the range of that.

I got into environmental tobacco...

JUDGE VITTONE: Excuse me a second. Let me just ask you a few questions here and then I'll let you I go.

You've previously submitted a statement, I guess around August 14th for the record?


JUDGE VITTONE: And that will be marked as Exhibit No. 36.

(The document referred to was marked for identification as Exhibit No. 36 and received into evidence.)

JUDGE VITTONE: You're going to be using some slides today?

DR. HAMMOND: Yes, I am.

JUDGE VITTONE: And you'll be able to provide copies of those slides for the record?

DR. HAMMOND: I have provided them to the Court Reporter.

JUDGE VITTONE: Thank you very much.

DR. HAMMOND: All right, Dr. Hammond. If you're prepared, would you please go ahead with your Direct testimony.

DR. HAMMOND: Thank you.

DR. HAMMOND: Basically, my experience is in exposure assessment, predominantly in occupational settings although in the field of environmental tobacco smoke I've conducted them also in the home settings and a few other settings.

What I want to talk about today is the exposure assessment with regards to environmental tobacco smoke. As a prelude to that, I think it's important to point out that exposure assessment is a complicated field. It's not even as simple as just concentration times time, but I'm not going to go into the details of that unless the questioning takes us there.

Let me explain a little bit about how exposure assessment interfaces with epidemiology. Epidemiology is the study of large numbers of people where you try to see if a group of people who are exposed to some chemical have a higher rate of disease than another group of people who are not exposed to that chemical.

That's kind of a broad definition. And in doing that, you want to understand who is exposed and who isn't exposed. Sometimes that's easy. Sometimes people study people who work in dry cleaning plants to look at dry cleaning solvents, and compare them to people who work in chocolate-making factories.

But some of the people in each of those locations might have different exposures than what you're guessing. We call that, in fact, misclassification of exposure, and I want to take a minute just to show you what can happen if one does not correctly attribute exposure -- the consequences of that in an epidemiologic study.

I don't know how well this is showing up. This is a slide, this is made-up data for illustrative purposes...

JUDGE VITTONE: Dr. Hammond, as you go through the slides, could you identify them as Slide No. 1, Slide No. 2, as best you can.

DR. HAMMOND: Thank you very much.

This is Slide 2A. In Slide 2A we have on the left hand side a group of 40 stick figure who are supposed to be people who are exposed to a material.

These represent out of some population, say 100,000, we're just saying, for example, say 40 of them get disease.

This is some unknown chemical right now. This being compared, the disease rate, to another 100,000 who are not exposed to a chemical. In this example we're saying those ten people, the ten people out of that 100,000 do get disease.

So we would, in a very simple way, say that the increased risk here is four-fold. It's 40 divided by 10. A very simple way to look at that. That's what I've tried to show in the upper right hand corner.

Now let's imagine that we're trying to figure out people's exposure. They don't carry tags around very easily. I think you've already heard a lot of that in the testimony in the last few days.

We actually are wrong for ten percent of the people, and ten percent of the people who are truly exposed, we say are not exposed. And ten percent of the people who were truly not exposed, we say are exposed. So that means ten percent of the 40 exposed people who got disease, we call in our study unexposed; and so ten percent would be four; and ten percent of the ten on the right who were not exposed, which is one, we define as exposed.

What happens is we find, you see the one white character who moves over to the left into the exposed category.

This is Slide 2B. Unfortunately, the white and black are reversed on the copies that you have. I apologize for that. But we have now appearing, and it's very hard to see because they're dark, but there are four black stick figures on the right in the not exposed category, which means that we now have 37 people in the exposed category with disease, and 13 in the non-exposed category, and now the ratio of disease among exposed to not exposed is 37 to 13, which is 2.8. Whereas we know from the previous slide the real truth underlying this is 4.0.

The point here is that if you randomly misclassify exposure, you will reduce any odds ratio that may exist. This is a generalization that's true in general in epidemiology.

Random misclassification of exposure will always lead to decreasing the apparent effect. I think this is important to remember within the context of all the limitations that are brought up in all the different ways in which people are assigned to exposed or not exposed categories.

To the degree it's not perfect, an exposure assessment is not perfect. We can't get computers to just run it at this point. It takes a lot of skill. The degree to which it's not done well will reduce the apparent effect. So that's the major conclusion there.

The next slide, which is 2C is an example of the same principle applied to a 2x2 table. I'm going to skip that in the interest of time today because it would take awhile to step through, but it's just for those who know epidemiology as a way that one can look at that and see the same principle applied.

Let's now turn to how to assess exposure to environmental tobacco smoke on Slide 3. There are may methods that have been used.

Earlier, the first things that were done were looking simply at spousal smoking status. Does your spouse smoke or not, and comparing the rates of disease in non-smokers married to smokers compared to non-smokers married to non-smokers.

Increased rates of disease were found, but clearly there are high levels of misclassification within that particular category. So that would tend to decrease the true effect.

Questionnaires may be used, and there are a wide range of questionnaires which have been used. Some of them very, very poor, some of them extremely good. So it isn't as if questionnaires are good or bad, they're variable and you have to look at the quality of those questionnaires.

In fact I have participated, a student who worked with me did research on trying to develop a questionnaire for environmental tobacco smoke which we actually validated and found with sufficient detailed information we got excellent correlation between a detailed questionnaire and a one week personal sample of exposure to environmental tobacco smoke. And the correlation coefficient was around .9.

Biologic markers have also been used, and you heard Dr. Benowitz speaking about cotinine. I've done some research with hemoglobin adducts, but I'm not going to talk about that today, and DNA adducts have been used.

Finally, environmental measures can be used. Environmental measures mean just measuring the environment.

All of these techniques have advantages and disadvantages, and when they're used together and carefully in conjunction, they can all become stronger.

So cotinine or any biologic marker integrates all the exposure, so you know the exposures from all the different sources. Therefore, you know what that person truly was exposed to.

On the other hand, environmental measures you can attribute which environment produced that or understand the changes.

Similarly, I guess what I left out of here is modeling, and my apologies to the modelers here. Models can be very useful. Without having to build ten buildings, try different scenarios to try to predict ahead of time what's likely to be the best way to achieve something.

So in Slide 4 I'm pointed out again, as many of you know, that environmental tobacco smoke is a complex mixture with over 4,000 compounds in the gaseous, vapor, and particular phases, over 40 of which are known or suspected carcinogens.

That makes it very difficult to determine how are we going to measure exposure to environmental tobacco smoke.

As I said, my original entree into this field was not because I wanted to measure environmental tobacco smoke for its own sake or because I thought there were health affects related to it.

It was simply because I was trying to measure diesel exhaust exposure among railroad workers. All of a sudden we kind of scratched or head and said, do you think it's possible that the tobacco smoke might be interfering? And being a chemist, I worry a lot about interferences in my analyses.

Oh no, that's too trivial. But we though we'd better figure it out and measure it. So I had to develop a method because there wasn't a straight forward one.

So first I'll be telling you about doing that, but as you can see with this list of compounds -- I didn't list them, but you can see the list different places -- it's not simple.

It's not one thing. Benzene, we know how to measure that. Charcoal tube, gas chromatography, simple. But what are we going to do about environmental tobacco smoke?

So in a situation like that, one thing that's often done is to use a marker to measure exposure. Slide 5 lays out, this is particularly useful for complex mixtures. Especially when the active agent is not known.

If we knew what the bad guy was or the suspected bad guy, we could go after him, but we don't know in tobacco smoke. As far as I know, we don't know in active smoking to this date -- for those who might admit that active smoking might cause lung cancer, which is most of the people in this country and most of the scientists, we still do not know which chemical.

But even if we knew the chemical, it might be that it's present at such trace levels that we couldn't ordinarily measure it. Because it's not measurable doesn't mean it's not a problem. You can't say, so sometimes a marker is used just so we have something that's easier to measure in a particular case.

An example that's been used very successfully of a marker to examine health effects is simply looking at the number of cigarettes smoked and comparing that with the rate of lung cancer.

Most of us know that the more cigarettes people smoke the higher the rate of lung cancer. As you can see, this increases. But in fact this is not the chemical that's causing lung cancer, this is number of cigarettes smoked. We're assuming that that's a marker for the bad guy. In other words someone who smokes 20 cigarettes gets twice as much of that bad guy, whatever it is, than someone who smokes only ten. That's the basic idea of a marker.

So the attributes that we would look for in a good marker are listed in Slide 7. They include that it should be specific or selective to the source, proportional to the agent of interest, similar emission rates for different brands of cigarettes. It should be a major component of the emissions.

It ideally should be easy to collect in the field, a laboratory method that requires a room full of equipment is not very useful if you're going into a little tavern. It would especially be nice if we can do personal sampling with it, and it would be nice to have good methods to analyze for an to do this inexpensively so we can do it in large numbers of samples.

Several possible markers have been suggested for environmental tobacco smoke, and a few of these are listed in Slide 8. These include carbon monoxide and particulate matter which have been discussed earlier. One of the problems that has been mentioned is there are other sources of these materials. It doesn't mean they're useless, but one has to bear that in mind.

There are tobacco-specific nitrosomines, as you can see on the right, and those might be very nice but they're very, very expensive to measure and the concentrations are low.

3-Ethenylpyridine has been mentioned an suggested by both the tobacco industry and those who have worked with them, and nicotine has been widely used.

Right here I have shown some data from Dr. Eatough's paper, looking at the chamber studies that he conducted.

This is Slide 9. Smoking different numbers of cigarettes in the chamber and looking at the concentrations of particles, nicotine, and 3-ethenylpyridine. As you will notice, the bottom line, which on the graph is green, is


In other words, there was not more of that present as more cigarettes were smoked, and I have seen that in some of the field data as well, so that I don't have a lot of confidence that this is a good tracer. It doesn't increase with the tobacco smoke exposures.

Nicotine is the compound which I have selected to work with mostly. In Slide 10 I've laid out some of the advantages that nicotine has. For one, environmental tobacco smoke is the only source in most environments of nicotine.

Nicotine is also a major constituent of environmental tobacco smoke. We have methods, some of which I have developed, to measure the concentrations of nicotine, and these methods are at this point, fairly simply to use, inexpensive, and very sensitive.

We can detect exposures of less than a tenth of a microgram per cubic meter. We can even go much lower than that if need be.

To just quickly review some of the methods that have been available or have been developed for nicotine sampling, on Slide 11 I've listed active and passive collection.

Active collection is when a pump, a portable battery operated sampling pump pulls air through a filter, or pulls it through the sampling medium, I should say, and collects some large piece of air, and the contaminants on that, on the sampling medium, and then it's taken back to the laboratory.

What I have worked on and developed and used extensively is a filter that's treated with a weak acid. Nicotine itself is a weak base, so they form a salt and it stabilizes the material so you can take it back to the laboratory for analysis.

Absorbents such as XAD resin or tenax have been used, and also annular denuders that are coated with weak acid, and I will save you having to describe what an annual denuder is.

Then we have passive collection which can be done, this relies on the molecules just diffusing on their own to the collection medium, and we've had a lot of discussion about how materials diffuse through the air. But if we were to open a bottle of perfume, eventually it would drift through the room. It's the same principle of diffusing molecules.

So this is passive collection. We have developed passive collection based on the same filter treated with a weak acid. Others have developed passive monitors using XAD as the absorbent.

This probably doesn't show up too well in the dark, but on Slide 12 we have a picture of, an exploded picture of the active sampler. On the left is the inlet to a standard industrial hygiene sampling cassette, 37 millimeters in diameter.

It's about an inch and a half to two inches. Then after that we have a filter which can collect particles for some analysis, or it could be treated, depending on what one wants to do. Behind that is a stainless steel screen that supports it. Eventually, among these things we have a treated filter, that that's what's analyzed for the nicotine.

At the end, the bottom of the cassette. This is all folded together in a little package that's about an inch and a half in diameter and about an inch high.

Then in Slide 13 we have a picture of the passive monitor. This is actually something that we constructed from the same type of standard industrial hygiene sampling cassettes that we modified in various ways in the lab so that it would work.

This, again, weighs half an ounce. We have people clip them to their collars. We've now had hundreds and thousands of people wearing these and they work very well in the field for doing that.

These samplers were tested very carefully and validated in an environmental chamber at Yale University, where the temperature and humidity are carefully controlled. Slide 14 gives you some of the details of that chamber.

The smoke was generated not by machines but rather by people sitting in the chamber smoking cigarettes. It's a very well mixed environment, and the experiments generally ran for five hours -- one hour smoking to get steady state, and then four hours of sampling as a standard. Although for the passive monitors they went for different periods of time.

This is just a picture of some of the sampling equipment on Slide 15.

On the right you see, and it's very hard to see because the slide is dark and there are a lot of lights, are several sampling pumps with tygon tubing leading to the small cassettes, and then across the clothes line running to the left of the picture are some of the passive dosimeters that we were sampling to determine the efficiencies and to validate them.

These methods have also been validated by doing an inter-comparison sampling with Brigham Young University, Harvard University, and RJ Reynolds, as well as our methods. That's been published in the peer review literature.

So one of the first things that I was concerned about as I naively entered this field, and we're now talking over ten years ago, about 12 years ago, was I thought will all these different high and low nicotine cigarettes, what's going to happen on the environmental tobacco smoke from that?

We ran experiments. We ran ten different brands of American cigarettes, an unfiltered cigarette and nine filtered cigarettes, with a wide range of reported nicotine in mainstream smoke, the nicotine that's given on the package.

It's over a ten-fold range, from a tenth to 1.3 milligrams per cigarette, and we found that in the last column on Slide 16, you can see the concentration of nicotine that was generated in the chamber by the standard smoking of these cigarettes.

Given the very wide range of nicotine reported in the cigarette, it's a very small range of nicotine in the air. This was, at first, a surprise to me again, because I was very naive and I thought this is a different tobacco or they removed the nicotine.

