OSHA: Proposed Standard For Indoor Air Quality: ETS Hearings, September 30, 1994

OSHA: Proposed Standard For Indoor Air Quality: ETS Hearings, September 30, 1994






September 30, 1994

Interstate Commerce Commission

Washington, D.C.

The above-entitled matter came on for hearing, pursuant to notice, at 9:36 a.m.


Administrative Law Judge



Jim Dinegar 2288

Elia Sterling 2308
Victoria Bor 2331
Cathy Sarri 2338
Jordan Barret 2346
John Rupp 2352
Mr. Tingle 2461
Ms. Alexander 2485
Ms. Sherman 2496

Lance Wallace 2517

John Rupp 2553
Paul Cristowski 2594



51 2289 2516

52 2325 2325

53 2463 2516

54 2517 2600

9:36 a.m.

JUDGE VITTONE: Good morning. Today we begin, we have witnesses scheduled for today, Mr. Dinegar from the Building Owners and Managers Association; and also Mr. Lance Wallace, who was previously scheduled to testify on this past Tuesday.

Mr. Dinegar will go first, and then we will proceed with Mr. Wallace.

JUDGE VITTONE: Mr. Dinegar, would you identify yourself for the record and the organization you represent, please?

MR. DINEGAR: Good morning. I am Jim Dinegar. I am vice president for government affairs for a group called the Building Owners and Management Association. I'm No. 1 on the hearing docket, representing 15,000 owners and managers of commercial real estate.

JUDGE VITTONE: You have previously submitted a statement for the record?

MR. DINEGAR: I have. In fact, copies are available outside.

JUDGE VITTONE: Okay. Could I have a copy of that, please?

This will be identified as Exhibit No. 51. No slides or anything?

MR. DINEGAR: No slides.

JUDGE VITTONE: No slides. Good.

(The document referred to was marked for identification as Exhibit No. 51.)

JUDGE VITTONE: If you're ready, you may begin.

MR. DINEGAR: Good morning. As I mentioned, I'm Jim Dinegar with the Building Owners and Managers Association, an organization representing 15,000 owners and managers of commercial real estate, the office building industry.

Today, we're here to talk about indoor air quality. We're here to talk about indoor air quality for a variety of reasons, one because there has been a great deal of information developed over the recent years on the subject of indoor air quality. There has not, unfortunately, been a great deal of research on what causes indoor air quality problems to develop.

The indoor air quality, as it pertains to the office building industry, sends sad reminders and very cautious reminders to our members about the asbestos nightmare of the 1980s.

The reason it does so is because the asbestos debacle of the '80s was based on misinformation, mass hysteria, poor science, lack of guidance, and the pressures from the insurance companies, the lending institutions, the tenants, and the unions.

When all of the facts were in, as opposed to ripping out asbestos in office buildings across the country, which was undertaken at a cost of tens of billions of dollars, it was better found that, asbestos, if it's in good condition, is better left in place.

As it pertains to the issue of indoor air quality, the facts are not in, and we'd like to highlight a few of the facts that need defining, and then ask a number of questions for the record and offer OSHA our assistance in providing some research and some numbers crunching to assist them in their effort to better define the scope of the problem on indoor air quality, as well as to identify what different sources of indoor air quality contaminants need to be identified so that they can be targeted and removed at the source.

The issue of indoor air quality is of concern to the owners and managers of commercial real estate across the country. It is not a tenant amenity to have good indoor air quality. It is tenant demand. If the tenants are unhealthy, if the tenants are complaining, if the tenants are sick, they'll easily move elsewhere. The incentive is the rent check.

In order to keep the tenants happy, you've got to provide good building management; you've got to ensure that there limited numbers of contaminants indoors, and you've got to ensure that the tenants themselves know what it is that they do to cause indoor air quality problems to develop.

It is not an epidemic, as you have heard in some testimony given this week and last week. It is a concern, but it nowhere near the epidemic proportions that OSHA has outlined, based on the science and information that they have been provided.

OSHA assumes that 30 percent of the
buildings -- all buildings -- have indoor air quality problems. I would like to demonstrate to OSHA that a building is not a building is not a building in the truest sense of the word.

The studies that have been done by Jim Woods from Virginia Polytechnic Institute, assume that a building is a building is a building. They say that the average square footage is 13,000 square feet.

That's not true for the office building industry. Based on the latest information from the commercial building's characteristics 1992 survey from the Department of Energy, which is the basis of OSHA's research numbers and the basis of Dr. Woods' numbers, we would like to counter a few of those numbers, by letting them know that the problem is not 30 percent of the population.

OSHA assumes that 30 percent of the buildings have indoor air quality problems. OSHA then takes that figure and makes a troubling statement. I quote from page 16007 of the proposal on indoor air quality.

"No data are available as to the number of employees exposed to poor indoor air quality. Based on OSHA's percentage of problem buildings, 30 percent, OSHA assumed that 30 percent of employees working indoors are exposed to poor indoor air quality. Therefore, the numbers of employees potentially affected is 21 million.

"Based on the numbers that we've got through straightforward challenges to those assumptions, we can demonstrate that if 30 percent of all buildings, all non-industrial worksites, are at risk, then the office building industry would account for 8.3 million of those 21 million people at risk. That would be an epidemic.

"We will also be able to demonstrate that the numbers are seriously flawed and should not serve as the basis for rule making, and we will submit that research and those numbers for the record.

We would like to point out that 27 million people are housed in office buildings across the country. Over one-third of the 70 plus million people laid out in the studies by the Department of Energy and the numbers that OSHA has used. We've got more than one-third of the workforce in our buildings, but we do not see an epidemic on indoor air quality sweeping the nation.

We would be one of the first places, if not the first place, to see such an epidemic.

I mentioned before that a building is not a building is not a building. A two-floor office building of 12,000 square feet on the corner of 4th and Main is considered a building in the Department of Energy characteristics study, by OSHA within their proposal, and by Dr. Woods.

The Empire State Building, at 100 plus stories, is also considered a building from the Department of Energy characteristics, from OSHA in their proposal, and from Dr. Woods.

The two are far different properties. What goes on in one with an air conditioner stuck in the window has no relation to what goes on, housing thousands and thousands of employees, in downtown New York City.

We house over one-third of the nation's workforce in office buildings across the country, and 30 percent of our buildings are not problem buildings; therefore, 30 percent of the employees in our buildings are not at risk from indoor air quality problems.

I mentioned before the painful and costly lessons from asbestos, the hysteria, the reactions that took place, the costs of tens of billions of dollars, and, most importantly, the pressures. There was no government regulation requiring office building owners and managers to remove asbestos from their buildings.

That pressure came from the insurance companies, from the lending institutions, from the unions, from the tenants, and certainly from the media, but it did not come from any regulation from the federal government.

In fact, when the science was done, EPA came out with a statement that said, "Asbestos, if it's in good condition, is better left in place."

We are not aware of any death from any worker exposed to asbestos in an office building and, yet, that program costs us tens of billions of dollars.

So we ask, with caution, how widespread is the problem of indoor air quality. How significant are the contaminant exposures?

What are the safe levels of exposure? What are the sources of those contaminants?

Indoor air quality is a concern, but it is not an epidemic. It is made up of a three-part program. It clearly requires the proper maintenance and operation of the facilities.

The tenants have a role, and contaminant sources need to be identified and removed. OSHA proposes a cost of $8.1 billion per year to address this problem, and BOMA has several concerns.

What evidence exists to show that office occupants are at risk from poor indoor air quality? In OSHA's own words, none.

What standards should be set for maintenance and ventilation levels?

ASHRAE, the American Society of Heating, Refrigeration and Air Conditioning Engineers, which is comprised of air conditioning and heating. refrigeration engineers, set three levels.

In 1973, they set a level of ventilation;

And then in 1981, they changed that level to 5 cubic feet per minute, perhaps in response to the energy crisis, perhaps in response to mounting pressures, perhaps because it gives a heck of an opportunity for air conditioning and refrigeration engineers, to do more business; and

Then in 1989, they changed that level from 5 cubic feet per minute to 20 cubic feet per minute, and you cannot just go in and retrofit a system that was designed for 5 cubic feet per minute, and then expect that it can meet 20 cubic feet per minute.

I understand that ASHRAE is undertaking an effort to revise this standard further and will be issued either late this year or in 1995, and the early word is that the change from 20 cfm to 25 cfm, or maybe higher, is expected. Ventilation is not the cure. Dilution of the problem is not the cure for the problem.

If scientific evidence exists, which states that X cubic feet per minute of outside air is required in order to ensure that quality of indoor air, then how can a federal regulation adopt anything less than a national ventilation standard.

If 30 percent of the office buildings across the country do have indoor air quality problems, as assumed by OSHA, based on the extrapolations and the flawed reference materials, should that 30 percent be identified and a minimum ventilation standard be established specifically for those problem buildings?

Ventilation, whether at 5, 15, 20, or 60 cubic feet per minute, is not a solution for indoor air quality problems. Ventilation is merely a placebo not the panacea.

What about the role of tenants? In the typical multi-tenant office building, the owner or the manager of that facility has little to no authority over the tenants. The tenants water their plants, and sometimes overwater them, creating mold and spores. The tenants throw their coffee in the garbage pail at the end of the day, causing more problems.

The tenants oftentimes leave food around, causing more problems.

The tenants oftentimes build out their space at will, dividing the room so that the circulation of air is impeded.

Tenants oftentimes paint without notifying the building owner or the building manager, leading to indoor air quality problems.

That's not to blame indoor air quality problems on tenants alone. As I mentioned, it's a three-part program. The proper maintenance and operation of the system by the building manager. The tenants have a role, and then there's the contaminant source.

So let's speak about the source of contaminants. The source of contaminants is not typically, if ever, the building's system. There is no outbreak of Legionnaires disease sweeping the nation.

We have not seen cases of Legionnaires disease in office buildings across the country. We have seen isolated incidents, but trust me when I tell you there's plenty of incentive to ensure that there are no outbreaks of Legionnaires disease. It if a fatal disease. It's kind of difficult to collect a rent check from somebody's who is dead.

There are no harmful chemicals emitted from fans and, yes, there's no question that adequate ventilation is necessary and done. Where ventilation is not being done with an adequate amount of outside air being brought indoors, there is certainly a role for the federal government to see that outside air is brought indoors at a sensible level, but that level needs to be identified and set and not changed every several years.

So what are the sources? Where are the science and the research? OSHA's provision on renovation and remodeling is clearly demonstrative of the need for source control.

Building owners and managers do not want to use potentially harmful chemicals in the workplace. Building owners and managers do not want to expose office occupants to potentially harmful substances. Building owners and managers most certainly do not want the liability and responsibility for, quote, "managing the emission of hazardous substances," in the workplace.

The most efficient way, the most cost-effective way, the most appropriate way to ensure that air quality degradation during renovation and remodeling is kept to a minimum, is to attack it at the source.

If certain products and chemicals pose a hazard to the health of building occupants, we want it addressed at the manufacturing level, and we want it fixed. We do not want them anywhere near our property. OSHA should not saddle us with the regulatory burden which leaves building owners and managers holding the bag.

Indoor air quality is a significant concern within commercial real estate, and we need assistance in finding solutions.

During the 1980, an asbestos crisis garnered a great deal of attention and generated a tremendous level of unwarranted hysteria across the nation. Fly-by-night contractors and inaccurate public information collided to portray office occupants as helpless hostages to the dangerous environment surrounding anyone housed in an office that incorporated asbestos as a fire retardant or insulating compound.

It did not seem to matter to consultants, the media, insurance companies, or lending institutions, whether asbestos actually posed any demonstrable health risk. It only mattered that the killer compound be ripped out of buildings as fast as possible.

Unfortunately, in many instances, removal was not the best course of action. Hysteria and misinformation, not research and sound science, drove the asbestos issue and, in the end, few people noticed when EPA eventually made its scientific pronouncement that asbestos, in good condition, was better left in place.

This must not happen with indoor air quality. If OSHA proceeds with indoor air regulations before proper research is undertaken, we will once again see the need for dependable science passed over in favor of a costly, hit or miss regulatory experiment that fails to constructively address the important issue at hand.

Such a misdirected broad brush approach to indoor air quality, would unfairly and unnecessarily penalize a responsible industry of office providers and would benefit few beyond the army of opportunists seeking to make indoor air quality the asbestos of the '90s.

A responsible approach to indoor air will focus on identifying and mitigating the sources of contaminants rather than ignore the problems associated with various materials, OSHA should lead the effort to address those substances that limit the quality of indoor environment; and if it means limiting or refining individual products themselves, then so be it.

Lead solder was prohibited at the manufacturing level several years ago, as was lead-based paint.

Manufacturers responded immediately with substitute products.

Asbestos containing floor tile, once the industry standard is no longer produced, yet consumers today have a larger selection of floor tile products than ever before.

Replacement products have not failed, they have excelled. Our drains are sealed, our walls are colorful, our floors are tiled. If solvents, paints, carpets, and more, are actually emitting hazardous substances and particulate contaminants, then clearly the best course of action is not record keeping, notification posting or complaint logging.

The best course of action is to attack the problem at the source. Markets will respond accordingly and appropriately.

I'd like to give you a little bit of an idea of what I mean by telling you that markets will respond accordingly and appropriately. The have the capacity to come up with substitute products that do just as well, if not better.


That's a bottle of Pepsi.

That's a bottle of Diet Pepsi.

That's a bottle of Caffeine-Free Pepsi.

This is a bottle of Caffeine-Free Diet Pepsi.

This is a bottle of Caffeine-Free Clear Pepsi.

This is a bottle of Jolt, with twice the caffeine and twice the sugar.

Deodorants were prohibited from using CFCs as the propellant. As you can tell, the deodorant is still propelled.

This is a bottle of Right Guard Sport.

This is a bottle of Sure, powder-fresh antiperspirant and deodorant, not just deodorant.

This is a can of Sure, unscented.

This is the roll-on antiperspirant and deodorant, not a spray.

This is the antiperspirant/deodorant roll-on, Ocean Breeze scent.

This is the wide, solid, unscented, ban stick, antiperspirant and deodorant.

This is their powder-fresh scent.

These are two versions of their newest clear.

This is a very lovely piece of asbestos containing floor tile. You can't make this anymore. You can not put it down in your office buildings.

This is a very capable piece of non-asbestos floor tile. The market responded, except for this, because I'm not sure who was asking for that one.


Research must be undertaken. Science must be conducted and guidance must be issued in order to prevent harmful indoor air quality problems from occurring. OSHA should champion an approach to properly address the issue of indoor air quality rather than move forward with premature and unnecessary regulations.

Now we're going to turn to the part of the program that's probably going to be the favorite for all of us in the room.

In January 1993, BOMA International adopted an unconventional and, some would say, controversial approach to managing environmental tobacco smoke in office buildings. We requested a federal ban on office workplace smoking.

BOMA took this step for several reasons.

To the nation's office building owners and managers, maintaining healthy indoor air is of utmost importance, and environmental tobacco smoke is a significant indoor air contaminant.

A Group A carcinogen, according to the Environmental Protection Agency -- the last time we heard that phrase from the Environmental Protection Agency, it was along side a word called asbestos.

According to BOMA members, smoking is a leading cause of indoor air quality complaints and the No. 1 cause of reported fire incidence in office buildings. As such a hazard and because environmental tobacco smoke is easily identifiable, the best approach is to eliminate it from the workplace.

Our concern and reason for urging OSHA to adopt a federal ban on smoking in the office workplace, is because multi-tenant office buildings, owners and managers, bound by lease agreements with their tenants, lack the freedom to unilaterally institute building-wide smoking restrictions.

Whereas a corporate CEO can mandate a nonsmoking work environment for all facilities under company control, multi-tenant office buildings must cater to numerous tenants, many of whom are smokers.

Since leases do not generally prohibit smoking, building management is hard-pressed to impose smoking restrictions on tenants and still expect to receive a rent check.

Even in those cases where building management is able to alter a building's smoking policy, management runs the very real risk that such tenants will choose to relocate to office space where smoking is still allowed.

For these reasons, BOMA has asked for federal help to remove this indoor air contaminant, and we support OSHA's proposal to regulate workplace smoking. The elimination of environmental tobacco smoke represents an important step towards improving the overall quality of indoor air.

Opponents of workplace smoking restrictions charge that eliminating tobacco smoke is not necessary, that simply increasing ventilation, the amount of outside air brought into a building, would achieve the same results. However, increased ventilation will only dilute the smoke, not remove it.

For the office workplace, smoking is a serious health threat and its removal is the only responsible solution. BOMA encourages OSHA to move forward to eliminate environmental tobacco smoke from the office workplace.

With the exception of the restrictions on environmental tobacco smoke the proposal falls short in its lack of attention to source control and contaminant elimination.

The absence of sound research and guidance in these areas is a continuing frustration for building owners, managers and tenants.

Aggressive research into the genesis of indoor air contaminants and proper guidance to handle them are what this issue demands.

Such an approach will provide building owners and managers with the information required to continually improve their practices for effectively preventing and addressing indoor air quality problems.

We recommend that additional research be undertaken, and we will assist OSHA by providing them data regarding the costs of building out separately-ventilated smoking areas, and provide further documentation and surveys concerning the incidence of indoor air quality complaints and problems in the buildings represented by BOMA members.

In addition, we will also provide OSHA with cost data for running the HVAC system after hours.

Regulations are premature and unnecessary. Premature, in the sense that anecdotes, misinformation, and inadequate research have fueled speculation on how to best approach the problem without the recognition of the need for sound science.

There is also considerable disagreement over the scope and severity of the indoor air quality epidemic. Credible evidence does not demonstrate that significant segments of the general population are adversely affected, solely due to indoor air quality problems within the office environment.

While indoor air quality is a concern among office building industry professionals, the preponderance of complaints are thermal comfort; smoking and humidity levels. An $8.1 billion federal program which seeks to correct an inadequately defined problem has not been demonstrated to be necessary, and we urge OSHA to refrain from the rulemaking, except in the rare of environmental tobacco smoke.

Thank you.

JUDGE VITTONE: Thank you, Mr. Dinegar.

Are you offering those into the record?



JUDGE VITTONE: Thank you for that.

I don't know how we'd keep them.

MS. SHERMAN: Perhaps you could have your person take a picture of your display there, and submit that.


JUDGE VITTONE: I think it's been preserved for posterity but cameras in the audience here. You can leave them up there, I don't care.

Thank you, sir.

Let me have a demonstration of who wants to ask Mr. Dinegar questions. One, two, three, four -- stand. That way it will be easier.

[Discussion regarding questioning.]

JUDGE VITTONE: We're going to take the gentleman from Vancouver first.

I guess we'll go with Mr. Rupp next. Maybe that'll knock out some questions, and then the other gentleman.

The gentleman from Vancouver. I'm sorry. I don't know your name yet, so come up and identify yourself.

MR. STERLING: I'm Elia Sterling. I'm president of Theodore E. Sterling & Associates, an indoor air quality and building science consulting firm.


MR. STERLING: I would, first of all, like to thank you for demonstrating how well the American marketplace responds to the consumers. I think that's an excellent example.

I'd like to ask you some questions relating to your submission here.

Does BOMA International recognize the crucial role of building management in assuring indoor air quality?

MR. DINEGAR: Absolutely.

MR. STERLING: Is BOMA International committed to providing members with the best information and guidance available to achieve this objective?

MR. DINEGAR: We hold a seminar series based on, at that time, the best information that was available and held it in 60-plus cities across the country. This is EPA's building air quality guide.

We held hands with the EPA under a cooperative agreement and delivered that program to building owners, managers, engineers, indoor air quality professionals across the country.

MR. STERLING: Right. Actually, I attended one of those, I think in Seattle, that was excellent -- my opinion of it, anyway.

Is "Skylines", the magazine, published by BOMA International?


MR. STERLING: That's BOMA International, not BOMA U.S.?

MR. DINEGAR: It's BOMA International, BOMA U.S. is the largest part of out constituency, and that's our in-house magazine.

MR. STERLING: All right. Does this magazine publish articles that include some of the best information and guidance available to its members on indoor air quality? MR. DINEGAR: That magazine publishes a great deal of information from both sides, actually. Oftentimes we enter into controversy based on the articles that are entered into indoor air quality consultants, building engineers, plant specialists; you name it, it's been in there.

It does not necessarily mean that whatever is in Skylines is endorsed by BOMA International.

MR. STERLING: Okay. Does BOMA International publish "Potomac Currents"?

MR. DINEGAR: It does.

MR. STERLING: That's a biweekly newsletter of government affairs, your division?


MR. STERLING: Which you edit, I presume?

MR. DINEGAR: What's that?

MR. STERLING: Which you edit, I presume?

MR. DINEGAR: Yes. Write, edit, print, mail.

MR. STERLING: Okay. The works.

MR. DINEGAR: You name it.

MR. STERLING: Put the stamps on it. Okay.

Does the Potomac Currents inform members of pending regulations and legislation that may impact the industry?

MR. DINEGAR: Absolutely. Or we give our best read on the subject.

MR. STERLING: Okay. Does Potomac Currents inform members of actions, BOMA International is, has or plans to take in response to these government actions?


MR. STERLING: Did BOMA members -- I think you've already answered this one -- did BOMA members assist the EPA and NIOSH in developing their indoor air manual, Building Air Quality, the one you just had out?

MR. DINEGAR: We did the training, but we also helped them in developing by personally involving staff in that, but also involving our members in the development of the training materials and the book itself.

MR. STERLING: Okay. That was my understanding.

Has BOMA promoted and distributed 10,000 copies of this publication nationwide?

MR. DINEGAR: We've not distributed 10,000 copies. We distributed several thousand copies. But we've also promoted it through Potomac Currents, through Skylines, and through mailings, that people can buy it. We understand from the EPA that we are responsible for the distribution of over 10,000 copies.

MR. STERLING: I guess they're very happy about that.

BOMA, I guess -- you've just mentioned the seminar series that you have been delivering -- you, in conjunction with EPA, spent the past two years delivering this comprehensive nationwide seminar series, based on the publication?


MR. STERLING: Did BOMA receive funding support from EPA for the seminar series?

MR. DINEGAR: We entered into a cooperative agreement with EPA.


JUDGE VITTONE: Excuse me a second. I'm sure some people are finding this interesting, but I fail to understand how this is related to the indoor air quality proceeding that we are in.

MR. STERLING: I'm getting to it right now.

I just had to get some basic information about those particular information pieces that were disseminated by BOMA.

JUDGE VITTONE: Okay. I encourage you and all questioners to keep the questions related to the indoor air quality proceeding that's before this.



MR. STERLING: I'll come right to the point.

Have energy conservation practice undertaken by building management, such as reducing ventilation rates and expanding thermal comfort zones, had any negative impact on indoor air quality in the nation's buildings?

MR. DINEGAR: I'm sure, if there were cuts down in ventilation rate that sealed up the buildings, outside air being brought indoors, it would have had a dramatic and negative effect on indoor air quality as well as on thermal comfort.

And the corollary is true, that the energy policies of the 1970s and the '80s that had buildings sealed, have been turned back and that the dampers have been opened, and the outside air is being brought indoors.

MR. STERLING: Okay. I just draw your attention, are you familiar with the article titled, "Sound Energy Conservation Principles" by Wayne Hanson?


MR. STERLING: It was published in your February...

MR. DINEGAR: I'm familiar with Wayne Hanson. In fact, I understand he's going to be testifying in front of OSHA, but I'm not familiar with that specific article.

MR. STERLING: Well, that was part of the information that was provided to OSHA in the request for information. That was...

MR. DINEGAR: Back two years ago?


And Wayne Hanson has stated, this energy reduction has produced a downside; however, with the market deterioration, the quality of indoor air and the workplace, so you're in agreement with that?

And he continues with the comments: The cumulative effects of the decreased ventilation rates on indoor air quality have been documented. NIOSH, for example, concluded that 52 percent of all Sick Buildings syndrome complaints were the result of inadequate ventilation and dirty contaminated air conditioning systems.

MR. DINEGAR: And NIOSH spoke just the other day and clarified that, actually, that's not the case, it's just been misinterpreted data.

MR. STERLING: Actually, they weren't able to clarify that.

So you're familiar with the information published by these government agencies, NIOSH, Health & Welfare Canada, and so forth?

MR. DINEGAR: I'm sorry. Could you speak up?

MR. STERLING: You're familiar with the information that's been published by them?



MR. DINEGAR: It's my job.

MR. STERLING: Isn't it true that they identify HVAC system problems, such as inadequate ventilation, poor temperature, humidity control, and poor design, operation and maintenance, as the leading cause of indoor air quality problems?

MR. DINEGAR: In that they identified the problems in problem buildings, because they were called into problem buildings, and that was one of the sources of the problems, yes, that's what they identified.

They also said that over 50 percent of the problems were ventilation related, and they clarified that just the other day, to mean that it wasn't a ventilation problem, it was that if they couldn't find the source in many instances, that they did demonstrate, or they did call for, an increase in ventilation of the outside air indoors, as just one of the steps to be taken to improve indoor air.

But there was no identification of the source of the problems, at least in my understanding, of many of those cases. But they didn't testify to that either.

MR. STERLING: They didn't, no. In fact, what they said is that 52 percent of the problems were just as I commented on, and that's included in their table here, which I could enter into the record, but I believe you've got a copy of it.

Is it BOMA's position, then, that the primary cause of indoor air quality problems is offending materials brought into the space by tenants?

MR. DINEGAR: Can you repeat that?

MR. STERLING: Is it BOMA's position that the primary cause of indoor air quality problems is offending materials brought into the space by tenants and occupants?

MR. DINEGAR: No. Actually, I said one of the primary causes of indoor air quality problems is environmental tobacco smoke, but there are numerous sources of indoor air quality problems. Some of them are brought in by tenants, some of them are part of the tenant suite, the carpets, the paintings, the furnishings that have been identified, or at least pointed to.

We don't know what the sources of contaminants are, and that's part of the problem.

MR. STERLING: If we were to include environmental tobacco smoke, I assume those are brought in by tenants and occupants, then would that be a fair statement?

MR. DINEGAR: The primary? We've identified tobacco smoke as a Group A carcinogen. We didn't do it, EPA did it. Once it was labeled as a Group A carcinogen, it was pretty clear that it was an environmental tobacco smoke problem as a contaminant of indoor air quality.

Beyond that, we don't know what contaminants the indoor environment. We don't know what the ill health effects that are associated with different chemicals, and we don't know what's the source of those different chemicals.

That was the essence of my statement to OSHA.

MR. STERLING: Well, then, I'm quite confused about your statement because it appears to say that tenants and occupants are the primary source, so I guess that'll leave it to the record to direct that.

MR. DINEGAR: They bring in indoor contaminants or cause indoor air quality problems, but we don't know if there are adverse health effects associated with them.

If you overwater a plant, if you toss your coffee in the garbage pail at the end of the day, if you block the circulation because you don't like the cold air blowing down on you, what are the health effects, what are the adverse health effects? I don't know.

We'd like to see some of the science. We would certainly support the science.

MR. STERLING: Okay. In Wayne Hanson's article, he says about indoor sources, have you read that?

MR. DINEGAR: No. If it was submitted in the record, I'm not sure that we submitted it as
Wayne Hanson's article, but perhaps as part of Skylines, the magazine that we submitted, in its entirety.

I know Wayne Hanson; we've dealt with him before. He's a very capable indoor air quality consultant.

MR. STERLING: Okay. You actually did identify that article. He states: "In many cases of indoor air pollution, the offending materials are brought into the space by the occupants. Inadequate ventilation rates and circulation rates prevent the offending materials from being removed as rapidly as they must to prevent irritation."

MR. DINEGAR: I can barely hear you.

MR. STERLING: He states: "In many cases of indoor air pollution, the offending materials are brought into the space by the occupants. Inadequate ventilation rates and circulation rates prevent the offending materials from being removed as rapidly as they must to prevent irritation."

That was in your record.

Now, my next question is referred to the

MR. DINEGAR: But what was the question on that, did Wayne Hanson say that or write that?



MR. STERLING: I asked you if you're aware of what you had submitted to the request for information for which BOMA or OSHA has based a rule making.

MR. DINEGAR: If that was part of our record, then I'm sure that Wayne Hanson wrote that.

MR. STERLING: Okay. And that you submitted it?

MR. DINEGAR: And we submitted it.

MR. STERLING: Okay. Now, my next questions refer to the Indoor Air Quality Guide. I assume you've read this guide -- the Building Air Quality Guide?

MR. DINEGAR: Not recently.

MR. STERLING: Have you attended any of the seminar series?

MR. DINEGAR: About four of them.

MR. STERLING: Okay. Do you agree that ventilation is an important impact on indoor air quality?

MR. DINEGAR: Yes. Adequate ventilation of outside air being brought indoors is one of the components.

MR. STERLING: Okay. Does the Building Air Quality Guide address this issue?

MR. DINEGAR: I'm not sure.

MR. STERLING: Okay. Do you agree with the Building Air Quality Guide's definition of good indoor air quality?

MR. DINEGAR: I'm not sure. I haven't read the definition recently.

MR. STERLING: Introduction and distribution of adequate ventilation air; control of airborne contaminants, maintenance of acceptable temperature and relative humidity?

MR. DINEGAR: Temperature and relative humidity have very little to do with good indoor air quality.


MR. DINEGAR: Thermal comfort; humidity levels, but what does it mean for indoor air quality?

MR. STERLING: So you don't agree with the Building Air Quality Guide's definition?

MR. DINEGAR: The Building Air Quality Guide was EPA and NIOSH's publication. We helped work on and give as much information to as possible, but it was not a consensus document, necessarily. They pulled a number of different groups together -- widely different groups.

MR. STERLING: I just asked if BOMA International agrees with it.

MR. DINEGAR: I have not read it.

MR. STERLING: You have not read...

MR. DINEGAR: I have not read it recently to tell you. Could you repeat the definition, and then we'll go through it, or if you could point out the page, I could read alone.

MR. STERLING: Page nine of the introduction: Introduction and distribution of adequate ventilation air; control of airborne contaminants; maintenance of acceptable temperature and relative humidity.

I would accept an answer to that question after, if that's okay with Your Honor.

MR. DINEGAR: Introduction and distribution of adequate ventilation air. It doesn't say anything about the introduction of adequate outside air. I think that's an important component.

Control of the airborne contaminants. Yes.

Maintenance of acceptable temperature and relative humidity are not part of indoor air quality. The third part is not a part of good indoor air quality. Part of indoor comfort.

MR. STERLING: Okay. Then you're saying, no, you don't agree with it?

MR. DINEGAR: I don't agree with the third part as being part of good indoor air quality. We tell you that the outside air being brought indoors is important and the control of contaminant sources.

MR. STERLING: So you don't agree with the Building Air Quality Guide's definition?

MR. DINEGAR: Well, they don't have to be airborne contaminants. They could be on the rug. That's not an airborne contaminant.

MR. STERLING: Do you agree with the Building Air Quality Guide's recommendations to follow standards of the American Society of Heating, Refrigeration, and Air Conditioning Engineers as guidance to determining acceptable ventilation and acceptable levels of temperature and relative humidity?

That's included on pages seven and 136 of the Building Air Quality Guide.

MR. DINEGAR: As I mentioned before, it would have nothing to do with temperature and humidity ranges for indoor air quality. For thermal comfort, they certainly provided an adequate guide.

For the outside air being brought indoors, 5 cfm was the level they set; 10 cfm; 20 cfm is where they are right now.

MR. STERLING: That's not what this guide refers to. It refers to Standard 6289 of the American Society of Heating, Refrigeration Engineers; it also refers to Standard 55...

MR. DINEGAR: Yes. 6289.

MR. STERLING: Do you agree with that? Do you agree with that recommendation that's included in the document that you held...

MR. DINEGAR: I'm not a scientist, I'm not an indoor air quality expert. I am a person who represents building owners and managers. In that vein, the ASHRAE people don't appear to agree with their own standards, since I understand it's up for change right now.

MR. STERLING: Well, ASHRAE will be testifying. I'm asking you if BOMA International -- not, you, yourself -- BOMA International agrees. You've submitted this document; do you agree with it?

MR. DINEGAR: Agree with setting the level of 1989?

MR. STERLING: Of what's contained within that document?

MR. DINEGAR: Our members use the ASHRAE standard. In fact, it's in building codes there. They have to follow the building codes for new buildings, built after 1989 for that standard; before that, it was a 1981 standard. I'm trying to figure out...

MR. STERLING: I'm asking you if you agree with that, and you're saying that BOMA International does not agree with the recommendations that are contained in a document that they helped to create?

MR. DINEGAR: There are several statements in here that we don't agree with, and we got on the record with EPA for those. This doesn't happen to be one that we disagree with. It's the standard. You have to have adequate outside air being brought indoors.

What is the correct level? We're not sure. Is it 5 cfm, 20 cfm, 30 cfm? We'd like to know.

MR. STERLING: Okay. Do you know what NIOSH recommends as adequate ventilation for indoor office space?

MR. DINEGAR: No, I don't.

MR. STERLING: Okay. 20 to 21 cfm per person is recommended and is included in their submission to OSHA and in the transcripts of these hearings of September 28th, 1994.

MR. DINEGAR: What's that based on?

MR. STERLING: Excuse me?

MR. DINEGAR: Do you know what that's based on?

MR. STERLING: Paper by Dr. Mendell, Nonspecific Symptoms in Office Workers: A Review and Summary of the Epidemiological Literature, published in Indoor Air in 1993. I could enter this in the record.

JUDGE VITTONE: It's already in the record.

MR. STERLING: Okay. It's in the record.

MR. DINEGAR: So, based on one paper, they established the standard at 21 cfm, and ASHRAE, who's done years and years of work, set it at 20 cfm.


MR. DINEGAR: It doesn't really matter to us. Just give us a standard.

MR. STERLING: Well, there's the epidemiological support.

Now, I would like to move on. I would like to enter into the record a copy of Potomac Currents, dated April 1st, 1994, in which the BOMA strategy to respond to OSHA regulations by developing what might be called a smokescreen, as described. Is this in the record?

MR. DINEGAR: Why is it being characterized as a smokescreen?

JUDGE VITTONE: What is this, a press release or something?

MR. STERLING: It's a publication, which I just went through.

MR. DINEGAR: It's our legislative update. It comes out every two weeks.

JUDGE VITTONE: Potomac Currents is published by Building Owners and Managers Association International?


JUDGE VITTONE: Okay. Just the one page?

MR. STERLING: Just the one page.

JUDGE VITTONE: All right. If you want to introduce it, we'll receive it in the record as Exhibit 52.

(The document referred to was marked for identification as Exhibit No. 52 and received into evidence.)

MR. STERLING: Does BOMA support the proposed OSHA IAQ regulations?

MR. DINEGAR: We have asked OSHA to refrain from rulemaking at this time as premature and unnecessary, except in the area of environmental tobacco smoke.

MR. STERLING: Okay. Is BOMA supportive of the smoking regulations directly related to efforts aimed at preventing overall indoor air quality regulations?

MR. DINEGAR: Could you repeat that?

MR. STERLING: Is BOMA's support of the smoking regulations directly related to efforts aimed at preventing overall indoor air quality regulations?

MR. DINEGAR: OSHA's support for the environmental tobacco smoke provisions of the OSHA proposal are to remove an indoor air quality contaminant as one of the sources for indoor air quality problems, and certainly it's to tell OSHA that if they were to adopt the provisions on environmental tobacco smoke and until they did the science, they would adequately improve indoor air quality and should refrain from further rulemaking.

MR. STERLING: You stated, and I quote: "BOMA's support of this ban is directly related to efforts aimed at preventing indoor air quality regulations, and that is a real threat this year."

Does BOMA believe that indoor air quality regulations are a threat?


MR. STERLING: Does BOMA have an industry defense fund to respond to this threat?

MR. DINEGAR: Yes. Not a very well funded one, but we're doing the best we can.

MR. STERLING: Okay. I won't ask you how much.

Isn't it true that BOMA has adopted a strategy intended to deflect attention from the issue of indoor air quality as proposed by OSHA that has been described in the Potomac Currents as...

MR. DINEGAR: I'm sorry. Could you restate that?

MR. STERLING: Okay. Isn't it true that BOMA has adopted a strategy intended to deflect attention from the issue of indoor air quality as proposed by OSHA and that that strategy has been described in Potomac Currents as, and I quote, "Better them than us." "Them," being smokers and "us" being building owners and managers.

MR. DINEGAR: Actually, "them," being the tobacco industry, not the smokers themselves; "us," being the building owners and managers.

No. The effort has not been to deflect attention away from indoor air quality, and I'll tell you a number of different things besides the seminar series that have been undertaken and the brochures that have been distributed across the country.

