OSHA: Proposed Standard For Indoor Air Quality: ETS Hearings, January 9, 1995

OSHA: Proposed Standard For Indoor Air Quality: ETS Hearings, January 9, 1995


UNITED STATES DEPARTMENT OF LABOR

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

PUBLIC HEARING
PROPOSED STANDARD FOR INDOOR AIR QUALITY

Monday, January 9, 1995

Department of Labor

Washington, D.C.

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

BEFORE: HONORABLE JOHN VITTONE

Administrative Law Judge

AGENDA

PAGE

National Center for Environmental Health Strategies
Mary Lamielle 10225

Questions:

Ms. Kaplan 10237
Mr. Jawer 10256
Mr. Rupp 10268

National Realty Committee
Edwin N. Sidman 10312
Roger Platt
E. Donald Elliott

Questions:

Ms. Kaplan 10326
Ms. Janes 10369
Mr. Rupp 10375

Printing Industries of America
Larry Bennett 10407

Questions:

Ms. Kaplan 10412
Ms. Janes 10415

Senator Michael Dmitrich 10416

Questions:

Ms. Kaplan 10422
Ms. Janes 10424
Mr. McNeely 10425
Mr. Rupp 10429
Mr. Smith 10433

Greg Shank 10435

Questions:

Ms. Kaplan 10441
Mr. McNeely 10446
Mr. Kodsi 10448

Ravenia Court Travel
Joan Rutger 10449

Questions:

Ms. Kaplan 10454
Ms. Janes 10456
Mr. Rupp 10457
EXHIBITS

EXHIBIT NO. IDENTIFIED RECEIVED

202 10236 10236

203 10236 10236

204 10312 10312

205 10407 10407

206 10435 10435

P R O C E E D I N G S

9:48 a.m.

JUDGE VITTONE: We're on the record.

Ma'am, would you state your full name for the record and the name of the organization you're representing today?

MS. LAMIELLE: Mary Lamielle, National Center for Environmental Health Strategies.

JUDGE VITTONE: And if you have a presentation, you can make it now.

MS. LAMIELLE: I'm going to read my statement.

JUDGE VITTONE: That's fine.

MS. LAMIELLE: Thank you for the opportunity to present testimony in response to the indoor air quality notice of proposed rulemaking issued by the Occupational Safety and Health Administration dated April 5, 1994.

My name is Mary Lamielle. I am president of the National Center for Environmental Health Strategies. The Center is a national non-profit, tax-exempt organization fostering the development of creative solutions to environmental health problems.

Founded in 1986, the Center has become the preeminent source of public information, educational materials, technical support and input on research and to government on environmental illnesses, including sick building syndrome and chemical sensitivities and the effects of low level chemical exposures.

We publish "The Delicate Balance Newsletter," which addresses indoor pollution, chemical sensitivities and related environmental health problems.

In many ways, we have been the pathfinders in this area initiating the New Jersey study of chemical sensitivity, testifying before Congress on the indoor air quality act on three occasions, security HUD recognition of chemical sensitivity as a physical disability and ensuring that guidelines under the Americans with Disabilities Act address this issue.

I also worked to secure the first congressional funding for research on chemical sensitivities. I have participated in numerous public and private review panels on indoor air issues, serviced on the EPA lawn care pesticide advisory committee, and I am a member of the President's Committee on Employing People with Disabilities.

The Center receives hundreds of calls and requests for information each week. The majority of these contacts come from people who are mildly to severely affected by environmental exposures at work and at home. This population includes people with allergies, asthma, chemical sensitivities and related environmental disabilities.

Indoor pollution issues are intimately interrelated with chemical sensitivities. While not every individual who becomes ill is made so by indoor exposures, once ill all sensitive individuals experience mild to debilitating symptoms triggered by indoor contaminants. These triggering exposures include pesticides, solvents, deodorizers, disinfectants, air fresheners and the balance of indoor air contaminants referenced in the proposed rulemaking.

We have tracked and assisted significant numbers of individuals sick from workplace exposures. We believe that multiple chemical sensitivity, that is, people who become chronically ill and disabled, may be a preventable disability. Employers must act to remove severely affected individuals from exposures causing debilitating symptoms and to minimize triggering exposures through optimum ventilation, careful product selection, adoption of policies such as integrated pest management and control contaminants during remodeling and renovation.

We have publicized recommendations to create an accessible indoor environment. Many sensitive individuals can be accommodated with modest modifications to the work environment or the work station yet great numbers of those sick from workplace exposures find themselves harassed and discriminated against.

Many become increasingly disabled or may be fired by employers who do not wish to deal with the ramifications of this disability.

We are impressed with the proposed rules and believe that they will advance indoor air quality. We believe that the needs of susceptible and sensitive populations can be addressed by expanding the scope of the proposed rules by specifically including these populations and their needs.

Those with environmental disabilities are afforded some protections through the Americans with Disabilities Act. However, these protections are limited, apply on a case-by-case basis after the fact, after the disability and discrimination have occurred. By increasing access and understanding and by facilitating accommodations for those affected by workplace exposures through the recommendations that we have made, OSHA will help those with environmental disabilities, help prevent future disabilities and help keep healthy people healthy.

We enthusiastically support the smoking prohibition. We would prefer a complete smoking ban rather than providing designated smoking rooms. Care will need to be taken in identifying outdoor areas suitable for smoking. Smoking at the entrances to buildings forces brief but intense exposures outside and inside the entry. In some situations such as shopping malls, patrons may also be forced to walk the gauntlet of individuals who are smoking.

Furthermore, smoking must be prohibited in outdoor areas which are in the vicinity of fresh air intakes and operable windows.

We support the overall approach and content of the balance of the indoor air quality proposal. However, it is important that OSHA integrate recommendations that address susceptible and sensitive populations into the proposed rules. Our primary recommendations are summarized by topic area.

Regarding indoor air quality compliance program and implementation, we support the development of a written compliance program to ensure healthier indoor air quality. Ideally, the person in charge of the compliance program would be educated or trained in these public health issues and the plan would include input from or review by sensitive individuals or their representatives.

We endorse all the indoor air quality recommendations cited in the rulemaking in this section. We are pleased to see recommendations for minimum ventilation for all shifts, ventilation to exhaust, maintenance and housekeeping products. You should add a requirement for ventilation and exhaust systems to be turned on 24 hours a day or at least some period of time before and after work hours to be certain that employees enter and leave the work space with optimum indoor air quality.

The implementation plan must require action and response to employee health complaints. This is a critical element which I will address shortly.

With regard to HVAC systems and building ventilation, there should be a prohibition of the introduction of chemicals into the HVAC system except as may be required in an emergency situation at which time complete information would be provided to building occupants before any such action is taken.

The rule should discourage or prohibit the introduction of deodorizers, disinfectants, perfumes, scents and other aromas. We have received many reports from building occupants who believe they are sick from the use of such chemicals in this manner.

The rule should permit or encourage the use of windows for ventilation purposes for the health and safety of building occupants and to cleanse indoor pollutants more rapidly than the HVAC system can, except in instances of highly polluted outdoor air.

It is important to check the location of fresh air intakes to make sure that they are not introducing additional contaminants into the work environment. We are aware of a number of instances during which lawn care pesticides were introduced into the building's ventilation system through the fresh air intakes.

With regard to recordkeeping, I believe that accurate and comprehensive recordkeeping could be one of the most critical elements in the proposed indoor air rules because it could provide for timely identification and resolution of building air quality problems.

Recordkeeping cannot, however, be limited to building-related illnesses only. To do so would mean that the majority of indoor complaints would go undocumented and perhaps unaddressed. The numbers of people sick from and injured by workplace exposures is significant and growing. Those who may be in a sick building or who may be experiencing symptoms from workplace exposures have no vehicle for reporting their health problems. If these individuals do try to express concerns to co-workers and management, the complaints are often ignored. Many individuals find that they are ostracized and harassed in such circumstances or that they become chronically ill and disabled before they can be appropriately accommodated.

The recordkeeper must cite the reports of all those affected by poor indoor air quality to be able to adequately monitor each situation.

Recordkeeping that identifies all health related indoor air complaints may be particularly important in offices and structures with multiple occupancy where the air quality in separate spaces may be unknown to the persons in charge of indoor air compliance.

The recordkeeper should be knowledgeable about and trained in public health issues with particular emphasis on susceptible populations.

The proposed rule may also need additional clarification regarding the recording of employee complaints.

Who will record the complaint?

Will someone track the types of complaints?

Who will take action to remediate the situation?

Will those who report health complaints be guaranteed anonymity to avoid stigma and retaliation?

Will there be an enforcement mechanism?

And the next topic is signage. Signage is an efficient and inexpensive way to protect employees and the public. Not only should permanent signs be posted to designated smoking areas as proposed but they should be used to alert building occupants and the public to other activities which may impact on accessibility by compromising building air quality.

Signs should be posted for pesticide applications, remodeling activities, cleaning activities such as floor stripping and waxing and carpet shampooing and cleaning.

Restroom cleaning schedules should also be posted. Signs could also be used to designate fragrance-free work and lunch break areas for employees with allergies, asthma and chemical sensitivities.

The next topic, indoor contaminants. The proposed rulemaking suggests that an effective and efficient HVAC system will minimize the impact of other pollution sources. From the reports that we receive, I don't think this is true of all workplaces. Complaints received at our Center identify problematic products which should be restricted or eliminated in the indoor environment. Your recommendation should also call for less toxic alternatives such as IPM policies.

Government research on specific indoor air exposures has not been used to the benefit of the public. EPA's team study found that the terpene alpha-pinene, a mutagen, an paradichlorobenzene, the active pesticide in moth flakes and in air fresheners, are found in indoor environments at 10 times the level found outdoors.

Pine scented products and most particularly air fresheners can be debilitating exposures for those sick from indoor pollutants and significant indoor contaminants, according to team study project director Lance Wallace.

Research is available on other indoor exposures that demand our attention and your guidance or regulation.

Air quality during renovation and remodeling. Remodeling should not be done while buildings are occupied. Significant numbers of people who have become hypersensitive to chemicals from workplace exposures have become sick during remodeling and renovation activities. Some employees describe remodeling situations during which affected individuals continued to work during the use of toxic chemicals, even in instances when workers doing the renovations wore respirators.

Any remodeling plan must specifically address susceptible populations. Education must be provided for workers on this disability. Input from hypersensitive individuals or their representatives should be required. This should include provisions for alternate work space during the project for a sufficient time to allow for reentry without symptoms.

While we approve of prenotification, 24 hours may not be sufficient for those who must make alternate plans. Efforts should be made to remodel when the building is minimally occupied. This is particularly relevant when renovations are done in schools, hospitals, day care centers, nursing homes.

While preparing this statement, I was reminded of the concerns of two high school students who are volunteers at the center. One student asked if I could help her get smoking out of her high school building. Smoking is prohibited in all schools in New Jersey which is where we're located. She expressed her physical discomfort while being in the vicinity of tobacco smoke and her concern for her own and her classmates' health. She noted that students freely smoked in bathrooms and other areas of the school without significant faculty or administration action.

The second student was eager to share her reasons for volunteering. When I had visited her class to discuss our center and our agenda, I had told the class about my sensitivities to environmental exposures. She felt relieved hear a validation of her own experience. She had had a history of symptoms from some perfumes and cleaning products, among other items. She related a recent experience in which window cleaning product was being used in a classroom while she was taking a chemistry test. She experienced a severe headache and felt she could not concentrate. She asked the teacher proctoring the test to stop using the product. When she shared her experience with her chemistry teacher, he dismissed her complaint.

Both of these students and all of our children deserve classrooms and ultimately work spaces free from indoor pollutants. The longer we ignore these issues and dismiss these health complaints, the more overwhelming these problems will become. The OSHA proposals before us are a significant step forward in addressing this complex area.

JUDGE VITTONE: Thank you very much.

I have Ms. Lamielle's testimony in printed form. I also have something called "The Delicate Balance"?

MS. LAMIELLE: Yes. "The Delicate Balance" is a newsletter that we do. That issue has a number of articles relating to workplace exposures and access and disability issues. And the other pieces that my testimony had referenced information on access to work environments and such and that's included in the newsletter but also I forgot to attach the other page that should have been part of your testimony so I'll be sending that in separately.

JUDGE VITTONE: Okay. The printed testimony will be identified as Exhibit 202.

(The document referred to was marked for identification as Exhibit 202 and was received in evidence.)

JUDGE VITTONE: And the newsletter called "The Delicate Balance," Volume 5, Nos. 3 and 4, Fall and Winter 1993-'94, will be 203.

(The document referred to was marked for identification as Exhibit 203. and was received in evidence.)

JUDGE VITTONE: Ms. Kaplan, do you have any questions?

MS. KAPLAN: Yes.

Ms. Lamielle, could you just tell us a little bit more about the National Center for Environmental Health Strategies? How many members do you have?

MS. LAMIELLE: Right now, we actually count our membership through our distribution of our newsletter, which is in excess of 4000. And the other piece, I guess, is that we take-- we've probably taken in over the course since 1986 between about 12,000 and 15,000 calls from people who are chemically sensitive.

MS. KAPLAN: How do you respond to the calls? I take it you provide information?

MS. LAMIELLE: Well, we have free information packages that give information, basic information on chemical sensitivity and then can be modified depending on the person's call. One thing that I can say right now, I've seen a change in the complexion of the calls that we've received and the information requested and received. Over the last several years, there have just been more and more people calling regarding workplace exposures and that's one of the several significant things we've seen with people who are alerted to the fact that, gee, I could be sensitive to what's happening here in terms of remodeling experiences or realizing that perhaps they have other options for getting accommodated or having their health issues addressed.

The flip side of that is in many of these instances even though we try very hard to work with the person affected and employers and such, sometimes we're successful in getting people accommodated or getting their needs met but in many other instances people are just faced with real, I guess, ignorance or lack of understanding toward this problem and an unwillingness to cooperate, to accommodate people.

MS. KAPLAN: So some of your members are people with diagnosed chemical sensitivities and some of them are just experiencing problems in the workplace or in other places with various chemicals?

MS. LAMIELLE: I would say that the majority of people are sensitive to chemicals but it's a range from people who are mildly affected to people who are severely affected and disabled.

MS. KAPLAN: And what was the impetus for the formation of the organization?

MS. LAMIELLE: I myself became sensitive to chemicals, very sick, in 1979 following multiple exposures.

MS. KAPLAN: You talk about information that your organization has collected. Do you have any IAQ studies performed by independent consultants?

MS. LAMIELLE: No. That's not the nature of it. We're involved in perhaps seeing that those things happen or input into them but that's not the type of thing that we are doing at this time. We're much more involved, I guess, in tracking what's happening and also in promoting or participating in research in this area.

MS. KAPLAN: You mentioned getting calls from people who have remodeling going on in their workplaces. How often is remodeling a factor in these problems?

MS. LAMIELLE: I think it's-- if you're not already sensitive, I think that that's one of the significant exposures that causes people to develop multiple chemical sensitivity. So there's frequent calls in that sort of larger complex of calls that we get.

MS. KAPLAN: And what materials are causing these exposures? Are they paint? Are they new materials? Fabrics?

MS. LAMIELLE: Frequently I guess they're multiple exposures but I would say certainly new carpet installation with or without adhesives, painting, fresh paint. Some significant ones having to do with using solvents to remove floor tiles, like if you want to replace floor tiles or replace it with carpeting.

We've had, I guess, at least two instances that we were aware of where schools, the concrete in the school or the soil around the building was apparently contaminated by the heavy use of solvents to remove these floor tiles to begin with.

We also get a lot of calls from people like working perhaps like in laboratories where they are doing some types of medical testing and everything from the chemicals that are being used in those tests to the fact that maybe a number of people are sick and they find out that the fresh air intake has been broken for six months, things of that nature.

So we sort of do the whole spectrum, not just office workers but people in other occupations where they would be exposed either through activities that take place or other kinds of chemicals introduced into the environment.

MS. KAPLAN: And in your experience what sorts of protections are being provided for these employees to minimize exposures during renovation?

MS. LAMIELLE: In many of the instances, I don't think there's much protection or information and that's the problem. So healthy people-- right now, we have some factors that could say-- if we shared them with you, and I can go through them in a moment, it might say you're more likely than someone else to develop a more severe case of chemical sensitivity, developing multiple chemical sensitivity. So that people who have a history of allergic rhinitis or food sensitivities or reactions to over-the-counter or prescription medications, there are a few factors like that that seem to appear in people who have developed multiple chemical sensitivity.