I certainly never thought about their adding nicotine. But in any event, it turns out that a my very simplistic understanding of this as it's been explained to me, is the major way they reduce the nicotine is they put little perforations around the filter, and room air is drawn in to dilute the smoke so that the mainstream concentration goes down, but what comes off the end of the cigarette doesn't change all that much.

And certainly there are experts here who know far more about that than I if that's an important point.

Similarly, we were interested in whether low tar cigarettes would have less particle matter given off, so we measured the respirable particulate matter concentration for the same, these are the same cigarettes, these A, B, Cs refer to the same cigarettes.

Once again, there's really a very small range, even in the actual particle concentrations that are developed. The tar ranged from one to 23 milligrams per cigarette -- 23-fold range, and yet there's less than a two-fold range in the respirable particle concentrations.

At the time we first did this, we were interested in what the ratio of respirable particles to nicotine in the chamber would be, or in general. So this is, again, looking at that ratio.

This is all of the samples, the same concentration. So looking at the same concentration, looking at these different brands, and once again, although there is some range, it's relatively small, less than a 50 percent change, given the wide range in the tar and the nicotine in the cigarettes. So we felt that this, this is Slide 18, that this would tell us we had a fairly useful marker.

Since the issue has come up about respirable particles and nicotine and that ratio and whether or not that's reliable, and this was raised with Dr. Benowitz, I want to take a little bit of diversion in my talk to explain this point a little more carefully.

Respirable particulate matter has many sources, one of which is environmental tobacco smoke, but it's not the only one.

I've listed a few of these on Slide 19. We've also got smoke from wood burning stoves and fireplaces, other combustion processes, pollen, dirt, and you can go on and on of the different sources.

Lead dust, whatever. So there are lots of sources of respirable particulate matter. In my little simple scheme right now, we will say respirable particles are a total of all of those.

The total amount of all the respirable particles we collect in the filter is equal to those that come from cigarette smoke and those that come from everything else, which I'm calling RSP other. That's the formula I've got in the box on Slide 19. I think that's the concept I want you to keep in mind. We've got tobacco smoke and everything else.

I have yet to be able to train the molecules in the air to line up on the filters, tobacco smoke over here, pollen over there, they all mix together. We can't tell one from the other. So we weigh everything.

We're going to weigh or determine RSP total. The question then is how much of this is from environmental tobacco smoke and how much from other materials? This is the critical part of this equation.

Continuing on Slide 11, I've reproduced that same equation at the top. And said...

MS. SHERMAN: I believe you mean Slide 20.

DR. HAMMOND: Thank you. Yes, Slide 20.

The respirable total concentration, as I said, is due to that from tobacco smoke and then from other sources.

This other sources, the general background, when there's no smoking present, is generally between 10 and 40 and so quite often in the neighborhood of 20 micrograms per cubic meter.

It's a general standard number out there. We'll just talk as if it's 20 now. We could go through the whole talk and cycle again with any other supposition, but it won't change the general point.

As long as the tobacco smoke contribution is much larger than that background, you can use the total number as a good surrogate for the particles from tobacco smoke. If there's lots of tobacco smoke and a little bit of other, then the total is pretty close to the true tobacco smoke number.

You run into problems when you start getting the tobacco smoke becoming low compared to that. Then respirable total is not a good marker for the respirable from environmental tobacco smoke.

So on Slide 21 I've laid out one possible scenario. If you look on the left hand column, i've just given a whole range from 100 down to .1 micrograms per cubic meter is assumed nicotine concentrations.

And just for a moment, make the assumption with me that there's a ten-fold, because that's a nice easy number to multiply by, except in some of my classes I have students who don't know how to do that, concentrations of respirable from tobacco smoke. So if the concentration of nicotine were 100, we would assume that the respirable from ETS is 1,000.

I've just multiplied that whole column through then by ten, as that's what we would assume if this were true.

Then if the background was always 20, if the other was 20, then the total amount would be 20 more. So the third column simply adds 20. So we go from 1000 to 1020. But on the last line, we go from one microgram per cubic meter of cigarette smoke to 21.

The last column looks at the ratio of the total amount of particles to nicotine. That's the third column to the first column.

We notice at high concentrations of environmental tobacco smoke, sure enough, we have about ten as the ratio, but as we get to lower and lower concentrations of respirable particles from environmental tobacco smoke, that ratio gets larger and larger.

Not because the ratio between nicotine and tobacco smoke is changing, but rather because what's happening is we're adding 20, a fixed number, to a number that's getting smaller and closer to that number.

On the next slide, Slide 20, I have plotted this, and the top line on the graph which is the green line on the chart...

MS. SHERMAN: Excuse me, let the record show that is Slide 22.

DR. HAMMOND: Slide 22, great.

We can see the green line on the chart. You can see that this line, as we get to lower an lower nicotine... Let me explain.

On the Y axis we are plotting that ratio of respirable particles to nicotine as a function of nicotine which is the X axis. Here I've only gone out to 15 for this plot.

As you can see, as long as you're even out at 15 micrograms per cubic meter of nicotine, the ratio seems pretty steady as you come down. But as you get to low concentrations you can see that it starts to diverge more and more -- the red line would be the true ratio of ten in this assumption. So when you get to below one and below two, it just explodes, it goes off the wall.

Some people have used a chart like this green line, the top line on this graph, to say that there is not a constant ratio of repairable particles to nicotine, and that it's highly dependent upon the nicotine concentration.

Well, it's really due to this artifact of where you are starting to use the total particles and calling that the same as ETS particles. And when no longer are the ETS particles much greater than background, you start having serious troubles and it starts to explode. That's what Dr. Benowitz was referring to yesterday.

A much more appropriate way to handle the data and when you want to look at the relationship between respirable particles and nicotine, it's to plot respirable particles as a function of nicotine and that's what I've done on slide 23 and the red line would correspond to a plot if the true ratio is 10 and the background is 20 micrograms per cubic meter.

And you can then determine the ratio from the slope of that line and from the intercept of the line you can see what the background is. The intercept is the background, in this case 20 because that was the assumption.

And then the second line, the bottom line that's plotted, the green line on the slide, is what would be the ratio of actual ETS particles. And then it would go through zero, okay?

But it certainly would make sense, if you look at this chart and you look at the top line, if your nicotine goes down to zero, there's no smoking present, you still have 20 micrograms per cubic meter, how many of you remember your high school algebra for what happens to 20 over zero? That's infinite.

And that's basically what is happening if you try to plot that kind of ratio. But what we do here is by plotting the respirable particles against the nicotine, one can get all the data that you need for this.

I've taken some data from the literature and slide 24, this is the real world literature rather than theoretical now. And the first study I report is one that I did with Dr. Leaderer at Yale University in which we looked at 96 homes in New York State and for one week, we had the one week average nicotine concentration and the one week average respirable particle concentration, this is the total, we plotted that line and the slope that we found was 11.

Then I took data that I collected with Dr. Schenker among the railroad workers, looking at the office workers who don't have diesel exhaust exposure but do have tobacco smoke exposure.

Again plotted that line and found that the slope was nine. They had different intercepts because there were different background particle concentrations but the intercept was the important part of that.

I also went to the literature and looked up a couple of papers by Dr. Meisner and colleagues where they looked at 14 offices, bars and restaurants and foundę-- and this one, in fact, was the example cited in the questioning of Dr. Benowitz where people said that the ratio of particles to nicotine was all over the place. Well, yes, for the reasons that we just gave.

However, if you correctly plot it and look at the slope, the slope was nine. Very similar to these other values that have been found.

And I also looked at some data from Muramautsu, and this is really reading it from the graph but the best that I could do with that in plotting that slope also the slope was 10.

So in some real world situations, some very different ones, we're saying that if you do the proper evaluation of the data we see very similar slopes.

So hopefully that puts that to rest for now.

Now, let me turn to some actual measurements I've made in the workplace. As I said, the original sampling methods that I developed were to evaluate the exposures of railroad workers.

We were hopefully mostly looking at the diesel exhaust but we wanted to evaluate the environmental tobacco smoke exposure as well. So what I've presented here is a cumulative probability plot, a cumulative percent plot, this is slide 25, of 34 railroad office workers. These were all non-smokers. These are personal samples for one full shift, active sampling.

Now, let me explain for a minute how this plot works because it may not be familiar to many of you. What I've plotted in this particular case is every data point so you actually have all the data. And if you, for instance, wanted to know what the median value is, that's the 50 percentile, you would start on the Y axis at 50 and move across until you get to the line that's been plotted and then move straight down to get the value. In this case, that would be a little over five. So the median value for nicotine is approximately 5 micrograms per cubic meter.

But the nice thing about this chart is rather than just reporting one summary piece of data about the data, you get the whole distribution of the data here.

If you are more interested in knowing the 80 percentile, you can find that. You go up to the 80 number and you go across and you come down and you find that to be around 10, approximately.

So what we're saying is you can choose whatever you want to look at and there's a lot of different ways to look at this data and it's there for you to look at and choose from.

So the way we interpret, for instance, the 90 percentile line which is approximately 13ę-- no, I'm sorry, I take that back, it's around 12. We would interpret that by saying that 90 percent of the workers are exposed to less than 12 and 10 percent of the workers are exposed to more than 12 micrograms per cubic meter, all right?

This is also very widespread, you'll notice, in the data, which is not unusual. This is actually quite typical of exposures in general.

So that study, by the way, which was personal sampling, was done in 1984 and 1985. I had done some earlier work but this is the first I thought was the best to report.

The second major set of studies I did were in two office buildings. These were both in 1987 and both companies were going to go non-smoking and they wanted to know what the effects were of doing that.

So we took some samples before, about two weeks before the policy went into effect, and two weeksę-- I guess they were two weeks apart so a week and a half before and then a week and a half after.

In this case, what we did was we placed the passive samplers at a variety of workstations and we were very careful to find out if the person there was a smoker or not a smoker and we left them there for the full work week. Really, it was from Monday morning until Friday late afternoon.

They were there for the whole 24 hours although we really assume that they were exposed, because these were both professional office buildings, for mostly 45 hours. So this is the cumulative probability plot of this data.

And, as you can see, the exposures, the 50 percentile, the cumulative percentage for there was a little over one, if you were to read this across. That's slide 26.

In slide 27, I have plotted some cumulative probability data for flight attendants. This was measured in 1988. These were personal samples, active samples that they wore while they went about their tasks for about four or five hours. In the interests of time, I will leave that unless you wanted to go into more detail.

Next I would like to talk about a major study which we are completing now and beginning to report the results of. This is a study that is unique in that it's trying to combine health promotion with what we call health protection.

It's called the Well Work Study and we're trying to improve people's diets, encourage smoking cessation at the same time as trying to reduce occupational hazards to a variety of carcinogens.

One piece of that study, and it was a small piece, was to measure environmental tobacco smoke exposures and that's what I'll be reporting here.

For this study, we recruited 24 work sites in central and eastern Massachusetts into the study and that's what I'll be reporting on. Actually, a twenty-fifth work site asked us to sample environmental tobacco smoke so we did that and since we followed the same protocol, it's included in this data.

Since the workers had to have some occupational exposure to a carcinogen not counting environmental tobacco smoke, that had some effect on the population we were looking at. Obviously we would not sample a work site that was entirely offices. So this is just to give you an idea of what were some of the non-office type spaces.

But we also sampled the offices in these companies but they had to have a non-office part of the company.

So there were newspapers, they were firefighters, clothing imprinters, textile dying and variety of manufacturers which I've listed here in slide 28 from as exotic to semiconductor equipment to as mundane as tools and dies and valves and metal parts. Actually, I think they were all fun. So just to give you a range of what kinds of locations we looked at.

Basically, we tried to putę-- the goal was to put 25 passive samplers into each workplace with a significant numberę-- five to 10 in the offices and five to 10 in the more industrial areas or the non-office type spaces which I'm going to call the shop spaces. And this is the cumulative probability plot of some of that data. This is slide 29.

And I've actually separated the data into three categories depending on the smoking policy in place because as one part of this study, we collected information on the smoking policy.

So what you see is the bottom line, which is kind of greenish on this slide, is for those work sites, the reportable samples for those work sites where smoking was allowed except where it was a fire hazard, and we actually did have samples from areas that were fire hazards as well.

The middle line, which is red on the graph, is the cumulative percent for those workplaces where smoking is restricted, and the top line represents samples where smoking was banned totally.

Now, the first thing you can see, especially if you get used to reading these charts, is that where smoking is allowed we have a shift very much to the right which is to say that the concentrations are higher.

In other words, if we look again at the median, the 50 percentile, and go across we can see that the median is a little over two micrograms per cubic meter. If we were to go the 90 percent line, that may come down roughly around 10, okay?

But if we were to look at where smoking's been restricted, instead of having a median of two, we have a median of a little under one. And where it's been banned entirely, the median is almost zero. In other words, most of the samples but not all, okay?

And you can see that the maximum value that was found where smoking was banned was only a little over one microgram per cubic meter.

So actually this slide gives us a lot of information, not only about the distributions of exposures but the distributions based on the smoking policy.

By the way, there were 11 work sites that allowed smoking. I think there were eight that restricted it and six that banned it entirely. I may have those last two categories mixed up.

And then if we turn to the office workers, and trying to keep the same scale, you noticed the maximum on this scale is 15 micrograms per cubic meter, if I keep that same scale so that it looks about the same, on slide 30 you can see the distribution for the office workers at these same companies and the same idea of categorizing, the same categories applied here.

And you will notice, again, that there is a very large difference amongst the three different categories in the ETS exposures that can be observed. And, for instance, the median now where smoking is allowed is approximately eight whereas the median where it's restricted, following the 50 percentile line, is about one and where it's banned, again, it's less than a half.

And if you want to look at the full data, you can see that we have hardlyę-- even though we've gone out to 15, we haven't even gotten to three-quarters of the data, so just to show you the full data set, I've got slide 31 which goes out to 50.

