OSHA: Proposed Standard For Indoor Air Quality: ETS Hearings, January 6, 1995

OSHA: Proposed Standard For Indoor Air Quality: ETS Hearings, January 6, 1995




Friday, January 6, 1995

Department of Labor

Washington, D.C.

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


Administrative Law Judge



Washington Technical Information Group
Arthur Greenberg 10062


Ms. Sherman 10070
Mr. Rupp 10092
Dr. O'Neil 10103
Ms. Sherman 10106

University of Arizona
Mark Van Ert 10107


Ms. Sherman 10123
Mr. O'Neil 10196
Mr. Rupp 10199
Mr. McNeely 10209
Ms. Sherman 10219



200 10091 10091

201 10195 10195

9:55 a.m.

JUDGE VITTONE: Good morning. We are on the record. This is a continuation of the hearing into the OSHA indoor air quality proposed rule.

We begin today with Mr. Arthur Greenberg.

Mr. Greenberg, that's your full name, sir?

DR. GREENBERG: Yes. Arthur Greenberg.

JUDGE VITTONE: And who are you associated with, sir?

DR. GREENBERG: My faculty association is I am a faculty member at the University of North Carolina at Charlotte. And I am working today at the request of the Washington Technical Information Group.

JUDGE VITTONE: All right. You can begin your presentation when you're ready.

DR. GREENBERG: Good morning, Your Honor and members of the OSHA panel. My name is Dr. Arthur Greenberg and I appreciate the opportunity to appear here today to offer my professional opinion regarding certain components of the recently proposed OSHA rule on indoor air quality.

I am a chemist and the recently appointed chair of the Department of Chemistry at the University of North Carolina at Charlotte. With regard to my training and employment history, I obtained my Ph.D. in chemistry from Princeton University in 1971. Until accepting my present position at UNC Charlotte, I was for many years a professor in the Department of Environmental Sciences at Rutgers University.

I also served as Deputy Director of the Exposure Measurements and Assessments Division of the Environmental and Occupational Health Sciences Institute which is jointly administered by Rutgers and the University of Medicine and Dentistry of New Jersey and as laboratory leader of the Organic Chemical Analysis Support Laboratory, which is under the auspices of the National Institute of Environmental Health Sciences, NIEHS.

Throughout my career, my research has focused on structural organic chemistry, complex environmental mixtures and human exposure to pollutants. I have published in and served as an editor and peer reviewer for journals and books in these areas for several years.

In the proposed rulemaking that is the focus of these hearings, OSHA contends that exposure to environmental tobacco smoke in the workplace constitutes a significant risk of material health impairment to non-smoking workers. Section III.A of that proposed rulemaking concerns the chemical characterization of environmental tobacco smoke. Based upon my expertise in matters that relate to this issue, I was asked by the Washington Technical Information Group, Inc., or Wash Tech, to evaluate this component of the rule.

Let me emphasize that although I am appearing at this proceeding at Wash Tech's invitation, the views I am about to offer are my own.

As was noted earlier at this meeting, the National Academy of Sciences and National Research Council and the Office of Technology Assessment have devised a four-step paradigm to guide federal agencies in conducting regulatory risk assessments.

The third step in this risk assessment paradigm after hazard identification and dose-response analysis is exposure assessment. In evaluating exposures, it is very important to accurately identify and characterize the chemicals of concern.

As the 1994 National Academy of Sciences report notes, the first step in exposure assessment is estimation of the quantity of toxic material emitted by a given source. Emission characterization involves identifying the chemical components of emissions and determining the rate at which they are emitted.

After reviewing the preamble of the proposed rule, I believe the agency's assessment of exposure to environmental tobacco smoke in the workplace is flawed because OSHA fails to present an adequate characterization of the physical or chemical composition of this mixture in the indoor atmosphere.

Environmental tobacco smoke is an aged mixture of an unknown number of compounds and substances contained in its two major compounds, sidestream smoke, the smoke released by the burning tip of the cigarette between smoke, and exhaled mainstream smoke, the smoke exhaled by the smoker.

Chemicals from these two components are distributed in the gas phase and particulate phase of the smoke. The relative contributions of mainstream and sidestream smoke in environmental tobacco smoke at a given point in time are determined by the frequency and depth of inhalation, as well as the properties of individual smoking products.

As the two components intermix and react with other chemicals present in the atmosphere, the composition of the mixture changes, a process known as aging. The mixture is also affected by dispersion, dilution, evaporation, condensation, coagulation and absorption or impaction surfaces.

It is imperative that any investigation of the inhalation effects of environmental tobacco smoke be designed to consider the exact physical and chemical nature of this mixture.

OSHA provides a description of the chemistry of environmental tobacco smoke that relies heavily on data presented in the much criticized 1992 EPA risk assessment. The discussion in the Federal Register primarily concerns differences and similarities between mainstream and sidestream smoke. The problem is that OSHA does not provide an accurate chemical characterization of environmental tobacco smoke that can be used to evaluate the studies the agency relies upon to support its contentions regarding exposure and health risk.

Generally, the combined effect of physical and chemical processes on its components renders environmental tobacco smoke a much more variable and complex mixture than those occurring in mainstream or laboratory-generated sidestream smoke.

Such proxy substances are not comparable to environmental tobacco smoke as it is experienced in the atmosphere. Thus, studies that examine these substances cannot be said to provide relevant factual evidence concerning the effects of environmental tobacco smoke on health, yet OSHA supports its position largely on studies of this kind.

There are several reasons why sidestream smoke is a poor surrogate for environmental tobacco smoke.

First, sidestream smoke collection systems impose artificial conditions on the burning of cigarettes that may be different than those found under normal room air conditions. These systems also may preferentially collect certain substances that might affect the analytic results.

Second, reliance solely upon sidestream smoke neglects the contribution of exhaled mainstream smoke to environmental tobacco smoke in the atmosphere.

Third, most analyses of sidestream smoke do not account for the effects of aging on environmental tobacco smoke.

Thus, in most sidestream smoke studies, the chemical composition of the tested smoke is unlikely to reflect the composition of environmental tobacco smoke observed in the workplace.

OSHA's extrapolation of results from laboratory investigations of sidestream smoke is therefore inappropriate.

Furthermore, in its discussion of the chemistry of environmental tobacco smoke OSHA makes several claims that are not supported by either the data in the record or by the available scientific literature. These include the following:

OSHA states that there is a lack of variability in sidestream smoke emissions and this refuted by recent research, citing some papers by Evans and Sefton, Weetman and Luceri, that indicates the composition of sidestream smoke varies with the curing of the tobacco, the cigarette brand and the cigarette type.

Moreover, correction methods and methods of analysis often vary and add to the overall variability of measurements.

OSHA assumes the collection of sidestream smoke at environmental tobacco smoke is uniform and that analytical results reflect the actual composition of the aerosol. However, certain collection methods and analytical techniques can cause chemical reactions that change the composition of the anilide relative to the original environmental sample.

OSHA assumes that toxic materials in sidestream smoke remain in environmental tobacco smoke without significant chemical degradation. This is not consistent with the technical literature.

Aging of sidestream smoke has been reported to reduce the cytotoxicity of sidestream smoke and the effects of the formation or disappearance of radicals in the smoke on the toxicity of the mixture are largely unknown. Short lived free radicals are known to occur in the vapor phase of sidestream smoke. Other reactive substances include the carcinogenic n-nitrosamines which readily decompose photochemically.

OSHA assumes that particulate matter in sidestream smoke has a close relationship with particulate matter in environmental tobacco smoke. However, because the number and mass median diameter of sidestream smoke particles increase with aging, it is inappropriate to extrapolate on this issue from sidestream smoke to environmental tobacco smoke.

OSHA employs nicotine as a gas phase marker for sidestream smoke and environmental tobacco smoke. This approach is flawed, however, because, one, nicotine exhibits a rapid decay relative to essentially inert species such as total hydrocarbons and, two, nicotine can physically adsorb to surfaces such as fabrics and ultimately be re-suspended.

A very straightforward statement of this problem was made by the Committee on Advances in Assessing Human Exposure to Air Pollutants and is published the National Academy of Sciences report, 1991 National Research Council report, and I quote, "It is not known how nicotine concentrations are related to concentrations of other contaminants in ETS, particle or gas phase, or to those contaminants that might be associated with health, e.g., benzene, or nuisance effects."

In conclusion, I believe that OSHA has not presented an adequate characterization of the chemistry of environmental tobacco smoke which is a necessary step in assessing exposures to allegedly harmful substances. By not doing so, the agency limits the credibility of its determination of the risk that environmental tobacco smoke allegedly presents in the workplace.

Thank you very much. That's the conclusion of my presentation.

JUDGE VITTONE: Thank you, Dr. Greenberg.

Ms. Sherman?

MS. SHERMAN: Dr. Greenberg, have you done any independent research on the chemistry of tobacco smoke?

DR. GREENBERG: On tobacco smoke itself, no. I have been involved in some studies on human exposure to polycyclic aromatic hydrocarbons in which smoking could conceivably have been a factor.

MS. SHERMAN: Have you done any independent research on the chemistry of ETS?


MS. SHERMAN: Before this present assignment, have you worked for the Washington Technical Information Group?

DR. GREENBERG: No. Let me modify just very slightly and say that three years ago approximately the Washington Technical Information Group had talked with me about possible involvement in a case and at that point it was decided that I would not be involved in the case and that was the only interaction. So this is the first time I've ever worked on a case with them.

MS. SHERMAN: Did you write your own testimony that you gave today?


MS. SHERMAN: Do you know Dr. Van Ert?

DR. GREENBERG: I do not.

MS. SHERMAN: Did you consult with him before submitting your testimony?

DR. GREENBERG: No, I did not.

MS. SHERMAN: On your August 9th submission to us --


MS. SHERMAN: I believe on the top of page two you state that "Environmental tobacco smoke is an aged mixture of an unknown number of compounds and substances contained in its two major components."


MS. SHERMAN: Under normal circumstances, how long is ETS aged?

DR. GREENBERG: When we talk about normal circumstances, we're talking about as in a bar?

MS. SHERMAN: Well, I guess -- I'm having trouble with a definition. What is aged sidestream smoke?

DR. GREENBERG: I think that aged sidestream smoke is something that has existed on the order probably of hours.

MS. SHERMAN: I mean, when does it start being aged?

DR. GREENBERG: I think that aging begins virtually as soon as the material leaves the cigarettes. It will happen in the first certainly minutes, seconds, and probably will continue for hours.

MS. SHERMAN: And it ends when one can no longer measure anything analytically?

DR. GREENBERG: I'm not sure there is such a moment. I think that it's -- presumably as long as you can measure tobacco smoke in a room, it's still aging. In other words, after people have left the room it's still aging.

MS. SHERMAN: May I ask for your indulgence for a moment?


MS. SHERMAN: Sorry. I just got a note from my office. Okay.

So you would say that aged sidestream smoke is from the time it leaves the cigarette until the time you can no longer measure it.

DR. GREENBERG: I think I would agree with that. Yes.

MS. SHERMAN: And is there any literature on the subject that would support that type of a definition?

DR. GREENBERG: I think that my feeling is that no one has given a precise definition to aging because people have done different kinds of experiments. I don't think that anyone has ever tried to see when cigarette smoke reached a point of no further analysis or detection. I think typically people will define aging -- you know, on the time scale that they actually do the experiment which probably starts on the order of minutes and goes for a few hours. So I don't think that there is a definition that's that encompassing.

MS. SHERMAN: If you'll indulge me another moment --


MS. SHERMAN: There are carcinogens in both cigarette smoke and environmental tobacco smoke.

DR. GREENBERG: Yes. That has been shown, both proven and suspected carcinogens. Yes.

MS. SHERMAN: Are any of the carcinogens that are found in cigarette smoke, have they been shown to be deactivated or neutralized by the aging process?

DR. GREENBERG: That's something of a complex question. In one sense, yes and in another sense, no. And let me expand upon that.


DR. GREENBERG: First of all, a substance such as benzo(a)pyrine, which is an example --

MS. SHERMAN: Which everybody agrees is a carcinogen.

DR. GREENBERG: From a point of view of humans, I think it's considered a suspected carcinogen but that's a matter of definition. But in any case, benzo(a)pyrine certainly suffers decomposition upon aging, all right?

Now, if we talk about -- I guess I would talk about compounds called nitrosamines, which are also under the class of suspected human carcinogens, and these also are known to decompose chemically, photochemically, but the other case of interest and where there is a great deal more that needs to be known is on the subject of highly reactive substances called free radicals.

Now, free radicals are certainly capable of attacking many, many different types of substances, probably capable of attacking biological polymers in the lung and so on. And these things exist on the order -- normally, they exist on the order of actually seconds or fractions of a second. There seems to be evidence that they exist on the order of minutes in fresh sidestream smoke but there is no question that they will decompose on the order of minutes and the question is are these carcinogenic and the answer is it's very hard to do carcinogenicity studies on these things.

MS. SHERMAN: Okay. Well, how long would it take under normal circumstances benzo(a)pyrine to decompose?

DR. GREENBERG: I don't think that anyone has done -- benzo(a)pyrine is just one example of polycyclic aromatics.

MS. SHERMAN: Oh, I understand. Sure.

DR. GREENBERG: And it's not necessarily the most reactive. But I don't think that anyone has done a study of benzo(a)pyrine that's relevant to indoor air exposure. It's hard enough to do it on outdoor because when one does outdoor studies the sorts of things people have done is modeled by putting benzo(a)pyrine on particulates and then shining appropriate ultraviolet light on it. And there you may have lifetimes on the order of basically hours, even less than hours. But the problem is how relevant that is to outdoor conditions and I don't think that anyone has really been able to --

MS. SHERMAN: You mean to indoor conditions?

DR. GREENBERG: No, I first said outdoor conditions deliberately. And then I think that nobody that I'm aware of has studied the decomposition of benzo(a)pyrine and the other PAHs under indoor conditions. So I think that relatively little has been done in this area under anything resembling realistic indoor conditions.

MS. SHERMAN: Would it be fair to say that the more reactive a compound, the faster the decomposition or is that not a relevant consideration?

DR. GREENBERG: You know, the whole interesting question about more reactive is the chemist's question is more reactive with what.

MS. SHERMAN: Well, you used the term more reactive so I'm just sort of following your train of thought. And I'm not a chemist.

DR. GREENBERG: Okay. What I would say is this, that if we're talking about reactivity with the sorts of things that are present in the air, including indoor air, things like oxides of nitrogen, things like ozone, things like, you know, light, ultraviolet light, generally the more reactive, the faster it reacts, the faster it disappears.

MS. SHERMAN: Now, how long would it take for the nitrosamines to decompose photochemically?

DR. GREENBERG: Again, the evidence on nitrosamines have been done under very artificial conditions and one can decompose nitrosamines really on the order of really less than an hour doing these sorts of artificial studies. The question is how rapidly do they decompose under indoor conditions and I don't think that's known particularly.

MS. SHERMAN: Well, is there any reason to believe that these artificial conditions might not be a reasonable surrogate for indoor air conditions?

DR. GREENBERG: Well, the artificial conditions are conditions which exaggerate the decomposition and, if anything, I think that indoor air conditions may conceivably moderate it a little bit. So what I'm saying is one gets a more exaggerated sort of picture from that.

If we look at nitrosamines, for example, and compare their intrinsic reactivity to light and that's measured by something called quantum yield, you'll find that the sorts of quantum yields for the polycyclic aromatics are on the order of numbers like .01, .001, all right? For the nitrosamines, you're laking about numbers like .1, .2, .3, which means that they're really two orders of magnitude more reactive than things like the polycyclic aromatics.

But I don't think that anyone has really done a systematic study. I know that Eatough's group at Brigham Young has done some study on the decomposition of these things but this is a hard thing to do under indoor conditions.

MS. SHERMAN: Okay. So we've discussed the relationship of decomposition with the aging process.


MS. SHERMAN: What about the carcinogens found in cigarette smoke? Are they deactivated or neutralized by intermixing with other components?

DR. GREENBERG: Well, again, when we talk about other components, the other components in the air, the other components can be things like nitric oxide, NO, NO2. It can mean ozone and so on. And these compounds are known to react with these sorts of compounds.

MS. SHERMAN: And what about evaporation? Would it be deactivated or neutralized by evaporation?

DR. GREENBERG: No. The chemical is still there. It's not chemically gone if it's evaporated.

MS. SHERMAN: And coagulation?

DR. GREENBERG: Well, particles coagulate. Now, the question of what the fate of the chemical is has to do with its volatility so there are some compounds that will volatize from the particles even as the particles are coagulating. There are other compounds that are in the gas phase to begin with so what you have is you may have a change in phase. As time goes on, compounds that had started out in the particulate phase may wind up being in the vapor phase.

MS. SHERMAN: Could you give me an example of that?

DR. GREENBERG: Well, actually, of course, the discussion of nicotine has always involved this issue where nicotine starts out largely in the particulate phase and then winds up going into the vapor phase.

MS. SHERMAN: But nicotine I don't think is considered a carcinogen.

DR. GREENBERG: Right. We agree. We agree.

MS. SHERMAN: How about an example of a carcinogen?

DR. GREENBERG: Well, I'm sure that this is the case with some of the polycyclic aromatics, some of the lighter polycyclic aromatics, which would start out in the particulate phase. Now, most of the carcinogenic polycyclic aromatics are not so volatile but some of them have enough volatility, something like benzanthracene has enough volatility to start out in the particulate phase and then be suspended into the vapor phase, so that would be one example. And I am willing to believe that certain other types of compounds, some of the nitrosamines of moderate molecular weight, of medium molecular weight, probably start out in the particulate phase and then go into the vapor phase with time.

MS. SHERMAN: Okay. Now, I believe that in some cases toxic chemicals in sidestream smoke remain in environmental tobacco smoke without a significant chemical degradation. However, in other cases, there is a significant chemical degradation. With some substances, doesn't the degradation make the substance more toxic?

DR. GREENBERG: That can happen. It's --

MS. SHERMAN: Like perhaps nitric oxide?

DR. GREENBERG: Nitric oxide turning into NO2, nitrogen dioxide, certainly the nitric oxide is more benign than NO2 is in terms of attacking organic compounds and there certainly are situations in which -- let me give you just two examples. It's a hard one to call. Pyrine, which is a polycyclic aromatic hydrocarbon, will react in the vapor phase to ultimately produce nitropyrine. Now, pyrine is not carcinogenic, nitropyrine is. On the other hand, benzo(a)pyrine, which is carcinogenic, will react to form 6-nitrobenz(a)pyrine which is either non-carcinogenic or has very, very low activity, so it's very hard to predict.

MS. SHERMAN: So it can go either way.

DR. GREENBERG: I would agree.

MS. SHERMAN: I think you also stated that reliance solely upon sidestream smoke neglects the contribution of exhaled mainstream smoke to environmental tobacco smoke in the atmosphere.


MS. SHERMAN: Well, theoretically speaking, would you expect the toxicity of sidestream smoke to increase or decrease with the addition of exhaled mainstream smoke?