We've consistently supported Congressman Waxman's effort to ban smoking in office buildings as one of the sources of contaminants of indoor air quality, and we have consistently opposed regulations on Capitol Hill as premature and unnecessary until somebody spends the money to do the research.

On Monday, the indoor air quality bill, the Act of 1994, goes to the House Floor for a vote, and we are probably the most active supporters of that piece of legislation that calls for research and the development of guidance.

But until it's done, we are going to continue to oppose regulations on indoor air quality, except for environmental tobacco smoke, as premature and unnecessary.

MR. STERLING: Okay. Well, I'm a bit naive, but that sounds to me like a strategy.

MR. DINEGAR: You're damn right it's a strategy.

JUDGE VITTONE: Gentlemen...


JUDGE VITTONE: ...whether it's a strategy or not, let's move on.

MR. STERLING: Okay. I only have four more questions.

JUDGE VITTONE: We're not going to get involved into the politics of whatever their organization is going through.

MR. STERLING: You should be able to answer my questions in "yes" or "no".

Has BOMA undertaken to postcard or letter writing campaigns to ban smoking?


MR. STERLING: Has BOMA undertaken postcard and letter writing campaigns to ban smoking?

MR. DINEGAR: We've supported Congressman Waxman's legislation, and we've asked that letters be written to Congress to support these smoke-free environment act.

We have also undertaken two letter-writing campaigns the last three days for Capitol Hill to vote "yes" on the Indoor Air Quality Act of 1994.

But I'm not aware of any postcard or letter writing campaign into OSHA to tell them to ban smoking; in fact, our statement is, one of the only ones, I understand that have been submitted by BOMA members, because we're the organization. So, no, we didn't undertake an effort to have OSHA with postcards and letters ban smoking. That's been us.

MR. STERLING: BOMA has -- I will quote here.

"BOMA has actively supported the call for a smoking ban through postcard and letter writing campaigns, April 1st, 1994."

Either you're misinforming your -- are you misinforming your members?

MR. DINEGAR: Who were those postcards and letters written to?

MR. STERLING: It doesn't say. I didn't ask you who. I just asked you if you had.

MR. DINEGAR: I just told you we did for Capitol Hill and not to OSHA.

MR. STERLING: Okay. Does BOMA believe that banning smoking will prevent indoor air quality problems?

MR. DINEGAR: It was one of the sources of indoor air quality complaints, and we understand it to be a Class A carcinogen, so yes. We understand it would eliminate one of the indoor air quality contaminants and improve indoor air quality.

MR. STERLING: Are you aware that NIOSH has testified that not even one of the air quality investigations they have undertaken would have been resolved completely by banning smoking?

MR. DINEGAR: I didn't say it would be completely improved by banning smoking. I said it's one of the identified sources of contaminants and should be banned.

MR. STERLING: All right. Would you agree that instead of the proposed indoor air quality in ETS regulations, both American non-industrial workers and BOMA members would be better served by guidelines, industry standards, such as ASHRAE, education, such as that which BOMA has provided, and voluntary compliance programs such as the EPA air quality alliance.

MR. DINEGAR: Not only do they need to do the research, they need to spend the money on the science, and we need to identify what the sources of contaminants are, what the safe levels of exposure are, and then attack the problem at the source.

Training and development of guidance materials fall far short of what needs to be done on this problem.

MR. STERLING: I would agree with you on that.

JUDGE VITTONE: Sir, wrap it up, please.


JUDGE VITTONE: Okay. The lady over here who said she had five minutes.

Would you state your name for the record and who you are representing, please.

MS. BOR: Good morning. I'm Victoria Bor. I'm representing the Building and Construction Trades Department of the AFL-CIO, and I don't have my number, but I can supply it when I finish.


MS. BOR: I just had a few questions that I wanted to ask you Mr. Dinegar, based on your product display here. Let me, just as a starting point, as you whether I am correct in understanding that you do acknowledge that there are indoor air quality problems that need to be addressed in non-industrial workplaces?

MR. DINEGAR: It's our understanding that there are indoor air quality problems in offices, in different nonindustrial worksites, in many parts of the country. The extent of those problems haven't been identified. The sources of the problems haven't been identified. But, also, the scope of the problem hasn't been identified.

MS. BOR: Okay. I must say that I have mixed reactions to your product display here, because it's been our experience that, although American industry is very good at responding to things like consumer taste and beverages, it doesn't respond quite as quickly to worker's needs.

MR. DINEGAR: Agreed.

MS. BOR: I wanted to ask you whether you are aware of products that have come out or that American industry has generated, not consumer products, the kind you have there, but products that have come out as substitutions in the absence of some sort of government regulation or government ban of a particular component of the product.

MR. DINEGAR: Well, a number of different ones, whether they smell different or whether they've got different chemical compounds, I understand have been undertaken. I'm not a cleaning contractor in office buildings or a painter or decorator, but I understand that the carpets that used to be glued down, using a formaldehyde based glue, are no longer using formaldehyde based glue, and yet they seem to stick pretty well.

In terms of paints and coatings, lead-based paint would be the other one, after you're not allowed to use lead in your paints. That's been removed.

Same with lead solder in drains and sinks, and so the solder...

MS. BOR: Yes, but let me interrupt for just one minute.

My question was products that have come out in the absence of some sort of government ban. We have a panel on lead in paint.

MR. DINEGAR: Different ones that I'm aware of, from the Chemical Speciality Manufacturers Association, nothing specific that I'm aware of; some of them I understood were company secrets when we talked to their representatives. But I understand that they do feel that there is mounting pressure to come up with products that are much more sensitive to persons with multiple chemical sensitivities. I don't have the specifics, but I know they're testifying.

MS. BOR: So as far as you understand, there's product development in the works, but nothing or not this kind of an array?

MR. DINEGAR: No. I'm not aware of any regulations on photocopiers; I'm not aware of any regulations on the carpet industry. I am aware of different self-regulation efforts underway within some of those industries.

MS. BOR: Okay. You made the comment earlier that one of the problems that we're facing is that we don't know precisely what the kinds of contaminants are that are in the workplace that are causing indoor air quality problems.

I believe you were here yesterday for the testimony of the witnesses from the Service Employees Unions who testified about areas...

MR. DINEGAR: Actually, we were challenged by them, yes.

MS. BOR: That's right. All right. And they testified about various problems, some of which are a result of contaminants that have not necessarily been identified.

Some, as I understood it, were also as a result of contaminants that were being utilized in ways that were inconsistent with the product requirements. For example, cleaning substances that were being used, although the label said that they had to be in ventilated areas, were being used at times when ventilation in the building was not on. Is that correct?

MR. DINEGAR: Yes. And just because you put that label on a can of paint thinner or a brass polish, doesn't mean that that should absolve the chemical industry from coming up with products that don't have those pollutants, because if the ventilation is not on in the building, you can't just dismiss your liability as the product manufacturer.

MS. BOR: Okay. I guess my real question here is that we seem to be in agreement in terms of the fact that there are contaminants that are being used in the workplace that perhaps should not be there.

The question that I have is that if you accept the proposition that it may take some time to address the source problems, to address product substitution for the chemical industry or whatever to develop and market, for there to be a sufficient consumer demand for the chemical industry to market substitute products, do you have a proposal for how to address indoor air quality problems in the meantime?

MR. DINEGAR: In the meantime, you target the source. You go after it by banning tobacco smoke indoors as one of the pollutants.

You ensure that the workers who are using those chemicals, if it's not adequately ventilated, don't use those chemical compounds, the message will get back to the manufacturers pretty darn quick if people stop using their compounds to clean, to paint, to furnish, to lay down carpet, to lay down rugs, whatever it is they're using the chemicals for, but until we start targeting at the source, we're going to be back here year after year after year.

We can, if part of the question talks of ventilation, we can blow a hundred-mile-an-hour wind through an office building, and it's still not going to solve the problem, because you're going to have people who build slab-to-slab with the different dividers and impede circulation; they don't like the cold air blowing down on them, or the hot air blowing down on them, so they seal up the air ducts. They still continue to do things with the tenant suite where they put a copier in a closet that's way to small and overheats and emits harmful chemicals.

We'd like to know what those chemicals are, we'd like to know what the exposure levels that are safe, and we'd like to attack it at the source.

We can pretty much do anything you need in an office building if the tenants are willing to pay the money for it, but it's not the most sound approach to take.

MS. BOR: Do building owners have -- in your agreements and lease agreements, whatever, with
tenants -- is it commonplace, or is it ever an element of a lease to have restrictions on what kind of construction goes on within an office suite?

MR. DINEGAR: Yes. Typically, it is for construction, that you would have to pull a permanent for or different construction including painting that building management is supposed to be informed before any work is undertaken.

That, unfortunately, is not typically what happens, but it is what's specified in the lease.

MS. BOR: What about partitions kind of
thing -- putting up walls?

MR. DINEGAR: Construction. Absolutely. It would be something that would be covered in notification to the building management, or it might be work that's undertaken with the assistance of the building management and the building engineer staff, and then certainly any building construction trade that they use.

MS. BOR: In a typical arrangement, does the building owner have some say in -- I mean, if your tenant notifies you, for example, that they're going to put up, or that they want to put up partitions, does the building owner have a right to have some input into whether, in fact, that reconfiguration takes place?

MR. DINEGAR: Certainly. It must be built to code and the different health standards that apply are certainly taken into account, that they are complied with.

Besides that, which types of provisions are you talking about?

MS. BOR: Well, you were saying earlier that one of the problems -- one of the many problems that we have in controlling indoor air quality is what goes on in a tenant's suite...


MS. BOR: -- and the fact that that has an influence on air circulation and that kind of thing.

What I'm asking is whether, in fact, what goes on in a tenant's suite goes on in the privacy of the suite or whether there is some interaction, and some interaction between the tenant and the owner in making decisions?

MR. DINEGAR: There's a lot of both. Sometimes an interior designer will come in and build out the space with no regard to the ventilation system whatsoever, and they build out this real neat deal, but where the ventilation used to be, that the exhaust was here and the return was there, now we've got a wall splitting the two, and that's a design flaw that needs to be addressed by all the parties involved.

The owner doesn't have full authority or at least all of the opportunities to go in there and rewrite the drawings to tenant, and the building contractors are the ones that are typically hands on.

MS. BOR: Is there anything that would preclude a lease arrangement that would require notification or consultation with the owner before that kind of structural change takes place?

MR. DINEGAR: All leases are negotiated, so everything is open for negotiation. Nothing would preclude it unless the parties sitting across the table from the owner is a better negotiator.

MS. BOR: Thank you.

MR. DINEGAR: Thank you.


Before I skip this, Exhibit 52, did you provide that to the reporter? Thank you.

Ms. Sarri, you had a few questions, you said? Do you want to come forward and do those now, please.

MS. SARRI: My name is Cathy Sarri. I'm with the Service Employees International Union, Docket No. 172.

I guess the first question I have is a follow up to a previous question that was asked by the first person who was asking questions. You, in answering his questions, corroborated the NIOSH study that says eliminating environmental tobacco smoke would not eliminate the indoor air quality problem.

Doesn't that speak to the need for a standard which would improve air quality by what NIOSH would identify as the main source of the problem, the operation, the ventilation system?


MS. SARRI: Why would you say it doesn't?

MR. DINEGAR: Indoor air quality is made up of a variety of different components. Poor indoor air quality is made up of a variety of components.

As I mentioned before, it's the operation and maintains of the systems, it's the role of the tenants in introducing different contaminants to the workforce, and also the sources of contaminants themselves, among them, environmental tobacco smoke.

MS. SARRI: Right.

MR. DINEGAR: Just by eliminating tobacco smoke, it doesn't magically improve indoor air quality to the point that there shouldn't be any more information generated on indoor air quality for all time. We need more science and more research.

MS. SARRI: Which is exactly what NIOSH said. They said you have to deal with the ventilation system, that the...

MR. DINEGAR: The ventilation system isn't the sole source of the problem either. You can crank it

MS. SARRI: 52, 54 percent.

MR. DINEGAR: ...you can crank up buildings across the country to 20 cfm if you've got the money to do that, and you're still going to have indoor air quality complaints, because of the different chemicals that are used, because of smoking, because of the carpet rug fibers, if they're the problem; because of the copier machines, the paints and coatings, the solvents.

MS. SARRI: Let me ask you this question then:

You said previously that building owners have limited control over their tenants. It seems to me as though the standard presents a great opportunity to have more control over tenants, because it would give you the opportunity to designate a person to have some charge over how the building is operated and how tenants do regulate or control their activities in the building.

MR. DINEGAR: I don't want to make any misstatement here. I represent the Building Owners and Managers Association in the United States and internationally, but we don't represent every commercial real estate property in the United States. We represent more than half of the available office space in the United States, but not every one.

I would tell you that my members are the professional members, already have designated person, who already keep most of the tenant logs and know who's complaining about indoor air quality and have a lot of incentive to improve indoor air quality.

What they don't have are the facts as to the sources of those problems and the best remediation techniques to improve indoor air quality.

MS. SARRI: So then where are the costs? If over 50 percent of the building owners are complying in some way with some of the requirements, either from the EPA manual and program or what OSHA would require under the standard, then where the huge costs?

If they have a designated person, if they're keeping records already, then, where are the costs?

MR. DINEGAR: Sure. One of the, of course, would be SEIU employees' biggest issue, and it's the increased ventilation hours. If you've got a regular workforce that's in there from 6:00 at night until 2:00 in the morning cleaning the buildings, the standard as proposed would call for the ventilation system to be operating for those hours. That's a cost that hasn't been factored into the OSHA proposal.

The $8 billion worth of costs that they've got are record keeping requirements, tenant logs and complaints, building schematics and the time it takes to pull those together, and trust me when I tell you that $8.1 billion doesn't even approach the true costs of pulling those together in the format that OSHA's requested.

MS. SARRI: Are you aware that if you do a cost analysis based on what OSHA came out with in their Preamble, that this is actually a less expensive standard than, for example, the blood borne disease standard?

MR. DINEGAR: In terms of $8.1 billion...

MS. SARRI: Actually, cost...

MR. DINEGAR: ...and the savings...

MS. SARRI: ...and benefit...

MR. DINEGAR: ...that are generated?

MS. SARRI: ...in terms of the entire workforce that's covered by the standards.

MR. DINEGAR: I have no idea where they pulled the $15 billion worth of savings from with any credibility. If it was speaking to the NEMI Standard, this group that holds themselves up as the Total Energy and Air Management Association of the National Energy Management Institute, as far as we're concerned, they're just a front group for folks who want to do sheet metal contracting.

MS. SARRI: Well, it's the number divided by 70 million workers who would be protected.

I wanted to actually move on.

You emphasized this yesterday and you've emphasized it in your comments today that source control is one important way to remediate indoor air quality problems. What does BOMA require of the cleaning contractors or what do building owners require of their cleaning contractors who they subcontract with, to reduce the janitors and tenants' exposure to toxic chemicals?

MR. DINEGAR: I'm not sure.

MS. SARRI: So what would you propose?

MR. DINEGAR: I haven't even thought about it right now.

MS. SARRI: But you're proposing source control, so what would you propose for...

MR. DINEGAR: That they don't use...

MS. SARRI: ...that you would recommend to...

MR. DINEGAR: ...cleaning compounds...

MS. SARRI: ...building owners?

MR. DINEGAR: ...that...

JUDGE VITTONE: Wait a minute. One at a time.

MR. DINEGAR: That the cleaning compounds that are used are manufactured without harmful chemicals, attack it at the source.

Why would you want to have somebody using a cleaning compound if that person that's using the cleaning compound is at risk and it has an adverse impact on the health effects of people who are exposed to that chemical, whether through the air stream or direct contact with it?

MS. SARRI: Agreed.

Are you aware that there does exist what are called "green chemicals," chemicals that are less toxic?


MS. SARRI: Okay. Are you aware of any building owners that have in their leases requirements to use these safeguards -- oh, excuse me, not leases -- their contracts with the subcontractors, with the cleaning contractors, that would require the use of these safer cleaning chemicals?

MR. DINEGAR: No. I'm not familiar with the specifics of different contracts, but it sounds like it's a pretty good idea.

MS. SARRI: Then doesn't it make sense that for those workers that aren't using safer chemicals, that they have some kind of ventilation system that's at least -- when source control is not being implemented as you suggest, then doesn't it make sense that there should be some ventilation system operating to protect these workers?

MR. DINEGAR: Yes, as long as it's done at the same time with the source control. We're not going to keep ventilating buildings until all time just because somebody wants to make a chemical that harms people and they don't feel like getting around to identifying it at the source.

MS. SARRI: Yes. Except you said that you have no control over the tenants, yet you sign leases with the tenants. You could make these requirements if you wanted to.

MR. DINEGAR: We could negotiate those requirements...


MR. DINEGAR: ...and, depending upon how successful we are with negotiations, with groups like yours or the tenants...

MS. SARRI: Our janitors would be very happy to use safer cleaning chemicals. In fact, we're on numerous, numerous government task forces trying right now to implement the use of safer cleaning chemicals.

MR. DINEGAR: The more pressure that exists, the more pressure that develops, the more immediate the response will be from the chemical manufacturers.

MS. SARRI: Yet, BOMA is not involved in these. But, anyway.

MR. DINEGAR: Well, most of our time has been taken up responding to the OSHA standard right now, to make sure that they're science and research generated on indoor air quality problems rather than just sort of flippant anecdotes.

MS. SARRI: Well, I would suggest that they're not, and we'll be submitting information to the record that we didn't have yesterday, but I would say that they're differently not flippant anecdotes.

We'll have plenty of information to submit to the record.

MR. DINEGAR: No. I didn't characterize SEIU's comments as flippant anecdotes.

JUDGE VITTONE: All right. Next question.

MS. SARRI: I guess, actually, that's probably it. Thank you.

MR. DINEGAR: Thank you.

JUDGE VITTONE: let's take a short recess right now.


JUDGE VITTONE: Let's go back on the record, please.

During the break -- we originally scheduled that Mr. Rupp would go first, but the gentleman from AFSCME would like to ask a few questions, and then we'll go to Mr. Rupp.

Would you come forward and identify yourselves, please?

MR. BARRET: Jordan Barret with the American Federation of State, County and Municipal Employees. I think we're No. 77 on the docket.

I've basically got one question with a couple of parts in reference to some of the questions that were, or expanding on a couple of the questions that were asked previously.

You constantly mentioned in your oral testimony, as well as your written testimony, referred to the alleged asbestos and a disaster, how costly that was and how it was not based on good science, et cetera, et cetera; and I guess drawing parallels with this regulation, this proposed regulation.

You've also criticized I think the $8 billion cost estimate by OSHA.

I'd like to ask a couple of questions about these cost estimates. Do you have an actual cost estimate for what you think this regulation will cost?

MR. DINEGAR: We will be putting it together and submitting it.

MR. BARRET: Do you have any ball park figures at this point?

MR. DINEGAR: We'll be pulling it together and submitting it.

MR. BARRET: All right. Have you done any work in terms of breaking down the different areas that you think would be most costly in this.

You mentioned one, the previous question, about keeping the buildings open past closing time for the janitorial services.


MR. BARRET: What other kind of cost...

MR. DINEGAR: Record keeping.

MR. BARRET: ...what other kind of areas would you think would...

MR. DINEGAR: Record keeping requirements would be one of those areas. Training requirements associated with OSHA's proposal would be another one of the areas.

The extended hours of operation; not just for the work shifts but for the extended hours of operation.

I can't remember the other ones off the top of my head.

MR. BARRET: Extended hours of operation? I'm sorry, I didn't understand that?

MR. DINEGAR: There are two proposals within OSHA's proposal right now. One is for extended hours of operation -- morning warm-up, start-up, cycles -- as well as the operation of the system whenever the building is occupied with a regularly scheduled work shift.

MR. BARRET: At this point, can you break any of that down in terms of what percentage of the problem you think each of those categories are?


MR. BARRET: Record keeping comes up in this standard, as well as a lot of other standards in terms of cost. At the same, though, in your written testimony and in a lot of your documents, as well as the EPA documents that you're promoting, you already advocate quite a bit of record keeping in all of those.

MR. DINEGAR: We encourage our members to keep it. A pretty good, prudent property management has records of the different complaints, of their building systems, and the rest. Not all of the records in the order that OSHA wants them are necessary or appropriate or necessarily the right records to be keeping.

The fact of the matter is, record keeping doesn't improve indoor air quality but it develops a nice audit trail.

MR. BARRET: Do you have any idea of how many of your members are actually doing the kind of record keeping that you recommend?

MR. DINEGAR: The recommendations, right now, come from EPA and the Building Air Quality Guide. I wouldn't even put a number together. As to anybody that follows this chapter and verse, I would doubt that there's more than a handful. They have a variety of different records. Some are far superior. Most are far superior to the ones outlined in the basic guidance provided by EPA.

In what way would you consider the OSHA -- both in cost and in terms of time, the same thing -- the OSHA requirements for record keeping to be different from the EPA requirements for record keeping -- EPA recommendations for record keeping?

MR. DINEGAR: They list out a number of different records to keep. Would you like to go through them?

MR. BARRET: I think I would just like a general idea in terms of -- actually, a general
answer -- in terms of what you think the difference is in terms of cost.

In other words, assuming that these EPA recommendations are already out and assuming that your members are aware of them, at least, and are somewhat complying with them...

MR. DINEGAR: We're aware of them.

MR. BARRET: ...what would be the increase in terms of requirements under the OSHA regulation and how much would that cost, do you think, net; I mean, above what they're doing now?

MR. DINEGAR: On pages 26 and 27 of our testimony, we state that:

"OSHA has grossly underestimated the time and expense necessary too comply with administrative elements with the indoor air quality compliance program.

"OSHA estimates that only 5 percent of the buildings covered under this proposal already comply with written components of the program.

"OSHA goes on to estimate that the 15 minutes of managerial time combined with an hour of technician time is all that is needed to:

(1) Identify a designated person;

(2) Provide an overview of the buildings and building systems;

(3) Compile construction drawings and/or prepare line drawings schematics;

(4) Develop performance information on various components of the HVAC system"...

JUDGE VITTONE: Mr. Dinegar, you're just reading what is already in there.


MR. BARRET: I get the point, all right, and I've got the page.

My question was not so much what OSHA is requiring but what you think the difference is between what OSHA is requiring, what EPA recommended, and what you -- I guess both you and EPA are recommending.

MR. DINEGAR: We have not served the membership or the entire commercial real estate industry to find out.

MR. BARRET: All right. So you have no idea, really, what the increase in cost would be between what they're doing now and what OSHA would require?

MR. DINEGAR: No. As I mentioned, we're going to be pulling those information pieces together for the record.

MR. BARRET: All right. Well, I'll be interested in seeing those. Thank you.

MR. DINEGAR: So will I.


Mr. Rupp.

MR. RUPP: Thank you, Your Honor.

Mr. Dinegar, for the record, my name is still John Rupp. I'm going to be asking you a series of questions.

Let me begin, Mr. Dinegar, by making sure that I understand what BOMA's position is in this proceeding. I thought the position might well have been encapsulated best in the submission that BOMA made to OSHA on
March 20, 1992. Do you remember that submission?

MR. DINEGAR: I remember that submission, and I've got part of it in front of me.

MR. RUPP: Terrific. Okay.

Let me read you just a short passage.

MR. DINEGAR: What page?

MR. RUPP: Frankly, I don't recall, but I think it's page one. BOMA said in that submission, and I quote:

"Well before it received the current legislative and regulatory attention, indoor air quality become a considerable concern for building management as first rate work environments were sought for their tenants. Building management responded to the potential for widespread identification of indoor air quality problems because of a basic operating principle, 'Keep the customer satisfied.'"

That pretty well sums up what you think is happening out there in the marketplace?

MR. DINEGAR: It sure does.

MR. RUPP: And that the interests of building owners across this country and building managers, for that matter, is to provide first place working environments, and there's a heavy penalty to pay if they don't do so?

MR. DINEGAR: Rent check.

MR. RUPP: Right.

Let's focus for just a second or two on some of the premises built into that position and see whether they withstand some scrutiny, beginning with the notion that: Building owners and operators want and can be relied upon to provide first rate work environments for their tenants.

That premise is dead wrong, is it not?

MR. DINEGAR: In some instances it's dead right. In many instances, it's dead right unless they don't have good information.

MR. RUPP: Okay. There are a number of first rate buildings in this country. Would you agree with that?

MR. DINEGAR: There sure are.

MR. RUPP: Well managed, well operated, rented out at top dollar, and the owners of those facilities deserve to get top dollar for that space, right?

MR. DINEGAR: If only top dollar were the qualifier, in many markets across the country, we'd be satisfied.

MR. RUPP: All right. Then there are a lot of buildings in this country that can be characterized as second rate and, worse, down to a category that, for convenience, we'll refer to as real dumps. Isn't that right as well?


MR. RUPP: The market for building space in this country, nonindustrial building space, indeed, is quite varied?


MR. RUPP: The market value that that space fetches depends, to some extent, on the negotiating prowess of the building owner, marketing conditions that prevail in the particular locality, including the amount of space that's on the market, and the relative bargaining power of the prospective tenants. Isn't that also correct?


MR. RUPP: If drive up 14th Street, in Washington, D.C., or Georgia Avenue or 13th Street, or 7th Street, or travel along the K Street corridor, where a lot of buildings were built on spec in the mid-1970s and mid-1980s, you'd find a lot of second-rate buildings and a lot of buildings that couldn't aspire to that classification? Isn't that correct?

MR. DINEGAR: Without going into those different buildings, I couldn't tell you.

MR. RUPP: Would you agree with this: I suppose one could say that, in a sense, many lessees -- building lessees, the customers of your members -- get what they pay for so far as the buildings they occupy?

MR. DINEGAR: Some of them get more than they pay for, actually.

MR. RUPP: Right. If they're not prepared to pay very much, they probably ought to expect to find themselves occupying a building that's of lesser quality than somebody who is prepared to pay top dollar in the particular market?

MR. DINEGAR: Actually, that's not really a fair assessment since the market's been so overbuilt, there are bargains al over the country.

MR. RUPP: Yes. But a lot of people find themselves in economic circumstances where they're renting those buildings up on 7th Street in Washington, D.C. and 14th Street and 13th Street and the K Street boxes, isn't that also correct? Those buildings are not unoccupied?

MR. DINEGAR: Oh, many of them are unoccupied, but certainly there are tenants in some of them, probably many of them.

MR. RUPP: Do you know what the vacancy rate is in the area that I've described?

MR. DINEGAR: No idea.

MR. RUPP: Let's take K Street, for an example.

MR. DINEGAR: No idea.

MR. RUPP: Certainly a lot of pedestrian traffic in that area during the day, is there not?

MR. DINEGAR: A great deal.

MR. RUPP: Now, is this proceeding, in your view, about the people who sit at the table and exchange money in the process of leasing buildings or is it about the people who occupy the buildings?

MR. DINEGAR: No. This proceeding is actually about an indoor air quality proposal for $8 billion that doesn't target the source of the contaminants, except for environmental tobacco smoke.

MR. RUPP: Who are we concerned about when we're talking about indoor air quality? Are we talking about...

MR. DINEGAR: The occupants.

MR. RUPP: Let me finish my question.

The lawyers who draw up the lease, people who sit across the table and agree or disagree about lease terms, or the people who have to report to those buildings on Monday morning and work in them?

MR. DINEGAR: People who report to work on Monday morning or earlier, and work in those buildings.

MR. RUPP: Indeed, according to the...

MR. DINEGAR: As well as business...

MR. RUPP: ...Service Employees Union, we also probably ought to have some concern about the several hundred thousand janitorial personnel who work in those buildings after hours as well? Isn't that correct?

MR. DINEGAR: I said they show up to work on Monday. If they work in the building, if they visit the building, if they're just coming in for a meeting in those buildings, we're concerned about them.

MR. RUPP: All right. For those people who don't sit across that table and kind of get what the bargained for, have we not heard in this proceeding that there where a fair number of indoor air quality problems?

MR. DINEGAR: We've heard a fair number of alleged indoor air quality problems, but we don't know what the adverse health effects are, except for one, and that's a carcinogen called environmental tobacco smoke.

MR. RUPP: So ETS is really the problem?

MR. DINEGAR: No. ETS is one of the identified sources of contaminants.

MR. RUPP: Okay.

MR. DINEGAR: We have not been able to identify the sources of other contaminants or the safe levels of exposure to those other contaminants.

MR. RUPP: All right. Well, why don't we get to the issue of source control as opposed to systemic control and approach it, first, looking at some of the additional systemic issues that probably OSHA ought to be considering. Would that be all right?

MR. DINEGAR: Would it be all right if we get to it or would it be all right if OSHA gets...

MR. RUPP: Let's begin our discussion or this part of our discussion focusing on some systemic problems.

Let's start looking at the first class buildings that you and I have been talking about. Now, there is a long-term lease that one enters into for a first class building, and it includes, as many do, of course, escalators for rising costs of energy and supplies, but the rent is otherwise controlled for the period of the lease.

What incentive does the owner of that building have during the period of the lease to keep it maintained and in first class condition?

MR. DINEGAR: The tenants' lease; the tenants' safety and health; the tenants' contentment.

MR. RUPP: All right. Let's take the lease in our building. We have a 50-year lease in our building, and we occupy almost all of it, and the rent is stable for that 50-year period, other than escalators, not an unusual situation. Would you agree?

MR. DINEGAR: There are a variety of different lease options available.

MR. RUPP: Yes.

MR. DINEGAR: That's one of them. Fifty years, on the other hand...

MR. RUPP: 50 -- well, we're pretty good bargainers.

Now, in that kind of a situation, one can hypothesize a much shorter period -- 7 years, 10 years, 12 years, 15 years.

MR. DINEGAR: 6 months, 2 months.

MR. RUPP: None of those are unusual either?

MR. DINEGAR: Four weeks.

MR. RUPP: Some much shorter.

MR. DINEGAR: Um-hum.

MR. RUPP: But in those long-term leases, where the stream of money that's going to be exchanged during the period of the lease is fixed in advance, I'd like you to describe for me what incentives the building owner has to respond to indoor air quality complaints that may be taken to him or her.

MR. DINEGAR: Well, if they're indoor air quality complaints, as I mentioned, and part of the responsibility of the building owner and manager is to keep the tenants and the customers, which are those tenants, as well as their occupants, satisfied, there's a great deal of incentive. That's part and parcel of the business.

If the problem escalates to a serious indoor air quality problem, those tenants typically go out and get their lawyers or, in your case, you go down the hall. Then you cause more problems for the indoor air quality contaminants or the management of the property in terms of working to identify what the sources of contaminants are.

MR. RUPP: All right. Well, let's think about the various options that are available to somebody in the situation that I've just described.

I take it the first of our options -- the first option -- the owner of the building has is he can ignore the complaints and just turn a deaf ear?

MR. DINEGAR: That's right.

MR. RUPP: And he pays some price for that.

MR. DINEGAR: Absolutely.

MR. RUPP: But he could do that?

MR. DINEGAR: Um-hum. Right.

MR. RUPP: Now, let's think about the options that we as the occupants of the building might have.

We could move out, right?


MR. RUPP: We could shoulder the consequent costs of moving out and the risk intendant upon some court deciding 4, 5, or 6 years down the road that our action had been precipitous and requiring us to pay damages? Right?


MR. RUPP: So that's not a particularly attractive option for us?

MR. DINEGAR: It's one of the extremes.

MR. RUPP: Pretty extreme.

MR. DINEGAR: Hmm, depends on the case.

MR. RUPP: But it's an option.

MR. DINEGAR: But it's one of the options.

MR. RUPP: All right.

Now, alternatively, we could sue the landlord and, again, we would incur substantial expense and, given the legal system in this country as it operates today, we could probably expect to get relief in two, three, four, five, six years, if at all?

MR. DINEGAR: Oh, yeah. The courts are tied up.

MR. RUPP: Right.

Now, a third option, which may or may not be available, would be to try to solve the problem ourselves, but if the problem is a building systems problem, that option, typically, wouldn't be available to us, would it?

MR. DINEGAR: That problem would certainly be available to you to fix in a number of different ways. It depends on what the source of the problem is.

MR. RUPP: All right. Let's assume that a problem is that in the control room for the building, where the building main air handling unit is installed, to which we do not have access, is caked with grime; the drip tray in the chiller coils is filled with green fungus and Legionella bacteria; we don't have access to that room, how do you suppose we're going to get access to that room, and how do you suppose that we're going to discover that that is, indeed, the problem?

MR. DINEGAR: Well, I guess I need to clarify. Within your lease, did you pay that 50 years up front, all in one lump sum, or do you pay it each month?

MR. RUPP: Does it make a difference?

MR. DINEGAR: It sure does.

MR. RUPP: Well, you take any assumption you care to have.


MR. RUPP: If we don't have assured access into the areas of the building that we have not leased -- we don't lease the mechanical room -- how are we going to discover what the problem is if the landlord refused to cooperate and refuses to give us access to that part of the building that we have not leased?

MR. DINEGAR: Actually, you're paying for the mechanical room, and it's certainly part of your lease, but if you're paying each month, as most tenants across the country do, there's a heck of an incentive for the building owner to make sure that that rent check does arrive at the end of the month.

If you're not satisfied with any business arrangement, you don't have to pay for it.

MR. RUPP: So we could withhold our rent check? That would be another option?

MR. DINEGAR: If that's the level of how concerned you are about the indoor air quality problem in that mechanical room, absolutely.

MR. RUPP: Now, we may not know it's in the mechanical room, it may be in the ducts; it may be where the air intake comes into the building, it may be any number of things, but if we're sufficiently concerned, we could hold the rent check?

MR. DINEGAR: Absolutely. It's one of the options.

MR. RUPP: What risks do we incur if we incur a rent check? Any idea?

MR. DINEGAR: What risk would you hold?

MR. RUPP: Yes.

MR. DINEGAR: I'd like to say "lockout", but that takes years and years and years.

MR. RUPP: Well, the landlord could, indeed, evict us, right?

MR. DINEGAR: Yes. After a longer period of time than most of the court cases that you outlined before, so that's not really an option.

MR. RUPP: All right. Could sue us for damages?

MR. DINEGAR: Yep. Four or five years, like you outlined before, under suits.

MR. RUPP: So, if we've got a number of employees who are complaining to our people about various forms of illness and distress, we've got to be pretty sure that we have all the goods on the building before we take any of these options, exercise any of these options, should we not, in the event that the building owner refuses to respond to the complaints that are being made?

MR. DINEGAR: Well, isn't it the lack of certainty on the sources of contaminants is the essence of our comments, you would be hard pressed to be absolutely sure that the building is causing a problem.

But if you were raising a concern and the building manager or the building owner is not responding professionally, they're not going to be in business real long because somebody across the street would be happy to take your business.

MR. RUPP: You have said several times in response to questions that were asked preceding mine, you're just not going to be able to determine whether it's a building-related problem. You're quite sure about that; is that it?

MR. DINEGAR: I don't recall saying that as a quote.

MR. RUPP: Do you think that, in many cases, it's quite easy to see that the source of indoor air pollution problems that are causing adverse health effects to building occupants is, indeed, the building system rather than any individual source within the building?

MR. DINEGAR: Can you repeat that?

MR. RUPP: I'll give it a roll.

Are there not a variety of instances of which you are aware in which it was quite easy for professionals going into a building to document that the source of the health problems that building occupants were suffering was some aspect of the building operation or maintenance?

MR. DINEGAR: I'm not aware of specific cases that have pointed to adverse health effects associated with just the building operation system, except in the case of Legionnaires disease.

MR. RUPP: Okay. Does BOMA have anyone on staff who is an industrial hygienist or a medical doctor or a scientist in one of the health sciences?


MR. RUPP: Do you work directly with a consultant who advises BOMA in those areas?


MR. RUPP: Have you done a comprehensive review of the literature on the incidence of health problems related to -- occupant health problems -- related to various aspects of building system operation and maintenance?

MR. DINEGAR: We've read extensively. We've got a number of the different documents, but no, not a literature search by any stretch of the imagination.

MR. RUPP: In all of the reading you've done, you've spotted a few cases of Legionella being reported in the literature but, beyond that, you've not seen the report documented by a professional researcher, a single instance, indeed, in which any aspect of building operation or management had been found to be the cause of adverse health problems in building occupants?

MR. DINEGAR: For example?

MR. RUPP: I'm talking about things like...

MR. DINEGAR: That's a pretty broad range.

MR. RUPP: Very broad range, and it gives you the opportunity to say, yes, you've seen more than Legionella, you've seen one other one or ten others or twenty others.

Just haven't seen any other health effect reports? MR. DINEGAR: Solely based on the building system itself?

MR. RUPP: Correct. Building system, the HVAC system, or some other aspect of the system operation or construction of the building?