And so with that kind of information and knowing the types of exposures that may cause this disability, it seems to me that the intelligent employer and the Federal Government would play a role in coming in and defining these are the exposures that are going to take place, this is what we know about these risks or hazards, but people who may be vulnerable populations and not just people who might become chemically sensitive but other susceptible populations need to, I think, have that full information to be able to assess or to know when their health is perhaps deteriorating from the remodeling and to be able to take immediate action.

Quite frequently what happens is we'll get a call from somebody the first week that carpet installation is taking place and the person will be saying that I'm experiencing numbness around my face and a really severe headache and somehow by placing a number of calls I found out about your organization, I want to know what to do.

Well, my advice, my honest advice, to that person is to get out of that space, to make sure that you don't become chronically ill, disabled, ending up with Social Security and all these other factors.

But that reasonable recommendation with regard to that person's situation is not a rational one because that person needs to work and so forth and so on and employers aren't equipped in understanding this disability to know that rather than sort of forcing that person to disability they should take action early on to maybe move that person to another area of the building, allow that person to work at home for some period of time, somehow act to prevent disability rather than allowing the person to continue to get sicker and sicker over a period of weeks in that work space.

MS. KAPLAN: You mentioned cigarette smoke coming in through windows or fresh air intakes. Have you received complaints from people having a problem with that?

MS. LAMIELLE: Yes, we have received that. And personally I have had that experience myself but, yes, we have received complaints about that.

MS. KAPLAN: And how large of an area at a building entrance do you think should be designated smoke-free?

MS. LAMIELLE: My guess would be at least 25 feet or so, maybe a little bit more than. I'm trying to sort of assess-- but, you know, in that type of situation, for example, I've faced having to go to the hospital emergency room and literally walked through maybe 15 different medical people in front of the emergency room smoking as you're trying to go in with respiratory problems and this is just not exactly an ideal situation. My guess would be at least 25 feet but far enough away so that you don't have to walk through a significant amount of tobacco but also so that it doesn't pass into the building through the entryway.

MS. KAPLAN: And do you get many complaints from people having adverse reactions to secondhand smoke?

MS. LAMIELLE: Yes. Yes. I would say that in the area that we deal with, I would say 99 percent of the people that we deal with are very-- get very sick from tobacco smoke but to some degree it becomes a lesser issue because many of those folks are, for example, some of them aren't working because they've become so sick so it's a significant issue but it might not be as pressing of an issue as the fact that, for example, that they can't find clothing that they can wear or whatever. So it's a major access issue but it may not be a significant issue if you're somehow sick and in your own home and smoking doesn't occur there. So that's why in terms of the-- but, yes, it's a major, major issue.

MS. KAPLAN: You also mentioned problems with chemicals being introduced into HVAC systems.

MS. LAMIELLE: Yes. Significant problems.

MS. KAPLAN: This would be biocides, air freshener type chemicals?

MS. LAMIELLE: Yes. And it's not just-- you also have the issue of just air fresheners themselves being placed in buildings and automatically dispensing scent or other types of chemicals. For example, in bathrooms or whatever. I addressed the HVAC system because that's what was addressed in your comments but I think, again, that that's one of the significant areas where over the last several years and certainly in the last year that there is just more and more instances where businesses, stores, hotels, office buildings are being urged to introduce chemicals to stimulate people's-- you know, to work, productivity, or make them want to stay in buildings, all that sort of aroma/perfume types of things. And many of those chemicals are just significant-- there are significant access and health problems for sensitive populations. So that would be people who are mildly to severely affected.

And then meanwhile, we've had instances where we've been told that like a hospital cafeteria where their HVAC system regularly had dispensed disinfectants and deodorizers through the system in the cafeteria and the person had guessed maybe this was being done because of AIDS and other bacteria and such and I guess I just wonder about the efficacy of such a practice and I think that it's probably-- my sense is that it's more harmful to people than it is doing something that's beneficial for the building in a cafeteria type of situation. But those are, again, serious exposures. And you can't get away from them. There is no way to avoid them when they're present in the building.

MS. KAPLAN: Well, what sort of reactions do people have to these chemicals?

MS. LAMIELLE: Well, I would say, for example, air fresheners, they create very debilitating symptoms for people who are chemically sensitive and severely, I would say primarily neurological symptoms. So as far as just cognitive problems and central nervous system types of symptoms.

MS. KAPLAN: The National Air Duct Cleaners has guidelines on this topic and also most likely a reputable duct cleaner will only use chemicals approved by the EPA. It sounds like you're saying these either aren't being followed or they're not sufficient?

MS. LAMIELLE: Well, I guess I'm going to separate into two issues. One is the issue of businesses wanting to introduce fragrances and aromas and perfumes into buildings through the HVAC system. Those are serious in terms of the symptoms that people who are sensitive experience from them. I think frequently those are adding more indoor pollutants, they're adding more indoor contaminants, rather than addressing it or making air less contaminated.

On the separate issue of disinfectants and such, that there might be instances where because of a very significant known problem you may have to introduce a biocide into the building, I have got to say that I am reluctant in saying that, well, just because something is on the market and registered with the EPA that it is a safe product for people to be exposed to. Clearly in the area of pesticides, a pesticide called Dursban or chloroparathos is registered by EPA and I can tell you that's the number one pesticide that people who are becoming chemically sensitive who got that way from pesticides are getting sick from.

So I think that there is a clear exposure problem with biocides and that they should be used with great caution, that they should be used only when people who are in that space or going to use that space are alerted to the fact that they're being used. And, again, I think only in emergency situations, not as a general rule.

MS. KAPLAN: You also mentioned reports of lawn care pesticides being pulled into HVAC systems. Were any of these incidents investigated?

MS. LAMIELLE: Yes. There was one in Washington Township, New Jersey where actually in that instance a maintenance person used a week killer, used an herbicide, around the perimeter of a junior high school building. It actually turned out to be an herbicide that was no longer approved for use, they just happened to have it stored there. When it was used, it was pulled into the ventilation system, into the classrooms, and then it got picked up and it was circulated through the entire building. The incident happened, my rough guess would be maybe four or five years ago and at that time it happened in May. They ended up having to evacuate the building. Some people-- I think it was like 20 or so perhaps went to the hospital. And ultimately the building was closed down to the end of the school year because of people initially getting very sick from the application and then being uncertain as far as the levels of chemicals that might remain in that building.

We've had similar instances also in an insurance company in South Jersey where pesticides were applied to the perimeter of the building and pulled into the building and the building being evacuated and people ending up at the hospital.

MS. KAPLAN: So would you say that problems result from pesticides being misapplied or from the location of the fresh air intakes?

MS. LAMIELLE: Yes. Well, first off, I don't like the idea of pesticides being applied around buildings to begin with but that's not an issue at hand today. But the thing is that I can't see how you can apply toxic chemicals in the vicinity of buildings without to some degree introducing them into the building because of the volatilization factor. So, again, I'm not an engineer so I don't know that there's some way to frame that in terms of indoor air intakes but that's certainly a big issue. And I didn't bring up diesel but that's another area where we've had a lot of complaints from people in school buildings where either cars or school busses are idling outside the buildings and, again, the diesel fumes being pulled in and circulated throughout the building.

MS. KAPLAN: Would you recommend advance notification for pesticide applications?

MS. LAMIELLE: Absolutely. I'd first recommend integrated pest management where you don't spray toxic pesticides until you get to the point where there is no other alternative.

Secondly, anything that you do apply in that building with regard to pesticides, and I would also add in fertilizers and lime because people get sick from those, should require prenotification. And, if possible, more than just one day. And for everybody, for all occupants, for everybody's safety.

MS. KAPLAN: Do you think it would be feasible for employers to provide advance notification on pesticides?

MS. LAMIELLE: Well, I serve on several panels in New Jersey with regard to pesticide issues and what we've proposed there, what I've proposed there, was actually including-- depending on whether your space is a whole building or spaces within a building some kind of a decal at the entrance that might give you a proposed date of application, if it's in advance of that date, or the actual date of application and the pesticide used and a number if you wanted to get more information. And that's the same kind of signage I think needs to be used in a few other areas, not only for building occupants but to alert people coming into a building.

MS. KAPLAN: You talked about signage being an efficient and inexpensive way to protect employees. Do you have any information on what signs cost? I mean, I'm not sure what you have in mind as far as how sophisticated.

MS. LAMIELLE: Yes. I don't think that they necessarily have to be sophisticated and I guess--

MS. KAPLAN: They could just be a piece of paper?

MS. LAMIELLE: Yes. I mean, we're looking into little tents, like you might have somebody's name placque on, to identify a fragrance-free area for people who are very sensitive to perfume and want to be able to sort of either eat or work in a space separate from that and to alert other people to it. And I think that those clearly cost under a dollar for small numbers, for like hundreds to 500. So I think that's very inexpensive. Again, I think that the plastic decal idea would work in some of those areas also.

You know, the kind of problem you run into here without having signage is the problem I had last night. I have a fact sheet from the organization that I send to hotels when I make arrangements to stay so that I don't get sicker than I have to be staying in a perhaps unfriendly environment and the hotel that I stayed at has a copy of this fact sheet which clearly says among other things that I cannot be in a recently remodeled space and I asked those questions and was assured, you know, you're not going to be in a recently remodeled space. And when I got to the hotel, I ended up being put-- at first, three different attendants at the sign-in desk, none of them seemed to be aware of this but ultimately the floor that I was assigned to, and I was very sick there and I was trying to figure out why was I very sick there, none of the three knew that that floor had just completed remodeling like within the last week or so, the whole entire floor. And I'm telling them I have a major problem here but if I couldn't identify what that problem was I thought how would I know I'm not going to have it on a different floor and they had to check with other people to ultimately find out that remodeling had gone on for a number of months but it was very recent. And, again, I think that a population who is just more sympathetic and understanding to this issue will automatically-- like if you see somebody in a wheelchair you're going to know that that person can't use a regular bathtub and ultimately when I say to someone at the hotel that I am chemically sensitive and they put that on my confirmation that that will mean something to them and it will clearly mean that I don't want to be in a room that just had carpet installed and was just painted and so forth. And that's the kinds of issues. And, again, the signage factor would further alert both the public and people inside that building to situations of that nature.

MS. KAPLAN: You mentioned in the provision for an employee complaint log that-- you said the log should be used to address air quality problems, not just the operation of the HVAC system. Could you explain this?

MS. LAMIELLE: Yes. Well, I believe that-- again, when I say people are sensitive, I really mean a spectrum of people. Some people are just mildly sensitive, not severely affected, but those people also are sort of indicators of what's going on. And I mean that whole spectrum of folks that when they say that, you know, I'm having a problem breathing in this space or I'm having severe headaches and I'm sitting next to the copy machine and I think that there's a problem here, I think those kinds of complaints will help the person coordinating air quality for that space or for that building to identify problem areas and to get them resolved.

I clearly think that the person who is sensitive has the best sort of first insight into what the problem might be that would help ultimately the mechanic or the engineer person in resolving it. And I don't think problems are just HVAC system and that was the other point there.

MS. KAPLAN: Do you have any suggestions as to who should be recording the complaints?

MS. LAMIELLE: See, again, I don't think-- for example, if we take a school system, the worst person in the world I think is the maintenance person because the maintenance person's orientation is-- for example, in New Jersey, maintenance people can also be certified pesticide applicators. So in a school system where our regulation says you don't spray pesticides except if the building is unoccupied, okay? Meanwhile, the janitor is there who is certified and he sees some ants, he can go grab a can of Black Flag and spray the ants. Meanwhile, you may have students there who are asthmatic or whatever who are in a situation where they don't know what's going on. So I don't necessarily believe like the basic maintenance people without special training, and I think you need some input that's going to be public health concerns blended in with somebody who has maybe engineering or mechanical skills.

MS. KAPLAN: Do you think these complaints should be done anonymously? You had mentioned something about that.

MS. LAMIELLE: Well, I think there is-- let me back up to the question you just asked because maybe the complaints should actually be recorded or like maybe there should actually be several people who maybe filter complaints in the sense of it's not just one person. Maybe that gets by the fact that it's just the janitor or it's just an engineer or it's just a public health person but it's sort of like a grouping of people who are better skilled at being able to sort the kinds of issues that might be involved here.

I thought there was in the whole recording thing, I think perhaps there might be a privacy issue just in saying that if you have Legionnaire's disease or whatever and you need to report that, that you need to give a doctor's note. I just wonder to what extent even somebody who had a diagnosable building-related illness, whether some people might just not report it because they felt like it was a violation of their privacy. And, again, maybe that's an issue that you folks have to deal with but I was-- unlike AIDS or something but there's different-- but I think that there might be an issue there.

And secondly, though, one of the reasons that many of the people that we deal with who are trying to get their problems resolved in their workplace don't necessary go to their employer or go to management or whatever is because of their experience that when they do go to their employer or management they frequently are demeaned, treated hostilely. In one circumstance recently two employees, one with severe lung problems, the other one was sensitive to perfumes, and management actually took somebody who was known in this whole office space to use heavy amounts of perfume and moved this person in with these two other people so they created an intolerable work situation and then they said but we're not going to deal with this.

So I think there's a problem or there might be a potential problem if you require people or you somehow like have the names there and could literally publish them or pass them on to the employer or whatever and so I think that that might to some degree handicap your ability to be attuned to what's happening, or whoever is collecting these things, handicap that person's ability to be attuned to what the prevailing occurrences are in that space.

MS. KAPLAN: Have you heard of any problems with ventilation systems not running during the entire regular work shift, being started up late or closed down early?

MS. LAMIELLE: Yes. They're started later or they're shut down early in the afternoon. Yes. Like it's 5:00 and people are done and there goes the ventilation system but you may be expected to work until 7:00 for some reason. That's why I really think that-- I think that by shutting down ventilation systems because so many buildings are so air tight and we introduce so many different kinds of chemicals into them that we actually forcibly degrade the air quality in that building and I think that we would do better if all buildings ran either 24 hours or at least closer to 24 hours because also you have the issue of, for example, some buildings might be cleaned at night or have other types of activities. Again, as you introduce more contaminants into that space. And it's certainly not fair to the daytime employee that the carpets were shampooed at nine p.m. and no ventilation occurred after five p.m. and meanwhile they have to go in at eight and there's the carpet shampoo and all the various chemicals. So, yes, clearly, I think that the maximum that we can encourage employers to run a ventilation system the better off the health of everybody is going to be.

MS. KAPLAN: Okay. Thank you very much.

JUDGE VITTONE: Thank you, Ms. Kaplan.

Let me have a show of hands, who has questions for Ms. Lamielle?

Mr. Rupp, this gentleman, Mr. Gross. Okay.

Is it Mr. Jones?

MR. JAWER: Jawer.

JUDGE VITTONE: Okay. Why don't you come down first?

MR. JAWER: Ms. Lamielle, I'm Michael Jawer with Building Owners and Managers Association. Good morning.

MS. LAMIELLE: Hi.

MR. JAWER: At the outset of your comments, you noted that while not every individual who becomes ill is made so by indoor exposures, once ill all sensitive individuals experience mild to debilitating symptoms. The implication there is that most or nearly all people are made ill who are chemically sensitive are made so by indoor exposures. What is your basis for noting that at the outset?

MS. LAMIELLE: I don't know that I intended to imply that most are sick from indoor exposures. However, I think it's a significant route, both home and workplace and other types of exposures you might have.

The other categories that are absent from that comment because of the nature of the rules that I'm commenting on is community exposure, so people that might be exposed to smokestack emissions or agricultural pesticide applications, sewage treatment plants, whatever, as well as obviously industrial exposures are absent there but they still do take place, they tend to take place in the indoor environment. So that information is based on the calls and contacts that we've received, other literature in the MCS area and I guess, again, I don't have any statistic that says it's 90 percent, it's 40 percent or whatever but certainly I would say the majority of people and probably more than the majority-- yes, the majority of people from indoor environments.

MR. JAWER: But there's not been any research done specifically to say whether it's the majority or whether it's 40 percent or 10 percent or any particular number?

MS. LAMIELLE: Well, research data that's been collected by some researchers in this area clearly suggest-- yes. I mean, two of the areas that are most frequently researched in this area are people who are getting sick from new or remodeled buildings and people who are sick from pesticides and, again, the pesticide instances tend to be pesticides in indoor environments. But I cannot point to one thing that says absolutely this is the number.

MR. JAWER: When did you notice that you were becoming sensitive to chemicals and in what circumstance did that arise, yourself personally?