DR. GREENBERG: I don't think I know enough to answer that.

MS. SHERMAN: Well, would it at least be fair to say that there would be more of whatever it is?

DR. GREENBERG: There would be an addition of material, yes.

MS. SHERMAN: Do you have a suggestion as to what biomarker we should use to measure environmental tobacco smoke?

DR. GREENBERG: I don't have an independent suggestion.

MS. SHERMAN: You're a chemist, I thought perhaps you would have thought about this.

DR. GREENBERG: The only independent -- first of all, this is, of course, a very subtle problem and some very, very good people have worked on it. You know, Eatough's group, again, at Brigham Young has pointed out some of the problems with at least vapor phase nicotine and they looked at vinyl pyridine as one perhaps better marker because it doesn't seem to be adsorbed as easily, it doesn't seem to react, it seems to have fewer losses. So, you know, based upon what their work indicated, it seemed reasonable but I've made no independent investigation of that.

MS. SHERMAN: In preparing your testimony, did you conduct a literature search on the chemical components of environmental tobacco smoke?

DR. GREENBERG: Yes, I conducted my own literature search. It was not a totally exhaustive literature search. An exhaustive literature search would probably have literally thousands of references.

MS. SHERMAN: It would be a lifetime process, would it not?

DR. GREENBERG: I don't know if it would be -- well, it's a continuing process, that's for sure.

MS. SHERMAN: I believe on page four of your comments you said that OSHA makes several claims that are not supported by either the data in the record or by the available scientific literature.


MS. SHERMAN: Have you read the references that we've cited?


MS. SHERMAN: And what claims do you feel that OSHA makes that are not supported by the literature?

DR. GREENBERG: Well, I am specific about some areas in the points that I have read. There is the issue of lack of variability in sidestream smoke emissions. Now, it's fair to say that the references that I cited in the presentation you referred to were actually newer references. They were 1992, 1993 references. So in that sense it's actually a little bit more difficult to fault OSHA on that.

I will add, however, that one of the studies published by Pryor, which I believe was published in 1990, made a comparison between a burning cigarette, for example, and cigarette in which tobacco is heated and came up with really very markedly different compositions, especially in terms of radicals, in terms of small hydrocarbons that were emitted. So what I'm saying is that there does seem to be variability. There does seem to be variability in the compounds that are present in sidestream smoke and it seems that the OSHA has -- largely indicates that there is great similarity, very great similarity in the sidestream smoke.

MS. SHERMAN: Well, okay. You point out that sidestream smoke is subject to many variables and I think that you specifically discussed this morning the differences in aging and in the curing process that would contribute to this variability.


MS. SHERMAN: Well, now, does this mean that research done with standard laboratory reference cigarettes is really not appropriate?

DR. GREENBERG: What I am saying are two things, I think, at this moment. One is that the research that's done with standard laboratory cigarettes using a standard smoking technique, what is collected is basically sidestream smoke, all right? Not particularly aged, not aged really. The second thing --

MS. SHERMAN: However, it can be aged as part of the experiment, of course.

DR. GREENBERG: In principle but a very hard thing to do under controlled conditions. So that's the first point. And I'm trying to recall the line of questioning that got us into this because there was a second point I wanted to make on the relevance of this and it's just missing me right now.

MS. SHERMAN: I'm sorry, I didn't mean to confuse the issue. Well, then, how would OSHA proceed? How would you suggest that we deal with this variability?

DR. GREENBERG: Well, first of all, I think it's difficult and I think there have been a lot of clever experiments done by EPA and by other researchers to try to handle this issue. I mean, people have attempted to look at aging, let's say, in a big plastic bag, things on the order of 30 cubic meters, but it's hard to do that because the plastic is not necessarily typical of what one confronts under normal circumstances. Thirty cubic meters sounds very large but in fact it's very small relative to normal rooms and so on. So wall effects and surface effects are significant. So it is a difficult problem.

The other thing that is the big unknown in this, I think, is the issue of looking at the very short lived substances, the free radicals and the things associated with them. And I guess if I were to try and concentrate on a particular area, if I were OSHA, if I were EPA and if I were working contractually with them, I guess what I would probably be trying to do is to look at these very reactive substances, the things which last on the order of seconds to minutes, and get a feeling for what happens to them as smoke ages and just see what the relevance of sidestream smoke is in the content of these reactive things relative to more aged smoke. If I had to concentrate on something, that's probably what I'd concentrate on.

MS. SHERMAN: Because that's what you identify as the most variable aspect of sidestream smoke? Is that why you're advocating concentrating on it?

DR. GREENBERG: I would say that the whole issue of aging is extremely complicated but to my way of thinking, that's probably the simplest thing to start out with it. It's the thing where you can see the most major difference. Again, we talk about things like free radicals and you're talking about things which are extremely reactive, you know, capable of attacking protein, capable of attacking DNA and essentially existing on the order of minutes at most and in many cases shorter than that. So what I would say is I would probably concentrate on looking at that issue first. In many ways --

MS. SHERMAN: Do you think that these perhaps might be the most potentially harmful aspects of sidestream smoke?

DR. GREENBERG: That I can't comment on but I do think that they are a source of concern and I think that they are the most, to me at least, the most obvious difference between -- you know, new sidestream smoke and smoke that's been aged.

MS. SHERMAN: Is there any literature you're aware of that discusses this issue?

DR. GREENBERG: Yes. I would say that to my way of thinking the best literature on the issue is the work that Pryor has done, William Pryor, and this was work that has been done now for at least 14 years or so.

MS. SHERMAN: And it involved tobacco smoke? I thought you said the work was done in 1990.

DR. GREENBERG: It's work that has continued. I'm sorry for confusing the issue. Pryor's work on free radicals and free radicals in tobacco smoke essentially started, I think, around 1980, 1981 and continues. The paper that I referred to I believe was published in 1990 by Pryor but they were certainly looking at tobacco smoke.

MS. SHERMAN: Now, in answer to an earlier question, you were talking about -- say you did an experiment with 30 cubic meters, air in a plastic bag, then you had to worry about the surfaces, et cetera, et cetera. And I think that you also stated that nicotine can be re-emitted from surfaces where it adsorbed. Is this also true for other toxic semi-volatile constituents of environmental tobacco smoke as well?

DR. GREENBERG: That they can be absorded or adsorbed and then later re-emitted?


DR. GREENBERG: I'm sure.

MS. SHERMAN: Have you looked at this?


MS. SHERMAN: I think you also stated that certain collection methods and analytical techniques can cause chemical reactions that change the composition of the anilide relative to the original sample. Could you give some examples of this?

DR. GREENBERG: Yes. There are a couple of cases that have actually been, and I can furnishes the references if and when requested, but for example there is one method of collecting -- there are many methods of collecting smoke. One can use filters, one can use electrostatic precipitators. One can use cryogenic systems that actually condense the liquids, condense what can be condensed.

Now, when one things, for example, about electrostatic precipitators, you can think about ozone being crated as a part of the actual collection process and ozone can react with materials.

If you're talking about collecting, for example, a material on a filter, what you're doing is you're actually drawing air through the filter and basically continually exposing the materials collected to things like nitric oxide and nitrogen dioxide and so on, so you're sort of giving very prolonged exposure as you collect.

Finally, there is literature evidence on cryofocusing in which a reaction which would not normally have happened under environmental conditions where things are diluted actually occur, a chemical reaction called the Diels-Alder reaction.

MS. SHERMAN: Could you spell it for the Court Reporter and could you explain it to me?

DR. GREENBERG: And I apologize for that. D-I-E-L-S hyphen A-L-D-E-R reaction occurred between two of the hydrocarbon molecules collected and this actually happened in the trap. Now, the reason for this is that this is a reaction which is dependent upon concentration. If the substances are very dilute, then this reaction will happen at an exceedingly slow rate. But once you condense the compounds together, now you've put them together in a high concentration and under those circumstances the reaction did happen and there's literature evidence on that.

In general, the issue of collecting particulate matter and worry about artifacts upon collection has always been of concern to people who do air monitoring.

MS. SHERMAN: I think we could agree that there are many, many constituents of environmental tobacco smoke. I think that the number has been given as 4000. Do you believe that OSHA should identify each of the components and determine the rates at which one is emitted before regulating environmental tobacco smoke?

DR. GREENBERG: My personal belief on that, I would just simply say that that is -- I'm going to carefully qualify my statement by saying that I'm not a policy person but I would also say that that is, of course, an experimental regime that could last for many, many, many years.

MS. SHERMAN: So what was your answer?

DR. GREENBERG: I guess if I were an OSHA person I would perhaps like to look at other avenues besides exhaustively examining all 4000 chemicals and the decomposition pathways and their solid vapor phase distributions and so on and so forth.

MS. SHERMAN: So it might not be the most practical of approaches?

DR. GREENBERG: I'm not sure I can answer that. I don't think I could comment on that.

MS. SHERMAN: Have you read the 1992 EPA report on environmental tobacco smoke?


MS. SHERMAN: Have you read the 1991 NIOSH report?

DR. GREENBERG: I don't believe I've read that.

MS. SHERMAN: How about the 1986 IARC report on environmental tobacco smoke?

DR. GREENBERG: Relevant sections of it, yes.

MS. SHERMAN: And have you read the January 1995 Consumer Reports article on environmental tobacco smoke?

DR. GREENBERG: I have, actually.

MS. SHERMAN: Do you agree with it?

DR. GREENBERG: I don't think that I have the expertise to comment on it. I do think it's a seriously written article. I have read the article.

MS. SHERMAN: Would you say it fairly outlines the issues?

DR. GREENBERG: What I would say is this: the article really concerns itself overwhelmingly with the statistical issues in this area and I'm just not qualified to talk about the statistical issues. So in other words, pretty much any statistical arguments that sound like they've been made well, I can make a judgment on but it's not an informed judgment.

Let me just simply say that the Consumer Reports article, which I did read, overwhelmingly deals with the statistical arguments that I am generally aware of but I certainly don't have the expertise to really comment knowledgeably on them.

MS. SHERMAN: I think that's all the questions I have. I want to thank you for your time.

And, Judge, perhaps we should add this Consumer Reports article to the record since we were referring to it.


MS. SHERMAN: What exhibit would that be?

JUDGE VITTONE: Two hundred.

MS. SHERMAN: Two hundred?

JUDGE VITTONE: Two hundred.

MS. SHERMAN: Boy, we really covered some ground yesterday, didn't we?

JUDGE VITTONE: There was a number of them.

(The document referred to was marked for identification as Exhibit 200 and was received in evidence.)

JUDGE VITTONE: Okay. Let me ask, who has questions for this gentleman?

Mr. Rupp?

Does anybody want to go first, second, third?

(No audible response.)

JUDGE VITTONE: Mr. Rupp, you go first.

MR. RUPP: Thank you, Your Honor.

JUDGE VITTONE: Mr. Rupp, how long do you think you might be?

MR. RUPP: I would think about 20 minutes, Your Honor.

Dr. Greenberg, my name is John Rupp and I represent a number of independent scientists who have filed notices of intent to appear in this proceeding on behalf of the Tobacco Institute.

I take it you have read the 1986 NRC NES report on environmental tobacco smoke?

DR. GREENBERG: Well, some relevant parts of it.

MR. RUPP: Let me ask you about a couple of passages in that report that fall within the area about which you've been testifying and ask you whether you agree or disagree with these statements.

The first passage appears on page two of the 1986 NRC report on ETS and reads as follows: "Each of the mixtures, MS, SS and ETS, is an aerosol consisting of a particulate phase and a vapor phase. However, the smokes of MS, SS and ETS differ as a result of changes in the concentrations of individual constituents, the phase (particle or vapor) in which the constituents are present and various secondary reactions that chemically and physically alter (age) the composition of the smoke."

Is that basically what you've been testify about?

DR. GREENBERG: That's basically the presentation I've made.

MR. RUPP: On page 44 of the same report, there is another statement in the same general area to which I would like your reaction. The quote is as follows: "However, comparisons of MS and ETS can be appropriate only if one considers the important differences in chemical composition, including pH, and physicochemical nature, that is, particle size, air dilution factors and distribution of agents between vapor and particulate phases, between the two aerosols."

Do you agree with that statement?

DR. GREENBERG: Well, if we're talking about chemically, I would say yes. And if we're talking about anything related to health effects, I can't comment.

MR. RUPP: Right. This phrase goes on to say, "Furthermore, ETS in indoor environments is often accompanied by pollutants in the work environment derived from other sources such as cooking stoves and space heaters. There are important differences between inhaling ambient air and inhaling a concentrated smoke aerosol during puff drawing. Finally, chemical and physicochemical characteristics based on analysis of smoke generated by machine smoking are not fully comparable to those of compounds generated when a smoker inhales cigarette smoke."

Do you agree with that statement?

DR. GREENBERG: Well, it's a long, fairly complex statement and I --

MR. RUPP: May I hand it to you and you could perhaps consider it more carefully, then?

DR. GREENBERG: Excuse me for a moment.

MS. SHERMAN: Do you have another copy, Mr. Rupp?

MR. RUPP: Unfortunately, Ms. Sherman, I don't but I'd be happy to share this one with you.


DR. GREENBERG: Well, frankly, what I can simply say is there are really three issues here in this statement. One of them indicates the difference between mainstream and environmental tobacco smoke and says that there are some differences in chemicals, some differences in physical characteristics and so on. And, of course, I've addressed that and I agree with that.

When one talks about differences between inhaling ambient air and inhaling concentrated smoke aerosol, I don't think I can really comment on --

MR. RUPP: That's a bit beyond your area of expertise?

DR. GREENBERG: Right. That is beyond my area. And finally, the area of the yields of constituents between machine smoking and human smoking is also really outside of my area of expertise.

MR. RUPP: Okay. Thank you very much.

I think you've also told us, if I've understood your testimony correctly, that there is simply much that we still do not know about the chemical composition of ETS as it ages in the air and that further studies of ETS are needed to further our understanding of what we're talking about here. Would that be fair?

DR. GREENBERG: That's a fair statement.

MR. RUPP: Let me read you this statement from page 60 of the 1986 NRC report and mercifully it's shorter than the ones I've read to you previously. "The aging of the atmosphere in which ETS occurs can have a profound effect on its chemical composition, physical characteristics and overall biological effects. Therefore, studies of aged ETS are needed."

I take it that your recommendation is precisely the same, that is, study the material rather than make assumptions about it.

DR. GREENBERG: That's correct.

MR. RUPP: In 1986, another report that appeared on ETS was, of course, the Surgeon General's report entitled "The Health Consequences of Involuntary Smoking."

Have you had an opportunity at any point to review this report?

DR. GREENBERG: I have not.

MR. RUPP: Let me read to you a statement from that report that appears on page 24 and ask whether this accords with your understanding and your view of the situation.

"Comparison of the relative concentrations of the various components of SS and MS smoke provide limited insights concerning the toxicological potential of ETS in comparison with active smoking. As described above, SS characteristics as measured in a chamber do not represent those of ETS as inhaled by the non-smoker under non-experimental conditions. Furthermore, the dose-response relationships between specific tobacco smoke components and specific diseases are not sufficiently established for the necessary extrapolations from active smoking to environmental tobacco smoke exposure for individual agents." And then a call for further research.

And I take it, again, that is precisely what you are asking us to consider here.

DR. GREENBERG: I would agree, yes. I would just simply qualify by saying that I'm not really qualified to talk about the dose-response issue.

JUDGE VITTONE: Mr. Rupp, for the record, what page was that from?

MR. RUPP: Your Honor, that was page 25 from the Surgeon General's 1986 report entitled, "The Health Consequences of Involuntary Smoking."


MR. RUPP: Dr. Greenberg, during the course of these rather lengthy hearings, a few words have been used repeatedly without our stopping at any point to try to figure out what these words mean and one of them is toxic. I think Ms. Sherman in her questions used the word toxic, what about the toxic chemicals in this mixture or that mixture.

Would you agree with me that every chemical known to man and perhaps some not discovered yet, whether natural or manmade, are toxic if the dose that one is presented with is sufficient?

DR. GREENBERG: Well, that's always an interesting question. There are certainly -- I don't know if I can agree with you that that is true absolutely because toxic means a harmful effect. Now, on the one hand, it is true that oxygen, if you were living in a pure oxygen environment, that that can be toxic after a certain point. I don't know whether helium could be considered toxic unless it's basically excluding oxygen from you. You know, obviously if someone keeps on making you drink water, you may eventually drown.

MR. RUPP: A toxic effect.

DR. GREENBERG: It's toxic.

MR. RUPP: Well, would you agree with this statement, that toxicity is a meaningless concept without consideration of dose?

DR. GREENBERG: Toxicity is a meaningless concept -- I would say that you do need to note -- I would not say it's a meaningless concept but I do think that in order to assess toxicity you need dose information.

MR. RUPP: Okay. Would you say the same thing with regard to genotoxicity?

DR. GREENBERG: I don't think I'm in an area of my expertise.

MR. RUPP: Okay.


MR. RUPP: The Federal Register notice that initiated this proceeding contained a discussion at page 15,974 of a variety of pharmacokinetic considerations relating to ETS and without asking you to labor over the individual sentences and much of the discussion, I'm going to ask you to look with me at the summary paragraph which appears on the right-hand side of page 15,974.

The summary suggests that the interactions that might occur as ETS ages may lead to longer retention of toxic constituents thus prolonging the effects on the target organs, resulting in tissue injury.

My question, Dr. Greenberg, is this: the same interactions or interactions of a sort that perhaps OSHA did not have in mind, depending upon the chemical, depending upon the exposure conditions, depending upon the metabolic rates and a variety of other factors, can also lead to a shortened retention period, it really depends upon a variety of factors, does it not?

DR. GREENBERG: Let me look at the paragraph, please.

MR. RUPP: Sure.

DR. GREENBERG: This is the one just before 2, irritation?

MR. RUPP: Yes. Exactly correct.


MR. RUPP: As you think about your response, I might add that this follows a long discussion, as you might note there, of nicotine and the suggestion is that at least so far as nicotine is concerned that might clear from the body of non-smokers more slowly than the clearance rate of nicotine for smokers.

DR. GREENBERG: Well, again, what I must say is that I'm not an expert in pharmacokinetics.

MR. RUPP: Okay. Would you agree with me if I suggested that only about 20 chemicals have been identified in environmental conditions, in field settings, as traceable to ETS? That is, using analytic equipment in actual rooms, scientists have thus far only been able to identify about 20 chemical components of ETS, give or take a few?

DR. GREENBERG: Actually, I'm not sure I would agree with that one. When I think of Eatough's work, I think he's identified more than that.

MR. RUPP: Eatough was looking at a chamber, was he not? His studies were conducted in a chamber?

DR. GREENBERG: Eatough's work was done in a chamber for certain. I guess that what you're leading to is -- let me say that first of all, I don't know whether the 20 is correct or incorrect but I think what you're leading to is that when you actually measure environmental tobacco smoke and you actually -- well, when you actually collect air in a real environment and analyze what's there, if your analysis is very, very thorough, you may be looking at hundreds of compounds. I don't know if anybody actually analyzed thousands of compounds but if you're looking at let's say even tens of compounds, hundreds of compounds, invariably these compounds have many different sources and so what you're really saying is how many of those compounds can be attributed essentially to smoking and I don't know the answer but if you were to say 20 I wouldn't be surprised if that's what people have come up with so far.