MR. DINEGAR: None that I'm aware of, specifically.

MR. RUPP: Okay.

MR. DINEGAR: I heard yesterday there were reports on fungus, and one of the gentlemen had his lung removed because of that fungus.

MR. RUPP: That would be two, then -- the Legionella plus that one.

MR. DINEGAR: The witness wasn't here himself. We read his testimony.

MR. RUPP: Okay. Never seen an instance reported in the literature by professionals who have documented widespread existence of air intakes above loading docks where trucks leave their motors running while they're unloading material into the building?

MR. DINEGAR: Plenty.

MR. RUPP: Plenty of those?

MR. DINEGAR: Um-hum.

MR. RUPP: Do you have any idea what you find in diesel and gasline exhaust?

MR. DINEGAR: Quite a bit of contaminants that shouldn't be indoors.

MR. RUPP: But you've never heard of anybody becoming the slightest bit distressed by any of those contaminants...

MR. DINEGAR: Oh, yes.

MR. RUPP: ...coming inside?

MR. DINEGAR: Quite a few people. You asked me about the building system as the source of the problem.

MR. RUPP: Ahh, well, maybe...

MR. DINEGAR: Source of the problem is the diesel.

MR. RUPP: Okay. We may have...

MR. DINEGAR: So a system...

MR. RUPP: ...we may have a problem with definition here. Let's make sure we understand what I'm talking about.

When I'm talking about the building system...

MR. DINEGAR: Excuse me, Your Honor. Could we close that door? Is that okay with you?

JUDGE VITTONE: Yes. Could somebody go over there and do that please?

It's the first day we've had competition on the outside.


MR. RUPP: Mr. Dinegar, when I'm referring to building system problems, for purposes of the questions I'm going to be asking you, I'm going to refer to all aspects of the building systems. That is, the HVAC equipment itself; where it is located; how it is maintained; the envelope of the building, where the air intakes and exhaust are; where there may be, or may not be, standing water that is not removed; what building materials are used in the building that are the responsibility of the owner and not the responsibility of the tenant. Would that be fair?

MR. DINEGAR: That's quite a bit but, in terms of the answer I gave you before to the building
system -- being the HVAC system itself, being the building of steel and concrete and glass itself, no carpets, no copies, no diesel, no trucks, no cigarette smoke -- the building itself and the building system, the only incidence I'm aware of, besides the fungus that was reported yesterday, is Legionella caused by the building system itself and the building systems are supposed to be treated to prevent that bacteria from forming.

MR. RUPP: All right. Who is responsible for where the air intake in a building is located, the tenants or the owner?

MR. DINEGAR: The owner.

MR. RUPP: If the owner places the air intake above the loading dock, who is responsible for that?

MR. DINEGAR: They should slap their engineer around a little bit, they should slap their designer around a little bit, but ultimately it's the owner.

MR. RUPP: It's not the tenant, is it?

MR. DINEGAR: No, unless the tenant is the owner.

MR. RUPP: And you have never seen a report or an extensive series of reports that have documented adverse health effects when exhausts from the street or exhaust from the loading dock enter the building ventilation system and reach occupant spaces?

MR. DINEGAR: Actually, I have.

MR. RUPP: Okay. How many of those have you seen?

MR. DINEGAR: I have no idea the number.

MR. RUPP: Well, so we have Legionella and we have loading dock and street problems?



MR. DINEGAR: We're going back to the building systems, as we defined them earlier. Legionella is caused within the building system itself. That is a building system's approach to it. That is a building system created problem that a bacteria can be taken care of with chemicals, but the others...

MR. RUPP: I'm just going to ask you to kind of expand your mind just a little bit. When we're talking about systems, I want you to include aspects of the building for which the owner, and the owner alone, has responsibility.


MR. RUPP: All right? So when I'm talking about building systems, I'm including, to be quite specific for this purpose, I'm including where the air intake in building is located. Is that fair?

MR. DINEGAR: That's fair.

MR. RUPP: All right. So for the situation that I've described, for which you agree now that you have seen some literature on this, that is the responsibility of the building owner; is it not?


MR. RUPP: All right. If the building owner decides to put the air intake on the roof, which often happens, does it not?


MR. RUPP: And he decides to place the air intake right beside the cooling tower, who is responsible for that?

MR. DINEGAR: The owner, along with...

MR. RUPP: Not the tenant?

MR. DINEGAR: ...the designer. Not the tenant.

MR. RUPP: All right. Have you ever seen reports in the literature about Legionnaires disease entering buildings from cooling towers that are infected because the air intake in the building was located on the roof adjacent to a cooling tower?

MR. DINEGAR: Yes. Actually, the Con Edison Building in New York.

MR. RUPP: Right.

Now, Legionella can also occur when the drip trays get clogged...

MR. DINEGAR: That's right.

MR. RUPP: ...right beside the chillers, can't they?

MR. DINEGAR: Um-hum.

MR. RUPP: Who's responsibility is that?

MR. DINEGAR: The owner, ultimately.

MR. RUPP: Now, Legionella is not the only bacteria that could accumulate in drip trays or cooling towers, are they?

MR. DINEGAR: I don't know.

MR. RUPP: You have no idea?

MR. DINEGAR: I don't know. I'm not a scientist. I'm a lobbyist.

MR. RUPP: Do you have any idea how bacteria, molds, and fungi develop, or where they develop?

MR. DINEGAR: Pretty decent idea, based on the Petri dishes of biology class, but nothing...

MR. RUPP: Why don't you give us a sense of what your sense is about it?

MR. DINEGAR: Problems develop with bacterias and they grow in areas that they can grow in.

MR. RUPP: Now, what kind of areas do you suppose bacteria and fungi can grow in? Could they grow in building systems, do you suppose?

MR. DINEGAR: If the ...if the factors are all in place to have that growth go, sure.

MR. RUPP: What kind of factors would have to be in place for bacteria, fungi, or mold to grow?

MR. DINEGAR: I mentioned before, I'm not a scientist.

MR. RUPP: Let me suggest some and see if these make any sense to you.


MR. RUPP: They need a source of food; typically, dirt will do.

MR. DINEGAR: Um-hum.

MR. RUPP: They need some moisture; typically, something above 60 percent relative humidity will do.

Sound right?

MR. DINEGAR: I'm not a scientist, so I couldn't tell you.

MR. RUPP: Not a scientist. Okay.

Well, let me name another few and see if these ring bells.

Normally, they need a place that's reasonably protected from light, so air ducts will do quite nicely, as will the interior portions of an air conditioning system, the equipment located typically either on the roof or the basement of a commercial building? Does that sound right?

MR. DINEGAR: Did I mention that I'm not a scientist?

MR. RUPP: I think you have.


MR. RUPP: Does that sound right?

MR. DINEGAR: A lot of things are going to sound right, but...

MR. RUPP: Okay. Now, you have never seen in the literature any reports, pictures, documentation, of widespread outbreaks of illness among occupants in buildings because of mold, bacteria, and fungi growing in the kind of places I've just described?


MR. RUPP: Haven't heard any?

MR. DINEGAR: Of widespread outbreaks of indoor air quality problems? None.

MR. RUPP: Would you be surprised if I thought that was flabbergasting?


MR. RUPP: Does the EPA manual that you have been distributing and are so proud of contain a number of pictures and descriptions of precisely the kind of situation I've been talking about?

MR. DINEGAR: No. It portrays pictures,
Mr. Rupp.

MR. RUPP: It portrays pictures?

MR. DINEGAR: It portrays a number of those kind of things?

MR. RUPP: Yes.

MR. DINEGAR: You associated that with a widespread outbreak of indoor air quality problems.

MR. RUPP: Right. Fair enough.

Has BOMA undertaken any kind of investigation to see whether the pictures that the EPA reprinted of the kind of things we've been discussing are typical or atypical?

MR. DINEGAR: No. They're examples, is my understanding.

MR. RUPP: Is that your understanding from the United States Environmental Protection Agency, that these are quite isolated examples of no great concern?

MR. DINEGAR: I didn't qualify it to say quite isolated examples. I said, they're examples of different problems that can happen in office buildings.

MR. RUPP: Is it BOMA's position that they're quite isolated and shouldn't be of any concern to OSHA or anybody else?

MR. DINEGAR: I didn't say that either.

MR. RUPP: Did anybody at EPA suggest that they're isolated?


MR. RUPP: And BOMA has not undertaken any kind of investigation into how widespread those are?


MR. RUPP: But, yet, you come here today to tell us that there's really no need for any indoor air quality rule because BOMA doesn't really know whether these things are widespread or not?

MR. DINEGAR: Didn't say that either.

We said -- and I'll repeat it for the

MR. RUPP: Please do.

MR. DINEGAR: ...because if there is reason for a rule, it should be based on sound science and should be based on the development of sound research that hasn't been done; we want to know how widespread the problem is, we want to know what the sources of those problems are, and we want to attack it at the source.

MR. RUPP: Does BOMA have any responsibility as the representative of building owners and operators in the country ...not all of them, certainly, but you said 30 percent to 50 percent -- to undertake an investigation of that problem before it tries to convince OSHA not to be concerned about building system?

MR. DINEGAR: It would just be the opposite. OSHA has the responsibility to undertake an effort to identify how widespread the problem is, what the sources of contaminants are, and provide the official guidance as to how to get rid of those sources.

MR. RUPP: So, as far as BOMA is concerned, BOMA is pretty comfortable with the hear no evil, see no evil approach to the issue?

MR. DINEGAR: Absolutely not. Didn't I tell you that we held seminar series around the country using the EPA guide that we helped develop, and we held 60-plus seminars around the country? Didn't I tell you

MR. RUPP: How many people have been...

MR. DINEGAR: ...we've been pushing for regulations or information, legislation on Capitol Hill, to work, to identify and fund EPA to come up with a source of contaminants, and to identify what the best research is, to remove those contaminants, and to demonstrate how widespread the problem of indoor air quality problems are and how to fix the problems?

MR. RUPP: Yes, you've told me all of that before.

How much money has BOMA spent for those kind of investigations?

MR. DINEGAR: We are an organization that's a trade organization. We don't undertake research to identify how widespread the problem of indoor air quality is. We have extrapolated some materials; we've pulled together some smaller case studies, but I wouldn't say that they represent a cross section of the United States and pretend that the information that we pulled together in Oakland, California, speaks for the rest of the country.

What we have seen on the reports that we've pulled together is that there is not a widespread epidemic on indoor air quality that demonstrates the need for an $8.1 billion proposal.

MR. RUPP: But you also haven't looked at the literature in anything approaching a comprehensive way, have you? Because if you have, I'd like to ask you about some of it, specifically.

MR. DINEGAR: I say we've looked at a lot, but by no means was it a comprehensive literature search.

MR. RUPP: If OSHA were looking for a source to try to get a comprehensive fair and objective handle on the extent of indoor air quality problems unrelated to smoking in this country, would you advise OSHA to go to someone who does not have anyone on staff, who is qualified to speak about the problem, and has no one on staff who has looked, or can purport to have looked, at the evidence in anything approaching a comprehensive way and rely on statements made by such an organization?

MR. DINEGAR: I would tell them to talk to that organization that's pulled together 103 technical people on their task force to develop the response to OSHA, and that they have their wherewithal to talk to any of those, or more of our members, as opposed to, or in coordination with, ConSad, the research firm that OSHA has retained, and we've met with several times and pulled them together to talk exactly to those experts, directly.

MR. RUPP: All right. Let's move to the lower end of the non-industrial/non-residential building stock we were talking about a few minutes ago.

MR. DINEGAR: Um-hum.

MR. RUPP: Okay? Now, while the employer who leased that space, again might be said to have gotten what he or she bargained for, got a low rent perhaps, maybe found his or her company located in a less than ideal situation in a less than optimum building, should OSHA's concern be with the person who leased that building or the people who occupied that building?

Now, I'm talking about the second rate buildings down to what I've termed "the real dumps".

MR. DINEGAR: OSHA should be concerned with the safety and the health of all of the people who occupy that building.

MR. RUPP: All right. Now, for those lower end of the building stock scale, if you will, a lot of those building owners and managers, members of BOMA?


MR. RUPP: You don't purport to speak for those people, do you?

MR. DINEGAR: I absolutely don't. And if they are...

MR. RUPP: Have you undertaken any kind of investigation of the indoor air quality in those buildings? MR. DINEGAR: No.

MR. RUPP: Do you have any idea what the air quality situation is in those buildings?

MR. DINEGAR: In relative proportion to what? There's no set level anywhere...

MR. RUPP: In relative proportion to the number of air quality problems in BOMA-member buildings, for example.

MR. DINEGAR: What constitutes an indoor air quality problem?

MR. RUPP: People getting so sick that they can't get through the day. How about that?

MR. DINEGAR: I'm not aware of that.

MR. RUPP: People dying from Legionnaires disease. Would that be an indoor air quality problem?

MR. DINEGAR: No -- it would certainly be an indoor air quality problem.

MR. RUPP: Exhaust being brought into the building because the ventilation is so messed up that basically no indoor air is being brought in at all?

MR. DINEGAR: Could be a problem, certainly, on indoor air quality.

MR. RUPP: Or the system so antiquated that it might have sufficed in the 1920s when the City of Washington, D.C. was quite a different kind of city than it is today, but is a joke today?

MR. DINEGAR: That would be a dump. That would be a dump.

MR. RUPP: But those people are not members of BOMA?

MR. DINEGAR: If they are members of BOMA, that's not who we represent in this proceeding or within our lobbying efforts across the country.

MR. RUPP: Okay. And I appreciate that.

But OSHA's concern has to be all buildings... nonresidential buildings where people are engaged in occupations isn't it?


MR. RUPP: So it's not just the top end of
the building scale -- the Oliver Carrs, the Charles Smiths -- but also the...

MR. DINEGAR: Uh-uh, careful.

MR. RUPP: ...Mr. Dump? Right?

MR. DINEGAR: Um-hum. Didn't want you to get in trouble there.

MR. RUPP: And I wouldn't want to get in trouble, either. Thank you very much.

And you would also agree, I take it, that the people who tend to suffer from indoor air quality problems, to the extent they occur, are generally not the people who either own the buildings or who sit across the table and sign the lease?

Can we be quite in agreement on that point, as well?

MR. DINEGAR: I'm not really sure I'm going to be able to agree, but I'm going to ask you to repeat that one.

MR. RUPP: All right.

Can we also agree that most of the people who probably suffer from indoor air quality problems, to the extent there are such problems -- and perhaps we'll have to agree to disagree about how widespread that is -- those people are not the same people who sit across the desk in the lawyer's office and negotiate and then ultimately sign a lease, right?

MR. DINEGAR: If they work in office buildings and there are sources of indoor air quality problems, they could be at risk just like anybody else. Legionnaires can happen in any building.

MR. RUPP: The person who signs the lease, if he or she actually works in that building, could also be at risk; correct?

MR. DINEGAR: If they worked in an office building.

MR. RUPP: In an office building.


MR. RUPP: But most of the people are not going to be in that lawyer's office, right?

MR. DINEGAR: What's that?

MR. RUPP: Most of the people at risk of indoor air quality problems are not going to be privy to the negotiations leading up to the signing of the lease?

MR. DINEGAR: I've become aware of lawyers that have had problems in their office buildings.

MR. RUPP: Indeed, they have.

Can you answer my question?

JUDGE VITTONE: Gentlemen, I'll take official notice of that.

MR. RUPP: I appreciate that, Your Honor.

JUDGE VITTONE: Okay? Let's move on.

MR. RUPP: I notice that you opened your March 1992 filing with OSHA by talking about the energy crises that occurred in this country in the early to mid-1970s?


MR. RUPP: And about the steps taken by BOMA members and others to respond to that crisis?


MR. RUPP: What did those steps involve?

MR. DINEGAR: Energy conservation measures. Lights.

MR. RUPP: How were those energy
conservation -- what nature of energy conservation measures were taken?

MR. DINEGAR: Everything from little signs on the switch plates of the lights to turn the lights out when you leave, to tightening up the systems, to eliminate the unnecessary use of outside air being brought indoors at levels in excess of what was recommended by a group called ASHRAE, the Air Conditioning, Refrigeration Engineers Society.

MR. RUPP: Okay. It was about that time that ASHRAE said that maybe buildings could get by on 5 cfm.

MR. DINEGAR: 5 cfm.

MR. RUPP: Okay.

MR. DINEGAR: That was the prevailing wisdom.

MR. RUPP: And the other things that building owners and operators did, particularly in new construction, but also in old construction, was to tighten up those buildings so less air came in in an uncontrolled way?

MR. DINEGAR: Adequate amounts of outside air were brought in, yes, but they were tightened up systems. No more operable windows. That was pretty much the norm.

MR. RUPP: Right. And some windows that had been operable were sealed up?


MR. RUPP: And other points of entry into the building, other than the air intake vent, to the extent that it was possible and feasible to do so, were closed down as well; is that right?

MR. DINEGAR: I'm not aware of others. I mean, you'd still have to be able to open doors and loading docks, and things like that, so I don't know if they could seal those.

MR. RUPP: All right. But, basically, the goal was to make these buildings as tight as possible so that you were not losing air that had been cooled, with the expenditure of some cost, or heated, with the expenditure of some cost, to the outside, where it was going to do no one any good, right?


MR. RUPP: Have you reviewed any of the literature that has taken a look at when the first reports of sick building sickness and building-related illness began to arise?

MR. DINEGAR: The most popular case was the Legionnaires' breakout in the hotel in Philadelphia.

MR. RUPP: Right. The Bellevue-Stratton?


MR. RUPP: All right. What about other non-Legionella-related indoor air quality problems? When did the literature on those problems begin to appear in the literature?

MR. DINEGAR: I would tell you that it would start right around the time of Legionnaires. That seemed to be the big case.

MR. RUPP: It started about the time of the energy crisis, indeed, didn't it?

MR. DINEGAR: Um-hum.

MR. RUPP: Have you read any articles that have suggested that the steps that had been taken by building owners and managers in the mid-1970s in response to the energy crisis were, in fact, a major precipitating cause for sick buildings and building-related illness because, in the process of tightening up those buildings and reducing the amount of ventilation, they were letting the interior of the buildings become a little bit like chicken coop?

MR. DINEGAR: I see a lot of very knee-jerk reactions and assumptions being made in that regard but no proof.

MR. RUPP: You've not seen anything approaching a systematic evaluation, in your judgment, at least?


MR. RUPP: Is it also -- and I know you're not a scientist so I don't mean to hold you to this, particularly -- but is it inconceivable to you, given what you do know, that there could be any connection between building-related illness and Sick Buildings syndrome with a reduction in ventilation rates to 5 cfm and other steps to tighten up buildings in response to the energy crisis in the mid-'70s?

MR. DINEGAR: You asked me to expand my mind at the beginning, and so nothing is inconceivable to me.

MR. RUPP: Maybe we're making more progress than I had anticipated.

Did a number of building owners and manager at about that time begin also to experiment with variable air volume systems for ventilation?

MR. DINEGAR: I'm not sure what time they began to experiment. We don't like to experiment a whole lot, because it's a costly business. We like to get the facts together and then we undertake the first steps.

MR. RUPP: Okay. Let me ask it this way, then.

Didn't variable air volume systems begin to be introduced in buildings at about that time?

MR. DINEGAR: I don't.

MR. RUPP: What do variable air volume systems do? MR. DINEGAR: Technically speaking?

MR. RUPP: Yes.

MR. DINEGAR: I couldn't tell you.

MR. RUPP: What triggers them?

MR. DINEGAR: I'm not a building engineer.

MR. RUPP: If I were to say that variable air volume systems go on and off in response to temperature gradient changes, would that seem right?

MR. DINEGAR: I couldn't tell you. I'd be happy to get you information on variable air volume systems.

MR. RUPP: I think I've got quite a bit.


MR. RUPP: Let's assume that variable air volume systems are triggered only by temperature changes and are not --their operation, whether they're on or off, is not affected in the slightest by pollutant loads within the building.

Would you think that would be a pretty good system?

MR. DINEGAR: Yes. That's pretty -- from what I know of variable air volume systems, yes.

MR. RUPP: Okay. The notion, then, would be keep them at the right temperature but don't worry about other aspects of their health?

MR. DINEGAR: You're personifying variable air volume systems. I don't think they particularly care one way or another about somebody's health. If you're talking about building management...

MR. RUPP: But if you install -- if you install a variable air volume system and assume with me, if you will, that they respond only to temperature changes too hot or too cold in the building and don't respond at all to pollutant loads, would you think that's a pretty good system or not a very good system, given the kind of functions that ventilation needs to perform in buildings?

MR. DINEGAR: What the system is designed for for variable volume systems, I understand they're excellent systems.

MR. RUPP: I've asked you to take the assumption that I've just given you, and I want your opinion as to whether that would be an adequate system or an inadequate system, one that responded only to temperature changes and not at all to pollutant loads in the building?

MR. DINEGAR: It's an adequate system, it is sufficient and more than adequate system for what it is designed to do.

MR. RUPP: That's not what I asked you.

MR. DINEGAR: Well, but I'm...

MR. RUPP: In your judgment...

MR. DINEGAR: ...trying to...

MR. RUPP: ...from an indoor air quality standpoint, would that be an adequate system, one that responded only to changes in temperatures, but not to the particular pollutant concentrations found at any point in time?

MR. DINEGAR: Variable air volume systems are more than adequately designed to do what it is they're designed to do.

MR. RUPP: And what do you think they're designed to do?

MR. DINEGAR: Adjust...

MR. RUPP: You don't know.

MR. DINEGAR: ...adjust the temperature. As you laid out, we were going with that assumption.

MR. RUPP: No. No. Let's follow up here.

You just told me you don't know how the variable air volume systems operate.

MR. DINEGAR: And you asked me to follow along with your assumption and I said that's accurate, as far as I'm willing to go today.

MR. RUPP: All right. All right.

MR. DINEGAR: Then you started to talk about different pollutants and different controls...

MR. RUPP: That's fair.


MR. RUPP: That's fair. All right.

So, just to be clear, your view is, if I were to install in a large commercial building a ventilating system that kept the temperature about right, comfortable, but did not taken into account in the slightest pollutant loads in that building, that would be a fine system? Is that right? Is that BOMA's position?

MR. DINEGAR: Not the way you just characterized it, Mr. Rupp. Didn't you just tell me...

MR. RUPP: Would that not be right?

MR. DINEGAR: Didn't you just tell me that variable air volume systems deal with temperature...

MR. RUPP: That's exactly what I told you.

MR. DINEGAR: ...and they do not deal with pollutant loads?

MR. RUPP: That's what I told you.

MR. DINEGAR: And then, didn't I tell you that, as designed, systems are more than adequate because they are designed regarding temperature, have nothing to do with pollutant loads?

MR. RUPP: Okay. Now...

MR. DINEGAR: And that's my answer.

MR. RUPP: Let me ask you, then, to put variable air volume systems to the side for a moment, and I'll ask again the basic question that I'm trying to get at.

If I were to install in a building a ventilating system that responded to differences in temperature but did not take into account in any respect pollutant loads in the building, is it BOMA's position that that would be an adequate system so far as a building ventilating system is concerned?

MR. DINEGAR: No. That would be a building that would be shut down in days.

MR. RUPP: All right. That's all I'm trying to get at.

MR. DINEGAR: If you talked about the building system, by the way, the ventilation system, not VAVs, you would have filters in ventilation systems where the air intake comes in from the outside.

So, just to be clear.

MR. RUPP: Have we experienced over the past 20 years or so a greatly expanded use of synthetic materials in major commercial buildings as well as minor commercial buildings?

MR. DINEGAR: I'm not sure.

MR. RUPP: Has BOMA made any kind of survey or estimate to see whether that is so?

MR. DINEGAR: Are we talking about rugs? Are there more rugs in buildings now than there were in the 1960s? I couldn't tell you.

MR. RUPP: More...

MR. DINEGAR: Excuse me? More rugs? More carpets?

MR. RUPP: No. I'm thinking more about things like pressed wood that put formaldehyde into the air.

MR. DINEGAR: I couldn't tell you.

MR. RUPP: Never made a study of that?

MR. DINEGAR: We never made a study of that.

MR. RUPP: Let me read to you from an article by an indoor air quality specialist and ask whether you have any basis for disagreeing or agreeing with the observations that are being made:

"Remarkably, duct work tends to be installed without provisions for subsequent access or cleaning. This out of signed, out of mind mentality often leads to a massive build up of ductwork contamination that has spread to building occupants as air passes through the ductwork."

Do you think that's incorrect or isolated or widespread or you just don't have any basis to common at all?

MR. DINEGAR: Oh, I have plenty of bases to comment. There are a variety of different HVAC system ductworks in place. Some of them are exposed but that means it's exposed and you can see the ductwork. It doesn't mean that the ductwork is open so that the air is just spilling out onto the floor.

If you're looking at ductwork that's clean, there are ways to clean it. There are ways to get at it, some of them are more difficult than others. But if the filtration is adequate, the ducts are pretty nice looking inside.

MR. RUPP: If they're cleaned adequately, they're pretty nice looking inside?

MR. DINEGAR: No, if the filtration is adequate. They're clean inside already.

MR. RUPP: Has BOMA made any investigation of the percent of air ducts installed -- and let's limit this question to BOMA members; I won't get into this "dump" category that we talked about earlier.

Has BOMA made any effort to investigate how often ducts in this country are cleaned by BOMA members?


MR. RUPP: Has BOMA made any investigation of the condition of ductwork in buildings owned and operated by BOMA members?


MR. RUPP: So if I were to say to you that it is quite common for air quality specialists to go into buildings even at the high end of the scale and find ductwork that is filthy, that has pounds and pounds of mold, fungi, contaminants, dead pigeons, rats, dead snakes, half-eaten sandwiches, you wouldn't know whether I was speaking accurately or not?


MR. RUPP: The same specialists that I just quoted to you from also says, so far as filters are concerned, and I quote:

"Unfortunately, many building owners persist in buying cheap, low efficient new filters that are woefully inadequate."

Has BOMA undertaken in a systematic study how often that occurs?

MR. DINEGAR: No. I guess I should clarify.

You may have a very inflated perception of BOMA International, but we're 37 people that work up the block. We're not 700 people that would undertake research on a daily basis or conduct studies.

MR. RUPP: Okay. I appreciate that.

You testified this morning that BOMA has organized a number of training courses over the past two years for building owners and operates, focusing on managing buildings to provide good indoor air quality.

How many such seminars have been held? I think you give that number, but it escapes me.


MR. RUPP: 60.

How many people have attended?

MR. DINEGAR: I believe it's in excess of 600 or 700.

MR. RUPP: Okay.

MR. DINEGAR: But I can get you figures...

MR. RUPP: Now, how many commercial buildings do we have in this country? And let's rely on BOMA's estimate rather than OSHA's estimate?

MR. DINEGAR: Actually, according to the Department of Energy, there are -- [Pause] -- over
4 million buildings.

MR. RUPP: Right. Do you think that those courses that BOMA has been giving in conjunction with Environmental Protection Agency, I take it?

MR. DINEGAR: In conjunction with EPA? Right.

MR. RUPP: Those have been valuable and have served to heighten the sensitivity of the participants to the kind of system problems that can occur and the steps that ought to be taken to mitigate those problems?

MR. DINEGAR: Yes, in one respect, certainly.

MR. RUPP: And that was a major goal of the exercise?

MR. DINEGAR: Yes, it was.

MR. RUPP: And if people come away from those seminars saying that, indeed, they were much better qualified after having participated in the course to run the buildings for which they have responsibility?

MR. DINEGAR: Some of them didn't learn anything new at the course. Some of them did learn some things new, and some of them learned what they need to watch out for.

MR. RUPP: Okay. By my reckoning, we have about 3,999,400, people to go through such courses. A lot of people haven't had the benefit of the BOMA course yet, have they?

MR. DINEGAR: Within the context of BOMA, we represent 6 billion square feet of commercial real estate. We do not represent 4 million buildings across the country. Far less than that.

MR. RUPP: What would your estimate be of the number of buildings that are BOMA-represented buildings?


MR. DINEGAR: Going off the estimate of office buildings from OSHA, there are 679,000 office buildings in the United States. Of those -- and I will tell you that BOMA typically represents the high-rise office buildings...

MR. RUPP: So you've got something in excess of 678,000 building owners, or building managers, that people who actually run these HVAC systems and are responsible on a day-to-day basis for the maintenance of them to go, do you not? You've got a lot of work cut out for you, so far as access to your training session is concerned?

MR. DINEGAR: There are 15,000 members within BOMA International.

MR. RUPP: But you represent a lot more buildings than 15,000 buildings, I take it?

MR. DINEGAR: I couldn't give you a specific number, but it's not a whole lot more than 15,000, as a matter of fact.

MR. RUPP: So BOMA, so far as the United States is concerned, is speaking on behalf of the owners and managers of 15,000 buildings in this country, which leaves us, by the reckoning that you have there, 3,985,000 buildings for which you are not speaking?

MR. DINEGAR: Well, let's go back just a little bit and put it in another term.

Within the office buildings that we control of 6-plus billion square feet, and there are 679,000 office buildings in the United States, 15 percent of the total buildings, that house 27,000 employees -- 27,000 is far in excess of one-third of the nation's workforce.

MR. RUPP: All right.

MR. DINEGAR: So let's...

MR. RUPP: Let's approach the question I'm asking this way, because I think we're going to waste time by getting bogged down in numbers that really are to no one's advantage.

Would it be fair to say that there are an awful lot of buildings owned by BOMA members who have not yet had an opportunity to get whatever benefit there is in the course that BOMA is offering with the EPA on the management of buildings to ensure good indoor air quality? Would that be fair?

MR. DINEGAR: That would be fair. And I misspoke when I said it was 500, total number of people educated through the tenant -- through the Building Air Quality Guide. The average tenants, I understand, according to the notes that we submitted in our docket, were 60 at each seminar, and 60 seminars across the country.

MR. RUPP: All right. You state in your March 1992 statement that, and I quote: "Because the outdoor air is often so polluted, less of it should be brought indoors rather than more." Is that really BOMA's position?

MR. DINEGAR: In some cities, it's certainly a concern.

MR. RUPP: Would you recommend that any city in the country that, to the extent possible, buildings should be run on a 100 percent recirculated air? At all times, as far into the future as we can hypothesize?

MR. DINEGAR: No city that I'm aware of.

MR. RUPP: Pardon me?

MR. DINEGAR: No city that I'm aware of.

MR. RUPP: Okay. So you don't really mean this sentence as it's stated. You've got some qualifiers?

That is, let me read the statement again so you have it in mind: "Because the outdoor air is often so polluted, less of it should be brought indoors rather than more".

MR. DINEGAR: That's right.

MR. RUPP: You don't really mean that, do you?

MR. DINEGAR: No, I mean that. I don't mean that no outside air should be brought indoors.

MR. RUPP: Well...

MR. DINEGAR: It's not a semantic difference.

MR. RUPP: ...what's the minimum that should be brought in from outdoors?

MR. DINEGAR: We would like to find out.

MR. RUPP: Is there a minimum?

MR. DINEGAR: We would like to find out.

MR. RUPP: Well, ASHRAE says 20 cfm for general office space. Does that seem a reasonable number?

MR. DINEGAR: What does ASHRAE stand for?

MR. RUPP: You don't know what ASHRAE stands for?

MR. DINEGAR: I know what ASHRAE stands for, and it's made up of an organization of air conditioning, heating, refrigeration engineers who stand to gain quite a bit from improvements and changes in the ventilation system in office buildings, and other buildings, across the country.

MR. RUPP: So those people are self-interested, and BOMA's position is they're not to be believed -- the 20 cfm, you can just discount that recommendation...


MR. RUPP: Let me finish my question.

MR. DINEGAR: Um-hum.

MR. RUPP: You can discount that recommendation because those people are self-interested?

MR. DINEGAR: I don't discount that recommendation and I have no basis to believe that it's based on sound science. What I do know is that BOMA, as an organization, has applied to be on the standard setting board of the committee that sets that standard, and we have been refused time and time again.

MR. RUPP: Okay. ASHRAE materials are publicly available, are they not?

MR. DINEGAR: Yes, they are.

MR. RUPP: Has BOMA reviewed the 6289 standard and supporting materials and the filtration standards that have been released by ASHRAE?

MR. DINEGAR: I'm not aware of the filtration side of things, but the ventilation, yes.

MR. RUPP: And you've reviewed the underlying material, including the studies by Dr. Kane at Yale?


MR. RUPP: But BOMA's position today certainly is that you're not prepared to buy into the ASHRAE standard is, as you sit here?

MR. DINEGAR: Which ASHRAE standard, the one that exists now?

MR. RUPP: 20 cfm for office space.

MR. DINEGAR: 20 cfm is fine if you can build new buildings to that after 1989, and the vast majority of buildings built after 1989, even with model codes, have complied with 20 cfm. It's not a government standard unless it's brought into account at the local codes.

But we have no basis to believe that that improves or decreases the quality of the air indoors.

My statement -- just to clarify the statement about -- and could you read that again about the less outside air brought indoors?

MR. RUPP: Yes. Quote: "Because the outdoor air is often so polluted, less of it should be brought indoors rather than more."

MR. DINEGAR: That's right. So 20 cfm in downtown New York City during the hottest and muggiest day that they've got, it would not be the wisest thing to increase the amount of outside air being brought indoors. In fact, keep the dampers at 5 cfm rather than bring them up to more of that outside air.

MR. RUPP: Why not 3 cfm? If 5 is good, why isn't 3 better?

MR. DINEGAR: I have no idea.

MR. RUPP: I mean, this sentence seems to me to suggest that less is better; less of it should be brought indoors rather than more. Why not three?

MR. DINEGAR: Why not three?

MR. RUPP: Why not one?

MR. DINEGAR: I don't know. I don't know the scientific basis for what's an adequate amount of outside air being brought indoors, but if the air outside is more polluted than the air indoors than, by osmosis, it's not even a good idea to bring it in.

MR. RUPP: Here's the problem I'm having with this, Mr. Dinegar.

You say you don't know anything about the scientific basis for ventilation standards, and no one at BOMA is a scientist, but yet BOMA has represented to OSHA that, because the outdoor air is often so polluted, less of it should be brought indoors rather than more.

Now, what's your basis for that?

MR. DINEGAR: Do you know there are days in
Los Angeles that you're not supposed to be outdoors because the air quality is so bad?

MR. RUPP: Yes.

MR. DINEGAR: Do you realize that there are people walking around Washington, D.C. on certain 95 degree days that can barely walk because of the pollen?

MR. RUPP: Yes.

MR. DINEGAR: And when you get indoors to bring in more of that outside air being brought indoors,
more -- more than 5 cfm, more than 20 cfm, whatever ASHRAE decides to come you with -- may not be a good idea. In fact, less of the outside air should be brought indoors.

MR. RUPP: You've heard of filters?

MR. DINEGAR: Yes, we certainly have.

MR. RUPP: You've heard of electrostatic precipitators?

MR. DINEGAR: We certainly have.

MR. RUPP: Have you heard of any of the hundreds of items that are on the market from train, from carrier, from dozens and dozens of manufacturers, to clean the outdoor air and make sure that it is acceptable for exposure to occupants?


MR. RUPP: Have you reviewed those materials to see whether, when that equipment is used by building owners and operators, it sufficiently cleanses the air being brought in in the City of Los Angeles, that it would be a good thing to bring that air in and would present no risk whatsoever to building occupants? Do you have any idea?

MR. DINEGAR: I've never seen anything that ever stated that, but I'd be very interested to see it.

MR. RUPP: Would it be your recommendation, in the summer months in the City of Los Angeles, every building in the city ought to be closed up and operated on 100 percent recycled air?

MR. DINEGAR: No. Nothing I said today would even lead you to believe that. Less of it should be brought indoors rather than more. Less is not none, just for the record.

MR. RUPP: How much is less?

MR. DINEGAR: Less would be a relative term.

If it's 20 cfm, then less would be anything from 19 all the way down to zero.

MR. RUPP: I see.

MR. RUPP: What percentage recirculated air should be permitted according to BOMA?

DR. DINEGAR: We don't have any standard.

MR. RUPP: Have you looked at that question at all?

DR. DINEGAR: With ASHRAE we've looked at that question. As I've mentioned, we've been precluded from participating in that debate.

MR. RUPP: Has BOMA looked at it itself so that it could make a contribution to ASHRAE on that question?

DR. DINEGAR: We have members who would be willing to participate, and as I've mentioned before, we've been precluded from that debate.

MR. RUPP: But you're not prepared to make any suggestions today?

DR. DINEGAR: No. Because we're not scientists, and we don't have research abilities at that level. But we would certainly and strongly encourage the federal government time and time again to undertake that research before they come up with regulations. We'd all like to know.

