OSHA: Proposed Standard For Indoor Air Quality: ETS Hearings, September 29, 1994

OSHA: Proposed Standard For Indoor Air Quality: ETS Hearings, September 29, 1994



UNITED STATES DEPARTMENT OF LABOR

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

PUBLIC HEARING

PROPOSED STANDARD FOR INDOOR AIR QUALITY



Thursday, September 29, 1994


INTERSTATE COMMERCE COMMISSION

Constitution Avenue, NW

Washington, D.C.

The above-entitled matter came on for hearing, pursuant to notice, at 9:30 a.m.

BEFORE: HONORABLE JOHN VITTONE

Administrative Law Judge

AGENDA

PAGE

Christopher Witkowski 2104

Alice Evans 2116

Mary O'Shea 2121

Questions:

Debra Janes 2144

Ms. El-Mekawi 2146

Lee Hathon 2152

James Repace 2155

Ms. Sherman 2158

Randolph D. Smoak, Jr. 2164

Questions:

Darryl Alexander 2176

Bill Borwegen 2188

Diane Carlson 2200

Cathy Sarri 2208
Phil Thornton 2208
Margaret Jackson 2214

Questions:

Rex Tingle 2217

Darryl Alexander 2220

John DeFazio 2227

Jim Dinegar 2231

Clawson Eli 2253

Ms. Sherman 2255

EXHIBITS

EXHIBIT NO. IDENTIFIED RECEIVED

42 2103 2163

43 2103 2163

44 2103 2163

45 2115 2163

46 2143 2163

47 2143 2163

48 2172 ---

49 2182 ---

50(A-D) 2186 2216

P R O C E E D I N G S
9:30 a.m.

JUDGE VITTONE: Good morning, everybody.

Before beginning with our first group of witnesses, let me ask, are there any preliminary matters that need to be raised at this point? Ms. Sherman, do you have anything?

MS. SHERMAN: No.

JUDGE VITTONE: Okay. Anybody else? Good. My first panel of witnesses this morning is a three-person panel from the Association of Flight Attendants. Good morning. Who's going to be the chair of the group?

MR. WITKOWSKI: I'll be the chair.

JUDGE VITTONE: Okay. Would you please state your name for the record? Please identify the other participants in the panel and who you represent.

MR. WITKOWSKI: Yes, my name is Christopher Witkowski. I'm the Director of Air Safety and Health for the Association of Flight Attendants. On my left is Mary O'Shea, who is a member of the Association of Flight Attendants and works for a major carrier. Next to her is Alice Evans, who is also a member of the Association of Flight Attendants and who also works for another major carrier.

JUDGE VITTONE: Let me ask you, Mr. Witkowski, have you already, or has the association already submitted a statement for the record?

MR. WITKOWSKI: Yes, we submitted one back in August.

JUDGE VITTONE: In August.

MR. WITKOWSKI: I brought two additional copies.

JUDGE VITTONE: Okay. Can I have one right now, please?

(Brief pause)

MS. WARD: Mr. Witkowski, have you made any changes? Yes?

JUDGE VITTONE: Wait a minute, let me make sure I get everything here on the record. So why don't you just hold that question there, okay? Ms. Ward?

Do me a favor. Give copies to the OSHA panel and also ... we're going to be off the record a second.

(Discussion held off the record)

JUDGE VITTONE: Are there two statements, or are there three statements?

MR. WITKOWSKI: There's three.

JUDGE VITTONE: There are three statements. There's one from Mary O'Shea, one from Alice Evans, and one from you?

MR. WITKOWSKI: That's right.

JUDGE VITTONE: Could I have a copy of the one from you? All right, I have one. Thank you. The extra copies you gave me included all three of them?

MR. WITKOWSKI: Yes.

JUDGE VITTONE: All right. My law clerk has placed them on the table out front. Let me check with the reporter. Yesterday we left off with Exhibit 41-A? Okay. Ms. O'Shea's testimony will be 42, Ms. Evans' testimony will be 43, and Mr. Witkowski's testimony will be 44.

(The documents referred to were marked for identification as Exhibits No. 42, No. 43, and No. 44.)

JUDGE VITTONE: Now these were all submitted on September the 29th?

MR. WITKOWSKI: This copy, yes.

JUDGE VITTONE: All three of these, each copy?

MR. WITKOWSKI: Yes.

JUDGE VITTONE: Okay. Ms. Ward, you asked Mr. Witkowski a question. I want to make sure it gets on the record. Could you restate it please?

MS. WARD: Are the three statements distributed this morning the same as those filed in the docket on August 13?

MR. WITKOWSKI: No. There were some changes made to the statements that were filed this morning.

MS. WARD: Okay. To all three?

MR. WITKOWSKI: Yes.

MS. WARD: Thank you.

JUDGE VITTONE: Mr. Witkowski, as I understand it, each of you wants to make an oral presentation. You also have a short video that you want to show to the audience, too.

MR. WITKOWSKI: Yes, Judge.

JUDGE VITTONE: Okay. If you're ready to proceed, would you go ahead and do that please? You can start however you want to. If you want to talk first, or if you want the two of your colleagues to talk first, however you want to do it. You can start now.

MR. WITKOWSKI: What I'd like to do to begin is to show a brief videotape that lasts about ten minutes. It is a story done by ABC News/20-20 in which they reported on a survey by the Harvard School of Public Health on contaminants in airline cabins to add to a little bit of data to the study of airliner cabin air quality. I'd like to just begin and play that tape.

MS. SHERMAN: Mr. Witkowski, are you planning to leave a copy of this videotape?

MR. WITKOWSKI: Yes, I am.

MS. SHERMAN: So it will be in the docket office available for people to see?

MR. WITKOWSKI: Yes.

MS. SHERMAN: Thank you.

MR. WITKOWSKI: This study was conducted ...

JUDGE VITTONE: Mr. Witkowski, you're going to have to talk to the microphone, or nobody can hear you, or the reporter, more importantly.

MR. WITKOWSKI: The study was conducted between the months, I believe, of February and April 1994. The two principal investigators that led the team were Dr. Jack Spengler and Dr. Harriet Burge who are with the Harvard School of Public Health. They served on a committee for the National Academy of Sciences, which produced a report in 1986 in airliner cabin air quality.

JUDGE VITTONE: All right.

JUDGE VITTONE: Could you please make sure that volume is up as loud as possible?

"...air passengers talk about it more. They don't feel good, they're wondering if it's the air in the cabin, pollutants that come out of the chemicals in the toilet, that off-gas from the seats, the things that come out of the ovens. It is a very unhealthy environment.

"During the past decade, complaints about the quality of air in airplanes have been stacking up like jets at the nation's busiest airports. Many passengers get off flights complaining of headaches, fatigue, and nasal congestion -- symptoms they attribute to their flying experience.

"Critics say the problem stems back to the oil crisis of the 1970's which spurred manufacturers to build planes that use less fuel. In fact, they developed ventilation systems that use less fuel but also took in less fresh air. That, says the critics, has affected air quality.

"Throughout the debate, the flight attendants have been the most vocal in their complaints about air quality. Pam Touchstone has been a flight attendant for more than ten years. She remembers one time when she and the other attendants on her flight were overcome, gasping for breath. 'We found ourselves, six out of seven flight attendants sitting down on a plane full of passengers, unable to work, unable to have any presence out in the aisle until we made a stop.'

"Congressman Peter DeFazio, a frequent flyer, is convinced that the air in airline cabins is not fit to breathe. DeFazio makes regular coast-to-coast trips from Washington, D.C. to Oregon, his home state. 'I've had the sinus problems, I've had the headaches. I get sick as frequently as any other frequent flyer. You sit next to someone who's sick, you get sick. You hear someone two rows behind you coughing and snorting. You're pretty likely to get sick. They're putting that into the system. It's an extraordinarily unhealthy environment.'

"The debate about cabin air quality intensified last year when the Centers for Disease Control reported they were investigating four different flights to determine the possibility of transmitting TB on airplanes.

"One case involves California management consultant Bob Kahn. He and his wife, Patty, were on a plane with a passenger who was later diagnosed with contagious tuberculosis. After the flight, Patty tested negative, but Bob tested positive. Now Bob takes a daily drug regime to try to kill the tuberculosis bacteria. 'I take it in the morning, and I'm taking it five days a week.' The San Francisco Department of Health is also now investigating the possibility that Mr. Kahn and other passengers got TB on the flight.

'The idea was statistics, and when ten out of 25 people on a particular flight tested positive for tuberculosis, that's not a random chance.'

"The plane that the Kahns' flew, the MB-80, is part of a new generation of aircraft which filters and recirculates up to 50 percent of the cabin air, unlike older aircraft which utilized 100 percent fresh air. This new ventilation system which uses recirculated air is at the center of the debate about cabin air quality.

The director of Air Safety and Health for the Association of Flight Attendants is Chris Witkowski. 'When we had most planes with 100 percent fresh air, the air used to come in almost totally clean and then be exhausted every three minutes. Today, with the 50 percent fresh air and 50 percent recycled air, the plane isn't completely changed until approximately seven minutes or even longer in some cases. So you have air that has less quality to begin with, it's got more contaminants, and it stays in the plane longer.'

"But airline industry experts say that recirculated air works just fine. Michael Rioux is Vice President of Engineering for the Air Transport Association, a trade association representing all the airlines. 'We certainly don't want people to believe that we're trying to squeeze another nickel out of everybody's wallet just because we found out a way to make the airplane use less air. So what they've done is they've developed a system still maintaining, in fact, improving the ventilation flow to each passenger that's sitting in the airplane.'

"The recirculated air system relies on sophisticated filters to trap air contaminants. Critics charge that airlines don't replace the filters often enough. But the Air Transport Association says that airlines strictly follow manufacturer's guidelines for filter maintenance.

"So, does cabin air pose a threat to health? Does the use of recirculated air foster an environment in which bacteria or viruses are more easily transmitted? To date, the only scientific study of airplane air quality has been done by the Department of Transportation in 1989. That study confirmed that smoking was indeed a health hazard. But many experts say the DOT study did not adequately study such things such as pollutants or germ transmission or inadequate ventilation as possible health threats.

"To begin to get some answers to these questions, 20/20 commissioned an independent survey. The 20/20 survey was lead by Dr. John Spengler, Professor of Environmental Health at the Harvard School of Public Health, and by Dr. Harriet Burge, Associate Professor of Environmental Microbiology, also of Harvard. Both are internationally know experts, each having more than 20 years studying environmental air quality and airborne microbes. 'Within fifteen seconds of both my watch and the IAQ...'

"A survey began two months ago with Drs. Spengler and Burge preparing Harvard Research Engineer Tom Dumyahn and Research Assistant Carrie Dahlstrom to collect the data on the airplane. Dumyahn and Dahlstrom set out to collect data in eleven categories, including such things as carbon dioxide, noise levels, organic compounds, as well as samples of dust, to be tested for contaminants, something that has never been tested before in airplanes.

"The testing was done without the knowledge of the airline industry. Dumyahn and Dahlstrom conducted extensive tests during boarding and while in flight. They also vacuumed up samples during de-planing. In all, they flew on every domestic airline, 22 flights in 10 different aircraft models. They sat in the front and rear of coach sections of flights with an average passenger load of nearly 80 percent. 'When the plane actually is in cruise, they're staying pretty consistently around 1,500.'

"When Doctors Spengler and Burge analyzed the data, they found some surprises. For example, they found high levels of carbon dioxide. These levels indicate inadequate ventilation and may be the cause of symptoms like fatigue and headaches and sinus problems.

"'Would these levels be a particular concern to the workers on the plane, the pilots or the attendants?'

"'The pilots probably aren't experiencing the same levels at all, considering that they have different ventilation systems. I would expect they would be of considerable concern to the flight attendants.'

"The Harvard survey's biggest surprise is bad news for people with asthma and allergies. Mites, minute disease-causing bugs, were found in dust samples collected from seats and carpets. The levels were high enough to indicate that mites had nested, possibly settling in permanently. And they found extensive evidence of cat allergens, presumably brought on by passengers. Allergens are substances that can trigger allergic reactions.

"'Your eyes hurt, you might have sneezing episodes, you might have coughing and congestion. And I think this is a very important finding that has never been mentioned before.'

"The dust samples also revealed relatively high levels of endo-toxins, which are substances found in the cell walls of certain bacteria. They are potentially toxic substances never before linked to airplanes. The Harvard researchers think these may be a cause of the dry-eye and scratchy-throat symptoms suffered by many air travellers.

"'My expectation would be that if we continued to sample, the average would be higher in airplanes than in housedust, which is very, very surprising.'

"'We've often heard complaints from flight attendants about their malaise, their symptoms of eye irritation, throat, respiratory problems. And this certainly is a biological entity that can contribute to that or cause that. So I think it warrants a further investigation.'

"The Harvard scientists paid particular attention to the way in which air travelled inside the plane. They wanted to know if passengers seated in the back of the cabin are susceptible to the germs of those in the front of the plane.

"Michael Rioux of the Airport Transport Association says, 'that's not possible, because the airflow in the plane is top to bottom, not front to back. If you're talking about two rows back or two rows up, you wouldn't have any effect at all, as far as a forward and aft movement.'

"So if the air comes from top to bottom but doesn't move back and forth, you're not going to get the breathing of a person several rows back or several rows in front?

"(Michael Rioux): 'That's correct. Somebody in row 33 wouldn't be affected by someone in row 2 or even row 3.'

"But the Harvard Scientists say that is not true. They conducted a special ventilation test. 'I think we've demonstrated beyond a doubt that we can pick up contaminants or indicators of that throughout the plane, so that if it were released in seat 16, in seat 28 you're going to see part of that; seat 35 you're going to see part of that.'

"What about tuberculosis, something that has been of great concern to the public?

"'Tuberculosis is not a disease that can be controlled by ventilation, and there's actually really quite good data in the literature to indicate that no amount of ventilation will prevent tuberculosis.'

"So what is the bottom line? Even though there are no final answers, this survey does identify potential explanations for some of the common complaints from flyers, such as nasal congestion, eye and throat irritation, and fatigue.

"Overall, would you describe airplane air quality as 'safe?'

'I don't think I would ever categorically say that this is a safe environment. It's very worrisome. It worries me when I hear people doing that, because you can't ever know that.'

"And until this problem is thoroughly examined, people like Pam Touchstone worry that their health may be compromised. 'This is easily dismissed because there are a lot of variables, there are a lot of things that are going on out there that attributes to this problem. But it's very simple, and it's just common sense. It's about fresh air.'

(Barbara Walters): "'Well, Timothy Johnson is in our Boston studio. What does the airline industry say about this?'

(Timothy Johnson): "'Well, as you know, Barbara, a few weeks ago, they released their own study concluding that air in airplanes was safe. We obviously feel that the Harvard researchers have uncovered some new questions that need to be answered. I stress they are preliminary questions. We need much more study. The Air Transport Association today released a statement saying they are looking forward to reviewing the Harvard findings. They want to reassure the public that air travel is safe.'

(Barbara Walters): "'Well, in the meantime ..."

(End of Video)

JUDGE VITTONE: Mr. Witkowski, we can take care of that when you're done. For the record, the video that you just showed was a portion of a television program from the American Broadcasting Company, ABC News?

MR. WITKOWSKI: That's right.

JUDGE VITTONE: Do you know the date of that program?

MR. WITKOWSKI: I believe it was, I think, oh, it's at the beginning of the tape.

JUDGE VITTONE: It will indicate it on the tape?

MR. WITKOWSKI: Yes.

JUDGE VITTONE: Okay.

MR. WITKOWSKI: There was one point I wanted to make about the tape, a clarification.

JUDGE VITTONE: Go ahead.

MR. WITKOWSKI: At one point Dr. Burge was asked the question about tuberculosis and airplane cabins and whether ventilation has any effect on the spread of tuberculosis. And she said that increased ventilation can't prevent tuberculosis. I asked her about that later, and she told me that by increasing ventilation you can, however, reduce the risk of spreading tuberculosis on the aircraft. So increased ventilation serves as a way to increase dilution of contaminants, including tuberculosis bacteria.

JUDGE VITTONE: Okay.

MS. SHERMAN: Your Honor, may I identify Exhibit 45?

JUDGE VITTONE: Yes. That will be Exhibit 45, the tape from the ABC television program.

(The document referred to was marked for identification as Exhibit No. 45.)

JUDGE VITTONE: Mr. Witkowski, what do you want to do now?

MR. WITKOWSKI: Well, Judge Vittone, I'd like to begin by having Alice Evans give her testimony.

JUDGE VITTONE: All right. Ms. Evans, if you're ready, go ahead.

MS. EVANS: Yes, sir. Good morning, ladies and gentlemen. My name is Alice Evans. I've been a flight ...

JUDGE VITTONE: Ms. Evans, I'm sorry, pull that thing closer to you so we can make sure everybody hears you and we can get you recorded.

MS. EVANS: I have been a flight attendant for a major airline for 23 years, and I'm a member of the Association of Flight Attendants, AFL-CIO. On behalf of myself and many other flight attendants who share my experiences, I am pleased to speak to you today on OSHA's proposed rule on indoor air quality and the effect of poor air quality in my place of work, the airplane.

While passengers often complain of poor air quality, flight attendants have the greatest reason for concern. Flight attendants who routinely work in cabins with poor air quality complain of respiratory difficulties, including dizziness, severe headaches, and loss of balance.

Despite hundreds of reported incidences of health-related problems relating to cabin air, the federal government agency that oversees aviation workers' safety and health has failed to take any action.

In 1975, the Federal Aviation Administration claimed complete jurisdiction over aviation crewmember health and safety. Since that time, aviation workers' safety and health have fallen under the jurisdiction of the FAA as the regulatory agency that oversees air safety. Yet the FAA has done nothing to help me or my flying partners.

For example, when air quality problems occur, there is very little protection and recourse available to those who work within this environment. This unfair situation results from provision 4(B)(1) in the OSHA Act that provides for partial OSHA preemption whenever another federal agency regulates the working conditions of the employees.

Let me tell you what happened to me in May of this year. My experience is similar to many of my flying partners. Shortly after takeoff, I noticed that there just did not seem to be enough air to breathe. I started feeling hot and light-headed. My colleagues experienced the same symptoms.

When I went to the cockpit to alert the pilots, I was told that they could not talk to me because there was a "problem in the cabin." Fifteen minutes later, the second officer called me. He told me that the cabin altitude, and by that I mean cabin air pressure, went over 10,000 feet and that the gauge was broken and that they would have to control cabin altitude manually. Because I did not want to discuss this in front of passengers, I went up to talk with the officer.

I reported that all eight flight attendants were experiencing difficulty breathing, tingling in their arms and hands, and nausea. I asked the pilots to provide us with as much fresh air as possible. They told me this was already being done, at which time I noticed that one of the controls regulating the fresh air was not turned on.

I returned to my duties and was pouring coffee and drinks when I had to stop. I went to the service center feeling disoriented. Later, another flight attendant told me that I had been unable to let go of the coffee pot, and one of my crewmembers caught me as I passed out.

I was helped to the cockpit, where I could receive 100 percent oxygen out of the view of passengers. After three requests, the second officer went back into the cabin and confirmed that something was wrong. After taking oxygen for a few minutes, I was concerned about my crew and went back into the service center.

My flying partners continued to experience difficulties. My own vision was blurring, and I was unable to hold onto objects.

This problem was affecting not only flight attendants. Many passengers complained, and in fact, there usually are lines for the bathroom after the food service and movie. But that day, the bathrooms and aisles were empty, because most passengers appeared asleep. An infant became very ill as well.

The pilots were informed that most of the flight attendants were down and unable to perform their duties, should an emergency situation arise. Despite a request to land the airplane, the captain would only descend from 35,000 to 31,000 feet. With more than two hours before landing, he ordered all crewmembers to receive a mandatory ten minutes of oxygen.

Approximately one hour away from our destination, I requested that upon arrival, a supervisor meet our flight and that my crew receive medical attention. Unfortunately, no one met us, and I do not know if the request was relayed.

Several hours later, we went to the hospital and received bloodwork. The blood tests showed nothing, but we continued to feel very ill. We were released and went to our motel.

By the evening, I decided that I could not work the next day. We returned to see the doctor, and he authorized that we simply return home. The doctor could not explain nor did he know what was wrong or what had happened. He suggested that we suffered from oxygen deprivation, along with possible ozone exposure and hypoxia.

To this date, I still have received no specific information about that terrible flight.

Sadly, I have discovered that my experience is not uncommon. We are not the only group of flight attendants to get seriously ill from poor air quality in our workplace.

And yet, the federal agency charged with protecting my health and safety has done nothing to date to address this situation.

How long will flight attendants' health and the related safety of passengers remain at risk? Will the federal government wait until people die, because, during an emergency situation, flight attendants were unable to respond due to serious health problems relating to poor cabin air?

The Association of Flight Attendants has supported efforts to modify the OSHA Act. We believe OSHA should have general authority to regulate occupational safety and health for all workers. However, OSHA should have the flexibility to give jurisdiction over regulation of particular safety and health hazards to another agency if OSHA determines that the other agency has and is enforcing a standard that is as effective as the applicable OSHA standard.

As a member of AFA. I fully support OSHA's efforts to improve indoor air quality for American workers including its proposed level of 800 ppm of carbon dioxide. Workers in buildings and enclosed spaces should get enough fresh air to reduce the likelihood of illness and to improve their well being and productivity. Even more so, flight attendants need to breathe air that remains below the maximum standard for carbon dioxide, or in other words, provides a minimum amount of fresh air to our workplace.

As safety professionals, the lives of our passengers may depend on our ability to perform our emergency and first aid duties. No longer should be subjected to intermittent, involuntary impairment that permanently damages our health and leaves our passengers undetected.

Please act now so that other flight attendants do not have to suffer from experiences similar to mine. The fact that I work on an airplane should not preclude the federal government from requiring that I work in a safe and healthy environment.