MR. RUPP: Let me approach it from the other angle, which is perhaps a more interesting angle. Ms. Sherman appeared to assume that because 3500 or 4000 chemicals have been identified under laboratory conditions in mainstream smoke with particularized collection approaches that can be utilized there that we are entitled to assume, can safely assume, that there will be 4000 discrete chemicals in ETS in environmental circumstances. That is just not so, is it? Or at least it's a rather dangerous assumption for us to be making without experimental verification, is it not?

DR. GREENBERG: Right. Well, there are two issues. One is the issue of whether or not, let's say, the benzene that you measure in an ambient environment is due solely to tobacco smoke or whether it's due to other potential sources, so that's one.

The other part, of course, is the issue that I referred to which is the issue of aging. And that is whether the compounds that are in the sidestream smoke basically still exist in the environmental tobacco smoke and the other issue, of course, is one that is not so black and white, it's a whole question of detection limits and levels.

So the question is even if the compound, even if all 4000 compounds were found and somehow attributed to environmental tobacco smoke, what has happened to their concentrations, that refers back to the dose issue that you pointed out.

MR. RUPP: Right. And chemical interactions of one sort or another.

DR. GREENBERG: And so on. Yes.

MR. RUPP: Okay. Have you read the IARC monograph on complex mixtures?

DR. GREENBERG: Is this the 1986 monograph?

MR. RUPP: Yes.

DR. GREENBERG: Sections of it.

MR. RUPP: Okay. As I recall that monograph, and it's been a while since I've read it as well, but as I recall that monograph, one of the main messages is that one should be very careful about attempting to assess the -- let me use a layman's term, the health implications, the possible significance in terms of health, the biological significance, if you will, of a complex mixture by looking at individual chemicals.

That is, that when you're talking about a complex mixture you ought to be evaluating the complex mixture as it exists, not trying to tear it apart and evaluate it chemical by chemical.

DR. GREENBERG: Well, again, everyone is concerned with the issue of synergism.

MR. RUPP: And antagonism and --

DR. GREENBERG: All of those things can be considered.

MR. RUPP: And we really don't know whether that's going to occur or the extent to which it is occurring unless we look at the complex mixture as a mixture.

DR. GREENBERG: It is an unknown. Yes. Again, I can't comment on the physiological aspects or health aspects but it certainly is an unknown.

MR. RUPP: From a chemist's standpoint, one knows these reactions occur in complex mixtures and one needs to take them into account.

DR. GREENBERG: Well, if one did not take them into account, I mean, one would assume, for example, that NO2 exists, nitrogen dioxide exists, somehow independently of isoprene and in fact what we know is that the two interact.

MR. RUPP: Thank you.

Your Honor, I have almost completed the questions I wanted to ask.


MR. RUPP: In fact, I have.

Dr. Greenberg, thank you very much.

JUDGE VITTONE: Thank you, Mr. Rupp.

Mr. O'Neil?

MR. O'NEIL: Thank you, Your Honor.

My name is Bernard O'Neil. Good morning, Doctor.

I would just like to clarify some aspects of questions that Ms. Sherman asked you about suspected and proven carcinogens in environmental tobacco smoke, if I might.

Is it your understanding that for a substance to be listed as a probable or proven carcinogen that substance would have to have been tested in a certain species by a certain route of administration, in a certain amount, and have some type of a carcinogenic response recorded?

DR. GREENBERG: My knowledge of this, and, again, I point out that I'm not a toxicologist, but my knowledge of this is that those few compounds which are proven human carcinogens are considered to be so by virtue of epidemiological studies and there are very few of those compounds. Those which are suspected human carcinogens are ones that have been shown to be carcinogenic in a variety of related animals.

MR. O'NEIL: So it's not your testimony, is it, that any of those suspected or proven carcinogens as present in environmental tobacco smoke are carcinogenic in that mixture, is it?

DR. GREENBERG: Let me -- can you repeat that?

MR. O'NEIL: Yes. All I'm saying, it's not your testimony that if a substance is a proven or probable human carcinogen, it does not necessarily mean that it is a carcinogen as it occurs in environmental tobacco smoke.

DR. GREENBERG: Again, that's a physiological question that I don't think I can answer. If it's a suspected human carcinogen, I think one cannot say it's a human carcinogen.

MR. O'NEIL: Further, the decomposition of, say, the nitrosamines certainly depends upon a number of different factors, does it not?


MR. O'NEIL: Is it your testimony that dealing specifically with carcinogens the dose is particularly important and the route of administration in drawing any conclusions whatsoever about human health considerations?

DR. GREENBERG: Well, again, I have to be careful in saying that it is fair to say that dose is important when one talks about toxicity. I mean, that's a very basic principle.

But, again, I'm not a toxicologist and I cannot speak to the issue of extrapolations to very low levels and issues like threshold.

MR. O'NEIL: One final question, Dr. Greenberg. We've had considerable testimony here from a variety of experts who have stated that nicotine is not a good marker for environmental tobacco smoke. Based on your testimony this morning, you would agree with that assessment, would you not?


MR. O'NEIL: Thank you, Dr. Greenberg.

Thank you, Your Honor.

JUDGE VITTONE: Thank you, Mr. O'Neil.

Anybody else?

MS. SHERMAN: I have one additional question. Two, actually.

JUDGE VITTONE: Go right ahead.

MS. SHERMAN: Are you familiar with Dr. Aviado's work?

DR. GREENBERG: I am not.

MS. SHERMAN: Thank you.


Thank you, Dr. Greenberg. We appreciate your time today. Thank you very much.

JUDGE VITTONE: Off the record.

JUDGE VITTONE: Back on the record.

Professor Van Ert?

DR. VAN ERT: Good morning.

JUDGE VITTONE: Would you state your name, please, and also who you are with?

DR. VAN ERT: My name is Mark Van Ert. I am with the University of Arizona. I am the Director of the Occupational and Environmental Health Program.

JUDGE VITTONE: Okay, sir. You may begin your presentation.

DR. VAN ERT: Today I am here to present testimony concerning OSHA's assessment of exposures to environmental tobacco smoke in the workplace.

Let me begin by saying I am grateful for the opportunity to be here today to present testimony regarding OSHA's recently proposed rule regarding indoor air quality as it pertains to the workplace environment.

I am an environmental and occupational health scientist who has specialized in the assessment of industrial and community environments for chemical and physical hazards, particularly indoor air contaminants.

With regard to my credentials, I obtained my Ph.D. in industrial hygiene and air pollution from the Department of Environmental Sciences and Engineering at the University of North Carolina at Chapel Hill in 1974 and have served since 1978 as a faculty member at the University of Arizona, holding positions as Director of the Undergraduate Occupational Safety and Health Program, Co-Director of the Industrial Hygiene Track in the Department of Pharmacology and Toxicology, and most recently as Director of the Environmental and Occupational Health Track in the Master's of Public Health at the University of Arizona. Most of these programs have been sponsored either directly or indirectly by the National Institute for Occupational Safety and Health.

I am a full member of the American Industrial Hygiene Association and the American Conference of Governmental and Industrial Hygienists and am certified by the American Board of Industrial Hygiene.

Since 1974, I have been directly involved in the assessment of numerous industrial, office workplace and home environments for a variety of substances such as formaldehyde, pesticides, solvent vapors and inorganic and organic aerosols.

In a comprehensive assessment of the rubber and plastics industry while a researchist at the University of North Carolina at Chapel Hill, I was fortunate to work with other industrial health professionals in the collection and analysis of thousands of air samples to objectively assess worker exposure to chemical and physical agents.

Data on benzene exposures within these industries were considered by NIOSH and ultimately by OSHA in promulgating the one part per million permissible exposure limit for benzene. In fact, our studies revealed that limiting benzene content of solvents to 1 percent by volume would not restrict exposures of workers to 1 ppm so we recommended lower benzene contents of these mixed solvent fractions.

In addition, I have had responsibility for teaching course work in environmental and occupational health, air monitoring and the toxicology of chemical hazards, directing graduate student research and collaborating with medical toxicologists on the health relatedness of exposures in the office and industrial workplace.

Over the years, I have also assisted OSHA's training institute in Des Plaines, Illinois with educational programs on health hazards in the rubber and plastics industry and evaluating workplaces for indoor air pollutants.

I have also assisted the Environmental Protection Agency in their considerations of indoor air pollution at Waterside Mall, with the transfer of technical information pertaining to the measure of 4-phenolcyclohexene, or 4-PCH, a new carpet emission, in indoor environments.

My current research deals with characterizing and evaluating the toxicology of indoor air pollutants such as 4-PCH and VOCs from carpet and related adhesives.

Publications include numerous reports and articles in books and journals dealing with occupational and environmental hazards and the assessment of indoor air quality.

I am here today at the invitation of the Washington Technical Information Group, Inc., a scientific consulting organization in Washington, D.C. The opinions I will present today, however, are my own.

While the proposed indoor air quality rule is general in scope, some of its most significant and far reaching provisions are the proposed measures for controlling workplace exposure to environmental tobacco smoke. In the preamble to the proposed rule, OSHA contends that exposure to environmental tobacco smoke in the work environment constitutes a significant risk of material health impairment to non-smoking workers.

I am here today to present my views concerning a very important element of the scientific basis for this contingent, namely, the agency's methodology as described primarily on pages 15,986 to 15,992 of the proposal for characterizing typical exposures to environmental tobacco smoke in the workplace.

The National Research Council, the Office of Technology Assessment and the National Academy of Sciences have developed a four-step paradigm to guide our federal agencies in conducting regulatory risk assessments.

One of the latter steps in this risk assessment paradigm after the hazard identification and dose response analysis is exposure assessment. The purpose of this step is to determine or to estimate with reasonable accuracy the magnitude, frequency, duration and route of exposure where exposure is defined as contact between a chemical agent and an animal or human.

In the case of human exposures to airborne chemicals, the exposure assessment typically involves identifying the chemicals of potential concern, pinpointing the sources of these chemicals, evaluating the transport medium and processes, evaluating physical and chemical transformations that the chemicals are likely to undergo in the atmosphere, identifying the routes of entry, and determining the intensity, that is, the concentration and frequency of human contact with the chemicals in the relevant environment.

From OSHA's standpoint, such information is critical to the standard setting process for any agent in the workplace environment.

As health professionals, we appreciate that exposure assessment is a crucial step in this overall risk assessment process. In recent years, substantial improvements have been made in the methodologies for characterizing exposures to potentially toxic chemicals. In particular, there has been a shift towards quantitatively rather than qualitatively assessing exposure. Good exposure practices have been suggested by Hawkins et al. to establish a framework by which exposure assessments may be evaluated.

Now, in Section III of the proposed rulemaking, OSHA reviews the available literature for the purpose of assessing exposure to environmental tobacco smoke in the workplace and concludes, I quote, "Not only that exposure occurs but that non-smokers absorb ETS components."

A review of OSHA's analysis, however, reveals certain deficiencies in the exposure assessment process for ETS which given the importance of exposure in assessing risk, serve to undermine the risk assessment that forms the basis for this aspect of the proposed rulemaking.

The Agency's approach in Section III is presented under six subheadings. Today I will discuss several of these subsections, specifically those dealing with OSHA's assessment of exposure to environmental tobacco smoke.

Field studies are often used to provide data on worker exposures and when considered along with physiological data, behavioral data and dose-response quantification may allow our calculations of risk. In its review of these studies, however, OSHA appears to use field study data to support its a priori belief that exposures to environmental tobacco smoke exist rather than using the data to quantify risk.

Because OSHA believes that exposure exists, the assumption is made that all members of the exposed population are at risk.

Yet, regardless of how the data are used, there are several flaws in the agency's review of environmental tobacco smoke levels. These include the lack of a comprehensive or current database, failure to accurately characterize the data from a statistical standpoint, failure to consider the relevant and factual evidence in the form of current measures of exposure.

Specific concerns include some of the following points:

OSHA relies heavily on the use of human activity pattern studies rather than conventional field studies to asses potential exposures to environmental tobacco smoke in the workplace and concludes that time spent at work is correlated with exposure with estimates of actual exposure duration exceeding 300 minutes a day or approximately five hours.

This finding is questionable, however, for several reasons. When critiquing primary references, such as the California Activity Pattern Survey or CAPS, the agency fails to heed major cautions and reservations cited by the authors regarding study limitations and working definitions. Although one would agree that accurate estimates of exposure are predicated on the product of concentration and exposure duration and are critical to dose estimates for any exposure agent, including ETS, in the CAPS report there were no objective measures of either concentration or duration of exposure. In fact, the authors note, I quote, "The funding level and study design precluded air measurements." In reality, only highly subjective estimates of these critical components were made.

Let me elaborate.

With regard to actual exposure assessment, no measures of ETS components or levels of any other pollutants of interest were obtained for the specific microenvrionments evaluated in this study. Rather, I quote, "The analyses were based upon a person's observational report of other smokers present, not necessarily smoking, and not on objective measurements of exposures."

Dr. Robinson, the primary author of this study cautions, I quote, "That a person's report of other smokers present does not guarantee that the respondent was actually exposed to elevated pollutant concentrations caused by the cigarette nor does our report deal quantitatively with the levels of concentrations caused by cigarette smoking."

Rather, air measurements of pollutants of interest collected in other studies provided the microenviromental air concentration estimates for calculating or attempting to model exposures.

The authors cite that the sources of these air concentrations were derived from residences and other locations. According to Peggy Jenkins, these studies were designed to measure California residential indoor and outdoor exposures to a variety of pollutants.

Jenkins add that a similar relationship would be anticipated in enclosed workplaces although air levels of ETS would be expected to vary. In reality, this comment significantly understates the issue of extrapolating from home to workplace environments, let alone the expected diversity in exposure represented by various occupational work environments and other mitigating factors such as ventilation, mobility and so forth, that would directly influence employee exposure.

Estimates of ETS exposure derived from the CAPS study were also serious flawed due to grossly inaccurate estimates of exposure time or duration. A review of the CAPS report reveals that no measures, no quantitative measures, of exposure duration were made during the conduct of the survey to accurately describe exposure periods or to validate questionnaire results.

Study estimates of exposure duration of 313 and 350 minutes per day for males and females respectively appear quite unrealistic and if one examines the basis for these estimates, his or her concerns are justified.

Dr. Robinson, the primary author of report three warned that one should take major caution in the interpretation of the smoke exposure related durations, or SERDs, as they're referred to, as estimates of potential exposure.

He notes that respondents to the questionnaire were asked simply whether there were any smokers present during the activity and these smokers could have been present for the entire activity or for only part of it. Nonetheless, an individual was assigned an arbitrary exposure period of approximately two hours duration, even though the smoker may have left, as we've indicated, at any time during that activity. No follow-up questions were asked to determine the exact period of this potential ETS exposure duration.

As Dr. Robinson observes, I quote, "The use of the SERD rather than exposure time was intended to highlight the potentially inflated nature of the estimate."

To reiterate the shortcomings of the CAPS study relative to estimating worker exposure, number one, there were no quantifiable measures of ETS made in the CAPS study; secondly, there were no objective measures of exposure duration in the CAPS study, yet these inflated estimates of exposure time became the basis for estimating duration of a worker's exposure to ETS; and, lastly, it is inappropriate and not sound science to use measures of ETS concentrations in home or other environments as appropriate surrogates for the workplace, as done in the CAPS study. Certainly such measures would not be representative of exposure patterns and concentrations in the diversity of indoor occupational workplace environments.

So for the aforementioned reasons, one would seriously question the utility of the CAPS study by OSHA in estimating worker exposure to ETS. The application of such techniques to the assessment of actual workplace exposures represents a significant deviation from industrial health practice in ascertaining employee exposures in the workplace and the significance of those exposures to worker health.

Now, in other parts of OSHA's assessment of exposure to ETS, sometimes OSHA extrapolates beyond the facts presented in a given reference. For example, OSHA's conclusion that blue collar, non-smoking workers have greater exposure to environmental tobacco smoke than white collar workers based upon data contained in the CAPS report is without foundation.

It reflects a misclassification of the workplace into broad, overly simplified categories such as blue collar and white collar workers that do not present a valid, scientific representation of the variety of occupational work settings.

Having evaluated numerous industrial and office workplace environments, I can assure the panel that the blue collar workers would have limited opportunity to smoke at the work site due to considerations of both safety and production. Smoking in such environments is restricted to specific areas and is limited to break periods.

Caution should also be taken by OSHA to avoid relying on certain data summaries from secondary reference articles unless their content has been first reviewed by OSHA to ensure its interpretation is consistent with the primary reference.

Now, in the proposed rulemaking, OSHA has also relied on certain, which today is outdated, information considering the portion of the U.S. population potentially exposed to environmental tobacco smoke and the average consumption of cigarettes per day. The use of more contemporary and hence valid smoking pattern data would very likely reduce the number of workers estimated to be exposed to ETS and assist the agency to better characterize exposures across job classifications.

A critical examination of a much larger scientific base than that available to OSHA during the development of the proposed rulemaking, including extensive reviews by Sterling et al. in 1992, Holcomb, 1993 and a study of 585 office environments by Turner et al. in 1992, suggest that office workplace exposures to environmental tobacco smoke are substantially lower than those implied in the proposed rule.

While OSHA concludes that environmental tobacco smoke nicotine exposures to average workers are between 5 and 10 micrograms per cubic meter, recent studies by Hedge et al., Lambert et al., Turner et al. and Oldaecker et al. indicate average nicotine exposures are well below this range and may be as low as 1 microgram per cubic meter.

Similar discrepancies in OSHA's conclusions about worker exposure to respirable suspended particulates from environmental tobacco smoke exist as well.

Finally, it is inappropriate, as previously noted, to base conclusions regarding workplace hazards on data gathered from homes. The workplace differs substantially from the home environment in all aspects of exposure, including the volume of the occupied space, the opportunity for smoking, proximity to the source, chemical concentration, frequency, duration and intake rates.

Holcomb performed a quantitative assessment of exposure to ETS using detailed data on activity patterns of potentially exposed individuals. For a male exposed at work, at home, while traveling and while engaging in recreational activities, only 27.6 percent of the total environmental tobacco smoke dose was obtained from the workplace. The analogous figure for females was 16.8 percent. Yet most of the epidemiologic and risk assessment studies that OSHA relies on to draw conclusions about hazard and risk in the workplace are based upon exposures in the home environment.

This approach is inappropriate since all features of exposure are likely to be significantly different at home than in the workplace and, as importantly, vary considerably from one work site to the next, warranting studies to examine such variability.

Now, in summary, I believe that the proposed rulemaking at this point fails to properly characterize exposure to environmental tobacco smoke. Thus, the agency's risk assessment which forms the basis for the proposed rulemaking on ETS is flawed. OSHA's conclusion, therefore, that workplace exposure to ETS smoke constitutes a significant risk to non-smoking workers is not supported in the proposal.