MS. LAMIELLE: I became sick in 1979. I had multiple exposures at the time, a significantly malfunctioning sewage treatment plant a couple hundred feet from our house that was out of compliance with the state and the township and a creek behind us that was 100,000 times more contaminated than the New Jersey shore when they closed the beaches because of the sewer plant. And we subsequently started remodeling in our house and we also had a significant pesticide application and a handful of other things. I had several pretty major exposures at that time.

MR. JAWER: So the exposures then were really from the sewage treatment facility--

MS. LAMIELLE: There were both outdoor and indoor exposures that got me sick.

MR. JAWER: It was both outdoor and indoor you say?

MS. LAMIELLE: Yes.

MR. JAWER: Do you know what type of indoor exposures do you think might have--

JUDGE VITTONE: Just a second. Who are you, sir?

MR. LAMIELLE: I'm her husband, sir.

JUDGE VITTONE: Okay. She is the witness. She has to answer the questions. We want to hear the information from her. She testified, okay?

MR. LAMIELLE: Does she have right to counsel?

JUDGE VITTONE: She has a right to counsel. Are you her lawyer?

MR. LAMIELLE: No, I'm counselling her.

JUDGE VITTONE: I'm sorry, I can't pick you up. You're not on a microphone.

MR. LAMIELLE: All I'm saying, Your Honor, is we're going for cross-examination here. I mean, there are certain aspects that I think that perhaps are private and not necessarily necessary to be talked about here. I mean, I don't know what this gentleman's point is he's trying to make but to query her regarding her own particular health complaints is not germane to the testimony that she's given.

MS. LAMIELLE: I understand the point my husband makes. It's just the fact that there are many times where if something has happened you can't pin it down and say, well, it was just the wallpaper, it was just the wallpaper paste, and he's just basically saying that there's no need for me to feel like I have to identify every single piece that happened there. But I got sick from outdoor and indoor exposures and we're fine with that.

MR. JAWER: Well, it seems to me that you believe you became sick or sensitive from these different exposures but my point is that at the outset you mentioned clearly it was the sewage treatment plant and you've mentioned a number of times the state of New Jersey, I don't want to denigrate New Jersey but it seems there's a particular sensitivity there to the outdoor environment.

Well, let me move on--

JUDGE VITTONE: Wait a minute. There's no question there.

Okay. Move on.

MR. JAWER: You mentioned significant numbers of people who have become hypersensitive to chemicals from workplace exposures have become sick during remodeling and renovation activities. Again, what is the basis for your saying significant numbers of people who have become hypersensitive to chemicals from remodeling and renovation activities?

MS. LAMIELLE: The basis is the anecdotal information that we collect at our center.

MR. JAWER: How would you distinguish between-- you've mentioned sensitive populations, you've used the term hypersensitive, you've also mentioned mildly sensitive. Is there a distinction between those levels of sensitivity?

MS. LAMIELLE: Frequently in a remodeling situation, if it's significant, that person, when we hear from them, goes through a process and becomes chronically ill and disabled and the distinction there would be the fact that-- I sometimes use sensitive, chemical sensitivity both to indicate the general population as well as people who have become severely affected. Remodeling tends to make people chronically ill and disabled, therefore the term hypersensitive.

I'm not using it in any strong medical sense and I'm just talking about the fact that remodeling tends to make people disabled if they don't take action.

MR. JAWER: Are there particular offending chemicals that research has identified?

MS. LAMIELLE: With regard to remodeling?

MR. JAWER: Just in general with regard to any--

MS. LAMIELLE: Any aspect of an indoor environment?

MR. JAWER: -- aspect of an indoor environment that you consider to be possibly make someone sensitive.

MS. LAMIELLE: You're talking about causing illness as opposed to triggering symptoms?

MR. JAWER: Yes. The constituent chemicals.

MS. LAMIELLE: Okay. I think that there are-- certainly the information that we receive identifies a number of specific chemicals that tend to or appear to cause illness, cause chronic illness, more frequently than others. And that category would probably include-- and this is just based on anecdotal information and some information collected by researchers, that category would certainly include formaldehyde, it would include organophosphate pesticides such as Dursban and diazanon. It would include other kinds of solvents from various types of occupations so that we've heard from numbers of people who have used cutting oils, solvents used as cutting oils. And other times, again, you have mixes of chemicals so you cannot necessarily clearly identify if, for example, carpet is installed what chemical is implicated in carpet. So there are other categories where it's a product-oriented rather than a chemical-oriented classification.

MR. JAWER: You say that many sensitive individuals can be accommodated with modest modifications to the work environment or work station but then I notice later on you've said that you're recommending that OSHA should require that ventilation and exhaust systems be turned on 24 hours a day. Do you consider that a modest modification to the work environment?

MS. LAMIELLE: Well, actually I do think of that as a modest modification but in talking about individual workers, quite frequently for severity of problems, we're talking about an immediate type of problem. So, for example, someone who was having, one call, someone who was having great difficulty with the air freshener being used in a bathroom that was located in the vicinity of her work site, it was also the bathroom she had to use in the building, and to my mind it's a very modest modification to just remove that air freshener rather than questioning what's the problem here. Or in the situation I previously mentioned where one co-worker who used significant amounts of perfume moved into the vicinity of other co-workers who either could not breathe the perfume because of lung problems or sensitivities, I think that that is the kind of situation that is inexpensive to address, very modest. There's just no expense involved there but it's a matter of understanding what the issues are. So, yes, I think many of the situations are modest in addressing them.

MR. JAWER: You mentioned a couple of situations, your own in New Jersey, with the sewage treatment facility and you also mentioned a situation, I believe, in Washington Township, New Jersey where an herbicide was being pulled into the school building. In either of those cases, would increased ventilation be the appropriate means to address that problem?

MS. LAMIELLE: Well, ventilation is the problem that got them into trouble in Washington Township, so initially that's what caused the problem. I have no idea, I'm not an engineer, I don't know that increased ventilation would or would not have addressed getting those chemicals out of that space. One thing that I do know with regard to information in pesticide areas is that the literature says or EPA testing says that if you get pesticides into an indoor environment they tend to not break down because of the absence of sunlight and water so I just don't know to what degree ventilation would or would not have helped in that area.

MR. JAWER: My point is, though, if there are outdoor contaminants, increasing the ventilation rate brings a greater probability that those outdoor contaminants are going to be a problem in the indoor environment, does it not?

MS. LAMIELLE: But the flip side is the fact that all kinds of maintenance and cleaning activities introduce pollutants which tend to stay in the building and do not dissipate without some extra efforts to move them through that space and I think in many instances those cleaning products or maintenance products, pesticides, solvents used, copy machines, so forth and so on, that those chemicals do not dissipate from that environment. And, again, I'm not saying that every fresh air intake brings only fresh air and it doesn't have a sign that says "fresh air only" but nevertheless those contaminants in the building need to be cleansed from that building in some way, shape or form. And the second factor is clearly people who come in-- I mean, I think this is the experience of many people in this country, people who come into a building at 8:00 in the morning that has had the ventilation shut off from the previous evening have great difficulties in adjusting to that environment because of the stagnancy in the air and lack of air flow and whatever other products would have been introduced in that space.

MR. JAWER: You say many people have problems?

MS. LAMIELLE: I have not counted them. My guess is that that's at least a discomforting if not symptom provoking situation for people.

MR. JAWER: I'd just like to ask you one other question. You've pointed out that the rules should discourage or prohibit the introduction of deodorizers, disinfectants, and you've also mentioned elsewhere carpet shampooing, window cleaners, floor waxing and so forth.

MS. LAMIELLE: That's a misrepresentation.

MR. JAWER: I'm sorry?

MS. LAMIELLE: That's a misrepresentation. When I talked about floor waxes and carpet cleaners, that had to do with signage, not with not using those products.

MR. JAWER: But you did mention that carpeting-- in your estimation, carpeting does present the potential for problems of chemical sensitivity.

MS. LAMIELLE: I said-- actually, no, I don't think I even said it in here. I think I might have said it in my statement that new carpet installation seems to be implicated in instances of causing chemical sensitivity. That's correct. New carpet installation. I don't think I made statements beyond that.

MR. JAWER: Well, what I'm getting at is that many of these activities are done in buildings with the intention of making the environment cleaner and disinfecting and so forth. What would you recommend is the appropriate balance between cleaning a building and making sure that the people are in a clean, healthy environment and prohibiting those activities all together?

MS. LAMIELLE: What activities are we talking beth?

MR. JAWER: Deodorizing, disinfecting, this would include the introduction of biocides into the HVAC system, carpet cleaning which is an activity that takes place overnight in every building. These are commonplace activities, the sorts of cleaners that are used in restrooms and so forth. I'm not talking about the introduction of particular scents that smell nice in the environment but I'm talking about chemicals that have the objective of cleaning the environment.

MS. LAMIELLE: I think that there are two different issues here, one is cleaning in terms of just removing soil or other types of things which is what we would be talking about with carpet cleaning, versus the use of disinfectants and deodorizers. I don't think that it might be the same goal involved there and clearly I think that instances--we've heard of reporting of use of disinfectants and deodorizers, it's been not with any sense of one used to control a problem but repeated or commonplace uses of these products and I just think that-- again, I'm basing my information on the fact that we have numbers of people who are complaining of illness or have symptoms in those exposures and my sense is that they are just not healthful exposures.

MR. JAWER: Since people are also exposed to these types of chemicals in a variety of environments, not just in the workplace, would your recommendation be that further research at the very least be done into how these chemicals could be-- how the products themselves could be made less objectionable for people who believe they have chemical sensitivity?

MS. LAMIELLE: I don't think the question is objectionable but I don't know if you're familiar but EPA itself said that they had something-- I think the figure might have been 5000 disinfectants registered with EPA but hadn't the slightest idea what these products were, what they contained, what they did, their efficacy and so forth and so on. So I think there is a big question mark in the whole area of disinfectants as far as what are these products, what do they contain in terms of chemical makeup, how should they be used, when should they be used. And, again, my comment had to do with the practice of using disinfectants or deodorizers as well as perfumes or aromas through the ventilation system on a regular basis. It had to do with the fact that-- I was at a hotel in a conference where there were clearly-- or the hotel viewed it as clearly a problem to the ventilation system and they took action based on that problem. To my mind, that's a different-- if they're basing it on some type of circumstance where there is something to be addressed that's a very different situation from a cafeteria that spreads disinfectants through the cafeteria 24 hours a day or whenever they have the ventilation system on every day of the week. It's just a very different situation.

MR. JAWER: All right. Thank you.

JUDGE VITTONE: Thank you.

Mr. Gross?

MR. GROSS: Your Honor, I'll forego my questions. I think Ms. Lamielle addressed most of what I was going to ask her in my questions.

JUDGE VITTONE: Thank you.

Mr. Rupp?

Was there anybody else?

(No audible response)

JUDGE VITTONE: Mr. Rupp.

MR. RUPP: Ms. Lamielle, 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.

MS. LAMIELLE: Could I ask who they are or is that just something that--

MR. RUPP: Yes. Seventeen or 18 people, most of them university-affiliated scientists. I would be happy to provide you a name if you would like that.

MS. LAMIELLE: Fine.

MR. RUPP: I'd like to begin by finding out a bit more than we have learned thus far about the nature of your organization. You said that you count as members those people who receive your newsletter. How do people get on the list to receive your newsletter?

MS. LAMIELLE: The membership for the organization is actually based on a member subscriber fee. Right now, the figure that I gave was distribution on the newsletter which additionally includes complimentary issues that we send out to patients who can't afford the fee involved and it includes some government people and scientists who we are working with on projects and a handful of exchanges that we do with other newsletters.

MR. RUPP: How many people actually pay a fee for receipt of the newsletter?

MS. LAMIELLE: I can't tell you that right now. We are not on computer right now and I can't tell you. The reason that I used the 4000 was because I could not tell you the figure.

MR. RUPP: Any notion of a ballpark percentage, even if we're off 100, 200, something of that sort?

MS. LAMIELLE: It's several thousand but I just don't have an exact number so I would prefer to leave it as I don't have a number.

MR. RUPP: How do people get on the newsletter list?

MS. LAMIELLE: I thought that's what I just answered. There's a member subscriber fee involved for the majority of people who are members of the organization.

MR. RUPP: I understood that's what they pay once they've agreed to subscribe but how does one learn about the newsletter and get a subscription? Write to you?

MS. LAMIELLE: Yes. They would write to the organization. Yes.

MR. RUPP: And do you advertise?

MS. LAMIELLE: No. People would be familiar with us through either various other publications or media publications or through resources from governmental agencies and such but that would be the balance of it. No, we don't--

MR. RUPP: How much do you charge for the newsletter?

MS. LAMIELLE: It's a membership subscription fee of $15 individually, $10 for limited income and $25 for professionals.

MR. RUPP: And that's per year?

MS. LAMIELLE: Per year.

MR. RUPP: Per year. Now, if I go from the members to the staff of the organization, are you the president of the organization or do you have a title?

MS. LAMIELLE: That's correct.

MR. RUPP: The president of the organization?

MS. LAMIELLE: Yes.

MR. RUPP: And are there other paid employees of the organization?

MS. LAMIELLE: There are no paid employees of the organization.

MR. RUPP: And so you would have an office or work out of your house?

MS. LAMIELLE: I work out of my home.

MR. RUPP: You've referred at several points in your testimony today-- well, let me back up and ask a further preliminary question. Could you tell us something about your own educational background or study background?

MS. LAMIELLE: I am a college graduate and I worked for approximately five years before I became sick for the Federal Government.

MR. RUPP: Which agency was that?

MS. LAMIELLE: For the Defense Department.

MR. RUPP: In New Jersey?

MS. LAMIELLE: In Pennsylvania.

MR. RUPP: In Pennsylvania. And your college degree is in?

MS. LAMIELLE: Is in English.

MR. RUPP: Okay. I'm sorry, I interrupted you. Go ahead.

MS. LAMIELLE: That's it.

MR. RUPP: Okay. Did you have any training in any of the health sciences?

MS. LAMIELLE: Only what I've gathered over the last 10 years.

MR. RUPP: Is this a full-time occupation for you? Or avocation or whatever words you would like to use. Is this your full-time endeavor, the work that you do with your organization?

MS. LAMIELLE: I would assume so, yes.

MR. RUPP: All right. You've mentioned at several points in your testimony the desirability of having fragrance-free zones in the workplace. I take it you would include in that public places such as restaurants, bars, shopping malls, other places where people congregate as part of their routine activities?

MS. LAMIELLE: In the testimony and in the indoor air regulations, I was specifically addressing workplaces.

MR. RUPP: Well, for many people, of course, those are workplaces.

MS. LAMIELLE: So are we talking about the employees of a restaurant?

MR. RUPP: Well, perhaps for the benefit of employees, that would be one perspective from which one could judge whether this is desirable or not, I suppose.

MS. LAMIELLE: What was your question again?

MR. RUPP: Well, let me take it in a couple of steps because I thought that step was going to be easy. Is your testimony limited to the office workplace or should we be interpreting the testimony you are giving to encompass a wider variety of venues than simply the office workplace?

MS. LAMIELLE: In the office workplace, I believe that there should be some protections for people who are sensitive to allow them to be separated from significant amounts of fragrances if that's necessary.

MR. RUPP: Okay. And now the second question then is what about other venues where people congregate and they're generally referred to as places of public accommodation? And I would invite you to answer that question from the perspective either of employees who work in those areas or visitors to those areas.

MS. LAMIELLE: I don't know that I can answer it in one statement or two. It's just a very complex problem.

MR. RUPP: You've really focused, I'm getting the sense, on the office workplace. That is the focus of your testimony today?

MS. LAMIELLE: Well, in terms of fragrances, I think it's easily addressed in an office environment. You are an employee. I think as an employee you have a right to an accessible environment, to be able to do your job. And to address the other environments that you're talking about, I just don't think it's as easy in specifically the fragrance area. In other areas, in terms of signage, I think it's just as easy for a hotel or for a realtor's office or for the local bank to take care of those issues as it is for a typical office building to take care of those issues.

MR. RUPP: Well, what if we focus on the situation of a restaurant and someone is sensitive to fragrances and they begin a meal and someone comes in the restaurant who has used a perfume or a cologne or something of the sort or you have an employee who has a sensitivity to perfumes and colognes and that sort of thing, is there an accommodation that you would ask OSHA to consider for those people or a rule?

MS. LAMIELLE: See, again, if we're talking about an employee using perfume--

MR. RUPP: No, I'm talking about the patron.

MS. LAMIELLE: You said or an employee using perfume.

MR. RUPP: All right. Let me restate it so that I can focus the question I really want to ask. The patron comes in and sits next to you. And again I would ask you to respond from two perspectives, the diner who has a sensitivity to fragrances and an employee who may have a sensitivity to fragrances.