I'd like to thank you for the opportunity to share my experience with you, and I will answer any questions that you may have.

JUDGE VITTONE: Thank you, Mr. Evans.

Mr. Witkowski, who's next?

MR. WITKOWSKI: Mary O'Shea will be the next witness.

JUDGE VITTONE: Ms. O'Shea?

MS. O'SHEA: Good morning.

My name is Mary O'Shea, and I've been a flight attendant for a national airline for five years. I'm also a member of the Association of Flight Attendants, AFL-CIO.

On behalf of myself and my flying partners, I'm pleased to speak to you today on OSHA's Proposed Rule and the effect of poor air quality in our workplace, the airplane cabin.

It's been a little over one year since I worked a three day trip during which I experienced severe health problems. In the days, weeks and months that followed my incident, I was so impaired that I was unable to work.

While it is frustrating to be so ill, what is equally upsetting has been my company's and the government's total disinterest concerning my and other's illnesses. The airline and the Federal Aviation Administration have refused to do anything about our air quality problem. This is why I'm here today.

You've already heard Ms. Evans' story. She outlined the fact that despite claiming jurisdiction over aviation crew member health and safety, the FAA has failed to make any serious effort to address occupational safety and health issues outside of the area of crash survivability.

Poor cabin air quality affects not only the health of flight attendants, but the safety of passengers and crew as well. When flying, safety is a flight attendant's primary responsibility. On average, flight attendants work 12 to 14 hours a day, averaging five to seven take-offs and landings a day, while seeing to the needs of approximately 900 to 1200 passengers during routine three day trips.

Flight attendants do more than simply serve refreshments and evacuate an airplane in an emergency situation. We must deal with possible hijackers and terrorists. We are the fire department at 30,000 feet who must be able to detect and fight in-flight fires. We are the paramedics, effectively handling in-flight medical emergencies ranging from heart attacks to turbulence-related injuries. Flight attendants assist passengers in aircraft decompressions and are the on-site bomb squad. In addition, we perform normal safety and service duties on board the aircraft.

Flight attendants save lives in the event of a crash. Just this year during the crash of a DC-9 in Charlotte, North Carolina, a flight attendant was credited with saving the lives of numerous individuals.

When a flight attendant is sickened by the affects of poor air quality, he or she may not be able to perform important safety duties. Let me tell you what happened to me.

On July 9, 1993, I reported to work for a three day trip. En-route to our first destination, I became dizzy, disoriented, and developed a severe headache -- symptoms my flying partners were also experiencing. The first flight attendant notified the captain, who invited us to go to the flight deck and use oxygen. I took advantage of this, and while my symptoms were temporarily alleviated, I remained unable to perform my duties. I spent most of the remaining flight seated.

Upon arrival, I went straight to my hotel room and slept. When I woke the next morning, I felt better. I continued to feel well that day, and the next morning. However, on my second flight on July 11th, I once again began to experience headache, dizziness and nausea. The symptoms became more severe on the next leg of the trip, and I notified the captain that I and the other flight attendants were sick. However, the pilots informed us that the gauges were reading normal.

It was on the following flight that our symptoms became severe. I was so dizzy that I was walking into seat backs and bulkheads, dropping cups, spilling beverages, and pouring coffee over my hands. I couldn't even help provide a passenger with his choice of beverage, bringing him orange juice repeatedly instead of the apple juice he had requested.

I became completely disoriented. I was having difficulty walking. My legs and arms were numb and tingling. My head was aching. My ears were ringing loudly, and my vision began to fail.

When I walked to the rear galley, I found the other three flight attendants laughing uncontrollably and disoriented. The senior flight attendant had us all sit down and take oxygen. In addition, we noticed that many passengers appeared to be passed out and had complained of headaches and ear pain.

During this flight I was so disoriented and fatigued, that I was concerned about my ability to perform necessary duties in the event of an emergency.

When all this was over and we deplaned, paramedics were called to examine us. A supervisor was contacted and informed the first flight attendant that we would be required either to continue to work, or to go to a company-designated hospital, rather than return home.

It was clear to us that we could not continue to work. We were accompanied by a designated airline employee to the hospital. The supervisor had also informed the first flight attendant that we would not be given an arterial blood gas test. Now at the time I was so impaired that I never questioned whether a supervisor should be directing what type of medical care or tests we could or should receive.

At the hospital, we waited nearly three hours before being seen by a doctor. Then the doctor gave us EEG tests. Without any explanation or diagnosis, we were returned to the airport. Finally we were given hotel rooms and dinner, and during all of this, I was so disoriented that I had to follow the other flight attendants around.

The following day we were flown home. I even had difficulty driving myself home that day, not recognizing any familiar streets. Upon arriving at home I went to bed and remained there for the better part of the next two days.

Within a couple of days I was contacted by my airline's insurance administrator, informing me that I could not classify my illness as an on-the-job injury, because I would not be able to prove that I had sustained an injury.

In the months that followed my incident, I remained impaired by fatigue, disorientation, inability to concentrate, numbness of my extremities, joint pain, ringing in my ears, hearing loss, short term memory loss, severe headache, visual disturbances and sensitivity to light, lack of coordination, extreme chemical sensitivity and extensive hair loss, which requires me now to wear a hair piece.

Following an eight hour neurological/psychological exam two months later, a highly qualified doctor stated that the symptoms I experienced could be explained by exposure to the air on board the aircraft that I flew. However, because I had not received the proper medical care and tests immediately following my incident, she was unable to prove this.

Today I still have chemical sensitivity, ear ringing, and joint pain. I returned to work on June 1st of this year, nearly 11 months after my incident. I worked in pain for nearly two months, but my symptoms have become so disabling that I have once again been forced to stop flying.

The Federal Aviation Administration and my company provided no support or assistance. Someone must take responsibility for this real problem that exists on aircraft -- our workplace -- and begin to find a solution.

Flight attendants who do report these incidents have their complaints fall on deaf ears. As a result, more and more flight attendants are quietly suffering through the problems, rather than be faced with a total lack of interest.

Something in the air is affecting flight attendants and we must correct it. My fear is that some day an emergency incident will occur on a flight with flight attendants who are impaired by the effects of this poor cabin air quality. I shudder to think of the potential outcome should this occur.

I urge OSHA to work with Congress to improve the quality of air on aircraft so that other flight attendants do not suffer the same debilitating health problems that I do now.

Congress did once act to improve the quality of my workplace. In 1989, Congress acted to ban smoking on all domestic flights. This was an important step toward improving cabin air quality. Congress should act swiftly to extend this domestic ban to international flights.

Thank you for allowing me the opportunity to testify here today. I'd be pleased to answer any questions.

JUDGE VITTONE: Thank you.

Mr. Witkowski?

MR. WITKOWSKI: Thank you, Mary. Thank you, Alice.

The two stories you just heard are two of many, many stories that I hear every week from flight attendants throughout the country who are overcome by toxic fumes, are made sick by bacteria and viruses that they catch on the plane. Their complaints fall on deaf ears. Often, if they go to the cockpit to ask the pilot to turn up the air packs to increase ventilation on the plane, they may be told that yeah, we'll take care of that, but they never know whether it's been done. Most often, it's not done.

Today in the airline industry there is a lot of pressure coming from the airline companies to save costs -- to save fuel and cut costs wherever possible. Of course the pilots are under pressure to justify the amount of fuel they use during a flight. So flight attendants are a group out there doing their best to make sure that the passengers are cared for and responded to if there's an emergency. But they're almost left on their own to deal with trying to work under conditions of, in some cases, terrible air quality.

I want to speak to you regarding OSHA's proposed rule on indoor air quality aboard airplanes. The workplace of flight attendants is a matter of growing concern today, and AFA believes that airplane cabins should be covered by the proposed regulations of OSHA.

The FAA, Federal Aviation Administration, issued a policy statement in the Federal Register in 1975 claiming complete jurisdiction over crew member safety and health. However, while it's true that aircraft design and operational issues have an affect on crew member health and safety, it does not follow that all crew member health and safety issues are considered during the design and operation of aircraft.

One of the most frustrating things for us today is that there are no minimum standards for the amount of fresh air ventilation for the aircraft cabin. That is a major problem, because airplanes are being designed today that are going to be flying for the next 40 or 50 years. Unless some standards get set for minimal ventilation, we are going to be suffering like this well into the next century.

Ironically, the FAA has made few statements about crew health or about this Federal Register notice since 1975. Furthermore, no exhaustive or even systematic effort has been made to protect crew health or safety beyond those areas where the safety of the crew is important to ensure the safety of the passengers.

In May of 1990, over four years ago, AFA petitioned the Federal Aviation Administration to adopt and apply to airline crew members the statutory protections of the Occupational Safety and Health Act and the existing and proposed standards of the Occupational Safety and Health Administration. FAA has not yet even acted on our petition. I called them last week. They told me it was on the back burner. I said, "When are you going to do something about it?" They tell me things could change at any moment.

Consequently, flight attendants are being denied their right to equal protection under the law.

Section 4(b)(1) of the Occupational Safety and Health Act of 1970 addresses the jurisdiction of OSHA when another federal agency is also involved in regulating the working conditions of a group of employees. In an effort to avoid duplicative agency effort, Congress provided that nothing in this Act shall apply to the working conditions of employees with respect to which other federal agencies exercise statutory authority -- and the key word here is "exercise" statutory authority -- to prescribe or enforce standards or regulations affecting occupational safety and health.

The legal cases interpreting Section 4(b)(1) have centered around the issue of whether another federal agency can completely preempt OSHA from jurisdiction, or whether preemption is limited to specific working conditions or hazards regulated by the other agency. The latter interpretation of Section 4(b)(1) ensures that employees are protected from problematic working conditions and hazards, and is therefore preferable from a public policy standpoint.

In an area analogous to aviation, Coast Guard regulation of vessels, the 2nd Circuit held that OSHA's noise regulations applied to uninspected vessels because isolated Coast Guard regulations do not constitute an exercise of statutory authority by the Coast Guard sufficient to oust OSHA of jurisdiction. That was Donovan vs. Red Star Marin in 1985.

The 11th Circuit held that OSHA had jurisdiction over a crane fatality on an uninspected vessel in the absence of any Coast Guard regulations covering crane operation, in re Inspection of Norfolk Dredging Company, 1986.

As we concluded in our 1990 petition to FAA, a balance has to be found between wasteful agency duplication and wasting or damaging human lives by leaving harmful workplace conditions unregulated.

Although the FAA regulates the safety of the aircraft, its interest in protecting crew members has historically been another matter. First and foremost, the FAA wants to keep pilots safe so they can fly the plane, and flight attendants safe so they can evacuate the plane in an emergency. There has never been any serious interest on the part of the FAA in protecting the health and safety of crew members as a goal in and of itself.

Now that OSHA this year is in the process of regulating indoor air quality standards for workplaces, airplane cabins should be included as a workplace that is covered by the OSHA regulation. Despite numerous complaints by flight attendants about poor cabin air quality, the FAA has refused to take effective action to address cabin air quality problems.

The smoking ban on domestic flights came about only after several congressional hearings, which we, by the way, participated in, on the subject; and finally, specific laws passed by Congress.

It is clear that more needs to be done. The inadequacy of cabin air quality has been evident in several studies over the years. In a summary of a study of airliner cabin air quality that it sponsored in 1989, the U.S. Department of Transportation stated that it found relatively high carbon dioxide levels. On 87 percent of the flights they averaged over 1500 parts per million of carbon dioxide. On non-smoking flights the average carbon dioxide concentration was 1756 parts per million.

Dr. Hiren Nagda who was the principal investigator for the DOT study testified before Congress last July that the possibility of transmission of diseases and infections may tend to increase in environments with lower fresh air rates.

Dr. Nagda also went on to say that given the concern about transmission of infection and diseases, and the fact that carbon dioxide levels in seven out of eight flights in that study exceeded the ASHRAE criterion, further research should be done. But in the meantime, he said, "It would be prudent to increase airliner cabin ventilation rates whenever and wherever possible."

Today's headlines offer a perfect example of why proper aircraft cabin ventilation is so important. Right now an outbreak of plague has stuck India. Plague can be acquired by inhaling infectious aerosols from persons with plague pneumonia or pneumonic plague. This is the most contagious form of the disease and the form that progresses most rapidly. It can be treated with antibiotics, but if left untreated, mortality cases can exceed 50 to 60 percent.

The U.S. Center for Disease Control and Prevention states in its plague outbreak notice on this matter, that persons are at increased risk in three situations, one of which is close contact with a person with pneumonic plague. Close contact is defined as face-to-face contact, or being within the same enclosed space such as a room or a vehicle.

Yesterday I spoke with Dr. Duane Gubler of the Center for Disease Control, and he is involved in that agency's response to this outbreak. When I asked him about ways to reduce the risk of catching this disease from an infectious person on an airplane, Dr. Gubler said, "Without question, increased ventilation would decrease the risk."

An aircraft cabin environmental survey was conducted earlier this year by Harvard University, which we saw some of the results of in the tape. During flight, average carbon dioxide levels were 1500 parts per million on flights with partially recirculated air, which was up to twice the levels measured on planes with 100 percent outdoor air systems. In effect, the planes with 100 percent outdoor systems can provide carbon dioxide levels within the 800 parts per million standard that OSHA is now proposing, but many of these planes have been retrofitted with partial recirculation systems, and new plane designs don't need to provide for a minimum level of fresh air beyond that needed to pressurize the aircraft to an altitude equivalent of 8,000 feet or less. This is because the FAA, as I said earlier, has no required minimum level of fresh air per person in the cabin.

The Harvard study found airplanes with recirculated air had higher bacteria levels than those with 100 percent outdoor air systems. Even in the 1994 industry-sponsored study, the Air Transport Association's contractor found that the two fresh air airplanes that they studied with 100 percent fresh air, showed significantly lower average levels of contaminants than the airplanes with recirculated air. This indicates to us that the HEPA filters, high efficiency particular air filters that are used on new aircraft, were not as effective in removing bacterias as expected and as claimed by manufacturers and airlines.

Mark J. Mendell of NIOSH in a 1993 comprehensive survey of studies of non-specific symptoms in office workers in buildings, found a significant reduction in complaints of this type when ventilation in the work area was increased above 20 cfm, which does fall within the 800 parts per million level of carbon dioxide being proposed by OSHA.

The 1986 National Academy of Sciences study, airline or cabin environment, recommended that maximal air flow be used with full passenger complements to decrease the potential for microbial exposure. The FAA has done nothing to implement this recommendation.

The NAS study noted that, "The FAA has claimed regulatory jurisdiction over the cabin as a workplace. FAA asserts that its responsibility toward passengers is related to their safety and claims not to have regulatory authority over health. No federal agency monitors the health of flight attendants."

Flight attendants are out there basically twisting in the wind when it comes to health. And many of them, as I told you earlier, their health is being severely damaged, and some of them I know personally have been permanently disabled.

The National Academy found that cabin crew and passengers in an airliner can be exposed to a number of substances that can cause eye, nose, and respiratory irritation -- symptoms commonly reported by crew and passengers when complaining about air quality in airplanes. Recent research has uncovered some explanations for such symptoms. A study sponsored by the EPA shows that eye irritation begins when carbon dioxide levels reach 0.1 percent or a thousand parts per million -- a fairly conservative number. This level of carbon dioxide acts as an eye irritant by increasing the concentration of carbonic acid on the surface of the eye. Irritation increased with higher levels of carbon dioxide. Repeated exposures such as flight attendants would experience, led to decreased sensitivity. Thus in an aircraft cabin, passengers might experience itching, burning eyes well before the flight attendants even notice the problem.

The Harvard survey found relatively high levels of endotoxins which are substances found in the cell walls of certain bacteria. They are potentially toxic, and were not previously linked to airplane cabins. Harvard researchers said the endotoxin can cause or contribute to the dry eye and scratchy throat symptoms suffered by many flight attendants and passengers.

In the study that was done by the Air Transport Association, they claimed that these symptoms were strictly caused by low humidity on aircraft.

A recent paper points out that tuberculosis has returned in an antibiotic resistant form, and epidemiologists warn that each person infected with active TB usually infects three to four more people. Physical proximity such as in the aircraft cabin exposes workers to airborne viral hazards, most notably TB, but also diphtheria, legionellosis, and poliomyelitis. Immigration is a vector of transmissible diseases, and the flight attendant who meets immigrants in the traveling public may be exposed to disease whose threat is less than obviously.

Sometimes you'll get a passenger who seems perfectly all right when they board the plane, but they can start having symptoms during the flight and be contagious and spread an illness during that flight.

The author of this paper that I referred to above, says that aviation employees are exposed to infection through physical proximity to passengers returning from areas where they may have contracted disease. She cites the following studies to illustrate her point. In a study of infections imported to Great Britain from the Middle East, it was found that large numbers of people return each year, approximately two million people in 1990, carrying latent communicable diseases from which they later become ill.

A study of new immigrants entering Switzerland between 1987 and 1990 found a high prevalence of tuberculosis among them -- 174.3 cases per 100,000 among non-Swiss workers. An Australian investigation of children admitted to the hospital with TB found that immigration accounted for most cases of tuberculosis.

The paper recommends that a complete respiratory protection program be applied to commercial aircraft to reduce potential exposure to a range of airborne biohazards, but the author maintains that if it protected against TB alone it would be worth the cost and effort because the public health hazards and economic costs of tuberculosis are great.

This is a very good recommendation, but it will be a long time before we ever see FAA even consider adopting these kinds of programs to control these illnesses.

We have a problem with Hepatitis B, with AIDS, in addition to the airborne problem, but I'll stick to addressing that at this hearing.

The compliance program, implementation program of the OSHA-proposed rule requires the employer to monitor carbon dioxide levels when routine maintenance under paragraph (d)(1) of this air quality section is done. When carbon dioxide levels exceed 800 parts per million, the employer is required to check to make sure that the HVAC (heating, ventilating, and air conditioning) system, is operating as it should, and correct any system deficiencies. We would love to have something like that on aircraft. I can't tell you the number of times I've talked to flight attendants who have complained about filthy filters and socks that are used to screen out contaminants, and they get absolutely no response from maintenance. In fact when they put pressure on them, they see that these things are just basically packed with contaminant material

The standard of 800 parts per million or less of carbon dioxide is reasonable and appropriate to help ensure that ventilation into the workplace is sufficient to provide a healthy environment.

The State of Massachusetts Department of Public Health has set the following guidelines for carbon dioxide concentration. Preferred level, 600 ppm. Acceptable, 600 to 800 ppm. Above 800 ppm indicates inadequate ventilation. The State of New Jersey indoor air quality standard for public buildings sets the maximum allowable carbon dioxide concentration of 800 parts per million.

Applying this standard to airplane cabins would go a long way toward improving air quality aboard aircraft and the health and safety of flight attendants. And I might add again, as the flight attendants earlier pointed out, they are responsible for protecting passengers in an emergency and evacuating them. We've had cases where flight attendants have been disabled because of contaminants in the airplane during the flight, that if there was an emergency they would not have been able to assist in an evacuation, and people could have lost their lives because of such a situation.

In light of the recent outbreak of the plague, something that never crossed my mind, and I'm sure most people in the United States never thought about the plague being a threat, but our flight attendants are thinking about it. They're flying to Europe. There are people flying out of India with absolutely no control of who's getting on those planes in India. There's no way to control that.

In light of the recent outbreak of the plague, Dr. Jonathan Mann of the Harvard School of Public Health warned that "the rapid movement of people all over the world creates conditions for the global spread of infectious diseases."

From a public health perspective, another benefit of this improved standard on airplanes would be to reduce the risk of widespread transmission of diseases.

We appreciate the opportunity to testify in this important rulemaking and urge OSHA to rightfully fill the de facto vacuum of jurisdiction over air quality in airplane cabins -- the workplace of flight attendants.

I wanted to point out that I do have a copy of that study. I just got it since I filed my August 13 documents, and I have a copy that I can provide to the committee.

Also, I wanted to point out that one of the things that was in my August 13 filing was a letter to FAA Administrator David Hinson asking him to investigate a serious air quality problem of one of the carriers whose flight attendants we represent. This had 70 serious air quality incidents with flight attendants, some of them being removed from work because they were so sick, during the period of 1993 and early 1994. This was July 7th. It's been almost three months. We have not heard back from Administrator Hinson. That's pretty much the way it goes when we complain about an air quality problem with the FAA.

Also, one thing I mentioned to the Administrator was that in the past, FAA failed to show an interest in documenting the extent of the problems or finding its cause at this airline. In fact, in 1991, the FAA requested that this airline no longer send reports on air quality incidents and illnesses to the agency. So they're actively turning away reports of air quality incidents that are damaging the health of our flight attendants and the safety of operations.

Thank you very much.

JUDGE VITTONE: Thank you, Mr. Witkowski.

Let me ask you a few questions, here.

The report that you're talking about, can you identify it specifically for the record?

MR. WITKOWSKI: It was a paper. The title is "Aviation Personnel Not Immune to Infectious Disease Exposure" and it appeared in the Cabin Crew Safety publication of the Flight Safety Foundation in the July/August 1994 issues. It's Volume 29, number four. The Flight Safety Foundation is based in Arlington, Virginia.

JUDGE VITTONE: Do you want to provide that for the record?

MR. WITKOWSKI: Yes, I will.

JUDGE VITTONE: That will be Exhibit No. 46.

(The document referred to was marked for identification as Exhibit No. 46.)

JUDGE VITTONE: What was the other document that you referred to? A letter to the FAA Administrator?

MR. WITKOWSKI: Yes. I have a copy of that that I can provide also. This was...

JUDGE VITTONE: Give me the date and who it's addressed to.

MR. WITKOWSKI: The date is July 7, 1994; and it was addressed to Administrator David R. Hinson, H-I-N-S-O-N, of the Federal Aviation Administration.

JUDGE VITTONE: That was signed by who?

MR. WITKOWSKI: That was signed by myself.

JUDGE VITTONE: That will be Exhibit No. 47.