In fact, there were a handful of samples beyond that but this was most of the data on these work sites.

So let's now look at theę-- this is a plot on slide 32 trying to look at what the effect of the smoking policies were on the environmental tobacco smoke exposures. I think that this is relevant because this relates to is itę-- will restricting or banning smoking in the workplace have any effect on non-smokers' exposure in the workplace.

I tried to color code the slide with red for the top two levels, yellow for the middle two levels and green for the bottom two levels.

For the black and white copy for the record, these correspond to the highest levels of the two patterns on the right and the two lowest of the two patterns on the left.

I guess if you first look at non-office areas, an I apologize for the typo, we see that where smoking is allowed, where the policy is one, smoking allowed, that there are hardly any of the green part of the bar. Hardly any of the very low levels and quite a bit of the high levels. We've got maybe 20 percent of the samples at that high level.

Where smoking is restricted, we start seeing some of these lower levels. The first level of low is less than one and the very low is less than one-tenth of a microgram per cubic meter.

And if we finally go to where smoking is banned, you will notice that almost all the samples were less than one microgram per cubic meter. A very dramatic difference as we move across there.

It's even more dramatic when one looks at the open office areas. By open office I meanę-- we've all been in those spaces but a large room which may or may not have divider partitions but they do not go to the ceiling.

If they went to the ceiling, floor to ceiling, then it's closed office. But if they don't go to the ceiling, more typically like five feet high or there are no partitions at all, those are all grouped together.

We noticed that where smoking is allowed, over half of the samples are aboveę-- in what I call the high range, above 6.8 micrograms per cubic meter. And relatively few, about 10 percent, are less than one microgram per cubic meter. And none are in the lowest category.

And similarly as we move to more restriction or banning, then the exposures drop very dramatically.

By the way, I should be very clear, all these samples that I'm talking about now were samples that were placed at non-smokers' desks or workstations, all right?

We also collected smokers' desks and workstations. This is not that data. So this is the data that tells us what non-smokers would be exposed to.

And finally, even in the closed offices, a non-smoker's closed office, we found high levels. A closed office might have one or two occupants.

Now, let's look at a few other environments to see how to compare the workplace environment to the home environment, which is where most of the epidemiologic studies are based.

The first slide, slide 33, is looking at 20 homes in North Carolina which were sampled in 1988. These were also sampled with passive monitors that went for one full week and this is the 24-hour average of those samples. And they actually were sampled for at least three full weeks and some of them for six full weeks and I've reported the average, so each dot is a house and it's averaged over the several weeks.

We also took active samples for two evenings each of those weeks and the distribution was very similar to this.

During those same weeks, we alsoę-- of these 20 homes, let me back up, 13 of these were smokers' homes and seven were non-smokers' homes. Obviously, most of the non-smokers were at the lower end of this.

So really your top 12 points are in smokers' homes and then there's one smoker's home below where a non-smoker is. And I apologize for not having separated those with colors or something.

In slide 34, what I show are the distributions of exposures for the 22 children who lived in those homes and they wore this passive monitor for one week during the same week that we were monitoring the home.

And if you could put the two next to each other and you looked at them in some detail, you would see that actually distributions of exposures are very similar. So that the personal exposure of these children is not very different from the home exposure.

So that's 1988 in North Carolina.

We also hereę-- and I apologize for the quality of this slideę-- have a slide of the cumulative distribution of 96 homes done in New York State and this was done in 1986, so this is 1986 data, 96 homes, and this is slide 35.

The triangles, the bottom line, represents the 47 homes where we think smoking happened because they're greater than zero nicotine levels. And all the data is plotted with the circles and half of it is non-detectable.

So this was actually one of the other pieces of data we can look at. So we can look at what's within the smoking homes, what's the 50 percentile that we see there?

And once again, if you follow that over, it's around one microgram per cubic meter.

By the way, when we plotted the respirable particles to the vapor phase nicotine in that one-week study, we found excellent correlation, given that these also had other sources such as wood burning stoves and kerosene heaters and fire places. It was astounding that without even accounting for that the R was around 6.8, I think.

Okay. So let's now turn to slide 36 where I try to summarize several studies, looking at home exposures. I have put an asterisk here on the studies that I participated in and was in charge of the exposure assessment for nicotine.

The first study was the one reported by Leaderer and Hammond where the average was 2.2 and the range was .1 to 9. Now, you can see there's much less data here than the cumulative probability but this just tells usę-- this was reported in 1991 but it was 1986 exposures.

The next line is from Dr. Eatough's work. It's only four homes. Actually, the next two sets are actually taken from Dr. Guerin's book so I really don'tę-- I didn't go back to the original papers but just wanted to get some data. For these homes, we had an average of 5.5 with a very wide range.

The next data by Proctor et al. looked at 23 British women and 12 of these worked outside of the home and 11 worked inside the home and they did have a very different exposure. I don't know how that translates to the United States.

The next series are 25 homes in Minnesota with smoking where we had an average 5.8 and a range of .1 to 29.

And finally, of the 13 smoking homes that I mentioned in North Carolina, an average 1.5 and a range of .3 to 4.3.

Trying to quickly compare these results, let's look at a similar table in slide 37 of ETS exposures in offices. And, again, I'm basically just taking the data from the ETS book published by Dr. Guerin as well as some of my own data.

Several of these areę-- GM means geometric mean and the geometric mean is very similar to the media. And it will by the nature of how it's calculated it will always be less than the arithmetic means.

In many ways, it's a very good measure of central tendency but it's important when we're mixing data, which I am forced to since I don't have all the data, to be aware of the fact that the geometric mean will always be less than the arithmetic mean. Or conversely, the arithmetic mean will always be higher than the geometric mean.

So looking at the data of Crouse and Carson, the 32 samples, the geometric mean was 3.8 in offices, which is to say the arithmetic mean would be higher.

Carson and Erickson, 28 samples had a geometric mean of 7.2.

Oldaker and colleagues had 146 samples, had a geometric mean of 4.8.

These numbers really are not so out of line. They're to my mind very similar, actually amazingly so.

The healthy buildings sample of 194, samples was 3.5. That's an arithmetic mean.

Turner and Binnie, 33 samples, 7.2.

And the data that I reported to you earlier, 61 samples had an average of 12.

As you can see, the range of exposures is quite large. I won't step you through this step by step but doing the same kind of thing with the data from the tables, and I just took the samples where there were more than 10 measurements in restaurants, looking at that distribution of exposures, once again, you can see that most of the samples run between three and eight, although some of these are geometric means once again, again with very wide ranges.

So putting all of this data togetherę--

MS. SHERMAN: Excuse me, Dr. Hammond. That was slide 38, I believe.

DR. HAMMOND: Yes, I'm sorry. Thank you.

Slide 38.

Putting all this data together in slide 39, these are the same plots that I've just described to you, the same studies in that same order. I have tried to give you a sense of what are these averages, how do they compare.

Is it true that the home exposure is 10 times higher, as some people say, than the occupational exposure. And restaurants are important because people work in restaurants.

And in fact we have 112 homes represented, 504 office samples and 369 restaurant samples shown on this slide.

I have contributed some of the data to this slide. Quite a bit of it's been contributed by researchers who either work for the tobacco industry or are funded by them, so whatever biases, they should all be kind of thrown in there.

The amazing thing to me is how they are not all that different. The Ns up here tell you how many samples are in each of the studies so that for instance the first bar has 47 homes, the second bar has four homes. And, as you can see, the average in general for these samples in the homes was running roughlyę-- a couple of them were around two and three of them were around four and five.

When we turn to the offices and the restaurants, we have geometric means reported, which means the true arithmetic mean is higher. The bar should be higher and taller to be totally comparable than what's shown there.

And, again, the numbers are given. We've stepped through these before. And all I can say is that I was not struck by these being hugely different exposure concentrations.

Each of these bars, I understand very well, represents a very wide range of exposures. I think that's one of the most important things to be aware of in tobacco smoke.

They are very wide ranges and I think we've all experienced that in our lives. You know, whether it's going toę-- you've been in office buildings that can be very smokey and others that are totally smoke-free. I mean, there's just a whole range.

But given all of that, and most of this data in the offices, for instance, did not really say whether this wasę-- what kind of policy was in place, only my data, the tall bar, the yellow bar on offices, the one to the right, the 61 samples, is clearly where it's allowed.

So in other words, I think that's where you need to start. What happens if you have no restrictions on smoking? What are the exposures that are out there?

So I think that basically takes care of that slide unless there are questions later.

Now let's turn to just kind of looking at some of the distributions and some of the personal sampling that I have done that has gone for a full week.

This is looking at 100 adults which we sampled for one full week and the distributions of exposures of those married to smokers and those not married to smokers.

And if you look to the right on slide 40, there's a description of what kind of plots we're looking at. These are called bar charts and they are very useful because, again, a lot of information, not as much as the cumulative percent but a lot of information is packed into these.

And what you have is the full range. The line from the top to the bottom is the range of the exposures. And inside the broader area, the box, we go from the 25 percentile to the 75 percentile.

That means half the data falls in that area. And then the middle, the median, of the data is indicated by a straight line. So we can still see from the top of the box to the line is where 25 percent of the data falls.

DR. HAMMOND: Clearly, those married to smokers have higher exposures than those not married to smokers. In general. But if you look at the top quarter on the left of those not married to smokers, there's a very long line there. And in fact that 25 percent of people not married to smokers have higher percentages than the lowest 25 percent of those married to smokers.

So it's an overlapping distribution of exposures. Clearly, the average of one is higher than the other. So one distribution is higher than the other. However, some of the low group can actually have higher exposures than some of the high group. The reason this is important is recall my comments earlier about misclassification of exposure.

First of all, relatively few non-smokers are not exposed, but they're also not all exposed to tremendously less than those married. Relatively few non-smokers are ever not exposed at all.

It is true that those married to smokers have higher exposure, but some of those married to non-smokers have high exposures as well.

All of this will contribute to a misclassification of exposure in the epidemiologic studies. A random misclassification which then will lead to a suppression of any effect that might truly be there. It will decrease the apparent odds ratio from the rue ratio, risk for disease.

So this is the comparison that was made for most of the studies. Married to a smoker versus not married to a smoker. You can see here what we're looking at.

In this slide what I'm trying to show is the distribution of exposures for the personal samples, this is Slide 41. The personal samples collected on children versus those collected, the area samples collected in their home during the same week. Very similar distributions, although the personal samples on the child were somewhat higher, and it's a little bit broader distribution of exposures.

Finally, what I've tried to do in Slide 42 is to pull a lot of this data together in another way to look at it. The first two bars we've seen already as the 100 personal samples of married to smoker, or not married to smoker.

The next two bars are the child personal and the child's home samples. Then I've added the data from, the next two bars represent the data from our well work study in Massachusetts, the 25 work sites. So we have the shop samples and the open office samples.

Finally, everything up until that point is on e week average nicotine. This last bar is flight attendants, samples that are personal samples during a four to five hour period during flights. This is before smoking was banned.

Again, what can we see about this? Recall that the range of exposures for those married to smokers can be said to be, that's the second bar from the left. That range of exposures has already been shown by various epidemiologic studies to increase the risk of heart disease and lung cancer, as well as many other diseases. That we can just start out and say we know that's a dangerous area.

The question is, are we seeing anything like that in other settings? Low and behold, in fact the workplace samples go all off the scale.

You'll notice where the number 31 and the 48 are. In fact, if those whole thing were to scale, we'd have to go up to probably the clock to get there in the room, or if we were looking at the record, you'd have to go maybe another foot off the page. It's much, much higher.

It just doesn't... All the detail gets lost if we try to put it all together. So we're actually seeing that these workplace exposures not only are comparable, but in many cases much higher than the home exposures where the health risks have been seen.

That's one way we can look at the data. We can compare what are the exposures in the work place to areas where adverse health affects have been observed in the home among those married to smokers.

Another favorite of...

JUDGE VITTONE: Dr. Hammond, you've been going for a little more than one hour. How much longer will you be?

DR. HAMMOND: Ten minutes.


DR. HAMMOND: Another favorite way that people try to look at this data are to look at what are called cigarette equivalents, so I'd like to take a few minutes to talk about cigarette equivalents. On Slide 43, I'm trying to show...

This is important to understand the kinds of smoke there are. Mainstream smoke is the smoke that a smoker draws directly into his lungs through the cigarette. A second kind of smoke that we're interested in is exhaled mainstream smoke. So as he exhales the smoke -- exhaled mainstream smoke. These are one of our volunteer smokers in the chamber, and we validated the samplers.

A third type of smoke is sidestream smoke. That's what's emitted from the tip of the cigarette as it smolders in the ash tray. It doesn't show up very well, but you've all seen the little smoke coming off the tip of the cigarette.

Environmental tobacco smoke is composed predominantly of sidestream smoke plus some exhaled mainstream smoke. However, these two are somewhat different. They have the same chemicals, but in different proportions. That's partly due to the fact that they're formed under different conditions.

In Slide 46 I've listed some of these. For one thing, we know that the temperature at which mainstream smoke is hotter than that in which sidestream smoke is formed.

That's apparent if you look at the cigarette. when a smoker smokes, it turns bright red. When it smolders in the ash tray, it's gray. You can imagine which is hotter, if you think of an electric stove.

The air is mush depleted in oxygen as she sat there and smolders, but when the smoker inhales on it, oxygen is pulled to it, so it's not so depleted.

The result of these different conditions are that there are different ratios for different compounds in sidestream to mainstream. So, for instance, in Slide 47, 1.5 times as much particle matter is given off in sidestream as in mainstream, and twice as much nicotine in sidestream as mainstream.

That's not to say the passive smoking exposure is twice as much because when it goes off, it goes off into the room and is diluted, but there's twice as much that actually goes in that direction.

