OSHA: Proposed Standard For Indoor Air Quality: ETS Hearings, September 30, 1994
OSHA: Proposed Standard For Indoor Air Quality: ETS Hearings, September 30, 1994
UNITED STATES DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
PROPOSED STANDARD FOR INDOOR AIR QUALITY
September 30, 1994
Interstate Commerce Commission
The above-entitled matter came on for hearing, pursuant to notice, at 9:36 a.m.
BEFORE: HONORABLE JOHN VITTONE
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
EXHIBIT NO. IDENTIFIED RECEIVED
51 2289 2516
52 2325 2325
53 2463 2516
54 2517 2600
P R O C E E D I N G S
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.
JUDGE VITTONE: Thank you, Mr. Dinegar.
Are you offering those into the record?
MR. DINEGAR: No.
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.
MR. DINEGAR: Okay.
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.
JUDGE VITTONE: Go ahead.
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. DINEGAR: It is.
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. DINEGAR: It is.
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. DINEGAR: Yes.
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. DINEGAR: Yes.
MR. STERLING: Did BOMA receive funding support from EPA for the seminar series?
MR. DINEGAR: We entered into a cooperative agreement with EPA.
MR. STERLING: Okay.
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: Okay.
JUDGE VITTONE: Okay.
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. DINEGAR: No.
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...