MS. LAMIELLE: I don't really have a sense of a policy in the specific area that he's addressing.

MR. RUPP: That's fine. If you don't, that's a fair answer. If you haven't thought through that issue.

JUDGE VITTONE: If you haven't focused on that and you're not prepared to talk about it, that's fine.

MS. LAMIELLE: Okay.

MR. RUPP: In response to any of the questions, if you haven't focused on it, if you don't have any thoughts, just say so.

MS. LAMIELLE: Okay.

MR. RUPP: I'm not trying to get you to answer questions to which you really don't know the answer or don't have a firm policy.

MS. LAMIELLE: Yes.

MR. RUPP: Okay?

MS. LAMIELLE: I mean, I have opinions but I don't think this is the place for my opinions. I think this is a place to talk about what can we recommend or not. It's not something that I addressed for today's testimony.

MR. RUPP: Okay. I appreciate that.

Now, when we're talking about fragrance-free, what kind of materials are we including? I take it clearly we're talking about women's perfume.

MS. LAMIELLE: In my including fragrance-free, I primarily thought in terms of perfumes or heavily scented products.

MR. RUPP: Okay. Men's cologne would be one of those?

MS. LAMIELLE: Yes.

MR. RUPP: And how about aftershave lotion?

MS. LAMIELLE: They could be. But, again, the fragrance-free-- I mean, this was sort of an innocent comment made in the testimony but the concept of a fragrance-free space would basically be so that the person who is sensitive is not forced to stay in the vicinity of somebody else that that person is having difficulty functioning around because of their sensitivities and would have the option to be in a different space or environment rather than either saying, well, I can't work here at all so losing their job or having no choice but to sit there and be very sick next to someone else who has fragrance. So I'm not saying that-- I think ideally in work situations that many of the ones that we've been involved in, ideally that-- if you have several people in a space and somebody says, well, I cannot breathe near this person with Liz Claiborne perfume, the ideal situation might be for the person wearing perfume to say, well, why don't I just back off using this and why don't I just sort of respect the health issues that are involved here. And ideally that is the way that I would like to see things happening in this area.

But in situations where that's not happening or maybe you have a huge workforce or whatever, the comment only had to do with making sure that there were areas in a building so that somebody who was sensitive could function in that building without being severely symptomatic.

MR. RUPP: All right. I appreciate your response goes to the remedy that you're proposing. Of course, OSHA is a position that it's going to have to write a rule and define what is included and what is not included. If they're going to guarantee, for instance, a fragrance-free area in workplaces, they've got to be able to define what is fragrance-free and what kind of fragrances, what kind of materials, are included and that's what I'm pursuing with you and I think what we've concluded thus far is that women's perfume is included, men's cologne I think you said may or may not be included depending upon the particular cologne?

MS. LAMIELLE: A fragrance-free work space or a fragrance-free area, I think that most people who knew they needed fragrance-free would sort of know by definition who they are and that we wouldn't be in the quandary of, well, do you fit this or not.

MR. RUPP: All right. How about aftershave lotion?

MS. LAMIELLE: I just answered, I think, that question.

MR. RUPP: Well, let me try to understand how this would work, then. If a person-- if person A is having trouble with person B, under the rule that you are contemplating, would they be required to focus on some fragrance that the person is wearing or could they just say "You smell bad and you should move"? I'm trying to get some sense of what precisely it is you are recommending to OSHA and it's going to need to be defined, of course, because OSHA has to write this as a mandatory rule, so it's got to be defined.

MS. LAMIELLE: Okay. Then I'll have to-- there's no way that I can sit here and define what we're looking at right now.

MR. RUPP: All right. Well, let's move slightly beyond the fragrances to another issue. By the way, if you give any further thought to the fragrance issue, I'd like to know what your reaction would be to various soaps, talcum powder and deodorants so that if you decide you do want to propose some sort of definition you might include those materials as well.

MS. LAMIELLE: Let me make a comment. Separate from my OSHA testimony, I am not in any way advocating that environments should be free of any scented product as you might be suggesting. And, secondly, the fact that I think that in workplace situations these things should be able to be resolved at an individual level if there were support from employers and management so that if somebody is having a problem with-- first off, this is not like you have 10,000 instances of this in one building but if somebody is having problems with another person's personal products, I just think that that should be able to be resolved at that level, okay? But even if you resolved it at that level, the concept of the fragrance-free area for sort of being in terms of being able to function in a work environment may nevertheless be demanded if things cannot be worked out at that level. But, again, I think educated employers, things can be worked out at that level with just some sensitivity toward these issues. But I do want to leave the issue otherwise. Thank you.

MR. RUPP: Well, I think no one would have any problem with mutual accommodation on an individualized basis and what I was trying to draw from you is a notion of whether you are also recommending a mandatory rule in that area and what the mandatory rule ought to encompass. I fear the record is left a little uncertain on both of those latter points but I'll move on.

You also referred, and I think here in response to questions rather than in your printed material, to the difficulties that some multiply chemically sensitive people will have with various kinds of clothing. What are the sensitivities in those areas and what issues need we be concerned about in that area?

MS. LAMIELLE: Are we talking about work environment?

MR. RUPP: Yes.

MS. LAMIELLE: And you said clothing?

MR. RUPP: You said a number of MCS people will have trouble figuring out what clothes to wear in the morning.

MS. LAMIELLE: No, no, no. I was responding to Susan's question having to do with-- she asked me as far as people who are chemically sensitive and their focus or involvement with regard to tobacco issues. And at the time I said, because many people who are severely affected and disabled who may be in their own environment or home environment, when they are in that circumstance, are not in the workplace and I said that someone in that situation might be more focused on-- again, it had to do with personal choices or options, not whether there's smoking in their workplace because they're not in a workplace.

MR. RUPP: I see.

MS. LAMIELLE: The clothing issue had nothing to do with OSHA testimony.

MR. RUPP: All right. That does clear it up.

MS. LAMIELLE: It was a passing comment.

MR. RUPP: But let me still ask a follow-up question. Do MCS people or some MCS people have difficulty with clothing that is dry cleaned?

MS. LAMIELLE: Pentachlorophenol, the solvent pentachlorophenol, is something that triggers symptoms for people who are chemically sensitive.

MR. RUPP: All right. Now, what do we do for those people in the workplace, if anything?

MS. LAMIELLE: Well, it's what the people who are getting things dry cleaned do with respect to their own health and that is to air their garments before they wear them.

MR. RUPP: But OSHA is in the position of being able to regulate now only in connection with the workplace.

MS. LAMIELLE: I don't think I made any statement about OSHA taking any action with regard to people wearing dry cleaned clothing.

MR. RUPP: Okay. So you're not recommending anything to OSHA so far as dry cleaned clothing is concerned.

MS. LAMIELLE: I don't think I recommended anything with regard to dry cleaned clothing.

MR. RUPP: A number of people who have appeared earlier in this proceeding have suggested that as far as MCS is concerned there is a distinction between manmade, or perhaps I should use the word personmade, chemicals and naturally occurring chemicals. Do you agree with that or do you disagree?

MS. LAMIELLE: It's not relevant to my statement.

MR. RUPP: Does it have any pertinence to you at all? That is, your testimony encompasses both manmade as well as naturally occurring--

MS. LAMIELLE: I didn't distinguish but I don't think it's relevant to my statement.

MR. RUPP: Well, I'm trying to have a sense of what kind of chemicals OSHA ought to be concerned about and is there a category--

MS. LAMIELLE: Well, I identified some of the chemicals that OSHA should be concerned about earlier in my statement, in my testimony, and they were similar to the list that OSHA included in their proposal with regard to indoor air contaminants.

JUDGE VITTONE: Ms. Lamielle, let me explain to you that all Mr. Rupp is doing is exploring your testimony. He's not asking you anything that I think is irrelevant to the questions that you have raised.

MS. LAMIELLE: But he's not--

JUDGE VITTONE: If you don't have any information or you don't have an opinion or a policy from your organization, then you can just state that.

MR. RUPP: And then I'll move on.

MS. LAMIELLE: Yes. It's not relevant-- I don't think this was relevant to my statement and I certainly did focus on indoor air contaminants that were identified in the OSHA proposed rulemaking.

JUDGE VITTONE: You do understand that the OSHA rulemaking is directed towards the workplace.

MS. LAMIELLE: Yes.

JUDGE VITTONE: That that is the focus of its jurisdiction.

MS. LAMIELLE: Right.

JUDGE VITTONE: And that that's why he is asking questions to you about employees and employers and whether they are natural chemicals or manmade chemicals that are bothering people. He's just exploring the parameters, I guess, of how far your testimony is going.

MS. LAMIELLE: Right. And I guess my point is there's a distinction between-- anybody who is chemically sensitive also reacts to natural products, for example, linseed oil. But is that relevant to my testimony? I guess my point is the fact that I've focused on--

JUDGE VITTONE: Okay. But--

MR. RUPP: You've focused not only--

I'm sorry, Your Honor.

JUDGE VITTONE: But it's OSHA's responsibility to define what all of that means if they decide to go forward and that has to be done with some precision and understanding so that people, if the rule does go into place, will know exactly what they're dealing with.

I tend to sense that you feel there may be some trick questions here and, believe me, these questions have been asked on numerous occasions of various people throughout this proceeding and it's just basically to pick up any additional information you may have or your understanding of the situation, okay?

MR. RUPP: Well, let me try one more time.

Are the recommendations that you are making limited to the chemicals specifically described in the preamble or does it relate to other chemicals as well?

MS. LAMIELLE: I believe I only made specific recommendations in passing with regard to a few chemicals. I didn't make sort of sweeping recommendations but I did agree with the list of indoor air contaminants that were cited by OSHA in the proposed rulemaking, that those were the kinds of either substances and products or chemicals but I think it was mainly the substances and products that did indeed generate problems in the workplace.

MR. RUPP: All right. If OSHA were to frame a rule at the conclusion of this proceeding that provided special protections for multiply chemically sensitive persons limited to exposures to the chemicals listed or described in some way in the preamble, would that satisfy you or would you want more?

MS. LAMIELLE: No. And that's, I guess, not the framework that I was addressing things in so, no.

MR. RUPP: Okay. What more would you like? What chemicals or families of chemicals or how would you like the chemicals described in some way that would be optimally inclusive from your perspective?

MS. LAMIELLE: That's not the fashion that I addressed this in. I addressed it with regard to certain types of problematic chemicals. But, again, I can't-- and in those areas that I really felt that OSHA and/or other government agencies should be looking into these chemicals and perhaps regulating or adding more guidance. And I don't know that OSHA does or does not do guidance but in some of the areas I was addressing I felt some of those things were more of an issue of guidance than they were regulation. So, for example, with regard to pine scented products or products that indeed add to, contribute to the levels of indoor pollution, it seems to me at minimum that OSHA or a comparable agency should be sharing this information with the public, with employers, with maintenance people.

MR. RUPP: Okay. So--

MS. LAMIELLE: And I'm not saying that pine scented products would be banned by OSHA but I'm saying that in some way, shape or form I believe the Federal Government has the responsibility to let people know that these products could be and probably are problematic.

MR. RUPP: Okay. So there would be a category of products that you believe-- let's call them health advisories or descriptive materials of some sort might be issued by OSHA or another agency perhaps and another category of chemicals that in your view ought to be subject to mandatory regulation so far as exposures are concerned, would that be fair?

MS. LAMIELLE: I haven't thought out all the pieces of this but I think that's probably closer to what I would think about this issue. Yes.

MR. RUPP: Okay. Now, how do we decide whether particular chemicals or a family of chemicals falls into one category or the other? Or how, more particularly, does OSHA decide what recommendation do you make?

MS. LAMIELLE: IN some of these ares, I believe that the government research is already there that gives us information that would be relevant to either toxicity level or the effects on people.

MR. RUPP: Well, is there a set of criteria that you would recommend that OSHA utilize in judging whether a chemical is more appropriately subject to some sort of newsletter or health advisory as opposed to mandatory regulation?

MS. LAMIELLE: I think that's beyond the scope of what I've thought about on this.

MR. RUPP: Okay. Is there any indoor air contaminant that does not pose a problem or does not potentially pose a problem at some level to people who suffer from multiple chemical sensitivity?

MS. LAMIELLE: So you're labeling it an indoor air contaminant and then you're asking me is it safe?

MR. RUPP: Yes. That's correct. I'm asking you is there any component of the indoor air, let's not use the derogatory term so that we don't get confused, any component of the indoor air of a chemical nature or of a biological nature that would not be of concern to you and your organization from the perspective of protecting multiply chemically sensitive people?

MS. LAMIELLE: Okay. I guess I want to repeat again that I've not thought-- I don't have a list of 4000 chemicals and say these three are really bad and this is not so bad or whatever. Some that are very problematic appear again and again in citings of people saying that it causes illness or it triggers severe symptoms. So there is no master list that says that-- you know, that rates these or something. That's just not the way that I think and it's not the way that we function in terms of looking at these pieces. And clearly if your question is are there things that you can have in an indoor space that are not problematic for people who are chemically sensitive, if that's your question, is that your question?

MR. RUPP: That's a fine question.

MS. LAMIELLE: That wasn't your question. Okay.

MR. RUPP: But it's a good a question and--

MS. LAMIELLE: Clearly there are things that are not problematic for people who are chemically sensitive.

MR. RUPP: Okay. How do we figure out which those are? Is there an a priori way or-- see, OSHA is in a position it's going to have to make a decision here and the decision can evolve a bit over time, be refined over time, but they've got to decide what's problematic on the one hand and what's not problematic on the other and presumably in doing that utilize some set of decisionmaking criteria.

Do I understand your testimony today to be that at least to this point you're not prepared to suggest to OSHA what those criteria ought to be?

MS. LAMIELLE: Right.

MR. RUPP: But that you recognize that there are two categories, the non-problematic and the problematic.

MS. LAMIELLE: That's correct. And I did address that in my statement. And, again, in terms of causing chemical sensitivity or triggering symptoms, I think you probably could put forward a list of about 10 or 15, perhaps 20 different whether it was chemicals or exposures that are particularly implicated or particularly deleterious to the health of somebody who's chemically sensitive. So I think that there really sort of big players out there that are big problems.

MR. RUPP: Okay.

MS. LAMIELLE: Now, whether OSHA would or would not address those, that's another issue but as an organization and personally I believe that there are things that play a big role there, beyond that, again, I'm not addressing sort of, you know, solvent by solvent or whatever.

MR. RUPP: Many of the responses to the questions that have been asked from the OSHA panel as well as to me and to the prior questioner harken back to the experience you've had at the other end of the telephone as people call in and describe their situation and try to isolate the causes of their problems or complaints. Would that be fair to say?

MS. LAMIELLE: Ask that again?

MR. RUPP: Can I ask that again?

JUDGE VITTONE: Yes. I'm not sure I understood the question.

MR. RUPP: All right. I'll try again.

I take it that the basis for much of your testimony describing the nature of the problems that we're discussing and how widespread they are are the telephone calls that you receive and the conversations that flow out of those telephone calls.

MS. LAMIELLE: My testimony or my experience in this area would be based on that, my involvement with various governmental agencies at the federal and state and local levels, research panels involved in those areas.

MR. RUPP: Well, let's focus on those one by one, if we may. First, the telephone calls.

MS. LAMIELLE: And it's calls and letters and other types of information.

MR. RUPP: Right. Let's include those in a single category for purposes of the first series of questions that I have. The telephone calls and the letters, I take it what you-- I'm just trying to imagine what you're confronted with as you go in to work during the day. You'll receive a letter, you'll receive a telephone call and someone describes a particular set of symptoms, perhaps a series of suspicions about what may be causing their problem or you may have to draw that out of them in a series of questions that you may ask them. Would that be a fair way to assume that these telephone calls in particular are developed?

MS. LAMIELLE: I can't tell you that there's really-- more than saying that there are quite a number of typical formats, so I can't tell you that that would be sort of the format or that's it. And the second thing is many of the calls that we get regarding workplace exposures, the people who call in those instances quite frequently-- sometimes are not quite sure what's going on but many of them are clearly sure what's going on and are looking for assistance in terms of trying to resolve their problems.

MR. RUPP: Do you ever yourself go out or send anyone out to do any scientific tests to determine whether the suspicion that people have about a particular chemical exposure is real or simply imagined?

MS. LAMIELLE: I'm not sure how they would determine that.

MR. RUPP: Well, do you know whether there is equipment on the market that can be utilized to measure chemical exposures?