(The document referred to was marked for identification as Exhibit No. 47.)

JUDGE VITTONE: Thank you very much for your presentation.

Let me have an indication from the audience who has questions for this panel.

(No response)

JUDGE VITTONE: I see no indication.

Ms. Sherman, do you have any questions?

MS. SHERMAN: Yes, we have a few questions, Your Honor.

MS. JANES: This is Debra Janes. Good morning.

Have you ever done any kind of surveys of your members to determine the prevalence of symptoms due to problems with air quality aboard aircraft?

MR. WITKOWSKI: Right now we're doing a health survey of our flight attendants, a random sample of our membership, and we're doing it in stages. The first stage we're doing is reproductive health. The next stage we're going to do are respiratory ailments. So as of right now we don't have data on respiratory ailments, but we hope to have something some time next year on that.

As far as complaints from flight attendants, we do get anecdotal complaints that are given to each of the safety and health representatives at each carrier. Then some of those are passed on to my office.

MS. JANES: Do you keep any kind of central record of those complaints?

MR. WITKOWSKI: We have some in a central record place, and then others are kept at the different bases of the different airlines that we represent. We represent 22 carriers. But we do have a lot of the complaints at our office. There are 70 of them right here in this document that I sent to the Administrator.

MS. JANES: What recourse do flight attendants have after they report symptoms?

MR. WITKOWSKI: I think that sometimes when the flight attendants report symptoms they're told by the company dispatcher that they must continue to fly. We've had flight attendants who have been very ill, and really should have been taken to a hospital immediately. And often the company, because of wanting to get the flight out on time, will try to urge the flight attendant to continue flying. Not only is this damaging to the health of the flight attendant, but it also puts the safety of the next flight in jeopardy because the flight attendant may not be able to properly execute duties in the event of an emergency, or simply do everyday safety functions such as making sure that the doors are armed, meaning that the doors will operate if there's an emergency and the plane has to be evacuated.

MS. JANES: So you don't have any kind of data on lost work time or decreased productivity from your members?

MR. WITKOWSKI: The airlines have that data, but they're not willing to share it.

MS. JANES: Or with us.

Can you describe generally the range of health affects that these members experience?

MR. WITKOWSKI: Could you repeat the question?

MS. JANES: Can you just describe in general the range of health affects? I know that, I would just like it in one compact statement for the record.

MR. WITKOWSKI: The types of health affects that flight attendants suffer, I guess I'd start from the most common. Headaches, nausea, dizziness, forgetfulness, unable to remember things. I guess eye irritation, respiratory irritation, hacking cough, even for some that are non-smokers. Those kinds. Are there other symptoms you can think of?

MS. O'SHEA: In the case of my crew, loss of manual dexterity was a real important one, where we simply couldn't grasp objects. In order to open an aircraft cabin door or an emergency window exit you have to be able to use your hands. You have to be able to have that opposition motion. We couldn't do it.

The other thing is actual lack of respiration, where you actually cannot breathe.

MR. WITKOWSKI: In those cases, we've had flight attendants have to go to take portable oxygen in order to be able to get their breath back.

MS. JANES: Do you have any data on lung cancer in flight attendants?

MR. WITKOWSKI: No, we don't.

MS. EL-MEKAWI: You mentioned that you represent 35,000 flight attendants of 22 U.S. airlines. Does this include both domestic and international flight attendants, or...

MR. WITKOWSKI: Yes, that's both domestic and international.

MS. EL-MEKAWI: What's the proportion of each?

MR. WITKOWSKI: It's hard to say offhand. Hazarding a guess, we have two major carriers. One has 9,000 flight attendants and the other one has about 19,000, and those are the only two I believe that conduct international operations. I would venture to say that, I'm not sure about this, but maybe about 70 to 80 percent are domestic.

MS. EL-MEKAWI: What does the 35,000 represent of the total flight attendants in the U.S. labor force? Do you know?

MR. WITKOWSKI: It's a little less than a third. There are about 80,000 flight attendants... Oh, 100,000? Is that what it is? Okay.

MS. EL-MEKAWI: A hundred thousand, okay.

JUDGE VITTONE: I'm not sure there's a clear understanding. There are 100,000 flight attendants in the universe of American carriers?

MR. WITKOWSKI: U.S.?

JUDGE VITTONE: U.S. carriers have about 100,000 flight attendants.

MR. WITKOWSKI: About 100,000 total.

JUDGE VITTONE: Okay.

MS. EL-MEKAWI: Do flight attendants receive safety and health training? I know they take maybe first aid training and CPR and other safety things, but any kind of training that would be related to health, specifically health?

MR. WITKOWSKI: Primarily their training is on safety in terms of evacuating the cabin and operating the emergency equipment and service. Basically meal service and other service of the passengers. CPR is not always conducted by the airline, that's optional. There is some first aid training, but it's up to the carrier whether they want to go to the extent of CPR. But as far as health training, I'm not really aware.

MS. O'SHEA: One of the things that I was surprised, since I've only been a flight attendant for five years, so my initial airline training was fairly recent. I was surprised to find out that we were not told or given any training whatsoever in what to do if we find that we are being exposed to aircraft exhaust. When there is exhaust sucked into the cabin, what dangers might be posed to us and what we should do to protect ourselves. Nothing like that was ever addressed at my carrier. Not in initial training, when I was initially hired, no questions were posed in any kind of testing for FAA, and also in our recurrent training which we receive on a yearly basis as an FAA requirement. Nothing is ever mentioned to address the fact of what to do in a situation where we might be impaired by exposure to exhaust, hydraulics, anything that could damage our health.

MS. EL-MEKAWI: Were there illnesses related to exposure to exhaust that you can document?

MR. WITKOWSKI: Yes.

MS. EL-MEKAWI: What percentage or complaints or illnesses would that represent? Is that a high percentage, or is that something that doesn't happen a lot? That would trigger that kind of training.

MR. WITKOWSKI: I think it's happened fairly frequently at a couple of the airlines. But as far as a percentage, I'm not sure. But as far as I know, there has not been any effort undertaken by the couple of carriers where I know this has happened. Actually, it's been three carriers where I know it's happened, to instruct the flight attendants on what action to take if they find exhaust in the cabin. They're basically there to get it prepped and get it ready to go out. They told me that there hadn't been any changes in instruction or procedure.

MS. EL-MEKAWI: Are flight attendants normally tested for TB once they're hired?

MR. WITKOWSKI: That's one of the major problems with the system right now. Pilots go through regular checks of their medical condition. Flight attendants are not required to go through any medical checks.

MS. EL-MEKAWI: No annual checkups?

MR. WITKOWSKI: No, not at all. That's why the CDC has had some difficulty in trying to determine whether or not there have been positive transmission of tuberculosis in some of the cases they've investigated. The case they studied in 1992, October, they were able to make a determination that two flight attendants did catch TB in flight because just by coincidence, those two flight attendants had negative TST tests the month prior to exposure to the flight attendant. But we would like the airlines basically to have annual TBT tests administered. TST tests, I'm sorry.

MS. EL-MEKAWI: The 1994 aircraft cabin environmental survey by the Harvard University School of Public Health, is this in a final form now, or is this... That you can submit to OSHA to review?

MR. WITKOWSKI: I think in my August...

MS. EL-MEKAWI: Just the executive summary.

MR. WITKOWSKI: We have the executive summary. I will have to check and see if Harvard has added to that at all since then.

MS. EL-MEKAWI: We would like a copy of that.

MR. WITKOWSKI: The reason they produced that was Congress had asked for a copy of their study and they produced that. But I'll check with Harvard and see if they have a later version.

MS. EL-MEKAWI: I think it was either mentioned in the videotape or by you that the cockpits would have separate ventilation systems than the rest of the cabin. I'm just curious to know whether smoking would be allowed in the cockpit then or is that on the whole...

MR. WITKOWSKI: Smoking is allowed in the cockpit. But I think the percentage of pilots who smoke today has been shrinking on an annual basis. It's allowed, but...

MS. EVANS: ...since the smoking ban.

JUDGE VITTONE: Are you absolutely sure about that?

MR. WITKOWSKI: Yeah.

JUDGE VITTONE: Smoking is allowed in the...

MR. WITKOWSKI: Oh, okay. On the internationals.

JUDGE VITTONE: What do you understand the rule is?

MS. SHERMAN: Could we clarify the record on this point, please?

MR. WITKOWSKI: Right.

JUDGE VITTONE: Is smoking allowed in the pilot and the co-pilot section of the airplane?

MR. WITKOWSKI: My understanding is that smoking is allowed in the cockpit, is that...

(Pause)

MR. WITKOWSKI: Congress did specifically only ban smoking in the cabin, not the cockpit, but it's going to be amended this year to include the cockpit in the smoking ban on international flights.

JUDGE VITTONE: What about domestic flights?

MR. WITKOWSKI: It will cover domestic flights as well.

JUDGE VITTONE: That's a proposal before Congress, though.

MR. WITKOWSKI: Yes.

JUDGE VITTONE: Pending legislation.

MR. WITKOWSKI: Yes.

JUDGE VITTONE: Anything else?

MR. HATHON: This is Lee Hathon. I have two questions. One of them is a ventilation question which you touched on earlier.

I was wondering, when the passengers have control of those small diffusers above them, does that affect the overall ventilation air change rate in the plane, as they control those? Do you know that?

MR. WITKOWSKI: My understanding is that it will kind of increase the flow of air, but as far as actually increasing the amount of fresh air ventilation throughout the cabin, it doesn't really do that.

MS. O'SHEA: My research has indicated that all that does is increase the flow or recirculated air over the passengers' head. There is nothing at all that can be done to increase the amount of fresh air being brought into the plane. Those systems have been designed at a pre-set rate when all of the packs are functioning properly, that there is no way to increase the amount of fresh air brought into the plane on the new designed aircraft with the recirculating systems.

MR. HATHON: My second question is, while performing your duties as flight attendants while on the ground in airports, are there times when you have exposures to environmental tobacco smoke that's required as part of your job?

MS. O'SHEA: I'm sorry?

MR. HATHON: Where you can't voluntarily leave an area.

Regarding ETS exposures to second hand smoke, are you required while performing your job to be in areas where you're exposed to ETS, where you can't voluntarily leave them?

MS. EVANS: I have chosen not to fly internationally because of the fact that you can smoke on international flights and it affected me respiratory wise, terribly. So I choose not to fly on international flights for that fact. I fly domestic only where smoking is not permitted at all. By choice.

MR. HATHON: I'm sorry. In the first part of my question I referred to in the airports, while you're on the ground.

MS. EVANS: In most of our airports throughout the country, I have found that smoking has either been banned or has been restricted to certain restaurants and bar areas. Obviously, bar areas we are not permitted to go into in our uniform. If it's permitted in restaurants, we choose not to go in there, if that's our choice. The airline does not require that we go into those areas. They have banned smoking from all of our lounges, to my knowledge, system-wide. So we're not required to go into any smoking areas.

MR. WITKOWSKI: That's at her carrier.

MS. EVANS: That's at my particular carrier. My particular carrier.

MS. O'SHEA: At my carrier, to my knowledge, I can't think of a single airport on our system that allows smoking on the concourses at all.

MR. HATHON: Thank you.

I believe we have two more questions here.

DR. REPACE: James Repace.

When I served on the Airliner Cabin Air Quality Panel for the Department of Transportation in 1989, it came to my attention that turning off the ventilation packs on the big aircraft was in fact a fairly common occurrence. I was wondering if you have any information that in 1994 this is still a fairly common occurrence.

MS. EVANS: I can address that issue with a particular flight that I was involved in when I went up to the cockpit, pack number one was shut off. It wasn't until the first officer told the second officer to turn it on, that he did that. I asked why it was turned off. "If you're giving us everything available back there, why was pack number one shut in the off position?" And he couldn't answer that question. He would not answer that question.

DR. REPACE: Have you ever surveyed your membership to find out how frequently they would report occurrences like this?

MS. EVANS: To my knowledge, that has never been done. When I have reported it, I've never received any response back from flight managers.

DR. REPACE: Do you think it might be a good idea to survey your membership to get that information?

MS. EVANS: I don't know if you would get an accurate... Survey flight attendants?

DR. REPACE: Yes.

MS. EVANS: That might be a very good idea.

MR. WITKOWSKI: The pilots are the ones who, as you know, in some cases can control the air packs. It depends on the type of aircraft that they're flying. The flight attendants, if they feel there's an air quality problem, they will sometimes go up and request that a pack be turned up or turned on, in the case of a three-pack airplane. If it's a two-pack airplane, they should always leave both packs on.

Mary told me this morning that she's aware of planes flying in her fleet with two air packs in which they fly with one completely turned off. That is a very unsafe practice, because if you have one off and the one that's operating cuts out, you could have a decompression in the plane which can cause serious injury to the passengers and the crew members. So these are very unsafe practices that are occurring.

It's hard to make an estimate today, but generally what we're hearing not only from our flight attendants in the United States but our friends in Canada and in Europe, are that they're experiencing that the pilots or the company is designing the system so that the packs will be not operating at full capacity, or on a three-pack plane they will, as a matter of course, turn one of the packs off.

DR. REPACE: And it is true, is it not, that the pilot's cockpit is on a separate ventilation system from the remainder of the plane?

MR. WITKOWSKI: Yes. The reason that often we don't get as much help as we'd like from the pilots is that they have much better ventilation, usually on a separate system, that gives them anywhere from five to ten times as much fresh air than is provided to the back of the cabin.

DR. REPACE: Thank you.

MS. SHERMAN: I have a couple of questions.

We've heard some testimony from Ms. O'Shea and Evans. Do you feel that their complaints are generalizable to the rest of the airline industry?

MR. WITKOWSKI: Yes.

MS. SHERMAN: I assume that they either work for two different airlines or the same airline.

MR. WITKOWSKI: Yes. I would say yes. There are similar cases that I've seen occurring at several, many of our carriers.

MS. O'SHEA: When I've been traveling on other airlines, and we do work for separate carriers, I have asked flight attendants if they've experienced any kind of air quality problems. I get a very uniform response. The same fatigue and headache and dizziness and loss of concentration, the tingling in the hands and feet. It's pretty uniform. I've heard that complaint pretty much across the board.

MR. WITKOWSKI: Even from other unions that have contacted me, flight attendants we don't represent because they know we're kind of out in front on this issue, and they've told me and described symptoms basically identical to the ones that we're having at some of our other carriers.

MS. SHERMAN: You represent flight attendants on domestic as well as international flights. Do you represent any flight attendants who work for foreign airlines?

MR. WITKOWSKI: No. All of our carriers are registered in the United States.

MS. SHERMAN: To the best of your knowledge, the aircraft that are used by the airlines on domestic flights, are these the same aircraft that also make the international flights?

MR. WITKOWSKI: In some cases, yes. But usually they have planes that are specifically dedicated to domestic service. There are a few types that can do both.

MS. EVANS: Our 747s, I know some of our 747s that are flown internationally, do come into this country.

MS. SHERMAN: I guess what I'm really asking is, I realize that a very small aircraft would not probably be making an international flight, but let's take the case of the 747. Would the same aircraft, aircraft 101A, serial number, might it fly from New York to California for a month, and then perhaps be flying from California to Thailand the next month?

MR. WITKOWSKI: Yes.

MS. EVANS: Yes.

MR. WITKOWSKI: It could, yes.

MS. SHERMAN: Is there any attempt, then, on the international flights, where the smoking is allowed, to modify the ventilation system of that aircraft for the international flight?

MR. WITKOWSKI: You mean to increase the ventilation to handle the smoke?

MS. SHERMAN: Yes.

MR. WITKOWSKI: It can be done. It's simply a matter of turning up... They just use the existing system that's there. If they've got three packs and they've got heavy smoke going on, usually, they'll still... Well, it depends, and you can't make a general statement about it, but the airlines, as I said, are interested in saving money, and sometimes they'll tell the pilots or have an advisory out that says don't increase the air pack flow unless you get a specific complaint from a passenger about it being stuffy or too smoky in the cabin.

MS. SHERMAN: Is the air pack flow one of the items that is recorded by the airline for each flight, or it's just manually adjusted and nobody keeps a record of it?

MR. WITKOWSKI: I don't think the pilots keep a record of it.

MS. O'SHEA: I think it's up to the discretion of the captain or the particular crew as to how they're going to be operating the packs for that particular flight.

MS. SHERMAN: You as the Association of Flight Attendants, do you catalog complaints and illnesses of your flight attendants on international flights?

MR. WITKOWSKI: To some extent. Yes.

MS. SHERMAN: Have you ever tried to compare the rate of complaints of the flight attendants on international flights as opposed to the rate of complaints of flight attendants on your domestic flights?

MR. WITKOWSKI: I can't say that we have broken that out.

MS. SHERMAN: Would it be possible, perhaps as a post-hearing comment, for you to go back through your records and see if it was possible to make some sort of a meaningful comparison?

MR. WITKOWSKI: I can check and see. As I said, we have two carriers that fly internationally, and I can check with the safety and health people and see if they have, if they can break out the difference.

MS. SHERMAN: Thank you. I have no further questions.

JUDGE VITTONE: Mr. Witkowski, let me ask you just a couple of clarifying questions. You have 35,000 members and your members work for 22 different airlines?

MR. WITKOWSKI: Yes.

JUDGE VITTONE: Since it's a small number anymore, which of the major airlines do your members work for?

MR. WITKOWSKI: Which of the majors?

JUDGE VITTONE: Yes.

MR. WITKOWSKI: U.S. Air, United Airlines, Alaska Airlines, America West, West Air, Horizon.

JUDGE VITTONE: Were the rest of them... I'm sorry. What?

MR. WITKOWSKI: Horizon. There are several smaller carriers. Simmons. Some of these operate as commuter partners with the major carriers.

JUDGE VITTONE: All right. So out of those four or five, then, the remainders would be commuter airlines?

MR. WITKOWSKI: Yes. Well, Hawaiian and Aloha, we also represent, and American TransAir, which is a fairly large charter type carrier with scheduled operations.

JUDGE VITTONE: Concerning all of the complaints that you've heard from members of your union, would you say that there are more complaints involving major airlines as opposed to the commuter airlines?

MR. WITKOWSKI: You mean numerically?

JUDGE VITTONE: Yes.

MR. WITKOWSKI: Yes. Yes.

JUDGE VITTONE: From the majors.

MR. WITKOWSKI: Yes.

JUDGE VITTONE: Okay.

MR. WITKOWSKI: It's more of a problem with the majors than it is, I think. The air quality, that is.

JUDGE VITTONE: Air quality. That's what I'm talking about.

MR. WITKOWSKI: Than it is with the smaller carriers.

JUDGE VITTONE: So there are less complaints about nausea, headaches, tingling.

MR. WITKOWSKI: There seem to be. With the smaller carriers we have fewer members there so it may just be the fact that we have a lower number that we don't get as many, but it seems to be that it's more of a problem with the larger carriers, which...

JUDGE VITTONE: There's a smaller problem in the...

MR. WITKOWSKI: Yes. It seems to be less of a problem with the commuter carriers. Or at least I don't get as many reports.

JUDGE VITTONE: All right. Thank you very much. If I haven't done it, let me make sure. The record will include Exhibits 42, 43, 44, 45, 46 and 47.

(The documents referred to, having been previously marked for identification as Exhibit Nos. 42, 43, 44, 45, 46, and 47, were received in evidence.)

One thing about 46. As I understand it, you just have an executive summary of the report. That's what you offered?

MR. WITKOWSKI: Of the Harvard...

JUDGE VITTONE: Yes.

MR. WITKOWSKI: Yes. And I was going to check and see if there was something additional from the Harvard School of Public Health.

JUDGE VITTONE: Okay. And would you communicate that to the OSHA staff, please?

MR. WITKOWSKI: Yes, I will. And I wanted to make one more comment about your question, that with the smaller carriers, they operate with a smaller type of aircraft and they fly at lower altitudes, and so that does have some bearing on the air quality in the cabin, so that's probably a part of the reason for...

JUDGE VITTONE: That's what I wondered. All right. Thank you very much.

We are going to be in a recess for five minutes.

MR. WITKOWSKI: Thank you.

JUDGE VITTONE: Back on the record.

Before we turn to our next witness, Mr. Witkowski said he wanted to make a correction to the record. Mr. Witkowski?

MR. WITKOWSKI: Thank you Judge Vittone. The correction is that AFA represents five international carriers, not two. I believe I said two, and I misspoke. It's five.

JUDGE VITTONE: Okay.

MR. WITKOWSKI: Thank you very much.

JUDGE VITTONE: Thank you.

Our next witness is Dr. Randolph D. Smoak, Jr., and he represents the American Medical Association.

Dr. Smoak, would you identify yourself officially for the record, please, and who you represent.

DR. SMOAK: Thank you, Judge. Good morning. My name is Randolph D. Smoak, Jr. I'm a physician and a member of the Board of Trustees of the American Medical Association. Accompanying me are Dr. Tom Houston, on my right, who is the Director of the Department of Preventive Medicine and Public Health, and on my left is Mr. Mike Zarski, who is Legislative Counsel, both from the AMA.

The AMA appreciates...

JUDGE VITTONE: Excuse me, Dr. Smoak. Let me just ask you one quick question here. Now, I have a statement that has been provided to me and it's dated, your statement dated September 28, 1994. Have you submitted a prior statement to the record? Or has the AMA?

DR. SMOAK: No, sir. That's the statement.

JUDGE VITTONE: This is your statement here.

DR. SMOAK: That's the statement.

JUDGE VITTONE: Okay. And this is going to be the only presentation, then, the representation from the American Medical Association.

DR. SMOAK: Yes, sir.

JUDGE VITTONE: Okay. Go ahead.

DR. SMOAK: The AMA appreciates the opportunity to appear before you today and state our views on the efforts of OSHA to improve workplace health and workplace air quality.

First and foremost, the AMA supports the elimination of work exposure to environmental tobacco smoke, or ETS. ETS cancer mortality alone is higher than the total cancer mortality figures from all the other environmental hazards regulated by the government.