If we go to ammonia, there's 60 times as much in sidestream as mainstream, and if we look at

n-nitrosodimethylamine which is a very potent animal carcinogen and suspected human carcinogen, there's 100 times as much in sidestream as mainstream. There's 31 times as much as 4-aminobiphenyl which is a known human carcinogen. It's on the short list. Everybody agrees this is a carcinogen.

So clearly, we're looking at all of this, it's not as straightforward as it might appear. I'm going to step you through a little bit of this, but I won't go through all the math details.

First of all, let's define, as I have on Slide 48, cigarette equivalents as saying it's the ratio of the amount that you'd get from the passive smoking in any particular exposure, whatever you want to call it, compared to how much you get from smoking one cigarette.

That's what we would call cigarette equivalent. So if you get as much of something, let's say you get ten units of 345 trimethyl chicken wire for passive smoking exposure, and you would have gotten 20 if you smoked a cigarette, then you have one-half of a cigarette equivalent. That's a cigarette equivalent.

I'm going to save you, you can be very grateful. I'm going to slide quickly through Slides 49 and 50, they are in my written submission. About how to get through the math of this, because this would take us awhile to step through it.

But it's all there and I've published it. It's been out in a chapter of a book for quite some time now, and I can submit that for the record as well.

Let's just turn to a particular scenario. Again, you'll take my word for it and you can also check the math later. For looking at nicotine and 4-aminobiphenyl cigarette equivalents, let's assume an eight hour exposure to ten micrograms per cubic meter of nicotine.

I'd just assume that during that eight hours someone breathes 3.5 cubic meters of air. In essence, without my going through the math, you'll notice on Slide 51 that the nicotine cigarette equivalent are .024. That means you get a much nicotine as if you had smoked two percent of one cigarette. Pretty trivial.

Whereas if you look at 4-aminobiphenyl, the known proven human carcinogen that everyone knows is a carcinogen, nobody debates it. We get as much of that as if you smoked half of a cigarette. Quite a different story. It's really a very, very different story, depending on which chemical you look at.

What I have done in Slide 52 is to take a few different possible scenarios and a few different compounds and tried to calculate out the number of cigarette equivalents for each of these.

If we take, for instance, the 90th percentile of exposure. that means 10 percent of the workers were exposed to this level or more in their work.

Let's say we just looked at, for instance, the non-office workers. That, in my data that was 7.l2 micrograms per cubic meter of nicotine. If we work out the cigarette equivalents for that, that's .05 -- five percent of one cigarette in one work day.

That means we get as much nicotine as if you smoked five percent of one cigarette. But if we go to 4-Aminobiphenyl, we get as much nicotine as if you smoked two thirds of a cigarette. And if we move to n-nitrosodimethylamine, in that same day in that same work setting, you're getting as much of that carcinogen as if you smoked over two cigarettes.

So cigarette equivalents are not simple. Not only that, if we were to even go to the office exposures, the upper ten percentile there, in other words, ten percent of the people we sample were exposed to this level or more.

Nicotine cigarette equivalents would still tell us we have less than one cigarette, less than a half, less than a quarter of one cigarette in this, in the higher exposure. Whereas you get as much of this one carcinogen NNDMA, as if you smoked over half a pack of cigarettes.

Now I probably don't need to let you guess what chemical the tobacco industry uses in their cigarette equivalents. In the add in the May issue of the New York times it was nicotine, and they told us that the average American worker get 1.5 or 1.25 cigarette equivalents a month at work, but if we had used that same data, they did admit in terribly fine print that that was nicotine equivalents.

Had we done it by 4-aminobiphenyl, it would have been 17 cigarettes. And had we done it by

n-nitrosodimethylamine it would have been 75 cigarettes, which is to say three cigarettes a day.

So in conclusion in terms of the cigarette equivalents, the use of the term cigarette equivalents is highly misleading because of the wide range of these different chemicals. And if you use cigarette equivalents based on nicotine, it's not relevant to evaluate the health risks associated with exposure to environmental tobacco smoke.

If we use cigarette equivalents based on the carcinogens, and actually I've only listed two of these and there are many more, and I don't even have the data for most of these and I don't even know what the bad guy is, but we can certainly see it's possible to get a significant dose of some carcinogens.

Whether they're the important ones or not, I don't know. We don't know. But certainly you can get a serious amount.

MS. SHERMAN: Let the record show that that is Slide 53.


Slide 54, I just want to reiterate that in various settings we find that environmental tobacco smoke is highly variable. It's variable over time, it's variable over space, it's variable from day to day. There's over 100-fold range of exposures in various locations, so therefore, to sit there and worry about a two percent here or there difference is irrelevant.

Workplace exposure have been seen to be comparable to or greater than home exposures. Offices and restaurants often have especially high levels of exposures; and shop workers, these are non-office workers, I would like to point out may be exposed to other hazardous materials in the workplace, and these may act synergistically with environmental tobacco smoke.

We already know that active smoking is synergistic with materials such as radon and asbestos, so that the risk for lung cancer is not additive from those two exposures, but multiplicative. We don't know, but it was reasonable to suspect that could be true for environmental tobacco smoke.

Given that risk, in Slide 55, given that risk assessments performed on epidemiologic data indicate that the levels of environmental tobacco smoke that are found in the workplace are hazardous to workers' health. I've not gone through those for this testimony, but it's in my written testimony.

And workplace exposures to environmental tobacco smoke are comparable, as I said, to home exposures which have been shown to increase the risk of disease in non-smokers.

Finally, on Slide 56, basically I want to reiterate that environmental tobacco smoke has been shown to be associated with higher risks of lung cancer and heart disease among non-smokers married to smokers; that nicotine is a good marker of exposure; and that environmental tobacco smoke in the workplace poses a hazard to non-smokers, and this is an easily preventible hazard.

It's not the kind of problem that OSHA has to struggle with say lead and battery plants where it's extremely difficult to control the exposure. The engineers have told us how to control the exposure, and I think that's something we need to do something about.

Thank you very much.

JUDGE VITTONE: Thank you, Doctor.

Who has questions?

MS. SHERMAN: Excuse me, Your Honor, are the slides in the record?

JUDGE VITTONE: Yes, she's given copies to the Reporter, and we've already identified her exhibit as Number 35 plus the slides.

MS. SHERMAN: Thirty-five or 36?

JUDGE VITTONE: Thirty-six.

Mr. Furr, you have questions. Who else has questions? Mr. Lowe. Anybody else?

Mr. Furr, give me an estimate of...

MR. FURR: Fifteen or 20 minutes at the most.

JUDGE VITTONE: We're going to stay and finish her up. Let's take a five minute recess.

JUDGE VITTONE: On the record.

Dr. Hammond?

Mr. Furr? Are you ready, sir?

MR. FURR: Good afternoon, Dr. Hammond. My name is Jeff Furr. I'm a lawyer from North Carolina. Today I'm representing RJ Reynolds and a number of other parties.

First, a point of clarification. Did I understand you to say in your testimony that the passive monitor that you've developed has been or is being worn by hundreds of thousands of study subjects?

DR. HAMMOND: Hundreds or thousands.

MR. FURR: Thank you. That's what I thought you said.

Let's go to the point that you led off with, and that is the random misclassification of exposure. You've suggested that random misclassification of exposure always results in a spurious increase in the observed risk...

DR. HAMMOND: No, a decrease.

MR. FURR: I'm sorry, a decrease in the observed risk compared to the actual risk, is that correct?

DR. HAMMOND: Correct. A decrease.

MR. FURR: Isn't random misclassification of exposure a form of non-differential bias?


MR. FURR: It is not. Why not?

DR. HAMMOND: It's not bias. It's random misclassification.

MR. FURR: Is it your testimony that random misclassification is not described by statisticians as a non-differential bias?

DR. HAMMOND: Oh, let's not worry about the terminology, let's just follow through with what your point is. I'm not sure about your point.

MR. FURR: Let's answer my question and then we'll see where it goes.

DR. HAMMOND: I'm not a statistician. Whenever I use statistics I have to pull out my books and look at the words, because they have their own vocabulary. So I use the statistics, but I have to check it all out. I think maybe it is that, but I'm not sure.

MR. FURR: Are you familiar with the new literature, the new work in the statistical literature that suggests that the conventional wisdom with respect to the direction of bias introduced by random misclassification of exposure or non-differential bias is, in fact, opposite to that which we've always believed?

DR. HAMMOND: No. I'd appreciate getting those references.

MR. FURR: Have you reviewed any of the comments submitted to the OSHA docket in this proceeding?

DR. HAMMOND: I've glanced through them.

MR. FURR: Have you reviewed the comments of

Dr. Neil Ross?


MR. FURR: I believe if you'll review those comments you'll find references...

DR. HAMMOND: The name again please?

MR. FURR: Neil Roth, R-O-T-H.

DR. HAMMOND: Thank you.

His comments have been published literature?

MR. FURR: They do.

DR. HAMMOND: Let's talk about 3-ethenylpyridine. In your testimony you suggested that 3-ethenylpyridine is an inappropriate marker of environmental tobacco smoke exposure, is that correct?

DR. HAMMOND: I remain to be convinced that it is appropriate. I am more agnostic, but I have my doubts about it.

MR. FURR: You'd agree that three, can I call it 3-P?

DR. HAMMOND: I would love it if you would.

MR. FURR: Great. So would I!

You would agree that 3-P is specific for ETS, wouldn't you?

DR. HAMMOND: I don't really know that.

MR. FURR: Do you know the source of 3-P?

DR. HAMMOND: It's supposed to be a combustion product of nicotine. But I don't really know if anything else could accidentally be combusted to that, as well. I just don't know.

MR. FURR: You would also agree, wouldn't you, that the actual concentration of 3R, and indoor environments is about one-half the concentration of vapor-phased nicotine wouldn't you?

DR. HAMMOND: No, I don't know that.

MR. FURR: You don't know?

DR. HAMMOND: I've seen data that's much less than that.

MR. FURR: Have you reviewed the comments submitted to this docket by the Oakridge National Laboratories with respect to this issue?

DR. HAMMOND: As I said previously, I have just glanced at the comments. I have not had the time to thoroughly review them, but I have glanced at them and I have seen in the published literature values that are well under half.

MR. FURR: But did you review the comments of Oakridge on this issue?


MR. FURR: Thank you.

DR. HAMMOND: I didn't understand that I was supposed to do that before this hearing. Was that my responsibility?

MR. FURR: I suppose that all depends on how thorough an assessment of the data you intended to present today. That's your question, not mine.

JUDGE VITTONE: Dr. Hammond, just answer his questions. Don't ask him questions, please.

MR. FURR: Dr. Hammond, isn't it true that 3-EP exhibits first order decay kinetics?

MS. SHERMAN: Excuse me, could you talk a little bit louder? We're having a little trouble over here.

MR. FURR: Sure.

Isn't it true that 3-EP exhibits first order decay kinetics?

DR. HAMMOND: I have not studied 3-EP.

MR. FURR: So you don't know?

DR. HAMMOND: I wouldn't want to report on that aspect of 3-EP because that's not been part of my studies. That has been reported in the literature.

MR. FURR: That has been reported in the literature.


MR. FURR: Nicotine doesn't exhibit first order decay kinetics, does it?

DR. HAMMOND: That has also been reported in the literature.

MR. FURR: Let's talk about the criticisms that you've presented in Exhibit No. 36 with respect to the use of 3-EP as a marker for ETS exposure.

First, you contend that the production of 3-EP does not appear to be linear with the number of cigarettes burned, is that correct?

DR. HAMMOND: That wasn't what I said. Do you want me to say what I said, or...

MR. FURR: Let me try to rephrase it and you tell me if I've got it right this time.

Don't you state that the concentration of 3-EP does not increase as the number of cigarettes smoked increases?

DR. HAMMOND: Correct.

MR. FURR: And this is one of those fundamental criteria that you demand out of a marker for exposure.

DR. HAMMOND: Correct.

MR. FURR: For that belief, you rely upon a 1989 paper by Eatough and coworkers as evidence that the concentrations of 3-EP don't increase with the number of cigarettes smoked, correct?

DR. HAMMOND: Correct.

MR. FURR: How many cigarettes were burned in that study?

DR. HAMMOND: One, two, three and four in different...

MR. FURR: A maximum of four.


MR. FURR: Have you ever talked to Dr. Eatough about his interpretation of that data?

DR. HAMMOND: I've presented this to him in person and he has never responded. He said he was going to get back to me, but he never did.

MR. FURR: So I guess that means that you have not talked to Dr. Eatough...

DR. HAMMOND: Well, I don't know if you count that. I did speak to him about it. He did not give me a response.

MR. FURR: Do you know his views on this topic?

DR. HAMMOND: No, I don't.

MR. FURR: I thought I heard you say during your testimony, that you also had noted that this same phenomena had been observed in field data, is that correct?


MR. FURR: What field data are you referencing?

DR. HAMMOND: This was some of the data that I was flipping through in the, from the either Oakridge or RJR research, as I was flipping through it. I have not been able to fully synthesize it at this point.

MR. FURR: So you're not sure what field data you're referring to for support for that.

DR. HAMMOND: As I said, it's in some of the testimony that was submitted, and I think it was either RJR or Oakridge, and I'd have to look at it in more detail to be sure.

MR. FURR: I take it that if in fact you were shown data that demonstrates that the concentration of 3-EP increases with the number of cigarettes smoked, then this would at least eliminate part of your concerns over the use of 3-EP as a marker.

DR. HAMMOND: Yes. I just have reservations about it, that's all.

MR. FURR: What do those reservations stem from?

DR. HAMMOND: The first one is simply it doesn't seem to be a good marker. If it doesn't seem to increase with the more cigarettes smoked. If you're using a marker to represent environmental tobacco smoke...

MR. FURR: Let's put this in a question, if we could.