MS. LAMIELLE: So you're suggesting that people who are chemically sensitive react at levels that would be easily tested with equipment we know today?

MR. RUPP: I'm not suggesting anything. I'm just simply asking a question.

MS. LAMIELLE: That's not what-- it just wouldn't make sense in the framework you're presenting.

MR. RUPP: So your view would be that the chemical exposures that are problematic may well not be measurable, may be below measurable levels?

MS. LAMIELLE: The phenomenon of somebody who develops multiple chemical sensitivity tends to be that person has either acute exposure or chronic exposures over time after which they react to more and more substances and products at lower and lower exposure levels. That's the phenomenon, that's the nature of the illness.

MR. RUPP: How do you verify the validity of complaints? Do you simply assume that they're valid or do you undertake any kind of investigation to determine whether they're valid?

MS. LAMIELLE: The phenomenon tends--

JUDGE VITTONE: Excuse me. I think you're asking her does she as her organization do anything to verify the complaints that she receives over the telephone or by letter.

MR. RUPP: Well put. That's exactly what I'm asking.

JUDGE VITTONE: Do you understand, Ms. Lamielle?

MS. LAMIELLE: Yes. And I said already that we do not do research in this area. We do not investigate those things. In some instances, we see reports that have been filed by industrial hygienists or NIOSH or other agencies but we do not go out and investigate complaints of that nature.

MR. RUPP: Well, for purposes of handling complaints and trying to be of help, would it be fair to say that you assume that the complaint is valid, that it is related to some sort of exposure, whether measurable or not, and then try to counsel avoidance techniques or how to deal with the employer, that sort of thing?

MS. LAMIELLE: Again, I don't know that there's a typical situation here. And our focus is multi-centered. We're interested in collecting data on the kinds of experiences that people are having, we're interested in looking at how can those things be resolved and resolved short of that person losing his or her job or short of having to file an EEOC complaint or short of having to go to court or having to file a workers comp case. So in many of those instances, we're very interested in how do you resolve this situation. And so we're interested not in collecting the information or the data that the person might be presenting to us, we're not interested in any way validating is this person sic or not. The phenomenon tends to be pretty predictable. In talking to a person, things that don't fit into this phenomenon don't fit in very easily, so it's a sort of a very obvious thing.

Also, frequently the people who call us from workplace situations have already seen occupational health doctors and have talked to those doctors and we also talk with and occasionally exchange ideas in that framework also. Again, in the effort of trying to resolve workplace exposures and, you know, with regard to keeping the employee employed and not sicker.

MR. RUPP: But is it fair to say, and I sense a bit of defensiveness on your part and I'm not sure what it derives from, I'm simply trying to understand your testimony, would it be fair to say that you do assume the validity of the complaint and then try to suggest a solution, you do not investigate the validity of the complaint.

MS. LAMIELLE: Yes. I think I answered that already.

MR. RUPP: Is that yes or no?

JUDGE VITTONE: She said yes.

MR. RUPP: Can you answer that yes or no?

MS. LAMIELLE: The first of it is--

MR. RUPP: Let me try it again.

MS. LAMIELLE: The first part was not true.

MR. RUPP: Oh, one part of it was not true? Okay. I'll try to state it just as I stated it, then. That you assume the validity of the complaints that come to you, whether by letter or telephone--

MS. LAMIELLE: Okay. Hold on. I don't assume the validity. I actually ask the person questions about their experience.

MR. RUPP: And then if it fits into some sort of pattern that you've come to recognize, then you conclude that the complaint is legitimate.

MS. LAMIELLE: I don't know that I assume it's legitimate, I just assume that we will provide information and assistance to this person.

MR. RUPP: Okay. You go directly to step two, then. You go to the step that says, look, someone has a problem, whatever it may be, I get as much information as I can from the person about the problem and then suggest steps that you have developed to try to resolve the problem.

MS. LAMIELLE: Yes.

MR. RUPP: Okay.

JUDGE VITTONE: Mr. Rupp, how much longer are you going to be?

MR. RUPP: I may have 15 or 20 minutes, Your Honor.

JUDGE VITTONE: Could you try to shorten it a little bit?

MR. RUPP: I'll do the best I can.

I think you testified that you believe OSHA should structure a rule in this proceeding that requires smokers to be at least 25 feet away from-- I think that's the figure that you mentioned but if it's not, please correct me, from doors or windows, windows that are operable, when they're smoking outside?

MS. LAMIELLE: I was asked about doors.

MR. RUPP: Okay.

MS. LAMIELLE: And I think I said it as a sort of a perhaps. And, again, an estimate because I didn't think that I could just sort of sit here and say that but, yes, 25 feet is what I indicated.

MR. RUPP: Would that be 25 feet on each side of the door, so a total of 50?

MS. LAMIELLE: That's what I-- but, again, I was just responding. I'm not sure-- you know, but, yes.

MR. RUPP: All right. What about windows now? Windows where buildings have operable windows.

MS. LAMIELLE: I don't know that I can give you a figure for windows.

MR. RUPP: All right. I take it there's nothing magic in the 25 feet. That's what you've already indicated.

MS. LAMIELLE: Yes.

MR. RUPP: It may be 10 feet, it may be five feet, it's probably not 1000 feet.

MS. LAMIELLE: Probably not five feet.

MR. RUPP: And probably not 1000 feet.

MS. LAMIELLE: It's not 1000 feet.

MR. RUPP: Okay. If there's an easy yes answer to this question we can go quickly on. I take it that recommendation is not based on any scientific research about the contaminant level indoors that might derive from smoking at any number of feet or inches from operable windows or doors.

MS. LAMIELLE: It's solely based on personal experience with regard to trying to get into buildings or being inside of building entrances where there are people smoking outside.

MR. RUPP: Have you made any kind of study or investigation or given any consideration to what a rule requiring 24 hours worth of ventilation in office buildings in this country would cost?

MS. LAMIELLE: No. But my testimony also says that I would prefer to see it some hours before and after work.

MR. RUPP: So it may not be 24 hours.

MS. LAMIELLE: No.

MR. RUPP: Do you have a specific number of hours?

MS. LAMIELLE: Well, for example, there are a lot of workplaces where people work overtime and work additional hours in the evening and so those people-- I mean, I talk to people on the phone who literally say it's 5:00, I've got to go, I can't talk with you further because they shut the ventilation system down and I can't breathe in here. And yet typically that person and others in that building do work later than that.

MR. RUPP: Is your recommendation certainly that during regular office working hours that the ventilation be required to be operated full steam?

MS. LAMIELLE: Yes.

MR. RUPP: And you would recommend that air dampers be left open so that fresh air is brought in from outside?

MS. LAMIELLE: Yes except if there are some significant things going on outside. I mean, certainly there are instances-- it's sort of like except in the event of fires-- there are all kinds of things you could be pulling in so I would say--

MR. RUPP: As a general rule.

MS. LAMIELLE: Yes.

MR. RUPP: And what about filtration, do you have any recommendations with respect to filtration, whether mechanical filtration or chemical or electrical filtration?

MS. LAMIELLE: No. Not for a building.

MR. RUPP: Have you looked at the literature relating to developing technology in the areas of filtration technology?

MS. LAMIELLE: Only primarily with regard to housing, not with regard to buildings.

MR. RUPP: Is it conceivable that some of the more advanced filtration could solve a number of the problems that the people who are calling you are complaining of?

MS. LAMIELLE: Is that in place right now in any buildings?

MR. RUPP: This is just not an area in which you have any particular expertise?

MS. LAMIELLE: No.

MR. RUPP: Would it also be fair to say that building ventilation systems is not an area of your own expertise? Building ventilation systems, comparative ventilation systems, capacity of ventilation systems and so forth?

MS. LAMIELLE: Beyond basic information and how pollutants that might be pulled in are transmitted by those, no.

MR. RUPP: When we're talking about the use of biocides, and that should be contrasted with air fresheners now, those are products, of course, that have been developed to keep the mold and algae under manageable control. Is that your understanding as well?

MS. LAMIELLE: Yes.

MR. RUPP: How does OSHA consider what the tradeoff would be if people are not permitted to use biocides? Or are you not recommending that biocides not be used?

MS. LAMIELLE: I'm recommending that biocides be used not as a daily usage but only in instances where there's sort of no other option. So basically in a restricted or a more limited fashion than the kind of reports we've received on usage and that in those instances that there should be some way of letting people know or people who might be affected by this, let them know that those chemicals are being introduced into the system.

MR. RUPP: You testified that buildings should not be occupied during remodeling and that includes painting, I take it?

MS. LAMIELLE: That would probably include painting. But, again, that recommendation comes from the fact that so many people that we talk with became sick from or had their symptoms aggravated by remodeling. I think one way to address that is making sure that you have evaluated the needs of both your general population because you still could have people who could become sick within that general population as well as people who are already sensitive and address their workplace needs before you begin the project.

MR. RUPP: All right. The reason I'm pursuing this is that I'm wondering whether I truly understand the recommendation. I'm having a little bit of difficulty understanding whether you are suggesting that buildings that are undergoing remodeling or painting there should be a rule of non-occupancy or people should be permitted to move on request to get away from the effects of remodeling or painting.

MS. LAMIELLE: Well, first off, when I saw remodeling, I actually thought of remodeling as a larger concept so I didn't think of it as just painting. Quite frequently when remodeling takes place there are a number of different activities going on.

MR. RUPP: All right. Let me try to get specific because I think this is going to help OSHA. The sixth floor of this building has a cafeteria. It occupies about half of the sixth floor, maybe a third. It has undergone a major renovation and it's extremely attractive, I might add, now. Is that a remodeling, and it was a major renovation in the sense that furniture was changed, walls were painted, some walls were removed, some parts of the food service area were reconfigured.

MS. LAMIELLE: New carpeting was laid?

MR. RUPP: New carpeting was laid. Yes. On both sides. I take it you've been up there. Now, should this building have been permitted to be occupied during the period that that renovation was occurring? Of course it was occupied.

MS. LAMIELLE: Was the cafeteria occupied during that renovation?

MR. RUPP: Yes, it was.

MS. LAMIELLE: And foods were distributed there?

MR. RUPP: Correct. It was.

MS. LAMIELLE: I guess I'm only going to address the fact that I think that the minimum that OSHA could have done in this circumstance was to let building occupants know that that was being remodeled and to let persons who had access to the building, so persons like myself coming in, perhaps at elevators, know that that floor is being remodeled. And what that would do is-- and with some education to the general workforce that there could be problems for some people with these kinds of experiences, then every employee could basically be attuned enough to try to protect themselves and somebody coming into the building, somebody who is sensitive, would not necessarily want to-- let me go to the sixth floor and see how I feel.

MR. RUPP: All right. Well, let's look at it--

MS. LAMIELLE: Signage covers that, I think, as much as anything else.

MR. RUPP: It was fairly difficult, and it sounds like you were up there at some point during the remodeling--

MS. LAMIELLE: No, it was just today.

MR. RUPP: Just today? All right. It was hard to go up to the sixth floor and not see the remodeling, that is, a sign is one thing but anyone with sight would have seen immediately on stepping off the elevator that this is a floor under renovation.

MS. LAMIELLE: Well, we had a man who went into an elevator that was being shellacked and he had a history of these types of reactions and the man ended up going to the emergency room and dying from the exposure because of asthma problems.

MR. RUPP: So you want a sign downstairs, that is, on one of the lower floors, perhaps at the entrance of the building?

MS. LAMIELLE: I think a sign like that would do the trick. And, again, you're addressing susceptible and sensitive populations in a very immediate fashion and I think to some degree alerting them in a way that that individual can take care of himself or herself or ask more questions if they need and also reducing liability of whoever owns the structure.

MR. RUPP: All right. Now, this is a building, like many buildings, with a ventilation system that serves the entire building.

MS. LAMIELLE: Oh, it does. Okay.

MR. RUPP: Okay? Now, what if I am an employee in this building and let's say I'm not on the sixth floor but I'm on the third floor and I recognize that there's a substantial amount of painting going on in this building on the sixth floor and I'm concerned about the fumes from that painting traveling through the system to other floors, including my own. What rights should I have and how should OSHA write a rule that gives me the kind of protection that you believe would be warranted?

MS. LAMIELLE: Okay. I think the protection in that instance has to do with if that person is either symptomatic or has other health problems that would be compromised by those paint fumes, which is very likely. And, again, I think a circumstance like that where if it's that individual that a plan that talked about remodeling to begin with would provide for alternative work space or alternative work options for individuals who found that they could not function in that environment.

MR. RUPP: Well, what does OSHA have to worry about? Let's say that a corridor is going to be painted on the sixth floor and employees get the sense, well, great, this is a pass home. I just have to put in a telephone call to my supervisor, say I'm paint sensitive and for the next two weeks I'm going to work at home. And what if a third of the OSHA employees, although they're very hard working people, what if a third of the OSHA employees decide to take that course? Should there be some objective criteria that an employer could utilize in that situation to say, no, you're really not or that the level of fumes is so minuscule on the third floor that there is no accommodation I can make. How does one approach this situation? Again, in the context of a mandatory rule, now.

MS. LAMIELLE: Well, I think that if we're dealing specifically with multiple chemical sensitivity as opposed to other susceptible populations, because of the nature of it being a hidden disability, I think most people who were having a problem there would not-- would probably feel comfortable in-- well, probably, first off, be on the record as being sensitive to chemicals and so there wouldn't be an issue of, oh, this person is lying or just malingering and that's it. And, secondly, I mean, if required, for example, if you were trying to ask for workplace accommodations, it would not be unusual to get a letter from your doctor verifying or validating your health problem from that situation.

MR. RUPP: Okay. Is that what you're suggesting, then, that OSHA write a rule that is triggered when an employee brings in a letter from a physician that affirms that the person would have a problem if required to continue to occupy the particular space given the kind of remodeling or renovation that is occurring?

MS. LAMIELLE: I have not thought about whether OSHA would or would not write a rule in that circumstance but what I have provided you is generally what I would picture would be a workable solution.

MR. RUPP: I guess i'm just having trouble understanding what the solution is.

JUDGE VITTONE: Mr. Rupp, can you tie it up right now, please?

MR. RUPP: Yes.

Let me spend a couple of minutes-- when people are permitted to smoke in their private offices, would that inevitably present a problem to someone suffering from multiple chemical sensitivity? And the person I'm now focusing on or let me make sure you understand the scenario that I have in mind. A person is smoking in his or her private office and there is someone else located in another area of the building, it may be in fairly close proximity, it may be much farther away. Is there a decision rule that you would apply in those circumstances or are the problems, are there going to be problems that are inevitable in those circumstances?

MS. LAMIELLE: Are we presuming that not tobacco enters that room at all? I mean, I find it hard to believe that no tobacco would be released from that room to begin with and, secondly, people with MCS would generally react to tobacco residue on people's clothing.

MR. RUPP: But wouldn't that be a problem if the person had a cigarette outside and came in with the residue on his or her clothing? And can we deal with that problem?

MS. LAMIELLE: I don't think you're talking about the same level of intensity.

MR. RUPP: If they have the cigarette--

MS. LAMIELLE: Closed room versus being outside.

MR. RUPP: Well, let's say they went to a restaurant across the street here and had two or three cigarettes at lunch and then came back to work. Is that a really problem that OSHA can address? Because then you could have a situation-- well, is it a situation that OSHA can address or are you recommending that OSHA address that?

MS. LAMIELLE: No. I said that I would prefer to see a ban on smoking. That's my preference. That's what we would like to see. I don't think I made any statement with regard to the context that you're talking beth.

MR. RUPP: Okay. But it's not a ban on smoking at lunch or on breaks.

MS. LAMIELLE: Outside of the building? No.

MR. RUPP: Okay. Now, in this building, people are permitted to take smoking breaks in two locations. One is a smoking annex, if you will, up on the sixth floor and another is a partially enclosed patio area and they're permitted to go down there at any time of day. And there are typically 15 to 20 people down there having a cigarette. Now, they'll have some residue, perhaps, of tobacco odor on their clothes as they return to their work station. Should OSHA be considering a ban on that?

MS. LAMIELLE: No. I--

MR. RUPP: Okay. That's okay from your point of view.

MS. LAMIELLE: Yes. You asked me first would people get sick from that.

MR. RUPP: Yes.

MS. LAMIELLE: Yes, I believe people who have MCS would get symptoms from that. But if you're asking me should that therefore mean that the designated smoking room should be banned, I don't think there's any way I can say it. I'm making this statement out of health issues that I think smoking should be banned from buildings.

MR. RUPP: All right. In those situations, would the sensitivities that you are worrying about be reduced if anyone who had a particular problem with the situation I've just described be given the option of moving down a bit, that is, moving a few desks away or a few offices away or something of the sort?