At the same time, I believe OSHA's efforts to develop an indoor air quality standard to protect the health of working men and women is commendable.

With respect to ETS and other potential indoor air pollutants, I would suggest that where possible OSHA establish appropriate standards for permissible exposure for such agents and in the context the conventional standard setting process establish performance oriented standards, reflecting a balanced mix of engineering and administrative control measures through which businesses can manage in a flexible manner their indoor environments.

JUDGE VITTONE: Thank you very much, sir.

Ms. Sherman?

MS. SHERMAN: I'm wondering if this would be a good time for a lunch break, Your Honor.

JUDGE VITTONE: Okay. Let me find out if anybody else --

Does anybody else have any plans to ask questions of this gentleman?

VOICE: I may.

JUDGE VITTONE: Okay. Mr. Rupp, Mr. O'Neil.

MR. RUPP: Could we get started now and see how far we can go? Maybe we can finish the day earlier than our usual day.

JUDGE VITTONE: Would you have any objection if I let some of these people go first?

MS. SHERMAN: That would be okay.

JUDGE VITTONE: Would that be all right?

Are you ready, sir?

VOICE: No, I was going to -- depending on the questioning --

JUDGE VITTONE: Okay. How about this? How about if we took a short lunch break and made it 45 minutes, would that be okay? Come back at 12:30?

Would that be all right?


JUDGE VITTONE: Okay, 12:30.


12:38 p.m.

JUDGE VITTONE: We resume with Professor Van Ert.

Ms. Sherman.

MS. SHERMAN: I trust you had a good lunch?

DR. VAN ERT: Yes, thank you

MS. SHERMAN: In our wonderful cafeteria.

DR. VAN ERT: The food was great.

JUDGE VITTONE: He's in a university. He probably eats at a worse cafeteria.


DR. VAN ERT: You have to understand that I don't get collard greens in Arizona.

MS. SHERMAN: Is that something near and dear to your heart?

DR. VAN ERT: Well, yes. I was mentioning to the judge that I also went to the University of North Carolina at Chapel Hill and I was a little bit dismayed when the Tar Heels lost to North Carolina State the other day.

MS. SHERMAN: I think some of the other people in the audience were, too.

You're affiliated with the University of Arizona?

DR. VAN ERT: Yes, I am. I'm a professor at the University of Arizona.

MS. SHERMAN: And does your salary come out of university funds or are you supported by grants?

DR. VAN ERT: Part of my salary comes from state funding, about 51 percent of my funding. The rest will come from grants such as those from NIOSH and other research groups.

MS. SHERMAN: And this is an ongoing thing or that's just for this year that it's like this?

DR. VAN ERT: It varies from time to time. It depends. But I anticipate that it will be like this until I retire.

MS. SHERMAN: And do the same people fund the grants each year?

DR. VAN ERT: Well, NIOSH has been a fairly stable support mechanism for our program. In fact, in the beginning, we were one of the 13 educational resource centers in the United States. We lost center status about eight years ago but the industrial hygiene program was maintained and also occupational medicine. So I work very closely with our occupational and medical toxicologists at the university.

MS. SHERMAN: Are the grants made to the center for which you work or you personally or the university?

DR. VAN ERT: Well, actually the grants go to the university. At this point in time, my colleague, Dr. Crutchfield, is the primary investigator for the NIOSH training grant and I am the co-investigator on it.

MS. SHERMAN: I see. Are you working on any tobacco grants at this point?

DR. VAN ERT: No, ma'am.

MS. SHERMAN: Have you worked on them in the past?

DR. VAN ERT: No, ma'am.

MS. SHERMAN: Have you ever conducted an independent investigation into tobacco smoke?

DR. VAN ERT: Actually, research into tobacco smoke exposures, no. I was working on a research project with a Dr. Michael Liebowitz and I think at a point in time when I deviated in my research interests I think he was about to develop some expertise in the area but we never did collaborate on that.

MS. SHERMAN: So that you also haven't done any inquiry into environmental tobacco smoke in terms of independent research.

DR. VAN ERT: Actual independent research measuring environmental tobacco smoke exposures using some surrogate, no. Not other than in certain private consultations.

MS. SHERMAN: So you have done private consultations in this area?

DR. VAN ERT: Yes. Over the years, I have done those sort of consultations and, in fact, a lot of the research that I have done has actually stemmed from private investigations of either workplace or industrial environments and I've done a considerable amount of work for homeowners in the past dealing with exposures in the home and exposures in their workplace and some of those have involved a variety of agents such as pesticides, radon, carpet emissions and the like. In fact, it was our carpet research that led to the discovery of this new carpet odor or 4-phenylcyclohexene.

MS. SHERMAN: How does this work? A resident of Arizona can just all the university and say send a professor over, I have a problem? How does this work?

DR. VAN ERT: Well, often I would get referrals from the county health department or sometimes they would call the poison control center and since only a specified amount of time was assigned to us as far as university employees, in other words, I was a 61 percent or an 80 percent employee or whatever, in other words, I was funded to that degree, then the rest of my time becomes free to do consulting.

And even if you are a full-time employee or faculty member, you still are allotted one day a week to work on consulting provided that it doesn't interfere with your duties and also provided that it does result in development of expertise in your allied field.

MS. SHERMAN: And so you spend about one day a week doing your consulting?

DR. VAN ERT: I would say over the years it's averaged out about one day a week.

MS. SHERMAN: And so when you get a referral from the poison center, you have a homeowner who has a real or a perceived problem in their home, you might consult with them or do some measurements or -- I'm not sure what else one does.

DR. VAN ERT: Yes, absolutely. And if I might explain that to you, I think over the years, I would say especially in the past, I have done a considerable amount of work for homeowners dealing with the issue of formaldehyde in their homes, whether it be conventional homes or mobile homes, even motor homes. And it dealt with emissions, say, due to -- of course, we had to identify what the offending agent was and then look for its source, but with regard to formaldehyde, we became quite involved in the formaldehyde foam issue, formaldehyde emissions from particle board, wafer boards and so on. And even the utility of those types of materials in wood products and the like.

MS. SHERMAN: So you looked into UFFI and also the emissions from the types of plywood and particle board that may be constituents of mobile homes?

DR. VAN ERT: Yes. Long before it was vogue to do so. In fact, there was a lot of pressure from our colleagues, how could these low levels cause problems.

MS. SHERMAN: These were for individual homeowners rather than the manufacturers of mobile homes?

DR. VAN ERT: I would some work for certain manufacturers if individuals wanted to purchase a motor home, some of those were considered low-emitting formaldehyde mobile homes for the consumer and even sometimes for the manufacturers. We would conduct studies to evaluate the environment and ensure that it was safe.

MS. SHERMAN: Now, when the poison center referred people to you who were clearly distressed at something or other, did you collect a fee for the consultancy or how did you get paid for your work when you did it for individual homeowners?

DR. VAN ERT: Let me go ahead and qualify this first and let me say that, number one, any private work that we do, we do on our own and we do not formally represent the university, regardless of what it is, whether it's with industry, for the homeowners, for the county health department. Sometimes I've even worked for them evaluating their environments. In certain instances, yes, we would be paid for doing certain types of assessments like that. Other times, they would be done gratis. Any time that I would involve my student in an assessment of an industrial workplace, home environment, office workplace or the like, that is always done for free.

MS. SHERMAN: Now, when you -- and you've also been involved in these assessments for commercial or industrial groups?

DR. VAN ERT: That's true.

MS. SHERMAN: And those are not done for free.

DR. VAN ERT: Not usually, no. Sometimes I will give presentations to their workers and so on. Sometimes those are for free. Sometimes there are other situations such as worker right to know programs that they want formally developed and I will charge for those.

MS. SHERMAN: I'm sort of not really dealing with your information services or HAZCOM types of issues. I guess I'm asking you if when you go out to evaluate a workplace or a building because it's causing problems, you don't do this work free, do you?

DR. VAN ERT: Generally not but in a number of instances, yes.

MS. SHERMAN: Because it's consultancy, it doesn't get billed through the University of Arizona, it's a private matter?

DR. VAN ERT: That's correct.

MS. SHERMAN: And do you charge on a daily basis, on a time and materials basis? How does one usually charge to do an exposure assessment?

DR. VAN ERT: I would say over the years I've had sort of a variable rate schedule. Like homeowners, they would be done at what I would consider to be a very fair price. I think for formaldehyde assessments, which would include going out to homes, conducting the air monitoring, developing reports and so on, and certainly inspecting the home ahead of schedule to make sure that we thought that that may be the offending agent, there may have been a lot of other causes and that's certainly happened in the past, and that's why we determined that in indoor air pollution there are a multiplicity of potential causes of problems. Usually in those situations I think I started out charging around $25 and I think -- although I haven't done those for probably three or four years, I think at the very end they probably cost, including analysis by an outside lab, $125, $140.

MS. SHERMAN: So then there's -- you're not really charging by the square foot?

DR. VAN ERT: No, ma'am.

MS. SHERMAN: And you're really not charging by the amount of time.

DR. VAN ERT: No, not unless it's an industrial type of a situation. For example, an IBM or a Motorola or some other type of firm asks me to go out, then what I would do is quote them a specific hourly rate or flat fee to conduct whatever assessment they thought was appropriate.

MS. SHERMAN: Okay. So in the industrial context, then you are quoting a rate that's essentially based on your time.


MS. SHERMAN: And do you have any formula to figure out how much time it takes you to evaluate a building by square footage or number of floors? In other words, how do you go about if I have an industrial installation in Phoenix and I want you to come look at it because some of my workers thin the building is making them sick, how would you give me an estimate as to how much it's going to cost me to have you come and do an evaluation?

DR. VAN ERT: The question is a very interesting one. I've never done that by the square foot. One of my colleagues --

MS. SHERMAN: I'm not saying it's done by that. People have suggested to me that this is the way it's done.

DR. VAN ERT: I know it's done for asbestos, for inspections and so on, and if I would do that, and one of my colleagues does do that, I have not done much asbestos work in that particular realm, generally what I do is I simply charge them on an hourly basis. I just quote an hourly fee.

MS. SHERMAN: But in determining what your hourly fee is, you probably look at the number of square feet that you're going to have look at?

DR. VAN ERT: Yes. That would give me a general appreciation of about how long it would take to do at least a preliminary environmental assessment. A walk through, maybe some limited sampling if they could give me some preliminary insights regarding what they think the hazard is so certainly the area would help define how much time I thought it would take for the preliminary and then what I'll do is get back with them and give them -- if it requires additional work, more detailed air monitoring, we'll give them an estimate based on the time that I think it will take to do that air monitoring plus analytical costs which are passed along at cost to them.

MS. SHERMAN: Now, what type of a protocol do you follow in conducting indoor air quality investigations?

DR. VAN ERT: Well, I can tell you what kind of protocol I have used in the past. I mean, it probably doesn't adhere specifically to some of the current protocols that are being developed to standardize these types of assessments, which I think is very important because I see a number of these assessments being done by, unfortunately, some unqualified people, and in that regard before I detail this other area I would say that we need to make sure that the people who do these assessments are very qualified. But to get back to your question, and I'll let you repeat that again so I make sure I answer it properly.

MS. SHERMAN: When you go in to do a building investigation, a building investigation involving indoor air quality, to be specific, what type of a protocol do you follow?

DR. VAN ERT: The protocol I follow is number one I sit down with management and preferably the affected or impacted employees to get a thorough description of what the situation is, what the symptomatology is because sometimes the symptomatology from a toxicological standpoint will tell you what type of family of compound may be impacting their health. Then we will do a walkthrough survey of the area.

At the same time, if a number of people are being impacted, we will also distribute a questionnaire that we have developed.

MS. SHERMAN: How many of these things have you done?

DR. VAN ERT: Over the years, probably -- I wouldn't say I've done this many questionnaires but you want to know how many assessments I've done?


DR. VAN ERT: Hundreds.

MS. SHERMAN: Do you ever look at complaint logs to find out on a geographic basis where the complaints seem to be centered or any other common information that can be gleaned?

DR. VAN ERT: Well, sometimes those logs aren't in existence but what I will do is I will query those individuals. Very often what I'll do is get a schematic of the work areas --


DR. VAN ERT: -- and then what we will do is plot where the complaints are. I will visit each of those areas. I will talk to each of those employees. So I have an appreciation of what is going on. And I always want to talk to them individually so there's not the power of suggestion from one employee to another.

MS. SHERMAN: You say frequently complaint logs are not available. When they are available, do you find them useful as a starting point?

DR. VAN ERT: Yes. And some people will have kept those complaint logs. In fact, when I talk with them, they'll say -- in fact, the temporal history or the relationship of the onset of problems to some event becomes very, very critical.

So talking to the individual employee will give us a good appreciation of the temporal history. How long has this been going on? And because sometimes then we may be able to relate it to some activity that's gone on. For example, a pesticide treatment indoors or the like. And we've been very successful in establishing temporal relationships and the onset of these problems.

MS. SHERMAN: Do you find that some workers have adverse reactions to pesticide applications indoors?

DR. VAN ERT: We find, and I've found over the years, that some people may be more susceptible to odors, possibly on a physiological basis, possibly on a psychological basis. So we have to be very careful. In a lot of instances, we will collect air samples to characterize the pesticide concentration. In fact, I've done much more of that in homes with like chlordane in the past and the like.

And what I've found that's been in concert with what some experts at U.C. Davis have found, that in spite of banning chlordane what we've found is similar symptomatology in individuals and what we're attributing that to now is not the so-called active ingredient in pesticides but rather the "inert" ingredients which are not inert but rather some of the hydrocarbons such as xylene and mixed petroleum fractions that we think probably precipitated the entire chlordane issue to begin with.

MS. SHERMAN: But you agree that odors can make people ill.

DR. VAN ERT: I think, number one --

MS. SHERMAN: Even if perhaps not terminally.

DR. VAN ERT: Odors can serve as a surrogate for an exposure, possibly even an overexposure. But I think for some individuals odor may simply trigger some type of psychological aversion. It may be that somebody has had an unfortunate experience with an exposure in the past and it may be like eating a certain food that was tainted or whatever, you became sick and as a result you have an aversion towards that.

I think that similar phenomenon can occur in people and I've seen a number of cases like that. In fact, it was a new carpet issue that I first dealt with that ultimately led to the research on new carpet and it was a lady whose husband had worked in the petrochemical industry and over the years she had developed a hypersusceptibility to these hydrocarbon odors and then many years later when she had new carpet installed in a home she was being bothered.

When we went into the home, she thought, "Well, Dr. Van Ert, this has to be formaldehyde" and we monitored for formaldehyde and I told her that wasn't the case because it was too low, in our opinion, to induce any problem and she thought it had come from the new carpet but that's when we initiated our work to characterize what was coming off of that particular carpet. And that particular hydrocarbon was, even at low level, was sufficient to induce some problems for that individual.

MS. SHERMAN: Now, it's sometimes difficult to distinguish between a psychological and physiological effect, is it not?

DR. VAN ERT: Absolutely.

MS. SHERMAN: And so sometimes the better course of dealing with these things would be to just make whatever the thing is go away.

DR. VAN ERT: In certain instances. And that's why we think that -- and as I've looked at the proposed rulemaking, I think the ventilation, improved ventilation, quality control measures to establish specific guidelines for ventilation is very important because that will help to address the myriad of potential indoor air pollutants that may be truly not only offensive but may elicit reactions in some people.

MS. SHERMAN: And so it would probably be far more practical than having a very elaborate regime of measuring these low quantities of substances and establishing PELs for the numerous contaminants that one might find in an office building.

DR. VAN ERT: I think you make a very good point because even with VOCs and I know some suggestions have been made by the Scandinavians regarding total VOC exposures and some proposed here as well, as well as maybe cigarette smoke and the like, I think good indoor air quality that is provided by a mixture or a good distribution of air as well as an adequate amount of fresh air becomes very, very critical to the health of individuals, probably the overall productivity of those people.

MS. SHERMAN: Have you done any productivity studies --


MS. SHERMAN: -- associated with indoor air quality?


MS. SHERMAN: When you go into these industrial settings to do your investigations of indoor air quality complaints, do you find that schematics and other information about the ventilation system is readily available to you when you ask for it?

DR. VAN ERT: It always has been available to me. It's one of the first questions that I ask and it helps me to appreciate the distribution or potential distribution or transfer of a pollutant, especially in an industrial situation from, say, a work area into an office work area. In office workplaces other than the industrial situation, it can be -- it certainly poses a different set of criteria that have to be evaluated.

MS. SHERMAN: What about in non-industrial settings, office buildings, large complexes with various different work establishments within them such as offices, restaurants, et cetera? Do you have experience with that?

DR. VAN ERT: Yes. I have not done that much work in restaurants and so on but I have done quite a bit in office workplaces whether they be small or large, you know, multiple story buildings and in homes. And, again, each situation is somewhat unique.

But, again, what you want to do is you want to address where the problem area is to see if you can figure out what the cost -- and it's interesting and I've seen a lot of governmental reports by NIOSH and so on that have not necessarily been able to attribute the problem to a specific agent or whatever. I differ. In the experience that I have had, we have almost always found a cause, whether it be biological or chemical in nature.

But regardless of that, I would say that in the great majority of cases appropriate ventilation or even ensuring that that ventilation system is clean because they tend to accumulate all types of hazardous materials whether they be biological or chemical, the deposit and then when the units kick on, like air conditioning units, they will tend to create pulse exposures. It was interesting, like even in one environment where we had most of the people in that office workplace smoked and everybody was fine. What happened is that the emissions would accumulate on the coils and then in the summertime when it became humid, like in Tucson, and the unit would kick on and cycled as demanded, that it would give you a pulse of whatever that mix was. It would get solubilized in the water due to the humidity, condensing on the coils, and get a pulse in the room and it would make people develop headaches and so on. And once we realized that those units needed to be cleaned, or they realized after our recommendations that those units needed to be cleaned more frequently, there were no further problems.

MS. SHERMAN: I didn't realize it was ever humid in Arizona.

DR. VAN ERT: Oh, yes, it is. We get monsoons in the summer.

MS. SHERMAN: So you have found that lack of proper maintenance is frequently associated with indoor air quality problems.

DR. VAN ERT: Lack of proper maintenance and another issue is maintenance, making sure that condensate lines have proper traps and are not plugged and that those condensate lines should not go to the relief vent for like toilets and whatever. And in Arizona, we have had a major problem with that. It's a code that their condensate line, rather than just letting drain off, you know, let the water drain off the roof because there isn't that much of it really except at humid times, they will go ahead and vent that or drain that directly to a pressure relief vent for the sewer system or the toilets and as a result once the trap, due to dry air is evacuated, there's no water in the trap, it will actually draw sewer emissions into the air. And you can't really smell it. Over the years I've tried to develop an analytical methodology for measuring it, to demonstrate it, but it's so low and yet it causes some very subtle but significant effects in certain people. So in addition to maintenance, proper venting, appropriate amount of fresh air, good distributions of air, proper distribution within the building is also very important.