The merits of OSHA's proposal to deal with this carcinogen are obvious, in spite of efforts by the tobacco industry to cloud the issue. ETS is a carcinogen that lends itself to being controlled at the source. ETS need not be present in the workplace at all and elimination of it is instantly achieved by the common practice of prohibiting smoking on the premises.

The solution is simple, inexpensive and direct. Paperwork and administrative requirements are insignificant. Since there are so many smoke-free places already, we know that most workplaces that eliminate smoking will actually realize savings from reduced maintenance costs and reduced risk of fire. This, of course, is in addition to the primary benefits of the rule, protection of workers' health.

We urge OSHA to go forward at once with that part of the proposed indoor air quality standard that deals with ETS. Do not be put off by the tactics of those who would challenge the scientific identification of ETS as a carcinogen. The AMA has singled out the part of the proposed standard that deals with smoking for our strong support. We recognize there are other problems with indoor air quality, and they affect the health and well being of workers. However, the AMA disagrees with OSHA's decision to attempt to promulgate a "comprehensive" indoor air quality standard.

OSHA estimates the cost of the proposed comprehensive indoor air quality standard at $8.1 billion each year. In contrast, a ban on smoking in the workplace is estimated to cost nothing. Obviously, eliminating environmental tobacco smoke from the workplace is one of the least costly OSHA regulations ever proposed. The remainder of the proposed standard would entail significant costs.

OSHA estimates the benefits of the proposed standard at $15 billion each year. The lion's share of the quantified benefits is derived from the elimination of ETS. More importantly, the elimination of workplace smoking provides much greater qualitative benefits to workers by preventing the thousands of cases of coronary artery disease and lung cancer deaths each year.

The balance of the proposed standard as projected by OSHA to achieve much more modest benefits through reduction of headaches and upper respiratory symptoms, and many of these problems may actually be alleviated by ending exposure to ETS.

We stress that the elimination of ETS from the workplace is simple and direct. It eliminates a source of exposure to a recognized carcinogen. It is a measure that can be implemented by the employer with no need for specialized technical assistance. Paperwork requirements are minimal. On the other hand, the balance of the proposed standard requires an extensive written compliance program and recordkeeping requirements. Many of these requirements for written materials are not needed to assure good indoor air quality.

Another potential burdensome requirement is for the employer to have a designated skilled individual who is capable of ensuring implementation of the indoor air quality compliance program. Small businesses are unlikely to have any employee who would be capable of fulfilling the responsibility of the compliance. Even then, it is generally accepted that compliance with the measures contained in the proposed standard are often less than effective in eliminating worker complaints in so-called sick buildings.

We are particularly troubled by the uncertain liability for compliance that employer, tenants and non-employer landlords would have. OSHA acknowledges that. "Employers have to negotiate agreements to assure they can meet the OSHA standards." We believe this significantly understates the problem, especially for small businesses and large multi-establishment premises. Tenants have limited access and control over the ventilation in their buildings, especially in multi-tenant properties. The landlord, on the other hand, may not have knowledge or control over some activities of the tenant that conflict with the proposed standard.

The smoking provision is also the most enforceable portion of the proposed standard. OSHA relies heavily on worker complaints to deploy its limited inspection resources. The lack of an enforced smoking ban is readily apparent to employees, while the level of carbon dioxide and the operating characteristics of the air handling system, which is subject to other parts of the standard, are not as easy to appreciate.

Throughout the OSHA's discussion of the proposed standard, the agency indicates a need for more information about different parts of the proposed standard. We urge OSHA to proceed with those portions of the indoor air quality standard only when and where there is good scientific data to show that the rules will make a difference to worker health.

On the subject of environmental tobacco smoke, the objective scientific evidence and data as contained in OSHA's preamble to the proposed rule, does conclusively document the hazards of ETS and proposes a clearly effective remedy.

Several major reviews have been published regarding the health effects of ETS. The 1986 U.S. Surgeon General's Report, a 1986 review by the National Research Council, and a review paper published in Britain in the same year linked ETS to respiratory illnesses in children and to lung cancer in non-smokers. The International Agency for Research on Cancer also found that ETS is associated with lung cancer.

Since those studies appeared, other reports have been published that continue to affirm the carcinogenicity of ETS. The National Institute of Occupational Safety and Health reviewed the data concerning ETS in its Current Intelligence Bulletin series and concluded that ETS is "a potential occupational carcinogen" and that "simply eliminating tobacco use from the workplace" is the best method of dealing with this hazard.

Another report, supported in part by RJR-Nabisco, made a "best estimate synthesis" of over 2,900 articles on passive smoking and concluded that "the weight of evidence is compatible with a positive association between residential exposure to ETS and the risk of lung cancer."

The U.S. Environmental Protection Agency, or EPA, report released in January of 1993 critically examined the data available in a number of studies on the links between ETS and lung cancer. The ETA conclusion that ETS causes lung cancer in non-smokers is based on the total weight of evidence, including biological plausibility, consistency of response, the broad-based nature of the evidence and dose response of associations. Since the release of the EPA report, most studies have been published that reaffirm the EPA conclusions regarding lung cancer.

The presence of carcinogens in ETC should not be in question, nor should it be surprising that such chemicals are abundant. Mainstream tobacco smoke contains over 4,000 identified substances, nearly four dozen of which are carcinogenic. The EPA report has been criticized by the tobacco industry which, 30 years ago, leveled the same kinds of criticisms at the landmark 1964 Surgeon General's Report of Smoking and Health. To this day, the tobacco industry does not acknowledge that smoking causes any diseases, even to smokers.

The AMA rejects the tobacco industry's criticism to the EPA's report and its conclusions. An 18 member independent Science Advisory Board convened by EPA reviewed the ETS report and conducted two public hearings as part of this process. The AMA, the voluntary health agencies and other health and scientific groups presented reviews of the report and the EPA methodology endorsing the EPA report at the Science Advisory Board hearings. The Board unanimously concurred with the EPA methodology and findings. The National Cancer Institute has also endorsed the EPA report.

In addition to cancer there are other detrimental health effects workers may suffer as a result of exposure to ETS. These effects are documented in studies cited in the written submissions of AMA and others, and they are in agreement with the conclusions by OSHA in the preamble to the proposed standard. Exposure to the lethal effects of ETS is a heavier burden for workers in some businesses such as restaurants and bars. This is another reason why prompt action by OSHA is needed. To protect workers, let us also do so.

In conclusion, OSHA should discharge its responsibilities for protecting workers from hazards in the workplace, including occupational carcinogens, by immediately adopting the proposed rule regarding ETS. The EPA and NIOSH reports and other recent data linking ETS with preventable disease and death amply justify just such action by OSHA.

The remainder of the proposed standard is more problematic and needs extensive work, but given the costs, benefits and feasibility, there is no reason to tolerate a carcinogen in the workplace that causes lung cancer, coronary heart disease and all the other problems caused by tobacco smoke.

Let's give all the workers a breath of fresh air.

JUDGE VITTONE: Thank you, Dr. Smoak. Your written presentation will be identified for the record as Exhibit 48.

(The document referred to was marked for identification as Exhibit No. 48.)

JUDGE VITTONE: Let me just ask you one small question. Look at page three. At the top of the page. Now, if I remember correctly, when you read your statement you stopped after the word carcinogen, and then moved on to the next paragraph.

DR. SMOAK: Your Honor, you are speaking of the oral testimony I just...

JUDGE VITTONE: The oral testimony. Right.

DR. SMOAK: And page three?

JUDGE VITTONE: Yes.

DR. SMOAK: Yes.

JUDGE VITTONE: And you stopped after the word carcinogen, and then you moved on to the next paragraph. Do you intend that the remainder of that sentence in the written version to be part of your testimony?

DR. SMOAK: No. We did not include that, and that was just deleted intentionally.

JUDGE VITTONE: Okay.

DR. SMOAK: It was not an oversight.

JUDGE VITTONE: Let me have a demonstration of who has questions. Let's see. Mr. Grossman, Mr. Sirridge, Mr. Rupp, Mr. Lowe. I'm sorry. Who are you, ma'am?

MS. ALEXANDER: Daryll Alexander, American Federation of Teachers.

JUDGE VITTONE: Okay. And Mr. Dinegar. Excuse me? I figured. I take that for granted.

Mr. Grossman, give me an idea.

MR. GROSSMAN: An hour and a half.

JUDGE VITTONE: An hour and a half. Mr. Sirridge?

MR. SIRRIDGE: Fifteen minutes.

JUDGE VITTONE: Mr. Lowe?

MR. LOWE: Twenty minutes.

JUDGE VITTONE: Okay. Mr. Dinegar?

MR. DINEGAR: Ten minutes.

JUDGE VITTONE: American Federation of Teachers?

MS. ALEXANDER: Ten minutes.

JUDGE VITTONE: Okay. Mr. Rupp?

MR. RUPP: Twenty-five minutes.

JUDGE VITTONE: Twenty-five. Forty-five.

Mr. Grossman. Really? An hour and a half?

MR. GROSSMAN: I think so. I was up until about 4:00 with this...

JUDGE VITTONE: Maybe you should have stayed up a little longer.

(Laughter)

MR. GROSSMAN: Or gone to bed earlier.

(Laughter)

JUDGE VITTONE: Okay. My rough calculation is, that's a fair amount of time. From everybody combined.

MR. ZARSKI: Your Honor, could I just state something? We were not informed or given any notice that there was going to be any change in the order of witnesses this morning, and we expected to go much earlier, and therefore Dr. Smoak has some commitments with his patients during the day that I think will preclude him from remaining here through the length of questioning that's been indicated.

JUDGE VITTONE: Dr. Smoak, you're from South Carolina, right?

DR. SMOAK: Yes. I am.

JUDGE VITTONE: Tell me right now, what time were you expecting to leave?

DR. SMOAK: Well, we thought we were going to be first, at 9:00, and so I have a 2:30 flight to get back home to take call and take care of patients.

JUDGE VITTONE: I see. Okay. Off the record.

(Brief discussion off the record.)

JUDGE VITTONE: On the record. We've had an off the record discussion.

It appears that because of Dr. Smoak's commitment to his practice in South Carolina that we will not have adequate time to complete the questioning of him today. He has agreed to reschedule at some later date to come back and respond to questions from the participants in this proceeding.

Dr. Smoak, as I understand it, between now and October 22nd is very tough for you, but after October 22nd there may be a day that we can reschedule you back.

DR. SMOAK: Yes, Your Honor. That is correct. And I feel with a couple of days in November that I'm out up until Thanksgiving, we can schedule it then, because I'm going to be out from Thanksgiving until the 10th of December, I believe it is.

JUDGE VITTONE: Would you or your representative get in contact with Ms. Sherman from the OSHA staff to arrange that so that we can all know in advance when that will be and we can all be aware of it. Okay?

DR. SMOAK: Yes, sir.

JUDGE VITTONE: However, as I understand it, the representative from the American Federation of Teachers does have some questions and if you'd like, ma'am, we can take those right now. Would you come to this podium, please? And please identify yourself and who you represent.

MS. ALEXANDER: My name is Darryl Alexander. I'm the Occupational and Environmental Health Coordinator of the American Federation of Teachers. Thank you very much for allowing me to ask a few questions.

Dr. Smoak, I'd like you to clarify your contention on the relationship between improvement of ventilation and complaints and sick buildings. I'm not so sure I understood what your point was.

DR. SMOAK: Well, in sick buildings, if there's a deficiency in the system of air evacuation, etcetera, in a multi-story building where you have an owner, that person has certain controls over that building. The tenants may or may not have any control over that. So you have a problem right off in terms of who somewhat is in control over the ventilatory aspects of that particular area of the building or the building in its entirety.

MS. ALEXANDER: I meant, the health complaints of people in a building. Did you say that adjusting the ventilation rate has been shown to have very little effect over health complaints by occupants? I'm just asking to clarify that point.

DR. SMOAK: I don't think my statement directly addressed that. I think that there is an indication that improved circulation probably does have a relationship with certain disease problems.

MS. ALEXANDER: Could you please tell us what your specialty is?

DR. SMOAK: General surgery.

MS. ALEXANDER: General surgery. I don't want to put you on the spot, but since you're representing the AMA I wanted to ask you a few questions about allergies and the incidence and prevalence of allergies in this country. Could you take a guesstimate about what percentage of the population is affected by allergies?

DR. SMOAK: Well, I couldn't give you a percentage of that. I'm not an allergist, and that would vary, obviously, tremendously in the different regions in the country and as well as the local exposures.

MS. ALEXANDER: Could you tell us, in your opinion, what some of the advice a physician would give to a patient complaining about allergies vis a vis exposure to allergens? What they should do?

DR. SMOAK: Well, I think that would have to be directed at a person who does allergy work. In my own case I would have to refer that person to their primary care physician or an allergist who handles that type of problem.

MS. ALEXANDER: In your opinion, do allergists generally advise patients to avoid allergens as much as possible?

DR. SMOAK: Well, I think that would be, it would stand to reason that that would be one method of dealing with the problem, but it may somewhat inherent, and that can't be accomplished in some circumstances.

MS. ALEXANDER: Well, to the best of your knowledge -- I know that the AMA has produced a document on tuberculosis, which has become an important and critical epidemiological problem in this country. To my knowledge, the AMA in one of its recommendations on the control of tuberculosis in health care facilities recommended that general dilution ventilation be improved. Is that correct?

DR. SMOAK: You'd have to cite for me where your reference is. There's an abundance of material the AMA publishes and I would say, in general, that statement is true. But I can't quote for you. You'd have to cite for me where you're drawing that statement from.

MS. ALEXANDER: From the position paper, the most recent physician paper on the control of tuberculosis of the AMA.

DR. SMOAK: Well, we can identify that and supply that for you if you want it. But I could not say to you off-hand.

MS. ALEXANDER: Well, just in your opinion as a physician, do you believe that general dilution ventilation does help control the spread of tuberculosis?

DR. SMOAK: Well, I think that general dilution would have some effect on that. It would not prevent people from still contracting the disease.

MS. ALEXANDER: Okay. Can I ask you about your own hospital? How does your hospital deal with ventilation problems? Do you have any idea? Are you very informed about ventilation controls in your operating room?

DR. SMOAK: Well, we have variations in the ventilatory controls within our hospital. First of all, it's a non-smoking hospital, so we eliminate the ETS. We have different levels of ventilation. In the operating rooms, for instance, as opposed to a hallway or in patients' rooms, and even so there are some areas in the operating room which are a higher level ventilation than others because of the specificity of the operations performed there or the nature of what pathogens might be there.

MS. ALEXANDER: And how about your recovery room? How is the ventilation there? Do you have positive pressure rooms in recovery, or off-gassing of anesthetic gasses or anything like that? And who monitors that in your facility?

DR. SMOAK: Well, we have an engineering department who monitors that type of thing.

MS. ALEXANDER: And do they give you feedback about that?

DR. SMOAK: I don't specifically seek that out, unless we were to identify some problem.

MS. ALEXANDER: All right. You mentioned that the AMA believes that there's not enough documentation to advocate for an indoor air quality standard, and I was wondering what the AMA is doing vis-a-vis indoor air quality. Are you in any way advocating research be done? And what kind of research does the AMA think needs to be done on indoor air quality problems?

DR. SMOAK: I don't know that we've addressed that specifically, to say that there's research that needs to be done in a certain area. We have addressed the matter of the environmental tobacco smoke and we feel very positive about that aspect of it, and that's a very clear-cut thought and decision process. The remainder of any complexities, of other aspects of contaminants, irritants, etcetera, within the air, that's something that would certainly cloud this whole issue of what sort of changes should be made to improve the quality of the air in the workplace.

MS. ALEXANDER: Well, what research has the AMA done to come to this conclusion besides reviewing the preamble of the proposed rule?

DR. SMOAK: Well, I think if you want some specifics about the research that we've done, I don't know that we've done any individually, ourselves.

MS. ALEXANDER: Or reviews.

DR. SMOAK: But this would be cited in some publications, and if you want that data I think that we could search that out.

MS. ALEXANDER: I would be very interested in seeing how the AMA came to that conclusion. And, also, the information from your recommendations on general dilution ventilation for the control of the spread of tuberculosis. Thank you.

DR. SMOAK: Sure.

JUDGE VITTONE: Thank you. I was informed when we were talking off the record that the AMA did submit a statement in August?

MR. ZARSKI: Yes, Your Honor. I would like to correct that. The AMA did submit on August 12, 1994 a written statement for the record in this matter.

JUDGE VITTONE: Okay. That's already in the record.

MR. ZARSKI: Yes, sir.

JUDGE VITTONE: All right. That will be Exhibit 49, for the record.

(The document referred to was marked for identification as Exhibit No. 49)

JUDGE VITTONE: Dr. Smoak, I want to thank you for your presentation. I'm sorry about the time problem, but I think you've got some people you have to take care of and that's probably a little bit more important today, right now.

DR. SMOAK: Well, all of this is important, Your Honor, and it's just that that takes precedence in my own terms of priority.

JUDGE VITTONE: Right. Of immediate importance, too. Thank you very much. And we will try to reschedule this as best as possible to meet your convenience.

MS. SHERMAN: Your Honor, we hope to have a rescheduling done by after lunch today so we can announce it on the record.

JUDGE VITTONE: Very good. Thank you very much. Thank you gentlemen.

It is now ten minutes till 12:00. We have one more panel of witnesses, as I understand it, to appear today. And that is the group from the Service Employees International Union. Why don't we break for lunch, and we will take them up as soon as we return. One hour.

AFTERNOON SESSION
1:04 p.m.

JUDGE VITTONE: Our panel of witnesses for this afternoon are from the Service Employees International Union. Let me call on the panel to identify themselves for the record and give the exact organization that they represent.

MR. BORWEGEN: Good afternoon.

My name is Bill Borwegen. I'm the Director of the Service Employees International Union's Occupational Safety and Health Department.

I want to thank you for this opportunity for our union to express our views during this most important rulemaking. Based on the schedule I've seen, I hope everyone's done their Christmas shopping, because it looks like you're going to be here for quite some time.

To my right is Cathy Sarri. She's an Assistant Director in my Department. To my far right is Diane Carlson, and she is a member with one of our local unions in Michigan. She'll be presenting her testimony, and Cathy will be presenting testimony of two of our worker victims who were unable to attend today, but will be available to come back if there's a need for questioning based on their testimony that Cathy will present.

JUDGE VITTONE: Mr. Borwegen, you've provided me with a copy of your testimony that I assume you will deliver today. Are you basically going to read this into the record, what you've provided me?

MR. BORWEGEN: That's correct.

JUDGE VITTONE: Have you previously submitted something for the record in this proceeding before?

MR. BORWEGEN: We've responded to OSHA's request for information, and we responded to OSHA's proposal.

JUDGE VITTONE: Okay.

The statement I have in front of me that was provided to me by the panel is a multi-page statement that has apparently, I guess, a press release, a two page press release on the cover, and then the testimony of Mr. Borwegen, or the remarks by Mr. Borwegen, followed by a statement by Diane Carlson of the Michigan Professional Employees Society, and followed by a statement by Mr. Phillip Thornton of the Maine State Employees Union, and then a statement by Margaret Jackson of the Service Employees International Union Local 82.

I'm going to give that one number and make it No. 49. It's all stapled together, and that's how it is in the record. You provided it for the record.

MS. SHERMAN: Could we differentiate A, B, C, and D?

JUDGE VITTONE: Okay. We'll call it 49... No. 50. We'll call it No. 50. The statement by Mr. Borwegen will be 50A, and that is nine pages long; the statement by Ms. Carlson will be 50B, that is five pages; the statement by Mr. Thornton is 50C; and by Ms. Margaret Jackson is 50D. Mr. Thornton's statement is four pages; Ms. Jackson's statement is two pages in length.

(The document referred to was marked for identification as Exhibit No. 50A-D.)

JUDGE VITTONE: Okay, Mr. Borwegen, if you're ready.

MR. RUPP: Are additional copies of the statement that you were describing for the record available for those of us in the audience and other participants?

JUDGE VITTONE: You did have some extra copies, right?

MR. BORWEGEN: We have a limited number of copies available to the press, and for anyone else, we'll be glad to mail them to you.

MR. RUPP: The problem we have with that is the opportunity to examine today.

MR. BORWEGEN: We're going to be presenting the words in the testimony to you verbally, right now.

JUDGE VITTONE: Mr. Borwegen, do you have some extra copies there?

MR. BORWEGEN: Sure.

JUDGE VITTONE: Would you provide them...

MR. BORWEGEN: We'll give him one. He can share it. We have about five. We're not going to give you all of them.

JUDGE VITTONE: Okay.

MR. BORWEGEN: They're for the press.

JUDGE VITTONE: Excuse me. Right now I think it's more important that the people who are participating in the audience have copies. We can make these available to the press afterwards.

MR. BORWEGEN: Is there anyone in the press that would like a copy? If there is, please raise your hand. We'll hand those out first.

JUDGE VITTONE: Just a second. Wait a minute.

I said, I think it is more important that the people who are participating in this proceeding have copies of the statement at this time. Copies can be provided to the press at a later date or after this proceeding.

Mr. Rupp, Mr. Furr, the other gentlemen and ladies in the audience are here participating in the proceeding, and they have a right to see that testimony as part of their preparation, and I want them to have copies now.

MR. RUPP: Thank you, Your Honor.

MR. BORWEGEN: Take them.

(Pause)

JUDGE VITTONE: If you guys can divide them up so that you have one per organization.

Okay, Mr. Borwegen, if you're ready, go ahead.

MR. BORWEGEN: Diane Carlson is but one of the million members that we represent who work in office buildings, hospitals, schools, government buildings, many who are exposed to a lack of fresh air and indoor air contaminants in their job; many who have become victimized due to the failure of building owners to exercise due care and concern to correct the deficiencies in these buildings.