MS. LAMIELLE: When fragrances are the issues, that's rarely provided for so I don't imagine it being provided for with smoking.

MR. RUPP: Well, let's assume that OSHA were to suggest that people at their option in those circumstances are permitted to move a bit. Would that solve the problem, from your point of view?

MS. LAMIELLE: I don't think I identified it as a problem, I guess I'm just saying it's there, it's present, it will create symptoms.

MR. RUPP: Okay. Symptoms. Would that reduce or eliminate the symptoms?

MS. LAMIELLE: I have no way of knowing. I mean, I just don't think that--

MR. RUPP: Okay. Well, let's go back to private offices, then. Is it your feeling that regardless of the capacity of the ventilation system or its configuration or the use of air cleaners or air filters that anyone smoking in a private office inevitably will cause symptoms to occur in any people suffering from multiple chemical sensitivities in the building, however close they may be to the office where the smoking is occurring?

MS. LAMIELLE: There are two different questions here. One is that my preference, my stated preference, was to see smoking banned in buildings. That's my stated preference.

MR. RUPP: Right.

MS. LAMIELLE: The second issue, you asked me would somebody with multiple chemical sensitivity, which means that they have disabling symptoms as opposed to other frameworks here, would that person be symptomatic from tobacco smoked in the building and what I said to you is that, yes, if they were in the vicinity of the exposure-- in terms of somebody who was exposed, yes, they would probably, I'm guessing, have symptoms from that tobacco residue. I don't know that I can answer more that.

MR. RUPP: But would it depend-- and if you can't answer this, just say so and I think I'm almost done here. Would it depend on a variety of factors, including the proximity, the nature of the ventilation system, the use of air filtration, occupant density, whether there were dividers, room air dividers, the configuration of the ventilation system, a variety of factors of that sort?

MS. LAMIELLE: I just don't think there's any way for me to answer, other than telling you that people with MCS react at low levels of exposure and that tobacco residue for somebody who is disabled by chemical sensitivity would generally speaking trigger a symptom. That's what I can tell you. I don't know otherwise.

MR. RUPP: This is not something you've made a study of, looking at different ventilation systems and different configurations and so forth.

MS. LAMIELLE: No. No. No.

MR. RUPP: Thank you, Your Honor.

JUDGE VITTONE: Thank you.

There was nobody else, I think.

(No audible response)

JUDGE VITTONE: Okay.

Thank you, Ms. Lamielle.

JUDGE VITTONE: Mr. Platt?

(Pause)

JUDGE VITTONE: For the record, the witness will be Mr. Edwin N. Sidman, S-I-D-M-A-N.

Mr. Sidman, would you identify yourself for the record, please, and the name of the organization you are testifying on behalf of today?

MR. SIDMAN: Yes. My name is Edwin Sidman. I am chairman of Beacon Properties Corporation, a Boston-based national real estate firm. And I appear before you today in my capacity as Senior Vice Chairman of the National Realty Committee.

The National Realty Committee is a Washington-based real estate roundtable consisting of 200 of the largest institutional owners, lenders, developers of real estate in the country.

JUDGE VITTONE: Okay. And I have a copy of your prepared statement. It will be identified as Exhibit 204 for the record.

(The document referred to was marked for identification as Exhibit 204 and was received in evidence.)

MR. SIDMAN: Thank you.

JUDGE VITTONE: You may go ahead, sir.

MR. ELLIOTT: And we would ask that a copy of the statement be made part of the record so that he need not--

JUDGE VITTONE: I just did, sir.

MR. SIDMAN: I will not limit my comments to the prepared statement but try to address some of the overarching issues that have been of concern to the National Realty Committee.

Our membership own and operate some of the finest office buildings in the world. And, again, these buildings are institutionally owned, they represent investments totalling billions and billions of dollars. Our members are not interested in cutting corners and they're not interested in providing space that's unhealthy or inappropriate. It's not good civic responsibility and, quite frankly, it's not good business.

In terms of the efforts we've expended with respect to the OSHA hearings, I should point out that we have put together a task force of employees of major institutions who are affiliated with us to study the topic that's before this panel.

That task force includes professionals from TheEquitable, JMB, Galbraith, Aetna, the Real Estate Board of New York, Prudential, Todman Properties, Trammel Crowe. Again, good representation from across the country.

We are concerned that the potential government regulation, any potential government regulation, that doesn't produce value for the cost expended. We are concerned that in the area of indoor air quality, notwithstanding the three years that have been expended by OSHA in examining the problem, there remain more questions than answers.

In contrast to our detailed written comments, which have been separately submitted, my testimony is going to focus on three points.

First, the record has not demonstrated that a uniform national rule applicable to all commercial buildings will produce benefits proportionate to the multi-billion dollar cost.

Second, the proposed rule will not be effective to solve indoor air quality concerns despite its disproportionate high costs.

And, finally, third, the government can best protect workers currently exposed to poor indoor air by encouraging the development of science and technology that will lead to the identification and control of source contaminants.

In short, we believe that the proposal in its full blown impact is a premature solution. It's one size fits all. It's a premature solution to undefined sets of problems that OSHA should engage in further study of. These are complex issues of indoor air quality. And once those studies are undertaken, hopefully after the appropriate period of time we will better understand the problems and have the basis for sound action whether that's in the form of guidance or mandatory rulemaking.

I am going to put aside for now the proposed parts of the rule that deal with environmental tobacco smoke. These raise different issues which we have addressed in our written submittal. As for the rest of the rule, the benefits issues require careful, careful attention.

There is literally no evidence that measures that the proposed rule applied to every office building in the United States will be effective at eliminating the board spectrum of complaints that OSHA unfortunately lumps together under the general rubric of indoor air quality problems. The prior witness and I know witnesses in past days have indicated a broad spectrum of problems.

It's very frustrating to me as a building owner, it's very frustrating to NRC to deal with a set of issues that don't have simplistic answers but that frustration shouldn't be permitted to be the cause of moving forward in terms of ill considered courses of action.

OSHA recognizes on page 16,010 of the preamble that "available data does not quantify the effectiveness of ventilation improvements" in remedying indoor air quality problems. Yet despite the absence of reliable data, OSHA goes on to make the extraordinary assumption that 80 percent of all indoor air quality problems, no matter what their nature, will be cured by the proposed rule.

Our experience, and we manage as a company over 5million square feet of modern highly ventilated office space, and as an industry simply suggest that this leap of faith doesn't work.

OSHA's 80 percent effectiveness assumption in turn underlies all of OSHA's projections of economic benefits. It's a big problem.

We believe that the faulty assumption is the lynch pin for your benefits case. OSHA explains that it makes this assumption based on a single NIOSH study of IAQ complaints that concluded that 52 percent ventilation as one of their causes. Again, page 16,010 of the record. But this study actually found that ventilation is a contributing factor in 52 percent of the situations perceived by occupants as indoor air quality related. This is a far cry from saying 52 percent of all problems with indoor air have ventilation as a contributing factor.

The study does not indicate how much of that portion of the sample involved issues of stuffiness or other comfort issues versus issues related to volatile organic compounds or eye distress or a myriad of other problems that are now in this testimony in these proceedings being loosely lumped together as IAQ complaints.

And yet we are asked to treat these very distinct types of issues as all essentially the same, at least as far as their treatment is concerned. In so doing, it is asking the country and the real estate industry to make a multi-billion dollar leap of faith.

Our experience as an industry and my experience individually leads me to be very skeptical. Again, we are looking for hard science, established technology that warrant these multi-billion dollar investments.

It's a problem that has to do with landlords and tenants. It has to do with who controls the space and who doesn't control the space. It has to do with what's taken into the space and how the operations work.

These buildings are large and small, old and new, with and without climate control with various degrees of sophistication. Some are in the north, others in the south, the east and the west. It all makes a difference.

In addition, unlike industrial work sites, these buildings are not run as single employer work units. They are run as multi-faceted units. It's unclear to us that the centerpiece of the proposed rule, the building system solution, fits all situations. Indeed, in many situations, one type of solution will be inefficient and counterproductive.

Whether or not OSHA can regulate in situations that involve worker well being but do not involve traditional illness is also an open question. That's not the focus of my present testimony but it's a legal issue that our attorneys advise us we must preserve for the record.

However the issue may ultimately be resolved, it is clear that where less serious, non-life-threatening harms are being addressed, it is particularly important that OSHA tailor the remedy to the severity of the problem. It's simply not appropriate to take a shotgun approach.

The OSHA proposal asks the real estate industry, among others, to pay for a multi-billion dollar experiment with a ventilation solution that is still in search of a problem.

On the issue of costs, we are as uncomfortable with generalizations about the typical cost of compliance with the rule as we are with generalizations about the typical indoor air quality problem.

Nonetheless, we are in general agreement with the cost estimates offered by the International Council of Shopping Centers in their recent testimony. At the end of the day, these costs come to about $2.51 per square foot for the initial change. That figure includes costs for annual maintenance and operations, one-time capital costs, training and building surveys, annual additional energy consumption and additional HVAC operational time.

I took a look at these numbers on a few of our buildings that do not have indoor air quality complaints or, if they do, complaints that are solved very readily. I have to say that it strikes me as highly unreasonable that my company should be required to pay upwards of $1,000,000 or more, preciselyat our Post Office Square office building in Boston $1,700,000; at our Center Plaza Office building in Boston, $1,500,000; at Rose Wharf $600,000; that these types of mandatory rules that will impose huge costs without having defined problems and solutions that make sense don't seem to be realistic or appropriate.

I would rather have those dollars to deal with issues that I think have higher social priority with the opportunity to have impact.

Moreover, you've got to remember that the multi-billion dollar costs will not just be borne by the real estate industry alone but will be passed on to every aspect of the economy, including the Federal Government and small business.

Just taking for a moment the Federal Government that rents over 300 million square feet from the private sector, including many of our members, if we assume the per square foot costs are somewhere between your estimate of $1.35 and ICSC's estimate of $2.51 a foot, the range of costs sustained by the Federal Government will be between $350 million and $700 million annually.

Once again, the majority of these millions of dollars in additional rents will be paid to upgrade systems in buildings that OSHA recognizes have no indoor air quality problems. Without beating a dead horse, the benefits are disproportionately small compared to the costs of implementing the rule.

While we do not agree that 30 percent of all buildings are somehow sick, whatever that means, the proposed rule makes no exception for the 70 percent of the buildings that even OSHA concedes are free from significant indoor air quality problems. It has to be asked what benefits are there to making investments in those buildings.

One last point on benefits. In some cases, dilution of contaminant sources is not a benefit but actually makes the problems worse. If you will permit me, I have said to you up until now we're having trouble finding the science and finding the technology to form a basis for mandatory rulemaking in this situation.

I personally have almost 25 years of experience in the real estate industry dealing with buildings that are 30 stories, 40 stories, 10 stories high that have state of the art, whatever that means, HVAC systems. In one particular situation, we had a tenant occupying two floors of a building, 24,000 square feet, that complained about sickness. And that complaint went on for more than two years and involved many of their employees.

As responsible owners, we were more than just a little bit concerned. We hired a battery of scientists, public health officials, doctors, physicists, chemists and lawyers. And we undertook in excruciating detail an attempt to button down the cause of these problems. We looked for mold, we looked for dust, we changed filters, we upgraded filters, we bought the state of the art filters.

In this particular building, we had a system that was so sophisticated we could on computer tell you how hot, how cold it was in any particular area. We could tell you how much indoor air we were taking in at every given point in time. We could increase the amount of indoor air virtually without limitation. We ran the systems 24 hours a day and the complaints continued and continued. And maybe there were airborne fibers and maybe there was this and maybe there was that. Very frustrating. And I can understand sitting here and listening to all these anecdotes, it's easy to get frustrated.

The bottom line of that particular anecdote, however, we expended more than $250,000 looking for answers. Class A, modern office building, high level of service. The tenant finally moved out.

The environmental litigation of a law firm in Boston moved in because they were hard pressed for space, their practice was expanding.

What we believed to be the cause and what the tenant never agreed to be the cause, however, was the carpet. We had done some testing on the carpet and found based on certain tests that may or may not be adequate that that carpet sure killed a lot of mice. And we also, by the way, sought air samplings of the carpet for VOCs. And by the way, you do a VOC test, you don't get an answer tomorrow. You get an answer in four weeks, eight weeks, it could be this, it could be that, it costs a lot of money and it's not readily apparent.

We took out the carpet, the tenant left. Sure enough, this law firm moved in, they've been in occupancy for well over a year without any complaints.

That's sobering to me. This isn't defensive, this isn't coming in and complaining about anything. We were perfectly willing, not happy but perfectly willing to fix it, to spend the money. We had the best mechanics, the best guys onboard, the best systems. Couldn't help it. I think it was the carpet. Not the landlord's carpet, the tenant's carpet. So you've really got a lot of issues here. And, by the way, by increasing the ventilation as we could do in that space, the problem seemed to get worse.

Now, in other situations of stuffiness, sure, you can change the balance but these again are one off situations, they're not things that have silver bullet answers. They're things that take a lot of hard work.

We think that the government should focus more on a targeted approach through research and guidance. The first step may be to work with the owners and tenants of the nation's buildings with documented air problems, to identify the specific sources, the building types, and the operations that are most frequently associated with unhealthy air and indoor air quality related complaints.

In doing this under scientifically controlled conditions and testing various methods and procedures, much could be learned.

Again, I've pointed to certain buildings that our company owns. I can tell you if any one of our employees said they wanted to spend a million and a half dollars to do this we'd ask them to darn well justify it. We think the same standard really should apply here. You really need more justification than what we have got to throw darts up on the wall.

In the long run, that type of strategy will provide the government with database and scientific knowledge that it needs to address in a comprehensive manner. I could argue that if we spend the money now willy-nilly what it's going to do is set the cause of improving indoor air quality back years. We're going to be taking this billions of dollar leap of faith, we're not going to get our money's worth but we're going to have resources piled one on top of another into it and we're going to not know any more than we did before. The problems, the complaints are going to persevere.

I am not a scientist and I'm not an engineer. As I've said, I've had 25 years worth of layman's experience in dealing with important buildings. I have been told by engineers in our NRC member companies that there will be much to be contained from a baseline study underway at the Environmental Protection Agency.

Because most of the research to date has focused on problem buildings, there is a need for a control group. Broader research of this kind might help to expand the database.

NRC supports research and guidance aimed at improving air quality diagnostic capabilities. From an owners perspective, it's now very frustrating to be told by these expensive consultants that after doing days of tests they really don't know for sure what's causing a problem.

I am told that improvements of these diagnostic tools and related control strategies will require multi-disciplinary approaches. It's an investment in the future that makes sense.

Put quite simply, everybody is entitled to his own opinion. No one is entitled to his own facts. The record is replete with opinion and anecdote. It lacks factual scientific data that demonstrates the benefits are even roughly proportional to the costs.

More data will prove to be useful, not only to the government but also to my industry. That's why NRC favors further analysis and further progress.

JUDGE VITTONE: Thank you, sir.

Ms. Kaplan, how long are you going to be?

MS. KAPLAN: Twenty minutes.

JUDGE VITTONE: Let me find out, who else has questions for this gentleman?

Mr. Gross, how long?

MR. GROSS: Ten minutes.

JUDGE VITTONE: Mr. Dinegar?

MR. DINEGAR: Ten minutes.

JUDGE VITTONE: Mr. Rupp?

MR. RUPP: Depends on how he answers the questions the gentlemen put to him.

JUDGE VITTONE: Mr. McNeely?

MR. McNEELY: I may have some questions, depending on responses.

JUDGE VITTONE: Okay. Anybody else?

(No audible response)

JUDGE VITTONE: I have five 'til. Do you want to take a late lunch?

MS. KAPLAN: We may have more than 20 minutes. I'm told our questioning may be closer to an hour.

JUDGE VITTONE: An hour. All right. Let's go for 20 minutes and see how far we get.

MS. KAPLAN: Mr. Sidman, how many members are there of your group?

MR. SIDMAN: There are 200 firms that belong to National Realty Committee. I think a membership list is attached to the testimony that we submitted to you.

MS. KAPLAN: Oh, okay. Does the membership at all overlap with other organizations that have testified here like BOMA or there's an organization coming tomorrow, NAIOP. Is there overlap there?

MR. SIDMAN: Memberships often overlap. NRC's focus is predominantly a policy orientation, so our organization only does this type of think tank work in Washington and that's the track record here.

MS. KAPLAN: How employees in buildings owned by your members are having IAQ related health complaints?