MS. SHERMAN: Do you find that the new way of constructing office buildings where they essentially sort of put in office partitions to suit the particular tenant causes a lot of ventilation problems because the building isn't properly designed or perhaps the person designing the ventilation system is not the person designing the office space?

DR. VAN ERT: As long as you have good air distribution, you're okay because for the most part I would think that those lower partitions don't impede air transfer. We just have the appropriate volume of fresh air and fresh air distributed, well distributed, to the employees. Otherwise, I think that situation should be okay.

We have had problems when those were made out of synthetic products such as the particle boards in the past were synthetic boards and they would emit formaldehyde, even their desk would emit formaldehyde. And what's so interesting about that, too, it's the proximity to the emission source that becomes critical. Sometimes just opening a drawer that's constructed of formaldehyde, there's your exposure. So if you take a measurement in the middle of the room, you're hardly going to be able to measure anything. And I found that same situation in numerous homes where people will buy synthetic bookshelves and so on, place them next to their beds, and develop very serious problems.

MS. SHERMAN: How long does it take for these products to sort of off-gas and get to the point where they really don't bother people any more? Are we talking weeks, months or years?

DR. VAN ERT: I would think for like particle boards, many of those used in the past, probably even some of those used today, chip boards and the like, many years. I have estimated around six or seven years before they've suitably out-gassed, not to produce a problem.

MS. SHERMAN: I see. Now, when you go into homes to do your indoor air quality investigations, do you follow the same protocols that you would follow in an office building?

DR. VAN ERT: It's usually a simpler protocol because it's a more controlled environment. One of the first questions I ask the residents of the home -- of course, one of the ones they ask me, Dr. Van Ert, there must be some pollutant over here, if there's formaldehyde in here, what kind of symptoms should I be experiencing and I say, well, why don't you tell me the symptoms that you are experiencing and with that I usually can start to categorize what the potential families of chemical compounds are that could contribute. But typically I ask them questions that characterize what is different in the environment. Is this a new environment that they've just moved into, have they actually lived in the community for a long time so we can look at indigenous species, you know, natural offensive agents such as pollens to see if they wouldn't cause a problem. We'll even look outside to see if there's mulberry trees or whatever and, again, that's a function of symptomatology.

MS. SHERMAN: Mulberry trees are bad?

DR. VAN ERT: Mulberry trees are bad. A number of people have allergies to those types of trees. But, again, establishing a temporal relationship. When did this problem first arise? And I've seen people with every kind of problem, from acute carbon monoxide poisoning because their gas furnace has gone bad and you can actually see their pink skin. I had a little 80-year-old couple like that that thought it was formaldehyde.

MS. SHERMAN: When you do these indoor air quality investigations, do you write a report, do you keep copies of the reports that you write or is this the property of the person you write it for?

DR. VAN ERT: I have kept the reports, some of the reports, over the years. In a number of instances, I don't even write a report. It just depends what the situation is. For almost all of the formaldehyde assessments, though, I have written reports for the people.

MS. SHERMAN: We would be interested in your sharing some of those reports with us, not only on formaldehyde issues but other issues that you have encountered. If it's necessary, you can take the personal identifiers off these reports.

DR. VAN ERT: Some of those reports I would have, some of them, to be quite frank, just recently from many years, I just sort of dumped a lot of them because they were taking too much space. But I would be happy to share with OSHA my experiences. I do have pretty good recall, I'm getting a little older but my long-term memory is good still. And I would be happy to share the many different experiences that I've had because I think if you do develop very standardized protocols, I think a lot of these situations can be resolved and we can have a better appreciation of the identity of things that can contribute to problems of sensitivity, even sometimes multiple chemical sensitivity and whatever.

MS. SHERMAN: Have you encountered problems with complaints of people working off-shift, for instance, maintenance workers applying various floor cleaners when the ventilation system is either down or at a diminished capacity?

DR. VAN ERT: That's an interesting question and because in my activities over the years, what I've seen is that some compounds that we think are relatively innocuous, such as cleaning agents?


DR. VAN ERT: Really are materials that are contributing to people's problems. Low level irritants. The fact that these compounds are quite active, even though they're not very volatile, they'll tend to build up over time. And so if you compound the situation with a very energy efficient system, a ventilation system that doesn't provide the adequate amount of fresh air as specified by ASHRAE, then you're going to have buildup and I've seen these problems in many industries, especially large office places, office workplaces and in hospitals and so on.

MS. SHERMAN: We would be interested in any written material that you have produced on this issue because we are grappling with how to deal with it.

DR. VAN ERT: I think your best way to deal with this and the way that we have dealt with it in the past is, number one, ventilation because it does help to dilute and to reduce the buildup of these types of materials in environments. I think the other issue that's of concern is appropriate dilution of these materials when people use them as cleaning agents. And I think those are probably the best way to resolve it. Otherwise, I think it would get so complex it would be difficult for us to regulate.

MS. SHERMAN: Have you been called upon to do building assessments in what we refer to as multi-employer work sites?

DR. VAN ERT: Define for me what you call multi-employer and I'll tell you if I've --

MS. SHERMAN: Well, let's take perhaps a typical example in a city, a large office building. It has leased office space to a number of different employers. Perhaps on the ground floor there would be a restaurant and perhaps a dry cleaner. Possibly a car dealership or a bowling alley. Have you had much experience with buildings such as this?

DR. VAN ERT: I have had experiences with some of those buildings and certainly one of the first questions to ask is do they have independent ventilation systems and, of course, where are the -- if they have exhausts, where are those exhausts relative to the intakes for other systems.

Now, I can tell you that I worked for one very large corporation in which white collar workers were having a variety of health problems and we ultimately looked at their work space relative to adjacent ones. What we developed many years ago was actually fingerprinting, chemical fingerprinting of the environment, which really is quite straightforward, it's collecting the pollutants and doing a chemical fingerprint of what's in that environment, controlling the sampling methodology so we can compare concentrations and then seeing what's there and determining what the source is.

Now, in this particular situation, what we found, there was a process down the hall and what was happening is the exhaust for that process was being emitted from the roof, the stack wasn't high enough or the meteorologic conditions were such from time to time that it would get re-entrained actually into a very significant intake system that was some distance away. So you wouldn't have expected it but the fingerprinting on the roof and the ventilation and the rooms and so on ultimately let us trace the pollutant and what that corporation did was spent a considerable amount of money on a control system for those pollutants.

MS. SHERMAN: So then you would agree that source control is important.

DR. VAN ERT: Source control probably is very important.

MS. SHERMAN: But it's not necessary to do chemical fingerprinting in all situations, is it?

DR. VAN ERT: No. No. Source control is important. Ideal ventilation, making sure that that ventilation is not tainted by some exhaust system or emission product is important.

MS. SHERMAN: And so you have encountered situations where one workplace within a building is contributing to another workplace's problems.

DR. VAN ERT: Another work area's problems, yes. and I have had a few other situations where, yes, one workplace was contributing. Actually, we had pollutants -- it was from a dry cleaning operation, it was getting into an adjacent suite and so this was all one level and the vapors, perchlorethylene vapors, were simply being transported into the next suite.

MS. SHERMAN: So do you think that an integrated oversight approach would be useful in combatting such a problem so that the different tenants would coordinate with each other?

DR. VAN ERT: I think that would be useful. Certainly the building managers are the ones that we have communicated with in the past and they have asked us, in the situation we did work on is that one of their tenants had left and they had had some complaints about odors, so then we went in, evaluated it, traced it, so there was no question what the source was and then that building manager could go to the generator or the source and say you have to change the ventilation. Sometimes we would even work with that group for them in making sure -- in ensuring that that room is negative relative to the adjacent work sites.

MS. SHERMAN: So now you spend approximately 20 percent of your time doing consulting work of one sort or another.

DR. VAN ERT: Yes, I would say that's an average, yes.

MS. SHERMAN: And so this is done just you privately, not through the university.

DR. VAN ERT: No. It's never been done through the university.

MS. SHERMAN: And so your coming here today is not being done through the university, it's being done as part of your private consultancy?

DR. VAN ERT: This is private consulting, yes.

MS. SHERMAN: Did you submit your C.V. for the record?

DR. VAN ERT: I thought I had but if I haven't, I'd be happy to forward you one, an updated one.

MS. SHERMAN: Thank you. Have you done any work for Washington Technical Information Group before this assignment?

DR. VAN ERT: Prior to this assignment, I have only had one other opportunity to work with this information group and it was probably several years ago and it dealt with health issues in a large industry in the southwest. They were asking what kind of expertise I could provide and, as I recall, I never ended up doing any specific work on that particular project, they just wanted my insights at that particular point in time. Other than that, I haven't worked with the Washington Technical Information Group.

MS. SHERMAN: Did Wash Tech provide you with all the literature that you cited in your testimony?


MS. SHERMAN: Or did you conduct your own independent literature search?

DR. VAN ERT: They provided me with some of the literature. They asked me to evaluate a very specific section of the proposed rulemaking, namely, that section dealing with exposure assessment. And, of course, there was feedback between me and the group, they wanted my opinions and in certain instances I didn't have ready access to some references and so I asked them if they had those at their disposal. And for some of those, I received some of those from them. And I developed written comments for them as well in my appraisal of that situation and they had asked me if they could use those at their disposal and I said certainly, have hired me to perform my evaluation, whatever you would like.

MS. SHERMAN: But you also conducted your own independent literature search?

DR. VAN ERT: Yes, that's true.

MS. SHERMAN: In responding to the task at hand?


MS. SHERMAN: And what databases did you search?

DR. VAN ERT: Usually, I -- well, I used certain databases. I listed for part of this the assistance of one of my colleagues who is a DVM MS toxicologist who assisted me, going to the library, picking out articles, so I'm not sure exactly what he used in all of those. I had some references at hand already and then he went to do other ones.

MS. SHERMAN: So he did the literature search for you?

DR. VAN ERT: He assisted me in a lot of that. Yes.

MS. SHERMAN: And did you prepare your own testimony?

DR. VAN ERT: Yes, I did.

MS. SHERMAN: I think you said something earlier in your discussion, you were talking about some of your work with carpet emissions?


MS. SHERMAN: And you were talking about 4-phenocylcohexane?

DR. VAN ERT: Yes. Hexene.

MS. SHERMAN: Hexene. Excuse me. That's a different compound, isn't it?

DR. VAN ERT: A lot more odors.

MS. SHERMAN: And this is what you referred to as 4-PC?

DR. VAN ERT: Yes, 4-PC or 4-PCH.

MS. SHERMAN: And is that a toxic contaminant that can be emitted by carpets?

DR. VAN ERT: I think that's a potential toxic agent that can be emitted by carpet. Some studies have been done on that particular agent and we wouldn't say that it's an acutely toxic substance but nonetheless I think that that substance probably can cause irritation at relatively low levels, maybe some other CNS effects, lightheadedness, dizziness and so on, depending on not only the magnitude of the exposure but the duration of the exposure.

MS. SHERMAN: And so it can cause indoor air quality problems?

DR. VAN ERT: I think it can contribute to indoor air quality problems, at sufficient concentration or sufficient duration.

MS. SHERMAN: Now, how long does it take carpets to off-gas to a neutral or a non-bothersome level?

DR. VAN ERT: My appreciation of that situation, having monitored the buildup in homes of 4-PCH over time, including my own home when I had new carpet installed in it, I had one of my graduate students actually monitor the home over a six-month period. Based on what I've seen in that particular study and based on what I've seen in evaluating a number of indoor air environments for that particular potential contaminant, including workplaces, homes and the like, what I've usually found is that if the concentration is less than about five parts per billion to begin with, typically we won't have many problems associated with the new carpet syndrome. If the concentrations are higher in that environment, namely, reaching about 30 to 50 parts per billion, which they can, which is a relatively odoriferous situation with this particular compound, I think in those situations, if you don't flush the building out quickly, you could have a problem and our studies have indicated that with the decay patterns that most of it is emitted within the first two to four days and if you air a building out during that period, even with a batch of carpet that emits a lot of this 4-PC, typically you won't have a problem but what's unique about the chemical itself it's fairly -- and we were the first ones to synthesize a pure chemical of 4-PCH, is that because of its oily nature, if you don't flush the home out, then it becomes attached to surfaces and it gets re-emitted, so you sort of have a bounce phenomenon there.

MS. SHERMAN: But you don't have as long a period of concern as you would with formaldehyde-related emissions. Or do you?

DR. VAN ERT: That's true if you qualify it by saying that the source of the formaldehyde would be a long duration emitting surface, such as a thick particle board, where it takes a long time for that product to emit it.

MS. SHERMAN: I'm thinking of particle board, I'm thinking of plywood, I'm thinking of UFFI, to the extent it's still used.

DR. VAN ERT: I would say plywood has never posed quite as much of a problem as the particle boards did because particle boards are just chips in a lot of resin. I would think, to be quite frank, I think particle boards are even worse than the UFFI as far as causing problems, although I saw some very significant problems with UFFI when it was properly mixed and it just leeched right through sheetrock right into the room and created concentrations up to three parts per million in certain environments.

MS. SHERMAN: For long periods of time?

DR. VAN ERT: For sustained periods, yes.

MS. SHERMAN: Have you encountered problems with indoor air that you feel have been caused by carpet cleaners?

DR. VAN ERT: I would think that that's unlikely, based on my experience. I have seen certain situations with carpet cleaning where people have actually used the carpet cleaning material full strength, people sort of use it in-house, and didn't dilute it down and so on and then what happened is that it dried and an aerosol was formed and people developed respiratory problems because of that. We ultimately vacuumed that carpet. And this was even after steam cleaning it with pure water several times.

MS. SHERMAN: It just stayed put?

DR. VAN ERT: It stayed. A lot of it remained. And we actually vacuumed the carpet then without a bag and used a high volume sampler to collect the aerosol and took little strips and put it in distilled water and it sudsed still so we knew we had a source of detergent in the air. Finally we got rid of the carpet, no more problem.

MS. SHERMAN: Well, that's the ultimate solution, isn't it?

We talked briefly about 4-PC in carpets but carpets have a number of other compounds associated with them that have been associated with indoor air quality problems. And I take it you have experience in investigating some of these issues. Do you recommend that ventilation be increased when carpet is laid?

DR. VAN ERT: I would think that there are several factors that would contribute to better control of these emissions. Number one, if we had fairly ideal ventilation to begin with, namely around 20 cubic feet per minute per person of fresh air, I think we would probably sidestep a lot of those issues. At the same time, the carpet issue is a complex one and we'd be very careful with it, namely, in the laying of carpets in homes, you simply have the carpet with its backing used to bind the fibers and you will have some 4-PC and some other VOCs that will come off at low levels. What we realized in our very early work is that many of these VOCs were fairly common ones and would not be expected to cause problems and when we first identified this 4-PCH, it actually represented one of the least significant peaks but it was fairly unique, we didn't know what it was. And so when we started studying it and did GC mass spec with one of my graduate students, we ultimately identified it as something we didn't know anything about, we tried to purchase it, we couldn't purchase it, and then we went ahead and synthesized it with our polymer chemists at the university. And when we got it, it was a clear viscous liquid and it smelled just like new carpet. So we knew we had something unique and ultimately our studies told us that the odor was quite noticeable or the odor threshold existed probably at around a part per billion or less, so we knew it was fairly unique from the odor standpoint as well, as odoriferous as things like mercaptan used in natural gas and the like.

But to expand a little bit on the carpet issue being complex, in a home lay, you have the carpet over a pad and I think in most instances the padding is not contributing. I have some suspicions about some of the polyurethane mix, you know, where you see the multi-color? I think it's something that should be investigated. We haven't had time to look at that yet, so that's a potential contributor. I think the waffle pads are more unlikely, so very often it's just the carpet per se.

You take a commercial lay of carpet, though, you have a totally different world. What happens there in most cases is that they glue the carpet to the floor.


DR. VAN ERT: And we have actually done some studies, I haven't published them, haven't had time, but one of my students and I did some studies in which we looked at the permeation of these VOCs from certain glues through -- or the VOCs from those glues through the carpet and they are fairly readily transported through the carpet and actually the fiber is serving as sort of a sponge, so the fiber picks it up and then releases it, as you might expect.

And in those situations, actually some of the most significant indoor air pollution problems in buildings that we have seen have been from commercial lays of carpet and I don't believe that it has been the carpet per se that has been the major offender or major contributor but rather it may be the glues that are used in a more generous fashion.

MS. SHERMAN: And how long do these problems take to cure themselves, if you will? Perhaps that was an unfortunate use of a term.

DR. VAN ERT: Again, all of these problems are compounded by a lack of fresh air.


DR. VAN ERT: We did one in the Social Security building in Tucson, in fact, Social Security in D.C. called us and was concerned, if we didn't have a lot of personnel problems out there in Tucson but that wasn't the case. We actually had people vomiting in that particular case, major headaches, lethargy, other CNS types of effects.

MS. SHERMAN: Attributable you believe to --

DR. VAN ERT: Attributable to -- it was to the reconstruction that went on. We had a major glue down of this carpet. No windows that would open. The ventilation system was 100 percent recirculated air. I had to have them take out windows, do major modifications to the ventilation. And, in addition, the doors were located on opposite sides of the building with a lot of office spaces in between so there was no way even to ventilate the complex in that fashion. So definitely ventilation was compounding the issue and I don't think I've ever seen a situation where ventilation hasn't been at least a major player in an indoor air problem.

MS. SHERMAN: Do you think in general we have saved on energy costs by cutting down ventilation and increased indoor air quality problems in the process?

DR. VAN ERT: I think that's been a very major contributor. I think what we've seen post World War II is an expanding economy in this country with the development of many buildings and so on with their varied ventilation systems and so on and I think what we haven't had is proper maintenance of these ventilation systems and certainly in the 1970s we saw in an effort to be more energy conscious that we also tightened the buildings up, not only the new ones became tighter, some of the old ones became tighter. We simply didn't provide as much fresh air as we used to. And so I think that has compounded the situation.

MS. SHERMAN: Do you think that it is appropriate to specify a minimum ventilation -- I lost my train of thought, I'm sorry.

DR. VAN ERT: Something about specifying a minimum amount of ventilation?

MS. SHERMAN: Yes. Do you think that that would be a useful exercise or do you think it would cause tremendous chaos because of buildings being engineered a certain way?

DR. VAN ERT: Well, I think regardless of the engineering, I think that ventilation systems could be modified to greatly improve indoor air quality, especially in situations, many situations, where people simply aren't getting enough fresh air in those buildings.

I would probably adhere pretty closely to ASHRAE's recommendations. I think they've done a good job recently and I think even if we had to -- I don't know how in the standards you could qualify it in such a situation where the ventilation wouldn't directly be in compliance with an ASHRAE --

MS. SHERMAN: Well, as you no doubt are aware, the ASHRAE recommendations have changed throughout the years.


MS. SHERMAN: My understanding is they've gone anywhere from 5 cfm to 20.


MS. SHERMAN: So if somebody in good faith designed a building to provide 5 cfm, can the system in your opinion generally be modified, if not to provide 20 but at least to provide more than 5?