MR. RUPP: Let me ask you to turn to page five, if you will, of your March 20, 1992 statement. Do you have that?

DR. DINEGAR: Yes. Page five?

MR. RUPP: Yes, please. Now, this is a presentation to OSHA which, I take it, you hoped, believed, and thought it appropriate for OSHA to rely on, is that correct?

DR. DINEGAR: In their initial phase, this is what we submitted.

MR. RUPP: Okay. Let me start with the sentence at the top of the page. "There is a misconception that an insufficient amount of outside air or none at all is introduced in commercial buildings. On the contrary, sufficient outside air is brought into buildings on a regular basis, and it is mixed with recirculated air after a portion of the recirculated air is vented outside the building. For example, air directly vented from restrooms." Now, I've got really quite specific and pointed questions about this, and I want you to listen to the questions. What data does BOMA have in support of that sentence?


MR. RUPP: All right. I'm going to read you another sentence. "Management practices are intended to complement bad exchange," that is air exchange, "and ensure that high-quality indoor air is delivered to tenants. Such practices include maintenance of ductwork, attention to filtration, and careful and controlled use of cleaning and pest control substances." Now, I'm going to ask you the same pointed question. What data can you point to that supports that sentence?

DR. DINEGAR: Maybe I misspoke by saying none, because I'd like a definition of data.

MR. RUPP: Data from surveys...

DR. DINEGAR: We've not conducted surveys.

MR. RUPP: ...that have been conducted in a systematic manner which then permit OSHA and other parties to have some confidence in the representativeness of the results being produced. Do you have any such data?

DR. DINEGAR: This is information provided to me from our members.

MR. RUPP: But you don't have any data.

DR. DINEGAR: No data.

MR. RUPP: Are these reports that you've received from some of your members or all of your members?

DR. DINEGAR: Some of our members.

MR. RUPP: Have you received any such reports from non-BOMA members, the one that you don't represent? Or are you just referring here to BOMA members.

DR. DINEGAR: If I say a statement that says, "Second there is a misconception that an insufficient amount of outside air or none at all is introduced in commercial buildings," and you identify buildings that bring in no outside air, we're not here to represent them today, and they should be bringing in adequate amounts of outside air. "Adequate" being the term we would like to find.

MR. RUPP: All right. Is it your view that 100 percent of the BOMA members--let me take this in two steps, because I just really think it's important that the record not be confused. You aren't here to make any representations into this record on behalf of non-BOMA members, is that correct?

DR. DINEGAR: That's correct.

MR. RUPP: All right. Then let's assume that in all the questions that follow, should we?

DR. DINEGAR: That would be a fair assumption.

MR. RUPP: Okay. Now, is it your position today, BOMA's position today, that 100 percent of the BOMA members bring an adequate amount of outside air into buildings, and that no BOMA members can fairly be charged with running a building on a 100-percent recirculated air, that such sufficient quantities of air are brought into buildings on a regular basis, etc. etc. One hundred percent of BOMA members?

DR. DINEGAR: Can you break that down into the three questions individually?

MR. RUPP: When you have offered this sentence that I just read to you, what percentage of the BOMA members had assured you that was the case?

DR. DINEGAR: That what was the case?

MR. RUPP: The sense of that sentence. Was it 100 percent, or 80 percent had written in and said...

DR. DINEGAR: The sentence that you're referring to is management practices?

MR. RUPP: No. "There is a misconception..."

DR. DINEGAR: Okay. "There is a misconception that an insufficient amount of outside air or none at all is introduced into commercial buildings."

MR. RUPP: "On the contrary, sufficient outside air is brought buildings on a regular basis." Before you offered that statement to OSHA, what percentage of BOMA members had reported that that is correct, and you can fairly and in good faith make that representation to the Department of Labor in this proceeding.

DR. DINEGAR: I don't know the percentage, and I can fairly and with good faith make that statement.

MR. RUPP: You can?

DR. DINEGAR: I can. I did.

MR. RUPP: And you have no data that you can offer today to support it?

DR. DINEGAR: No, we ask the members, they tell us the answer. We ask them did they bring in sufficient amounts of outside air, they say they do. If they don't, then I'm not here to represent them today.

MR. RUPP: Let me give you a hypothetical then. Let's say I was the head of the District of Columbia Bar Association. And the question that was before us is how good are lawyers in this city? And I said, "All right, I'll participate in that debate. I'll send out a questionnaire to my members." And I asked them, "Boys, and ladies, are all of you good lawyers?" And I waited for a respectable period of time, and no one wrote back and said, "I'm not." So I went in to the court that has responsibility over this and said, "Your Honor, I can assure you, because I've done a survey of my members, that there are no dumps out there. Nobody is running their buildings on 100-percent recirculated air. I have no adverse health effect complaints." What would you think about the methodology of my work and the reliability of the results I was reporting?

DR. DINEGAR: Since it's difficult to quantify what is a good or bad lawyer, it's be a poor assessment.

MR. RUPP: But it wouldn't be a very good way to investigate the issue, would it?

DR. DINEGAR: If you had quantifiable terms to use in defining "good" or "bad," you'd certainly be on your way.

MR. RUPP: Well, you can certainly go into a building, can you not, and determine whether there is any outside air being brought into a building. That's an objective measurement.

DR. DINEGAR: Any. We're back to any versus none versus less. Yes, you can determine whether any is being brought indoors.

MR. RUPP: So we really don't have to rely on self reports by building owners, do we?

DR. DINEGAR: No, you don't.

MR. RUPP: We can go out and test that, can't we?

DR. DINEGAR: You sure can.

MR. RUPP: Do you know of any reports in the literature where people have done that?

DR. DINEGAR: Absolutely.

MR. RUPP: And do you know what they've reported?

DR. DINEGAR: Probably the entire spectrum of none to some.

MR. RUPP: Would it surprise you to know that a typical figure is that 35 percent of commercial buildings in this country are operating on 100-percent recycled air?

DR. DINEGAR: Would it be...

MR. RUPP: Would it surprise you to know that?

DR. DINEGAR: Would it surprise me to know that all of the buildings in the United States, all of the commercial properties in the United States are using what? One hundred percent outside air?

MR. RUPP: That there are a number of reports in the literature that suggest that 35 percent of the buildings in this country are operating 100-percent recycled air.

DR. DINEGAR: I'm not aware of that study, but as I mentioned, I represent the office building industry, not the entire office building industry, half of it. We house over 27 million workers of the 70 million that there are available in non-industrial worksites. But a building is not a building is not a building, Mr. Rupp. The building on the corner on Fourth and Main are counted as a building in its two floors, and so it the Empire State Building counted as one building. If you'd like to talk about square footage, we can enter into this discussion.

MR. RUPP: No, I think that would divert us, actually. In your August 12 statement you distinguish, and quite rightly in my view...

DR. DINEGAR: Which statement?

MR. RUPP: The August 12 statement. I'm now on the statement that you read from today. You distinguish between owner-occupied facilities and rental facilities. You suggest there, as I read your statement that when the owner of a building is also the primary or sole tenant, the owner has all the incentive he or she needs to ensure good indoor air quality in the building and sufficient control to get the job done. Is that fair?


MR. RUPP: Okay. And the gist of what you're saying, if we can boil it down, is that when the person who's responsible for the management and maintenance of a building is also the person who employs the people in the building, that person can be counted upon to try to keep his or her employees healthy, because that's going to affect the bottom line.


MR. RUPP: If that were true, why would we need OSHA at all? Let me tell you what I have in mind, and you explain why this isn't so. OSHA has a long history of setting standards to protect the health and safety of American workers. And presumably, those are circumstances in which at least OSHA has concluded that those who could have done the job by themselves and if they had been enlightened would have done the job, didn't do the job because they were short sighted, because they didn't have sufficient capital, because they didn't understand, they didn't attend a BOMA training course, for whatever reason. OSHA has found it incumbent to set standards for those industries and tell those who could affect the conditions what level of chemicals people could safely be exposed to and to find people who let their employees be exposed to hazardous levels of chemicals.

If we can rely on the building owners and operators in the way you suggest, why shouldn't Ms. Sherman and her colleagues just kind of pack up this afternoon and go home, because there's really no reason for OSHA. The market's going to take care of this. There should be no adverse health affect anywhere in the occupational setting in this country, because the market, enlightened as it is, concerned about profits as it is, can be counted upon to handle the problem.

DR. DINEGAR: So, after all that, the question is why do we need OSHA?

MR. RUPP: Yes, that's a fair place to start.

DR. DINEGAR: The distinction made between properties had to do with people who collect rent for the properties in multi-tenant office buildings and people that own the buildings and all of the employees in the buildings happen to be the people who work for the company that owns those buildings. Take Mobil World Headquarters, for instance. All the people who work in Mobil World Headquarters are employees of Mobil. Anything that's done to improve indoor air quality, or any changes that are made on thermal comfort or on the colors of the paint or on the colors of the carpet are done. The benefit goes directly to the president of Mobil and the shareholders of Mobile.

In a multi-tenant office building where there are 30 or 40 different tenants, the financial incentive, as you mentioned before, is a rent check. It's a set rent check, with escalations for each month that go up or go down, depending upon usually the amount of electricity that's used. But the benefits that accrued, except to their janitorial and engineering staff in terms of worker productivity, those benefits go back to the people who rent the space in those buildings. That where the worker productivity issue lies, that's where the financial gains lie, and that was in response to OSHA's proposal that the worker productivity gains would save people, I believe the number was $15 billion. It was not to say that we don't care about the worker productivity. It was to say that we, on the building owners and managers side of things, get to spend $8 billion of the $8.1 billion of OSHA's proposal, and we do not get the return on investment that OSHA laid out at $15 billion. That goes to our tenants. As you mentioned before, the rent check doesn't go up, we don't see one more dime of it, it's not part of the escalation, it's just a wash.

MR. RUPP: All right. Let's take it in two steps then. If you choose to focus on the second step first, I accept that invitation. It's just a wash for you. That is, for building owner and managers, if OSHA approves this rule, you're going to have to spend a fair amount of money, and it is a fair amount of money, I'll grant you that. And you're not going to see the return; that is, your member companies, right?

DR. DINEGAR: We're going to spend $8 billion chasing our tail on recordkeeping to try and improve indoor air quality. We're going to be sitting back in this room three years from now, because there's still going to be an indoor air quality problem, because no one did the research or the science to target what the sources of pollutants are. And so there we get to spend $8 billion, without the $15 billion savings that go directly to us, and we're already $8 billion in the hole, and we're just starting.

MR. RUPP: Right. Actually, if I have time, I'll return to this issue, but I'll move on because I fear I'm going to start running out of time here. I think I'd like to turn to smoking now, if I may. Not a surprise to you, right?


MR. RUPP: The discussion of smoking in your August 12 statement begins with the following description.

DR. DINEGAR: Mr. Rupp, I know we didn't have page numbers on the one that we submitted to the docket. Do you have one?

MR. RUPP: Yes, this is the August 12 statement. You read from it this morning. It's about in the middle of your statement. I bet you can find it very quickly.

DR. DINEGAR: Probably under that tab that says, "Smoking ban."

MR. RUPP: In fact, it's the first sentence of that tab. Got it?


MR. RUPP: "In January 1993 BOMA International adopted an unconventional and some would say controversial approach to managing environmental tobacco smoke in office buildings. We requested a federal ban on office workplace smoking." Now, this is my question: Since requesting a ban on smoking did not then and would not in the future cost BOMA members a dime, why should we be surprised by BOMA's adoption of that policy?

DR. DINEGAR: I don't think ...

MR. RUPP: Or regarded from BOMA's point of view as being unconventional or otherwise surprising?

DR. DINEGAR: Unconventional doesn't mean surprising. You shouldn't be surprised, it's a responsible approach. Unconventional, sure. As a cursory overview or a relatively conservative business group calling for a regulation.

MR. RUPP: Okay. But here's one that in the scheme of business regulations at least the cost doesn't visit BOMA's doors. That is, this is one that's not going to cost you any money.

DR. DINEGAR: It doesn't matter if it costs us money or not.

MR. RUPP: It's responsible.

DR. DINEGAR: It's responsible.

MR. RUPP: Okay. All right. Now, before deciding to push for smoking ban, did BOMA undertake a systematic evaluation of the air quality in non-industrial buildings in this country and conclude on the basis of that study that smoking was the only or a predominant or a significant cause of the indoor air quality problems that have been reported?

DR. DINEGAR: We never said it was only. We have not undertaken a study. We understand it to be a source of complaints and an indoor air quality contaminant.

MR. RUPP: Okay. But you haven't undertaken any investigation to determine how widespread that problem might be.

DR. DINEGAR: If smoking...

MR. RUPP: In occupational settings.

DR. DINEGAR: If smoking is permitted in an office building, it is our understanding that it does pose a hazard.

MR. RUPP: Okay.

DR. DINEGAR: And there are a lot of buildings across the country...

MR. RUPP: Well, let's take it in two steps, though. You haven't undertaken such a survey to know which buildings might have such problems and which do not. You understanding is that ETS...

DR. DINEGAR: What do you mean by problems?

MR. RUPP: Health problems. That's what this is all about.

DR. DINEGAR: Potential health risks. It's my understanding that every building that allows smoking, unless it's in a separately ventilated area, poses a significant health risk to the occupants of that building.

MR. RUPP: Okay. And my understanding is that you based that assumption on EPA's classification of ETS as a Group A carcinogen.

DR. DINEGAR: Not exclusively, but I've got to tell you, that was a huge part of it.

MR. RUPP: Okay. What other basis do you have? Let's get them all spelled out.

DR. DINEGAR: Complaints from the tenants regarding environmental tobacco smoke. Fire reports.

MR. RUPP: Tenant complaints?


MR. RUPP: How many of those do you have?

DR. DINEGAR: We've documented it in the back under the appendices a very small sampling of the tenant complaints that incorporated tobacco smoke as one of the sources of complaints.

MR. RUPP: Well, let me ask this at this point. You did say, when you put into the record that small sampling, that that was part of a much larger survey that something like 350 or 379 responses. Would BOMA be prepared to offer into the record for evaluation both by OSHA staff and other parties all of the responses to that survey so that we can determine ourselves, as can OSHA's staff, the representativeness of the sampling that you've given us?

DR. DINEGAR: Based on the size of the building, the number of the complaints, the types of complaints, yes. Based on the confidential data that would be incorporated, the names of the buildings and the companies that own and manage those buildings, no. So if we can provide that to you on a confidential basis, we'd be happy to.

MR. RUPP: I would think Ms. Sherman could make such arrangements. I would have no problem for our part if you were to remove any identifying information, including city, name of building owner, and address.

DR. DINEGAR: We'd be happy to.

MR. RUPP: Thank you very much. All right. You've got some tenant complaints, and you've given us twelve. What else do you have?

DR. DINEGAR: Also we understand it to be from NFPA, the National Fire Protection Administration, as well as also some studies that were undertaken, some fire surveys from BOMA which are limited in scope, that it is one of the leading causes of fire incidence in office buildings across the country. That is, smoking, with a lit cigarette being the source of those incidences.

MR. RUPP: Okay. You've got NFPA and the U.S. EPA. Anybody else that you're relying on?

DR. DINEGAR: No, not that comes to mind.

MR. RUPP: All right. Let's take the NFPA first, because that's probably going to be the easier one, in a sense. Or at least maybe we can deal with that the quickest. What data are you looking at from NFPA to suggest that smoking in occupational settings in this country is a significant source of accidental fires?

DR. DINEGAR: That's my understanding in a report that was filed both to Congress, to the EPA, and I believe OSHA's got a copy of that. But I can get it to them if they don't have it. They listed it as if not the leading cause of fire incidence reported in office buildings across the country, it would be the number two behind electrical fires.

MR. RUPP: Would it surprise you to know that over the past three years, the number has been about ten a year countrywide?


MR. RUPP: Ten per year. How do you describe a fire incident?

DR. DINEGAR: How do you describe a fire incident?

MR. RUPP: Smoke or fire. Flames visible or smoke.

DR. DINEGAR: That would surprise me.

MR. RUPP: Have you reviewed the statement submitted to this docket by Philip Shaman, the President of Tri-Data Corporation who designed the national fire reporting system?

DR. DINEGAR: You'd have to give me one second to look through a piece of information I've got here. I don't have NFPA's information in front of me. And yes, the incidence of ten would surprise me. That's not even the example we pulled from our own survey.

MR. RUPP: Well maybe we shouldn't spend a lot of time quarreling over what the number is or the reliability of the reports. Let me ask you this question. Had BOMA given any consideration to how many accidental fires there are likely to be in this country if smoking is banned in the workplace and surreptitious smoking, without ashtrays being available, increases?


MR. RUPP: Is that a possibility, do you suppose, if people are told they can't smoke at work?

DR. DINEGAR: I think anything is a possibility. I think it would also be an incredible possibility that smoking incidence of fire would significantly decrease.

MR. RUPP: Well, if you'll assume with me for a moment that they are at an almost vanishingly small level now, and if you tell the 20 million Americans or the 25 million Americans who now smoke that they can't smoke in the workplace, did BOMA take into account before suggesting to OSHA that OSHA should ban workplace smoking because of fire risk, that you may be creating the very risk that does not now exist?

DR. DINEGAR: No, we didn't provide comments to that. In fact, the most specific comments that we provided to OSHA on the environmental tobacco smoke had to do with it as an indoor air quality contaminant, and not as a workplace hazard as it related to fire incidence.

MR. RUPP: All right. Well let's go to indoor air contaminant and health, shall we?

DR. DINEGAR: This should be EPA?

MR. RUPP: Yes.


MR. RUPP: Under the EPA carcinogen classification scheme, what does it mean when a substance is classified as a Group A carcinogen, in BOMA's view?

DR. DINEGAR: That all hell breaks loose in the industry. The insurance companies come down with pressure. The lending institutes come down with pressure. The unions come down with pressure. The tenants come down with pressure. And the media comes down with pressure.

MR. RUPP: What does it mean in terms of human health?

DR. DINEGAR: In terms of human health, it means that people who are exposed to environmental tobacco smoke run the risk of developing lung cancer.

MR. RUPP: That's your understanding?

DR. DINEGAR: That's my understanding.

MR. RUPP: That if a substance is classified as a Group A carcinogen, that says something about the potency of the substance or the degree of risk that it presents in occupational settings?

DR. DINEGAR: That's my understanding.

MR. RUPP: Are you surprised to know that that's dead wrong?

DR. DINEGAR: Yes, it would.

MR. RUPP: Okay. Now, did you review the EPA reports yourself?

DR. DINEGAR: No, I didn't.

MR. RUPP: Did other BOMA staff members review and evaluate the EPA report?

DR. DINEGAR: Yes, they did. Not the entirety, the summary. It's a voluminous report.

MR. RUPP: And what are the backgrounds of those individuals?

DR. DINEGAR: Legislative staff.

MR. RUPP: Legislative staff?


MR. RUPP: Did BOMA go out into the scientific community and contract with some scientific consultants to provide advise as to whether a banning on smoking in this country would improve the health of the American workforce?

DR. DINEGAR: It would seem like an incredible waste of money to do that, so we didn't.

MR. RUPP: You just made a policy decision, basically.

DR. DINEGAR: No, actually, we adopted a policy position based on the unanimous decision of our board of governors.

MR. RUPP: Did the United States EPA purport to make any findings as to the degree of risk presented by ETS in occupational settings? Indeed, did the United States Environmental Protection Agency look at the occupational setting at all?

DR. DINEGAR: I'm not aware if they did or if they didn't. It's my understanding that they classified it as a Group A carcinogen. I've got to tell you, that was plenty good enough for us.

MR. RUPP: Do you know how many substances in this country have been classified as carcinogens by governmental bodies?

DR. DINEGAR: I'm aware of three: asbestos, environmental tobacco smoke, and benzene.

MR. RUPP: Are you aware of Proposition 65 in California, where the International Agency on Cancer or the deliberations that occur under the auspices of the United Toxicology Program?


MR. RUPP: Well, let's focus on Proposition 65 in California. The State of California under that enactment has listed several hundred chemicals as known to the state to cause cancer. Has BOMA begun a campaign to make sure that all of those substances are eliminated from the buildings owned or occupied or otherwise by BOMA members?

DR. DINEGAR: In one very direct sense, we have.

MR. RUPP: You put up signs.

DR. DINEGAR: No. It has nothing to do with signs.

MR. RUPP: What did you do?

DR. DINEGAR: We've lobbied extensively on Capitol Hill for them to undertake the research to identify what sources of contaminants that would include those cancer-causing agents are incorporated in buildings products, such as carpets, formaldehydes, and off-gasing of tapes and glues, wood paneling, copier machines, laser printers, paints, coatings, solvents.

MR. RUPP: If smoking were banned in occupational settings in this country, including in buildings occupied by or owned by BOMA members, what carcinogens would be removed from the workplace, or from those buildings?

DR. DINEGAR: I understand it to be a carcinogen.

MR. RUPP: Ah-ha. Do you understand that ETS is a single, particular, discrete, identifiable chemical entity, or that it's made up of a number of different chemicals?

DR. DINEGAR: I understand it's made up of a number of different chemicals. But until the tobacco companies ...

MR. RUPP: And of those different chemicals, and we don't even have to think between the two of us about the number of such chemicals.

DR. DINEGAR: Hundreds.

MR. RUPP: Do you know how many of those chemicals have sources quite unrelated to ETS and are going to be found in the air of every workplace, whether or not smoking is permitted?

DR. DINEGAR: No idea.

MR. RUPP: Is that of interest to you?


MR. RUPP: Maybe we should chat over lunch.

Has BOMA undertaken a systematic survey of BOMA or non-BOMA buildings that benefit from regular inspection of the ventilation systems?

MR. DINEGAR: Have we undertaken...

MR. RUPP: A systematic survey to determine what percentage of BOMA buildings or of non-BOMA buildings benefit from regular inspection of the ventilation systems.

MR. DINEGAR: No. We've undertaken systematic surveys on a number of points regarding indoor air quality but they relate to how the building owners and managers represented by BOMA feel about OSHA's proposal to regulate the indoor air environment, feel about banning tobacco smoke, feel about the legislation pending on Capitol Hill.

MR. RUPP: And basically their feeling is don't touch us but ban smoking, it don't cost us a dime, right?

MR. DINEGAR: Get us the facts, get us the information together to identify what the sources of contaminants are. After you identify the source of contaminant pretty much beyond reproach, like by calling it a Group A carcinogen and get it the hell out of buildings.

MR. RUPP: But, see, here's the problem with that. As you sit here today, you don't know what the classification of a substance of a Group A carcinogen means, do you?

MR. DINEGAR: I don't need to know what the classification means.

MR. RUPP: Or whether it has any application to the workplace.

MR. DINEGAR: I need to know that the Federal Government has classified it as a Group A carcinogen like they do with asbestos and I know what that means for my industry. That's plenty good enough for why we took a position to call for a ban on smoking in office buildings across the country.

MR. RUPP: Okay.


MR. RUPP: Yes?

JUDGE VITTONE: It's 12:30.

MR. RUPP: If Your Honor would entertain a suggestion, I have another half hour. I really would ask --

JUDGE VITTONE: Mr. Rupp, you've been going for one hour and 20 minutes.

MR. RUPP: I think it's been productive and I think it's helpful to OSHA. I know it's been long. I apologize for that. I've tried to move as quickly as I could and I'm going to ask your indulgence for an additional half hour. I ask it reluctantly but I must ask it. I'd be happy to take a lunch break at this time if it's Your Honor's preference and I will try my best to move quickly. I will also spend the time over lunch to see if I can shorten some of what I have remaining.

JUDGE VITTONE: What about you?

MR. TINGLE: Well, Your Honor, Mr. Rupp has asked the major questions that I was going to ask, so perhaps if you would indulge Mr. Rupp another 30 minutes, that might negate the need for me to ask any questions at all.

JUDGE VITTONE: Very well. Let's break for lunch and maybe we can reduce it even more.

MR. RUPP: Thank you, Your Honor.

JUDGE VITTONE: I'm going to take you at your word.

MR. RUPP: I will do it.

(Continued on following page)

JUDGE VITTONE: And we will come back at 1:30.


1:30 p.m.

JUDGE VITTONE: Let's go back on the record, please.

We broke for lunch and Mr. Dinegar is back at the witness table and Mr. Rupp is at the podium. So, Mr. Rupp, if you are ready to resume?

MR. RUPP: Thank you very much, Your Honor.

Mr. Dinegar, has BOMA conducted any air quality monitoring studies on ambient ETS constituents or levels in buildings that comply with the ventilation rate specified by ASHRAE 6289?


MR. RUPP: Has BOMA conducted any actual indoor air quality monitoring studies, and I'm not referring to surveys here, studies of actual air quality monitoring studies to determine what the levels of ETS would be at a variety of alternative ventilation rates?

MR. DINEGAR: BOMA does not conduct studies of this type. We don't have the wherewithal or the capability.

MR. RUPP: Are you aware, Mr. Dinegar, that OSHA has set PELs for a variety of a substances that have been classified as carcinogens, including benzene, which has been classified by the U.S. EPA as a Group A carcinogen?


MR. RUPP: Would BOMA support the reduction of those PELs, including the PEL for benzene to zero?

MR. DINEGAR: I couldn't give you an answer on that right now.

MR. RUPP: Benzene is produced by a variety of parts of a building envelope as well by automobile and truck exhaust, is it not? Do you know that?

MR. DINEGAR: I don't know. I know it's classified as a Group A carcinogen, though.

MR. RUPP: But you don't know whether BOMA would support its complete elimination from the workplace as it is pressing for the elimination of ETS from the workplace?

MR. DINEGAR: I don't know what the source of benzene is, what a safe level of exposure is and therefore what the best way to eliminate it from the workplace would be.

MR. RUPP: Well, is it BOMA's position that for carcinogens, including Group A carcinogens, there may be some safe level or by definition there cannot be any safe level?

MR. DINEGAR: No, our position is that environmental tobacco smoke has been classified as a Group A carcinogen and to get rid it of it out of the building you would ask the smokers to go outside or go to separately ventilated rooms.

MR. RUPP: But benzene is also a Group A carcinogen.

MR. DINEGAR: Benzene, it's my understanding, is not brought indoors on a regular basis by the occupants to smoke at their leisure and pollute the workplace and expose other people to a carcinogen.

MR. RUPP: Well, that's not really the question, is it? The question is whether either or both present a health risk. Isn't that the question?

MR. DINEGAR: I do not know at what level benzene poses a health risk or where it is in the environment of an office setting.

MR. RUPP: Well, if BOMA opposes any smoking in buildings because it's Group A, I'm still uncertain why for the same reason and on the same basis it would not support and you would not be prepared to announce BOMA's support today for the elimination of any PEL for benzene. A Group A carcinogen is a Group A carcinogen, isn't it?

MR. DINEGAR: Can you tell me where benzene is produced and where it is in the office? And I'd be interested to find out how we would eliminate it.

MR. RUPP: Well, let's take an example or two. Benzene is an inevitable constituent of automobile and truck exhausts.


MR. RUPP: It is therefore a chemical found in the air everywhere in this country. Would BOMA support action by OSHA that would require your member firms to install filtration devices and take other steps that would reduce to zero the level of benzene brought in from the outside air?

MR. DINEGAR: If such technology exists and it's cost effective and it's something that OSHA would like to propose, we'd be happy to provide a formal response at that time.

MR. RUPP: Unfortunately, the pages of the statement that you submitted on March 20 are not numbered.

MR. DINEGAR: They're not numbered.

MR. RUPP: So I'm going to ask you to follow along with me and if we can get to the right spot now I think we'll be able to do this rather simply. And I'll try to go in order and try to make this task easier for you. I would ask you to turn to the portion of the statement, and it's about 12 or 15 pages from the beginning, entitled "Definitions -- Air Contaminants."

MR. DINEGAR: "Definitions -- Air Contaminants" in our writing or the OSHA statement? Okay.

MR. RUPP: Yes. Do you find that?


MR. RUPP: All right. Let me ask you to turn to the second page of that portion of this statement.

I was intrigued by this sentence in particular. "The detection of air contaminants is often costly and of dubious value in determining whether or not a possible threat is posed to occupant health and safety."

Now, I have questions in two areas with respect to that sentence. First, what basis does BOMA have to know how costly it is to monitor for the various chemicals that are found in the indoor environment?

MR. DINEGAR: What data does BOMA have?

MR. RUPP: What information does BOMA have that permits it -- that informs its judgment that the detection of air contaminants is often costly?

MR. DINEGAR: As the statement reads, detection of air contaminants is often costly?

MR. RUPP: Let's focus on that part of the sentence.


MR. RUPP: What basis do you have for that statement?

MR. DINEGAR: For detecting numerous air contaminants, including C02, not that it's a contaminant but it's one of the sources or one of the indicators that OSHA has recommended for using ventilation, there are costs associated with that, there are costs associated with different VOC tests, for testing for a variety of different chemicals. So we've asked our members what costs they've incurred in monitoring for indoor air quality contaminants and they've shared some of those costs with us.

MR. RUPP: Do you know what it costs to monitor for CO2? Can you give us a figure?

MR. DINEGAR: I've got an idea. Well, actually, it's part of the appendices. Under Appendix No. 3, Carbon Dioxide Monitoring. And one of our members was kind enough to work up the details on it, including a pump, including the tubes, including the staff time associated with it. And that was submitted as part of the record.

MR. RUPP: And that assumption is that each building will purchase its own monitoring equipment and conduct the analyses, the data collection and the analyses separately? Is that it?

MR. DINEGAR: No, actually, for ones that have got multi buildings, unless an owner has just one building, it is reasonable to expect that the hand-held pump will be used in more than one building provided the buildings are located in close proximity.

MR. RUPP: All right. Now, if you use the air quality monitoring equipment that's available for individual chemicals as well as for chemical mixtures, explain to me, if you will, what the source is of the statement that "such measurements are of dubious value in determining whether or not a possible health threat is posed to occupant health and safety."

MR. DINEGAR: Well, for instance, you can test for CO2. What's a safe level of CO2? There is no science that's been provided that demonstrates that at 800 parts per million you've put your tenants at risk, that at 1000 parts per million you've put your tenants at a dubious health risk. What we've got is a problem to come up with the identification of the contaminants in the safe levels of exposure.

MR. RUPP: All right. Let's focus on CO2 for a moment, then. CO2 is produced by human respiration.


MR. RUPP: All right. It's produced by other sources as well.

MR. DINEGAR: That's right.

MR. RUPP: All right. Have you reviewed or has anyone at BOMA reviewed or have you asked anyone to review on your behalf the available scientific literature, including the health effects literature, on CO2?


MR. RUPP: Have you reviewed or had anyone review the health effects literature on formaldehyde?


MR. RUPP: Would the same be true if I went through and took the time to go through another 20 or 30 chemicals?

MR. DINEGAR: That's right.

MR. RUPP: Under the section entitled HVAC System --

MR. DINEGAR: In Definitions?

MR. RUPP: Yes. I'm still in the definitions section of this statement. And this is on the first page of that portion of the statement. I find the following sentence: "The components of HVAC systems are not the source of the vast majority of indoor air quality problems." Do you see that sentence? It's the first sentence of the section.


MR. RUPP: What's BOMA's basis for that statement?

MR. DINEGAR: I believe we had that go round before. We mentioned Legionnaire's disease as the one source of indoor air quality problems that we could identify. We also mentioned that -- yesterday someone was testifying or a submission of testimony was given that a fungus or a mold caused a problem that required their lung to be removed. Other than that, I told you that I was not aware of anything dealing with HVAC system components that would label them as the source for any of the indoor air quality problems.

MR. RUPP: Let's move on a few pages. As a matter of fact, let's go about seven pages beyond. There's no heading on this page, so I'll go to the preceding page. It is a discussion of paragraph C of OSHA's proposal and the page begins "Paragraph C of OSHA's proposal would require employees to establish a written IAQ compliance program." Do you see that page?


MR. RUPP: If you will flip over to the next page for me, please? At the top of the page, the point is made that "Building owners are an easy target for fingerpointing and some of the problems that have been identified range from the highest profile to the most mundane." Then the suggestion that indoor air contaminant sources are most often identified as something outside the purview of the building owner's responsibility. And then this sentence: "When these cases have been identified as something related to building operations, we have found," I take it BOMA? Does that refer to BOMA?

MR. RUPP: Yes, it does.

MR. DINEGAR: "We have found that the building operation itself is not representative of the traditional office setting." Has BOMA undertaken a systematic analysis of the condition of HVAC systems and other aspects of building system maintenance and operation in either BOMA owned or occupied buildings or non-BOMA buildings?

MR. DINEGAR: No. In fact, we go on to say that comprehensive data must be collected and scrutinized with an eye towards what types of buildings suffer from indoor air quality problems, how prevalent the problems are and what has been identified as the cause of the problem.

MR. RUPP: But, see, here's the cause of the problem. It would be one thing to tell OSHA that you, BOMA, don't have pertinent information and you don't believe they do either, or sufficient information.

MR. DINEGAR: That's right.

MR. RUPP: But you don't content yourself with that. You assure OSHA that to the extent anybody has found problems, they are atypical and you haven't looked, you have no basis for that statement whatsoever. To point to gaps in the data base seems to me to be entirely appropriate but I frankly am mystified --

MR. DINEGAR: I'm sorry. Are you making a statement or asking a question?

MR. RUPP: -- by the notion of going one step further and assuring them that therefore you're satisfied that these problems are either atypical, don't exist, will never be found, it's somebody else's issue. What's the basis for the second step?

MR. DINEGAR: In one sentence, regardless of how good a writer we are, when these cases have been identified as something related to building operations, we have found that the building operation itself is not representative of the traditional office setting, that doesn't provide OSHA any assurances, it doesn't provide OSHA any reason to believe we undertook reams and reams of data gathering. It says what we have found. We have expressed to you that we have 37 people on staff not undertaking national surveys to collect data. We are not in the business of trying to prove a negative.

MR. RUPP: How would one go about the general task of determining whether a particular situation is representative or unrepresentative of situations generally? How would one do that?


MR. RUPP: And one would probably want to do it in a pretty systematic way by going out and undertaking analyses and surveys and making sure you have a good random sample? Those kinds of things?

MR. DINEGAR: Not if the issue is very easy to assess by asking the experts who control millions and millions of square feet of real estate.

MR. RUPP: Okay. And so BOMA's approach to determining whether there is a problem in office buildings in the United States is to ask the people who own them?

MR. DINEGAR: No. We don't represent all the office buildings in the United States.

MR. RUPP: Ask the people who own BOMA office buildings.

MR. DINEGAR: Who run BOMA -- let me explain to you just briefly about owners of commercial real estate. It's not all Donald Trump's out there. There are union pension funds, there are insurance companies, there a lot of banks that have taken over. They hire management companies and those management companies work to provide a healthy and safe, effective workplace for the occupants and provide a return --

MR. RUPP: Each and every management company has this...

MR. DINEGAR: What's that?

MR. RUPP: Each and every management company works to the same level of conduct and same standards? You can assure of us that on the record?

MR. DINEGAR: Right at the same level of every lawyer in the United States, working at the same level.

MR. RUPP: No, better than that. Each one of those management companies operates to the same level of excellence with the same level of knowledge of indoor air contamination, its causes, possible remedial measures one might take to solve it, you can assure us that on the record?

MR. DINEGAR: No, they're not robots. They're individuals.

MR. RUPP: Okay. Let me ask you to turn a couple of pages further. Let me ask you about this sentence. Well, it's a general concept, so let me summarize it so...

MR. DINEGAR: Okay. But I'm not sure we ever got around to an answer for your first question so if you would like to go back and try again.

MR. RUPP: Well, if we have enough time, maybe we will go back to that issue.

MR. DINEGAR: Okay. What page are we on?

MR. RUPP: What I'm looking at -- and, again, it's not numbered. Well, here. I can identify it this way. The section in which I now find myself starts "Paragraph D of OSHA's proposal calls for employers to implement an indoor air quality compliance program." Do you see that section?


MR. RUPP: And, again, I'll ask you to flip a page. In this section, BOMA opposes any requirement by OSHA that building ventilation systems be required to be left on while cleaning personnel are in the building doing their operations. And as I understood your testimony today, and I'll try to summarize it as accurately as I can but you correct if I'm not, that BOMA believes that the pressure should be on those people or those companies that manufacture cleaning materials to produce materials having the lowest possible toxic potential and that if that were done, there simply would be no purpose served by the requirement that building ventilation systems be required to operate while building maintenance and cleaning personnel are performing their evening functions. Is that a fair characterization?

MR. DINEGAR: Mr. Rupp, if you have a pile of horse manure in the middle of your living room, you can open up all the doors and windows you want and you can keep all the records you want. You can extend the hours of operation all you want but until you remove that pile of horse manure from the middle of your living room, you're still going to have an indoor air quality problem.