It is on behalf of these and all workers suffering from indoor air quality problems that SEIU applauds, and strongly supports OSHA's effort to develop a reasonable yet comprehensive performance-based indoor air quality standard which will protect workers and other building occupants.

Indoor air quality problems are the most ubiquitous hazard present in today's modern office. I know, because my department receives more calls for assistance on indoor air quality problems than any other occupational health and safety hazard our members face.

According to the U.S. EPA, this workplace threat is draining our U.S. economy of $60 billion per year due to lower worker productivity, not including the additional billions of dollars attributed to lost work days and medical costs. How do you calculate the cost of suffering for the tens of millions of American workers affected?

To date, the overall response by government, building owners and employers has been inadequate in addressing indoor air quality problems. While we applaud the voluntary efforts of some private building owners, their associations and government agencies such as the GSA and EPA, we only wish that recommendations and guidelines would be all that is needed. However, it is naive to think, nor in establishing separately ventilated smoking rooms...

It looks like there's a mistake here.

However, it is naive to think that these voluntary recommendations alone are enough.

Unfortunately, I've confronted time and time again that employers and building owners' sole solution to poor indoor air quality has been to institute...

(Pause)

One second here. It's our last copy, so...

JUDGE VITTONE: Do you want to borrow mine?

(Pause)

MR. BORWEGEN: We only wish that these voluntary guidelines would be all that is needed. However, it is naive to think, nor in more than a decade of concentrated attention to this problem has it been shown that such activities have had any measurable impact. Therefore, additional efforts are needed now to protect the public and workers from indoor air quality problems.

It was because of such continuing resistance to correcting workplace hazards that Congress gave OSHA the job of protecting all affected workers under its jurisdiction -- not just force workers to wait while some benevolent building owners decide to act. Furthermore, there is sufficient scientific information available and in the OSHA docket to warrant requiring employers and building owners to implement the preventive program that remedies poor indoor air quality problems.

On the issue of smoking restrictions, let me say a word right up front here. Our experience has shown that concerns about second hand smoke exposure are easily dealt with between employees and employers by either establishing separately ventilated smoking rooms such as they do at the Department of Labor; alternating lavoratories serve this purpose without the need for retrofitting; or allowing smokers to smoke outside.

Unfortunately, we have confronted time and again that the employers and building owners' sole solution to poor indoor air quality has been to institute a smoking policy. While such policies eliminate second hand smoke, our experience has shown that they almost never solve the problem of indoor air quality; that workers will continue to suffer from lack of adequate, fresh, outside air, and/or because of the need to eliminate and/or control other contaminant sources.

I feel this message bears repeating. The majority of workplaces where our members work have smoking policies already in place, have been in place for years, and we have heard of no incidents of verbal or physical assaults resulting from these very reasonable policies. It isn't all that complicated, it isn't really the exaggerated issue being reported by the tobacco interests, and it is extremely unfortunate for workers in this country suffering from indoor air quality problems that this is the main issue monopolizing these public hearings. This is why we need to move on to the much more important issues of adequate ventilation and the other source control assets of poor indoor air quality.

SEIU strongly supports OSHA's proposal for such a comprehensive indoor air quality standard. However, there are a number of modifications SEIU recommends which we believe will improve the Rule further. I will summarize these recommendations, which are more completely described in our written comments.

Regarding the matter of sick building syndrome, SEIU recommends that OSHA expand the scope of the standard and include sick building syndrome as one of the triggers for the standard, and that all provisions of this standard including evaluation, recordkeeping and inspection and remediation requirements be applied to sick building syndrome and poor indoor air quality, the same as they are proposed for building-related illness.

Sick building syndrome is a major cause of discomfort and illness, and needs to be considered in the range of IAQ problems that can occur.

In the New England area of the last five years, SEIU has conducted over 50 investigations and surveyed over 4500 workers to help document health problems associated with sick building syndrome. The results of the investigations and surveys are startling. In the largest study conducted, out of 3500 responses received, 45 percent of the respondents reported feeling sick enough to leave work over problems they believe were related to the poor air quality. Fifty-two percent reported taking pain killers and decongestants several times a month in response to symptoms believed to be caused by poor air quality where they work. Twenty-four percent sought medical attention for problems related to poor air quality.

We have conducted similar studies with similar results around the country.

Regarding the designated person concept promoted by OSHA, we support that the employer or the building owner appoint such a person, whoever has control over the operation and maintenance of the building systems, and be given the responsibility for conducting inspections in response to IAQ complaints, maintaining and operating the building system, keeping logs and records of complaints, maintenance and operation work, air monitoring and so forth. In multi-employer work sites, these employers who have limited or no control over the building system should be required to designate a point person who is knowledgeable about the standard, is responsible for responding to the complaints, and maintains records of complaints and remediation for that particular employer.

This is a practical, reasonable and common sense solution to ensure that at least one person will assume greater responsibility for handling these matters, and that these matters will receive the increased attention that they deserve.

SEIU strongly supports the inclusion of building owners or lessees who control the ventilation or maintenance of premises where employees of these other employers work in the definition of employer. The victims who are here, the one victim who is here today and the other two who could not be here today, will be able to describe how thousands of private and public employees in multi-employer buildings where the building owner exercises control over the ventilation system in the workplace and they have no control to correct the problems themselves. They will also explain in the majority of the cases their efforts to improve air quality were often determined by the building owner and not by their employer.

It is imperative that the responsibility for maintenance, recordkeeping, and the implementation of IAQ compliance plans be in the hands of the person who has the control over the building systems, which in many cases is the building owner and not the individual tenant, for the standard to have the maximum impact on improving workers' health.

SEIU strongly supports the requirement that all employers in non-industrial work sites develop and implement a written IAQ compliance program. The compliance program requirement is an essential component of the standard, and without such a program building owners and employers will continue to pay little attention to the problem of poor indoor quality which is opposed to workers' health. The compliance program requirement is an essential component of the standard. This information should be accessible on-site to all employers, employees, and their representatives.

SEIU supports provisions that require building owners and employers to keep written records which include employee complaints, inspection and air monitoring results, and maintenance and remediation activities. In our experience, employees and their representatives must have on-site access to this information in order to establish that there exists an indoor quality problem and is essential to providing guidance on the remediation of sick building syndrome and building-related illness complaints.

SEIU's written comments provide additional information on the content of the compliance program.

SEIU recommends that OSHA add provisions for worker participation in the development and implementation of IAQ compliance programs. It is particularly important that workers are involved in the measures taken to control environmental tobacco smoke if that situation has not yet been resolved in their workplace. Furthermore, it should be stated that no provisions of the standard alternating the bargaining relationship between the employer and the employee representative be affected.

SEIU further supports that employers and building owners be required to maintain and operate the building systems according to code. However, SEIU believes that employers should be required to improve the ventilation capacity in response to employees' complaints when the identified culprit is lack of fresh air into the building space.

It's been our experience that buildings that are simply operated to code are not adequate to deal with all of the problems because of the situation where the building code only required a very minimal amount of air, especially when the code was revised during the '80s to address energy conservation measures. Further steps are needed to improve the system. So just meeting the code is not adequate in buildings where workers continue to have complaints. We believe that OSHA needs to amend the standard to require building owners to take further remediation steps in these situations.

SEIU further supports provisions which require employers to periodically inspect and maintain building systems, mechanical equipment rooms, and non-ducted air plenums. It is all too common that building systems, especially the HVAC ducts, grills and plenums are not kept clean -- that is, free of microbes, debris, and dust, and in good working order. OSHA should clarify that employers will be required to also inspect the building systems in response to complaints of poor air quality, building-related illnesses, and sick building syndrome.

We also believe that the ventilation systems should be operated during all scheduled work shifts in office and other buildings. As the nation's largest representative of building service and maintenance workers, SEIU hears from many of our members who complain about working in buildings using strong, toxic cleaning compounds while the ventilation system is completely shut off.

SEIU therefore strongly supports OSHA's requirement that the HVAC system operate during these regularly scheduled work shifts, and that general or local exhaust ventilation be provided during maintenance activities that pose a risk to the health of workers.

In this way, OSHA will provide protection to workers like janitors who's scheduled work shifts are different from the usual 9-5 work schedule. We've found that many building owners already provide this, so we know it's a feasible step. We would just like the other building owners to join their colleagues in following these similar procedures.

I think it would be more than irresponsible for OSHA to not provide protection to these building service workers, especially in light of the fact that they are using many times cleaning compounds which would actually provide incentive to provide perhaps even more increased ventilation.

Additionally, we're glad to hear that previous witnesses that have testified so far have already responded to our questions that we posed to them that they do also believe that the ventilation system should be on during these regularly scheduled work shifts for building service workers.

SEIU supports the premise that employers monitor carbon dioxide levels as an indicator that the ventilation system is inadequate. And we support that the carbon dioxide level should not exceed 800 parts per million. This level is approximately twice the level in outside air, and is a good indicator that contaminants are building up in the work space.

We've monitored numerous work sites and in our experience, air quality complaints increase when the CO2 levels exceed 800 parts per million. It's been our experience as well, that these problems are largely solved when more air is brought into the space and the level is reduced below that figure.

SEIU supports the provisions to limit microbial contamination of building systems and structures through the control of microbial reservoirs in the HVAC system, and other locations where there may be moisture, other breeding grounds for microbes to grow.

Additionally, SEIU would like to see that the appropriate procedures are implemented to control for airborne contagious diseases like tuberculosis if there is a reasonable possibility of such exposures.

Regarding training and information, employee information and training is an essential component of a comprehensive IAQ standard. In our experience, workers do not have the information about the problems of sick building syndrome and building-related illness that they need to be effective in protecting their health. They also need information about who to contact, who the designated person is, so that they can get a more reasonable response to their request, except listening to frequently their employer or the building owner saying there is some kind of psychogenic disease or epidemic going on in the building as opposed to a problem with the indoor air quality system.

Our written comments provide further guidance on the training content.

Regarding medical management, one serious limitation of the standard is that there is no provision for medical management of workers who suffer health affects due to sick building syndrome, building-related illness or poor air quality. SEIU suggests that OSHA include provisions for the employer to modify the work areas of workers who suffer from such health problems, often serious and life threatening related to poor air quality. It is quite possible for workers to develop sensitivity to chemicals or microbial contaminants which would require alternative work arrangements should building modifications not result in improvements.

It is likely that this medical management requirement would overlap with employers' responsibilities to accommodate workers under the Americans With Disabilities Act.

We believe that the inclusion of our suggestions will greatly strengthen this bill.

Thank you for your time and consideration.

After the panel is done, I'd be glad to respond to any questions.

JUDGE VITTONE: Thank you, sir.

MS. CARLSON: My name is Diane Carlson. I'm a licensed professional engineer for the State of Michigan, and a member and chairperson of the Department of Natural Resources Health and Safety Committee for the Michigan Professional Employees Society. This is an affiliate of the Service Employees International Union. I have a master's degree in chemical engineering and resource management, and have worked as an industrial hygiene engineer and as a chemical engineer for the air and water environmental programs for 22 years.

The poor air quality in the building where I work has taken its toll on my health and the health of my coworkers. Since beginning to work in the Knapps Centre which is in downtown Lansing, I developed a chronic bronchitis, a health ailment I directly blame on the variety of air quality problems in the Knapps Centre.

For over four years my coworkers have also suffered from chronic and severe headaches, respiratory ailments and breathing difficulties, fatigue, stuffiness, and burning eyes. Not surprisingly, many of these health affects disappeared when employees were away from the Knapps Centre.

The health affects of the poor air quality were so profound that one employee was given a filter mask to wear while working. Several others are seeing allergists for treatment.

The Knapps Centre was originally designed as a five story department building, and has subsequently been converted to office space for several different state departments. Currently the State of Michigan leases the building from a private building owner.

I might add that we have a no-smoking policy in the building. We ceased smoking about three or four years ago.

The principal source of many of the air quality complaints is the building's basement. The employees had offices in the basement which were contaminated with raw sewage which came from broken sewer pipes and leaked through the walls. Management didn't do very much. There was also decaying food from an adjacent restaurant which attracted cockroaches and ants. Sewage led to the growth of mold and spread of bacteria in the saturated carpets.

There were about three or four years of communications with management before they made some changes in the basement. At that time there was no ventilation at all in the basement. It was not connected to the rest of the building.

Then they connected the basement to the rest of the building. The mechanical room, which was in the basement, was now connected to the first and second stories. All of these problems we were having in the basement spread throughout the first and second floors, too. The problems became so bad that the employees had to stop wearing their contact lenses; we had asthmatics with respiratory problems who were aggravated by pesticides that were being sprayed on plants in the building; and two employees on the upper floors were diagnosed with sarcoidosis of the lungs.

The ventilation system was plagued with severe temperature fluctuations, filthy filters, grills, and dust. You could actually see black fibers coming out of grills in sections of the building. This was over the four years that people were complaining. They didn't even clean up the obvious, easy to get to things. No regular inspections or regular maintenance work were done on the system.

Strong chemical odors circulated throughout the building. Through the winter, the relative humidity hovered about 15 percent, way below the suggested range. Our carbon dioxide levels regularly exceeded 800 parts per million.

Only after five years of employees' complaints and pressure from the union, did management and the building owner take more seriously the workers' complaints. Even so, their responses were piecemeal at best.

Management and the building owner sought Band-Aid measures to deal with the air quality problems. Little employee cooperation was sought in identifying and remediating the problems, which included they sprayed pesticides while the employees were working in the building. Cleaning and vacuuming went on, even the carpets that had been moldy. And they did not remove the sewage contaminated carpet until after many complaints.

The net effect of all these misguided measures was to make the workers more sick. The situation became so back in the basement that the workers were temporarily removed to another site following protests from the union.

Employees working on the first and second floors also had significant health complaints but the building management refused to temporarily relocate these workers and I'm one of these workers.

Despite the numerous complaints and protests from the union, the State of Michigan renewed its five-year lease with the building owner.

On two occasions, Michigan OSHA conducted site inspections but it was unable to make recommendations for remediation because it found no violation of standards. There were no standards.

Employee participation was key to finally resolving some of the air quality problems at the Knapps Centre. An indoor air quality training workshop was conducted by SEIU and MPES for the employees. This was extremely important in giving members information they needed about problems in their workplace and to understand that they were really having problems, understand the kind of problems they were having better.

There had been no effort on the part of management or the building owner to share information with the employees about the air quality where they worked. After much urging, building management and personnel management of the state of Michigan reluctantly began to hold monthly meetings with the affected employees. MPES distributed a symptom survey and complaint form to all employees to document the extent of air quality problems.

As a result of the union's efforts, employees were permanently moved out of the contaminated basement and the ventilation capacity in other areas of the building was increased by adding larger blowers.

Progress has been slow and there appears to be little incentive for the employer and building owners to improve our air quality when they do not have to work in the building.

The personnel management office of our department of natural resources thinks something should be done about it but they don't know where to begin. They are anxious to help the employees but I guess they feel like trailblazers.

This is why the OSHA standard is extremely important to the over 70 million workers that work indoors in the United States. Despite the union's efforts to urge management and the building owner to deal with the indoor air quality problems, management still does not have a formal plan for identifying and resolving indoor air quality problems.

To date, employers and building owners have had no incentive to comply on a voluntary basis. It's important that OSHA send a message that the health of over 70 million workers who work indoors is important.

Since the development of air quality problems at the Knapps Centre, MPES and SEIU have documented significant indoor air quality problems in 11 other state office buildings. Examples of the problems we encountered in the other buildings include improperly connected ventilation systems leading to the accumulation of chemical fumes in state laboratories; unbalanced air flow creating huge fluctuations in temperature. Computers add to that, I might add. Filthy grills in air handling systems and carbon monoxide fumes entering the building because ventilation intakes are located adjacent to loading docks.

In 1992, MPES conducted a survey of membership of other 2000 biologists, geologists, scientists and engineers and a majority of the members indicated a concern, a serious concern, about the poor air quality where they work.

Employees report an increase in allergies, asthmatic reactions, antihistamine and decongestant use, stuffiness, fatigue, dizziness, increased sinus infections and respiratory problems, eye irritation and dryness and reduced productivity from using medication and increased use of sick leave. They associate these health symptoms with poor air quality at their workplace. Many of these symptoms disappear when they go home on the weekends.

The employees are also concerned about the long-term effects of exposure to chemicals and pesticides.

The State of Michigan both leases and owns office buildings. The building owner in both of these cases controls access, ventilation system maintenance and operation, remodeling and renovation work. Many owners refuse to investigate and remedy complaints of sick building syndrome and building related illnesses, responding we are not responsible or we have no control over that. It is appropriate that they be held accountable for their responsibilities under the standard.

Information on the ventilation system is difficult to obtain. In my efforts to find out about the ventilation system at the Knapps Centre, I am often told by the building owner if it's not mandated, why should we do it?

This is why it's essential that OSHA require that owners and building owners keep records of employee complaints, air monitoring, site inspections, operation and maintenance details as described in the proposed standards.

In our experience, communication between the employees, employers and in some cases the building owners or ventilation system manager is crucial. This establishes that there is a problem and where it is. It can help the building owner take proper action. It also helps management know which buildings are problem buildings when leasing time comes up.

It's important that employers and/or building owners have a plan for investigating and responding to the air quality complaints. They should be prepared to respond to emergencies requiring evacuation and to chronic conditions affecting employees' health.

The proposed standard is an important step toward controlling indoor air problems. We at MPES urge OSHA to move forward expeditiously to improve this much needed standard.

Thank you.

JUDGE VITTONE: Thank you, Ms. Carlson.

Next?

MS. SARRI: My name is Cathy Sarri. I work for the Service Employees International Union. I will be reading testimony for Phil Thornton and then also Margaret Jackson. Unfortunately, they couldn't be here both for medical reasons and so I'll read their testimony for the record. They might be able to come back in the future, so if we could consider rescheduling them in order so that they might answer questions, I'd just like that to be there.

(Reading the testimony of Mr. Thornton.) Hello. My name is Phil Thornton. And I am glad to be here today to share with you my experiences in dealing with indoor air quality problems while working as a Maine state employee at the Department of Human Services or which I will refer to as DHS.

DHS was housed in a privately owned building which is leased by the State of Maine. Because of the air quality problems where I worked, I can no longer climb stairs. Doctors had to remove one of my lungs because of a rare fungus which was growing there and in the building's ventilation system.

Because of the state's negligence in dealing with the air quality problems at the Department of Human Services, my plans for retirement were completely destroyed. I had to completely stop playing winter sports because of my reduced lung capacity.

I am angered by employers and building owners who trivialize our health complaints by complaining that workers are simply responding to some kind of mass hysteria and that somehow poor air quality is something that we can learn to live with.

The DHS site was previously a dumping ground for chemicals used by a filling station, the railroad and a dry cleaners before the building that I worked in was built there. The chemicals which were disposed of at the site over 50 years ago regularly seeped into the building when it rained and contaminated the walls and carpets. The fumes entered the upper floors through the elevator shaft. The chemical fumes were very concentrated because the building was originally built without fresh air intakes and so the same contaminated dead air was continuously recirculated in the building. The fumes were particularly strong in the morning after the ventilation system had been shut off for 15 hours.

We complained to management about the strong kerosene and gasoline fumes in the building and asked that the ventilation system be upgraded to bring in fresh air into the building. Only after pressure from the union did the state agree to install fresh air intakes with sufficient capacity to provide adequate fresh air for the whole building.

We confronted the DHS with numerous air quality complaints yet management denied that there were any problems. As a result, the union began documenting the existence of sick building syndrome and building related illness through surveys, work site inspections by independent consultants and laboratory testing.

The union documented that there was a pattern of sick building syndrome symptoms among employees at the site. Our symptoms included headaches, skin irritation, eye irritation and watering, shortness of breath and extreme fatigue. All workers suffered from these symptoms. We knew it was the building that was causing our problems because our symptoms would improve over the weekend or while we were away on vacation. Still the State of Maine and the building owner denied there was any problem.

The union also brought in independent air quality consultants who confirmed that the air which was dangerously polluted with microbes, chemicals and the rare fungus which was found in my lung. Ironically, when the state conducted its independent air quality tests, there were no problems found.

I have reason to believe that the tests were performed in such a way so as to demonstrate that there was no basis for employees' complaints. My suspicion includes that the windows were kept open to allow fresh air to enter the building while samples for contaminants were being taken.

The air quality complaints were due in a large part to the ventilation system which trapped and recirculated air. Overall, the ventilation system was poorly maintained and was not able to circulate enough fresh air. The ducts were not cleaned, the filters were not changed and, in fact, one of the ducts were filled with dead bugs which regularly ended up on the desk of the person who sat below it.

SEIU provided employees with the facts and the information that they were not getting from the state in a workshop on symptoms, causes and prevention of indoor air quality problems. This training let people know that they were not crazy and helped us in figuring out what the problems were in the building.

As a result of the air quality problems, 38 workers, which was almost 40 percent of all workers, at the site filed worker's compensation claims. Many more wanted to file compensation claims but didn't because they were scared of losing their jobs.

Some of us were reassigned temporarily to another site. Other workers left their jobs at the Department of Human Services in Caribou, Maine and took jobs elsewhere on account of the air quality problems in the building. It was the union efforts that finally forced the state to deal with the indoor air quality problems in the building.

The Department of Human Services was just one building of many state buildings in Maine that were found to have serious indoor air quality problems. In a large part, the state's response to air quality problems was piecemeal and ineffective in remedying employees' symptoms and complaints. To date, they still do not recognize that a problem exists.

In Maine, we did not have access to information and records that would have confirmed workers' complaints of serious air quality problems. Despite requests from employees, we are not given written results about our personal medical exams that were conducted as a part of investigating the air quality complaints. The state conducted air monitoring and soil sample tests, yet the state denied that any files were kept on the results of these tests.

My experience in Maine clearly speaks to the need for workers and their representatives to have access to inspection an medical records, tests and monitoring and the HVAC system operation and maintenance documents. Without this information, it will be difficult, if not impossible, to document and correct indoor air quality problems.