MR. SIDMAN: I can't give you a number. I could tell you that our membership truly believes that it is a small exception and not the rule.

MS. KAPLAN: Well, what is that belief based on?

MR. SIDMAN: It's based on actual operating experiences. I related to you one situation with a tenant in one of our properties. We might have a few complaints a year. Most of those complaints are solved on a one off, case by case basis. You take a look at the work situation, you might balance some air coming into a space, carpets are very, very, very often the culprit, particularly new carpets, and you're always sensitive to that. So you have a checklist that you go through but the solutions don't seem to be the same.

We had one situation years ago where--

MS. KAPLAN: Well, I'm not asking you about solutions, I'm asking about complaints.

MR. SIDMAN: I would say that everybody is sensitive to the problem so that there is a lot of quick response. The industry as a whole considers the problem to exist but not to be a staggering problem and one that is not easily defined.

MS. KAPLAN: Okay. You haven't answered my question yet.

MR. SIDMAN: We do not have data that quantifies the number of complaints that come in on a weekly or monthly basis from the membership but I am telling you in my own company with 5 million square feet is I would expect it would be fewer than a half a dozen a year.

MS. KAPLAN: Have you done any survey within the company to find out whether there are any complaints?

MR. SIDMAN: What we do rather than formally survey for this type of complaint is we're in close touch with our tenants. They're important customers. And tenants are never reluctant to let you know if something isn't good. So we have that type of an ongoing daily and weekly relationship with tenants and tenant representatives. And if you think about it, the landlord is always going to know because the tenant is paying you for occupying the space.

MS. KAPLAN: In your written comments, you sounded supportive of the EPA's efforts in this area in their attempt to reach flexible solutions. Are you familiar with EPA's efforts to initiate an air quality alliance program based on voluntary partnership between EPA and the private sector?

MR. SIDMAN: I'm sorry?

MS. KAPLAN: Do you want me to repeat the whole thing?

MR. SIDMAN: Not the whole thing. I just lost the last--

MS. KAPLAN: Okay. I was asking whether-- because you mentioned EPA's attempts to work towards flexible solutions in your written comments whether you're aware of EPA's efforts to initiate an air quality alliance program based on voluntary partnership between EPA and the private sector.

MR. SIDMAN: NRC is aware of it. We are working with EPA to see how that alliance might take shape. Again, I want to stress, we think that these type of efforts to establish baseline data and get a better handle on the problem are high value efforts. We're interested in having returns here and we think that's a very good approach to be taken. We are not in favor of mandatory controls at this point because we just can't figure out where they begin and where they end.

MS. KAPLAN: So you do support EPA's efforts in this area.

MR. SIDMAN: We think that-- we are having conversations with EPA and with other industry groups and we think that that alliance and that partnership once crystallized will make a lot of good sense.

MS. KAPLAN: Well, are you aware that under that EPA program there would be an IAQ coordinator which is almost identical in function to OSHA's proposed designated person?

MR. SIDMAN: Again, with the EPA program, we support the concept. We haven't really gotten into all of the details. In terms of a coordinator, I would point out that, again, the issue of training is at hand here and the issue of selective surveying is at hand. It's all a set o complex issues. We're not certain that the book is yet written as to how to ask the best questions to get the best answers, how to train people, what level of people you need to be trained. I can tell you, I sat with this group of indoor air quality experts, I've got two college degrees, and I couldn't follow it for the life of me. I don't know how you train an ordinary person in some of this. And that's why I think that-- that doesn't mean you don't do something but I think you have to understand what the limits of the effort would be.

MS. KAPLAN: Well, I wonder if you could just focus on my question. You said you support the concept of the EPA program. Are you then saying-- I mean, do you support it or do you not support it?

MR. SIDMAN: We think that in principle a program to gather more data and baseline data makes a lot of sense. We think the specifics still need to be worked out. There are a lot of specific issues to ensure that there's good quality control, good effective penetration to ensure that the right questions are asked and that the answers have some scientific and technical merit. All too often in this record what we see are anecdotes. I've given you a series of anecdotes that I believe. I'm not--

MS. KAPLAN: I would really appreciate it if you could just answer my questions.

JUDGE VITTONE: Let him finish the answer, okay?

MS. KAPLAN: Okay.

JUDGE VITTONE: Are you done, sir?

MR. SIDMAN: Yes.

JUDGE VITTONE: Okay.

MS. KAPLAN: Do you then feel that EPA's efforts with their voluntary program are premature?

MR. SIDMAN: No. I think EPA's efforts are timely. I think the specifics need to be resolved as soon as possible and NRC and other groups that I know of are working with EPA to get there. I think on a non-mandatory basis, it's a high value effort, it's something that we support in concept.

MS. KAPLAN: In concept but you don't necessarily support specific provisions they have developed?

MR. SIDMAN: We are still working on understanding a lot of the specific provisions because, again, if we're going to participate as an organization we want to make sure that that level of participation has high yield. And I think that's only appropriate. And I don't think that's giving EPA problems at this point. I think everybody is working toward a common end.

MS. KAPLAN: So would you be prepared to comment on specific provisions of that EPA program today? Are you familiar with them or do you have opinions on those?

MR. SIDMAN: I am not prepared to comment on those provisions today.

MS. KAPLAN: You said in your testimony that science and technology on indoor air quality has not matured to the point where it's possible to fashion a sensible and comprehensive IAQ standard. Isn't it true there have been at least seven international conferences on IAQ as well as several national conferences and many books written on this subject of IAQ?

MR. SIDMAN: I know that there have been many books written on this subject. I know there have been international conferences. I also know based on the review we've undertaken at NRC that the cause-effect relationships which would give rise to some sort of regulatory regime don't seem to exist. There seems to be a lot of opinion. A lot of this data seems to be based on stuffiness. I'm not sure that stuffiness, again, has a causal relationship to some of the physical ailments. I think that when it comes to trying to document these documentable health problems in terms of real issues as opposed to comfort issues which can be real, the data, the information is all over the place. We can't seem to get a handle on it.

We've made a good faith effort, the industry has made a good faith effort, at trying to get a handle on it. We don't think that that information, those conferences, those anecdotes, those studies which are more anecdotal than they are scientific, support the expenditure of multi-billion dollars to increase ventilation systems when indeed anecdotally sometimes increasing air volume will exacerbate a pollutant problem and not solve it.

MS. KAPLAN: Are you familiar with the testimony of Mr. Hal Levin? He's an indoor air quality expert who testified for OSHA at this hearing on September 22nd.

MR. SIDMAN: No, I'm not.

MS. KAPLAN: I asked because in your written comments you made a reference to the EPA base program pilot studies and you wrote that "To date, most of the data collected appears to have resulted from studies of problem buildings." Mr. Levin had a different opinion. He felt that since permission had been given to the EPA to study these buildings, these were people who volunteered, Mr.Levin felt the buildings were in reasonably good condition. I wondered why your opinion on that differed from Mr.Levin's and whether you have data that he does not have.

MR. SIDMAN: I might ask Mr. Platt to try to answer that. He might be more specifically familiar with your reference.

JUDGE VITTONE: I'm sorry. I meant to do this but for the record we should identify both of the gentlemen accompanying you today.

MR. PLATT: My name is Roger Platt. I am Deputy Counsel for National Realty Committee. In effect, I'm a staff person at National Realty Committee.

JUDGE VITTONE: Okay. And Mr. Elliott?

MR. ELLIOTT: My name is Donald Elliott. I am with the law firm of Fried, Frank, Harris, Shriver & Jacobson and we are outside counsel to NRC in this matter.

JUDGE VITTONE: I'm going to suggest that we take a break at this time.

You are apparently going to be going longer. Are you going to be finished in 20 minutes?

MS. KAPLAN: I guess probably not 20 minutes.

JUDGE VITTONE: All right. Let's come back at 10 minutes after one from lunch.

AFTERNOON SESSION

1:12 p.m.

JUDGE VITTONE: Back on the record, please.

Ms. Kaplan?

MS. KAPLAN: I think when we broke for lunch, Mr. Platt was going to answer a question, is that right?

MR. PLATT: I think you might need to restate it to help me out.

MS. KAPLAN: The question was about the EPA base program.

MR. PLATT: Yeah.

MS. KAPLAN: There was a statement in your written comments about that.

MR. PLATT: Complaint oriented versus.

MS. KAPLAN: Uh huh. It says, "Most of the data collected appears to have resulted from studies of problem buildings."

MR. PLATT: Let me just clarify what the point there was, and then if your question still exists, you can rearticulate it.

The NIOSH studies, we were thinking, maybe it's unclear from those comments, but we were contemplating the NIOSH studies which are focused on complaints as producing a good deal of the data, not all of it by any means, but a good deal of the data that the government has on this issue, and the baseline study, from the EPA's descriptions of their protocol and from discussions with the EPA officials, it was clear that at least one of their hoped-for objectives for that study was to produce a database that would contain information about the kinds of factors that existed both in buildings that do have indoor air quality problems and don't. So sometimes the fact that a building in a variety of NIOSH studies, that a certain factor had shown up 80 percent of the time. It's useful also to know that those factors who up 80 percent of the time in buildings that have no indoor air quality problems as well. So we understood that to be part of the concept with respect to that process, and we think it's a useful one. That was the main point.

MS. KAPLAN: I guess just to get this clear, our information is that the buildings selected in the EPA base study were not problem buildings. And your comments implied they were, but I guess you meant something else, right?

MR. PLATT: I think what we intended to suggest was that the baseline study as it's been described, that its purpose is to provide a database that will also include the kinds of factors that exist in buildings that don't have problems as well as those that do. I did not understand that to mean that they did not undertake any analysis of buildings that have problems. If that's the case, I stand corrected.

MS. KAPLAN: I guess back to Mr. Sidman, to the extent that you can generalize, can you give us an idea of what sort of operation and maintenance of HVAC systems your numbers currently do?

MR. SIDMAN: That's a...

MS. KAPLAN: I realize it's a broad question.

MR. SIDMAN: That's probably so broad I'm not sure I'm the right guy to answer it for you. I can tell you that the systems would vary. The systems in members buildings, the systems in my own buildings would vary from two-pipe fan coil to four-pipe fan coil, variable air volume, steam, to hot air. There's just a broad, broad, broad range of hardware that is really driven by the size of the building, when the building was built. And again, the problem that we have is that our experience indicates there are other causes to these kinds of complaints and there are many kinds of complaints. So that we think the systems ought to be run well, whatever that means. I'm not trying to be...

You have a standard. People ought to do what they're supposed to do. What our concern is, having done all of those things, having had mechanics on either eight hours or 24 hours a day, having had preventive maintenance, having had intervention when there are issues, it doesn't mean that we have had a base of learning that would cause us to have somewhere in my pocket, somewhere back at the office, somewhere in our collective memory, a prescription that would get you the benefits that would be required to justify these costs. We honestly don't see it.

MS. KAPLAN: So you, the National Realty Committee then doesn't have information about what sort of operation and maintenance practices are followed in the member-owned buildings, owned and managed buildings?

MR. SIDMAN: Our role would not be to compile that type of data.

MS. KAPLAN: That would be available from individual building owners...

MR. SIDMAN: To a certain extent. But I think somebody would have to undertake a study and prepare questionnaires and query them. That would not be the nature of what we would do, normally.

MS. KAPLAN: You gave a cost estimate of $2.51 per square foot. I think that was your estimate of what the standard would cost. Can you break that figure down, and tell us how you arrived at it?

MR. SIDMAN: That estimate was the International Conference of Shopping Centers Operators' estimate that they submitted to you in their testimony.

MS. KAPLAN: Oh, okay.

MR. SIDMAN: I do not have the breakdown of how they arrived at that number. I'm afraid I'm just not going to be able to give you those kinds of dollars.

We do know that in dealing with these energy-sensitive systems, in dealing with extensive training, and our working group has looked at all of this, we think that number was a reasonable number.

MR. PLATT: I can read the specifics in. Again, this is ICSC's analysis. We had engineers, again, from the 20 or so largest realty companies in the country reviewing that and they were generally in agreement with it. But specifically, it breaks down to annual maintenance and operation costs. They just accepted the OSHA estimate which breaks down to about 21 cents a square foot. One time capital costs, again accepted the OSHA estimate which breaks down to essentially $1.14. Those, I believe, are from... Again, I didn't do this analysis, but it's just indicated on the ICSC materials, it's from the OSHA estimate.

Training and building surveys, which Mr. Colon talked about in great detail during his testimony for ICSC came out at 18 cents a square foot. Annual additional energy costs and increased ventilation came out at 12 cents a square foot. And all work shifts requirement, i.e., additional energy costs for running HVAC systems for a substantial period of time, came out at 86 cents a square foot. So the overall figure was $2.51.

MS. KAPLAN: Do you know whether that takes into account at all existing compliance with the proposed provisions of the standard? Or is that completely starting from ground zero?

MR. PLATT: It's my understanding, and this is, again, based on what Mr. Colon said during the testimony, that it assumes that the people do not have a program identical to the OSHA program and he left it at that. That's the way I understand it, too.

MR. SIDMAN: That would make sense to me because we would have to totally refocus our operations. A mandatory requirement creates rights and liabilities as well as other things. We have abided by the highest standards of industry practice. So this is a tremendous burden.

Again, I think the industry would be very responsive in saying, if we could cost justify it in our common sensical way of approaching it, that would be one set of issues. Our industry took a leadership role in asbestos in terms of funding the Health Effects Institute, which is a public/private partnership to do more studies. I can tell you that it's cost my company upwards of $40 a foot to remove asbestos over years we're now thinking has shifted. So again, I think we are not saying that there is a need to study for the purposes of delay. We are saying there's a need to study for the purposes of study. I think there's a big difference.

I want to reiterate that if everybody gets busy following these mandatory rules and spending all this money, it's going to take the resources and the attention level away from dealing with whatever the multi-causative nature of these issues are, because everybody's going to be very busy filling out forms, very busy tuning up systems.

When I went through these problems in a very in-depth way with that anecdote I gave you, there just were no answers. That's troubling to me, and I'm sure it's troubling to you. No answers. We did everything

MS. KAPLAN: I wonder if you can try to give me some idea of how the requirements of the standard differ from what your members may be doing right now,

MR. SIDMAN: To begin with, I'm not sure there is data as to the volume of air moving through buildings to make it mandatory at a certain level. I can tell you that systemically the systems are so different that in many instances it would require material alteration to building systems, construction of new ducts, introduction of new fans, changing the fan motors, trying to figure out how you get this stuff through space that really isn't adequate because the buildings are not modern buildings, they don't have steel frames, they have concrete frames, and on and on and on.

What is being proposed is really not simple. It's not simple from a construction standpoint, it's not simple from a training standpoint, and it's not simple from the ability to train people to do toxicological and other air sampling measures that are not well defined yet.

MS. KAPLAN: Do you know anything currently about training of the people doing operation and maintenance of the systems?

MR. SIDMAN: In our particular buildings we have engineers who are trained to operate these systems. We have preventive maintenance programs. I think all of those are very good ideas. I think they're very good ideas based on the nature of our buildings, how big they are, where they are, how we operate, what our standard of operation is, what our rent levels are, what the nature of our tenancies are, all those things are variable. I think it would be inappropriate to take the Beacon standard for a 750,000 foot 40 story office building and say that's the standard we want the fellow who's got a 20,000 foot suburban office building to follow. It just doesn't fit. It wouldn't work. I don't know if he has structural situations which might be conducive to various problems or not.

So you have those settings. You also have by your own statistics, only 30 percent of the properties have some type of issue. Again, I would feel better, just in terms of sort of having a good value-to-cost analysis, getting down to how much of this is stuffiness and how much of it is more than stuffiness.

I know at EPA itself, one of the reports that got finally issued indicated a vast portion of their complaints related to "stuffiness" that didn't have further impacts. Those are a lot of leaps that you have to go through.

I'll tell you one thing that we do know. We watch carpet like a hawk. We think carpet is the single greatest suspect if you have a problem. We try to regulate that source when it comes into a building. We're worried about the carpet, we're worried about the adhesive, we're worried about the backing. That's something we do know a lot about.

But when it goes beyond that and you get into is there dust in the ducts or isn't there dust in the ducts, and what does dust mean?

I happen to be very allergic to dust. I take allergy shots. It seems to have stopped it. I'm very allergic to dust. The question, if you have fiber in the air, what fiber content could cause what kind of problems?