MR. RUPP: Okay. Now, has BOMA investigated the feasibility of reformulating materials that are used by janitorial and other staff in the conduct of their operations within commercial buildings?

MR. DINEGAR: Not that I'm aware of. Not a systematic approach.

MR. RUPP: All right. Now, let's assume that that is all possible. That is, that really it's just that manufacturers just didn't think about the possibility of trying to produce less toxic cleaning materials and as soon as you tell them that they ought to do it they will jump to it and get it done. And so we have cleaning materials now available to janitorial personnel and others who perform like functions in buildings that have a relatively low, or at least a lower, toxic potential than those used now. But yet we send into commercial buildings all over this country in the evening people, armies of people, with vacuum cleaners stirring up dust. Is it BOMA's position that those people required to use vacuum cleaners on carpets all over this country doing janitorial operations should not be concerned about the respirable particulate burden in the air caused by the operation of vacuum cleaners, dusting operations, other functions of that sort?

MR. DINEGAR: We're concerned as the owners and managers of those pieces of real estate. We know that the people who hire those people are concerned and certainly would imagine that the people who are using those pieces of equipment are concerned.

MR. RUPP: Well, concern is one thing. I guess I'm concerned about getting out of here at a reasonable time today, as probably we all are. But making sure we do something about it may be another.

Are you concerned to the point that you would be prepared to support an initiative by OSHA that set a maximum respirable suspended particulate level for offices for the benefit of janitorial personnel during the times the building is not otherwise occupied but janitorial personnel are performing their functions and if the PEL is approached or exceeded for dust particles in the air that the ventilation system has to be turned on?

MR. DINEGAR: If OSHA or the EPA or NIOSH or any other Federal Government agency would like to take that research into account, would like to do the science, would like to develop a proof as to what is the safe level of particulates and then prescribe steps to be taken to reach that safe level, we'd be all for it.

MR. RUPP: But BOMA hasn't seen any evidence that elevated levels of respirable suspended particulates in the air have any health consequences?

MR. DINEGAR: Didn't say that either.

MR. RUPP: Have you seen such evidence?

MR. DINEGAR: I have not seen specific evidence. I would imagine that respirable particulates in the air stream are certainly creating a health hazard or a potential health hazard. I don't know at what levels they need to be contained and I don't know necessarily the best approach to get rid of them.

MR. RUPP: Okay. Let me ask you to turn to the section of your comments that begins with this sentence and it's, again, about four or five pages beyond where we were a few moments ago. The section begins with this opening, "Paragraph E of OSHA's proposal would require employers to take specific protective measures. Do you see that section?


MR. RUPP: All right. About the middle of the page, I find this sentence: "The preponderance of indoor air quality complaints logged in office buildings which permit smoking points directly to the incidence of exposure to environmental tobacco smoke as the reason for the complaint."


MR. RUPP: Now, I'd like you to illuminate all of us as to the basis of that suggestion.

MR. DINEGAR: Would you be surprised to find out that the number of indoor air quality complaints are virtually minimal in office buildings from BOMA member across the country?

MR. RUPP: So you're really not getting many complaints about anything?

MR. DINEGAR: We're not getting many complaints about indoor air quality across the country on a regular basis or even on an isolated basis. And yet when we do, oftentimes the factor of indoor air quality complaints points right to the incidence of exposure to environmental tobacco smoke. And I would call your attention to Appendix I.

MR. RUPP: The 12 cases that you've culled out of the --

MR. DINEGAR: That's right. The 12 cases.

MR. RUPP: I remember that material.

MR. DINEGAR: That was 50 million square feet with 37 complaints over three years.

MR. RUPP: Right. So a very low level of complaints.

MR. DINEGAR: That's when we asked our members. We expect and will undertake further study, further research surveys to provide to OSHA for a little bit less biased look at things.

MR. RUPP: You acknowledge that the sample that you have in the appendix could be a little bit on the biased side?

MR. DINEGAR: Well, you'd have to admit, if I'm asking building owners and building managers if they get indoor air quality complaints and if they get many and they list out this may that it would be suspect by people like yourself and so we're going to take an unbiased view.

MR. RUPP: Okay.

MR. DINEGAR: On the other hand, we could go back and look at their logs in their buildings and they're going to match up identical to this, I can assure you.

MR. RUPP: You're quite sure of that, are you?

MR. DINEGAR: I am quite sure of that.

MR. RUPP: What is the one indoor air quality constituent that one can see and smell?

MR. DINEGAR: You mean contaminant?

MR. RUPP: Yes.

MR. DINEGAR: Environmental tobacco smoke.

MR. RUPP: And can you see or smell carbon monoxide?

MR. DINEGAR: I don't know. I don't think so. I think it's colorless and odorless.

MR. RUPP: Can you see or smell carbon dioxide?

MR. DINEGAR: I don't think so.

MR. RUPP: Can you see formaldehyde in the air?

MR. DINEGAR: I don't know.

MR. RUPP: Can you see microbes in the air?

MR. DINEGAR: If you've got really good eyesight, I imagine you could.

MR. RUPP: You'd have to really peer very hard, I would think, probably.

MR. DINEGAR: I told you I wasn't a scientist.

MR. RUPP: How about fungi or bacteria? Little spores of fungi and bacteria?

MR. DINEGAR: Oh, sure. You can see those. Not all of them but you can see some pretty juicy ones.

MR. RUPP: I'm going to ask you to go on a few more pages. Actually, just one more page.

At the bottom of the next page, if you'll turn over one additional page, there's a statement about relating to microbial contamination. The suggestion is that regulation with respect to microbial growth is unnecessary. What is needed is increased attention to identifying the sources of such growth and issuing guidance. The requirement that states preventive action includes routine inspection for growth does not prevent the growth from occurring.

How does one identify whether one has a microbial problem in a building, unless you look for it, and then take steps if you find it, to eradicate it.

MR. DINEGAR: Well, if you look for it and you find it but you don't know what it is when you find it, that's one part of the problem. What are you looking for...

MR. RUPP: When you take a sample out of, let's say, a filthy drip tray and send it off to the laboratory, that there are not laboratories in this country, many in number, that cannot tell you, that can identify the various species of organism in that drip tray and give you a pretty good estimate of the count of the organisms in the particular material?

MR. DINEGAR: What they can't give us is what level is a safe exposure or an unsafe exposure, and what adverse health affects are associated with any exposure to microbial growth.

MR. RUPP: And you're quite certain...

MR. DINEGAR: Except for Legionnaires and a couple of others.

MR. RUPP: And Legionnaires will kill you.

MR. DINEGAR: Legionnaires could kill yo.

MR. RUPP: With that exception, it is BOMA's position that health sciences in this country have not progressed to the point that no one can give you any intelligent feedback on the health implications of any species of bacterial or fungal material with the exception of Legionnella.

MR. DINEGAR: No, I am sure there are quite capable scientists out there that can give very good information, and it's about time that people started to sit down and collect it and establish safe levels.

MR. RUPP: But your view is, nonetheless, even though that information may be available, building owners and operators should not be required to look at their buildings and see what levels of microbial growth are in the air, and to look for the sources of that growth within the building systems. Is that the position?

MR. DINEGAR: Required is the key word. You see, you set a requirement and you go around chasing your tail looking for these different things, and no one tells you what the safe level is, and no one tells you what level you're supposed to meet, and no one tells you what the safe level of exposure is, and yet you're held to a standard to research and find out these things, and then the tenants find out that oh, my God, I've got a microbial growth in the drip pan. Well, every building's probably got them, and they don't cause adverse health affects at certain levels. What are the levels and how do we prevent that from happening is why we are here today.

MR. RUPP: If OSHA were to, after having completed its review of the pertinent literature in a way that it has not done yet for ETS, and were to advise BOMA on the levels of various kinds of microbes that present, according to mainstream scientists measurable threats of adverse health consequences, would BOMA be prepared to accept a requirement that its members inspect periodically for colonies of such materials above certain levels?

MR. DINEGAR: Do you see the paragraph before the one you read?

MR. RUPP: Yes, I have read the entire statement.

MR. DINEGAR: BOMA urges OSHA to carefully define contaminants and consider establishing safe exposure levels before issuing regulations which are costly and overly burdensome.

Mr. Rupp, if they come out with a definition and a safe exposure level and then they issue the regulations based on that information, we wouldn't have any argument.

MR. RUPP: Would BOMA be satisfied if the PELs that are currently in effect... You know what a PEL is, right?

MR. DINEGAR: Yes, I do.

MR. RUPP: That the PELs currently in effect were applied vigorously in all buildings in this country whosever ox they may or may not gore...

MR. DINEGAR: I missed the question part of that. Can you repeat it?

MR. RUPP: Would BOMA be prepared to endorse vigorous enforcement of all current PELs? OSHA PELs.

MR. DINEGAR: If OSHA has set PELs based on sound science and their regulations, it's the law. It's not our position to ever encourage anybody to go against the law, but to comply with the full extent of the law. We don't go after the PELs we like and we don't like and kind of pick and choose. If it's the law, it's the law.

MR. RUPP: Again, I'm not going to be able to give you a page citation but I think you'll probably remember this sentence when I read it to you. It's from your August 12th submission.

MR. DINEGAR: Whereabouts is it in the document?

MR. RUPP: I think it's on page eight. It's in the section that's on smoking restrictions, so we've referred to it several times.

Let me read a couple of sentences to you, if I may.

"Since leases do not generally prohibit smoking, building management is hard pressed to impose restrictions on smoking tenants and still expect to receive a rent check. Even in those cases where building management is able to alter a building's smoking policy, management runs a very real risk that such tenants will choose to relocate to office space where smoking is still allowed."

Is that a major problem?

MR. DINEGAR: Is what a major problem?

MR. RUPP: Is it a major concern among the BOMA member companies that if individual building owners act unilaterally to ban smoking, that they will suffer a competitive disadvantage vis-a-vis other buildings and building owners who have chosen not to ban smoking?

MR. DINEGAR: Every competitive advantage is a concern to the person who's giving away that competitive advantage.

MR. RUPP: Because you want to make your space as attractive as you conceivably can?

MR. DINEGAR: Uh huh.



JUDGE VITTONE: Could you make that a yes or a no?


MR. RUPP: Thank you, Your Honor.

I'm going to ask you to assume the truth of something and then answer the question accordingly. Could you do that for me?


MR. RUPP: If I were to tell you, and you were to assume the truth of this, what significance would it have, if any, on BOMA's position in this proceeding so far as smoking is concerned? The assumption I'm going to ask you to make is that for the chemical constituents of ETS measured at environmental levels, that is with scientific equipment, every constituent that has been identified for which there is currently an OSHA PEL, which of course means that the chemical is of sufficient import to justify the development and imposition of the PEL, that the contribution of smoking to those levels of chemicals range between several hundred and several thousand times below the applicable PEL. Is that of any significance to BOMA at all?


MR. RUPP: That's because you have a view of what the EPA report says or doesn't say?

MR. DINEGAR: In terms of EPA classifying it as a Group A carcinogen, identifying it as a contaminant, until we identify what the sources of those other contaminants are, it's not to say we would invite environmental tobacco smoke inside, we would keep the pres on to find out how you identify the sources of those other contaminants, those other levels that you specified, and what the best way is to prevent them from being indoors, and how they can easily be removed, economically be removed, or what steps need to be taken to target them at the source.

MR. RUPP: What efforts does BOMA currently have underway to do that? Can you describe the initiatives that BOMA and its members companies have mounted to do precisely what you've described?

MR. DINEGAR: Yes. There is legislation pending on Capital Hill that gets voted on on Monday on the House side; it passed the senate side; and we have been the biggest and strongest supporters, alongside the American Lung Association and the Consumer Federation of America, to pass legislation to undertake research to develop the science to get the facts together before anybody proceeds with regulations.

MR. RUPP: I understand that you...

MR. DINEGAR: Just to continue on one other...

MR. RUPP: Sorry.

MR. DINEGAR: We've also been one of the main proponents behind the legislation to ban tobacco smoke use indoors in the workplace as one way to provide a healthy and safe environment indoors because it's been identified as a Group A carcinogen, it's a source of contamination and so therefore, we thought it prudent to have it removed from the work space.

MR. RUPP: I understand that BOMA has taken a strong position in support of the position of taxpayer funds to do more research on possible air quality contaminants, and I also understand that BOMA is prepared to have smoking banned, while I would point out, incidentally, that that doesn't cost BOMA any money or any BOMA member companies, but that's really not the question I asked. The question I asked is, what resources has BOMA or its member companies devoted to the task of itself trying to figure out what the quality of the air is in the buildings owned and operated by BOMA members, and what possible implications that may have for the health of building occupants?

MR. DINEGAR: Well, we learned a little bit of a lesson from the tobacco companies on this one, and we decided not to spin our wheels and waste our money doing science that wouldn't be well received, and we thought it would be more appropriate for an independent body like EPA or the federal government in other auspices -- NIOSH and the rest -- to undertake the study themselves so that it couldn't be challenged when the results came out in our favor or not in our favor, and then we would act accordingly.

MR. RUPP: I take it you'd agree with me if I'd say that sometimes industry takes an unfair knock in that respect. That is, some industry research can be quite good.

MR. DINEGAR: The industry research funded by the tobacco companies?

MR. RUPP: Not specifically. I'm asking you generically.

MR. DINEGAR: Generically, which industry are we talking about?

MR. RUPP: Does it go by industry in you view?

MR. DINEGAR: You mentioned "the" industry. I didn't know if it was...

MR. RUPP: I asked you a generic question.

MR. DINEGAR: Industry research oftentimes is very good.


MR. RUPP: That's all I have, Your Honor.

Thank you very much.

Thank you, Mr. Dinegar.


MR. TINGLE: Good afternoon, my name is Rex Tingle, and I'll be representing the AFL-CIO.

But before I get started with questions to Mr. Dinegar, Your Honor, I would like a little leeway in asking a couple of questions related to EPA initiatives that BOMA has participated fully in, in order to get on the record our full understanding of their testimony that they submitted. Would that be allowed?


MR. TINGLE: I have copies for yourself, the docket, and for Mr. Dinegar there so he can look at it.


MR. TINGLE: Also, Your Honor, I'd like to ask Mr. Dinegar to answer my yes/no questions with a yes or no answer. I also have questions that he can elaborate their testimony and their opinion on these questions. But for the purpose of expediting this hearing along, I would like the yes/no answers on the docket.

JUDGE VITTONE: Let me ask you a question first. The document you just passed out, Building Air Quality Alliance Participants Manual, June 1994, where is this from and what is it?

MR. TINGLE: It's an EPA initiative from the Office of Indoor Air, which has building owners across the country along with manufacturers, labor unions and other people who use businesses to participate in initiatives to develop good indoor air quality throughout the United States in a non-industrial setting.

MS. SHERMAN: Do you have a copy for us?

MR. TINGLE: You can have my copy.

JUDGE VITTONE: Mr. Dinegar, you're familiar with this?

MR. DINEGAR: I've seen it from the cover. I've never opened it.

MR. TINGLE: I find that quite hard to believe, Your Honor, because Mr. Dinegar has been participating in this Alliance since February 1994.

JUDGE VITTONE: Without getting into that, that was just... Okay. I'm not questioning him on this right now.

You want to use this to ask him some questions about their participation in the EPA proceeding in order...

MR. TINGLE: Right, because all this is relevant to the questions and the statements that they gave towards OSHA.

JUDGE VITTONE: In order to better understand their testimony in this proceeding.

MR. TINGLE: Correct.

JUDGE VITTONE: We're going to call this Exhibit No. 53.

(The document referred to was marked for identification as Exhibit No. 53.)

MR. DINEGAR: Your Honor, if I could comment?


MR. DINEGAR: I've got a copy of this. It's probably sitting on my desk some place. But since OSHA's proposal came out on indoor air quality, trust me when I tell you I haven't done a whole heck of a lot besides focus on the OSHA comments, and this is to June, and I've not even cracked the back on this thing.

JUDGE VITTONE: I understand that. Let's see what his questions are. If you can answer them, fine. If you can't answer them, then we'll deal with that.

MR. TINGLE: The questions dealing with the EPA two initiatives, all except two are yes/no questions.

Mr. Dinegar, do you represent BOMA and its 15,000 members on the indoor air quality issues?

MR. DINEGAR: Yes. I'm sorry, can you repeat? On the indoor air quality issues, or before the Alliance?

MR. TINGLE: On the indoor air quality issues in general. The Alliance, that book...

MR. DINEGAR: I'm one of the representatives.

MR. TINGLE: Who are the other representative, and why aren't they here today?

MR. DINEGAR: People on my staff, and some of them are.

MR. TINGLE: These questions can go to, I don't know if this is possible to do this, but if someone on his staff who, I'm sure, has looked at this information can answer these questions, and like I said before, they're yes/no questions, it would be much appreciated and would expedite this hearing along quite quickly.

The second question I have is, have you personally participated in the development of EPA's volunteer partnership program for building owners or their designees who agree to implement practices that will improve and maintain the quality of air inside those buildings?

MR. DINEGAR: Some of those meetings, yes.

MR. TINGLE: So that's a yes.

MR. DINEGAR: Mr. Tingle, you're asking questions that need qualification. So I apologize for not giving you a yes or no answer. They've held many meetings. I've been at as many of them as I could be, but as I told you before, I've been working pretty hard on the OSHA proposal.

MR. TINGLE: Okay. I can check the EPA, their information, and find out how many meetings he did miss, and I can submit that to the docket.

JUDGE VITTONE: Mr. Tingle, this is a legislative hearing. It's not a trial.

MR. TINGLE: Right.

JUDGE VITTONE: Let me just say if what you're attempting to do is question his credibility, I'm not sure that this is an appropriate forum.

MR. TINGLE: I'm not questioning his credibility whatsoever. The only thing I'm asking him is, did his association participate in the development of this EPA volunteer program. That's all I'm asking. I'm not asking him about how much money he makes or anything else. I'm just asking him if they participated.

JUDGE VITTONE: Okay, but if there are questions that he believes need to be qualified, I will follow the same practice with him that I have allowed other witnesses, and I will allow them to explain their answer.

MR. TINGLE: Okay. Sorry about that.

JUDGE VITTONE: That's okay.

MR. TINGLE: On page one of EPA's statement of their June 13, 1994 draft participation manual, it states that "Studies have ranked IAQ as a top environmental threat to public health."

Do you agree with that statement?


MR. TINGLE: Are you promoting the building alliance to your members?

MR. DINEGAR: We've mentioned it to our members, but right now it's in draft form. It's nothing official.

MR. TINGLE: So that's a no.

MR. DINEGAR: No, we've been letting them know along the lines but there hasn't been any opportunity for them to sign up.

MR. TINGLE: Now you confuse me. The question I asked was, and I don't know how I can put it any simpler than are you promoting the building alliance to your members.

MR. DINEGAR: If you can briefly describe what you mean by promoting. Maybe that's where I'm hung up.

MR. TINGLE: Promoting. I don't have a Webster dictionary in front of me, but I assume promoting means that since you participated in this alliance at some degree -- I'm not saying how much a degree you have -- are you telling your members or asking your members or giving your members information on this alliance, saying that this is a good idea, bad idea, indifferent idea, whatever?

MR. DINEGAR: We're working with a group of people to help us pull together the details to respond to EPA as they come out with different proposals. We're not yet telling our members to sign up or not sign up because it's not an official program that's been rolled out, is my understanding. When it comes out in its final form, we expect to fully participate.

MR. TINGLE: Does that constitute promoting, or no?

MR. DINEGAR: Informing. Promoting...

MR. TINGLE: That's a no answer then, correct? That's what I asked, promoting. I didn't ask about informing. Are you promoting this...

MR. DINEGAR: We're letting our members know about the development of the alliance from EPA and we're working with the alliance to develop the alliance, and when it becomes a final formatted group, we're going to promote our members' involvement into the highest order.

MR. TINGLE: So that's yes.

MR. DINEGAR: A yes in the future, and presently, no.

MR. TINGLE: Currently EPA's office on indoor air is in the middle of a five building pilot for the building alliance...

MR. DINEGAR: Excuse me. Could I just note for the record, there isn't an EPA building air quality alliance in place? So it's difficult to promote it because it's not there.

MR. TINGLE: You and I both are aware that it's supposed to take place after these hearings are over.

MR. DINEGAR: That's why I said we're promoting it in the future, but there's nothing to promote now.

MR. TINGLE: I apologize for not clarifying future.

This is current, though. Currently EPA's indoor air division is in the middle of a five building pilot program. Are any of the BOMA member buildings involved in this pilot?

MR. DINEGAR: I'm not aware of the specific buildings, because that information wasn't shared by EPA, but I was told by the person at EPA, Mr. Axelrod, that at least one of our member buildings is incorporated in that study. I believe it's out in Denver.

MR. TINGLE: So that's yes.


MR. TINGLE: Have you or any of your membership had any involvement in the development or selections of this pilot program?

MR. DINEGAR: Not that I'm aware of.

MR. TINGLE: Thank you.

Since the first planning meeting back in February of 1994, BOMA has been involved in this program, and you just stated earlier that you were at certain...

MR. DINEGAR: As many as I could be.

MR. TINGLE: I understand the government schedule, I understand what you're going through.

Do you feel that this is going to be in the future an important initiative for BOMA members?

MR. DINEGAR: I think it will be one source of information for BOMA members, but no, I don't think it's going to be a very important initiative. And I've counseled EPA on just that matter.

MR. TINGLE: It seems to me the criteria to become a member of this alliance, future members of this alliance, is more demanding than the OSHA-proposed standard, and it even includes on page 37 of that document evaluation and compliance sections where representatives of alliances inspect to verify members, or assure members are following IAW rules.

One thing that I'm not quite sure of, if you're looking into a program such as this that is requiring a compliance component, why aren't you supporting the OSHA proposed standard?

MR. DINEGAR: I'm sorry. Is it your understanding that this is a regulation from the federal government that everyone has to comply with?

MR. TINGLE: No. You and I both know it's not that, so we can just skip that portion of it. But what I'm asking is, if this may become an incentive or a program for BOMA in the future, which also incorporates a compliance component in there that you have to comply to remain a member of this program, I'm kind of confused on why you're not supporting the OSHA-proposed standard.

MR. DINEGAR: The OSHA-proposed standard is for an $8.1 billion regulatory program. This is a voluntary program where you put a little certificate in your office building where it says, "You are now a building air quality alliance member because you've agreed to do X, Y, and Z."

Our counsel to Mr. Axelrod and the rest of the people at EPA on this program happened to be that for hanging a certificate in the middle of your lobby, saying you're a building air quality guide or a building air quality alliance member, you're not going to get a whole lot of people to submit this documentation to the federal government. What we need is information, research, and sound science.

MR. TINGLE: But what you said, which is a very important part of the statement you just made, X, Y, and Z are the guts of this OSHA-proposed Rule Making. In order to maintain that "little certificate," as you called it, in your lobby, you have to follow certain criteria, which is documented not only in this alliance program, but also in the EPA Building Air Quality Manual that you had a part in and helped develop.


MR. TINGLE: So my question is, I'm kind of still confused as to why you're opposed to this. I mean, if you're going to be doing this on a voluntary basis anyway, wouldn't help your...

MR. DINEGAR: Well, my members will not be doing this on a voluntary basis. You can lead a horse to water, as they say, but you can't make them drink. We're going to promote it, we're going to get the information out, we're going to let people know what the benefits are associated with it. But right now, what people need is science, what people need is sound research to identify the sources of contaminants. Until we get those, we can hang all the certificates in our buildings that we want, but it doesn't ensure that we've got good indoor air quality.

MR. TINGLE: All right. Thank you for your answer. The next several questions, I would like to look at the EPA Building Air Quality Manual. On page three of your testimony, and the testimony I'm going by is what you submitted to the docket on August 12, and you have to excuse me if it's not in order, because the pages weren't numbered, so I just tried to number them myself.

On page three of your testimony, you talk about how your membership assisted in the development of the EPA Building Air Quality Manual, then you go on to state that you are proud to promoted an additional 10,000 copies, I assume some going to your members. Do you think this manual was a good idea in promoting good IAQ?

MR. DINEGAR: Yes, in fact, we think it was one of the best resources available at the time.

MR. TINGLE: Thank you. Has the material helped in the improvement of IAQ in your BOMA buildings that have participated or looked at this information?

MR. DINEGAR: I would hope so.

MR. TINGLE: Okay. On page three of your testimony, you discussed your work with EPA in the development and implementation of a comprehensive nationwide seminar series based on the EPA manual. Has this benefitted your membership?

MR. DINEGAR: Yes. And beyond the membership.

MR. TINGLE: Thank you. From your own personal experience, feedback information received from all the manuals that you promoted and obtained from the nationwide surveys that you helped develop, do you feel that there is a IAQ problem for your members, other than those presented by ETS?


MR. TINGLE: Thank you. Now this is directed to the OSHA-proposed standard. On page five, the source reduction section, you give three ways to prevent source reductions, is that correct? And I'm going by your August 12, so if it's off by the information that you presented today, I...

MR. DINEGAR: It's on page five. The changes in this were essentially typographical errors submitted to the docket.

MR. TINGLE: Okay. On page five you give those three prevention source reductions. On page six you state there is a lack of good scientific evidence surrounding these contamination sources. Can you explain to me how, on page five you can say you can eliminate these sources, then on page six say there's not enough scientific evidence to do that?

MR. DINEGAR: On page five we say that, "There are indoor air problems develop when a contaminant adversely affects an individual's health. Steps must be taken to prevent contaminants from entering the indoor environment, and may be accomplished in three ways." We go on to say that it's adequate filtration and management practices; prevention, reduction, or elimination of contaminants emitted from products and materials; and careful consideration and alteration of occupant activities that knowingly impede air circulation or generate microbial growth, etc.

MR. TINGLE: Okay, so you're saying those three ways will help reduce the source reduction. If that is occurring...

MR. DINEGAR: Those aren't necessarily source reduction. That's to prevent contaminants from entering indoor air environment. Source reduction is somewhat different. Source reduction really would be point two.

MR. TINGLE: Okay, but you cover source reduction.

MR. DINEGAR: Under point two.

MR. TINGLE: Okay, that's yes.

MR. DINEGAR: Under point two, source reduction is covered. What was the end of the question, though?

MR. TINGLE: Well, the question is was that if you have three ways to reduce this contamination, and you're stating that there's not enough scientific evidence out there, how do you know what you're doing is the correct way to do it?

MR. DINEGAR: That's sort of the essence of the problem that we came to OSHA with. We're being told to do different things. We're being told, "Here's the guidance available," in this building air quality guide, whatever comes out of the Building Air Quality Alliance from groups like ASHRAE, etc., and no one can prove to us whether or not it reduces indoor air quality contaminants from emanating into the source or the pollutant pathways or if improves indoor air quality. We'd like to have the science done to find out what the sources of contaminants are and the best way to mitigate those sources.

MR. TINGLE: Well, the three areas that you touched based on for preventing reduction were only a couple areas that OSHA expert scientific witnesses have discussed over the last two weeks. I'm finding it very hard to understand that these people who are scientists who have done years and years of research, who have recommendations how to correct a problem, who admitted on record that there is a scientific link between indoor air quality and worker risk, how you can say that there's not enough evidence out there, not being a scientist.

MR. DINEGAR: I'm telling you, and we're telling OSHA that there is not ... we never said there was not enough scientific evidence out there that no one has sat down to pull together and set the levels of what the safe contaminants of formaldehyde, for instance, are or the different volatile organic compounds that off gas from carpets or paints or solvents or from copier machines or from laser printers or from the other sources of contaminants. We laid out pretty well in our testimony, both written and oral, this morning that there are three components of an indoor air quality problem. It has to do with the proper maintenance and operation of the system, it has to do with dealing effectively with tenants, and it has to do with attacking the problem at the source.

MR. TINGLE: I'm not sure of that in OSHA Rule Making, the only area that OSHA has to cover is showing that there is a significant risk, and with their expert testimony over the last two weeks, which hasn't been refuted by yourself or anyone else that I'm aware of, I'm talking about IAQ and not the ETS portion, that there is significant risk, there is significant scientific data, and these individuals have pulled together enough information to prove that there is a problem there.

MR. DINEGAR: When we asked OSHA to refrain from rulemaking on the indoor air quality provisions of their proposal before us today and include environmental tobacco smoke regulations, that pretty much spoke to the fact that we do not believe that there is a widespread indoor air quality epidemic in the nation's office buildings represented by BOMA members and we would ask that OSHA not commence with rulemaking up until the point that the sound science is developed, that the set levels are developed and the appropriate response actions are developed and issued as formal guidance from the Federal Government or as formal regulations.

MR. TINGLE: Okay. So basically what you're saying, and this is sort of a contradiction of what you said earlier in your testimony, was that BOMA is willing to provide a safe working environment for people who are in those areas, is that correct?


MR. TINGLE: Indoor air quality. To promote good indoor air quality. Is that correct?

MR. DINEGAR: You're going to have to repeat that, Mr. Tingle.

MR. TINGLE: Okay. What you stated earlier in your testimony was BOMA was willing to do whatever feasibly possible to promote good indoor air quality that would not cause a risk to worker health and safety. Is that correct?


MR. TINGLE: Okay. Now you're saying that OSHA should come up with quote-unquote, for lack of a better term, PELs for indoor air quality so that BOMA who represents 15 percent of the buildings in the United States can understand what criteria they're supposed to meet and what not to meet.

MR. DINEGAR: I don't personally care one way or the other and the BOMA members don't personally care one way or the other who does the research, who develops the science, who comes out with the official guidance. But we think that it should be done way before regulations are issued so that we have a sense as to what targets we're supposed to hit so that we can hit them but we're a little annoyed and we're somewhat flabbergasted by the fact that the line of questioning has to do with this not promoting good indoor air quality. We've been working pretty hard to provide for good indoor air quality based on the best available information, including the building air quality guide. But up until somebody starts setting targets that we can hit and basing it on sound science and not the way it was done under asbestos, yes, we're going to ask OSHA to refrain from coming up with rulemaking until the sound science and the development of good guidance is issued.

MR. TINGLE: Okay. So what are these people who are suffering, the victims that SEIU brought in, the couple who could not make it, that the flight attendants have brought in, these other individuals who are coming in that the unions and other members are bringing victims, what are these people supposed to do until this, in your words, sound scientific evidence is out there? What are they supposed to do? Are they supposed to still stay in these buildings that are making them ill? That's causing problems with their families? What are these people supposed to do?

MR. DINEGAR: No. And I won't speak for the airline industry whatsoever. But I will tell you that the people that you brought into the building yesterday and submitted testimony on were state government workers in the state of Michigan and the state of Maine and I would tell you pretty straightforwardly that you'd better start dealing with those buildings out there because they sound like dumps.

MR. TINGLE: All right. Thank you.

From your experience, do you feel that different employers within a building should have different levels of responsibility? An example, should OSHA require a tenant who has no control over her HVAC system to have building diagrams if the building owner already has them?

MR. DINEGAR: The tenant should not have to have that.

MR. TINGLE: Okay. Thank you.

On page 6 of your testimony, you discuss your membership survey. You state that your figures attest to different situations assumed by OSHA. Can you tell me how many of those 306 complaints are attributed to ETS?

MR. DINEGAR: On page -- where are you?

MR. TINGLE: Six. I'm going by your August 12th information.

MR. DINEGAR: What page is that?

MR. TINGLE: Page 9.

MR. DINEGAR: Thanks. Can you repeat that?

MR. TINGLE: Yes. Can you tell me how many of the 306 complaints are attributed to ETS as a source of the complaint?

MR. DINEGAR: I don't have that information available. That's not the part that's in the appendix, that's a different survey. But we can find out though I'm not sure that we asked that question.

MR. TINGLE: Okay. Of those 306 complaints, how many of those were remediated?

MR. DINEGAR: I would hope all of them but I couldn't tell you.

MR. TINGLE: Okay. Would it be possible to supply that information to the docket?


MR. TINGLE: Thank you.

MR. DINEGAR: If we've got it, it will be in the docket.

MR. TINGLE: All right. Since BOMA's ban on smoking in 1993, and I don't know what page this is and I apologize again because I'm going by old testimony.

MR. DINEGAR: You mean our resolution?

MR. TINGLE: Page 7. Yes. Have you received any IAQ complaints? Since you banned smoking, have you received any other IAQ complaints?

MR. DINEGAR: Since who banned smoking?

MR. TINGLE: You said your resolution 2 banned smoking and I assume most of your buildings have no smoking policies.

MR. DINEGAR: No. That's why we're in front of OSHA today. We are calling for the Federal Government to ban smoking in office buildings as one of the ways to improve indoor air quality. That was a resolution adopted by our board of governors to do just what it is I'm doing today.

MR. TINGLE: Okay. All right. Okay. Thank you.

On page 18 of your testimony, you were talking about a designated person and I have no idea where it is in your comments or actually your testimony. You state that a designated person is inappropriate and unnecessary and I'm not sure if you changed that or not because I haven't had a chance to look at your new testimony. Is that --

MR. DINEGAR: No, that's exactly what we say. Page 18.

MR. TINGLE: Okay. I'm on page 11 of the draft EPA Building Alliance Project on page 2, section 1, and on page 33, section 5, of the EPA Building Air Quality Manual. Both talk about selections of individuals to manage IAQ problems. Can you explain to me why you supported the building manual that EPA developed and not support this?

MR. DINEGAR: Well, these were both volunteer pieces and I told you I didn't crack the back on that one yet so I haven't gone through the specifics. This is recommended guidance issued by the Federal Government. If it's good enough for the Federal Government, it's good enough for us and we tried to issue that guidance as widespread as we could. In terms of a regulation that calls for that, I thought we laid out a couple of different reasons as to why we thought it was unnecessary and inappropriate to require employers, building owners or property management firms to authorize a designated person. And that's on page 18 of our testimony.

MR. TINGLE: Okay. You don't have to repeat it. That's fine. Okay. I've got a question for you. If this proposed standard was a voluntary program, would you participate?

MR. DINEGAR: Absolutely.

MR. TINGLE: Okay. So basically, the problem is that this isn't a voluntary program, it's going to be a government mandate.

MR. DINEGAR: By program, we're talking about the entire effort to develop a standard. We would certainly participate. Would we follow every word of the guidelines that were issued?


MR. DINEGAR: Probably not. Not -- because it is not based on sound science. Let's set the level at 20 CFM. So what? You're still going to have indoor air quality problems. Well, then let's set it at 30 CFM. Well, then, let's not follow it at that level because there's no proof it solves the indoor air quality problems. Let's come up with the facts, let's come up with the proof, let's identify the source of the contaminants.

MS. SHERMAN: Excuse me, Your Honor. I think that this questioning is getting a little bit repetitive. I think we've been over this ground before several times.

MR. TINGLE: I'm to my last question anyway.


MR. TINGLE: Finally, you stated that BOMA only makes up 15 percent of all the buildings that will be affected by this proposed standard if it goes through.

MR. DINEGAR: I would want to clarify that. The office building industry under the Department of Energy makes up 15 percent of all of the non-industrial work site commercial buildings. We represent half of the available commercial real estate office buildings in the United States, just about 6 billion square feet.

MR. TINGLE: Okay. So you represent 50 percent of all the buildings.

MR. DINEGAR: No. We represent about 7 percent of all of the buildings that are non-industrial, work site commercial buildings.

MR. TINGLE: All right. Okay. I've got that clarified. Seven percent of all the buildings of the buildings that are affected by this proposed standard would affect BOMA.


MR. TINGLE: Okay. Even if all your members are voluntarily participating in either the EPA initiatives, what's OSHA supposed to do with the other 93 percent of the buildings who probably aren't participating, if they don't come out with a proposed standard?

MR. DINEGAR: If they've got poor indoor air quality in their buildings, work needs to be done to identify what the causes of those contaminant sources are and how to best mitigate those problems and if steps aren't taken to eliminate those problems, those contaminants, on indoor air quality and putting people at risk, they should be shut down.

MR. TINGLE: And how do you propose they shut them down if there's no law saying to shut them down?

MR. DINEGAR: There's plenty of laws to shut down unhealthy work sites. There's plenty of laws at the local and the state and at the Federal Government level. If you're putting somebody at risk in an office building because of negligence, believe me, there are plenty of laws on the books to shut those buildings down. What we don't have is the sound science, what we don't have is the research that needs to be generated to identify what the sources of contaminants are so they can be attacked at the source.

MR. TINGLE: Thank you.

JUDGE VITTONE: Thank you, Mr. Tingle.

Have I gotten everybody in the audience?

American Federation of Teachers? Ms. Sanders? Is that right?