DR. HAMMOND: I thought you were asking where the reservations come from. If you use a market to be an estimate of how much tobacco smoke someone is exposed to and it doesn't increase with that smoke, it doesn't seem to me to be a good marker. That's what it stems from.

MR. FURR: We've agreed that 3-EP is produced by the combustion of nicotine, haven't we?

DR. HAMMOND: That's reported in the literature, yeah.

MR. FURR: Can you suggest a mechanism where the concentration of 3-EP would not increase with the number of cigarettes burned?

DR. HAMMOND: I don't understand the combustion of cigarettes thoroughly. It's a very, very complex process. I could imagine many possibilities and factors that go into that combustion. I would hardly begin to say which ones of those would lead to that. I could imagine different temperatures, different conditions. I just don't know.

MR. FURR: You don't know?

DR. HAMMOND: Yeah, but I could imagine hundreds. You start thinking of all these factors that go into the combustion product, so I just wouldn't want to guess... I haven't studied the combustions thoroughly.

MR. FURR: Another of your criticisms of the use of 3-EP as a marker for ETS exposure is, you claim that the analytical method for 3-EP is not sensitive enough to qualify 3-EP as a marker. Isn't that correct?

DR. HAMMOND: You're quoting from my paper?

MR. FURR: From Exhibit 36 to this docket.

DR. HAMMOND: Yeah, at one point in the literature that I had seen and the limits of detection that were reported to me by Dr. Eatough, that was true.

MR. FURR: In fact you state in Exhibit 36 that the method is only one-tenth as sensitive as one based on nicotine, is that correct?

DR. HAMMOND: That's what we reported to me, yes.

MR. FURR: Have you tried to keep up with the literature on this subject?


MR. FURR: Are you familiar with...

DR. HAMMOND: I haven't been interested in it at that point. It just didn't seem important.

MR. FURR: You haven't been interested in it?

DR. HAMMOND: I mean to my mind, I just haven't followed that. It had one seemed very important at that point.

MR. FURR: Well, it's extremely important for assessing whether 3-EP is a potential marker of ETS exposure isn't it?

DR. HAMMOND: Yeah, if there's new literature, yes.

MR. FURR: It would be extremely important to review that literature.

Have you reviewed the literature, the 1992 publication by Ogden at al, that shows that the limit of detection of 3-EP is lower than nicotine?


MR. FURR: You don't have any basis for believing that the report by Ogden is anything but accurate, do you? I'd have to look at the paper. I'll take your word for it now, for the sake of argument.

Dr. Hammond, you would be prepared to consider data that showed a validated analytical procedure for 3P was more sensitive than the procedure for nicotine. You put the slide up in your presentation, but in Exhibit 36, you put up figure two of Exhibit 36. You present some results from a paper that you co-authored with Dr. Lederer or title. Evaluation of vapor-phased nicotine, an RSP mass has markers and all the for ETS. Can you get that out?

DR. HAMMOND: Figure two did you say?

MR. FURR: Correct.


MR. FURR: Isn't it true that what's depicted there is a linear regression of the data?


Were any models other than a linear model fit to the data set?

DR. HAMMOND: I didn't do that, Dr. Lederer did that work. I don't know.

MR. FURR: Did you ever discuss it with Dr. Lederer?

DR. HAMMOND: I don't remember discussing linear model.

MR. FURR: Let's look at the figure together. I note that there are three data points for which the nicotine and RSP values appear to be considerably higher than any of the other data points. Do you see the ones I'm looking at?

DR. HAMMOND: I take it where the nicotine is greater than eight, or seven?

MR. FURR: That's correct.

Do you know whether any attempt was made to determine, in a statistical sense, whether these three points were highly influential in the linear regression? That is the removal of the points would change the slope of the line?

DR. HAMMOND: As I said earlier, I didn't perform those analyses.

MR. FURR: So you don't know?


MR. FURR: Do you think such an analysis should be performed?

DR. HAMMOND: Because I'm not a statistician, I know that removing one point to see if it's overly influencing the data is very important, but I don't know that to remove three points becomes... Let me back up. As a chemist, one is very wary of removing data points. But I do know that if there is one point that may be skewing the line, you want to remove it. Whether you would remove three points, I would have to defer to a statistician. I would ask them. That's not my area of specialty.

MR. FURR: I don't think we can do that right here, but let's try something very simple. Let's just cover up those three data points...

DR. HAMMOND: I don't think we should pursue it if I don't really understand this, that part of it.

MR. FURR: If you can't answer my questions, you can't answer them. Okay?


MR. FURR: Let's cover up those three data points and just take a look at it visually.


MR. FURR: Doesn't it seem to you that the slope of the line would decrease if those data points were taken out?

DR. HAMMOND: It would probably decrease some, yeah.

MR. FURR: That would change the ratio of 10.8 that you've presented.


MR. FURR: Would you be willing to provide that data to the RJ Reynolds Tobacco Company so that they could perform some of these analyses?

DR. HAMMOND: I don't have that data.

MR. FURR: Who does?

DR. HAMMOND: Dr. Lederer.

MR. FURR: Would you have any objections to that data being provided to Reynolds?

DR. HAMMOND: Well, I'm not normally in the position of providing data.

MR. FURR: Why is that?

DR. HAMMOND: It's not been standard scientific practice in my experience.

MR. FURR: It's your testimony that that's not standard scientific practice?

DR. HAMMOND: To simply provide data to anyone who asks for it? No. Usually I provide data to colleagues.

MR. FURR: Let me ask it this way. Are you familiar with the guidelines produced by the National Research Council in 1986 regarding the sharing of data?


MR. FURR: Dr. Hammond, the ventilation rates in the homes that were used to generate Figure 2 were approximately one-half air change per hour, and were typically not greater than one air change per hour, isn't that correct?

DR. HAMMOND: I'd have to go back to the paper, but if you're reading that from the paper I'll assume that's correct. Is that from the paper?

MR. FURR: That's not in the paper, but that is the range of values that was published in a different paper by Dr. Lederer in a study of homes in the same counties at the same time, so I'm drawing the inference that those must be the same homes. Do you know whether that's correct?

DR. HAMMOND: You can assert that. I can't testify to it. I don't know it.

MR. FURR: Isn't the typical range of values found for ventilation in U.S. workplaces likely to be higher and more varied than those in homes?

DR. HAMMOND: I actually haven't measured ventilation rates in workplaces.

MR. FURR: So you don't know?

DR. HAMMOND: I don't know.

MR. FURR: If the ratio of nicotine to other ETS components is dependent on ventilation rate and air movement within a space, isn't it possible that the ratios that you've determined for homes might not apply to workplaces?

DR. HAMMOND: I can see where you might start with that assumption. However, if you return to my slide, let me just find it...


DR. HAMMOND: Slide 24. Would you like me to put that up again? That's the one where I talked about real world, the flows in the real world. And, in fact of that data, I reported on four data sets, one of them was later the one to which you were referring where you said the slope should be less than it is, that was the highest slope of the four. And the other three were in workplaces. So in fact we have seen in workplaces and in homes the same. Rather than speculate, let's use data.

MR. FURR: Well, okay. Tell me what the ventilation rates were in those homes and in those workplaces.

DR. HAMMOND: As I said, we don't know the ventilation rates in the workplaces.

MR. FURR: Well, then, I guess we shouldn't speculate, should we?

DR. HAMMOND: Pardon?

MR. FURR: If we don't know we shouldn't speculate about the role ventilation may play in there.

DR. HAMMOND: I'm not speculating about ventilation. No, no, no.

JUDGE VITTONE: One at a time. One at a time.

DR. HAMMOND: The question that you had asked me was wouldn't I expect the different ventilations that you postulate exist in the workplace from the home to lead to different ratios of these two components and my answer to that is rather than speculate let's use real data to see what has been seen and I'm telling you that in real data in the workplace we're seeing the slope is the same as it is in the homes except that the homes here were a little higher and you've just told me how to bring them down.

MR. FURR: Well, no, what I said was and those data aren't adjusted for ventilation rate, are they?

DR. HAMMOND: You don't need to adjust them for ventilation rate. There's no need to adjust them.

MR. FURR: How do you know that?

DR. HAMMOND: Because that's not what I'm purporting to show. I am plottingę-- I am simply saying if we were to plot the respirable particle concentration as a function of nicotine, what is the slope of that line? And we see a very similar slope in three different studies, in three different sets of workplaces, as we saw in the 96 homes in New York State.

MR. FURR: And you don't know what role ventilation may have been playing in producing those results.

DR. HAMMOND: Well, actually, the interesting part about this, since you bring this up, is that if we assume, as I think you are, that the ventilation rates are all very different, that would tell us that the ventilation rates aren't important. In fact, Dr. Leaderer when he did his study on the 96 homes and did the regression analysis, he also did a multiple regression analysis, including the ventilation information, and found that it added very little to the explanation. In fact, the regression was nearly as powerful without any ventilation information than by adding it.

MR. FURR: What study was that?

DR. HAMMOND: That was in the same paper, the 1991 paper that Dr. Leaderer and I wrote in Environmental Science and Technology.

MR. FURR: Okay. Thank you.

I want to talk to you a little more about the use of nicotine as an ETS marker and I want to talk to you about another of the criteria that you've identified that a marker for ETS exposure should have and that is the criteria that a good marker should be produced in similar quantities in different brands of cigarettes.

DR. HAMMOND: Correct.

MR. FURR: In your testimony, you suggested that you weren't sure how important a factor this was. Is that correct?

DR. HAMMOND: How important the differenceę--

MR. FURR: How important a criterion this is.

DR. HAMMOND: Correct. I don't know. I don't remember saying that but, okay. I don't know.

MR. FURR: Do you consider it to be an important criterion?

DR. HAMMOND: I'm notę-- it was important at the time that I was doing the first study I did in this area. It's less important now. I think what's important is that it be proportional to the agent of interest. Since we don't know what the agent of interest is, we can simply say is it proportional to other things.

MR. FURR: So you do not believe it's important that it be produced consistently by different brands of cigarettes?

DR. HAMMOND: It's not clear to me that it would have to be. If other conditions were fulfilled, it would not be important. It would be useful but it's not so important. But in fact they were pretty consistent.

MR. FURR: Are you talking about slide 16 now?


MR. FURR: In slide 16, you depict the results from your test in your 1991 paper of 10 brands of U.S. cigarettes?


MR. FURR: What brands did you test?

DR. HAMMOND: I don't have the data here. I have the data at home. I mean, not at home. I can put that in my post-hearing comments. I do remember Marlboro and Winston. I think Camel was there.

MR. FURR: Did you test more than one style of any particular brand?

DR. HAMMOND: Mostly these are filtered cigarettes, as you notice, so that at mostę-- by style, what do you mean? What does style mean?

MR. FURR: You're aware, aren't you, that a given brand of cigarettes is marketed in several different brand styles.

DR. HAMMOND: No. I don't smoke. Sorry.

MR. FURR: So you're not aware of that.


MR. FURR: And you're not aware of the differences in the way the different brand styles yield side stream or ETS, I take it, then.

DR. HAMMOND: I didn't choose the brands of cigarettes. Now, Dr. Leaderer chose those, the different brands to study. He may have been aware of that but I'm not. No.

MR. FURR: You're not aware of that.

DR. HAMMOND: Correct.

MR. FURR: Okay. In the data that you presented, I understand from your written 1991 paper that you normalized the side stream yields for weight of tobacco burned. Is that correct?

DR. HAMMOND: I'd have to go back and look at that at this point.

MR. FURR: You're not certain?

DR. HAMMOND: At the moment, I can't remember. Would you like me to look that up now?

MR. FURR: Would you take a look at the paper?


DR. HAMMOND: Do you have what page that's on, to save time?

MR. FURR: No, I don't have it up here.

DR. HAMMOND: It says normalizing the nicotine, now? Are you talking about the nicotine value?

MR. FURR: That's correct.


DR. HAMMOND: I don't remember doing that. I'll just have to try to find it.

MR. FURR: Maybe we can cut this short. If you don't remember doing that, do you remember whether the yields found in ETS and side stream for the different brands without normalizing for the weight of tobacco burned?

DR. HAMMOND: Yes. And they were very similar. Actually, the normalizationę-- if we did that, if we did do, as you said, the normalization, it would not have changed the value as much because I actually had a slide that I took out of my presentation that shows the amount of tobacco that was actually consumed in each experiment and they were very, very similar numbers, so it would not have affected these numbers much, to do it with or without that.

MR. FURR: Let's talk about something different. I want to talk to you about some issues involving analytical methodology. Your active nicotine sampling method can fairly be described as a filter sampling system that collects total ETS nicotine on acid treated filters, isn't that correct?


MR. FURR: In fact, your active sampling method is not even designed for vapor phase nicotine but for total nicotine, isn't it?

DR. HAMMOND: Well, it depends on how you use it. It can be used to do either total or vapor phase, just depending on how you set the system up. The one I showed you would be used for vapor phase as well. And in the studies that we conducted, the intercomparison studies with Dr. Eatough and R.J. Reynolds and the Harvard University and our samplers, Dr. Eatough and Harvard University researchers, Dr. Koutrakis, used annular denuders which are the best method to determine the portion that's in the vapor phase.

MR. FURR: We're going to talk about that study in just a moment. In Exhibit 36, you claim that your active sampling method is the most commonly used active sampling method. What do you base this assertion on?

DR. HAMMOND: Basically, of the systems that I know that have been used, the number of times they have been used. I mean, it's been used for several thousand samples.

MR. FURR: Well, to your knowledge, how many laboratories other than your own use this method?

DR. HAMMOND: A laboratory does an analysis. Researchers will do the sampling. We have to separate that.

MR. FURR: Let's separate them.


MR. FURR: How many researchers, other than yourself, use that method?

DR. HAMMOND: I would have to sit down. I could probably name a dozen but I'd have to sit down and do some of that.

MR. FURR: Do any commercial laboratories offer nicotine analysis based upon samples collected by your method?