I am sad to say that not much has changed in the Department of Human Services in Caribou, Maine. Because of the union's efforts, the state improved the ventilation system and conducted some testing of indoor air quality and contaminants, yet despite serious and well documented health complaints from workers, the state still denies there is any problem.

When I retired in 1993, workers still complained about the gasoline and fumes circulating in the building. I believe that this is due in a large part to the fact that there is no OSHA standard which covers indoor air quality.

In my opinion, it is foolish to think that employers, public or private, and building owners will voluntarily implement measures to improve indoor air quality. Our experience to date demonstrates that an indoor air quality standard such as this one, including the modifications suggested by Bill Borwegen is the only way to assure that employers and building owners will protect the health of over 70 million employees who work indoors.

I urge OSHA to move forward expeditiously on this important indoor air quality standard.

Thank you for this opportunity to share my experiences.

Now I will submit testimony for Margaret Jackson. (Reading the testimony of Margaret Jackson.)

Hello. My name is Margaret Jackson. I am a member of SEIU Local 82 here in Washington, D.C. and I have worked as a janitor cleaning a privately owned office building until several months ago.

As a janitor, I worked from 11:00 p.m. to 6:30 a.m. using strong chemicals to clean offices and bathrooms during the seven-hour period.

My co-workers and I have had several indoor air quality complaints which have to do with using strong chemicals in the building where the ventilation system is shut off at least five hours before I arrive at work and is finally turned on an hour after I leave.

In the building where I worked, we each cleaned about three floors every night. We vacuumed, dusted, cleaned the bathrooms and offices, stripped floors and deodorized rooms.

We complained that we were using strong chemicals which irritated our eyes and throats, made us feel dizzy and faint and caused daily headaches. These problems were made worse because the ventilation system was completely cut off during the whole time we worked in the building.

The air was especially bad on Sunday nights when we started working. At that point, the ventilation system had been off all weekend. During the summer, the heat made using the chemicals even worse. I often felt I could barely breathe. The air in the building was completely dead, not to mention hot. We couldn't even open the windows to let in fresh air.

I got very sick from the chemicals one Sunday night while I was stripping the floors in a bathroom in the building where I worked. All of a sudden I felt very faint and dizzy. I felt so sick that I had to go to the doctor. The doctor told me to stay home for a few days to recuperate. The day after I returned to work, I was fired even though I brought a doctor's note with me explaining the terms of my illness. I still have not been paid for the days I couldn't work on account of the chemicals I used.

There have been other workers fired after they missed a few days of work because they got sick from the job.

I was not the only one who had problems with using chemicals. Other workers also went to see doctors about the dizziness and breathing problems they were having at work. One worker quit because the chemicals were bothering him so much. I think that the problems with the chemicals might not have been so bad if the ventilation system was kept running while we were working.

To make matters worse, our employer never told us that the chemicals we were using would affect us. We had no idea how the chemicals we were using might hurt our health. He never told us how the chemical could be used safely or if we needed to use the chemicals in areas with ventilation. I think it is really important that workers are trained about the hazards where they work. I also think it is very important that all workers who work in the building know what chemicals are used there and what they need to do to protect themselves.

Thank you for this opportunity.

JUDGE VITTONE: Thank you.

Exhibit 50, 50A, B, C and D will be received into the record of this proceeding.

(The document referred to, having been previously marked for identification as Exhibit 50(A-D), was received in evidence.)

Let me have a sign of who has questions for this panel.

Okay. Anybody else?

Mr. Dinegar, Mr. Tingle --

MS. ALEXANDER: Darryl Alexander.

JUDGE VITTONE: From the American Federation of Teachers.

And you, sir.

MR. DEFAZIO: I'm Mr. Defazio. Ms. Jackson is not here?

JUDGE VITTONE: Ms. Jackson and Mr. Thornton are not here. She just read their statement into the record.

How long do you have? How many questions? Ten minutes?

MR. DEFAZIO: Five minutes.

JUDGE VITTONE: Okay. Mr. Dinegar?

MR. DINEGAR: Ten or 15 minutes.

JUDGE VITTONE: Ten or 15? Okay.

Mr. Tingle?

MR. TINGLE: One question.

JUDGE VITTONE: Okay.

Why don't we start from this side and work our way over, then?

Mr. Tingle, you go first.

MR. TINGLE: Good afternoon. My name is Rex Tingle of the AFL-CIO and I will be representing the AFL-CIO with these questions and we have one question and this can go to either Mr. Borwegen or Ms. Sarri and it's about the OSHA proposed standard dealing with ventilation systems being run during all shifts.

It's been said that a lot of building owners would be at an economic disadvantage if this occurred but yet with your work in California, you've passed a bill that requires this by law to occur. Can you explain that to us today?

MR. BORWEGEN: Well, actually, we weren't responsible for that regulation in California that requires that the ventilation system be on during work shifts. And, as I stated earlier, there are building owners right here in town, Margaret could probably address this question firsthand, that do run their systems when the janitors are working in the buildings.

So I don't know what economic disadvantage we're talking about when we realize that some building owners are already doing this and I think they have the level of concern that we would like other employers and building owners to have towards their employees.

MR. TINGLE: So from the information that you've received in California and the information that you've received here in Washington, D.C., you don't see these building owners going out of business by having the HVAC system run during working hours?

MS. SARRI: No. And I think actually some of OSHA's witnesses also addressed that. I believe some of the people who gave analyses last week who were engineers, et cetera, felt that any time there were housekeeping activities that it did need to be kept on.

We don't have any economic analysis but that might be better directed at some of their witnesses.

MR. BORWEGEN: And there are others that the system should be on whenever anyone is in the building and we feel that -- again, some building owners do that but that's not what we're asking for. We're asking for the system to be left on during any regularly scheduled work activities but also if there is an unscheduled work activity that does produce toxic emissions, that the system should also be put on at that point in time as well.

MS. CARLSON: There is an alternative local exhaust if they are doing something special, so there are other ways of getting the sources out of the building.

MR. TINGLE: All right. So what you're saying is that should OSHA incorporate that into their final standard, having other solutions for maintenance work or any type of work that's being performed on what we call quote-unquote second or third shift hours, besides having the entire HVAC system on, would that be satisfactory?

MS. CARLSON: Equivalent alternatives, keeping the source level down.

MS. SARRI: Yes. And I would just like to say that in our experience at least, bathrooms where you do use very strong chemicals they tend to have local exhaust ventilation which operates pretty much continuously, you turn on the light and the ventilation system goes on. But they do use these same chemicals in offices where there is no ventilation system so I would say that, you know, local exhaust ventilation is appropriate, just that there has to be some kind of provision for where there is no installed system.

MR. TINGLE: Thank you, panel.

Thank you, Your Honor.

JUDGE VITTONE: Thank you, Mr. Tingle.

American Federation of Teachers?

MS. ALEXANDER: Good afternoon. My name is Darryl Alexander. I'm with the American Federation of Treachers.

I'd first like to address a few questions to
Ms. Carlson. Ms. Carlson, you said that you developed chronic bronchitis, and I was wondering if you could give a little bit more detail. How long had you been working the Knapps Center before you developed chronic bronchitis?

MS. CARLSON: My chronic bronchitis is probably at -- it's partly due to sensitivity to cigarette smoke, and I just seem to be very sensitive to it, and I was working in a wing full of smokers. And I came down with something the doctor didn't have a name for but it was related to Legionnaires disease or Legionella, or some unusual name.

And I was able -- I recovered fully, but I have a chronic condition. That's the way he describes it. I guess my involvement with the Knapps Centre was for about two seasons, and I just happened to have this sensitivity.

I guess I've been fortunate that I've almost fully recovered, and that's why I've taken on this issue.

MS. ALEXANDER: Could you tell us a little bit more? You went to a physician and your physician said that your condition was very likely related to workplace exposure you were having, or was exacerbated by workplace exposures?

MS. CARLSON: Very true. In fact, my boss smoked, all of my co-workers smoked. This was a new situation for me, and of course being a chemical engineer, I'm around a lot of chemical labs, and when I went away for a couple of weeks, I went out west to Yellowstone; got away from the office for a while, things cleared up.

And so when we got back the following winter and things started getting bad for me again, we did further tests. It was worse the second winter.

My doctor equated everything to the conditions in the office, and I switched wings. We started our no smoking ban, and a sort of strange situation happened. My boss did still smoke, but he wasn't smoking in the building, but he wore wool suits in the winter, and there was just enough of an odor that I reacted to it, and so we found out that I was just sensitive to that particular thing.

MS. ALEXANDER: Could you tell us about how much out of pocket you spent to get medical treatment for this medical condition?

MS. CARLSON: Probably thousands -- thousands of dollars. I have medical insurance, but I went through a voice specialist. I lost my voice for a while. My medical doctor; ear, nose, and throat specialist. I went through and had a lung specialist put me on a computer.

I lost a lot of work time. I guess the concern I have, personally, now, is I can't get shots to help me with this condition. I have to take antihistamines every day of life.

I feel decreased productivity because of that. I get tired much faster than I know I should. And I'm a professional, and I like to be alert, be on top of things. I'm constantly searching for medication that I can use for a long period of time that doesn't make me drowsy.

MS. ALEXANDER: Were there other things in the workplace that also exacerbated your condition?

MS. CARLSON: I am very sensitive to perfumes. This is something I've acquired. Strong chemicals in the restrooms. In fact, if I go into the restroom and see cans of things that are supposed to be for disinfectant, it's used in a well-ventilated place, and they're on every single stall, I just go to another floor. I guess I'm quite sensitive to chemicals.

Probably moderately sensitive. The pesticides that are sprayed, I haven't reacted to, so I'm sensitive to some things but not to others.

MS. ALEXANDER: Can you tell us approximately how many days you've lost from work because of this condition?

MS. CARLSON: Over a year's time?

MS. ALEXANDER: Over the two years that you say the condition was really bad, about how many days, approximately?

MS. CARLSON: I think most of my time -- I probably -- oh, I may lose two or three days a month of actual days. Most of my productivity loss is -- and not being in peak condition all the time -- I get sleepy very easily, and I have to get up constantly, walk outside, take a break, to keep on top of things the entire day.

If I know an important meeting is coming up, I stay off of the medication, and I just try, as hard as I can, to avoid any of these rooms that have chemicals.

MS. ALEXANDER: I would like you to elaborate a little bit more about the complaint process for your employer and the building owner when people came with actual, physical complaints or illnesses. How were they first treated by your employer, the State of Michigan?

Did the investigate each individual complaint? Did they do surveys, and how did it take them to conduct investigations?

MS. CARLSON: At first, for about three or four years, the employer looked the other way. There was no problem.

MS. ALEXANDER: So they did not conduct...

MS. CARLSON: They did nothing.

MS. ALEXANDER: ...investigations in response to complaints?

MS. CARLSON: In the beginning, they did not. There were a number of grievances filed before management started looking into the problem. In fact, the employees filed grievances, they started holding meetings.

The appearance of organization did wonders. We held a meeting with all the employees in the building to find out if we were crazy, if other people were experiencing the same thing.

We found out, throughout the entire floor -- we have two different ventilation systems in our building. The upper floors are served by the system in the top floor; the lower floors are served by one in the basement.

There appears to be an interconnection, because we do have complaints of pesticides on the fifth floor when they're spraying them down on the first floor. That hasn't been explained to us.

Well, I guess I'm getting a little off the path here.

MS. ALEXANDER: Could you just tell us, to your knowledge, did the State of Michigan, Department of Natural Resources, or the employer, log these complaints or keep any kind of record of these complaints, or did the union keep records?

MS. CARLSON: We kept records of the meetings that we were holding. We invited management to come into the meetings, and they started believing that there was a problem. Then they invited us to communicate to them via E-mail and a written complaint form, which they designed with us.

Now, we have two different managements in this state: Personnel management and building management. Personnel management was concerned about the employees complaints.

Building management came in at the invitation of personnel management, but building management still is questioning whether there's a problem or not.

The complaint forms are being retained by personnel management and, for the most part, we've had cooperation with the building managers, but there are several of them that we can't seem to get anything done through.

MS. ALEXANDER: Thank you. I have one more question for Mr. Borwegen.

What, in your opinion, would be a good complaint system, and how long do you think employers should have to respond to worker complaints?

MR. BORWEGEN: Are you talking about years or months? In many cases, these problems have gone on for years and years and years, and we want a mechanism that responds in a reasonable amount of time. Again, I think the OSHA rule, by very design, is a reasonable rule, and building owners is simply maintain their systems in working order and to respond and, when necessary, when there are problems.

I think there should be a response perhaps within five working days, to a grieved employee. I guess it really matters how serious the situation is, and that if an investigation doesn't resolve the problem after that five days, perhaps further steps be taken. But, again, in a reasonable amount of time.

We probably could learn from some of the more progressive building owners in the country and how they already solve these problems, because there are many building owners out there who are already aggressively handling these issues and are sure they have mechanisms in place that work for them, and I think they could work for all building owners, the ones that seem to be more recalcitrant and fail to respond in a reasonable manner.

MS. ALEXANDER: Thank you.

JUDGE VITTONE: Thank you, Ms. Alexander.

This gentleman here. Would you make sure you state your name and who you represent?

MR. DeFAZIO: My name is John DeFazio. I'm with the Chemical Specialties Manufacturers Association. I did have some questions for Ms. Jackson. I was wondering if it was possible to ask her to appear.

JUDGE VITTONE: Let me ask you a question. Do you have a Docket No.?

MR. DeFAZIO: Yes. 208.

JUDGE VITTONE: Okay.

MR. DeFAZIO: At her convenience.

JUDGE VITTONE: Excuse me?

MR. DeFAZIO: At her convenience, if she could appear.

JUDGE VITTONE: You have a question for
Ms. Jackson, the lady who...

MR. DeFAZIO: I guess it was 50(d).

JUDGE VITTONE: Okay. You can state it on the record. Can you provide a response to it, if you hear it?

MS. SARRI: I'll try. Yes. If I can't, it will have to go to her.

JUDGE VITTONE: Okay. Go ahead, ask your question.

MR. DeFAZIO: Do I have to provide the questions now or can I hold those for when Ms. Jackson appears?

JUDGE VITTONE: How many questions do you have?

MR. DeFAZIO: Oh, it depends on her responses. It could be one, it could be five or ten.

MS. SHERMAN: I don't think that they said that she was going to come back specifically to answer questions, did you?

MR. DeFAZIO: I thought that representation was made.

MS. SARRI: If it's required, she can. We'll make arrangements.

JUDGE VITTONE: Well, I know you made that offer, but I would sure like to avoid that as much as possible.

MS. SHERMAN: I would concur with you. However, I'm sure that you can either attempt to answer them yourself or he can pose the questions and she can respond...

MS. SARRI: In writing?

MS. SHERMAN: ...in writing.

MR. BORWEGEN: The problems that she described are not atypical, and we confront these problems on almost a daily basis from our janitor members, and we've had two janitors who died in the Dearborn Federal Building in Chicago, working with toxic cleaning compounds, so this is not an typical experience, as she's described.

MR. DeFAZIO: I ask that be stricken from the record, please.

MR. BORWEGEN: Excuse me a second. Excuse me a second.

JUDGE VITTONE: Let me ask you a question.

Why are you directing your questions, particularly, at Ms. Jackson?

MR. DeFAZIO: I would like to know what her experience is with the compounds and if the hazard communication standard was being followed by her employer, that series of questions.

MS. SARRI: I can answer some of that. I mean, we've talked about that, so I can answer some of those questions. I talked with her about this remark.

JUDGE VITTONE: Okay.

MR. DeFAZIO: Are there hearsay rules here? I don't know.

JUDGE VITTONE: No. I was just about to say if there's a clear example that this is not an adjudication, you're about to enter into that right now.

MR. DeFAZIO: Fine, Your Honor.

JUDGE VITTONE: Why don't you ask your questions. Let's see what kind of answers she gets. If you can answer them as you think that she would answer them, go ahead. But if you cannot...

MS. SARRI: Okay.

JUDGE VITTONE: ...please withholding responding.

MS. SARRI: Okay.

MR. DeFAZIO: Did you speak with her personally?

MS. SARRI: Yes.

MR. DeFAZIO: I was wondering if she did have any indication as to whether her employer did subscribe to the hazard communication standard and provide notice, MSDS, and notice of what chemicals were being used?

MS. SARRI: See, the reason I felt I could respond to this, is because I asked her that same question.

MR. DeFAZIO: Okay. All right.

MS. SARRI: She told me, because she's worked for other cleaning contractors, that she had previously received, she knew what the Hazard Communication Standard was. She had previously received training. Other employers provided this training.

She didn't know the term MSDS, but she knew there were sheets that talked about what the chemical was, et cetera.

She also knew that the chemicals had to be labeled and that, most importantly, there needed to be training. However, she specific said that her employer did none of that.

MR. DeFAZIO: In this particular instance that she testified to? Okay. Fine.

JUDGE VITTONE: Anything else?

MR. DeFAZIO: No, that's it. Thank you.

JUDGE VITTONE: Okay.

The discussion took longer than the answer.

(Laughter)

JUDGE VITTONE: Mr. Dinegar.

MR. DINEGAR: I'm Jim Dinegar with the Building Owners and Managers Association, Hearing Docket No. 1, and also representing the Institute of Real Estate Management, Hearing Docket No. 68.

In briefly reading the statement from the service employees, I had a number of questions.

In terms of the statement from Mr. Borwegen, indoor air quality problems are the most ubiquitous hazard present in today's modern workplace. I know, because my department receives more calls for assistance on indoor air problems than any other occupational health and safety hazard out members face.

Can you briefly describe how many of your million plus members work in local, state, federal, or education facilities?

MR. BORWEGEN: Our union is about 55 percent public sector workers and 45 percent private sector workers. Many of the people who work for the public sector work in privately leased buildings.

MR. DINEGAR: The other types of buildings that your members work in, do they incorporate medical buildings? MR. BORWEGEN: We're the nation's largest union of health care employees; that's correct.

About 400,000 of our members are health care employees.

MR. DINEGAR: 400,000?

MR. BORWEGEN: That's correct.

MR. DINEGAR: I would imagine there's an overlap, then, with the state, local, and federal?

MR. BORWEGEN: That's right, because there's private and public health care workers.

MR. DINEGAR: Hotels?

MR. BORWEGEN: A handful of hotel workers.

MR. DINEGAR: Those would be the ones I wanted to cover.

You go on to state that"

"According to the U.S. EPA this workplace threat is draining the U.S. economy of $60 billion per year due to lower worker productivity, not including the additional billions of dollars attributed to lost workdays and medical costs."

Do you have an figures in the additional billions? MR. BORWEGEN: Yes. I brought that with me. Let's see here.

(Pause.)

Yes. This was from a draft EPA report, I believe in 1989, and what they did was they extrapolated some of the data that we collected in our New England survey that I talked about. They attributed an average loss of productivity of 3 percent of poor indoor air quality, and it says: If these results were applied to the nation's white collar labor force, the economic cost of the nation would be on the order of $60 billion annually. While this cannot be regarded as a reliable estimate due to survey methodological problems, it suggests quite strongly that productivity losses may be in the order of tens of billions of dollars per year.

I believe in the final report to Congress, that was the exact figure that was used, was tens of billions of dollars, but in this draft report it said 60 billion dollars.

MR. DINEGAR: Mr. Borwegen, that did not include, because my understanding was it did include lost workdays as part of the calculation for worker productivity?

MR. BORWEGEN: No. It just calculated lost productivity. Our average loss work productivity. It may have included lost work days. It did not include medical costs. Perhaps you're correct. I would have to double-check that.

MR. DINEGAR: On the issue of smoking restrictions, you asked to say a word; I have a couple of questions about the word. Does the SEIU support OSHA's ETS proposal?

MR. BORWEGEN: Yes, we do. We think it's very reasonable, and it's basically in place in most of the buildings where our members work.

Smoking is no longer an issue in the majority of workplaces where our members work. It was dealt with years ago, and basically it's a policy of either people smoke outside or they have rooms that are separately ventilated, just as laboratories are already.

By code, laboratories are vented to the outside.

MR. DINEGAR: But there are none in place for smoking rooms at this point; is that correct?

MR. BORWEGEN: Well, people smoke in the bathrooms, and that could be their smoking room, I guess, if there's enough alternate bathrooms for people that smoke and people that done smoke, such as in the Department of Labor building.

MR. DINEGAR: Right. Which would not be incorporated under the Department of Labor as OSHA standard has proposed now. It's your understanding that the Department of Labor has those separately ventilated smoking rooms, including alternation laboratories to serve that purpose, without the need for retrofitting, but is it your understanding that OSHA's proposal, as it reads now, would allow for separately-ventilated smoking rooms to be incorporated in alternate laboratories?

MR. BORWEGEN: I don't know the details, no.

MR. DINEGAR: Sick building syndrome; SEIU recommends that OSHA -- this is on page three of your statement -- OSHA expand the scope of the standard and include sick building syndrome as one of the triggers for the standard.

How is sick building syndrome defined?

MS. SARRI: I'm sorry. Could you repeat that one more time?

MR. DINEGAR: Sure.

On page three of your...

MS. SARRI: Comments?

MR. DINEGAR: ...comments...

MS. SARRI: Yes.

MR. DINEGAR: ...SEIU recommends that OSHA expand the scope of the standard and include sick building syndrome as one of the triggers for the standard.

MS. SARRI: Um-hum.

MR. DINEGAR: How is the term "sick building syndrome" defined?

MS. SARRI: Let me read you from my -- we term sick buildings for those to include acute and chronic effects for which there is no specific etiology can be identified. That is, sick building syndrome and its consequent health effects are a result of a sort of problems that are associated with the building and can result in headaches, eyes, nose, throat irritation, fatigue, coughing, nausea, dizziness, dermatitis, difficulty concentrating, and muscle fatigue.

MR. DINEGAR: Can you read the first part about the "acute," where you started off by saying?