MS. ALEXANDER: Alexander.


MS. ALEXANDER: Good afternoon.

MR. DINEGAR: Good afternoon.

MS. ALEXANDER: I have a few questions that focus primarily on the survey that BOMA did of its membership. I was wondering how many survey instruments you distributed.

MR. DINEGAR: Which survey are you referring to?

MS. ALEXANDER: The one that is mentioned on page 9. So we're talking about more than one survey? The one in the appendix is a different survey?


MS. ALEXANDER: Okay. Well, let's start with the one on page 9. I was wondering how many surveys were distributed. Did you distribute it throughout the entire membership?

MR. DINEGAR: It wasn't based on a survey that we sent out for them to fill in the form, we asked them questions to respond to in terms of a meeting that we had and asked them to send in the responses based on how many indoor air complaints were logged over a period of three years and how many square feet they represent. And we weren't including thermal comfort complaints.

MS. ALEXANDER: All right. But I'm curious on how you distributed it. People came to a meeting --

MR. DINEGAR: There were 103 members of our task force. We had about 35 show up at a meeting in Washington back -- I believe it was May 20th and then we asked them and the people who were able to respond sent us back the responses with the number of square feet they represented and the number of indoor air quality complaints over three years.

MS. ALEXANDER: So this was a very select part of your membership. You didn't really survey very broadly.

MR. DINEGAR: No. It was about a handful of people. A handful of people who represent 43 million square feet.

MS. ALEXANDER: They represent 204 office buildings.


MS. ALEXANDER: So essentially this was a very self-select group, is that true?

MR. DINEGAR: By self-select, what do you mean?

MS. ALEXANDER: I mean, you didn't just send this out broadly to your 1500 members.

MR. DINEGAR: Well, we didn't hand pick the people who were on our task force and anybody who wanted to fly in to Washington for that meeting came at their own leisure and they represented 45 million square feet. We don't say that this says this is everything that everybody needs to know about indoor air quality. We're saying that we haven't seen an epidemic sweeping the nation on indoor air quality in office buildings.

MS. ALEXANDER: Okay. I have some questions on your survey instrument or your survey questions. How did you define complaint on your survey to these members?

MR. DINEGAR: It was really titled that in their tenant logs and the different complaint books that people keep in their office buildings and if it was indoor air related rather than thermal comfort, it was logged as indoor air complaint. Smoking or if it's noxious odor that people have or if they feel stuffy or watery eyes, whatever the complaint was, regarding indoor air quality if it could be identified.

MS. ALEXANDER: So did you specifically ask these 33 people if they did keep logs or some kind of records on complaints in your survey?

MR. DINEGAR: No, we asked them if they had them to please send in some information. Some were kind enough to send us some information to give us an idea of what's out there.

MS. ALEXANDER: Well, did you ask them specifically, though, if they did keep any kind of records on complaints?

MR. DINEGAR: Not at that meeting. I don't recall asking that question.

MS. ALEXANDER: So are you assuming that the people who did respond do keep some kinds of records?

MR. DINEGAR: The people who responded, I would imagine kept records to be able to come up with these types of figures. I mean, they weren't just making them up so I'm counting on the fact that they kept records.

MS. ALEXANDER: Okay. I wanted to ask you a few more questions. So how many surveys has BOMA done, then? You have this survey and then in the appendix you have a random sample?

MR. DINEGAR: That was conducted by our organization in Oakland/East Bay and that's behind Appendix No. 3, I believe.

MS. ALEXANDER: So this was done in Oakland California, in the East Bay? In California? This random survey? Three years of complaints in commercial buildings, a random sample?

MR. DINEGAR: Let me find it.

MS. ALEXANDER: And you have a compilation of complaints in commercial buildings received over three years?

MR. DINEGAR: I believe that's the one. That's Appendix 5. That's the one. Yes.

MS. ALEXANDER: Is this one --

MR. DINEGAR: And we'd be happy to submit a copy of --

MS. ALEXANDER: Are these two different surveys in the appendix or is this --

MR. DINEGAR: The three pages that are behind appendix tab number 5, actually the four pages, are all one survey.

MS. ALEXANDER: This is all one survey that was done --

MR. DINEGAR: Oakland/East Bay.

MS. ALEXANDER: Okay. In one city.

MR. DINEGAR: And I don't have the form that was used for the survey but I would be happy to provide that.

MS. ALEXANDER: So your affiliate did this survey, your national office did not.

MR. DINEGAR: No, not the national office. It's our local organization.

MS. ALEXANDER: I was curious, then, if we could just turn for a moment to that survey, and I know that since it's not yours you may not be able to answer this, I was curious at the incredible range of square footage in these buildings and also to your statement that you don't represent very small building owners, you know, the 4th and Main building that you referred to.

MR. DINEGAR: The vast majority of our members are owning buildings or managing buildings in excess of 40,000 square feet.

MS. ALEXANDER: But you do have some smaller building owners.

MR. DINEGAR: Yes, we do. Yes.

MS. ALEXANDER: Okay. Well, since this was done by an affiliate I want to then again return to your survey that you did to ask a few questions.


MS. ALEXANDER: The 33 -- I don't know if you refer to them as individuals or organizations or owners or managers.

MR. DINEGAR: They would be representatives of management companies or the engineers of those management companies.

MS. ALEXANDER: Do you know offhand how many of those were actually representing building owners where the people in the building were employed by the building owner?

MR. DINEGAR: I believe two of them were but I couldn't tell you for certain.

MS. ALEXANDER: So the vast majority of these people have tenants that they were working with.

MR. DINEGAR: I wouldn't say the vast majority of them because I couldn't tell you offhand how many people compiled that 43 million square feet. So if there were six people that made the response, then two wouldn't be the vast majority.

MS. ALEXANDER: Can you tell us offhand if you have any data on the age of the buildings?

MR. DINEGAR: No. We could certainly collect that data because --

MS. ALEXANDER: I think that would be very useful. So you don't know offhand if of these 204 buildings what ASHRAE or building code ventilation standards they --

MR. DINEGAR: No. In fact, if there are specific questions that you would like to have incorporated into the record, as I mentioned to OSHA, we're going to be doing a more comprehensive survey and identifying a number of other areas that we would like to do more numbers crunching.

MS. ALEXANDER: Well, I know that you're very skeptical about ASHRAE but I think it would be useful if you are going to do any future surveys about complaints or health problems if you could collect that data. The age of the building and what building code standards or ASHRAE standards the owner or management company is following.

MR. DINEGAR: Sure. And I know that OSHA has got a copy of the Commercial Buildings Characteristics of 1992 and it tells you the age of the different buildings, typically the chiller size that they've got in the buildings, whether they've got air conditioning or window units, or just natural ventilation. And it's a tremendous resource as well.

MS. ALEXANDER: I want to sort of stick with the whole issue of complaints and I'm really curious to know how BOMA advises its members on dealing with complaints with tenants or setting up any kind of complaint structure. Have you developed any sort of guidelines? Are you using the EPA?

MR. DINEGAR: We have been using this extensively. There's an entire section on dealing with the tenants that we had asked to be included.

MS. ALEXANDER: And have you gotten any feedback on how some of your members have incorporated that? How they communicate with tenants?

MR. DINEGAR: Section 3 of this guide we thought was one of the most important provisions in here and it's the one that we worked just about the hardest to get incorporated, effective communications, communicating to prevent indoor air quality problems, providing accurate information, clarifying responsibility. The basis of our point for that is that if you don't resolve or address an indoor air quality complaint on the first person you hear it from, then that word is going to spread quickly around the building and you will have a very sick building management program, not just a sick building.

MS. ALEXANDER: Okay. I have one more question, then. I'm confused about BOMA's position on whether they favor some sort of performance approach to this problem or an approach that established exposure limits for different sources and I would like you to clarify which approach you think would be most effective for your members.

MR. DINEGAR: I would be happy to. Our approach has been to push for the research to be done to establish the safe level, if there is a safe level, of contaminant exposure, to identify the sources of those contaminants, to issue guidelines or official information as to how to best mitigate those contaminants from developing into indoor air quality problems in the United States. And also, if it's appropriate, that proof can be found that ventilation standards that are certain levels of outside air being brought indoors do in fact improve indoor air quality, then set the level and give us the level and we'll meet it in buildings that we can meet it in. Structurally speaking, some buildings can't exceed 5 CFM without a major retrofit of their system. Beyond that, where different sources of contaminants have been identified, whether it's by EPA classifying it as a Group A carcinogen or otherwise, identify what the source of the contaminant is and then get rid of it.

MS. ALEXANDER: Yet you still are promoting a performance approach. You must find some value in recommending a more performance approach, doing maintenance, communicating with tenants.

MR. DINEGAR: Absolutely. A three-part program that we outlined in the beginning and in response to Mr. Tingle's question had to do with the proper maintenance and operation of the building system, dealing effectively with tenants so that if they are the persons that are bringing in contaminants into the workspace or unknowingly contributing to the degradation of indoor air quality, it can be attacked at the source so that we can educate them and have them take steps as well and the third is to identify what the sources of contaminants are other than those and to remove them.

MS. ALEXANDER: So you really believe that it's in the interests of your members to operate their maintenance systems to specs, within the specifications they were designed for, to check systems and controls, to look at the filters, change filters per manufacturers --

MR. DINEGAR: Professional building management dictates that you operate your system and you maintain your system professionally. Yes. There should be no degradation of outside air based on mechanical systems or the operation of those systems and careful steps should be taken to provide for good indoor air as one part of an indoor air quality approach but on an $8 billion proposal where it doesn't attack the other two parts of the problem, that's where we call it into question with OSHA.

MS. ALEXANDER: Well, I'm just trying to understand how --

JUDGE VITTONE: We have plowed this field so many times today.

MS. ALEXANDER: Well, I'm just wondering how much is being spent now as opposed to what would be required under the new standard.

MR. DINEGAR: I have no idea.

MS. ALEXANDER: And BOMA is not going to seek -- I would be interesting, then, in your next survey to ask what expenses or how much building owners and managers expend performing the routine maintenance that you recommend.

MR. DINEGAR: I guess I would clarify, we don't particularly care how much is being spent. We care how intelligently it's being spent. We want to spend it intelligently and we only want to spend it once.

MS. ALEXANDER: Well, sometimes you have to spend it as long as you maintain the building.

MR. DINEGAR: That's right. But if you spend it correctly the first time then you don't have to chase around as we did with asbestos.

MS. ALEXANDER: Thank you.

JUDGE VITTONE: I really think I've gotten everybody in the audience now.


MS. SHERMAN: I didn't hear what you said, Your Honor.


MS. SHERMAN: I didn't hear what you said.

JUDGE VITTONE: I said I think we've gotten everybody in the audience now. It doesn't make any difference. If they're not here, they're not going to ask any more questions.

Ms. Sherman, it's your turn.

MS. SHERMAN: Yes. I hope you'll bear with me. Many of the questions that I had have been asked, so I have been trying to go through my questions.

Mr. Dinegar, what is the average length of a commercial lease?

MR. DINEGAR: I don't have the specifics on that. They used to be in the range of seven years but in the real estate market in the past several years, that's gone down dramatically, so I can get you that information.

MS. SHERMAN: In your association, BOMA, what percentage of the members are owners?

MR. DINEGAR: I don't have a specific calculation on the owners. There are two different types of owners I would call to your attention. You've got the owners of the properties themselves and then you've got the owners of the management companies and we've got a mixture of both but typically commercial real estate right now, the high rise office buildings, aren't owned by individuals or the Oliver Carrs and the Charles Smiths as much as they're owned by pension funds and foreign investors.

MS. SHERMAN: Well, that was my next question. What percentage of your members would be considered managers as opposed to owners?

MR. DINEGAR: We can get you that information.

MS. SHERMAN: And then a slightly different question. What percentage of the building owners and managers does BOMA represent?

MR. DINEGAR: Okay. I can get you that, too.

MS. SHERMAN: In the course of your comments, I believe that you described a building as a Class A building. Could you explain very briefly what that means?

MR. DINEGAR: I'm going to explain this very briefly because if any of my members would find out what we classify as a Class A building -- it's a competitive term and it's open for interpretation. You won't get many building owners to tell you that somebody else's property is Class but a Class A is typically the high end of the market, brass and glass is usually the term associated with it but it's marble and it's wood and it's well kept and it's very expensive.

MS. SHERMAN: And do you also have a Class B categorization?

MR. DINEGAR: There is nothing official from BOMA International or other organizations that I'm aware of but, yes, there is typically used loosely a term Class B, Class C. It pretty much stops at Class C. I'm thinking Class D would be the slums.

MS. SHERMAN: Okay. So Class B, what briefly would that -- how would that differ from a Class A?

MR. DINEGAR: Somewhat older structures or that investments weren't made to keep the property up in terms of its look. In terms of the same polish at the level of a Class A building but that it's a fine office building without all of the glitz.

MS. SHERMAN: Would the Empire State Building be a Class A or a Class B?

MR. DINEGAR: BOMA New York's office is in the Empire State Building. Could you pick another one?


MR. DINEGAR: I understand that the Empire State Building is very soon to become a Class A building because they're going to invest a great deal of money in a renovation project.

MS. SHERMAN: Okay. How about Class C? How would you describe that as opposed to Class B and Class A?

MR. DINEGAR: Class C is more than likely a building that's in need of a bit of repair but is still functioning. I wouldn't say necessarily comfortably. It's not necessarily the prettiest building but it's in many markets what's available. That's typically the older buildings. Operable windows as opposed to air conditioning. Different amenities aren't as prevalent as they would be in a Class A building or the higher end of Class B.

MS. SHERMAN: Now, do most of your members operate or own the Class A and B buildings as opposed to the C buildings?


MS. SHERMAN: Do your members operate any Class C buildings?


MS. SHERMAN: It is somewhat below Class C where we get into as what Mr. Rupp referred to as the dumps?

MR. DINEGAR: And typically those people don't join associations.

MS. SHERMAN: You stated in your comment that BOMA represents six billion square feet of commercial space of North America, what percentage of this space is in the United States?

MR. DINEGAR: About 90 percent of that.

MS. SHERMAN: And how much of this is government-owned space, if any?

MR. DINEGAR: That's not incorporated into our calculations of the six billion or so. I think the federal government runs about three billion square feet all by themselves.

MS. SHERMAN: I guess my question was, do you manage any buildings that have the government as tenants?

MR. DINEGAR: Yes. Government at the state, federal, and local levels.

MS. SHERMAN: Can you submit some sort of a breakdown to the record?

MR. DINEGAR: We can ask for that information. I'm just not sure if we're going to be able to pull it together. But we can work with you on exactly what information you're looking for. We'd be happy to submit that.

MS. SHERMAN: Now, does BOMA have any data as to the actual number of buildings that are in this 90 percent of six billion square feet that are owned or managed by its members? In other words, not the square footage, but the number of buildings that this represents?

MR. DINEGAR: I don't have that data, and I don't believe we've collected it, but we can get it by asking for the number of buildings, yes.

MS. SHERMAN: In the United States; we don't really care about Canada.

MR. DINEGAR: For this proceeding, but we care a great deal about them.

MS. SHERMAN: We care a great deal about our neighbors to the north. I'm a little bit confused. I think you said before in response to the teachers that some of the buildings were over 40,000 square feet, but other places you suggest they're a great deal larger. Would it fair to say that you represent primarily larger buildings?


MS. SHERMAN: For example, those of 150,000 square feet and more?

MR. DINEGAR: Primarily, yes. That would be a fair statement.

MS. SHERMAN: The Department of Energy had a 1992 survey and it indicated that about 30 million employees were in the office building category.


MS. SHERMAN: Now, you said that your association represents buildings with approximately 27 million employees?

MR. DINEGAR: If I could call your attention to page 16,004 of the proposed rule, there's a chart.

MS. SHERMAN: I'm trying to understand if your numbers might be soft, or if the Department of Energy's numbers might be soft.

MR. DINEGAR: No, but without going through the Department of Energy's book, those numbers were updated, but if we could just go off of what was in the Proposed Rule, I had it written out so that I could explain it. But if I went through the Department of Energy's book on the 1992 as opposed to the one used in the OSHA proposal, I'd get confused.

MS. SHERMAN: Okay. I guess I didn't understand your question just now.

MR. DINEGAR: If you could turn to page 16,004 of the Proposed Rule, and we went off the numbers of the earlier study from the Department of Energy as opposed to their updated one.


MR. DINEGAR: It says for under "office" for the principal building activity, there is 679,000 buildings. The percent of buildings is fifteen percent, and the total number of employees is 27 million. We said we represent approximately half of the commercial real estate in the United States, so using that figure, we said that we represent half of that 27 million housed in member buildings. That number may be higher.

MS. SHERMAN: So, you really don't keep data on the number of employees occupying your buildings?

MR. DINEGAR: No. There are rules of thumb that people use. Dr. Woods submitted testimony that says, "The average square footage per person is 500." That's well above the square footage per person that we see in the industry of office buildings. It's more in the range of 150 to 175 square feet per person. We would do the calculations based on the available square footage in commercial real estate.

MS. SHERMAN: I asked you before what percentage of your members were owners and what percentage of your members were operators. This is a slightly different question. What percentage of the buildings do you represent that are owner-occupied?

MR. DINEGAR: We can get you that information as well. There are different trade associations that represent facilities as well, and we work with them. There's an overlap of the member. But there would be a distinction that I want to get on the record to find out if you're looking for the buildings that are occupied by the employees of those companies versus, let's say, Chemical Bank, which owns a number of buildings. But there's one building in New York that's filled with all of their employees.

MS. SHERMAN: Well, do they then manage their own building, or do they hire outside people?

MR. DINEGAR: Some do, and some don't. Third-party fee management is a growing field.

MS. SHERMAN: For the buildings that are not owner occupied, could you provide quantitative information concerning the percentage of buildings and the floor space in those buildings owned by different types of investors, such as insurance companies, pension funds, real estate investment trusts? Do you have information broken down like that?

MR. DINEGAR: Broken down that way, no, we don't. I could try to find out where we can get it, but I don't think we would have the wherewithal to undertake that research from our organization.

MS. SHERMAN: Could BOMA provide any quantitative information about the profitability of the office building industry, like profit as a percentage of the total rental incomes for different sized buildings?

MR. DINEGAR: We couldn't as an organization, but we would know where to turn and would be able to pull that information together for you.

MS. SHERMAN: Okay. Is it also possible to pull that information together by geographic region?

MR. DINEGAR: I don't know how it's collected, so I couldn't tell you, but we would ask.

MS. SHERMAN: In a similar vein, can BOMA provide any information about the mortgage debt service cost per square foot for different sized building categories?

MR. DINEGAR: I don't know, I'm pretty doubtful on that one, but again, we'll look for it. There are a number of services that we can turn to, a number of organizations that we can turn to that do very detailed research, and I would hope that they've done that one.

MS. SHERMAN: Do you have any insight as to whether it would be different for buildings under different types of ownerships? Again, real estate investment trusts, investor-owned buildings, etc.?

MR. DINEGAR: The question was would it be different?

MS. SHERMAN: Yes. Would the information be substantially different, or would it vary with the type of ownership of the building?

MR. DINEGAR: And the information that we're looking for again would be profitability?

MS. SHERMAN: The mortgage debt service costs per square foot.

MR. DINEGAR: I couldn't even venture a guess.

MS. SHERMAN: With this category of mortgage debt service cost per square foot, do you have any idea whether this could be provided by geographical region?

MR. DINEGAR: If it's available, we'll get it for you.

MS. SHERMAN: Thank you. I'm a little bit confused about some statements that you made in your written statement. You had said that it was difficult to institute building-wide smoking restrictions and to impose smoking restrictions on tenants. I think that was on page seven. Later on, you indicated that you thought our proposal to require the establishments of smoking lounges to be feasible. Is there some sort of an inconsistency in these two positions?

MR. DINEGAR: In terms of your proposal went beyond smoking lounges. Are you talking about the entirety of the OSHA proposal as it relates to environmental tobacco smoke that we thought was feasible?

MS. SHERMAN: I believe you said it would be difficult to institute building-wide smoking restrictions.


MS. SHERMAN: Is that inconsistent with your support for our attempt to ...

MR. DINEGAR: No, it's actually the reason for our support for your attempt to ban smoking indoors. We can't do it ourselves. I'm talking now about the property manager, the building owner, that has multi-tenant in there collecting the rent check, or working to keep their tenants and occupants happy, but if the lease didn't say anything about a ban on smoking in the office when the lease was signed, it's going to be very difficult to negotiate that out of the lease so that everybody in the building is on the same sort of song sheet.

The fact of the matter is that people who have tried to institute smoking bans across the country in multi-tenant office buildings have faced a pretty good revolt from some of the people who do pay the rent, who rent out that space, and who want to keep smoking. Yet that air circulates throughout the building, contaminating other work areas.

MS. SHERMAN: You're on record as supporting the concept of separately vented smoking lounges. Have these been widely instituted in the buildings that you own or manage?

MR. DINEGAR: Not to my knowledge.

MS. SHERMAN: So you wouldn't have any data as to how many buildings have such smoking lounges?

MR. DINEGAR: We're going to collect some data in terms of the costs associated with building out an area that would comply with the OSHA proposal as drafted. We'd be happy to compile data if we can pull together on a representative basis as to how many people per square foot, how many buildings have got smoking lounges separately ventilated in compliance with the OSHA regulation proposal.

MS. SHERMAN: We would be very interested in that information. Do your members own or manage buildings that contain restaurants?


MS. SHERMAN: In its preamble to it's proposal, OSHA indicated that a three-percent productivity gain might be expected based on its indoor air quality provisions. Do you have any data on what type of productivity gains might be expected from its ETS proposal?

MR. DINEGAR: No, we have none. We're very interested to find out. We'd like to work with OSHA and ConSad, the research firm, to identify different opportunities to see where the data is on indoor air quality versus environmental tobacco smoke as it relates to work productivity.

MS. SHERMAN: Do you have any data, other than the NFPA report which you cited, on the number of fires, injuries, or fatalities caused by fires in buildings owned or managed by you related to smoking?

MR. DINEGAR: As an organization, BOMA undertook a fire survey, and we've done that for recent years. I believe it's done every two or three years. We'd be happy to submit the last two for the record.

MS. SHERMAN: I don't know if you have this data, but do you have any cost estimates of the property damage that was incurred?

MR. DINEGAR: I believe as part of the last fire survey, that incorporated the amount for the fire damage.

MS. SHERMAN: Do you have any data on the fire incidence in your buildings where smoking is allowed, as opposed to those buildings where it may be prohibited?


MS. SHERMAN: You don't think that this data would be available?

MR. DINEGAR: I don't think that's how it was collected, and it was in 1992 or 1993 that we collected it. But we'd be happy to go back and check the response forms. I don't believe that question was asked.

MS. SHERMAN: I believe there was some discussion earlier with the person from the SEIU about cleaning compounds.


MS. SHERMAN: My question was, do you make any attempt to monitor or control what cleaning compounds your building maintenance people use?

MR. DINEGAR: I imagine so, but I don't have any specific examples that come to mind.

MS. SHERMAN: Is there a way of finding out?

MR. DINEGAR: Oh, yes, and we'd be happy to provide that. More than anecdotedly, I would imagine it would be standard operating procedure for the building managers to know what's being used in their facilities as it relates to hazardous chemicals. I'd be happy to get you information that could be representative of BOMA members.

MS. SHERMAN: Moving on to the indoor air quality portions of the proposal, can you provide any information on the types of personnel and the amount of time that you believe would be required to develop a written indoor air quality compliance program?

MR. DINEGAR: The written indoor air quality compliance program as laid out in the proposal from OSHA?


MR. DINEGAR: Yes. We're prepared to do that.

MS. SHERMAN: Also, I assume that your estimate would be different depending on the size of the building, in that a very large building might have a much more complicated compliance plan.

MR. DINEGAR: At a certain point, I think the costs even out, so perhaps from a 10,000 square foot to a 20,000 square foot building. There would be significant differences from a 200,000 to a 500,000 square foot building, though, I wouldn't anticipate there'd be significant increases in cost.

MS. SHERMAN: And would you contemplate that there might be some differences in time required or the caliber of personnel required to develop a written compliance plan depending upon the type of HVAC system that were in the building?

MR. DINEGAR: Possibly. Yes.

MS. SHERMAN: To the extent that you have such information, could you provide it, for the record?

MR. DINEGAR: We don't have that information. We'll be pulling that information together, and it will be submitted as part of the record.

It's my understanding, and I guess I should clarify because it sounds like we've got to pull together a lot.

MS. SHERMAN: You have homework.

MR. DINEGAR: We have homework. The record stays open for 60 days or that's to be determined after the hearing is closed sometime in January, is that correct?

JUDGE VITTONE: It will stay open for a period of time after we finish testimony, yes.


MS. SHERMAN: The Department of Energy estimated that 46 percent of the buildings with HVAC systems received regular maintenance. I believe you said that you believed that this was less than your members were providing.

MR. DINEGAR: Far less.

MS. SHERMAN: What do you believe to be the percentage of your members, at least, who provide regular maintenance for their HVAC systems?

MR. DINEGAR: It would be my estimation, but it really is only an estimation, that it's in excess of 85 to 90 percent.

MS. SHERMAN: On what do you base this?

MR. DINEGAR: On dealing with the professionals that are members of the organization, that represent six billion square feet.

MS. SHERMAN: Is there any way that this can become more than just an opinion?

MR. DINEGAR: Oh, sure. We have a group called our National Advisory Council that's made up of 29 individuals that collectively own, manage, or control over three billion square feet. When I get that group together and I understand how their operations are set, it's very evident to me that right off the bat, it's more than 50 percent, knowing that the other professional level of the members, while not having the financial resources of some of those National Advisory Council members try to keep up, I'm comfortable telling you what that amount is. But I'd be happy to introduce you to any of those people, or have ConSad help us in pulling that data together. Or any other group that you would like to use.

MS. SHERMAN: I believe, if I understood the thrust of your testimony, that source control is a very major, if not the only, way to control indoor air quality.

MR. DINEGAR: It's a major. It is not the only. There are three parts of that program that I'm reiterating; that's operation and maintenance, source control, and dealing effectively with tenants.

MS. SHERMAN: Given the concentrations of indoor air pollution may be inversely proportional to ventilation rates, then on what would you base this statement?

MR. DINEGAR: Under the term that you used, "may be," that's the question that we've got. When that can be defined, as there is a definite relationship, we'd like to set the level and we'd like to adhere to that level. But we're right not in a position of being told it's five cubic feet per minute, 25 cubic feet per minute, 20 cubic feet per minute. We don't know where we're all going with this. We'd like to set a level and then meet it.

MS. SHERMAN: Do you have any suggestions for how OSHA should try to deal with deficiencies in building systems, such as the close proximity of the air intakes to pollutant sources, closed outdoor intakes, etc. in non-industrial buildings?

MR. DINEGAR: Sure. One of it would be, and it's not just at OSHA but it's the federal government as a whole, and one of it would be an education campaign, not just to building owners and managers, but to the general public to identify where the sources of contaminants are. If you've got a loading dock that's next to the air intake, that's a design flaw that needs to be corrected.

To the point that OSHA's got that authority already or that state agencies have that authority already, more information needs to get out for enforcement. But there are also practical considerations. If you've got an air intake vent next to the loading dock, or if you've got an air intake vent in downtown New York City that pulls in the fumes from the sidewalk, you need one heck of a building permit process to build out a sheet metal along the side of the building that goes into another person's air space.

MS. SHERMAN: So would it be fair that BOMA's position would be that as to the indoor air quality provisions at this point, you feel that OSHA should at most just engage in some sort of voluntary guideline program?

MR. DINEGAR: No, I believe that the Federal Government needs to undertake an extensive research and development program to identify what the sources of contaminants are, what the safe levels of those contaminants are, identify how widespread the issue of indoor air quality problems are, and then to identify where those problems can be attacked at the source, and attack them at the source.

Trust me when I tell you that we've got all the incentive in the world to provide good indoor air. We have to provide healthy and safe work environment. What we need are the facts. What we need is help.

MS. SHERMAN: I believe that there was some discussion earlier about this EPA Building Air Quality Alliance Program?


MS. SHERMAN: What benefits in your mind are associated with your membership going along with or participating in such a program?

MR. DINEGAR: We think it's one more source of information that reiterates what was done in the Building Air Quality Guide, the book that was put out several years ago by EPA and NIOSH. And that it develops a voluntary program whereby you can get a certificate to hang in building saying that you're a building air quality alliance partner. But it's been our recommendation to EPA, and continues to be our recommendation to EPA, that the money is much better spent on funding research and undertaking the science necessary, as opposed to setting up programs like this in this point in time.

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

JUDGE VITTONE: Thank you, Ms. Sherman. For the record, Exhibit Number 51, Mr. Dinegar's statement, will be received into the record. Exhibit Number 52 is that one-page newsletter from BOMA that has already been identified. That is in the record. And Exhibit Number 53 is the Building Air Quality Alliance Participants' Manual offered by Mr. Tingle in his examination. That will be received into the record.

(The documents referred to, having been previously marked

for identification as

Petitioner's Exhibits No. 51, 52, and 53, were received in


JUDGE VITTONE: Mr. Dinegar, thank you very much. I appreciate your time and cooperation. It's been a long day for you.

MR. DINEGAR: Thank you for the opportunity.

JUDGE VITTONE: Ten minutes, and then we go to Mr. Wallace.

JUDGE VITTONE: Our next witness is Mr. Wallace. Dr. Wallace, you had previously statement for the record, is that true?

DR. WALLACE: That's correct.

JUDGE VITTONE: And would you state your full name and who you represent.

DR. WALLACE: My name is Lance Wallace, and I represent the Environmental Protection Agency.

JUDGE VITTONE: And you're speaking here on behalf of the EPA?

DR. WALLACE: On behalf of EPA at the invitation of OSHA.

JUDGE VITTONE: Okay. You have some slides, right, that you're going to be using today?

DR. WALLACE: That's right.

JUDGE VITTONE: Your previous submitted statement will be identified as Exhibit 54, plus the slides. You'll provide those to the reporter, I guess.

(The document referred to was

marked for identification as

Petitioner's Exhibit No. 54.)

JUDGE VITTONE: If you're ready to begin, go ahead.

DR. WALLACE: Thank you. My name is Lance Wallace, and I'm an environmental scientist at the Environmental Protection Agency, where I've worked since 1977. I received my Ph.D. in physics from the City University of New York in 1974. My major research interests at EPA have been in attempting to develop ways to measure human exposure to environmental pollutants, particularly airborne pollutants. I've served as the project officer on a series of major field studies of human exposure, including the total exposure assessment methodology, or TEAM studies, and an EPA study of indoor air quality in ten buildings.

I was also involved in the design and monitoring and data analysis of EPA's headquarters building study that was carried out in conjunction with NIOSH several years ago. I've published one book on the TEAM study. It's an official EPA publication. I've also published about ten chapters in books on human exposure and indoor air quality, about 30 articles in peer-reviewed scientific journals.

In 1983 I received the EPA's Bronze Medal for my work in conceiving and implementing the TEAM studies. In 1990 I received the EPA's Science Achievement Award in air quality which is presented jointly by EPA and the Air and Waste Management Association in recognition of my services in establishing levels of human exposure to toxic air pollutants caused by common activities, consumer products, and building materials.

I'm a charter member of the International Academy of Indoor Air Sciences, a member of the American Association for the Advancement of Science, and a founding member of the International Society for Exposure Analysis. I've served as an associate editor on the official journal for that society, which is the Journal of Exposure Analysis and Environmental Epidemiology.

My testimony today is going to be limited to the work that was sponsored by the EPA, in particular to work that I, myself, have taken part in, either as project officer or in other capacities that are directly related to that research.

The major thrust of my testimony today is to point out and provide the data that supports our conclusion that indoor concentrations of most of the 50 or so chemicals that we've looked at in the past 17 years have provided, in many cases, the major contribution to our total human exposure to these chemicals. We've been able to determine in some cases, not all, the sources of that exposure. I'd like to share the major data that we've collected over these years.

The first slide gives us an explanation of what our program means by the term, "human exposure." The slide places exposure in the context of movement of a pollutant from a source on the left of Slide 1 through some medium, such as, in this case, indoor air to an exposure, which we define as the contact of a person and a pollutant.

If that contact crosses the lungs or the skin, it becomes a dose, which may or may not result in a health effect. The gray shaded area shows that we're focusing on one of the links in this chain, which is exposure. But it also shows that we do a little bit of work in dose; that is, we measure sometimes blood, urine, breath, mother's milk, to follow the chemical into the body. Sometimes, on the left-hand side, we look at the movement, particularly the movement of chemicals from outdoor air to indoor air, and we use models for that.

Slide 2 provides the close-up of the definition of exposure, and we see that the human being is our main focus here, and there is several roots of exposure--air, water, food, and through the lung, the gut, or the skin. Today, what we're mostly concerned with is the air route and a little bit through skin.

Slide 3 provides the goal for our program. It's very simple--to determine human exposure to environmental pollutants. In general, we try to do this by actual measurement of that exposure, and not by models.

Slide 4 provides some of the sub-objectives of the program. These are: (a) to determine sources of human exposure. To look at the body burden levels, body burden meaning the levels of the chemicals in the blood or the breath, which reflects what's in the blood. And finally, to see if we can determine some relationships between the exposure the resulting dose.

Slide 5 provides the name of the program that we've developed to carry out many of these studies. It's called the Total Exposure Assessment Methodology Studies, TEAM for short.

Slide 6 provides the four major TEAM studies that have taken place in the decade of the '80s.

The first study involved volatile organic compounds, which I'll call VOCs from now on, and these volatile organics include hundreds of different compounds from various classes but some of them are common solvents such tetrachloroethylene or trichlorethylene. There's aromatic compounds, petrochemical related compounds such as benzene and xylenes.

Our second major study was carbon monoxide carried out in two cites in 1982-'83.

Our third major study was pesticides, 32 different pesticides including termidicydes, insecticides and disinfectants.

And our fourth study recently concluded in California looked at particle exposures including metals and nicotine.

Slides 7 and 8 provide the locations of the team field studies and this is just -- we won't spend lots of time but the point here is to show that these studies have covered a number of areas around the country and a large number of households, in fact, we looked at more than 2000 people representing actually several million people in this country over these years.

Slide 9 is simply a map showing the locations of these TEAM studies. We began in Elizabeth-Bayonne, New Jersey with our VOC studies, our pesticide studies took place in Jacksonville or Springfield, the CO studies in Washington and Denver, more VOC studies in other areas such as Los Angeles, and finally a particle study in Riverside, California.

Slide 10 provides the cover of the book which I have in my hand which is the main EPA publication which is available from NTIS. This is reference 2 in my testimony. And that book contains many of the results that I'll spend a little time on in our discussion of the first TEAM VOC study.

Slide 11 provides the basic survey design of the TEAM study. This the survey designed for the TEAM VOC study but in fact it's very similar to the survey design of all of the TEAM studies. That is, the first bullet in which we select a probability sample of 350 persons to represent 130,000 New Jersey residents, there's a very important concept and it's a central part of the TEAM studies, one of the two basic concepts. And the point here is to try to achieve a sample that will be larger than the numbers that we deal with, it will represent in some fashion a much larger populations. So that when we get the results back in we can say with some known uncertainty that this is the exposures of the population that we're concerned with, not just the people that took part in the experiment.

So it's something like a Harris or Gallup poll in which we do a scientifically acceptable selection of participants.

The second bullet is the other major concept of all the TEAM studies which involves direct measurement of personal exposure generally using the monitor that we've had to develop for several years and test and use in the field ourselves because these monitors did not exist before the TEAM studies developed them.

In this particular case, we measured not only personal exposure but also at the same time outdoor air exposures in the backyards of the residences. And in this particular case, we chose 25 VOCs as our target pollutants based on production, toxicity and other matters in order to quantify exposure to each of those 25 VOCs.

As part of our efforts to look at what gets into the body, we also measured the same VOCs in exhaled breath of every one of our participants and when we measure breath, we're also measuring what comes out from the blood into the lungs.

And, finally, we have a diary that people carry around with them or else respond to a 24-hour recall questionnaire administered by a technician and those diaries allow us to identify activities that may be related to the major sources of exposure.

Slide 12 provides a list of some of the chemicals that we targeted in the TEAM study. In this particular set of chemicals, we're looking at what came out in human breath and it includes, for example, the first four chemicals, the chloroform, bromoform, et cetera are a class of chemicals known as trihalomethanes which occur in drinking water but they also come out of the drinking water and out of the water, a shower, for example, into the air. Other chemicals include other chlorinated solvents, some aliphatic compounds. This is octane and decane, we'll talk about them a little bit later. Aromatic compounds, this is benzene and styrene and other compounds.