DR. HAMMOND: At one point, one did. I've helped some labs to set some things up.

MR. FURR: Do any currently offer that?

DR. HAMMOND: I don't know.

MR. FURR: Dr. Hammond, you're familiar with the Association of Official Analytical Chemists, aren't you?


MR. FURR: May I call that the AOAC?


MR. FURR: The AOAC reviews analytical procedures and provides an official opinion as to the validity of analytical methods, correct?

DR. HAMMOND: I don't know. I assume that that's probably true but I don't know the full details of how they do that.

MR. FURR: In fact, the AOAC validates methods, don't they?

DR. HAMMOND: They print methods. I've never been impressed with how much they validated methods. You know, my impression is that they will print methods that are given to them.

MR. FURR: Your method has not been adopted as an official method by the AOAC, has it?

DR. HAMMOND: I never submitted it to them.

MR. FURR: So that's a no? That would be a yes, it has not been adopted, has it?

DR. HAMMOND: I don't actually know what they've done with it because I don't pay a lot of attention.

MR. FURR: You don't know?

DR. HAMMOND: I don't know.

MR. FURR: Not interested?

DR. HAMMOND: Not interested.

MR. FURR: Do you know what the American Society of Testing Materials has done with your method?


MR. FURR: Not interested in that either?


MR. FURR: Do you know whether either the AOAC or the American Society of Testing Materials has validated an active nicotine sampling method?

DR. HAMMOND: I think that they have used the XAD-2. XAD resin methods are listed by them, is that correct?

MR. FURR: And whose method is that?

DR. HAMMOND: It was originally publishedę-- well, the earliest that I know of the publication was NIOSH.

MR. FURR: Are you sure that it's not an R.J. Reynolds method?

DR. HAMMOND: Well, R.J. Reynolds certainly uses it. The earliest that I knew of itę-- maybe R.J. Reynolds published it earlier but I know NIOSH published it in the '70s. Yes.

MR. FURR: Let's talk about the other study that you mentioned a few minutes ago. Now, you go to some lengths, to some pains, I should say, in your written submission, Exhibit 36, to imply that the Reynolds method for measuring vapor phase nicotine in ETS was somehow designed to yield low results.

DR. HAMMOND: No, I don't think it wasę-- I didn't say that. I did not say that.

MR. FURR: It's true, isn't it, that you are referring to the results of a series of experiments published in 1990 by Chaka, et al.?


MR. FURR: And you were involved in that experiment, weren't you?


MR. FURR: You were, in fact, one of the investigators listed on the papers, aren't you?


MR. FURR: That study was an intercomparison study of nicotine determination to evaluate the precision and equivalency of various sampling techniques used to measure nicotine in ETS, correct?


MR. FURR: And it evaluated both passive and active samplers.


MR. FURR: Do you have that study?


MR. FURR: Could you turn to table 4?


MR. FURR: Table 4 of that paper indicates that the Reynolds passive sampler when compared to the average response of all samplers in that experiment had a regression slope of 1.01, doesn't it?


MR. FURR: And the authors of that paper, of which you are one, state that the magnitude and uncertainty of the slope is a measure of how well each measurement by any given sampling system agreed with the calculated average, isn't that true?


MR. FURR: So, in fact, the Reynolds passive system, you had measurements that were 1 percent higher than average, correct?

DR. HAMMOND: The slope is 1 percent higher.

MR. FURR: I'm sorry, what?

DR. HAMMOND: The slope is 1 percent higher than the average. Yes.

MR. FURR: Am I correct in interpreting what that means?

DR. HAMMOND: That's what I'm trying to think about. Probably. Yes.

MR. FURR: That table also contains results for your method, doesn't it?


MR. FURR: And, in fact, it suggests that the results found using your method were 16 percent lower than the average, weren't they?

DR. HAMMOND: Yes. Although the correlation coefficient was much higher.

MR. FURR: So in fact the Reynolds passive method yielded results that were higher than yours.

DR. HAMMOND: The passive one, yes.

MR. FURR: Okay. Well, then, let's talk about the component of the study devoted to the active sampling methods.


MR. FURR: In Exhibit 36, you state that the active system using the XAD resin to absorb the nicotine gave low results.


MR. FURR: You're referring to the Reynolds sample there, aren't you?


MR. FURR: In the active sampling component of the study, isn't it true that six experiments were conducted with each sampler?

DR. HAMMOND: I forget how many. Yes. Yes.

MR. FURR: And isn't it true that for three of the six experiments, the results for the Reynolds sampler agreed with the average?


MR. FURR: So your assertion about the results of the Reynolds sampler really addresses the results only from three of the six experiments.


MR. FURR: Now, Dr. Hammond, you know that the particular Reynolds sampler that was used in that experiment had been modified by the BYU researchers specifically for the purposes of the experiment, don't you?

DR. HAMMOND: That's what they reported. I don't know that myself.

MR. FURR: And you know that that sampler as modified for that experiment has never been used in the field, either before or since that experiment, don't you?

DR. HAMMOND: I do not know that.

MR. FURR: You don't know that?

DR. HAMMOND: No. I don't know what you've done.

MR. FURR: Dr. Hammond, in the written testimony that you submitted in Exhibit 36 but what you didn't address in your oral testimony today, you reference in several instances the 1993 paper by Repace and Lowery titled "An Enforceable Indoor Air Quality Standard for Environmental Tobacco Smoke Exposure in the Workplace," correct?

DR. HAMMOND: Correct.

MR. FURR: And in that paper, Repace and Lowery purport to develop a model which permits the use of atmospheric nicotine measurements to estimate non-smokers' ETS lung cancer risk in individual workplaces, correct?

DR. HAMMOND: Correct.

MR. FURR: In your Exhibit 36, you apply that model to certain exposures to assess the risks posed by those exposures, don't you?

DR. HAMMOND: I used those results to try to interpretę-- as a means to try to interpret the exposures.

MR. FURR: Did anyone encourage you to include a discussion of the application of the Repace and Lowery model in your written comments?


MR. FURR: Dr. Hammond, are you aware of the criticisms that have appeared in the scientific literature regarding the Repace and Lowery model?


MR. FURR: You are not?


MR. FURR: Are you aware that no governmental entity has endorsed the Repace and Lowery model or employed that model in conducting risk analyses of environmental tobacco smoke?

DR. HAMMOND: I'm not aware of that but it's a fairly new paper, too. I wouldn't expectę-- given the snail's pace at which the government moves I would be amazed that they could have.

MR. FURR: Well, you were a consultant to the Scientific Advisory Board of the Environmental Protection Agency that produced the 1993 ETS risk assessment, weren't you?


MR. FURR: And you're aware that the EPA has not adopted or in any other way endorsed the Repace and Lowery model, aren't you?

DR. HAMMOND: The Repace and Lowery model was published after the last review of the document to which you referred, so it could not possibly have been included.

MR. FURR: Well, that's a little misleading, isn't it?


MR. FURR: In fact, the 1993 paper published by Repace and Lowery is nothing but a transformation of their 1985 paper which suggests the same model using RSP to one that can use nicotine, isn't it?

DR. HAMMOND: I haven't compared the two.

MR. FURR: Have you reviewed all the papers of Repace and Lowery?


MR. FURR: And you haven't reviewed the scientific criticism of those reports.

DR. HAMMOND: No. I simplyę-- when I wanted toę-- when I first started taking measurements, I just wanted to have a way to interpret them. I went to the literature and I went to one of the most respected journals in risk assessment, which is Risk Analysis, and that's where the paper appeared. And that was the only risk assessment that I could find that would be applicable to interpreting the data.

MR. FURR: So your judgment was made based upon the journal in which the paper appeared?

DR. HAMMOND: Well, that's one piece of it. The fact is that you judge the quality of the journal, yes, as a part of how you evaluate literature.

MR. FURR: Did you personally attempt to review the before you incorporated it into your statement?

DR. HAMMOND: What do you mean? I'm sorry.

MR. FURR: Did you attempt to review the validity of that model before you applied it to data in your statement?

DR. HAMMOND: No. I don't do risk assessment, so I just simply use values that I would find. I do that for other compounds as well.

MR. FURR: Did you discuss with anyone else whether the model was valid?


MR. FURR: Well, Dr. Hammond, wasn't the purpose of submitting a statement and testimony to this docket to attempt to help OSHA create the best possible record to consider in determining whether to regulate indoor air quality and environmental tobacco smoke in the workplace?

DR. HAMMOND: Could you please repeat that question?

MR. FURR: What was your purpose for submitting a written comment to this docket?

DR. HAMMOND: OSHAę-- as I understand it, I was referred to OSHA because I had done sampling in the occupational environment which would be relevant to them and from my point of view, I saw my purpose as describing the research I had done and trying to do my best to put that into a perspective and health perspective.

And that's why I tried to use three different approaches to do that that were each one totally independent of the other, to try to say is this risky or not? Is what's out there risky? Are workers being exposed to a hazard? That's what most of my life work is, is trying to determine if workers are exposed to hazards in the workplace.

MR. FURR: And you determined to use the Repace and Lowery model to do that.

DR. HAMMOND: I actually used three different methods. That was one of the three methods.

MR. FURR: So that's a yes, correct?

DR. HAMMOND: Yes. I used that as one of the methods.

MR. FURR: But you did not review the scientific literature to determine whether or not that model has been accepted as valid, did you?

DR. HAMMOND: Well, I think that the fact that it was published in the peer reviewed literature by itself says that there is a certain acceptance of it.

MR. FURR: Do you mean that?

DR. HAMMOND: It means that there is a certain acceptance of it.

MR. FURR: Don't papers get published in the peer reviewed literature frequently that are subsequently found to be erroneous and are withdrawn?


MR. FURR: Do you consider your evaluation of the Repace and Lowery model to have been responsible?


MR. FURR: Is that the same level of responsibility that you took to evaluating all the data that you've presented here today?

DR. HAMMOND: In the use of that data, I simply relied on a number in the literature. In the other two methods that I used, I much more relied on my own work.

MR. FURR: Is that a no or a yes?

DR. HAMMOND: Could you please tell me the scales of responsibility that I'm supposed to measure responsibility on?

MR. FURR: My question is in determining to rely on the Repace and Lowery model to present information to this docket upon which OSHA could rely in formulating this rulemaking, did you use the same level of care that you used in conducting the rest of your work in presenting it to OSHA?

DR. HAMMOND: I think that the most straightforward answer I can give is that I used a number from the literature as a means to interpret the data. That was a much more straightforward thing that took me a very short period of time. It was not something I dwelled on or spent a lot of energy in. The other two methods were things where I spent a great deal of time going over the data and I know the data more thoroughly.

MR. FURR: If in fact the Repace and Lowery model is not valid, then your application of that model to data is really not going to be very helpful to OSHA, is it?

DR. HAMMOND: I think that's probably true. If that could be shown to be totally invalid, I think that part of my testimony should be deleted. You know, it becomes irrelevant.

MR. FURR: In fact, not only would it be irrelevant, it might be misleading, don't you think?

DR. HAMMOND: Well, I think that there's some very intelligent people who work at OSHA and if you could show that to them, they could very quickly determine that. I don't think they'd be misled by it. No.

MR. FURR: What about the public in general? There are members of the public here, you know.

DR. HAMMOND: Are there? I don't think the public will be misled. I think that you all will be very careful to point out all the flaws. And this is an open hearing, the purpose of which, as I understand it, is to get truth out there, to try to get as much information available to OSHA to make the decision.

MR. FURR: Let's talk about cigarette equivalents.

Now, your testimony regarding cigarette equivalents is completely irrelevant to the issues facing OSHA in this rulemaking, isn't it?


MR. FURR: Have you reviewed the Notice of Proposed Rulemaking?

DR. HAMMOND: I have read it. Is that what you're asking?

MR. FURR: Anywhere in that document, did you see a reference to cigarette equivalents?

DR. HAMMOND: No. Nor is there a reference to the prior discussion that we just had.

MR. FURR: I'm sorry, what?

DR. HAMMOND: Never mind.

MR. FURR: Did anyone ask you to address cigarette equivalents in your testimony?

DR. HAMMOND: No. I was not directed in my testimony.

MR. FURR: Regardless of the merits of the cigarette equivalents approach, it has no bearing on OSHA's determination on whether to regulate indoor air quality or ETS in the workplace, does it?

DR. HAMMOND: I disagree with that statement. I think it does have a bearing.

MR. FURR: Why is that?

DR. HAMMOND: For two reasons. One, because of the very purposeful misleading that has taken place by the tobacco industry in the use of cigarette equivalents and it's important to inform OSHA about the degree to which that is misleading, again, in the spirit of openness and giving as much information to OSHA to let intelligent people come to the best decision for the working public.

Secondly, because I think the use of cigarette equivalents demonstrates that the exposure to known carcinogens in tobacco smoke may not be trivial, as it has been portrayed, but in fact it tells us that we may be talking about real exposures that have some public health significance.

MR. FURR: Let's talk about both those points. First, your claim that the tobacco industry has misled the public through the use of cigarette equivalents.


MR. FURR: Now, I presume you're talking about the R.J. Reynolds ad.

DR. HAMMOND: That's one piece of it.

MR. FURR: And your basic criticism is that the use of certain compounds may give a higher number of cigarette equivalents than nicotine, isn't that correct?

DR. HAMMOND: No, that's not my point. My point is that as you change the compounds that you address, you will change drastically the number of cigarette equivalents that you calculate, that the way the information is portrayed in the public purports to contain the full picture of the risk experienced by someone exposed to environmental tobacco smoke when in fact what's done is a very purposeful diminution of the risk. It's not as if every cigarette equivalent for all the known compounds are reported. It's, I think, a very careful choosing of the data to present.

MR. FURR: Well, in fact, have you read the whole ad?

DR. HAMMOND: Pardon?

MR. FURR: Have you read the complete ad?