MS. SARRI: Acute or chronic effects.

MR. DINEGAR: And continue for that sentence?

MS. SARRI: Okay. sick building syndrome is a term used to describe acute and chronic effects for which there is no specific cause or etiology can be identified.

MR. DINEGAR: So the cause and the etiology can't be identified but it can be pointed out that it's sick building syndrome?

MS. SARRI: What we mean to say by this, you can't say, as in a case of a building related illness, where, for example, there are pigeon droppings -- and this is an actual case -- pigeon droppings and people who trample through the pigeon droppings and as a result get psittacosis.

Sick building syndrome is not that kind of scenario. Sick building syndrome, you might get headaches from the carbon dioxide level being way too high; it might be a combination of the chemicals that float around in the building system; it might be a combination of the dust that it's in the ducts because the ducts haven't been cleaned.

I think the...

MR. DINEGAR: Can I ask you a question, and actually back to Mr. Borwegen.

As far as I understand under OSHA's proposal right now, all non-industrial worksites are covered under this proposal, so how is it that sick building syndrome should be incorporated as one of the triggers?

I didn't understand the word "triggers" in terms of what would it trigger, if sick building syndrome were...

MR. BORWEGEN: Remediation by the building owner to correct the situation.

MR. DINEGAR: Why wouldn't sick building syndrome already be incorporated under the proposal if it incorporates, or if it covers, all non-industrial worksites?

MS. CARLSON: The term -- let me attempt that.

The term "building-related illness is used."

MR. DINEGAR: Yes.

MS. CARLSON: I was probably one of the people who urged them to include sick building syndrome.

Our complaints were generally for general symptoms of fatigue, allergies, dry eyes, frequent colds. They weren't for pneumonia or something with a very distinct cause. We had very rare instances of that.

We wanted more of the employees covered. We wanted a more proactive program.

MR. DINEGAR: But if it goes back to saying the entire spectrum of non-industrial worksites, virtually every building, except for the industrial worksites, if all of them are covered...

MS. CARLSON: Right.

MR. DINEGAR: ...and if they're all held to the requirements under the OSHA standard as proposed now, then why would there need to be any trigger?

MS. CARLSON: It would seem that the entire proposal is the trigger, so why would there need to be a distinction between sick building syndrome and building-related illness?

MS. SARRI: Because the OSHA standard, as it currently stands, only refers to building-related illness, and we felt like there had to be further clarification that sick building syndrome, which is distinct from building-related illness, needed to be mentioned under the definition of assorted building-related problems, that there could be, therefore, trigger compliance under the standard, and it wasn't mentioned as such.

MS. CARLSON: If management makes a reaction to something like an illness, that's fine. It's going to be very infrequent.

MR. DINEGAR: Okay.

MS. CARLSON: We were concerned about general employee conditions.

MR. DINEGAR: I guess I'll flip it around and ask the question a different way.

If there is no incidence of sick building syndrome, if we incorporate that as the trigger, and there is no incidence of building-related illness, would it be your recommendation that the provisions for record-keeping requirements for the other requirements under the OSHA standard, as proposed, not be covered by the buildings that don't have building-related illness and sick building syndrome?

MS. SARRI: No. The records are essential, that they're keep all the time, apart from whether there are actual complaints. It's too late when there are complaints. We're talking about prevention here.

MR. DINEGAR: I agree.

MS. SARRI: Yes. So that...

MR. DINEGAR: So either you have them all covered or you have the ones that have sick building syndrome and building-related illness complaints or symptoms covered?

I guess that's what I was trying to get to, that there is no need for a trigger if all buildings are covered already?

MS. CARLSON: Well, all buildings are covered. What we're looking at is why wait until the employee is on his death bed? Let's try to solve the problem while the person is showing some reaction.

MR. DINEGAR: Or prevented altogether.

MS. CARLSON: Exactly. It's just a matter of where in the process.

MR. DINEGAR: The statement on page three...

MR. BORWEGEN: Jim, just to clarify, it's a trigger for remediation steps, it's not a trigger for complying with the other provisions of the rule.

MR. DINEGAR: Okay.

MR. BORWEGEN: That would just be an additional trigger for remediation steps to occur.

MR. DINEGAR: There are no triggers for building-related illness incorporated in the standard for different remediation steps? In fact, for the most part, it's record-keeping requirements and identification of different ventilation levels as well as what steps need to be taken in terms of checking for CO2 levels and the rest, but I'm not aware of whether it triggers.

MS. CARLSON: What the standard does specify that, for complaints, there has to be investigation...

MR. DINEGAR: Yes.

MS. CARLSON: ...there has to be abatement of those hazards that are identified from the investigation.

MR. DINEGAR: Yes.

MS. CARLSON: What we're saying in our comments, building-related illness, like psittacosis, for example, would trigger an investigation of what it is that caused that problem and remediation.

What we're saying, if they're reported symptoms and several workers are reporting that, it should be the same response pattern for workers who are reporting sick building syndrome symptoms.

MR. DINEGAR: Continuing on page three of your statement, in...

JUDGE VITTONE: Excuse me. Let me ask one question here.

MR. DINEGAR: Sure.

JUDGE VITTONE: Are you saying mediation or remediation.

MS. CARLSON: Remediation.

JUDGE VITTONE: Remediation. Okay.

MR. DINEGAR: Page three of your statement, at the bottom:

"In the New England area over the last five years, SEIU has conducted over 50 investigations and surveyed over 4500 workers to help document health problems associated with sick building syndrome. The results of the investigation and surveys are startling."

Then you go onto note the largest study conducted, and also at the end you say that we have conducted similar studies with similar results around the country.

Have those studies been entered into the hearing docket?

MR. BORWEGEN: Yes, they have. Those comments and those studies, at least the large one, has been given to OSHA during their request for information, and I actually have a short version copy of it right here.

MR. DINEGAR: Okay.

MR. BORWEGEN: In case they don't have it, we can...

MR. DINEGAR: Can that also be entered into the record?

MR. BORWEGEN: Sure. We can make sure that gets into the record.

JUDGE VITTONE: Well, wait a minute. Do we have the whole thing already in the record?

MR. BORWEGEN: It's three pages. It's a summary of the survey of 3500 workers. I believe it already is in the OSHA docket, but if it isn't, I have a copy of it right here.

MS. SHERMAN: This is the document that you refer to on page three of your testimony?

MR. BORWEGEN: That's correct.

MS. SHERMAN: And you submitted it in response to our request for information?

MR. BORWEGEN: I believe we did, but if we didn't, I have a copy of it right here.

MS. SHERMAN: I believe you did also.

JUDGE VITTONE: Okay. So it's already in the record.

MR. DINEGAR: That would be the first one back about 1991? Is that right, that hearing or that docket?

JUDGE VITTONE: When did you file it?

MR. BORWEGEN: When did we file it?

JUDGE VITTONE: Yes.

MR. BORWEGEN: This was for the request for information about two years or three years ago.

MR. DINEGAR: Thank you.

Do you, SEIU, support the requirement that all employers at non-industrial worksites develop and implement a written indoor air quality compliance program?

MR. BORWEGEN: No, we don't. We think that's all really burdensome, and we think that the...

MR. DINEGAR: I guess I would step back and point out, on page five, where it says: SEIU strongly supports the requirement that all employers and non-industrial worksites development and implement the written indoor air quality compliance program.

MR. BORWEGEN: The employers that have controlling responsibility for the building, we think that they should comply with all aspects of this standard.

For tenants in office buildings, we think they should have a much lesser level of responsibility for compliance with this rule.

MR. DINEGAR: On page five, you note, 3 paragraphs down, you note:

"It is particularly important that workers are involved in the measures taken to control environmental tobacco smoke; furthermore, it should be stated that no provision of the standard alter the bargaining relationship between the employer and the employee's representative."

Can you elaborate?

MR. BORWEGEN: Yes. When employers institute smoking bans, it has been determined under Federal Labor law, at least, that each state has -- state labor laws pertain to public employees, but under Federal Labor Law, this is a change in working conditions, and if there is a union agreement in that workplace, the employer has to negotiate that smoking restriction policy with their employees.

We represent smokers as well as nonsmokers, and we believe smokers have rights as well as nonsmokers have rights, but we also believe that the employer is justified in implementing smoking policies, and we're supportive of that effort.

MR. DINEGAR: Can I go back for just a second, because the second question I asked you was, does SEIU support OSHA's environmental tobacco smoke proposal; and the answer was yes.

Are you aware that OSHA's proposal regarding secondhand smoke incorporates a ban on smoking if there is not separately ventilated smoke areas, and so then it would supersede the collective bargaining arguments, the relationship between the employer and the employer's representative, as a matter of course.

MR. BORWEGEN: That's correct.

MR. DINEGAR: On the bottom of page five, SEIU believes that employers should be required to improve the ventilation capacity in response to employee's complaints when the identified culprit is lack of fresh air into the building space.

What level should be set for ventilation?

MR. BORWEGEN: Well, by and large, the levels that were set in the '80s seem to be insufficient of the 5 cubic feet per minute...

MR. DINEGAR: I'm sorry. Insufficient or sufficient?

MR. BORWEGEN: Insufficient...

MR. DINEGAR: Insufficient.

MR. BORWEGEN: ...5 cubic feet per minute of outside air per building occupant and, it seems to me, that's where we're running into the most problems, where these buildings that were built in the '80s, where the windows don't open, and they were built under this, what we consider an insufficient code at the time.

I don't know what the proper level is, except that professional organizations recommend now 20 cubic feet per minute of outside air per person in the building.

MR. DINEGAR: Which professional organization?

MR. BORWEGEN: The American Society of Heating, Refrigerating and Air Conditioning Engineers.

MR. DINEGAR: Are you aware that that's the same society that set the 5 cubic feet per minute in level, in the 1980s?

MR. BORWEGEN: Everybody makes mistakes. I think they were under a lot of pressure at the time because of environmental regulations.

One thing I need to point out, Jim, is that we're not advocating that we retrofit every building in the country right now to bring it up to 20 cfm. We think that would be too onerous, and I'm sure he would agree.

What we're asking is, if there are noticeable complaints in the offices and the systems not bringing in enough outside air, then remedial steps be taken.

First of all, it first has to come to the code that was in place at the time the building was built; and then,

Secondly: If there are complaints, that we don't think it's a legitimate excuse, which is what we've confronted on numerous occasions when the building owner says, well, we're in compliance with the building code, and there is a number of employees that have run off to the occupational health clinic and been diagnosed with various elements related to the poor air quality of the building.

MR. DINEGAR: From the discussion on ventilation, noting that SEIU is not asking that there be retroactive applied standards on ventilation to meet the new 20 cfm or increased cubic feet per minute in the future, on page 6 of your statement, you say the SEIU hears from many of our members who complain about working in buildings using strong toxic cleaning chemicals, while the ventilation system is completely shut off.

Let me ask: What's more effective, spending the billions of dollars to operate the ventilation systems or removing the harmful chemicals from the cleaning agents?

MR. BORWEGEN: I guess building owners have control over both aspects. I don't know. You tell me. I think it's a combination. I just don't think people should be working in buildings, on regularly scheduled work shifts, when ventilation system is shut off, in buildings where you can't open the windows, and I think that a lot can be done to substitute safer cleaning chemicals, and I think that we're moving in that direction, but we're not there yet, and we still have a lot of people getting sick from a lot of cleaning chemicals.

MR. DINEGAR: Two more things that you note on page seven, one is that:

"Additionally, in these hearings, numerous OSHA witnesses have established that there is a need to keep the ventilation system on while the janitors are performing housekeeping activities and cleaning with strong chemicals, recognizing that the more effective way to prevent air quality problems is to substitute chemicals with less toxic substitutes."

I'm just confused about the statement, because when I ask the questions, there's reluctance to give me an answer one way or the other or somewhat contradicting from the written statements.

MS. SARRI: Can I just respond to that?

MR. DINEGAR: Sure.

MS. SARRI: Everyone knows who understands the most effective way to prevent injury and illness is to eliminate the problem at the source, which would mean substituting these chemicals that they're currently using with less toxic substitutes. That is the most effective way to do this.

That is not happening. By and large, these chemicals are not being used by cleaning contractors, and I would challenge you to prove that you've required it in your contracts, or building owners require this in their contracts, that janitors are using less toxic chemicals.

That's not there. In light of the fact that a lot of these labels require ventilation to use them, until that changes I think that the ventilation system should be kept on.

MR. DINEGAR: Referring to Margaret Jackson's statement in terms of the cleaning with the operating hours at the top of page 7, also of your statement,
Mr. Borwegen, the scheduled work shifts are different from the usual 9:00 a.m. to 5:00 p.m. work schedule, it would be irresponsible for OSHA not to provide protection from building service workers under this standard.

Then Margaret Jackson did provide more information, so I would refer to there, that says:

"I worked from 11:00 p.m. to 6:30 a.m., using strong chemicals to clean offices and bathrooms during this 7-hour period.

"If OSHA is not going to require the operation of the building ventilation and air conditioning system during the regularly scheduled work shifts, in addition to 9 to 5 or 8 until 6, would it be your recommendation that the cleaning hours are changed, or could you give us a little bit of information as to why the cleaning of office buildings is not done between the hours of 9 a.m. and 5:00 p.m.?

MS. SARRI: I would be happy to address that question to a lot of our locals that represent these workers. I think there is interest in having them work other hours. I think that the most circumstances, the terms of when they work is set by the building owner, and they're required to work in these buildings after the majority of the tenants have left.

MR. DINEGAR: So if it were the choice of the building owner to have them in during the work hours of nine to five, that could be accomplished by the members of SEIU?

MS. SARRI: I think that that's best left up to the collective bargaining agreements that local unions have worked out on behalf of their employees.

MR. DINEGAR: Page 8, SEIU suggests that OSHA include provisions for the, quote, "employer to modify the work areas of workers who suffer from health problems, often serious or life-threatening related to poor indoor air quality."

Can you give me a couple examples of what modifications of work areas should be provided for, what provisions should be incorporated under the OSHA proposal? I'm not aware of any that have been proposed.

MR. BORWEGEN: I think you can look at the EPA headquarters building, where they've relocated a number of employees because the owner of that building has refused to adequately remediate the problems in the EPA Waterside Mall, headquarters building.

MR. DINEGAR: That would be relocating, but modifying the work areas; any examples?

MS. CARLSON: Yes. We have a number of mold-sensitive employees who we've moved to a separate wing. It is not carpeted. We, right now, have portable air cleaners. That's why I hesitated to answer. It's -- I guess it's somewhat of a modification. It's an area where the air flow is -- well, it's kept in that area before it goes through the carpeted vacuum areas. We also have windows in that wing.

MR. DINEGAR: So there's no carpet in that wing?

MS. CARLSON: No carpeting, and windows are in that wing, and that's where some of our sensitive employees are blossoming.

MR. DINEGAR: I'm just a little short on time.

If I could as one more question about page 9. Mr. Borwegen, you didn't read page 9. I'm interested to find out if that's going to be part of the record.

MR. BORWEGEN: There were some extra thoughts in mind that weren't supposed to be included but, sure, we can include that in the record.

MR. DINEGAR: Okay. Then I'd like to respond to it briefly, if I may, and ask a question about it. I guess I should read it for everybody else that didn't get a copy of the packet.

"Yet wouldn't it be predictable if the building owners and managers association would attack the need for a standard. I would personally" -- I guess this is you, Mr. Borwegen -- "I would personally challenge BOMA to devote similar staff and financial resources to solve this problem as they are devoting to attempt to defeat this responsible and reasonable standard.

"I would also challenge BOMA to describe how they propose to protect workers in buildings where building owners which are not as benevolent as already described, failed to act."

I would tell you that we'll be testifying and submitting copies of our testimony tomorrow in front of OSHA if the schedule holds and we'll be happy to respond to those questions at that point.

Thank you very much.

JUDGE VITTONE: Thank you, Mr. Dinegar.

Ms. Sherman.

MR. ELI: Clawson Eli, with Covington, Burling, representing the various parties that Mr. Rupp has been asking questions on behalf of.

I wanted to ask you one clarifying question. On the second page, you say that the majority of workplaces where our members work have smoking policies already in place, have been in place for years, and we have heard of no incidence of verbal or physical assaults resulting from these very reasonable policies.

The longstanding reasonable policies you refer to, are they all limited to smoking only in separately ventilated smoking lounges?

MR. BORWEGEN: Or smoking outside.

MR. ELI: Or smoking outside.

MR. BORWEGEN: Every situation is different but, for the most part, this is like an old issue. It's been dealt with long ago.

MR. ELI: So none of these policies permit smoking where there's adequate ventilation in separate smoking areas but not separately ventilated smoking areas?

MR. BORWEGEN: Every situation is different, and the bottom line is it's not a big deal, you know?

MR. ELI: What's not a big deal?

MR. BORWEGEN: These policies have been put in place, and maybe they have a room set aside, separately exhaust, that people smoke outside; again, these policies have been put in place, and it's not a big deal.

MR. ELI: Whatever they...

MR. BORWEGEN: If people have accepted it, reasonable people have accepted it, reasonable restrictions, and it's worked.

MR. ELI: These policies...

MR. BORWEGEN: The system works.

MR. ELI: ...whatever they...

MR. BORWEGEN: The policies work. They work.

MR. ELI: Yes. Thank you.

JUDGE VITTONE: Thank you, sir.

Ms. Sherman.

Wait, let me make sure. Nobody else in the audience? Ms. Sherman?

MS. SHERMAN: Thank you.

I guess I'm a little bit unclear from your testimony. Who are your members. In other words, what do they do, what is their profession?

MR. BORWEGEN: We have a million members, and about 55 percent work in the public sector in every conceivable job you can think of, and about 45 percent are in the private sector.

There's about 400,000 of our members that are health care workers. They're both public and private. We have building service workers; again, public and private, about 175,000 building service workers.

We have office workers. We have taxi cab drivers. We have people that work in ball parks.

We have gas utility workers. We have a lot of different types of workers. In the public sector, they have every conceivable job you can think of.

MS. SHERMAN: I believe in answer to a previous question you said you do have workers who work in hospitals, and nursing homes?

MR. BORWEGEN: That's correct.

MS. SARRI: Yes.

MS. SHERMAN: Do you have any workers who work in restaurants?

MR. BORWEGEN: No, we don't.

MS. SHERMAN: Do you have any workers who work in bars?

MR. BORWEGEN: No, we don't.

MS. SHERMAN: Can you break down your membership into the U.S. component and the Canadian component?

MR. BORWEGEN: We have 75,000; of that, 1 million members are in Canada, and in Canada it's almost exclusively health care workers.

MS. SHERMAN: Could you provide information for that record as to what SIC Code your members are in by number -- the Standard Industrial Classification Code.

MR. BORWEGEN: I know what it stands for.

MS. SARRI: We'd be happy to provide that. It's several different codes, and I don't have them with me right now.

MS. SHERMAN: That would be fine. We would just sort of like to know how many members you have within various SIC codes, so we can get some sort of an idea about this.

I take it, then, to summarize your testimony, that most of your members, perhaps, will work in non-industrial worksites?

MR. BORWEGEN: That's correct. We have very few industrial workers.

MS. SHERMAN: Okay. In your response to our request for information, you refer to a member survey. I'm a little bit confused, because there are several surveys being referred to in your testimony.

Is the one that you refer to in your response to the RFI, the same one that you discuss on page three of your testimony?

MR. BORWEGEN: Yes. That was the largest one we did, and that was tied in with a state legislative campaign in the states of Maine and New Hampshire, and we were successful in getting legislation passed in those two states that require that the state only purchase or lease buildings that meet the minimum ASHRAE standard of 20 cubic feet per minute of outside air per building occupant.

That's much more comprehensive than what OSHA is proposing here today, and we've seen a dramatic decrease in indoor air quality complaints as a result in the States of Maine and New Hampshire, for public employees that work for those two state governments.

MS. SHERMAN: Is there any way that you could quantify this mitigation of symptoms?

MR. BORWEGEN: Well, we don't have the resources to do the kind of research to. All I can tell you is the number of phone calls that we've gotten from this Tuesday have dropped off to dealing with these two problems, dealing with problems in these two states.

MS. SHERMAN: Is this the same survey that EPA relied on to estimate the three percent productivity loss?

MR. BORWEGEN: That's correct.

MS. SHERMAN: Now, the other thing I wanted to ask you about that survey, and it may be included. I believe you did submit the who survey for the record, or just a summary of the survey?

MR. BORWEGEN: Well, we have a summary of the survey, and I don't know if we still have the printouts that we turned over to EPA a number of years ago when they compiled their -- they turned their data over to an outside research firm who came up with this $60 billion figure in lost worker productivity.

MS. SHERMAN: Would you have anything to add based on any other surveys you've done or any additional information that you've compiled since then that would add to the body of information of productivity losses due to poor indoor air quality?

If you don't have it now, I would like for you to submit it to the record.

MS. SARRI: There have been, just to clarify why there are so many differently mentioned surveys so many different times, we're often forced into the position of having to defend that there's any kind of problem to defend the worker's complaints. So we routinely do a survey at the site to demonstrate that significant percentage of the workers do have problems.

So I think that we could submit those results, and one of the questions is a productivity question, and we could submit those, and there are various local unions all over the country.

MS. SHERMAN: I would appreciate that. The other question that I had about the survey that was mentioned on page 3, in your summary report do you have indicated how many establishments or building types that particular survey embraced? I know we have lots of information as to how many workers it covered; but we would also like to know the information as to how many buildings it covered and what types of buildings these were.

MS. SARRI: What types, in what sense? What do you mean?

MS. SHERMAN: Whether they're high rise buildings, whether they're...

MR. BORWEGEN: What was unique about this survey, too, usually we do surveys in problem buildings, and what was unique about the survey that we did in Maine is that we -- it was really -- we surveyed all the buildings where we could get adequate responses; and I think the most interesting finding is that there was a stark difference between the buildings that were considered problem buildings and the buildings where they did not have indoor air quality problems; so there was a noticeable difference on complaint rates between what we consider the clean or the good buildings, and the bad or the buildings with their indoor air quality problems.