Slide 13 is a picture of the monitor that was developed for this study which consists of a Tenax cartridge, a class cartridge containing Tenax. Tenax is an absorbent, sort of like activated charcoal, and it absorbs -- as air is pulled across the cartridge, it collects the organic chemicals that are in that air. There's a pump associated with it operated by a battery and the person can carry this cartridge with him for 12 hours and the pump will operate all that time and pull about 20 liters of air across the cartridge. At that point, the cartridge is analyzed using gas chromatography mass spectrometry or GCMS and each of the 25 target chemicals can be quantified.

The next slide shows the breath sampling device that was developed for this study. In this case, it was inside a van which was pulled up to the person's home. The person came to the van, breathed into the bags. He breathes from the cylinder at the bottom, which is pure air, and that pure air goes into one of the two bags here and he breathes from that bag and exhales into another bag until we have collected about 40 liters of air and then those 40 liters of air are pulled across the two Tenax cartridges on the side and those cartridges are then analyzed in precisely the same way as the air samples were.

The next slide gives an example of what we were able to discover by using breath samples. In this particular case we found that smokers have rather high exposures to benzene compared to non-smokers. We couldn't determine this from the use of the personal monitor because these high exposures are coming from mainstream smoke coming from the end of a cigarette that's placed in the mouth. So the personal monitor was not able to pick that up but the breath measurements did determine that smokers in fact have about six to ten times exposure to benzene as non-smokers in all of the locations where we carried this out, New Jersey, Los Angeles, Baltimore, Maryland, Antioch, California.

Slide 16 shows that homes with smokers also have benzene in the air at about 50 percent higher levels than homes without smokers. Our own study included about 500 homes, 300 of which were homes without smokers, 200 were homes with smokers. And a very similar study was carried out a couple of years later in the Federal Republic of Germany, West Germany then, and they used entirely different equipment, activated charcoal rather than Tenax, one-week averages instead of 12-hour averages, and found ultimately almost precisely the same difference, median difference, in homes with smokers and homes without. So that non-smokers in these homes were exposed to more benzene in the air in the home.

Slide 19 compares the indoor and outdoor concentrations of 11 of the most prevalent of our chemicals and what we're showing here is the weighted -- population weighted geometric mean. The dark bars are the personal exposures and the shaded bars are the simultaneous outdoor concentrations. And one can see that in every case all 11 chemicals, the indoor concentrations are greater, sometimes much greater, than the outdoor air samples.

These are the overnight air samples and the monitor was generally on the bedside table of the person while he slept for about eight hours of the 12-hour monitoring period. So it's basically an indoor air sample. We're comparing indoor air pretty much here to outdoor air. For example, the first chemical on the bottom is 1-1-1 trichloroethane and you see that the weighted geometric mean estimated for the entire Bayonne-Elizabeth population was almost 20. Micrograms per cubic meter was the outdoor -- the simultaneous outdoor level was about four.

This was looking at the means. If we go to slide 20 and look at the highest exposures, now, and compare them to the highest outdoor concentrations, and here what I've plotted is the ratio of the indoor to the outdoor concentrations at these highest levels, in general you can see that the ratios are running in the neighborhood of 10 to 20. That is, at the highest concentration, the ones we're most concerned about, now the indoors is 10 or 20 times higher than the outdoors, compared to the two to five times higher that it was for the mean or the geometric mean levels.

The next slide is 21 and this is a rural study in Devil's Lake, North Dakota and one can see on this that the outdoor values are indeed a good deal lower in a rural area, which you might expect.

But the indoor values, although they're lower, are not a great deal lower than they were in New Jersey. And, in fact, that was our experience through this study, that the indoor concentrations and personal exposures do not vary a whole lot from one place to another and that's in keeping with the finding that indoor sources are the main source of exposure and outdoor provides a relatively small portion of exposure.

The next slide, 22, looks at some of the compounds in more detail. These are three compounds that have the highest ratios that we could observe and all three of them have similar uses. They are all designed, actually, to maintain a high level over a long period of time in the concentration in the air. These are air fresheners. Limonine is the lemon scent. Alpha pinene is the pine scent. para-dichlorobenzene is a kind of institutional scent. It's actually what we find in many of our toilets in public buildings. It's used to mask the odors in those toilets.

And the next slide, 23, compares the indoor and outdoor ratios of these scents and fresheners, which you see is running between eight and 20 times outdoors with the other classes of compounds, which are generally a good deal less. They're still higher than outdoors but not as extremely high as these chemicals whose very use is built into the design of the products.

I direct your attention to carbon tetrachloride which is the last item on this slide and this is actually the exception that tends to prove the rule. Carbon tetrachloride has about the same levels indoors as outdoors, indicating that there probably aren't any indoor sources any more. And the reason for that is quite simple. The Consumer Products Safety Commission a number of years ago banned the use of carbon tetrachloride in consumer products. So what we have now is a situation in which the indoor exposure is simply reflecting the outdoor which is reflecting the kind of global concentration of carbon tetrachloride.

Slides 24 and 25 presents some of our efforts to determine sources of these exposures. In this particular case, it was a common household cleanser. We measured concentrations in the home before the cleanser was used, and that's the bars for the two different compounds, decane, the solid bar and undecane the dashed bar. Those levels, as you can see, are down around one or two micrograms per cubic meter during the first 12 hours before the cleanser is used.

After the cleanser is used, the levels jump up from one to 100 micrograms per cubic meter. And then over the next couple of days, they're coming down but even after two days they're still 10 times higher than what we started with.

Slide 25 shows a similar situation. This is a toilet deodorizer of almost pure para-dichlorobenzene. It's placed in the toilet following an initial period, an eight-hour averaging period, in which the concentrations both in the indoor air and in the breath of the two people who lived in that house are basically non-measurable, down around our detection limit of one microgram per cubic liter.

After the deodorizer is placed in the toilet, the indoor air concentration shoots up to reach ultimately about 500 micrograms per cubic meter. It's gone up by a factor of 500 and as we took breath samples every eight hours or so of the two people who lived there, you can see that the para-dichlorobenzene is entering their bodies and their blood.

Slide 26 summarizes a number of these findings from the first team study. For benzene, we find that the major source of exposure for smokers is active smoking and that it probably accounts for very close to 90 percent of their total for benzene. Sources of exposure for non-smokers and for smokers alike include driving, passive smoking and having an attached garage.

For para-dichlorobenzene which has two main uses as a registered pesticide, it's a moth repellant, but the other use is as toilet deodorizers and these are what we found through surveys and through questionnaires that this is a major source of exposure to para-dichlorobenzene for our populations.

Tetrachloroethylene, we found that the major source of exposure is not emissions from the dry cleaners but rather the residue on the clothes. And as you wear the clothes and as you store them in your home, the tetrachloroethylene is emitted from the clothes over a period of a couple of weeks and lifts the concentrations in the home by factors of about 100.

So we concluded from this first TEAM study in 1985 that indoor sources accounted for the bulk of the exposure to basically all of the VOCs, the prevalent VOCs that we looked at and we concluded that these major sources were consumer products such as air fresheners and cigarettes; personal activities such as smoking and driving; and building materials and cleansing materials, cleansers.

The second TEAM study, and I'll only spend a little time on it, was on carbon monoxide exposures. In this study, we looked at 712 persons in Washington, D.C. representing 1.2 million non-smoking residents. And 454 persons in Denver, Colorado which is a high altitude area where we thought that carbon monoxide would be emitted from automobile exhaust at somewhat different rates than at sea level. And in this particular case we followed the people around for two days instead of one so that's why we have about 900 24-hour profiles representing a quarter of a million persons.

Slide 29 provides the little activity diary that we gave to each person. Actually, it was much smaller than this and there were many sheets on it and for each activity the person would write what time he started it and it would assume to be ended when he started the next activity. And for each activity we asked a couple of questions, if you were indoors, was there an attached garage, was a gas stove in use. Because these were our thoughts as to what the major sources of exposure would be. And finally everywhere we asked them were there smokers present, yes or no.

Slide 30 provides the results of the CO study in terms of the indoor micro-environments of the highest levels and, as you might expect, public garages, parking garages, had the highest concentrations. Service stations, other repair shops, things to do with autos, had high concentrations, relatively high concentrations. Shopping malls which are often surrounded by parking lots and many cars were next. Offices about in the middle. And finally homes were a good deal lower, schools lower yet. Church is a very safe place to be.

Slide 31 gives the results in terms of our estimates of what the major sources of exposure to carbon monoxide were. In particular, we found that during the time that a gas stove is in operation in the home, the average increase in CO exposure was about 2.6 parts per million. During the time that people reported smokers nearby the average increase in CO was 1.6 parts per million. And if you had an attached garage, you were likely to have an increase of about 0.4 parts per million in the CO levels in your home.

We stratified on long distance commuters because we thought they'd be exposed at higher levels and we found that about 8 percent of these long distance commuters, more than 15 hours a week commuting, were above the EPA outdoor standard of 9 PPM.

The third major TEAM study was the non-occupational pesticide exposure study known as NOPES. This is the cover page of the final report.

The goal on slide 33 was to estimate exposures to 32 common pesticides for a statistically representative sample of the population in two urban areas.

Slide 34 provides the two cities in which these studies were carried out. We chose a southern city, Jacksonville, Florida, because of our belief that pesticides would be used extensively there. We chose a northern city, Springfield, Massachusetts, which according to surveys that we had in our possession indicated that there was relatively low use, perhaps one-tenth the use, of pesticides in the northern city.

We visited the Jacksonville, Florida site three times, trying to do 70 homes each time. Some of the homes we would pick out we would do twice or even three times so that's why the total is 176 rather than 210. And the same thing for the northern city, 50 homes for two seasons and a total of 85 different households. And we measured personal air, some dermal exposure using gloves and we also tried to determine whether diet was an important source by taking advantage of an FDA marketbasket survey and measuring for these same pesticides in the foods.

The results of that study, some of the results, showed that once again the indoor air concentrations were overwhelmingly the most important in terms of pesticide exposures compared to the outdoor air and some of these pesticides such as the first and the fourth on this list, chlordane and heptachlor, had actually been banned by EPA or at least had been withdrawn from use a couple of years before this survey but one sees that they are still very high, relatively, to the outdoors/indoors and the reasons for this are not completely clear but it's thought -- several follow-up studies indicate that there is a good likelihood that they're being tracked in on your shoes from the soil. Chlordane and heptachlor are usually injected around the foundation of the home to combat termites and this was very possibly the root of exposure.

In 1982, Congress provided funds for EPA to carry out an indoor air quality study. This was the first study that EPA carried out. This slide shows the front cover of the first of a two-volume set which presented the results of those studies.

Slide 37 shows that we looked at ten different buildings. We chose six old buildings and went to each of those once, making measurements over two to three days at four or five indoor sites and an outdoor site with 12-hour samples that we would get perhaps four to six different samples at each site, each of which was analyzed for about 30 different targets, volatile organics.

We also did four new buildings, that was the original design, to do four new ones. And in this case we thought that we should visit them right after they had been completed and then again a few months later and again a few months after that, the thought being that perhaps with the fresh paint and new carpet and glues and adhesives and so on that we might find relatively high levels of organics at first which would perhaps decline with time.

And finally to try to pin down the sources of these organics, we collected the building materials that were actually used in two of the new buildings and analyzed them for what chemicals were emitted by those building materials. This is the first step towards Mr. Dinegar is asking and that is to determine the sources, the chemicals that are coming out and the sources of those chemicals.

Slide 38 provides some of the compounds that we found and, once again, it simply indicates that there are many, many VOCs present, most of them at higher levels indoors and out and that they represent a number of different classes of compounds.

Slide 39 just completes that list of categories with a number of different chemicals and one can see that we found actually several hundred chemicals in these buildings at measurable levels.

Slide 40 provides the sum of the concentrations of all of those chemicals into one single sum and what we're doing here is comparing once again the indoor concentrations to the outdoor.

The buildings that we chose for this study were buildings where people spent time such as homes for the elderly, schools, office buildings and hospitals. This slide shows the results for two of the homes for the elderly and one can see that in both cases the organics indoors are perhaps three times higher than the organic compounds outdoors.

The school is an interesting case because this is one of the very few cases we found where the organic loading inside the building was not much higher, if at all, than the outdoors. And this indicates to us that it is possible to reduce the VOCs inside buildings to near outdoor levels.

I won't speculate on what they were doing right, but I think they were doing something right and it holds out the possibility of figuring out how to clean up buildings.

The next slide, 41, does the other three older buildings and, once again, you see in general a factor of two or three times higher concentrations indoors than out.

Slide 42 compares the -- this is a new building now and we're looking at three separate visits. The first visit in July immediately after the building was completed, the paint is fresh, the people haven't moved in yet, and one can see that the total organic concentration is about 1300 micrograms per cubic meter indoors in the building, outdoors is about 25 or so. So it's about 50 times higher in the new building.

Three months later, the concentration has fallen indoors to about 300 but that's still about ten times higher than the outdoor concentration and three months after that, six months after the building was complete, the concentration indoors now is around 200, the level outdoors is still 25 or 30, so it's still more, well above the factor of three or so that we're finding for the old buildings. So we estimated that it will take about a year for a new building to come down to the concentrations that we find in older buildings.

The next slide provides the same results for another new office building and, once again, the concentration indoors is 1100, the concentration outdoors is something like 20 or 30, again, at least 50 times higher indoors than out. Three months later, it comes down but, again, it's at least 10 times higher still after three months.

Slide 44, a new nursing home, once again when we go into the building when it's new, it's a ratio of about 300 to 20. In this case, the nursing home did get down to near outdoor levels again. In this particular case, I was there and the windows were wide open in this home with a good flow of air through it so it does indicate possibly in one case at least that -- actually extreme ventilation did help to bring down VOCs.

Slide 45 is a slightly different story. This is a VA hospital which originally we were going to go into it when it was new. Due to various things, it was not possible to go into the hospital until after it was a year old. But during that entire year it had been sitting empty. So we went into an unoccupied hospital but it was not new any more. And one can see actually that during that year, if it was like all the other new buildings we went to, it started out a lot higher but now it's come down to about three times outdoors. And a few months later when we went to that same hospital and it was partly occupied at this point, there was still quite a good ratio between indoor and outdoor VOCs, a factor of two.

But we decided to add one more trip to our plan and went back to that hospital when it was fully occupied and people had moved in and patients were there and all the janitorial supplies were there and now you see that the concentrations have begun to increase.

So in this particular case, I think it illustrates that people can bring in a number of sources of VOCs with them.

Slide 46 gives a little bit more detail on the particular compounds that were elevated. We found that there were eight of our 30 compounds that were elevated in every new building and these are three of the eight: decane, undecane and dodecane. They're very common constituents of paints and adhesives and our guess is that those are the major sources of these compounds. And, once again, we compare the first three bars here, the three visits to the office, and the fourth bar is the averaged outdoor concentration. And it's a logarithmic scale on the vertical axis. For decane, for example, the concentration during the first visit when the building was new was 382 micrograms per cubic meter. The concentration on the second visit is 38, a factor of 10 below. And the concentration on the third visit is 4.3, almost another factor of 10 drop over the several months between each visit. But it's still, as you see, a good deal higher than outdoors, indicating that there are still outdoor sources there.

The next slide, 47, does the same indication for three aromatic compounds, xylenes, ethylbenzene, also major constituents of paints and adhesives and similar behavior is shown here.

Slide 48 provides the sum of the aliphatic compounds, the decane, undecane, dodecane, and the aromatic compounds, the xylenes and ethylbenzene and it shows that for each of these two buildings they declined -- both groups of compounds declined at about the same rate and from this one can calculate a sort of half-life of about six weeks. It takes, in our estimate, around six weeks for the concentration to decline by a factor of two.

And if one starts with a concentration of 50 times outdoors, then it's going to take about a year to decline down to two or three times outdoors.

Slide 49 provides the methodology for our measurements of emissions from building materials. In this particular case, we would take a small swatch of carpet or a bit of paint on a surface from the actual materials that were used to construct the building at the same that we entered the building for analyzing the concentrations in that building. And these were all analyzed in triplicate. They're placed in a glass bell jar with a mixing fan and the concentration above the material is collected, the so-called head space, and pulled across this Tenax cartridge by a pump and then analyzed by GCMS again. Analyzed in triplicate, as I said, so what I'll present in a little bit is the average of the triplicate analyses.

The next two slides simply list 31 building materials that were collected from one of our buildings. And just to give you an idea, we collected things like carpet, linoleum tile, vinyl edge molding, fiberglass insulation.

Slide 51 continues that with some of the wet things such as adhesives and caulks and cements and paints.

And slide 52 provides some of the results. These are chromatograms, GCMS chromatograms, of the atmosphere above each of these little swatches of materials. And each peak on these chromatograms represents a different chemical. The height of the peak represents to some extent the amount of that chemical and one can see that there is considerable variation from one building material to another in terms of how many chemicals they put out and how much they put out. For example, the ceiling tile and the mineral board here at the bottom of this slide are only putting out a few chemicals at relatively low levels but the molding is putting out -- actually, it turns out to be hundreds of pinnacles at relatively high levels.

The next slide, 53, continues just showing that, again, there is a variation in the amounts. The plastic laminate here does not put out very many chemicals but the telephone cables and the particle board put out a lot.

Slide 54 provides some of the results from the wet materials. And, again, there is variation with the paints putting out just a few chemicals but at somewhat high levels and adhesives putting out a great number of chemicals.

Slide 55, I didn't mention it at the beginning of this study but we did also measure particles in all the buildings. This is measurements made in one of the homes for the elderly in a smoking lounge and the first bar shows measurements made at 5:00 in that lounge when there were no smokers present and you see that the level is around 20 micrograms per cubic meter, which is about the same as the mean concentration in the non-smoking areas measured at other times in that building.

About an hour later, after three smokers have entered the lounge, the concentration has risen from 20 to about 80 or 90 micrograms per cubic meter and in another half hour, when there were now nine smokers in the lounge, this is right after dinner, the concentrations have risen to about 200 to 300-some micrograms per cubic meter.

The next slide shows a similar study. In this case, though, the measurements are made over three consecutive 24-hour periods in the apartments of people in two homes for the elderly. In the first home for the elderly, we compared the levels in a smoking apartment and it averaged almost 90 micrograms per cubic meter over the 72 hours. In the non-smoker's room, on the other hand, it averaged about 10.

In the second home for the elderly, the smoking apartment averaged about 40 and, again, the non-smoking room or apartment about 10.

A few years ago we carried out -- slide 57 presents the report, one of the reports in a four-volume report that was produced in which we studied the indoor air quality of EPA headquarters buildings, three buildings in Washington, D.C.

Volume 1 provides the results of the employee survey. We sent around a questionnaire to all employees that had many, many questions on it about health symptoms and the perceived environmental and workspace variables.

Slide 58 provides some of the results from that questionnaire and we see that we have the most common health symptoms reported in the EPA headquarters buildings were stuffy nose, dry skin, headache, dry, itchy eyes, sore eyes, unusual fatigue, sleepiness, and so on.

These are divided by men and women who reported that often or always last year they experienced these symptoms.

And one can see a fairly large percentage, about 24 percent of men, maybe 36 percent of women, reported these symptoms, stuffy nose symptom, often or always last year with smaller but still substantial percentages of people reporting the symptoms happening commonly.

Slide 59 provides the responses to the question that we asked, two questions that we asked that were meant to get at the question of productivity. One was do you associate your symptoms with the workplace? And in all three buildings, about 40 to 60 percent of employees said, yes, they did associate some of their symptoms with the workplace. And secondly we asked do you find that these symptoms reduced your ability to work last year and people responded sometimes, often or always it reduced my ability to work last year. About 25 to 33 percent of people reported that in their opinion their productivity was reduced by these symptoms.

We asked people what do you think caused various symptoms, respiratory irritation in this slide 60, and the things that people pointed out were fresh paint, tobacco odors, carpet, various chemicals used in the office, copying machines and cleaning activities.

Slide 61 shows that renovations were reasonably common in these buildings, that when we asked people if they had new equipment in their office in the last year, over half said they did. About a third to a half said they had new furniture; 10 to 20 percent said they had either new carpet or rearranged walls or painted walls.

Slide 63, we asked people if they noticed odors sometimes, often or always in the past year and what they thought the odors were from and people mentioned in this case, Waterside Mall, which it had new carpet laid, had almost 20 percent of the people said that they had noticed odors. Crystal Mall, which did not have new carpet, only 5 percent. But tobacco smoke was mentioned by 10 or 15 percent of the people, even though a smoking policy was in effect which limited tobacco smoking to restrooms, some restrooms. Body odor -- actually, body odor and cosmetics, it was all combined here, were mentioned by 10 or 15 percent of the people and odors of fresh paint.

Allergies, we asked people if they had been diagnosed as having allergies and about 40 percent of the people said, yes, they had allergies to dust and to pollen and about 30 percent of the people said they had allergies to molds.

Slide 65 provides the cover of Volume 4. This is a reference that is included in my list of references and will be made available to the docket. This is the statistical analysis of the questions on the questionnaire that I just completed providing some examples of the responses.

Slide 66 provides the goal of this statistical analysis and that's to relate the health symptoms and the comfort and concerns to personal characteristics and the workplace environment.

Slide 67 provides the variables that were analyzed. We had questions asking about 32 different health symptoms but we carried out what's known as a principal components analysis and reduced those 32 symptoms into 12 groups of symptoms. For example, some of the groups included eyes, irritated eyes, itching eyes, tired eyes and so on. Those questions all grouped naturally together.

There were questions that with symptoms that involved the nose, stuffy nose, runny nose, sinus congestion. The throat, dry throat, sore throat, hoarseness, which I'm experiencing right now. And a number of other symptoms, including, for example, central nervous system symptoms such as depression, tension, difficulty concentrating and difficulty remembering.

So with each of those as dependent variables, we regressed on those variables all the independent variables that people had reported. That is, we asked them questions, many questions, about their workplace and many questions about their personal characteristics such as their allergies and so on. We wanted to include their spatial locations in case there was something going on with the air handling units and we also thought perhaps their comfort variables like hot, stuffy air or dry air or temperature might have something to do with their symptoms. So they were included in the regressions.

And the results are provided on the next slide. The major variables that we found associated with the health symptoms in these buildings was first of all dust. This is dust as reported by people. We weren't able to make measurements of the dust but we asked people do you consider your office dusty and the people who believed that their office was dusty were more likely to have health symptoms. In fact, 11 out of the 12 health factors were significantly related with a probability level of .01 to dust.

We asked questions of people -- we gave people a list of eight different fumes or odors, carpet odor, tobacco smoke odor and that sort of thing and said do you feel that you, yourself, are unusually sensitive to any of these fumes, expecting to get perhaps 3 to 5 percent of the people saying yes. Actually, 30 percent of the people said they felt they were unusually sensitive to one or more of the fumes that we listed. And those people who said that they were sensitive also reported health symptoms more often than people who said they were not so sensitive.

Odor of fresh paint and chemicals was a very powerful variable associated with eight out of the 12 health symptoms and hot, stuffy air and mold allergies were associated with seven of the 12 health symptoms, significantly associated.

And one might mention looking at this that there is some evidence here that renovations or other interruptions of people's normally activities could be responsible for some of the health symptoms that were reported here.

Slide 69 is the last study that I will try to summarize very briefly. This is our most recent study in Riverside, California. It's a study of particle exposure. It's called particle PTEAM.

Slide 70 shows the -- 69 was Volume 1 and slide 70 is Volume 3. It's a three-volume study. I'll just summarize a little bit of that study for what relevance it has for our coming together today.

Slide 71 is the approach. Once again, a probability sample of 175 people in this case who represented 139,000 non-smoking persons in Riverside, California. In this case, we measured personal exposure for two 12-hour periods and simultaneously indoor and outdoor concentrations. And we tried to compare the exposures with activity diaries to identify major sources of exposure.

Slide 72 is a little more detail. We looked at PM-10,l that's particulate matter 10. That is particles that are less than 10 microns in aerodynamic diameter. That is the size range of particles that EPA presently regulates outdoors.

We also measured fine particles called PM-2.5. These are particles that are less than 2.5 microns in diameter and these are generally thought to be anthropogenic in nature, that is, formed by combustion activities, for example. The larger, coarse particles might be windblown dust.

Again, we tried to identify the activities that might affect exposures and we tried to quantify the contributions to exposure by measuring a number of different parameters.

Slide 73 provides some of the parameters that we measured. This includes personal exposures to PM-10, as I mentioned, indoor and outdoor levels of PM-10 and PM-2.5. Nicotine, there was a backup filter placed behind the personal filter and behind the indoor filter treated with citric acid to collect the nicotine.

We did elemental analysis on all the filters to measure a suite of about 40 elements and measured air exchange rates for all homes and it was a central site that operated for the 48 days we were there to provide us with an indication of whether the central site could adequately estimate the ambient concentrations in the back yards.

Once again, there was a probability sample which in the first stage we selected little parts of Riverside which contained about a total of about 680 homes, which was our estimate of the number you would have to first approach in order to come out with our final target of 175. In the second stage, we screened those 680 homes with a questionnaire and found 632 that were eligible and 443 completed the screening for a 70 percent response rate.

In the last stage, we asked 257 persons from those 443 to take part in a study and 178 did agree and so we had another 69 percent response rate, so the total response rate is found by multiplying those two numbers together, which gives you about 49 percent. In other words, about half of all of the eligible people took part in the study.

Slide 77 simply presents very briefly the results in terms of the major sources of exposure. We found that there were two major sources of exposure indoors. One was passive smoking, one was cooking. However, there is a third major source which is actually larger than either of those two but we don't know what it is. And there are lots of guesses which I won't present today but there is a great need for more research into why the concentrations are higher than we can adequately attribute to the known sources.

I've put cleaning here which includes dusting and vacuuming with a question mark because occasionally that would come up significant and occasionally it would not.

Now, finally, a few comments about the nicotine findings. We asked people for each activity that they reported whether they were exposed to ETS or not. If they thought they were exposed, we asked them how many minutes they were exposed. So if we divided the people into two groups and we find that those who reported they were exposed to ETS did in fact have higher measured nicotine, that's the upper line here, with the nicotine measurements going from .1 to about 6 micrograms per cubic meter. And the people who were not exposed, who thought they were not exposed, 95 percent of them had non-measurable levels of nicotine, levels below our detection limit, which is about .15.

Looking at slide 79, we have a completely different question, and this question was, how many cigarettes were smoked in your residence today. The measurements that we made were from the indoor monitor now, the fixed indoor monitor that was in the residence, and once again if you divide the people into two groups, you find that the people who said there was smoking going on in their home, the indoor monitor in their home showed a considerably higher concentrations of nicotine, ranging between, in this case .2 to about seven micrograms per cubic meter. Whereas the people who reported there was no smoking going on in their home, no cigarette smoke, once again, 95 percent of those were below the detection limit.

So one tentative conclusion from this is that a simple question about whether you think you have been exposed or not, or asking you to estimate how many cigarettes were smoked in your home doe show promise for being able to adequately or reasonably estimate exposure to ETS.

That completes my testimony. Thank you.

JUDGE VITTONE: Thank you, Dr. Wallace.

Who has questions for Dr. Wallace? Mr. Rupp? The gentleman behind him, Ms. Ward.

The gentleman behind Mr. Rupp, how long? How many questions do you have? Do you have any idea?

VOICE: It's going to depend on Mr. Rupp. Probably no more than two or three minutes.

JUDGE VITTONE: Mr. Rupp, you carry a heavy burden.

How long do you think you might be?

MR. RUPP: I think I may go reasonably quickly, but it still may be 45 minutes, Your Honor.


MR. RUPP: Dr. Wallace, my name is John Rupp. Since you have your slides before you and I have a few questions about the slides, perhaps we should take care of that item of business first.

Would you turn to slide 55 for me, please?


MR. WALLACE: I have it.

MR. RUPP: This is the figure that shows respirable particulates in a smoking lounge of an elderly home. Did you attempt to characterize or collect any information as these results were being collected on the characteristics of the ventilation system serving the smoking lounge?

MR. WALLACE: We did. We did take air exchange measurements. However, all we get out of an air exchange measurement of the sort that we did is an average air exchange rate over 12 hours. So I cannot provide you with data regarding the ventilation rate during these short periods.

MR. RUPP: It could have been a variable air volume system, for example, or it could have been a continuous operations system, we just don't know.

MR. WALLACE: Actually, I don't happen to know that myself, but the report would tell you what kind of a system it was, and the report would also tell you what the average air exchange rate was. It turns out to be around one air change per hour in most of our buildings.

MR. RUPP: Did you notice whether there was any sort of air cleaning device in operation?

MR. WALLACE: I did not.

MR. RUPP: Do you recall the dimensions of the room, or did you record the dimensions of the room?

MR. WALLACE: It was a large room. Not as large as this. Perhaps a third the size of this room.

MR. RUPP: Fifteen by fifteen?

MR. WALLACE: In area perhaps a third, and of course it didn't have as high a ceiling either.

MR. RUPP: Would that information be available or was it not recorded?

MR. WALLACE: I'm not sure.

MR. RUPP: How about the number of cigarettes smoked over some period of time?

MR. WALLACE: In part of that study there was a listing of the number of cigarettes smoked. This was a slightly different area than the smoking lounge. It was a cafeteria.

MR. RUPP: But I'm really asking in conjunction with this slide.

MR. WALLACE: I'm not sure, but I can check the report.

MR. RUPP: Would you look at slide 56 for me, please?


MR. RUPP: Again, I wonder whether you recall today or whether you've recorded information on the characteristics of the ventilation system and the number of air changes that might have been occurring or were occurring at the time these measurements were taken.

MR. WALLACE: Yes. Again, the way we did the air exchange measurements was to dump a tracer gas into the air intakes and wait for awhile until it was equilibrated throughout the building. This is very difficult to do, as you probably know. What we get out is kind of an average air exchange rate, we hope, for the entire building.

These apartments had openable windows so that the air exchange rate that we developed would probably have no relevance whatsoever for the apartments. We just have no information on the air exchange rates.

MR. RUPP: Did you take seal measurements either in conjunction with the data you've reported in slide 55 or slide 56?

MR. WALLACE: We took CO measurements at fixed sites...

MR. RUPP: CO2 was what I'm interested in.

MR. WALLACE: On, CO2. I don't recall whether we took CO2 measurements at these sites.

MR. RUPP: What about the dimensions of the room or the rooms we're looking at in slide 56?

MR. WALLACE: They were small.

MR. RUPP: Any notion, nine by nine, ten by ten, something of that sort?

MR. WALLACE: Probably a bit larger than that, but pretty small.

MR. RUPP: Again, I'd be interested in knowing whether you recorded number of cigarettes smoked during the period the monitoring was in progress.

MR. WALLACE: I don't remember. I think we might have asked them to estimate the number of cigarettes they smoked during each of the periods. I could look up the results.

MR. RUPP: You didn't count number of cigarette butts?


MR. RUPP: So if you have that kind of information it would rely on the subjects' own recollection of how many cigarettes he or she smoked during the period?


MR. RUPP: May I ask you to look at slide 60, please?


MR. RUPP: This is one of the slides, as I recall, that relates to your study of Waterside Mall, well it says on the slide so we don't have to rely on my recollection. Waterside Mall, Crystal Mall and Fairchild.


MR. RUPP: I had thought that smoking was banned in these facilities at the time, but you say some smoking permitted in some restrooms in these buildings during the period that the study was going on?

MR. WALLACE: My memory is that there was a period during which EPA allowed smoking in the restrooms, and having read the responses of the people, there were complaints about tobacco smoke emanating from the restrooms to the nearby offices. But remember, we were asking the question over the past year, so it's possible that...

MR. RUPP: They were recalling a long past event or recalling what they thought was a long past event?

MR. WALLACE: It was within the year. It may be that at some point EPA... I know at some point EPA did ban all smoking, but I don't know exactly when it occurred.

MR. RUPP: Did you conduct any air quality monitoring in conjunction with these results, and I don't mean now to focus simply on tobacco, but for all of the, what you've listed as suspected causes of respiratory irritation, to permit us to do any correlation between reported self-diagnosed causes and actual levels in the ambient environment?

MR. WALLACE: We measured a number of different compounds during the week that the questionnaires were sent around. We measured in about 50 different locations, and actually another 50. We measured a smaller suite of compounds. These included CO2, temperature, humidity, VOCs, particles, and probably a few other things. Nicotine.

MR. RUPP: What was the mean CO2 that you were finding?

MR. WALLACE: It was quite low, relatively low. I don't recall the numbers, but certainly well below the 800 ppm level that we've been hearing about.

MR. RUPP: Did you also do background CO2?

MR. WALLACE: Outdoor CO2, yes.

MR. RUPP: You say you did measure nicotine?


MR. RUPP: What nicotine results were you getting?

MR. WALLACE: I don't remember. It would be in the report. We measured nicotine at, as I recall, 50 different sites.

MR. RUPP: I would have thought because smoking had been banned they would be below the limits of detection in...

MR. WALLACE: I would too, but...

MR. RUPP: The report will tell us...

MR. WALLACE: The report will tell us. I have a suspicion that there were a few that were above the limit of detection.

MR. RUPP: You did look at RSP?


MR. RUPP: Did you attempt to fractionate the UVPC component of the RSP?


MR. RUPP: What do we know about the ventilation characteristics of the areas where people were being asked to self diagnose?

MR. WALLACE: There was an engineer who during the week that we were there attempted to measure the fresh air flowing into these offices by measuring temperature outdoors, indoors, return duct, and so on. It's a very complicated building, the Waterside Mall particularly. There were more than 50 different air handling units. So these measurements were made, as I recall, in about 33 air handling units, most of those which we had gone into and actually measured and other pollutants. There is a graph in the report which provides the frequency distribution of the measured ventilation rates for all 50 of these offices.

MR. RUPP: Press reports at about this time, as I recall them, indicated that one of the problems at least that was suspected, apart from some of the source problems such as the carpeting that you've mentioned, was the extent of recirculation of air. Did you take a look at that issue, and do you have data relating to the extent of recirculation? I'd also be interested in knowing what conclusions you reached, if any, about air balance.

MR. WALLACE: Those results that I mentioned, since they provide the fresh air results, and in fact were quite high levels of fresh air that was coming in during the week that we monitored. Of course the building owner knew we were coming in during that week.

MR. RUPP: Did you attempt to create a profile of the characteristics of the air being brought in and the affect of filtering? Or was the filtering occurring at each of the air handling units?

MR. WALLACE: We would be able to do that since we took outdoor measurements of all the parameters and indoor measurements simultaneously. So we would be able to see if there was an affect of the filtering mechanism.

MR. RUPP: May I ask you, Dr. Wallace, to look at what I think, although the writing is a little indistinct, I think it is slide 76, which is titled "P Team Sample Selection Design and Results."

MR. WALLACE: No. 74.

MR. RUPP: I know this is a pilot survey, so this is the time one tries to get the kinks out of the methodology, but I was struck by the response rate. Is that response rate of concern to you?

MR. WALLACE: It's a typical response rate for all of the team studies, first of all. When one looks at response rates, one thinks of polls -- Harris or Gallup Polls -- in which you want to get 75 percent or better. But those polls, you recall, spend a few minutes asking people questions over the phone. Our studies require people to wear a monitor, to let people into their homes, technicians, set up equipment, and so on. Although once or twice in smaller studies we've actually reached 70 or even 80 percent response rates, in the large studies we typically lie between 40 and 55 percent response rates.

Answering your question, though, is it of concern? Yes. It's of concern because we don't know the characteristics of the people who don't respond, and we don't know in that case whether they might be different in some way from the people who did respond.

MR. RUPP: You anticipated my question, and that really was what I was interested in knowing.

On slide 77, which is entitled Major Sources of Exposure to Particles P Team Results. Again, I'd be interested in knowing whether you attempted to fractionate using UVPM-or flourescents, the fine particles.

MR. WALLACE: No, we did not use those. We do have two measurements for the fine particles -- PM-2.5 and below, and also for PM-10 -- and we can run the regression on both size fractions. In fact, smoking and cooking contributed to both size fractions, at least in our regressions.

MR. RUPP: My interest really relates to the 2.5 micron and below particles, and I'm wondering how one can tell what proportion of those particles may be or have been derived from tobacco smoking and what proportion may have been derived form other combustion sources, whether interior or exterior combustion.

MR. WALLACE: First of all, the study was done in Riverside, California in the fall, which fall there is more like summer in other places. The temperature was typically 75 outdoors in the day, 80 outdoors, 55 at night. There was virtually no use of combustion products for heating in Riverside.

MR. RUPP: But there was combustion for cooking.

MR. WALLACE: Well yes, but gas and electric which was the main two sources of cooking don't put out very many particles.