DR. VAN ERT: I think we would give some flexibility there. At least greater than 5, I think it would greatly improve the situation around the country in most buildings. Twenty is on the higher end. It's very safe.

MS. SHERMAN: Do you think it's a worthy goal?

DR. VAN ERT: I think it's a worthy goal. So maybe we ought to state maybe something like a minimum. But I would -- you know, I think what should be done in that particular context is pull a number of experts together, you know, in ventilation designs and so on, and look very carefully at some of the ventilation studies, that have looked at the reports of the problems relative to the amount of fresh air and maybe we can come up with some reasonable minimum and then the ideal.

MS. SHERMAN: In your experience, have you found that sometimes your indoor air quality problems are being caused by just merely stuffing too many people into a given space without modifying the ventilation?

DR. VAN ERT: Yes, I think that's happened from time to time.

MS. SHERMAN: And has it been your experience that frequently the landlords don't have a good idea as to how many people are using a particular space and for what purpose?

DR. VAN ERT: I really can't comment on that. I don't know what their opinions would be.

MS. SHERMAN: I was just thinking that perhaps you had uncovered this as part of your investigations.

DR. VAN ERT: No, I really haven't. I would think in most situations that I've worked on, the buildings haven't been overly occupied.

In many situations, though, when you ask the landlord or even the building engineer, "Are you getting fresh air and are the systems maintained?" the answer will be, "Yes, we're getting makeup air. Yes, they're maintained." And yet you'll go up and there's no provisions for makeup air, and I always inspect them, and secondly they have not been maintained, the filters are filthy, the unit itself is filthy inside.

MS. SHERMAN: From your experience, do you attribute this situation more to ignorance or more to cost cutting that's inappropriate?

DR. VAN ERT: I'm not sure what it's really due to. I think it's just a lack of really awareness on the part of building owners or just simply a lack of concern. They've never had to really address the situation.

MS. SHERMAN: So perhaps it's more attributable to ignorance.


MS. SHERMAN: Because nobody purposely makes somebody else sick.


MS. SHERMAN: On page two of your written comment you say that OSHA has reviewed the available information and concludes that not only exposure occurs, but that non-smokers absorb ETS components.


MS. SHERMAN: You're not disputing, are you, that non-smokers are exposed to ETS components, are you?

DR. VAN ERT: No, I think there is certainly the potential for non-smokers to be exposed to and even absorb even ETS components. I don't question that. I think my comment is that what I found with our approach with ETS, and it's just kind of been in one sense kind of singled out as a pollutant when we have a number of potential indoor air pollutant contributors. But when we get to environmental tobacco smoke, I think as I looked, for example, at the reliance of OSHA on the CAP study and so on, and it was such a subjective study, that was not characteristic of what we've seen with the development of other types of standards in the occupational health arena. The fact that just somebody may smoke and we may have transient levels of cigarette smoke or background levels in an environment is... Background levels may not be that important.

The health problems or potential health problems are a result of the magnitude of exposure, regardless of what you want to look at with regard to the exposure agents of concern. So I felt that maybe OSHA has been far too general with the ETS, and maybe not included the same concepts, or not followed the same concepts that we've developed in the past for ascertaining workers' exposure, the significance of exposure, and the potential health impact of that exposure. So what I'm saying here is let's be more specific. I know it would be difficult to develop standards, but I think sometimes performance standards are the best way to go.

With regard to ventilation, I know there are some people that espouse, or some groups that espouse that well, if you ban smoking in the workplace, that you probably alleviate a lot of the problems, and yet you don't have to modify ventilation.

I don't think that's the case. Because if you look at all the situations that I've worked on, namely hundreds and hundreds of cases, most of them haven't been due to environmental tobacco smoke. Most of them have been due to other agents, and it's been due to a lack of ventilation.

So if we don't... I think in this standard if we eliminate provisions that really state the need for adequate ventilation, then I think we won't address most of the indoor air pollution problems that I think OSHA wants to remediate in this proposed rulemaking.

MS. SHERMAN: Except in your comments under Chemistry, you indicated that you didn't feel that OSHA had adequately defined environmental tobacco smoke. What do you think a definition should be?

DR. VAN ERT: I think ultimately OSHA needs to come up with, if you're to develop... How should I state this.

I think the point is that with any other chemical contaminant that we've developed a standard for, especially with compounds like benzene, we did a risk assessment based on our appreciation of exposures and the toxicology of the compound, and ultimately we restricted employee exposure based upon those facts.

I think with environmental tobacco smoke, I don't think we've done that. I don't think we've yet picked out... If we're to develop a standard for it in the workplace environment, and then let industry, the office workplace, managers, whatever, control it by evaluating or monitoring it. We haven't followed that sort of protocol. And I think that's very important.

Setting any opinions that I have aside regarding cigarette smoke or smoking, is there are situations, and they're in the published literature, that talk about cigarette smoking, and you don't have a problem in the workplace if it's properly controlled. I think I've seen the same situation myself.

MS. SHERMAN: When you're making a statement like that, though, isn't it important to distinguish between acute or irritating effects that may be associated with exposure to tobacco smoke, versus, perhaps, longer range effects that may be associated with exposure to tobacco smoke? When you say something like, well you don't have a problem, those statements, are they not, focused on the acute, annoying aspects of tobacco smoke?

DR. VAN ERT: I think in most of our other situations with other chemical compounds we addressed not only the short term acute effects, but long term health effects as well.

MS. SHERMAN: I understand that. I'm focusing on your comment about... I think you just said "you won't have a problem." You're talking about the types of problems where you get complaints generated, not in terms of a long term latency problem, which it's very hard to tell whether you have a problem or not until a certain number of years goes by.

DR. VAN ERT: Yes, I appreciate that.

MS. SHERMAN: So, I'm not sure if there's a question here. I guess I was just trying to point out that your statement was much more focused on the complaint aspect of...

DR. VAN ERT: When I said there wasn't a problem, what I was really indicating, in those situations, there simply weren't specific complaints being voiced about the quality of their environment. I'm sorry if I confused you...

MS. SHERMAN: I didn't understand what you meant.

I think on page four you make the point that the workplace differs substantially from the home environment in all aspects of exposure. I guess, is the point you're making here that the tobacco smoke has to be studied in every different environment?

DR. VAN ERT: No, I don't mean that it has to be studied in every environment, by any means. I just think that if we're looking at a risk assessment for workplaces, I think what we need to do is to obtain a very good picture of what the exposure profile looks like in those workplaces, so we have a good appreciation... And I don't feel it's appropriate to use the home environment as a surrogate environment for extrapolating to a totally different environment, namely the workplace. I think this is sort of predicated on the comments in the CAP study, a very subjective study, and then taking exposures from other environments and using those as surrogate for the workplace, I just don't think that's appropriate. It certainly hasn't been used for development of any other kind of standard for a workplace, and I don't think now is the time to begin with that.

MS. SHERMAN: In the context of formaldehyde, this was a substance that has very many industrial uses, and it's, in fact, an extremely useful substance, and I believe it's within our top ten industrial chemicals, so it has many home uses, it has many workplace uses. It, in fact, appears in all sorts of consumer products.

Are you aware of a different approach being taken in the case of formaldehyde between the home and the workplace?

DR. VAN ERT: Between the home and the workplace with regard to formaldehyde? I know that recently we have reduced our standard for permissible exposure to formaldehyde in the workplace, and we really don't have one for the home, to the best of my knowledge.

MS. SHERMAN: I believe there may be some HUD standards on mobile homes, but I'm not sure that they still exist.

DR. VAN ERT: I think it has something to do with the products rather than the actual level inside the home. HUD could have developed a performance standard. You can use what building materials you like, provided that when a mobile home is closed for a sufficient period of time, that the concentration does not exceed X. Personally, I feel it shouldn't exceed .05 ppm, but that's my opinion based on the studies that I've done in the home environment where we have constant, 24 hour potential exposure, or for families.

So getting back to your original question, do I think that formaldehyde is being treated differently for the home and the work environment...

MS. SHERMAN: I think you sort of gave the answer if I understood you correctly. That is that certain adverse effects are associated with formaldehyde exposure at a certain level, whether it be in the home or the workplace. Isn't that what you sort of meant to convey?

DR. VAN ERT: The standard for the home would be different because you're there for extended periods of time. You have an additional potential 16 hour exposure, possibly a 24 hour exposure, depending on what the lifestyle is of the family that occupies the home. So as you increase duration, you probably want to reduce the amount of time that a pollutant can be there to irritate, or the person can be there to be irritated by the pollutant. Of course workplace...

MS. SHERMAN: Then you're essentially taking a time-weighted average approach to these things.

DR. VAN ERT: Usually, probably, to put a ceiling or a [stell] on it would not be inappropriate either.

MS. SHERMAN: In the case of formaldehyde, certainly.

DR. VAN ERT: Yes, in the case of formaldehyde in the workplace, yes. But generally speaking, the amount of time one is exposed in the workplace is less, and depending on the situation, there may also be highly variable exposure due to mobility within that workplace. Whereas in the home, it may be a fairly constant exposure.

MS. SHERMAN: I think you also referred to an exposure assessment of Holcomb as an example of what OSHA should follow?

DR. VAN ERT: It's one of the resources that OSHA could consider.

MS. SHERMAN: Do you know whether Holcomb collected any original data on environmental tobacco smoke exposures of the population?

DR. VAN ERT: I'd have to look back at the particular article. I forget which articles they were now . Some relied on a compilation of data from a lot of sources, but I'd have to look back to see exactly what...

MS. SHERMAN: If you could look at that, I'd appreciate it. You don't have to do now, if you want to do it as a post-hearing comment.

You also cited studies by Hedge and Lambert and Oldaecker of worker exposure to RSPs from ETS.


MS. SHERMAN: Do you know if any of these studies assess the volume density of smoking?

DR. VAN ERT: The volume density? I'd have to go back and look at that specific component to see if it's present in the studies. The volume density of the smoking, you're talking about the number of occupants and smokers per...


DR. VAN ERT: I don't remember that specific factor, either. I'd have to look back to see which one. I don't remember the exact ones that would address that.

MS. SHERMAN: I'm not trying to catch up on it, I just, if you have the information I would like it.

DR. VAN ERT: There's some interesting data in some of these newer publications, and they should be looked at in the context of one another to make sure...

MS. SHERMAN: Do you know how the smoker density in these studies compares with those in the typical workplace?

DR. VAN ERT: If I can't answer that other smoker density question, I can't answer this one either, so...

MS. SHERMAN: Obviously. However, if you have any other thoughts on it, you can do this as a post-hearing comment.

DR. VAN ERT: Yes, I would have to look at that in detail before I could make any informed comment here.

MS. SHERMAN: On page six of your submission, I guess it would be fair to say that you're critical of the use of nicotine or cotinine as a biomarker.

DR. VAN ERT: Yes, it may not be an appropriate biomarker. We may want to look at materials that are more stable. Right now we haven't established the relationships between environmental tobacco smoke and cotinine levels that give us good confidence.

MS. SHERMAN: What might be more stable? Do you have sort of a substitute?

DR. VAN ERT: I read another article that was not so much for biomarker but for air monitoring. It may be a more suitable marker. I can't remember the name of that, and I was just talking about it after I heard Dr. Greenberg's comments. There were several compounds that had been suggested in this article that would be better for monitoring. I simply don't remember it and I didn't bring that article with me. I was trying to look it up but I couldn't find it, so I'll have to go back and look at that. But there was a mention of several other compounds that might be appropriate.

MS. SHERMAN: Would they make good biomarkers, or don't you remember?

DR. VAN ERT: They weren't being touted as biomarkers, but rather agents that could be looked at in the air.

MS. SHERMAN: Do you have experience in any of your various studies measuring tobacco smoke or, I guess the question should be environmental tobacco smoke?

DR. VAN ERT: No, not in particular studies that I've done. In some indoor assessments from time to time I have looked at other surrogates such as carbon monoxide, formaldehyde, and a few others, but they have been during consultative activities, and I don't think any of that data has been significant enough to have any impact here.

MS. SHERMAN: Would you agree that you're dealing with a biomarker, you have to deal with issues of individual variability as they relate to the population as a whole?

DR. VAN ERT: Absolutely, with any biomarker. And we've looked at a similar situation with other exposure in industry such as phenols and looked at, are you talking about exposure to background levels of ETS, and as a result how much of the biomarker would you expect? And is that sufficiently greater than background from other sources to give one confidence that somebody has been over-exposed. I think phenols are an example. And there are certain foodstuffs and so on that can contribute to those in the urine as well. So when we look at exposure to certain agents in industry, are those good markers, say in the urine or whatever, if in fact these other things can contribute? So I warned my students when we had this toxicology course to be careful of that sort of thing.

I think with cotinine we have some of those problems, especially at low level exposure.

MS. SHERMAN: But isn't individual variability very common on almost every level, whether it is individual variability to a drug, to the responses to a drug, responses to liquor, et cetera? Individual variability is a very commonly found phenomenon, is it not?

DR. VAN ERT: Yes, that's absolutely true. And I think when you look for any type of biomarker, you have to look at all of the potential perturbations or factors that would influence background levels, say in urine, blood, or the like, and individual variability would just be one of those factors that could contribute to that "normal" or background range.

MS. SHERMAN: And in spite of individual variability, it is still possible, isn't it, to come out with certain appropriate measures based on population cohorts as opposed to individuals?

DR. VAN ERT: Certainly if you have suitable sample size, and if that marker will exist in concentrations significantly different from the background variability that you expect, then I think you can use the substance as a marker, but there are lots of factors that contribute overall to the establishment of what's the variability you expect. And now in the increase due to exposure to some agent, is that significantly statistically significant, or different. So you can be confident that that represents a valid marker.

MS. SHERMAN: But it still might be possible to establish a population based level. For instance, I believe, in lead. This is commonly done, is it not?

DR. VAN ERT: Yes, in lead, certainly we have a background level in the population, and now we're looking, for example, at children and we're recommending that the background levels in their blood be reduced.

MS. SHERMAN: In spite of the fact that individuals will react in a variable manner to a particular body burden of lead?

DR. VAN ERT: I'm not sure what you mean when you say the individuals will react in a different way to the body burden.

MS. SHERMAN: What I mean is exposure to a certain amount of airborne lead will not necessarily result in the same amount of blood lead in every individual of the same weight.

DR. VAN ERT: No, you'll see some variability in that population, absolutely.

MS. SHERMAN: And in fact also exposure... In fact, given the body burden of a certain amount of lead in a person, let's say 15 micrograms or let's say 30 micrograms, in some people this would cause an adverse health effect, and in other people it will not. Isn't that true?

DR. VAN ERT: Well, I think we would have to be very careful to qualify the people that we're talking about. Are we talking about a worker population where we have the implementation of medical monitoring, if they have greater than, I think it's 40 micrograms per deciliter, or whatever, of lead? So you have to look at the population group that we're addressing.

MS. SHERMAN: I'm not so sure we do to agree on this point...

DR. VAN ERT: I'm not sure we disagree either, but I'm just trying to qualify this.

MS. SHERMAN: I guess what I'm saying is, no matter what level one established as being a trigger level, in some people who have this level, they might be ill and other people having the same level might not be ill because of variabilities amongst population.

DR. VAN ERT: That's a possibility in any population, what causes... You could take the 4PC issue. What level does that elicit some type of response in an individual. You have some people that appear to be more susceptible to some chemical agents than others. But again, I guess what we've always tried to do in industrial, and really in environmental health, is protect the majority of the population. There's always going to probably be some people that react at low levels. It's just difficult to protect everyone.


MS. SHERMAN: I don't know if you've been at these hearings earlier or not, but we've had a lot of discussion about publication, whether things appear in peer reviewed articles, whether there's publication bias, et cetera, et cetera. I don't know if you have heard all of these discussions or not.

DR. VAN ERT: No, I haven't.

MS. SHERMAN: Perhaps you're the better for it.


MS. SHERMAN: In terms of publishing things, wouldn't you agree that there is a difference in publication of a scientific paper as opposed to publication of information in a scientific textbook?

DR. VAN ERT: Well, in a scientific textbook not all the articles are peer reviewed, and they are usually for the journals. That doesn't mean that those articles are always quality. So even though there may be more of an attempt of maintaining good scientific quality in a peer reviewed journal article, it doesn't mean that they're always quality articles. The same thing, the converse holds true for something written in a scientific text. It may be an excellent article. Very often they represent reviews and those reviews should be done very critically.

In fact I remember back at Carolina when we had Arthur Stern teaching us air pollution and we had to write a comprehensive literature review. A lot of those literature reviews actually were utilized by Mr. Stern in his text, which is kind of the bible in air pollution. But boy, if we used a secondary reference without going back and seeing what was actually said, you didn't do very well. Very often you would go from an A to a B immediately, even with an excellent paper.

In fact there was one area that I was a little concerned as I read the text of the proposed standard. I think in certain instances what I saw was the use of some secondary references, and when I looked at what the secondary reference said and referred back to say the original article, I found there were misinterpretations and so on.

MS. SHERMAN: Which ones might those be?

DR. VAN ERT: I had developed a number of comments, I don't know if I have them with me. But I can look for those, that actually specify that according to such and such I didn't find this particular comment, and OSHA may have found that comment, or...

MS. SHERMAN: I would be very interested in receiving that from you.

DR. VAN ERT: I really felt, to be quite frank, that some of the section on exposure assessment was sort of replete with some of those problems, and I would really recommend that this section be looked at very carefully from this standpoint, that the authors are quoted very accurately, and that in situations where we used a secondary reference, that we made sure that we interpreted it the same way as the primary author, or we utilized the primary author's opinions rather than the secondary.

MS. SHERMAN: Do you believe that we always must agree with the opinions of the author of a study?

DR. VAN ERT: No. I think that we can reinterpret the data and critique that data of the primary author. I just think that it's very important for OSHA to make sure that if we quote a secondary reference, that we make sure that at least that opinion, if it's an interpretation, is consistent with what the OSHA scientists would have derived from that original article as well. So just being a little more careful.

MS. SHERMAN: If you have a list of secondary sources that you think we've relied on inappropriately and you wish to make a post-hearing comment along those lines, we have no interest in falling down on that aspect of this procedure.

DR. VAN ERT: Very good.

MS. SHERMAN: Isn't it also true, I think textbooks are not peer reviewed, but scientific journals tend to be peer reviewed.

DR. VAN ERT: That's true.

MS. SHERMAN: Would it be appropriate to characterize a scientific journal as being perhaps more new information, perhaps a little bit more cutting edge in textbooks?

DR. VAN ERT: Very often they are because they're more contemporary. It takes awhile to get a textbook on the shelf. But even the same thing holds true sometimes with peer reviewed articles. By the time you submit it and it gets published, it's six months or a year, sometimes longer...

MS. SHERMAN: I guess there can be a long lag time in those things.

DR. VAN ERT: There can be, yes.

MS. SHERMAN: But in the context of a textbook, wouldn't you say that textbooks present things more in the realm of established facts, because they're sort of used as teaching vehicles?