MR. FURR: Doesn't the ad alert the public to the very issue that you are raising?

DR. HAMMOND: It does, in extremely tiny print at the bottom and in a manner which is not understandable to the general public. I understand it.

MR. FURR: Well, the record will speak for itself but let me read to you language that appears in the ad in one of the two main columns in the ad, not in the footnote. "There are many ways to calculate cigarette equivalents and no method exactly predicts the precise amount of secondhand smoke a non-smoker is exposed to."

DR. HAMMOND: Could you read the next sentence, please?

MR. FURR: I will in a moment. Then let me go to the footnote. "Calculation is based upon a published review of average smoking area measurements of nicotine, one of the components used by many researchers to develop a sense of the magnitude of secondhand smoke exposure. Use of other compounds may give different results and an individual's actual exposure may vary significantly."

MS. SHERMAN: Your Honor, I am going to object to this line of questioning. I believe that the questioner is arguing with the witness and the ad will say what it's going to say.

MR. FURR: Your Honor, my question is whether in fact the ad addresses the exact concerns that she has with it.

MS. SHERMAN: The ad will speak for itself. I just think that this is argumentative and it's not productive for this hearing. It's now 20 minutes of six and we've been going since nine o'clock this morning.

JUDGE VITTONE: I don't think you two are ever going to agree on this. Can't we just move on to another subject area? I mean, her testimony stands for whatever it stands for and you're going to have the ad, the ad can be part of the record.

DR. HAMMOND: May I make just one other small comment?

MR. FURR: Your Honor, the problem here is that she has claimed that the ad is misleading and what I'm trying to do is probe the basis for that claim.


Dr. Hammond, do you want to say anything in response to what he just say?

DR. HAMMOND: What I want to say is it's not just the ad.


DR. HAMMOND: It's not just the New York Times advertisement.

MR. FURR: That's all I'm asking her about.

DR. HAMMOND: No. But I'm trying to say --

MR. FURR: She's had her say already.

DR. HAMMOND: Please let me finish, sir. The misleading use --

MR. FURR: Your Honor --

DR. HAMMOND: -- of nicotine equivalents --

JUDGE VITTONE: I'm going to let her talk.

DR. HAMMOND: The misleading use of nicotine equivalents appears in the scientific papers published by those paper who work for R.J. Reynolds as well so this misleading piece of information is in many, many places, not just there, and those are without those kind of comments.


You're going to have an opportunity to put your witnesses on.

MR. FURR: One more question about this, if I may.

JUDGE VITTONE: Okay. One more question and that's it.

MS. SHERMAN: I renew my objection.

MR. FURR: Dr. Hammond, have you conducted any type of study to assess the public's understanding of the ad in question?


MR. FURR: Okay. That's all the questions I have.


Mr. Lowe?

MR. LOWE: Your Honor, Mr. Furr asked the questions I was going to ask.

JUDGE VITTONE: Mr. Lowe, you're going to be the favorite person in this room pretty soon.

Mr. Rupp?

MR. RUPP: And I'm going to be on the other side of the scale.


DR. HAMMOND: I didn't get to hear, which scale is that?

MR. RUPP: The bad scale.

JUDGE VITTONE: That's a lawyer's joke.

DR. HAMMOND: Oh, I'm sorry.

JUDGE VITTONE: That's an insider's joke to this proceeding.

MR. RUPP: You have to be here a long time for this.


MR. RUPP: Dr. Hammond, my name is John Rupp and I don't think I'll have to prolong this too long. I just have questions on a couple of items, if you'll indulge me, please.

Let me clarify for the record, I take it you've already said you're not a statistician, I take it you're not an epidemiologist either?

DR. HAMMOND: I'm not an epidemiologist but I have taken several courses in epidemiology. I have conducted research in epidemiology with epidemiologists as colleagues and so I'm familiar with it.

MR. RUPP: Okay. But your role in that has been as the chemist, as the person who has been responsible for the exposure modeling and data?

DR. HAMMOND: As a specialist in exposure assessment generally.

MR. RUPP: All right. Okay. Have you undertaken what I would characterize as a careful and systematic review of the epidemiology on environmental tobacco smoke and lung cancer or environmental tobacco smoke and cardiovascular disease or environmental tobacco smoke in adult respiratory disease? Or the clinical work in those areas?

DR. HAMMOND: I'm not the best person who will be testifying here to ask about those issues.

MR. RUPP: Okay. You're not offering any advice to OSHA based on the epidemiology or the clinical health end points that I've mentioned?

DR. HAMMOND: I'm using the published literature for that. That's all. Yes.

MR. RUPP: All right. But that's not an area of your particular expertise. Your expertise is the expertise of a chemist who has done a fair amount of work in the area of exposure. Would that be fair?

DR. HAMMOND: Chemist and industrial hygienist.

MR. RUPP: Okay. Are you aware of the substantial body of literature relating or documenting a concordance of activities, diets and exposures among spouses? People who are married?


MR. RUPP: Are you aware of literature that shows not all that flabbergastingly that people who are married tend to have dietary items in common?

DR. HAMMOND: I think I just said I'm not aware of that literature.

MR. RUPP: Okay. Are you aware of the substantial body of literature documenting a concordance of smoking habits among spouses? That is, if one member of the duo smokes there is a more than random chance that the other will smoke as well?

DR. HAMMOND: I haven't seen the literature itself but I've certainly heard that testimony.

MR. RUPP: Okay. You have testified, as I understand it, about what you believe to be a substantial overlap of exposure to ETS that is not removed when one simply isolates two groups as smoking household and non-smoking household, is that correct? That is, in the non-smoking households you're finding an overlap in extent of exposure of the non-smoking party with the smoking household?

DR. HAMMOND: This is the personal sampling on people who live in non-smoking houses compared to people who live in households with smoking. Yes.

MR. RUPP: Right. And what you have found in at least the limited data set that you presented today is that there is substantial overlap of exposure or reported exposure?

DR. HAMMOND: Not reported exposure.

MR. RUPP: Measured exposure in this case?

DR. HAMMOND: Measured exposure.

MR. RUPP: Okay. All right. Now, as I understood it, your suggestion on the basis of that was that that might depress the risk as measured in epidemiologic studies presented by exposure to environmental tobacco smoke. Do I understand that testimony correctly?


MR. RUPP: Okay. Now, does that not assume that that exposure presents a risk? And let me try to describe where I'm going so I don't mislead you. Let me add a sentence or two and then I think we'll have it. If in fact there is no association and the spousal setting is really acting as a marker for a whole range of diets, dietary factors, activity relationships, and so forth that spouses have in common, the overlap and exposure to ETS from whatever source would not depress the odds ratio or the risk ratio relating to ETS, it would be entirely irrelevant, isn't that correct?

DR. HAMMOND: Let me answer that.

MR. RUPP: Yes, please.

DR. HAMMOND: If there is no effect, if we're talking -- we can even leave it out of ETS, it could be any exposure.

MR. RUPP: It could be any item.

DR. HAMMOND: Any exposure whatsoever.

MR. RUPP: Absolutely.

DR. HAMMOND: If exposure in fact in real truth when we finally open up the vaults of truth has no effect on the disease that's being studied, misclassification of exposure will not change. You would find it would have no effect because there is no risk. However, if there is an effect, if there is a true -- misclassification won't hurt it, what it does is if there is truly an effect, it will reduce that effect from the truth. So that, for instance, if the odds ratio truly were two, if you had twice the risk, it might bring it down to only one and a half times the risk, the apparent odds ratio. If the true risk is one, it will just stay at one.

MR. RUPP: Okay. It's basically not a biasing factor in that circumstance then.

DR. HAMMOND: Right. Right.

MR. RUPP: Okay.

DR. HAMMOND: it only depresses the odds ratio if there is an increased odds ratio.

MR. RUPP: Okay.

DR. HAMMOND: I usually add that, if I didn't, in my transcript. I apologize.

MR. RUPP: I think that was unclear and I don't -- there is another step here and I think Mr. Furr took it with you relating to what from a statistical standpoint all of this would have in varying assumptions. I don't want to go over that with you again, I want to go to a third kind of related issue and that is the major controversy in the scientific literature so far as misclassification is concerned has not related, has it, to a possible overlap, however large or small that may be, in extent of exposure to ETS between -- let's call them smoking households and non-smoking households, but is related instead to the misclassification of active smoking status of those who were thought in the studies and so classified to be non-smokers. Isn't that correct?

DR. HAMMOND: You're right. That has been the major argument that the tobacco industry has brought up over and over again. That's where the controversy has lain. Yes. But, you know, you're absolutely correct that that argument has been made over and over.

MR. RUPP: Okay. Well, let me take it in a couple of -- pursue a couple of aspects of that. First, is it your view that the only people who believe that misclassification of smoking status is an important factor here that needs to be taken into account are representatives of the tobacco industry?

DR. HAMMOND: No. I just -- what I was commenting on was the question about the intensity of the discussion. But, no, I think everyone has to be concerned about that. Yes.

MR. RUPP: Well, do you know of anyone who has done a review in this area, any governmental body that has not made a correction for misclassification of active smoking status?

DR. HAMMOND: No. And I think one should.

MR. RUPP: So it really isn't the tobacco industry who is riding this horse alone, is it?

DR. HAMMOND: Correct.

MR. RUPP: Okay. Now, putting that aside, then, for the moment, why --

DR. HAMMOND: By the way --

MR. RUPP: Let me go on to another question. The issue I want to pursue with you now for just a moment is why the misclassification of smoking status may have attracted such attention. If we put animus aside, and let's do leave that aside.


MR. RUPP: If I can have your permission. And let's look at it from a statistical standpoint, if you will. Do you know the range of risk ratios that have been reported for active smoking and lung cancer?


MR. RUPP: Would it surprise you to know that it's eight, 10, 12, 14, depending on the study?

DR. HAMMOND: That's the full range? Eight to 14?

MR. RUPP: If I suggested that range, that wouldn't surprise you?

DR. HAMMOND: No. That's in eh ballpark of what I thought it was.

MR. RUPP: Okay. All right. All right.

DR. HAMMOND: Is that from --

MR. RUPP: The point is --

DR. HAMMOND: As an exposure assessment person, I have to understand. Is that from smoking half a pack, a pack, two packs, how much?

MR. RUPP: Well, let's say kind of a mean consumption of cigarettes.

DR. HAMMOND: What is that?

MR. RUPP: A pack a day, let's say. Okay? And we don't have to be all that precise about these figures. There's a point I'm trying to make and see whether you agree with it. And I'm trying to get to it quickly here. If you have, and we can take this outside of the smoking issue if you're more comfortable, if you have a potential confounder that is believed to be powerful from a statistical standpoint, the greater the power, the greater the element of confounding that we may have to be worried about, isn't that right?

DR. HAMMOND: Correct.

MR. RUPP: Okay. So misclassification of smoking status from a pure statistical standpoint is quite important.

DR. HAMMOND: Absolutely.

MR. RUPP: And if active smoking were related to lung cancer at a 1.2, we really wouldn't care much, would we, because it wouldn't be a very powerful confounder.

DR. HAMMOND: Probably right. Yes.

MR. RUPP: Okay.

DR. HAMMOND: We'd care a lot less, anyway.

MR. RUPP: Or a lot less. Okay. Did you serve on the Science Advisory Board for the Environmental Protection Agency reviewing EPA's 1992 risk assessment on environmental tobacco smoke?

DR. HAMMOND: You mean the document --


DR. HAMMOND: I don't think it's called a risk assessment. It has a different name, I think.

MR. RUPP: Well, you know which document I'm talking about?

DR. HAMMOND: I was a consultant to that panel. Yes.

MR. RUPP: A consultant to that panel or did you serve on the panel?

DR. HAMMOND: It's listed as I'm a consultant to the panel. But I served as a full panel member during that debate. I guess I was a consultant to the committee and on the panel.

MR. RUPP: Okay. Fair enough.

DR. HAMMOND: I don't know.

MR. RUPP: You took full part in the discussions in any event.


MR. RUPP: Okay. That's all I'm trying to get at. Is my understanding correct that the staff of the Environmental Protection Agency, that a recommendation came from the Science Advisory Board that they not seek to undertake a quantitative risk assessment of ETS exposure and lung cancer? Do you remember that?

DR. HAMMOND: No, I'm sorry. I don't.

MR. RUPP: Do you remember them making a contrary recommendation to the staff?

DR. HAMMOND: I don't remember the recommendation about quantitative risk assessment.

MR. RUPP: Okay.

DR. HAMMOND: I remember neither. That's all.

MR. RUPP: Okay. I have only one other short series of questions. I was intrigued also by the presentation you made on cigarette equivalents and, again, trying not to duplicate discussions that have already occurred, let me ask you this. If one takes 17 times virtually nothing, what does one get?

DR. HAMMOND: Nothing. Well, you said --

MR. RUPP: Virtually nothing.

DR. HAMMOND: Virtually nothing or nothing?

MR. RUPP: Virtually nothing. You may get virtually nothing, right?

DR. HAMMOND: Seventeen times virtually nothing?

MR. RUPP: Seventeen times nothing we can both agree on that with no delay at all.

DR. HAMMOND: Is nothing. Right. Right.

MR. RUPP: All right. Seventeen times virtually nothing may also be virtually nothing.

DR. HAMMOND: It may be.

MR. RUPP: It may or may not be.

DR. HAMMOND: May or may not.

MR. RUPP: It may depend on the expertise of the people who are expert in lung cancer or epidemiology and the toxicology and the pharmacology and the pharmacokinetics and the respiratory health specialist and so on, it may be virtually nothing and meaningless or it may be something. Is that right? That is -- let's ask it this way.

DR. HAMMOND: I find that a very confusing question.

MR. RUPP: Let's ask it this way. When we're talking about 17 times something, it's important to know what base you're starting from, isn't it?


MR. RUPP: For example, if the risk of my falling down in the next ten minutes is one in a billion, the riskę-- 17 times that risk would be 17 times in a billion.