MR. RUPP: Doesn't that depend to a large extent on the nature of the cooking device being used, and perhaps even to some extent the nature of the foods being cooked?

MR. WALLACE: Yes, but we have a model, and indoor/outdoor mass balanced model in which, the things that go into the model are whether there was smoking occurring in the home and whether there was cooking occurring in the home, plus other things. But using a non-linear solution to that model, we can tease out the contributions of smoking and cooking.

For example we do the model not only on the particle mass, not only on the PM-10 mass an the PM-2.5 mass, but also on the 14 different elements associated with PM-10 and the 14 different element associated with PM-2.5 that we were able to measure. So running the model again and again on 30 different sets of results, what we get is a profile. A profile of cooking and a profile of smoking. A profile of metals produced by each of those sources. And we find for smoking, for example, that potassium chloride, I'm sorry I don't remember all of them. We had four or five metals that we can identify as smoking related metals, and we also have another four or five metals which turn out to be copper, aluminum and other things associated with cooking.

MR. RUPP: What happens when you add the complication presented by vehicle exhausts to that? Presumably some portion of the indoor air was composed of the residual from automobile exhaust.

MR. WALLACE: That's correct. What we have in the model besides smoking and cooking, we have other. That, well, if it's automobile exhaust coming from the outdoors, we also have outdoor particles in the model. So that the automobile exhaust coming from the outdoors and not from the attached garage should be contained in that term that we've identified as the outdoor concentration.

MR. RUPP: Has the model that you're describing been published?

MR. WALLACE: Yes, it's part of Volume 3 which has been reviewed technically by EPA and is presently undergoing policy review at EPA headquarters. The model is also published or presented in 1993 at the Helsinki Conference. The first author is Ozkaynak, and I can provide that for the docket, if you'd like.

MR. RUPP: I'd appreciate you doing so if you would be good enough.

Have you sought yet to validate the model, or is this part of the effort at validation?

MR. WALLACE: I'm really not quite clear on how one would validate the model. Perhaps using chamber studies. But no, the answer is we haven't done further research on validation of the model.

MR. RUPP: Let me ask you again about what information you collected and what we know today about the characteristics of the ventilation and filtration of the homes in Riverside that you studied. Has that information been recorded? What does it tend to show, if it was?

MR. WALLACE: Yes, it's in Volume 3. We made air exchange measurements for both the day and the night period in these homes, and it shows that the average air exchange was somewhere around .8, 0.8 air changes per hour. And it ranged up as high as two or three air changes per hour. Unfortunately, we have maybe 20 percent or our measurements were below the detection limits so all we know about those homes is they were above some number like two or three air changes per hour. We had a fair number that were quite high air exchange rates. It's, again, a very pleasant temperature, and a lot of people kept their windows open.

MR. RUPP: Did you attempt to relate the number of air changes that you were spotting with the places where the rooms, where the results were being taken? That is, one can have the windows open in the bedroom, and if one takes readings in the living room and the kitchen, the number of air changes occurring in the bedroom may not be all that pertinent.

MR. WALLACE: That's right. We chose to do only a whole house air exchange measurement, so the monitor typically was in the living room and the air exchange was measured basically for the entire house.

MR. RUPP: Wouldn't that essentially measure the air exchanges that were occurring in the living room where the equipment was located? It wouldn't necessarily tell you the number of air changes that were occurring in an upstairs bedroom, for example, would it?

MR. WALLACE: Well, yeah, it provides some kind of an average. The upstairs bedroom would come into it. We had our collector tubes in several locations. But we averaged those results to give a single average air exchange number for the house, and it doesn't tell you specifically for the room where the monitor was or the upstairs bedroom what the air exchange was in those two rooms. It just gives, as I say, an average over the whole house.

MR. RUPP: In any event, the details of your analysis are in the publication?

MR. WALLACE: They're in Volume 3 which is, hopefully, shortly available.

MR. RUPP: One last question about your slides before I go on to some more general questions. May I ask you to look at slide 79 please?


MR. RUPP: What does this slide tell us, or these results tell us, if anything, about the likely reliability, the extent of the reliability, not of day after recall,l which I take it this was?


MR. RUPP: But recall that attempts to reach back a week or two weeks or 20 years or 30 years.

MR. WALLACE: The answer is obviously clear, this slide doesn't tell you anything about anything beyond what it tells you about which is 24 hour recall.

MR. RUPP: A few general questions, and again, I'll try to go as rapidly as I can.

Do I understand correctly, all of the team studies on VOCs and particulates were conducted in homes?

MR. WALLACE: They were conducted using personal samplers and our people went to work, some of them went to work.

MR. RUPP: So some of the results may have been affected by exposure in the workplace?

MR. WALLACE: That's correct.

MR. RUPP: Did you attempt to apportion the amount of exposure that may have occurred in the workplace or in social settings or in homes, or was the effort, instead, to take full, total exposure? It was a total exposure assessment.

MR. WALLACE: It's total exposure, but we did attempt to apportion it. Table 35 in my book provides a list of 32 different variables that we found to be associated with VOC exposures, and the first item on the list which is in order of the total number of correlations that we found, significant correlations, is employed. Employed people were exposed, well, there were 11 chemicals, three trips in New Jersey; 16 chemicals and three trips in California. So a whole lot of possible relationships. We found, in fact, 76 of 243 relationships were with people who were employed, and that was the single highest variable associated with increased exposures to VOCs.

MR. RUPP: Did you find any site in the course of the team studies on VOCs or particulates where the VOC... Well, let's focus on the VOC exposure. Where the VOC exposure was greater than the OSHA PEL for any VOC compound?

MR. WALLACE: There was one person, a cabinetmaker, whose exposure may have approached or exceeded the PEL for the venlodene chloride.

MR. RUPP: Which presumably was from the material he was using to strip the finish?

MR. WALLACE: Yes. Cutting oils or something.

MR. RUPP: Do you recall what the PEL is for benzene? My recollection is it's one ppm.

MR. WALLACE: That's mine, too.

MR. RUPP: What was the mean benzene concentration that you found in the team studies? Total exposure if you have it, and then...

MR. WALLACE: It was five ppb.

MR. RUPP: Five parts per billion?


MR. RUPP: What about the occupational component? Do you have that?

DR. WALLACE: No, we can't get that out of the material because we have a 12-hour average which includes time spent in the car and so on, so it's not really quite possible to get that.

We do have the occupations of the people and that's how, for example, we were able to see that the cabinetmaker had the highest exposure to certain chemicals.

MR. RUPP: Right. Now, my understanding, and let's put the cabinetmaker to one side for a moment, my understanding always had been that motor vehicles are the major source of benzene.

DR. WALLACE: That's a common misconception?

MR. RUPP: Yes?

DR. WALLACE: Yes. If you look at the atmosphere only, at the atmospheric emissions, that's correct. Eighty-five percent or so of the benzene that is measured in the atmosphere comes from automobiles. If you look at exposure, however, there are other sources that could be more important. For example, smoking is the obvious one for active smokers. They get much more from smoking than from outdoors.

MR. RUPP: Let me ask you to reach beyond your own study but include it as you're thinking about the answer to this question. Are you aware of any VOC study where the mean concentration of benzene in the workplace or in the home has been greater than approximately 1 percent of the OSHA PEL for benzene?


MR. RUPP: I take it you're familiar with the public building studies that have been conducted by Sheldon and co-workers because I think one of your slides was taken from the Sheldon study? Is that correct?

DR. WALLACE: Actually, the 10-building study for which I was the project officer, Linda Sheldon was the principal investigator.

MR. RUPP: Did Sheldon measure -- or I guess I should put this to you, I apologize. Did that study seek to measure differences in VOC levels in the presence of smoking and then without smoking?

DR. WALLACE: The 10-building study?

MR. RUPP: Yes.


MR. RUPP: Okay. Now, let me turn for a moment, then, to the TEAM particle studies. Have you measured particulate levels in any portion of that work that would permit us to estimate an upper bounds contribution of smoking other than through application of the model that you described in response to one of earlier questions?

DR. WALLACE: I'm going to have to ask you to repeat that one.

MR. RUPP: Yes. In any of the TEAM particle studies, did you utilize any analytical methodology that have been -- any of the analytic methodologies that have been developed that would permit us to estimate an upper bounds concentration or contribution to particle levels from smoking? And I have in mind in particular UVPM or fluorescents.


MR. RUPP: Well, other than through the model that we already have discussed.

DR. WALLACE: I was going to say that the model --

MR. RUPP: Right. Apart from the model.

DR. WALLACE: Apart from that, no. No measurements.

MR. RUPP: Okay. What have you estimated so far as the mean ETS derived RSP level in homes is concerned? Or have you measured that? Or attempted to estimate it?


MR. RUPP: I think I saw a publication a while back that referred to 20 or 30 micrograms per cubic meter?

DR. WALLACE: That's correct. That appears to be the numbers that are coming out in our study as they were in many previous studies.

MR. RUPP: Yes. It certainly is consistent with the results that have been reported, for example, by John Spangler at Harvard.

DR. WALLACE: Exactly right.

MR. RUPP: Have you attempted to estimate typical doses of ETS derived RSP based on concentration, respiration rates and retention ratios?


MR. RUPP: And do you know what the OSHA PEL for particulates is? My understanding is 5000 micrograms per cubic meter.

DR. WALLACE: Could well be.

MR. RUPP: Have you had an opportunity to review Dr. Larry Holcomb's 1993 report on indoor air quality and ETS published in Environmental International?



DR. WALLACE: I haven't seen that.

MR. RUPP: Now, you've stated, as I recall, that the carbon monoxide from ETS could elevate personal CO exposures. Do I recall that correctly?


MR. RUPP: A 1991 publication by EPA as well as the monograph, which I'm sure you have seen, published by Roger Jenkins and co-workers at Oak Ridge, have you seen that monograph?


MR. RUPP: Reported CO concentration where smoking was allowed exceeded CO concentrations where smoking was prohibited by no more than a maximum of 1.5 parts per million. Is that consistent with your results?

DR. WALLACE: Precisely. We found 1.6.

MR. RUPP: Okay.

DR. WALLACE: Well, we found an average of 1.6, not an upper limit.

MR. RUPP: Right. It ranged slightly around the 1.5, 1.6 range.


MR. RUPP: Do you recall, and it would probably be useful to get it on the record at this point if you do, what the OSHA PEL for carbon monoxide is?

DR. WALLACE: Is it 50?

MR. RUPP: My understanding is 50 PPM. Is that your recollection as well? Yes?

DR. WALLACE: Yes, it is.

MR. RUPP: I notice that you reported that in the PTEAM studies, the particle studies, that nicotine appeared to be a reasonable qualitative marker for exposure to ETS. Is that correct?


MR. RUPP: And I take it you mean by that that if nicotine above a certain level was found above either perhaps dietary derived sources of nicotine or nicotine that might have off gassed after having been absorbed because of prior smoking that that would be a reasonably good indicator that some exposure to ETS had occurred at some time. Is that fair?

DR. WALLACE: Well, I'm not quite -- if nicotine was observed, at our detection limit .15 in the air, then I fail to see how a dietary exposure would give you an airborne level of nicotine.

MR. RUPP: Yes, of course. Not if you're measuring in air.


MR. RUPP: How about re-emission after a prior absorption on the room surfaces, clothing?

DR. WALLACE: Yes. If it's re-emitting then that would indicate to me that there had been smoking.

MR. RUPP: But above a certain level, you would feel reasonably confident that you were spotting smoking as having occurred within some reasonably recent period of time.

DR. WALLACE: I still think that above any level -- any level above detection, airborne nicotine would indicate to me that smoking has occurred some time, whether it's re-emitted or whatever, it's occurred there some previous time. Because I don't know of any other source of airborne nicotine.

MR. RUPP: All right. Have you reviewed Dr. Delbert Eatough's 1993 paper on assessing exposure to ETS?

DR. WALLACE: I have read some of his papers. I don't know if I've read that one.

MR. RUPP: This is a paper that reviews some of the reasons why nicotine should not be relied upon at least without understanding the limitations of doing so as a quantitative marker of ETS exposure. Now, I understand that you have not done that are you familiar with that portion of that paper or of other discussions of the same topic?

DR. WALLACE: To some degree. Yes.

MR. RUPP: What are some of the complexities that one encounters in attempting to use nicotine as a quantitative marker of ETS exposure?

DR. WALLACE: Well, for one thing, it switches phases from particle to vapor, sometimes back again. It may not -- it may age faster or slower than other components of ETS. It may be re-emitted. Measurement is difficult.

MR. RUPP: At low levels?

DR. WALLACE: Particulates.

MR. RUPP: Yes. I would appreciate your commenting at least briefly, Dr. Wallace, on the relative strengths and weaknesses of area and personal monitoring for measuring exposures to substances like ETS. I notice that in a number of your studies you've tried to use personal monitors and I take it you also have spent a fair amount of time trying to develop personal monitors. Why have you done so? There are a lot of area monitors on the market and there have been for some time.

DR. WALLACE: Right. Well, I do believe that the personal monitor in general is the best estimate of personal exposure because it can accompany you. People move around. They drive cars, they go outside, so I would like to have a monitor that will move around with the person. On the other hand, area monitors have certain advantages. As you mentioned, there's a lot of them around, they don't have to be miniaturized, so they're -- it depends really on the --

MR. RUPP: Your objectives?


MR. RUPP: They're less intrusive, require less respondent cooperation?


MR. RUPP: Would you agree, though, that another one of the problems or limitations, at least a limitation that one has to be conscious of and attempt to compensate for is that the results from area monitors, even within a room, can be affected by the height at which it's placed, it's location within the room, the geometry of the room, the number and extensiveness of sinks of one sort or another, air currents and so forth?

DR. WALLACE: All the things you mentioned also are problems with personal monitors. The blocked body effect, you don't know whether what you're getting here is the same as what you get if you have it in the mouth or the nose. So those things that you've mentioned don't really differentiate for me the advantages and disadvantages.

MR. RUPP: There are certainly, though, limitations of area monitors, I take it.

DR. WALLACE: Well, the major one --

MR. RUPP: That is if I ask you to think, for example, Dr. Wallace, of this room alone and if you were sitting in one end of it and we put a personal monitor in the other end, that fact of spatial separation alone is going to affect what kind of readings we're getting for an activity like smoking, for example.

DR. WALLACE: If the objective is to measure my personal exposure, yes, I'd want a personal monitor. If the objective is to try to estimate indoor/outdoor concentrations, it's better to have a fixed monitor because I might go out of the room.

MR. RUPP: Okay. But if I'm trying to figure out what your exposure was when you were in the room, a personal monitor or an area monitor located perhaps right beside you is going to be far superior than one located far away.

DR. WALLACE: Yes. In general, I would agree with that.

MR. RUPP: Dr. Wallace, and I think I know the answer to this question but let me make sure that it's clear on the record. I take it that you have found in your studies that good ventilation will reduce home and workplace levels of VOC such as benzene regardless of source. That is, these chemicals are not discriminators in terms of the ease of their removal or difficulty of their removal by general ventilation or filtration, for that matter.

DR. WALLACE: I think there were a couple of things in that statement. I'm trying to think back to our results on air exchange. In the PTEAM study, we found that if the air exchange was increased, the particle level was increased, which is a little bit odd perhaps but --

MR. RUPP: If the air exchange was increased, the particle level was increased? It was being caught in the monitor?

DR. WALLACE: By the indoor monitor. That's correct. One reason for that being that levels outdoors in Riverside were sometimes very high and particles in general you expect normally to find somewhat lower levels indoors than outdoors because the particles decay on walls and floors rapidly. And so if you have no indoor sources, you expect that the indoor concentration might be 50, 60 percent for the outdoors. In that case, with no or few indoor sources you will find when you increase the air exchange rate, you're bringing this larger concentration in faster so you expect a higher level. And in our case, it turned out that over all the 178 homes, that's what happened.

MR. RUPP: I wonder if that was not a function, though, in part of the fact that natural ventilation was being used so extensively in the Riverside homes and you had dust and other materials bouncing around inside that was coming in through the windows.

DR. WALLACE: Well, we found another interesting thing in that study which was the penetration of the particles was not affected by the building.

MR. RUPP: In the particle TEAM study, what relationship did you find between particle and nicotine concentrations? Did you look at that issue? And I guess I would be most interested in -- although I'll take any information you can give me but I would be most interested in the relationship between nicotine, the ratio between nicotine and the fine particles, the particles 2.5 microns or smaller.

DR. WALLACE: We can easily do that. The data is all there. I don't remember if we looked at that ratio or not.

MR. RUPP: Can that be calculated from the published figures?

DR. WALLACE: If not, I'm sure it can be calculated from the published figures but I can calculate it.

MR. RUPP: Would you do that tonight and supply it for the record?


MR. RUPP: Supply it for the record over the next week or so?


MR. RUPP: That would be great. Thank you.

DR. WALLACE: I think I would need to get it reviewed by my laboratory before --

MR. RUPP: All right. Well, we'll unfortunately be here for a good long time. I hope not much longer tonight but we're coming back.

You indicate at one point in your statement that smokers tended to have between six and 10 times the concentration of benzene and styrene in your breath as non-smokers. Now, did you compare smokers and non-smokers in that respect?

DR. WALLACE: That was the comparison, six to 10 times, smokers to non-smokers. We had 300 non-smokers --

MR. RUPP: Yes. Of course. Okay. My question was a bit different than I've put it. Did you compare non-smokers who reported they had been exposed to ETS and non-smokers who had reported no exposure?

DR. WALLACE: We did run that comparison and my memory is we were unable to find a significant difference but I'll check on that.

MR. RUPP: Okay. If your recollection is not correct, perhaps again you could just provide a letter for the record.

In the particle TEAM study, did you find that people were exposed to any significant amount of the target analytes while sleeping? I think you reported that they were and I want to make sure that that is clear, if that's so.

DR. WALLACE: Well, the exposure, while there was -- yes. There was exposure but it went down. The daytime personal exposure exceeded the indoors by 50 or 60 percent. The nighttime personal exposure exceeded the indoors by only 10 percent and this is consistent with the idea that most of the personal exposure was occurring because of personal activities of some sort or another but there is still -- it's not a zero exposure when you sleep. No.

MR. RUPP: Right. There are still exposures that are occurring even though you may be not conscious of them.

DR. WALLACE: Yes. We assume that the indoor number -- the indoor number at night was something like 85 and in the daytime it was 95 so it's almost no difference in exposure while sleeping.

MR. RUPP: I want to refer now and we have referred to it periodically during the course of our discussion to the paper that you presented at Indoor Air '93 and the paper, of course, is "Sources and Factors Influencing Personal and Indoor Exposures to Particulates, Elements and Nicotine, Findings from the Particulate TEAM Pilot Study." And it's of course published in the proceedings of Indoor Air '90.


MR. RUPP: '93. Excuse me. That paper states, as I recall, and I have it here if you need to refresh your memory about it, and I quote, "The average percent contribution of fine particle mass were 10 percent from smoking, 68 percent from outdoor sources and 22 percent from unidentified sources." And when you were referring to fine particle mass, I take it you were referring to particles in the size range of 2.5 microns or less?


MR. RUPP: Do you have any data that you have collected since that time that would be inconsistent with that general ballpark set of estimates or measurements?

DR. WALLACE: The data that we have shows that if you take just those homes where smoking occurred, which is about 39 homes out of about 178, that smoking accounted for about 25 percent of both -- well, maybe 25 percent of the PM-10 and 30 percent of the PM-2.5 total indoors. If you take, on the other hand, all homes since the smoking homes are about one-quarter to one-fifth of the total, you find that the contribution was more like 5 percent of the total indoor in the average home in Riverside.

MR. RUPP: All right. And the 10 percent figure, then, would relate to what category of homes?

DR. WALLACE: Well, this was -- first of all, who was the first author on that? Me?

MR. RUPP: You were the last author but certainly you were one of the very important authors.

DR. WALLACE: I'm sure. was Ozkyank the first author?

MR. RUPP: Yes, he was.

DR. WALLACE: Okay. These data were preliminary and I would go and -- this is not a peer reviewed publication. I would go with the data that we present in Volume 3. It's the same data but it's calculated -- you know, we completed all the QA and so on, so I would treat those data as preliminary. I suspect that -- well, I don't know but I suspect that the 10 percent is a number that we wouldn't stand by now. It's either --

MR. RUPP: You think it may be slightly higher?

DR. WALLACE: Well, it's either the 5 percent referring to all homes or it's the 25 percent referring to just the smoking homes.

MR. RUPP: Right. And that is of the fine particle portion of the material.


MR. RUPP: I was particularly interested in the chart that appears on page 459 of the indoor air paper and let me hand it to you now.

I'm not all that far from the end, Your Honor.

Since you've reviewed the paper, I read the bar graph that --

MS. KAPLAN: Excuse me.

MR. RUPP: Yes?

MS. KAPLAN: Do you have a copy of that for the record?

MR. RUPP: Yes. Actually, it may be in the record but if it's not I will make sure that there is a copy left.

Here you've used -- or the principal author has used the designation SAM-10 and SAM-2.5 and I take it that really is the same thing we've been talking about, 10 microns and 2.5 microns or less?

DR. WALLACE: SAM just stands for stationary ambient monitor.

MR. RUPP: Right. the chart that I directed your attention to gives us a sense of average outdoor concentration of particle matter adjacent to both smoker and non-smoker homes?

DR. WALLACE: Well, it says indoor and outdoor but I'm looking at the chart and it says no smoker/smoker, so I --

MR. RUPP: In reading that chart, I'll give you my interpretation and I'd like you to confirm whether it's correct or incorrect. It appeared to me that the shaded bars represent average concentrations for homes with smokers and the unshaded bars represent homes without smokers. Does that seem right?

DR. WALLACE: I'm beginning to pick it up now. The SAM is outdoors and the SIM, stationary indoor monitor, is indoors.

MR. RUPP: Right.

DR. WALLACE: Yes. That's right.

MR. RUPP: Okay. My reading of those charts is correct?


MR. RUPP: Okay. Now, isn't it true that these graphs show higher average particle levels for both PM-10 and PM-2.5 in the outdoor air adjacent to where smokers live than where non-smokers live?

DR. WALLACE: Yes. For -- I'm trying to decide whether this is daytime, nighttime or 24 hours.

MR. RUPP: Well, we'll make sure that a copy of that is put in the record and so that will be available. That information will be available to anyone.


MR. RUPP: Wouldn't it be reasonable to assume that higher outdoor particle levels would lead to higher indoor particle levels in a smoker's home regardless of the contribution of ETS?

DR. WALLACE: That's correct. I would simply want to point out that in the calculations that we do we take that into account. That is, we have an outdoor concentration which is one term and we have the smoking contribution which is another term and other terms that don't affect us now.

MR. RUPP: But the aggregate data that you report that doesn't necessarily appear with that calculation could be misleading in that respect, though, could it not? Or misleading depending upon one's purpose in looking at the data, of course.

DR. WALLACE: I would say that if you just present the aggregate data without doing a source apportionate process or the model that I'm speaking of, that it could be misleading. Yes.

MR. RUPP: Okay. Now, did the PTEAM studies or any of the other TEAM study efforts collect data regarding socio-economic factors such as occupation and residence location with respect to polluting industries?

DR. WALLACE: Yes. As a matter of fact, all the VOC studies stratified on both those items.

MR. RUPP: How about the PTEAM studies? The particle studies.

DR. WALLACE: The particle TEAM study stratified on socio-economic considerations.

MR. RUPP: What aspect of socio-economic status?

DR. WALLACE: Well, we typically use a cutoff for the average income in a particular geographic area so we picked -- made certain that we picked some homes that were -- some areas that had an average income of less than that cutoff, whatever it was, $15,000 a year or something.

MR. RUPP: How about occupation?

DR. WALLACE: Occupation -- in the PTEAM?

MR. RUPP: Yes.

DR. WALLACE: In PTEAM, we stratified -- we over-sampled people who were employed because we suspected that maybe employment would be a risk.

MR. RUPP: I'm really looking for a little finer stratification than that. I understand you over-sampled for employed people but by type of occupation, that is, whether they were industrial workers, whether they were white collar workers, whether they worked at a desk or in front of an iron smelter or whatever. Were those data collected?

DR. WALLACE: In the TEAM studies for VOCs we did stratify because we had --

MR. RUPP: But not on particle?

DR. WALLACE: But not on particle.

MR. RUPP: Okay. That's what I needed.

What about the occupation of other family members in the residence, focusing now again on the PTEAM studies, and not whether they were or were not occupied, but type of occupation?

DR. WALLACE: We collected those data, but we did not stratify on that.

MR. RUPP: Okay. You're aware, I take it, that active smokers are likely to be industrial workers than nonsmokers?

DR. WALLACE: I'm aware that there's a socioeconomic trend towards higher smoking in the lower socioeconomic areas.

MR. RUPP: In the Team study that reported on the homes with smokers and benzene, was occupational information obtained either from the smoker or from other family members who lived in the same household? Again, I'm much less interested as to whether the person was employed or not than I am with information about type of occupation in which the people within the household were engaged.

DR. WALLACE: Yes. We had many questions on the questionnaire that asked things like, "Were you exposed to solvents?"

MR. RUPP: At work.

DR. WALLACE: At work. Yes.

MR. RUPP: Was that data or information reported in any of the publications?

DR. WALLACE: Yes. Again, Table 35 provides 32 different variables, about ten of which had to do with occupation: Printing shop, exposed to odorous chemicals, exposed to degreasers, hazardous job worker in home, etc.

MR. RUPP: Do you know what the disease endpoint is associated with benzene exposure?

DR. WALLACE: In general, it's considered to be leukemia.

MR. RUPP: Yes. And are you aware of any studies reporting an association between exposure to environmental tobacco smoke and leukemia?

DR. WALLACE: Yes, I am.

MR. RUPP: In adults?

DR. WALLACE: In adults, one study in adults.

MR. RUPP: Which study?

DR. WALLACE: The Sandler study.

MR. RUPP: Excuse me, Dale Sandler?

DR. WALLACE: Dale Sandler.

MR. RUPP: Any others that have looked at that issue of which you're aware?

DR. WALLACE: In children, but not adults.

MR. RUPP: Okay. You stated in a 1989 review article, as I recall, that five percent of total nationwide exposure may be due to ETS. What sources account for the other 95 percent?

DR. WALLACE: The sources include outdoor concentrations, active smoking. I was doing a nationwide exposure budget there. If I include everybody, all 250 million people in this effort, which includes 50 million smokers, you'll find that half of the total burden of benzene exposure is born by active smokers. That's 50 percent right there.

MR. RUPP: Right. We're going to focus now on nonsmokers.

DR. WALLACE: For the nonsmokers, that five percent figure, I think it's a bit higher. I think you have to double that figure. That five percent was actually part of this big pie chart, 50 percent of which was devoted to active smokers.

MR. RUPP: Right. Have you looked at those figures, though, and tried to take out the smokers?

DR. WALLACE: Yes. It's really simple. You take out 50 percent, you double everything else. So you go from five percent to ten percent for nonsmokers. And you go from three percent in industrial to six percent.

MR. RUPP: But then at that point, do you not have to take into account things like occupation, living location, that sort of thing?

DR. WALLACE: Well, no, yes and no. That's an average across all those occupations and living conditions. If you want to do a finer-brush work, you would have to take that into account.

MR. RUPP: We've been talking about a series of benzene results. Were the results, and I think our focus was the New Jersey results, were they not?

DR. WALLACE: Yes, what I showed today.

MR. RUPP: Yes. Were the benzene results that you reported for, was that Bayonne?

DR. WALLACE: Bayonne and Elizabeth were put together.

MR. RUPP: Were those results replicated in other cities in the team studies, for example, Los Angeles?

DR. WALLACE: Actually, I need to correct what I just said, because one of the slides shows not only New Jersey, this is the active smokers slide, but also Los Angeles, Antioch, and Pittsburgh, California, and Baltimore, Maryland. Those studies had also very similar results for breath levels of benzene for active smokers compared to nonsmokers. About six to ten times.

MR. RUPP: How about for reportedly ETS-exposed nonsmokers and ...

DR. WALLACE: The slide that I showed for ETS combined the results from the 300 and some New Jersey homes and 175 or so California homes. So that was 500 homes from both New Jersey and California.

MR. RUPP: And what about for other sites? What do the results show for other sites? I'm asking you now to focus on people who reported exposure to ETS but were nonsmokers themselves and those who reported not to have been exposed to ETS but were again nonsmokers?

DR. WALLACE: Those were the two biggest studies. We have a 1987 study in California, but it was only 50 homes. We had a 1987 study in Baltimore, and I presented the active smoking results for the breath levels. I don't recall whether we attempted to do this relationship for passive smoking in Baltimore.

MR. RUPP: Your Honor, I have only about two or three more questions, and I think they're simple ones. Have you read the recent articles by Rupert, and it's a 1993 publication, and one by Proctor from 1990 that report no increased benzene exposure in the workplace for nonsmokers working in environments that permit smoking?

DR. WALLACE: I'm not sure. I read some Proctor articles about transitive exposures.

MR. RUPP: Do you remember the Rupert article?


MR. RUPP: Do you have any comparable workplace exposure data for benzene?

DR. WALLACE: Comparable to ...

MR. RUPP: To the data reported by Rupert?

DR. WALLACE: I don't know. I don't think we have any specific data that is limited to the workplace. We have data that includes the workplace, but it's hard to...

MR. RUPP: It doesn't isolate the workplace as a separate site, so we really can't tell what we're quite looking at so far as occupational exposures are concerned.

DR. WALLACE: At EPA it's not our function to look at the workplace.

MR. RUPP: Right. I do understand that. Then, finally, have you done any biomonitoring at all in conjunction with your exposure assessments?

DR. WALLACE: Yes. All of the results in the VOC studies included breath analysis. All the people in the CO study were also analyzed by breath.

MR. RUPP: I'm thinking of, and I appreciate that response, but I'm thinking more again about ETS and looking at cotinine or another metabolite.

DR. WALLACE: No, never.

MR. RUPP: Dr. Wallace, thank you very much. I appreciate it. Thank you, Your Honor.

JUDGE VITTONE: Thank you, Mr. Rupp. Ms. Ward?

MS. WARD: He asked them all.


MR. CRISTOWSKI: I have a few.


MR. CRISTOWSKI: I'm Paul Cristowski from Wash Tech Docket No. 103. Dr. Wallace, I just had one follow-up question from one of the things that Mr. Rupp was asking you. In the PTEAM study, you spoke about the fourteen metals that you used as part of your model. Were these metals actually measured in environmental smoke, or is this an inference from the model?

DR. WALLACE: The metals that we found associated with environmental tobacco smoke was an inference from the model.

MR. CRISTOWSKI: Thank you. The remainder of my questions really have to do with your prepared statement. In particular, I would just like to explore a little bit the associations between benzene and environmental tobacco smoke. With regard to your conclusions of your statement, am I accurate in stating that the nonsmokers' homes in the TEAM study had an average of seven micrograms per cubic meter of benzene in the air, and the smokers' homes had 10.6?

DR. WALLACE: I think that was a median concentration. The mean would be a little bit higher.

MR. CRISTOWSKI: Because the language in some of your publications is ambiguous as to exactly what statistical parameter that is.

DR. WALLACE: Yes, as a matter of fact, I'm not even certain now whether it was the median or the geometric mean. But in fact, the median and the geometric mean were so close together that they should be very similar.

MR. CRISTOWSKI: Would you happen to recall the standard error around those statistics?

DR. WALLACE: I don't recall it; we can calculate it pretty easily. When you say error, you mean standard error for the estimate for the mean?

MR. CRISTOWSKI: Yes, or the variance, some other measurement that we could use to get the degree of dispersion?

DR. WALLACE: I don't recall, and I can get that information for the docket.

MR. CRISTOWSKI: Yes, I would appreciate that. Were these measurements statistically significantly different from each other? That is, the homes with smokers for benzene and with nonsmokers?

DR. WALLACE: My memory is that it was highly significant, but again, I'd have to go back and redo the calculations.

MR. CRISTOWSKI: So you wouldn't recall the p value, then?

DR. WALLACE: No, I don't.

MR. CRISTOWSKI: Okay. In the paper that you wrote in 1989, called "The Exposure of the General Population to Benzene," do you recall that paper?


MR. CRISTOWSKI: In that paper you reported measurements of benzene in the ambient air of 39 cities in the United States, is that correct?

DR. WALLACE: That's right.

MR. CRISTOWSKI: Am I also correct in stating that fourteen out of those cities had benzene levels that were equal to or higher than the seven micrograms per cubic meter reported for the indoor air for nonsmokers?

DR. WALLACE: We need to remember that those measurements were made during rush-hour: 6:00 a.m. to 9:00 a.m., which was expected to be the highest concentrations of benzene that one would find. It's not a very fruitful comparison to compare the higher portion of the outdoor with a twelve- or 24-hour average in the indoor.

MR. CRISTOWSKI: In the benzene studies, I believe I'm correct in stating that you found a statistically significant difference between benzene and daytime air of smoker and nonsmoker homes in Newark only and not in Antioch, Pittsburgh, and Los Angeles, is that correct?

DR. WALLACE: It wouldn't have been Newark, it would have been Elizabeth and Bayonne.

MR. CRISTOWSKI: It's quoted as Newark, I believe in the publication.

DR. WALLACE: Really?


DR. WALLACE: I hope not, but if that's what it says. Can you tell me that publication again?

MR. CRISTOWSKI: Yes, that's called, "Exposures to Benzene and Other Volatile Compounds from Active and Passive Smoking," from Archives of Environmental Health.

DR. WALLACE: Yes, I'm familiar with that article. It's in the docket as number seven.

MR. CRISTOWSKI: Okay, we'll say it's a city in northern New Jersey. My point was really, am I correct in my understanding that you found a statistically significant difference in the New Jersey city rather than in the California cities?

DR. WALLACE: We were in California twice, 1984 and 1987. My memory is that in 1984, we did find a significant difference. In 1987 perhaps we didn't. But that's a little too long ago. I need to check that.

MR. CRISTOWSKI: Okay. In the paper that you wrote on atmospheric environment in 1985 entitled, "Personal Exposures: Indoor/Outdoor Relationships and Breaths Levels of Toxic Air Pollutants for 355 Persons in New Jersey," do you recall that paper?


MR. CRISTOWSKI: Am I correct in interpreting that? That of all the chemicals that you studied, that the highest level of blank contamination was found for benzene?

DR. WALLACE: That's correct.

MR. CRISTOWSKI: Thank you. Now I have one more question. Going back to another one of your publications entitled, "Personal Air Exposures and Breath Concentrations of Benzene and Other Volatile Hydocarbons in Smokers and Nonsmokers," from Toxicology Letters in 1986, do you recall that?


MR. CRISTOWSKI: Isn't it true that with regard to the VOC's that you measured in that study that they were only in greater quantities in the smokers' homes compared to the nonsmokers'homes in the fall and the winter, and not in the spring and the summer?

DR. WALLACE: It sounds familiar to me, but what was greater than what?

MR. CRISTOWSKI: The VOC's in general in that study. Were they only greater in the ...

DR. WALLACE: What was greater in what? I'm sorry.

MR. CRISTOWSKI: The VOC's in the homes of smokers. Were they greater than the VOC's in the homes of nonsmokers, only in the fall and winter and not in the spring and summer.

DR. WALLACE: Yes. I think that if we change VOC's to some specific smoking-related VOC's, such benzene, xylenes, octane, that is right. And I hypothesize that perhaps we had better air exchange rates in the spring and summer which brought down the levels in both.

MR. CRISTOWSKI: You would ascribed that to ventilation rather than to a change in behavior or anything like that?

DR. WALLACE: I would think that there's more of a change in ventilation than of smoking behavior with seasons.

MR. CRISTOWSKI: Thanks very much. That's all I have.

JUDGE VITTONE: Thank you, sir. Does the OSHA staff have any questions?


JUDGE VITTONE: Thank you. Thank you, Dr. Wallace. You've been a very patient member of the audience, and a very patient witness. I appreciate it very much. Exhibit Number 54 plus the slides will be received into the record of this proceeding.
(The document referred to, having been previously marked for identification as Exhibit No. 54, was received in evidence.)

JUDGE VITTONE: That was our last witness. We are recessed until October 11, Tuesday, at the Department of Labor main auditorium.


TITLE: Indoor Air Quality Proposed Rule Hearing
DATE: September 30, 1994
LOCATION: Washington, D.C.

This is to certify that the attached proceedings before the United States Department of Labor, were held according to the record and that this is the original, complete, true and accurate transcript which has been compared to the reporting or recording accomplished at this hearing.

This document's URL is: http://www.tobacco.org/Documents/osha/940930osha.html

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