DR. VAN ERT: I think yes, in certain instances that's true. Some of the same statements can be made for peer reviewed articles as well. Very often they refer back to established facts. I think in general the peer review article is probably a little more cautious.

MS. SHERMAN: Peer reviewed articles are...

DR. VAN ERT: Sometimes they're more cautious, and there's...

MS. SHERMAN: Because of the peer review process?

DR. VAN ERT: Sometimes scientists are fairly cautious about things. I think when we review things we're very analytical. I went through the exposure assessment section, I was very cautious when I went through it to look at it. That's why when I criticized CAPs, I thought, gee whiz, this is an exposure assessment and this is using methodologies that really are atypical of what we've used before with regard to assessing one's exposure to environmental tobacco smoke, regardless of the surrogate compound that you pick out to measure the exposure. So subjective work like that, I really don't find acceptable.

MS. SHERMAN: Do you do peer reviews for various scientific journals?

DR. VAN ERT: Yes, I have done some peer reviews for journals such as the American Industrial Hygiene Association Journal with some of my colleagues. And we constantly look at our students' masters theses and critique those.

MS. SHERMAN: Would you characterize your review of our preamble as being, that you put it to the type of scrutiny that you would do a paper submitted to a journal?

DR. VAN ERT: Yes, I submitted it to reasonably good scrutiny. Not so much the preamble, but that section on exposure assessment.

MS. SHERMAN: That's what I meant.


MS. SHERMAN: Now people who write textbooks, they're generally considered to be authorities?

DR. VAN ERT: That's an interesting question.

MS. SHERMAN: I take it that by publishing something in a peer review journal, one can start to establish one's reputation as an authority...


MS. SHERMAN: And then one takes one's reputation and writes a textbook perhaps?

DR. VAN ERT: I think they do both. Depending on what they're interested in at the time. Both types of contributions take considerable forethought and time to complete. Sometimes you have to be careful in chapters, too. If you co-write a chapter with a person because you're both editing and so on, and you're both taking credit for the total chapter, even though some of the opinions may be a little more reflective of one individual's expertise than another's.

MS. SHERMAN: Are textbooks generally, I know when people write novels they sometimes write an outline and then they shop it around to a publisher, get an agreement, sometimes in advance, and have it published. What about textbooks? Are these solicited by publishers, or are they shopped around in the manner of novels?

DR. VAN ERT: I really can't tell you. I'm not an expert on that area. All I know is that sometimes the editor of a particular book will maybe approach a publisher, or a publisher will approach them about the need for that type of information or resource.

MS. SHERMAN: Have you ever written a textbook or a chapter in a textbook?

DR. VAN ERT: No, I haven't written a textbook. I've written a number of chapters in textbooks with my colleagues.

MS. SHERMAN: Were these solicited by the publisher or put together by an editor? How did this work?

DR. VAN ERT: I really can't tell you, because I wasn't the editor. All I know is that the editor contacted me and asked me if I would be interested in either writing or co-authoring chapters on certain topics.

MS. SHERMAN: Did you co-author a chapter in a textbook called "Hazardous Materials Toxicology, Clinical Principles of Environmental Health?"? I think the chapter, "Indoor Air Quality in Human Health."


MS. SHERMAN: When was that?

DR. VAN ERT: I think I co-authored that chapter . I can't remember. I had about four or five chapters, maybe six, I don't remember...

MS. SHERMAN: All in the same book?

DR. VAN ERT: I think in the same book, yes.

MS. SHERMAN: Perhaps 1992? Does that sound right?

DR. VAN ERT: Thereabouts.

MS. SHERMAN: In this chapter that you co-authored, do you remember the contents of the chapter?

DR. VAN ERT: Not specifically, no. I don't even remember the names of the chapters. If you mention them, I might remember them.

MS. SHERMAN: Perhaps I could show it to you. Would that be useful?


MS. SHERMAN: Is it true that on page 680 you stated that "Environmental tobacco smoke is now recognized as a serious source of poor indoor air quality and illness"?

DR. VAN ERT: That was on page 680?

MS. SHERMAN: I believe so, but now you have my copy, so...

DR. VAN ERT: I didn't write that particular section. My name is on the chapter, but there were three other contributors, as I recall. There was John Sullivan, Mark Van Ert, and Dr. Creger. On this particular chapter, or this section of this chapter, I didn't write that...

MS. SHERMAN: But did you agree with it?

DR. VAN ERT: I haven't read any of this recently, so I don't know what the context of the statement is, so it's hard for me to tell you whether or not I disagree in part, or agree in part, either. But I certainly would be pleased to review it for you and comment.

What was the specific statement? I see a few ares underlined here, so I can refer to them later.

MS. SHERMAN: It's probably underlined, but I'm not so sure I underlined everything.

DR. VAN ERT: There are several sections in that particular section that are underlined here.

MS. SHERMAN: My knowledge of textbooks is even less than my knowledge of peer review journals, but I believe that in peer review journals the name of the author appearing first is the prime author, and as you go down the list the authors have less and less to do with the article. Is that also true in textbooks?

DR. VAN ERT: That's not necessarily true in either articles for peer review or for books. In certain instances, I know we've been like this with some of our students, although the practices tend to change from time to time. I know when I was back at Carolina we very often put, the student's name would be put first if they did most of the work, although sometimes your faculty member would have done a great deal of the writing or some of the significant editing to that particular article.

I would think in this particular article, I think there was probably fairly even contribution by the individuals although I haven't, again, looked at all the aspects of the article to know exactly where all the information came from and who contributed exactly what.

MS. SHERMAN: I believe on page 680 it's also stated that "Health effects related to passive environmental tobacco smoke are now documented. Cardiovascular disease, cancer, respiratory diseases, and asthma have been directly associated with passive smoke."

DR. VAN ERT: I see that statement, yes. That statement was made by whomever wrote this particular section, and I would have to probably talk to Sullivan who was also the editor to see who contributed that specific section. I'm not sure who was...

MS. SHERMAN: Do you agree with it?

DR. VAN ERT: ...either John Sullivan or Gary Creger.

MS. SHERMAN: Do you agree with it?

DR. VAN ERT: I'm not sure if I agree with it without looking at the context of it.

MS. SHERMAN: It's under a heading called "Environmental Tobacco Smoke and IAQ."

DR. VAN ERT: Yes, I see that.


DR. VAN ERT: I would have to look back at their references to see exactly what they used, exactly how they derived them, before I would say specifically if I agree with all the statements in there.

MS. SHERMAN: That same paragraph refers to the ASHRAE standard, and it says, "The current ventilation standard established by ASHRAE," so I assume it's referring to ASHRAE 62-89 since this article was published in 1992.


MS. SHERMAN: It says, "The current ventilation standard established by ASHRAE in environments where smoking is allowed is inadequate to protect the health of passively exposed individuals."

DR. VAN ERT: Again, I think the author of that particular section was relying on a reference, namely 34, that was Hodgson's article on environmental tobacco smoke and sick building syndrome, but I would have to go back and look. Again, this individual wrote that section, or one of those two individuals, and they were just probably quoting from Hodgson or whatever. But I would have to look at that before I could make any informed comment for you.

MS. SHERMAN: It goes on to say, "The current ASHRAE standard calls for 20 cfm where smoking is allowed, however, the standard probably is not adequate in controlling the odors, irritation, and other health effects generated by ETS."

Which section of this chapter did you write? Do you remember?

DR. VAN ERT: There's new carpet and health effects, new carpet syndrome; I wrote sections of the VOC section. Dr. Sullivan and I worked very carefully on some of the sections in here, but those are some of the primary ones.

MS. SHERMAN: But you think you remember writing the section on ventilation and IAQ?

DR. VAN ERT: No, I don't think I did that, either.

MS. SHERMAN: It's talking specifically about sick building syndrome and other types of indoor air quality problems.

DR. VAN ERT: I don't think I wrote that particular section. I won't take credit for it. But again, I'd have to look at it in much greater detail to see exactly what I had contributed. I do remember that I contributed significantly to the VOC section and I know some of these GCMS profiles of indoor air came from studies that we had done or I had done. And I provided a lot of those to Dr. Sullivan. He may expand on certain sections. So like I say, it was very interactive with the three individuals that wrote the chapter.

MS. SHERMAN: I think on page 678 it says that environmental tobacco smoke is one of the common sources of VOCs. Is that something you would have likely contributed?

DR. VAN ERT: Probably not, no. I think John was probably relying on the literature when he did that.

MS. SHERMAN: On page 674, in talking about problems relating to ventilation on the right hand lower side of the page, there's a statement that smoking should be eliminated totally. Did you write that?

DR. VAN ERT: No, I didn't.

MS. SHERMAN: But you reviewed this article before it was released, didn't you? Excuse me, this chapter.

DR. VAN ERT: I don't think I reviewed the article prior to its final draft. I think I had submitted certain sections to it, and then John went ahead and completed it. Like I said, that section on ventilation and IAQ was not my section.

MS. SHERMAN: So you didn't review this chapter with your name on it?

DR. VAN ERT: I reviewed my sections in detail. I may have scanned it. But I didn't review it in tremendous detail,

MS. SHERMAN: When one sees somebody's name on a chapter, do you think one is entitled to assume that the person agrees with what's in the chapter?

DR. VAN ERT: I don't think they necessarily would conclude that a person agrees with everything in that chapter.

MS. SHERMAN: Well, if you review it now and disagree with things in this chapter, do you think it's appropriate to take steps to set the record straight?

DR. VAN ERT: Oh, yes. People can always review something, critique it, and then ultimately make modifications to it to be more accurate. Like this last statement that you referred to was somebody's opinion. I don't know if that represented an opinion of one of the other authors, or if that actually represented an opinion of somebody else whose material had contributed to this section on ventilation and IAQ. I can't tell you that. I really don't know.

MS. SHERMAN: Amongst academic circles, when one no longer agrees with something, is it considered appropriate to contact the publisher and retract the statement?

DR. VAN ERT: I guess they could when they decided to develop a new edition of this particular chapter. I have seen certain problems with other chapters. I think there was one with isocyanates and so on, and I had done some research. The research was referred to, but they credited not the original research paper but a summary article with the finding, and it was a finding we had done at the University of North Carolina with Dr. Battigelli. It was my research and his. So those kinds of things come in here.

And John has indicated to me that there will be sections that are changed. I'm not sure if he's interested in changing all of this or not, or parts of it.

MS. SHERMAN: But as a co-author of that chapter, you would have it within your prerogative to inform the publisher of your disagreement?

DR. VAN ERT: What I would do is I probably wouldn't contact the publisher. Dr. Sullivan and Creger who are the editors, would. I might contact Dr. Sullivan, and I have about other things that I have noticed in a couple od chapters that I've been reading lately for other reasons, and make suggestions to him.

MS. SHERMAN: You've been reviewing other chapters of this textbook?

DR. VAN ERT: Yes. There were other chapters that I reviewed recently, like for example on TDI we had some lectures at the university on toluene diosocyanate and some of my students were generating papers on that topic, and I referred them to that chapter. They were utilizing it for part of their literature review. I noticed at that point...

MS. SHERMAN: Is this a textbook that comes out yearly or every three years or something like this?

DR. VAN ERT: This edition has been out for a few years, and I know that the, having spoken to Dr. Sullivan, that the editors have requested an update on it, so a number of chapters will be added to it.

MS. SHERMAN: Will you be a contributor this time?

DR. VAN ERT: Probably, yes.

MS. SHERMAN: When one has a textbook that comes out in different editions, I don't know whether the edition I showed you is edition one or edition ten, is it common to have the same authors deal with revisions or updates of the same subjects that they originally dealt with?

DR. VAN ERT: That is not uncommon. We may add additional authors for other topics as well.

MS. SHERMAN: Is there any new information that you're aware of that's been developed since the publication of this chapter that would cause you to change your mind about the contents of this chapter?

DR. VAN ERT: I'm sure there's new information that has been developed since the development of this chapter, and I think the authors of this chapter, and I am one those authors, may be interested in that information. But as of today, all I can indicate to you is that yes, I wrote certain segments of this, contributed certain figures, and the like, not only in this chapter but in other chapters, and all I can tell you is what I specifically contributed to or not, and even though my name is on that chapter, I can't take specific credit for statements in certain areas of it.

MS. SHERMAN: If you had violently disagreed with statements that were made by Dr. Sullivan in the chapter, would you have agreed to lend your name to the authorship?

DR. VAN ERT: To be quite frank, I probably would have audited very carefully the sections that I was directly involved with such as the VOCs, new carpet problems and so on, and probably not very carefully reviewed the sections that Dr. Sullivan wrote. Or Dr. Creger wrote, for that matter.

MS. SHERMAN: So you wouldn't have known one way or the other is what you're saying?

DR. VAN ERT: I probably didn't, in fact I'll be quite frank with you, I hadn't even seen this statement before.

MS. SHERMAN: So basically you really didn't read the whole thing through?

DR. VAN ERT: I didn't edit this entire chapter, no.

MS. SHERMAN: Thank you so much for your time.

Judge, perhaps we could mark this chapter. I don't know what number we're up to.

JUDGE VITTONE: 201. Is that the only copy, or do you have another copy?

MS. SHERMAN: It's the only unmarked copy I have, and it's not unmarked.

JUDGE VITTONE: Why don't you provide a clean copy next week.

MS. SHERMAN: The particular markings on it are...

JUDGE VITTONE: You just bracketed a couple of sections, I see.

MS. SHERMAN: Yes. And since we talked about it in the transcript, it actually might be useful to have them marked.

JUDGE VITTONE: All right. The chapter from the book, "Hazardous Materials Toxicology, Clinical Principles of Environmental Health," edited by John Sullivan and Gary Creger, copyright 1992, will be marked for identification, this is the chapter entitled "Indoor Air Quality and Human Health," starting at page 667 through 688, will be Exhibit 201.

(The document referred to was marked for identification as Exhibit No. 201, and was received in evidence.)

JUDGE VITTONE: Is that all Ms. Sherman, or do you have any more questions?

MS. SHERMAN: That's all. Thank you for your time.

DR. VAN ERT: You're welcome.

JUDGE VITTONE: Anybody else?

Mr. McNeely, Mr. O'Neil, Mr. Rupp.

Why don't we start over here, Mr. O'Neil, why don't you go first.

Excuse me a second. We've been going for about an hour and 45 minutes. Do you want to take a short break? Five minutes.

JUDGE VITTONE: On the record.

We resume with Mr. O'Neil.

MR. O'NEIL: Thank you, Your Honor.

Dr. Van Ert, you mentioned in your direct address this afternoon in dealing with your credentials, that you had done a benzene risk assessment, is that correct?

DR. VAN ERT: Basically we hadn't done the formalized risk assessment, but we had developed considerable information, environmental monitoring data, that was used to contribute to a benzene risk assessment.

MR. O'NEIL: In the data that you developed, what type of exposure assessment information did you have?

DR. VAN ERT: We had actually done detailed monitoring of numerous rubber tire manufacturing plants across the United States, which literally involved collecting thousands of air samples characterizing workers' exposures to this particular agent. Actually, it was sort of unsuspected in the industry. They used mixed petroleum fractions, and they weren't aware that they had a little bit of benzene in them. But nonetheless, when we broke down what the environmental exposures are, we found low level exposures.

MR. O'NEIL: Could you contrast for the OSHA panel the information you had on exposure assessment of benzene, which you just described for me, with the exposure assessment for environmental tobacco smoke that was provided in the preamble, please?

DR. VAN ERT: Well, if you contrast the monitoring for the two agents -- environmental tobacco smoke being a mixture and benzene -- I guess with regard to worker exposure, we had collected a lot of data actually characterizing their exposures to benzene. I guess in the context of what I've mentioned today and some of the areas that I was critical of is that I felt that maybe OSHA hadn't gone and characterized, or utilized enough information from workplace evaluations, but rather I think like in the CAP study they had used measurements taken in home and other types of environments rather than the actual workplace. So it really wasn't representative, in my opinion, of what would go on in a workplace.

MR. O'NEIL: Would it be fair to say that the OSHA proposed rule really lacks the relevant information on exposure assessment for ETS in the workplace?

DR. VAN ERT: Yes, at this point in time. I think they need to rely heavily on any new data that's been developed to help characterize the workplace environment. At least that's my opinion.

MR. O'NEIL: Is it also your view, based on your testimony and your responses to questions asked by Ms. Sherman, that the following factors, ventilation, supply of outdoor air, proper maintenance, good distribution of air, are fruitful approaches to problems of indoor air quality, and in particular, concerns with environmental tobacco smoke?

DR. VAN ERT: Yes. Ventilation would have a significant impact on improving indoor air quality regardless of the source of indoor air pollutant, whether it be humans and carbon dioxide, or any other type of source. Environmental tobacco smoke, new carpet emissions, and the myriad of other things that can contribute to the buildup of pollutants in the environment.

MR. O'NEIL: Another topic you discussed with Ms. Sherman involved variation of individuals to various airborne constituents. In particularly, you spoke briefly about the variation in measurements of salivary or urinary cotinine obtained by inhalation, perhaps, or dietary sources of nicotine.

In your view, would one measurement of cotinine from a body fluid be sufficient to determine intra individual variation?

DR. VAN ERT: Well you would have to have at least a normal range for the population, and I think you would have to exceed that range for the population group, or for an individual, if you were just going to rely on that, you would need additional data to establish the range for that person. Just like colon x-ray levels for a person.

MR. O'NEIL: In other words, one single measure of cotinine from a body fluid would be insufficient to determine intra-individual variation? That's what you said, am I correct?

DR. VAN ERT: Yes. Even for an individual it would take multiple determinations to decide what their range was. So if you wanted to show exposure beyond a certain amount, to ETS or something, it would have to exceed, I would say, a population range, which would reflect much more scatter in the data, or a much larger range.

MR. O'NEIL: Thank you, Dr. Van Ert.

That's all I have, Your Honor.

JUDGE VITTONE: Thank you, Mr. O'Neil.

Mr. Rupp?

MR. RUPP: Thank you, Your Honor.

Dr. Van Ert, my name is John Rupp and I'm participating in these proceedings on behalf of a number of independent scientists who have filed notices of intent to appear on behalf of the Tobacco Institute.

In your discussion with Ms. Sherman, there was a rather lengthy exchange that, as I understood it, tried to place textbooks in categories and peer reviewed articles in categories and perhaps other kinds of submissions or materials in categories and assign weights depending upon the category, how much stock one should place in those materials depending upon the nature of the publication.

Do you remember that exchange?

DR. VAN ERT: Yes, I do.

MR. RUPP: And as I understood your answers, you were a little resistant to buying some of the notions that Ms. Sherman seemed to have in mind. Let me try one other kind of simplistic notion and see if you would agree with this one, that the ideal we ought to be looking toward in a proceeding like this is a government agency with sufficient objectivity, expertise and commitment to look at submissions regardless of source or where they might have appeared and make a considered judgment concerning the value of those materials in light of the issues involved in the proceeding, rather than relying upon simplistic categories and consigning weights depending upon the categories.