MR. RUPP: And both would generally be regarded as quite trivial risks of my falling down. Both are quite unlikely events to occur, right? So that it's important to know what base you're starting from when you're using numbers of this sort, X times Y.

DR. HAMMOND: Correct.

MR. RUPP: Okay. If you start with a very large base and you multiply it by 17 times, you are large times 17, right?

DR. HAMMOND: Yes. Larger than you would be if it was small. Yes.

MR. RUPP: Okay.

Your Honor, that's all I wanted.

JUDGE VITTONE: Fine, Mr. Rupp.

MR. RUPP: Thank you very much.

JUDGE VITTONE: Okay. I think that takes care of everybody in the audience.

Any questions, Ms. Sherman?

MS. SHERMAN: Yes, Your Honor.

Going back to your testimony, Dr. Hammond, why do you think that the spousal smoking status was misclassified?

DR. HAMMOND: It's not -- I don't necessarily think that the spousal smoking status was misclassified. What I think was misclassified was the passive smoking exposure of the non-smoking spouse. In other words, I'm saying that -- talking about non-smokers now, those married to smokers are assumed to have lots, lots more exposure than those married to non-smokers. And, in fact, although that's generally true if you look at averages and means, you will find individuals, and a significant number of them, who are married to non-smokers and have higher exposures than those who are married to smokers. So that's the misclassification. Does that answer your question?

MS. SHERMAN: I think it does but I guess I'm curious as to where the exposures would be coming from.

DR. HAMMOND: Well, the exposures could be coming from either work or from social settings. In the studies that we did, we actually had people keep diaries during that week and most often it did come from work exposures.

MS. SHERMAN: When you validated your questionnaire, what was involved in the validation?

DR. HAMMOND: We developed a detailed questionnaire that tried to assess exposures from different locations. We asked for at each of these locations in the questionnaire how much were they exposed to tobacco smoke in that location and if they were about how many hours a day and we did weekdays and weekends separately and if there were smokers, how many smokers were there and how close they were, how much time was within two feet, between two and six feet or greater than six feet. And so we had a sample of people who had that questionnaire administered to them. We then issued them the passive monitors which they wore for one week and a diary where they kept track of that information for that one week. We did a week because that would include both weekends and weekdays, which we expect might be very different. And then we collected that data and we tried several models to see what ways of combining that data would predict the actual measured levels of exposure best and then we repeated that study with another set of people using the best model from the first set and found that that worked very well and had excellent correlation.

MS. SHERMAN: Did you put all of your questionnaires through this validation process or just a certain percentage of them?

DR. HAMMOND: All of them.

MS. SHERMAN: And is this a commonly accepted way of validating questionnaires, the one you chose?

DR. HAMMOND: Yes. It's actually stronger than most.

MS. SHERMAN: Do you think that -- was there anything about the questions on the questionnaires that you think influenced the good correlation coefficient that you found resulted from the questionnaires?

DR. HAMMOND: I think the most important single factor was that rather than asking a broad question such has how many hours a week are you exposed to tobacco smoke we broke it down by how many hours at home, how many hours in the workplace, how many hours in bars and restaurants. So we broke it down to help remind people and let them think through each of those. More the detail of the questions, more than any other single factor, although adding the information about the distance and the number of smokers present improved the model.

MS. SHERMAN: Dr. Hammond, yesterday one of the witnesses was asked a question about exposure. I don't know if you have the knowledge to answer this but if you have two people on one side of a room, one of who is smoking and one of whom is not, and then you have another person on the other side of the room who is not smoking, can one presume that the person standing next to the smoker will be getting more exposure than the person on the other side of the room?

DR. HAMMOND: I think so. I think so. This would be my evaluation. During the time of the smoking because that's before the mixing has occurred. I guess that would be in Dr. Ott's view the alpha period. During the smoking that would be true. Once the smoking is finished and the mixing has begun, then not so true.

MS. SHERMAN: Then after the smoking it would have something to do with the ventilation system and the mixing pattern of the room?

DR. HAMMOND: Right. Actually, we gathered information on the ventilation pattern and all of that in the homes. We found that didn't help with the questionnaire correlation. It's less important than people sometimes think it is. I think there's probably sufficient mixing that it's not as important as people think.

MS. SHERMAN: So that the mixing has very little to do with the exposure?

DR. HAMMOND: Right. And that follows both from the Leaderer paper as well where we actually had air exchange rates.

MS. SHERMAN: Have you done any work measuring the amount of nicotine in dedicated smoking lounges?

DR. HAMMOND: Yes, I have.

MS. SHERMAN: And how many of these have you measured?

DR. HAMMOND: I've looked at two in some detail. A handful of others, a few samples.

MS. SHERMAN: In the systems that you looked at, were there air cleaning systems operating?

DR. HAMMOND: The first one that I looked at did not have an air cleaner when I first measured it and I felt that the exposures were extremely high and not fair to the smokers. And so I actually suggested that they had to do something to reduce smokers' exposures without making any recommendation because it's not my field of expertise. They called in an engineer and they installed some devices to clean the air and then they asked me to come back and measure and see what the effects were.

MS. SHERMAN: Perhaps you could make that data available to the record?

DR. HAMMOND: Yes, I will. I have that actually for two different locations.

MS. SHERMAN: I believe you said in your testimony that your method of sampling was one of the most commonly used methods. Could you provide the name of other researchers who have used your method?

DR. HAMMOND: Okay. Dr. Patricia Mullen at the University of Texas. Dr. Brian Leaderer at Yale. Dr. Marion Marbury in Minnesota. Drs. Lewtas and Mumford in North Carolina. Actually, variations of my method are used by Dr. Spangler at Harvard. Variations have been used by Dr. Eatough. And just given a few more minutes I could come up with quite a few more names. It's also been used by various consultants doing a sample of the air.

MS. SHERMAN: In your various exposure studies, did you find any evidence that ETS is recirculated in HVAC systems or that it moves from floor to floor in buildings even on different ventilation systems?

DR. HAMMOND: Yes. We studied a building, this is a paper published by Bill Vaughan and myself where it was a 32-story building and the smoking was going to be restricted to the top floor, to the snack bar there and every two floors shared a ventilation system. So we sampled before and after on the 32nd floor where the smoking lounge was going to be, the 31st floor which would share that ventilation system, and the 19th floor which was quite remote and would not share the ventilation system. After the smoking restrictions went into place, we found that although all areas had greatly reduced levels of tobacco smoke that the 19th floor was by far the lowest and then the 31st floor was higher than that but lower than the 32nd floor, so clearly it was being recirculated. Also, we had the people who ran the computer center in the center of the 32nd floor began having problems with hard disc crashes and we looked to see and in fact there was smoke coming through the ventilation system into the room. When they then installed a separate ventilation system to the snack bar where smoking was, the hard disc crashes went away.

MS. SHERMAN: I didn't quite get that term. Hard what?

DR. HAMMOND: I'm sorry. I apologize. Computers have hard discs and computers are very, very sensitive to very fine particles such as in tobacco smoke, and it's the crashing of a hard disc. The computer went down.


DR. HAMMOND: We don't know that it was caused by the tobacco smoke but we did find more tobacco smoke there when they were crashing and when they put the ventilation in the crashes went away and the concentrations went down.

MS. SHERMAN: So you concluded that the computers didn't like the tobacco smoke?

DR. HAMMOND: They don't like passive smoking.

MS. SHERMAN: Going for a moment to your discussion with Mr. Furr, you were discussing 3EP with him.



DR. HAMMOND: As in vinyl.

MS. SHERMAN: Okay. I stand corrected.

DR. HAMMOND: I'm sorry, what? Oh, you did use EP? Oh, EP. Okay. I apologize. Delbert just used VP. Sorry.

MS. SHERMAN: In answering the question as to why 3EP does not follow first order kinetics, what explanations could you give for the fact that EP apparently doesn't follow first order kinetics?

DR. HAMMOND: The assertion made by Mr. Furr was that it did follow, that EP did follow first order kinetics and nicotine did not. I think that was correct.

Is that right, Mr. Furr?

I've forgotten already. And the literature to which he is referring says that that's due to the fact that nicotine is deposited on surfaces.

A lot has been made of that point by people who think that nicotine is not a particularly good marker for tobacco smoke. However, I think it's a kind of a question of nothing is perfect and everything has its problems but it actually follows very -- is it a major difference or a minor difference? I guess it's back to 17 times a very small number, a big number or a small number.

MS. SHERMAN: Could you explain very briefly for the record what first order kinetics really is?

DR. HAMMOND: First order kinetics would say that the change in concentration is proportional to the concentration in time.

MS. SHERMAN: Some studies have shown that nicotine absorbs onto glass and steel which has reportedly led to a low recovering rate for nicotine. Why did you use your sampler rather than some other more established method of sampling?

DR. HAMMOND: There are actually two parts to that question. One would be why would I use nicotine as a marker and the second would be why -- if I were going to use nicotine why would I sample it as i did.

MS. SHERMAN: Correct.

DR. HAMMOND: Okay. First, I used nicotine as a marker when I was first getting into this because it did seem to be unique and the data on 3EP was not out at that point and so I was kind of really groping around a bit. And then as I used nicotine as a marker, I knew that NIOSH has the XAD-2 resin method out there. There were two problems with that method for my purposes. One was that that was designed to help regulate nicotine, not as marker for ETS but rather in and of itself because it's a very toxic material in high concentrations. And so the validation range was much higher, I wanted to go to much lower levels. Secondly, I was trying to sample -- do personal sampling for particles as well as nicotine because we were trying to do the diesel study and we were trying to do respirable particles so we needed to sample at 1.7 liters a minute. And back in the early '80s, the personal sampling pumps that existed could not pull through -- well, we had tried, actually, I initially tried using XAD resins downstream and the pumps would die in the field, the pressure drop was just too great. So XAD was just not a real option at that point so we had to come up with another method.

MS. SHERMAN: So in other words you believed that your method was more reliable and perhaps more sensitive?

DR. HAMMOND: It was definitely more sensitive than what was out as it was published at that point in time and definitely more reliable than what was available at that time.

MS. SHERMAN: And how about interferences? Were there fewer interferences with your method?

DR. HAMMOND: As long as I was analyzing for nicotine, I don't think that there's a real distinction between the methods. I think they would both work.

MS. SHERMAN: Going for a minute to your role as consultant, I believe, to the Scientific Advisory Board for EPA, do you recall if EPA used any dose response model in coming up with their estimate of risk?

DR. HAMMOND: I have to confess, I know this sounds very strange, I mean, I knew that stuff inside out two years ago but I just haven't gone back to that for a while. I apologize.

MS. SHERMAN: So you just don't remember.

DR. HAMMOND: I just don't remember. I was involved in a very major semiconductor study in the interim that's just blown all that away so I just don't remember those hearings. I'm sorry. I mean, we could go back and get it.

MS. SHERMAN: Perhaps. Thank you.

JUDGE VITTONE: Are you done, Ms. Sherman?



Mr. Rupp?

MR. RUPP: Your Honor, may I make two requests?

For the first time in the examination of

Ms. Sherman there was a reference to a building study that was conducted on the 32nd, 31st and the 19th floor of a building. I'd like to request formally that data on that study and a report if it's available be provided for the record and to the parties so that we can have an opportunity to look at it.

MS. SHERMAN: Mr. Rupp, I understand that it may already be in the request for information comments.

MR. RUPP: That is, it's in the comments in response to the RFI?


DR. HAMMOND: I think I submitted it back then, yes.


MR. RUPP: Would you identify that for us, please?

MS. SHERMAN: I'm not so sure we have an exhibit list with us. Perhaps we could -- and we don't have it memorized. Perhaps we could make it available tomorrow.

MR. RUPP: Okay. And I would also like to request that Dr. Hammond provide for the record the data on which she has relied in suggesting that there is recirculation of components, whether particulates or anything else, in buildings sharing a ventilation system.

DR. HAMMOND: That's in that paper.

MR. RUPP: That's in the same paper?

DR. HAMMOND: It's the same thing.

MR. RUPP: It's that paper on which you rely for making that suggestion?


MR. RUPP: I see.

JUDGE VITTONE: That is part of the record, though? Or it will be?

MS. JANES: Yes. It's in the RFI.

MR. RUPP: And you'll identify that for us?

MS. JANES: It's in three dash -- the comments to the NPRM are in nine dash. It's in the three dashes. We'll bring it in to you.

MR. RUPP: You'll identify it tomorrow?

MS. JANES: Yes. I'll identify it for you tomorrow.

MR. RUPP: Thank you.

Thank you, Your Honor.

JUDGE VITTONE: Thank you, Ms. Janes.

Dr. Hammond, I think that completes your testimony.

DR. HAMMOND: Thank you.

JUDGE VITTONE: Thank you very much. We appreciate your time.

DR. HAMMOND: Thank you.

JUDGE VITTONE: Let's before we run out of here, as I understand it, tomorrow we have the NIOSH people, the NCHS people and the NCEH people, which I guess are the same as NCHS, for tomorrow?

MS. SHERMAN: Yes. Could I make a general announcement?


MS. SHERMAN: For the record, tomorrow I believe we had -- well, we didn't get to Mr. Wallace today and I believe we had Mr. Beale scheduled for tomorrow?


MS. SHERMAN: In deference to the tobacco industry's request, we will reschedule Mr. Beale so that they will have more time with NIOSH. We have also rescheduled the flight attendants for Thursday and we have asked and BOMA has kindly consented to go on Friday, giving up their place on Thursday.

JUDGE VITTONE: All right. Okay.

So tomorrow it's basically NIOSH and the other group, NCHS, et cetera? Those people?

MS. SHERMAN: Yes, Your Honor.

JUDGE VITTONE: Okay. All right.

We will recess for the evening and then resume tomorrow morning at 9:30.

Thank you very much.

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