I consider that the most significant finding, especially when you're confronting employers that again continue to blame this problem on some kind of psychogenic hysteria.

MS. SHERMAN: So in addition to the building type, high rise, et cetera, if you also had it in terms of the use of the building, building category; hotel vs hospital vs library vs school. This might provide some useful information.

MR. BORWEGEN: These were all state office buildings. These were state employees in the states of Maine and New Hampshire. So these were all state office buildings, and it was just different state governmental agencies.

So there weren't that many differences
except -- I mean, they don't have that many high rise buildings in Maine and New Hampshire for one thing; but also, you know, really the only difference is in some buildings the windows and in others they didn't, and you can almost do a very close association to show that the buildings that have the problems are the buildings where the windows did not open, the buildings that were built in the energy-conscious '80s, in the buildings where they had a lot of leakage, where the buildings were old, where the windows opened we didn't have that problem.

Maybe OSHA should just be proposing a rule that buildings be built where the windows open, I don't know; but we know that that seems to be a major determinant in this hazard that our members face.

MS. SHERMAN: Do you have any reason to believe that these buildings were markedly different from private sector buildings within the same geographical area?

MR. BORWEGEN: Well, to be fair to the private sector -- well, typically, state employees and local government employees and perhaps federal employees as well; I'm not sure as much -- but I can tell you, state employees, they usually have some of the worst office space available. They usually move into spaces that no one else will move into, frequently. We've had converted supermarkets that had no mechanical ventilation system whatsoever except the air coming through the front door that they stuck employees in.

Typically they're in some of the worst buildings, and there's no market incentives as there are in the private sector for -- as many incentives in the private sector to remediate some of these longstanding problems.

But keep in mind as well that many of these state employee buildings and government buildings are leased buildings from private employers.

Again, such as the EPA Waterside Mall situation. But they enter into these five year leases, and for some reason again if we simply had some lease language that required that these building owners maintain their buildings and keep for instance CO2 levels below 800 before remedial steps are taken, perhaps that could be a solution to the problem.

So I guess the answer to the question is that government employees usually work in buildings that are of less quality than the private sector.

MS. SHERMAN: But you didn't do a companion survey of private buildings within this geographical area?

MR. BORWEGEN: No, we did not. But again, many of these buildings are privately owned.

MS. SHERMAN: I understand that you have participated in several legislative initiatives to improve indoor air quality in the buildings that your members work in. Have you been doing anything else to improve the indoor air quality for your members?

MR. BORWEGEN: Well, we have offices across the country. In fact, we just opened one in Canada, and we worked directly with our local unions and our members to do surveys, to do worksite investigations.

New England is a particular area where we have a CO2 meter, so we go around and invariably use this device as an indicator of problems, and that's where we'd come up with the information that -- when we get above 800. We seem to have problems below 800. We don't....

We also have worked at different levels on trying to pass federal legislation. We've tried to get EPA to address the issue more seriously as opposed
to -- and then they are, but our concern with EPA is that they're just looking at this from a voluntary standpoint, and we think there are good building owners out there and there are good employers out there that are taking responsible and reasonable steps to deal with this issue, but that we have not really seen market changes im that.

We think that's why we come here today, is because OSHA can level the playing field and provide protections for all workers so they don't have to wait for benevolent building owners to act voluntarily.

We work at all levels. We worked on trying to get state legislation passed and a number of other states, in addition to New Hampshire and Maine.

We confronted more difficulties. There's obviously significantly organized opposition to these types of a regulatory initiatives -- or legislative initiatives.

MS. SHERMAN: That brings me to the next question.

MS. SARRI: Can I just add one thing about that? Sorry. Real quick. This will be real quick.

I would just like to say that I think Diane gave an example. I know of an example in New England where there have been committees, labor management committees, formed on an ongoing basis, deal with indoor air quality problems, so I think there has been a serious effort to work with management on this.

MS. SHERMAN: Is carbon dioxide measurement common in the buildings where your members work? I'm talking about by building owners and managers as opposed to by your union. MR. BORWEGEN: Not that we're aware of. I remember we were leasing some space in LA, and I proposed that we include a clause in the contract with the building owner, and they refused to sign the agreement.

MS. SHERMAN: You just indicated, though, that you sometimes take the carbon dioxide measurements yourselves.

MR. BORWEGEN: That's correct.

MS. SHERMAN: Do you have or could you provide measurement results that you have achieved by, again, type of building measured?

MR. BORWEGEN: Yes, we can. Yes.

MS. SHERMAN: I'd like for you to describe either here or in a post-hearing comment, the employment profile of your members. By that, I mean, do your members supply services directly to the building, managers or owners, or do they themselves work as subcontractors?

MR. BORWEGEN: The building service workers, invariably in the private sector, work for building service cleaning contractors that are hired by the building owners. In the public sector, it's still a situation where they are either government employees or they're contracted employees working for a private cleaning firm.

The office workers are primarily government employees.

MS. SHERMAN: In terms of your members who are providing cleaning services, which I believe are a majority of your members...

MR. BORWEGEN: It's about 175,000 of the million members are building service workers.

MS. SHERMAN: So it's not a majority of your members.

But as to those members, providing cleaning and maintenance services, could you provide some sort of a breakdown as to the numbers who are providing these directly for the building manager or owner and the ones that are doing it through a subcontractor, and it would also be useful to us to have the number of subcontractors, in your estimation, who are involved.

MR. BORWEGEN: Cathy can assist with that.

MS. SARRI: I'll have to check with our research department. I believe we have that breakdown, but if we have that, I'll definitely submit that.

MR. BORWEGEN: But the vast majority work for cleaning contractors. Very few work for building owners themselves.

MS. SHERMAN: But you did say in general it's the government building workers that would work directly for the building manager and the...

MR. BORWEGEN: A higher percentage. Even in the government buildings the number of private cleaning contractors in those government buildings is probably in excess of 50 percent.

MS. SHERMAN: Do you have an opinion as to whether there is a difference in the training of your SEIU members who work directly for the managers as opposed to those who work for those who supply contract services?

MR. BORWEGEN: Then we get into the thicket of the fact that half of the public employees, state and local government employees in this country aren't even covered by OSHA. I don't know how to begin to answer this question, but we have not been happy, let's put it this way, with the level of compliance of building service contractors with, for instance, the hazard communication standard. It gets into... At least that is something that the building cleaning contractor should have some level of control over. Again, they don't have total control. Again, it gets into the issue of sometimes the building owner specifying how the work should be done and with what products.

But when we get into the area of indoor air quality, clearly, the employer has virtually, when it's a cleaning contractor, they virtually have no control over requiring that a building owner would, for instance, keep the air handling system on while those employees are working. If, in fact, the cleaning contractor made that request, the building owner would surely move on to hiring another cleaning contract.

MS. SHERMAN: I understand that, but that really wasn't my question. What I asked is if there was a difference in training that you could describe between your members who work directly for the managers, versus your members who work for subcontractors supplying services.

MS. SARRI: I would say anything that we have right now is anecdotal, but really at this point, because I think they'll articulate that those who work for public sector employers tend to have more information. Our experience in the private sector is that it's pretty much a guarantee, unless they've won it because they belong to the union, that they will not have any training.

I think 99.9 percent of the cases of employees who are not represented by a union in the private sector probably do not have any training on HazCom or any other standard they should be trained under.

MS. SHERMAN: But getting back to your own experience and your own union, do your members receive training in safety and health by contract or by practice?

MS. SARRI: Yes.

MS. SHERMAN: When do they receive this training? Is it when they're first hired, or annually, or when an accident occurs? Can you...

MS. SARRI: It's often a variety of situations. Sometimes we, when we have discussions with employers we put that in the contract, where we do have contracts with building or cleaning contractors. I think in other situations it's won because there are some complaints from workers. We often try to push this. It's just a group that has a lot of different competing demands because they're low wage, low skill, and lose their jobs frequently.

MS. SHERMAN: So you can't really generalize on when the training occurs, but you can say in a general matter that almost all of your service workers do receive some training.

MS. SARRI: I'd say a good majority do get it, yes.

MS. SHERMAN: Do you have any idea of the duration of the training? Is it possible to generalize it?

MS. SARRI: Probably not. No.

MR. BORWEGEN: We're talking about thousands of independent cleaning contractors. You can go down to the store, buy some chemicals, and you can become a cleaning contractor. We're talking about a very, not a very well established industry in many... Then there are major, larger cleaning companies. It's a very broad spectrum here and it's very hard to...

Many of these workers work for minimum wage. They have no benefits, they get no vacation. If they call in sick they get fired, is what happened to Margaret. This is a very low end of our socioeconomic ladder in this country, and health and safety training fits in with the rest of the conditions that these workers face.

MS. SHERMAN: I understand that, but I was wondering if it might not be a matter of the collective bargaining agreement.

MR. BORWEGEN: We try to make it that. We try to get these folks making more than the minimum wage. We try to get them days off. We try to include health and safety contract language. But it's very difficult, because to the degree that we negotiate contracts that are beneficial to the workers, the building owners may not want to pay the higher amount of money to the contractor, and then the building owner will fire the contractor and hire another contractor whereby they do not have to pay these workers what we consider a livable wage.

MS. SARRI: Also, aside from the contract language, we've had a number of projects and our regional staff do provide training for these workers when their employer is not delivering it. So in situations where we haven't been able to get the training on the clock as they should be provided as they're required by OSHA, we've had to step in and provide that and workers come to workshops and training off the clock.

MS. SHERMAN: Would it be fair to say that most of your members are trained either by their employer or by the union?

MS. SARRI: A good number. I'd say a good number. I don't know if I'd say most, all of them. But I'd say there's a good number, yes, that are trained.

MS. SHERMAN: Do you have any idea of the breakdown of the percentage that would be trained by you as opposed to the employer?

MS. SARRI: No.

MS. SHERMAN: Would it be possible to get such a breakdown?

MS. SARRI: I think as Bill articulated, the work force is so transient. We lose contracts for unionized workers right and left, so the turnover is incredible. To have that kind of information would be a tremendous effort, and it would change almost daily.

MS. SHERMAN: Would you have any estimate as to how much training would cost per employee?

MS. SARRI: I don't have that estimate.

MR. BORWEGEN: Are you talking about the indoor air quality rule now, or are you just talking about...

MS. SHERMAN: Yes.

MR. BORWEGEN: Okay.

(Pause)

MS. SARRI: We can take a stab at it, but we haven't done this. We haven't done any kind of cost estimates on training.

MS. SHERMAN: When your members develop health symptoms due to conditions involved in their employment, is there a mechanism available for them to file complaints?

MS. SARRI: File complaints to their employer?

MS. SHERMAN: Yes.

MS. SARRI: For all categories of workers that we represent? Not just building service workers.

MS. SHERMAN: I guess I would like the answer in two parts. First for building service workers and then for your other members.

MS. SARRI: My experience in working with our locals on this, once again it goes back to the fact that these workers are a disposable work force. So everything we get, filing a complaint could mean you lose your job, so everything we've been able to win has been through collective action on the part of the employees. So it's been a little bit more direct action than just filing a specific paper on their complaint. They are afraid of losing their jobs.

I think Diane's situation where workers are in a little bit more stable situations, then it lends itself more to filing the paper and keeping complaint logs, etcetera.

MS. SHERMAN: Do you ever try to cover this in your contracts?

MS. SARRI: Cover reporting on indoor air quality?

MS. SHERMAN: Cover reporting of employment-related complaints of... Employment-related health complaints.

MS. SARRI: I haven't read any language to date where it basically says it's an extension of what's required under the OSHA Act and says that the employer is required to respond to these health and safety hazards, but they haven't... No specific language on complaints per se, responding to specific... They have to respond to a hazard that exists and is identified by workers, but no specific language on keeping complaints or responding to individual complaints.

MS. SHERMAN: Did I understand Mr. Borwegen to indicate that the situation with involuntary smoking has improved in recent years for your members?

MR. BORWEGEN: I would say it was a while ago. I was dealing with smoking policies in the mid '80s. For the most part... Again, I haven't had a call on smoking policies in years. It's just been dealt with. It's not an issue for us any more.

MS. SHERMAN: Do you have any data on the number of your members who are working in smoke-free environments.

MR. BORWEGEN: The vast majority, but we don't have numbers.

MS. SHERMAN: I have no further questions, thank you.

JUDGE VITTONE: Somebody else?
* MR. HATHON: Lee Hathon, with OSHA.

Page seven of your comments, you talked about providing ventilation during off hours for housekeeping activities. Could you tell me right now with your workers if they encounter a process of say carpet cleaning or whatever where the MSDS indicates use in a well ventilated area as a lot of them say.

What is involved in the process to get a ventilation system turned on during off hours in a building? Is it something that's pretty straight forward, or is it a problem?

MR. BORWEGEN: Basically, again, you tell your employer, the building contractor that you want the ventilation system turned on. If they don't fire you, then they go tell the building owner. If the building owner says it costs too much money, then the building owner fires the cleaning contractor. That's pretty much how it happens.

It's too bad, because they are using very toxic chemicals. Glycol-ethers are regularly used as strippers. I don't know if you read the data on glycol-ethers, but they're not fun chemicals to be working with. Methalynecholoride is frequently used as a stripping agent. Carpet cleaners. Sure, there's a lot of MSDS' out there that say "use in well ventilated or properly ventilated rooms." But we have next to zero recourse to get the systems turned on, except in California where we can call CalOSHA where that standard does say that the ventilation system should operate when people are working in the building.

MR. HATHON: Thank you very much.

JUDGE VITTONE: Anything else?

MS. SHERMAN: Two more
* DR. REPACE: I'm James Repace with OSHA.

Typically, are your members given any information on the type, the rate of application, the toxicity or the persistence of pesticides to which they might be exposed routinely in the buildings in which they work?

MR. BORWEGEN: We haven't done those as studies. We've received complaints over the years. It is always a little worrisome to our office workers when they see someone going through the building wearing a respirator and applying pesticides. We try to apply pesticides during the off hours. We represent pesticide applicators, actually, in New York City -- Structural Pesticide Applicators. But we've had complaints.

I remember dealing with a substantial complaint in the Omaha schools with one of our locals where a number of people got sick. But people frequently complain about pesticide applications that are going on, and we try to steer them towards integrated pest control, pest management programs. I think it's happening more in the schools. About 100,000 of our members are school workers -- not teachers, but the service workers in the schools. Pesticides is a big issue, and I don't think it's been dealt with adequately, nearly well enough.

Diane may have some particular specifics in her building, I don't know.

MS. CARLSON: I'll add a little to that. I guess our employees are not concerned about the application rate as much as being forewarned when it's going to be applied. We find out after the fact or during the fact. I guess what we ask is that the employees be given some advance notice before the pesticide spraying is done, if it has to be done during working hours.

DR. REPACE: By integrated pest management, do you mean reducing the food that might be available to insects and using relatively non-toxic pesticides like boric acid, things like that?

MR. BORWEGEN: The whole range. I don't understand why people apply pesticides when there don't seem to be any critters present. It doesn't... There's a variety of methods and there's groups that are more knowledgeable about this approach that I usually put our locals in touch with them, than I am.

DR. REPACE: Do you have any information on the occurrence of multiple chemical sensitivities among your members, particularly in conjunction with sick building syndrome?

MS. SARRI: We don't have any data, although we do know it is a significant problem. A number of our members have complained about this. Diane even has examples at her site. We could compile some of our technical assistance requests and see what we come up with, but I don't think that would be any indication of the extent of the problem. We really have to often rely on people coming to us with problems, so there are plenty of people who probably go undiagnosed, etcetera, and we have no idea.

DR. REPACE: So to your knowledge, it does occur.

MS. SARRI: Yes. Oh, yes.

DR. REPACE: Thank you.

MS. SHERMAN: I believe that's all, Your Honor, but I would like to, after the panel is excused, make an announcement for the record.

JUDGE VITTONE: Okay.

No more questions for this panel then?

MS. SHERMAN: That's correct.

JUDGE VITTONE: Thank you very much. We appreciate your time and your testimony.

MR. BORWEGEN: Thank you very much for the opportunity.

JUDGE VITTONE: Let's take a five minute recess. Then we'll come back and take care of our housekeeping chores.

JUDGE VITTONE: On the record.

Ms. Sherman, before I hear from you, I just want to confirm. Tomorrow we have Mr. Wallace and Mr. Dinegar, is that right?

MS. SHERMAN: That's correct.

JUDGE VITTONE: We will resume tomorrow morning at 9:30.

We have no airline problems tomorrow, right? You're not going anywhere, Mr. Dinegar?

(Negative response)

(Pause)

JUDGE VITTONE: Ms. Sherman?

MS. SHERMAN: In reference to the testimony this morning by the AMA, I'm informed that Dr. Smoak will be able to return on October 31st.

JUDGE VITTONE: We have a fair number of people on that day.

MS. SHERMAN: We do have a fair number of people. We're anxious in not running this hearing any longer than necessary. Dr. Smoak apparently has quite a busy schedule. Most of the people scheduled that day have not requested very much time.

JUDGE VITTONE: Okay.

I don't know who these other people are, but Mr. Kamenar from the Washington Legal Foundation, how long do you think he might be up here?

MS. SHERMAN: He requested ten minutes, Your Honor. I don't have any further insight.

JUDGE VITTONE: Somebody else does? Mr. Rupp?

MR. RUPP: I just don't, the math doesn't work here on the 31st. I think that the AMA, it would be great to get the AMA in that day, and I'm not suggesting that they not be put in that day, but I think the day sans AMA, before putting them in, is not workable.

I think several of these people are university scientists, for example. These are not just people off the street who are coming in and saying things are great or things are not great. A number of these people I think will have substantive presentations, even if relatively brief, and so will be an occasion for examination. Seventeen people, I just think there's no way we're going to be able to do that.

MS. SHERMAN: Who besides Professor Hedge do you have in mind?

MR. RUPP: He's the one that I've read a number of articles of his. He's one, certainly. I don't know many of the other people. But just the logistics of trying to get, well, that would be 20 people that day. Of getting 20 people to the microphone, going through the process of going to the participants and asking whether they want to examine. I've never seen a ten minute presentation from this table or the proverbial one question from this podium.

JUDGE VITTONE: Do we have, or do you have any information, and maybe some of these people will drop out. I don't know. Do you know?

MS. SHERMAN: I don't believe we have any information. However, as the time draws nigh, perhaps they will.

JUDGE VITTONE: Is that the only day that he can come back?

MS. SHERMAN: He has lots of conflicts between now and December 10th.

(Pause)

JUDGE VITTONE: All right, if he comes on that day he will be the number one witness, start off early, and make sure that we get him on.

Let's talk about him a little bit more as we go along. If necessary we will start early that day. Maybe we'll know more about some of these other people.

It just may be a long day.

MS. SHERMAN: I understand, Your Honor.

JUDGE VITTONE: Are you still working on, do we know anything more about the people who were originally scheduled for October 3rd and we are going to reschedule, or is that premature?

MS. SHERMAN: Originally scheduled for October 3rd?

JUDGE VITTONE: Yes. October 3rd, Monday, that week.

MS. SHERMAN: My understanding is that that week has been moved toward the end of the hearing.

JUDGE VITTONE: Right. Is that going to be a problem?

MS. SHERMAN: We haven't heard back from them if that's what you mean, as to whether they're enthralled with the idea of coming around Christmas.

JUDGE VITTONE: All right.

MS. ALEXANDER: I was originally scheduled for next week and so was one of my affiliates, the Public Employees Federation. They had scheduled two people who work and had to make arrangements to be off work. If you can give them a hard and fast date this time as sort of a guarantee that they won't be moved around. It's very difficult for them to change their schedules.

MS. SHERMAN: We will try.

MS. ALEXANDER: Thank you.

MR. TYSON: At one time we were considering October 17 as a makeup day. Is that still in the cards?

JUDGE VITTONE: It's still in the cards for me.

MS. SHERMAN: I'm not sure, we'll have to check.

MR. TYSON: There's nothing schedule as of now.

MS. SHERMAN: We'll have to check.

MR. TYSON: The AMA, Dr. Smoak, did you check to see if he was available that day?

MS. SHERMAN: He couldn't do it then.

JUDGE VITTONE: He said between now and October 22nd was bad for him. But the 17th is still open, and maybe people like American Federation of Teachers and maybe a few others we can work in that day.

We have two witnesses for tomorrow and we will resume tomorrow morning at 9:30.

Let me ask you one question. Twice today, once with the AMA and once with the Service Employees Union we had problems with copies. I haven't asked this before, but are they supposed to provide copies before they come here so that they can be available not only to the people in the audience who are participants, but also to anybody from the public that walks in?

MS. SHERMAN: The requirement, Your Honor, is that they provide four copies.

JUDGE VITTONE: Four copies?

MS. SHERMAN: Four copies to the docket office. The rules don't go any further than that. I think that in the past, as a courtesy, when the facilities have permitted it, OSHA has taken it upon themselves to make these copies. As you know, some of these facilities have not been perhaps as efficient to the course of the hearing as others might be, but my understanding is that when we reconvene we will be in the Department of Labor building, and perhaps something can be done about that.

JUDGE VITTONE: Okay. Particularly, I guess, for somebody like the AMA there would be a lot of interest in seeing whatever they're going to say.

MS. SHERMAN: The other thing I would observe is that if in fact somebody has a presentation that is along the general lines of what they've submitted before but is different, frequently they're just bringing it with them so there doesn't seem to be an easy way of dealing with this.

JUDGE VITTONE: No. I think that's probably right. But I'm not sure that that was the case today. I don't know.

MS. SHERMAN: I'm not sure either, Your Honor.

JUDGE VITTONE: We have one more day in this in this building and then when we resume after our break next week we'll be back at Department of Labor.

Thank you very much. It's kind of unusual!

See you tomorrow morning.
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