That is to put that proposition a little even more simply, I guess, is look at what you get, look at it carefully and make a judgment, be objective about it, be fair about it and then come to your own conclusion.

Wouldn't that be a fairly good rule of thumb?

DR. VAN ERT: Yes. I would think that in developing a standard or any type of paper or whatever that what you want to do is to do a comprehensive review of the information that is available in the literature, regardless of its sources, certainly look that if it's peer reviewed and in books and sometimes books represent more sometimes literature reviews rather than original work but I think all information is important and if you look at all the information in context with the other information, I think you can develop a pretty good appreciation of whether or not it's credible and I think all of that should be used to ultimately evaluate a particular situation or issue. And I think lastly you have to look at all information in detail.

MR. RUPP: And you want to bring the same critical faculties to bear on every individual piece of evidence as well as the evidence as a whole, would you not? Regardless of its source.

DR. VAN ERT: We always learn something from all evidence and it's important that we don't try to polarize the situation at all. All information is critical and it can be reviewed in an objective fashion.

MR. RUPP: I take it that depending upon the journal and perhaps even depending upon the authors, depending upon the subject matter, depending upon the conclusions, depending upon the kind of research that was done, peer reviews can mean a whole lot of things to a whole lot of people over a great length of time. That is, there's a great deal of variability in peer review for journals.

DR. VAN ERT: I imagine that there could be.

MR. RUPP: A number of people in this proceeding, for example, have said there tends to be a bias, whether rightly or wrongly, on the part of peer reviewers and editors of journals not to be particularly excited about negative results, for example, despite the significance those negative results might have in a universe of data, some of which may be positive and some of which may be negative, have a corresponding bias in favor of positive results however stretched the data subset might be to be able to report a positive result. Is that your experience?

DR. VAN ERT: Yes, that is.

MR. RUPP: Let me ask you this question which may sound odd but may have some significance. In your experience, is it odd, would it be questionable for an author of a scientific journal to publish the article in the journal of which he is the editor-in-chief? Wouldn't most authors who want the benefit of peer review submit such articles to other reviews where there is not such a built-in apparent conflict of interest?

DR. VAN ERT: I think it would be more appropriate if that individual would submit the article to another journal for peer review. It would eliminate even the impression of conflict of interest. I know when we do grant reviews and so on that if we know someone from our own university or something like that, that we leave the room when that particular proposal is reviewed. So it's always best to eliminate even the guise of bias.

MR. RUPP: And isn't it your experience that most people, whether they're engaged in a grant review process or editing a journal generally comply with that rule? That is, they try to avoid those apparent conflicts of interest and avoid putting their peer reviewers in the position of having to think unduly about the process and focus on the merits of the particular article being submitted for publication?

DR. VAN ERT: I really haven't ever experienced that situation before but I think I would just reiterate what I've already mentioned, that, yes, to avoid any potential conflict or bias it would be most appropriate that they look to a different journal.

MR. RUPP: Dr. Van Ert, I was particularly interested in the discussion you were having and some of the comments you made in your opening statement about the inadequacies of the exposure assessment that OSHA has performed and described in the preamble but it caused me to think about another issue and that is as I look at the risk assessment that was done here, and I look at the equations that were utilized, what I discover is that the level of ETS constituents to which people are actually exposed in workplaces in the United States has no role at all in the risk assessment. That is, there is no factor in the equation where that would fit in, that the equation stops with a relative risk number and based on surveys like the CAPS surveys perception of exposure but actual degree of exposure, levels of exposure, plays no role at all in the risk assessment that's been conducted. Do you agree with that? Am I misreading the risk assessment here?

DR. VAN ERT: Well, based on the information that I have seen and what I have indicated today to OSHA is that I think very objective data characterizing workplace exposures to ultimately be able to determine or develop a risk assessment is critical.

MR. RUPP: And maybe I'm just not as conversant with the process of risk assessment as I should be but I'm having difficulty, frankly, understanding how a risk assessment can be done on any substance, whether it's ETS or benzene or chicken feathers, for any purpose unless one takes into account in a rather particularized and careful manner the level and duration of exposure. Is there some way that can be done? Can one ignore those factors?

DR. VAN ERT: Not that I know of.

MR. RUPP: One final set of questions, if I may. I think you indicated again in your opening statement but perhaps more pointedly in response to the question asked of you by the preceding questioner that depending upon the rate of ventilation that is provided you are going to see reductions in the efficiency of that ventilation, you're going to see reductions in the levels of ETS regardless of the preexisting non-ventilated levels. That is, that ventilation is an appropriate way to address ETS, is that correct?

DR. VAN ERT: Ventilation of one type or another is an approach to be able to address ETS or any other pollutant for that matter.

MR. RUPP: Okay. Now, with that as context, let me read to you a statement that appears in the OSHA preamble at page 15,986. I'll read it and then let me hand it to you so that you can consider it yourself.

"Natural and mechanical ventilation systems are designed primarily to limit the accumulation of the products of human respiratory metabolism," presumably referring to C02, "and secondarily to limit odor, not to control the byproducts of biomass combustion. Thus, smoking indoors creates air pollution which is not adequately abated by customary ventilation systems."

Now, I'm tempted in light of all of the testimony we've heard from the beginning of this proceeding to regard this paragraph as nonsense but I'd appreciate your reaction and perhaps a more measured one than that.

DR. VAN ERT: Well, I would say the statement is accurate to a point. Certainly -- and, of course, when you're talking about general ventilation, mechanical ventilation or whatever, I think we need to qualify those particular factors. General ventilation won't result in the localized removal of the pollutant yet if you have makeup air being introduced into a system, it will effect an immediate dilution of that particular pollutant. So depending on the circumstance, we may need other types of ventilation to better control a pollutant. And we do that in industry as well and sometimes those types of ventilation are more energy efficient, such as some localized effects.

MR. RUPP: But whether it's a biomass material or non-biomass material doesn't really make any difference, does it?

DR. VAN ERT: No. The general ventilation system with makeup air will dilute the pollutants regardless of what it is.

MR. RUPP: All right. Now, we've had a fair amount of testimony as well from a variety of individuals and representatives of a variety of companies that have been telling us about advanced filtration systems and air cleaning equipment that have been developed over the past ten years or so and increasingly are coming onto the market to deal with both gas phase components of pollution sources as well as particulate phase materials. Have you had experience in the utilization of that type of equipment and have you found it to be effective, if you've had experience with it?

DR. VAN ERT: I haven't have specific experience with that sort of equipment. I think if properly placed, and I'm not quite sure exactly what you're referring to, are you talking about a general ventilation system being equipped with these types of materials to scrub out pollutants or are you talking about more localized systems to collect a pollutant more at its source?

MR. RUPP: We've had discussion of both. That is, filtration systems, air cleaning devices, built into the general ventilation system as well as room air units that capture materials, not necessarily quite at its source but in fairly close proximity to it. Well, I wonder if you would be prepared to do this. If we were to isolate those presentations that have been made in that area and if you would have an opportunity to review and make some comments on it, I think that would be very useful in the post-hearing period.

DR. VAN ERT: I may have time to do that. I will look at my schedule. But regardless I think control is very important and I think there are different ways to control situations and I think in the final statement I made in my presentation today I indicated that performance standards are something could be used in a very effective fashion, giving businesses and so on flexibility to control pollutants of one type or another regardless of the system that they do use to do it.

MR. RUPP: Well, I take it the other advantage of that from the point of view of -- well, from almost any point of view, is that it would permit individual employers, building owners and managers to take account of and attempt to craft solutions that are efficient given variations in building design, building occupancy, building materials, job functions that are performed within the particular building, location, climate and so forth. That is, it permits tailoring a performance standard that a proscriptive rule, you must do this, does not.

DR. VAN ERT: That's true. And I think that's a little bit in line with what Ms. Sherman was indicating earlier, talking about could certain existing systems be modified to provide the types of accommodation that we need. I think maybe you can't always modify those systems but you can introduce other means of control that would act to maintain a quality indoor environment.

MR. RUPP: Or could supplement the existing systems.

DR. VAN ERT: Certainly.

MR. RUPP: But to decide what most efficiently supplements an existing system, one would want to look at that system, I take it, look at the possible ways that are available to supplement their costs, their efficiencies and so forth, and then make a judgment that in on many cases, perhaps most cases, is going to be quite site specific.

DR. VAN ERT: Yes. And that would be in tune with a lot of things that go on in industry. There are a lot of different ways to so-called skin the cat and to control and improve your environment.

MR. RUPP: Thank you, Dr. Van Ert.

Thank you, Your Honor.

JUDGE VITTONE: Thank you, Mr. Rupp.

Mr. McNeely?

MR. McNEELY: Good afternoon, Dr. Van Ert. My name is Hugh McNeely and I'm from Lake Charles, Louisiana and I am here on behalf of several public health organizations and some individuals who are witnesses here. And I envy you being from Tucson. I assume they're still missing that bell tower at San Xavier del Bac.

DR. VAN ERT: It's still there.

MR. McNEELY: What is, the dove of the desert, the white dove of the desert?

DR. VAN ERT: That's correct.

MR. McNEELY: That's a beautiful place. But what is the department that you're associated with at the university there at Tucson?

DR. VAN ERT: Most recently, I became part of the Department of Family and Community Medicine and that's in the Division of Community and Environmental Health.

MR. McNEELY: And I did understand you to be an industrial hygienist?

DR. VAN ERT: Yes, that's true.

MR. McNEELY: And so environmental in the industrial and non-industrial workplace is one of your primary interests and studies, is that correct?


MR. McNEELY: In your own workplace, in the family medicine or the department you're with now, where you work, your workplace, is that a smoke-free environment?

DR. VAN ERT: Well, in the Department of Family and Community Medicine, I'm part of that department administratively, but our building is still located a little bit off of campus and it's called the Building of Health Related Professions. And what was your question?

MR. McNEELY: It is a smoke-free work environment, isn't it?

DR. VAN ERT: I think they have an accommodation policy at the University of Arizona. I don't know the specifics of that policy but it's designed to accommodate the non-smokers.

MR. McNEELY: Okay. As an industrial hygienist and with interests in environmental, you can't tell us what the smoke policy is at your own university?

DR. VAN ERT: I don't think I know what the specific policy is. I don't think we necessarily have any smokers in our department.

MR. McNEELY: I take it, then, you're a non-smoker?


MR. McNEELY: And just to get back briefly about the discussion with the Sullivan and Krieger book that you participated in?

DR. VAN ERT: Yes, sir.

MR. McNEELY: I just wanted to make sure I understood it correctly, you did not review the chapter that you contributed to before publishing. Is that a correct understanding?

DR. VAN ERT: I didn't review all of the sections of that chapter. We were sort of scrambling, getting the different components to those chapters together and there were a number of them and Dr. Sullivan was doing the basic compilation of the material that went into them and each chapter had its specific areas. And prior to going to publication, I didn't read the final draft of it. I knew what my final drafts had been and John and I had worked on that together.

MR. McNEELY: For my benefit and perhaps for the record so that we will know who you were dealing with, could you give a little background on who is John Sullivan and Dr. Krieger?

DR. VAN ERT: Sure. I'd be happy to. Dr. Sullivan is a physician at University Medical Center, at Arizona Health Sciences Center at the University of Arizona. He is also a medical toxicologist and we work together on a variety of indoor air pollution issues, evaluating patients and the like.

Dr. Krieger I don't know as well. I think Dr. Krieger still works for a large consulting firm, namely Dames & Moore. Prior to that, he worked with Dr. John Sullivan at a medical complex and I don't remember exactly where that was now. And those two individuals were the editors for this particular book.

MR. McNEELY: And so the contributions as far as the statements regarding the health hazards of ETS being recognized, you believe those to be contributions by Dr. Sullivan?

DR. VAN ERT: Well, it's either Dr. Sullivan or. Dr. Krieger and I know in the context of what they did, what they were doing as reviewing the literature for these chapters and for certain chapters where we had done some original work, that original work was incorporate into those chapters as well, a lot of the work that I had done.

MR. McNEELY: I guess obviously you have great faith in the competency and judgment of Dr. Sullivan and Dr. Krieger with regard to that particular chapter, if you did not review, according to your testimony, those aspects.

DR. VAN ERT: Well, I have considerable faith in Dr. Sullivan and I'm sure he reviewed the literature very carefully and presented whatever was said in an accurate fashion. I hope so.

MR. McNEELY: Do you in fact use this book edited by Sullivan and Krieger in your coursework or any of your classes at the university? Has it been used?

DR. VAN ERT: It serves as one reference material for our students. That's correct.

MR. McNEELY: And have you given any of your students of the department any disclaimers concerning anything in that book, particularly this discussion about the recognized hazards of ETS in the workplace?

DR. VAN ERT: I have never made any specific statements to my students regarding that particular issue. No.

MR. McNEELY: Well, I wasn't clear. You seemed hesitant to agree with the statements. Do you in fact consider ETS to be a hazard in the workplace for the workers?

DR. VAN ERT: I think that ETS is a potential exposure agent in the workplace, just like a lot of other agents are.

MR. McNEELY: Okay. And you've been very strict in your demands or calls on OSHA as far as their sources and I assume that you took the same pains to review all of your references. There wasn't any discussion, you quoted a reference, a Turner et al. study?

DR. VAN ERT: Yes, I think I did.

MR. McNEELY: Is that the kind of study that you -- a recent or a newer study that you think that OSHA should consider as far as workplace studies?

DR. VAN ERT: I think it's a study that should be looked at as well as the others that I've listed and possibly others.

MR. McNEELY: Are you familiar with that study? Did you look at the methodology that was used in this -- I believe it's entitled "The Measurement of Environmental Tobacco Smoke in 585 Office Environments"?

DR. VAN ERT: Yes, I remember having looked at that article.

MR. McNEELY: And do you know Simon Turner?

DR. VAN ERT: No, sir.

MR. McNEELY: Do you know where those office environments, where the evaluations came from?

DR. VAN ERT: I remember having read that. I don't recall right now.

MR. McNEELY: Would it have been Healthy Buildings International? That was the company that Mr. Turner was a director of, along with Gray Robinson. Do you know those two gentlemen?

DR. VAN ERT: No, sir.

MR. McNEELY: Would you agree that if any of these studies used evaluations or assessments -- indoor air quality of any buildings, if they used figures that had been cooked or falsified to diminish the effect of ETS in those buildings, that would be an example of scientific misconduct, would you agree?

DR. VAN ERT: I have no knowledge that that sort of thing might have been done. No.

MR. McNEELY: You're not aware that Simon Turner's company, Healthy Buildings International, has been sued civilly and there's affidavits by two of their technicians that that in fact happened, where they falsified the evidence.

DR. VAN ERT: I have no such knowledge.

MR. McNEELY: Now, in your testimony, you discuss that you in fact participated in hundreds of assessments of indoor air quality in a variety of buildings and in doing so you used the term "we". I'm just wondering, do you have a company or do you work in conjunction with other people on a regular basis and can you identify those if in fact there are other persons or businesses?

DR. VAN ERT: Sometimes I'll use the plural if maybe students would go with me on a survey like that or maybe sometimes my colleagues. I do do some work with a group called Health Effects Group and I'll do industrial hygiene monitoring with them. I don't do much of that monitoring any more. What I generally do is provide advice for young industrial hygienists doing those sort of assessments.

MR. McNEELY: Okay. Now, I'm not that familiar with Wash Tech but I understand that they often find experts, at least it's my impression, I may be totally wrong, but they find experts to testify on behalf of the tobacco companies or some of the trade associations. Is that in fact what happened in your case, is the tobacco company has gone through Wash Tech to acquire your testimony here today?

DR. VAN ERT: I was called originally by Wash Tech regarding my participating in evaluating a certain segment of the proposed rulemaking and I did some preliminary work for them and later on they indicated to me that some of this work was being sponsored.

MR. McNEELY: And can you tell us who the work is being sponsored by?

DR. VAN ERT: I'm not sure. They just said tobacco industry.

MR. McNEELY: And it may be shocking to you but in other testimony, particularly by -- well, by Dr. Albert Nichols in economics, he was retained by Philip Morris, but he admitted that his original submission was edited by tobacco attorneys prior to being submitted. Did you submit your submissions for editing prior to filing them with the OSHA docket office?

DR. VAN ERT: To the tobacco industry?

MR. McNEELY: To anybody. To Wash Tech.

DR. VAN ERT: No. I worked with Wash Tech. Wash Tech asked me to conduct a review of that particular section and also to submit comments regarding specific areas of that particular section that I had some concern with and I did that so there was feedback between Wash Tech and me regarding that and I also indicated earlier that from time to time I would ask for references that I didn't have ready access to but really it was just an exchange of information. They also asked if I would permit that they use the comments or appraisals that I had made of the articles and that was fine. And other than that they were just simply -- they said that they had a framework that they wanted me to submit my comments in so they could be compared with others and I think as I did the exposure assessment they also asked me if I would do it in the context of the four-step paradigm, which I did, so they could have consistency in their evaluations of this document.

MR. McNEELY: And you were just dealing with Wash Tech at that time or were you dealing directly with some tobacco companies?

DR. VAN ERT: I dealt directly with Wash Tech.

MR. McNEELY: Did Wash Tech, I'm just curious, did they supply you with the Turner et al. study?

DR. VAN ERT: I'll be quite frank, I don't know what articles they provided me with.

MR. McNEELY: I take it you have reviewed in detail exactly what the proposed rule is with regard to ETS in the workplace.

DR. VAN ERT: I have reviewed the proposed rulemaking, yes.

MR. McNEELY: Do you have any problem with the proposed rule as it stands? As it's being proposed, where workplaces, where smoking tobacco is not prohibited, they'll establish designated areas, and that those designated areas will be maintained under negative pressure with venting to the outside, do you have a problem with that?

DR. VAN ERT: I think that's one means for controlling or reducing environmental tobacco smoke. Again, I would reiterate what I mentioned earlier, that I think a variety of approaches could be used, and that compliance with any type of standard that had been developed or whatever, should allow a lot of flexibility in controlling emissions of one type of another.

MR. McNEELY: But as stated in the proposed rule, don't you find that reasonable with regard to ETS?

DR. VAN ERT: I think that is one reasonable means of control.

MR. McNEELY: Thank you very much.

DR. VAN ERT: Thank you.

JUDGE VITTONE: Thank you, Mr. McNeely.

Anybody else?

MS. SHERMAN: I have one more.


MS. SHERMAN: Could you supply the references for your statement that blue collar workers are exposed to less environmental tobacco smoke than office workers?

DR. VAN ERT: Yes, I'd be happy to.

MS. SHERMAN: Thank you.

JUDGE VITTONE: Thank you, Professor. Thank you for your time.

MS. SHERMAN: Your Honor, the textbook...

JUDGE VITTONE: That's Exhibit 201. I've already identified it.

MS. SHERMAN: I wasn't sure if it was in or not.

JUDGE VITTONE: Exhibit 201.

Let's go off the record.


JUDGE VITTONE: Back on the record.
Have a nice weekend. See you on Monday, 9:30. Same time, same place, same station.

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