I sat there through hours of these meetings, and nobody could tell me if there was any causative [reading] at what level of what of anything. So how do you address that? I don't think you address it by just pumping vast quantities of air through the properties. As a matter of fact, I have to tell you that in our case we increased the quantity of air and the complaints went up. That blew my mind, because I would have been exactly sort of in your position saying if we can flush this place, just blow it out because it was so aggravating to me, do it. Complaints went up.

MS. KAPLAN: This problem, this was at a building you owned?

MR. SIDMAN: Right.

MS. KAPLAN: What was the nature of the problem?

MR. SIDMAN: The nature of the problem seemed to be... Well, it started with a tenant who was complaining about headaches and about skin rash and about more skin rash and teary eyes, and multiple employees going to doctors and everything else.

JUDGE VITTONE: This is the same problem you described earlier?

MR. SIDMAN: Yes, same property before. I have to report to you, that the closure was that after that tenant vacated the space, after we removed the carpet, the next tenant moved in and has not complained.

MS. KAPLAN: You mentioned an EPA report showing stuffiness without further impacts. Is that...

MR. SIDMAN: That was Mr. Lance Wallace, who was before you in September. Evidently they did a questionnaire and analysis of the questionnaire, "results identified several factors that were significantly associated with increased occupants' concern and complaint rates. The factor associated with the largest number of symptoms was dust. This was also the strongest factor in the Danish study of 14 town halls. Two indoor air quality factors were also among the strongest factors associated with the large number of symptoms. Hot stuffy air and dry air. Another factor strongly associated with a number of symptoms was the odor of fresh paint and other chemical odors."

Every one of these things is real. We recognize that in our business. We deal with these things when they arise. We deal with these things in a meaningful and serious way. We don't diminish it. But they are real in a unique sort of a setting each time they come up. What we feel is strongly needed is a way to better categorize these things, to deal with level one complaints differently than you deal with level five complaints -- what's life threatening, what's not life threatening. This business about stuffiness is another issue that it's all over the place.

MS. KAPLAN: Can you explain what you mean by a level one complaint or a level five complaint?

MR. SIDMAN: However you'd want to type it. We don't see any typology, any method of classification yet against a baseline that says that stuffiness is one thing, a lack of humidity in the air is another thing. A lack of humidity in the air in Florida is different than it is in Boston. Skin rash, to my way of thinking, isn't good. It's probably worse, again, as a non-scientist, non-medical man, skin rash is worse than stuffiness.

My wife likes it warmer than I like it. Warmer to me is stuffy. I don't like warmer. Again, I don't diminish the importance of any of those things, I'm just saying that our engineers, our consultants, our HVAC people don't seem to have... We can balance things, we can make things more comfortable within existing systems. I'm not sure, and I said earlier in my testimony, I'm not sure comfortable, if you'll let me say respectfully, is the appropriate subject jurisdiction that you're hearing. But we can make things more comfortable.

When it goes beyond more comfortable and we bring in science to find out about air quality, we've learned that there's no such thing as an air quality problem. There are specific problems. We're not even sure that we can quantify the specifics. We have to ask the specific question of the specific complainant, and then you try to deal with it. That's why there is an urgent need for more study and more science.

MS. KAPLAN: Getting back to something you mentioned a few minutes ago, you said your company has engineers who carry out, who do carry out preventive maintenance. Could you describe what kind of preventive maintenance they do?

MR. SIDMAN: They would change filters, they would check motors, they would check air vents and intakes, they would check velocity, they would balance the systems.

MS. KAPLAN: On a regular basis?

MR. SIDMAN: Sure. They would also be charged with conserving energy which is a national priority as well. And by the way, it does occur to me that the more energy we pump into these buildings the more pollution we're creating in the general environment, so there's a balancing act there, too. We've always been in favor of conservation.

MS. KAPLAN: There is a statement in the written comments, "In the absence of clear policy embracing the benefits of contaminant controls, there will be no incentive for the research necessary to effectively target restrictions on source pollutants and/or encourage the cost alternatives to the toxic chemicals that lead to problems."

Are you aware of EPA's current project to identify less toxic products?

MR. SIDMAN: No.

MS. KAPLAN: Why in the comments is this framed as an either/or situation? I.e., is it possible that both occupant-generated contaminants and problems with building systems can contribute to poor IAQ?

MR. SIDMAN: The stylistic approach may or may not be apt in that situation, but our concern is that we think source pollutants really need to be addressed in a more serious way. One size does not fit all. And until we can get a better handle on that, to create a system of rights and obligations that don't give appropriate effect to landlord/tenant relationships, tenant employee relationships, multi-tenanted situations, complex systems, complex legal relationships, we think that what would be done is a disservice to the effort of trying to get to the root cause of these problems.

I can tell you that I think that carpet problem I had was an easy one. That's a no-brainer. You give us a list of no-brainers with that same degree of specificity where there's some science, and we don't have a problem, and I mean that sincerely. We're just not there yet. And to spend the human time and the financial resources to chase ghosts is just dead wrong. I'd rather see those resources go to finding real answers.

MS. KAPLAN: You said a minute ago that, I think I was asking you about level one and level five complaints, and you said you could probably find out what the specific complaints were if you asked. Have you done that? Have you made an attempt to find out what complaints are being made?

MR. SIDMAN: As an industry group we have not undertaken systematic study, as I've indicated. In many situations the problems are sporadic, they're not that frequent to justify that kind of undertaking, and I'm not sure that we would have really the understanding to try to delve into that. We think it's the appropriate subject matter of real scientific investigation, and certainly not something less than that. Scientific investigation would require multi-disciplinary approaches, just as we brought together, when we had our problems, an HVAC engineer, a public health doctor, an internist, a chemist, a physicist, specialized lawyers who deal in medical problems who charge a lot of money.

MS. KAPLAN: What's the average length of a commercial lease?

MR. SIDMAN: I would think you could probably put that at between five and ten years.

MS. KAPLAN: If a tenant complained to you about a building problem and you tried to resolve it and you weren't able to and they wanted to leave, would you let them out of their lease?

MR. SIDMAN: It depends on the facts and circumstances. One of the concerns we would always have is what was the cause of the problem. The tenant has the right to control his space in the main, subject to certain limits of the lease, but he really has a right to control. There's analogy to labor law and control of construction sites. So if a tenant has the right to control his space and has the right to bring into his space furniture that may have a high level of formaldehyde, carpets that are unhealthy, if his operational processes are just messy, if he lets dust lie around, if he permits cigarette smoking when he's got skin rash all over his place, and I can tell you, I had one of those guys, too. Am I going to let him off the lease? Probably not. I'd say his conduct would be outrageous.

However, I can come up with another set of speculative reasons. So it's really a variable. The frustrating part about this for me is that I don't control the whole playing field here. And secondly, I'll be honest with you, if I did control the whole playing field, I'm not sure I'd have the answers to move yet.

MS. KAPLAN: In your written comments you said that implementation of the proposed standards should be suspended pending the development of a uniform training program. How does the training currently offered by the EPA, ASHRAE, BOMA, and other groups differ from what you have in mind?

MR. SIDMAN: Without trying to be specific, in general, all of those are voluntary. I guess by now, you understand we're dead set against mandatory rules that are going to create chaos here without giving you benefits that are proportionate to the cost.

MS. KAPLAN: You also stated in your comments regarding Section D.1 which is operating the HVAC system up to original design specifications, et cetera, that this provision would trigger major retrofits resulting in extraordinary financial hardship to owners. Can you explain why you believe major retrofitting would be required by this provision?

MR. SIDMAN: I'm going to ask Mr. Platt to answer that one. It escapes me for the moment.

MR. PLATT: Can you specify exactly what numbered comment it is in our comments?

MS. KAPLAN: Well, it was on page seven.

MR. PLATT: Number six?

MS. KAPLAN: At the very bottom of the page.

MR. PLATT: Did you want to know why we think the rule would sometimes trigger large upgrades? Is that...

MS. KAPLAN: Yes.

MR. PLATT: It's our understanding that the way the rule is written, the requirement to meet the most recent ventilation rates as otherwise applicable in your locality is triggered by renovation and remodeling. There is clarification later in the preamble that they don't intend that to really say what it says. Renovation and remodeling is actually defined in the rule as including such things as changing carpets. So a concern, of course, is that changing a carpet in one part of your building shouldn't trigger the need to meet the ventilation rate that's imposed later on in the process of the building code development for your entire building. But we do think that it's going to be something that's going to be unclear, it's going to be up to an OSHA investigator, and in some cases, upgrades are going to be required, and very expensive upgrades, in situations that don't warrant them.

MR. SIDMAN: I might add that with that interpretation, work in these buildings in multi-tenanted office buildings go on continuously, and it's more than paint and carpet. There is a need to change office layouts to accommodate office work uses. As tenants change people take more space, they take less space, the space gets ripped out. So I think the working group's concern was that these buildings are always undergoing some material type of change that goes well beyond paint and carpet.

If we're dealing with that 70 percent of the population that the record indicates has no problem, or as we believe, a significant portion of that 30 percent may not have real problems... It's a pretty big expense.

Also, changing ventilation rates may be terribly inefficient in terms of increasing the volume the goes through the ducts, but not having the benefit of some of the technological advances that the new systems have to balance that with other things that you do. So you're getting gerry-rigged systems that aren't well engineered and aren't well thought out.

MS. KAPLAN: Are you familiar with ASHRAE's Standard 62-89?

MR. SIDMAN: I'm sorry, Ms. Kaplan. I didn't hear you.

MS. KAPLAN: Are you familiar with ASHRAE's Standard 62-1989?

MR. SIDMAN: No.

MS. KAPLAN: Do you have any idea whether your members comply with this?

MR. SIDMAN: No.

MS. KAPLAN: With the ASHRAE standard? You don't.

MR. SIDMAN: ASHRAE is a trade association people pay attention to, but I can't answer you.

MS. KAPLAN: I just have a few questions on comments you made about specific provisions in the proposal. One is, you stated that the information required to be capped by item, the fourth item of Section C.3, that's a general description of the building and its functions, including work activity, number of employees, et cetera, was not practical or useful. Can you explain why you feel this way?

JUDGE VITTONE: Ms. Kaplan, could you give us a page reference? I think it would speed things up.

MS. KAPLAN: Sure. That's page 16036, near the top of the second column.

MR. ELLIOTT: What numbered written comment is it too, if I might ask?

MS. KAPLAN: Oh, in your comments.

MR. ELLIOTT: Yes.

(Pause)

MS. KAPLAN: It's on page seven, number three.

(Pause)

MS. KAPLAN: Oh, it's number two on page seven.

MR. ELLIOTT: Clarification of the rules of tenants.

MR. SIDMAN: Okay.

Again, a landlord doesn't have access to the tenant's employee files. A landlord doesn't have access to the tenants' means and methods of doing business, job classifications. So this is...

MS. KAPLAN: So it may not be useful for the landlord... You're not saying it wouldn't be useful for anyone else.

MR. SIDMAN: I think in order to be useful you have to come up with a method of eliciting the information that gets you the information as opposed to getting you a high degree of non-compliance. My problem is that our membership are going to do whatever we have to do because we follow the rules, as painful and as much as we don't like them. There's a broad universe out there that just doesn't. In this particular case, I'm not sure that tenants will comply. I'm not sure you have a big enough budget to put inspectors in the field to cite all of them for violations. So there ought to be a better way, is what I'm saying.

MS. KAPLAN: I'm no really following you. The tenants won't comply with what?

MR. PLATT: Let me just... I was involved in doing this particular comment. The engineers from these companies reviewed the specific requirements and they were particular concerned, and I'm just looking at our comment two here, that what is being asked of the tenants is that they provide information about known air contaminants released in the space, and that that's going to be tricky for, again these are the tenants that we're speaking for. They can speak for themselves as well, but they're going to have some trouble with both the term "air contaminants" and with the term "release" and that it's going to be tricky unless you're very specific about exactly what it is you're asking them to look for, to even comply with it. And as a result of that lack of specificity, among other things, nothing's going to happen. The comment itself actually indicates that it needs to be clear that the tenant is responsible for those activities that are within its control.

MR. SIDMAN: Again, the reason, and we've spent a lot of time trying to work through these relationships and the motivations to get to a way of dealing with these problems. We think that the notion of a case study where a complaint has been entered, has everybody's attention and it focuses. As you build these record of complaints and you go about the investigation systematically, you can learn something.

Short of that, trying to create a database when, at the risk of repetition I'll say that we're not sure what a sick building is. We're not sure what an indoor air quality problem is. We don't know how to communicate it. We don't know how to survey it. I think there's a real problem that you've got there.

MS. KAPLAN: I just wanted to actually come back to C.3 again because I'm still not really clear. I guess I understand you want to be sure this is a requirement of the tenant, and I understand you feel that a tenant, maybe the language isn't specific enough as far as what it means to release an air contaminant, and I guess those are your complaints. But there's a lot more information in that section required to be kept. I'm still not clear on why you commented that it wouldn't be practical or useful to keep.

MR. PLATT: We don't have the engineers here to go into that kind of detail. There were some requirements... If it doesn't apply in each instance, it's a question...

If you would like us to supplement that with some additional information we can...

MS. KAPLAN: If you'd like to, that's up to you.

Your next point, point three on that same page, related to Section C.4, you felt the information required to be kept by C.4 is impractical. That information is the as-built construction documents, the HVAC operations and maintenance manuals, the systems testing, adjusting, and balancing reports, the water treatment logs, the operator training materials, and one or two others.

I wondered why you feel this is impractical or unimportant?

MR. SIDMAN: Again, I testified earlier that what might work for one building doesn't necessarily work for another. We have a 700,000 foot office building. We have a staff. We have people that are able to do these things. If you're dealing with a situation where there's a 20,000 foot office building, the economics don't permit that type of overhead, that type of administration, that type of recordkeeping. The norm in the country is, it's just not done. The form of ownership is such that it doesn't work that way.

These buildings are doing good to comply with local building code. That's about the level of sophistication that the real world has out there.

MS. KAPLAN: So you feel most smaller buildings don't maintain these documents. They just don't have the resources.

MR. SIDMAN: I'm not sure some bigger buildings would. It would be based on a cost-benefit... Why would you keep records that you don't need? Now we do keep as-built drawings, for example. I think that makes a lot of sense. Most owners don't. It costs money to put those records together. So again, what you have to look at is what's the most effective way of getting where you want to go?

By the way, I'd like to get to the benefit side, because we haven't seen anything in terms of the proposals estimates that there's going to be $15 billion of worker productivity increase. That's part of this leap of faith. We don't see it at all.

I can tell you a story about when I introduced one of the best HVAC systems in Boston in 1974. Something that then was called a four-pipe fan coil system where it reduced dust and it did all those other things. We tried to convince people that this was truly state of the art, and we had a hell of a time documenting it. And we had a high degree of motivation, trying to convince people that there was productivity gained, that there would be less sickness and everything else. We couldn't find anything.

There's some stuff around. I'm not sure that it's the hard data that you all ought to be relying on before you make mandatory rules that cost billions and billions of dollars.

MS. KAPLAN: Getting back for a minute to Section C.4. Do you realize that a number of these documents in fact should have been there from the beginning, or actually would have been there from the beginning, from the time the system was installed or the building was built, and it's actually a matter of retaining them as opposed to acquiring them?

MR. SIDMAN: Without being argumentative, I have to tell you something. The "should have" isn't easy to accomplish to begin with. When construction on a site is complete, yes. If the owner has a good contract and a good set of plans and specifications, the contractor will be required to produce final sets of as-built drawings, all kinds of warranties and information. Sometimes they don't do what they're supposed to do. It takes the owner, staff, energy and effort to make sure that stuff is done. I bet those contract promises are more honored in the breach than in the compliance, if you just look out there.

Once they're there, I don't know if people look at them or not. Again, that's because there are different owners, different size buildings. It's not an orneriness out there, it's just a level of scale of operation. Sometimes you don't need to look at that stuff.

MS. KAPLAN: We've had numerous witnesses who have testified at these hearings, including indoor air quality consultants who have carried out many investigations of buildings, and they've said that having these documents is absolutely essential to proper operation and maintenance. Would you agree with this?

MR. SIDMAN: I think having the documents are very important. But again, what are we talking about operating and maintaining? What type of a system? Are we talking about operating a central plant? Are we talking about operating air pumps through the wall? Are we talking about package air conditioner units? Again, one size is not going to fit all. If we're flying a 747, I need three guys up there in the cockpit. If I'm flying my single engine Piper I can do it by myself. One size does not fit all here.

MS. KAPLAN: When your company or other member companies do modifications of office space, are building plans looked at to make sure that new offices are properly ventilated?

MR. SIDMAN: I can answer for our company, and the answer is yes.

MS. KAPLAN: There was also a comment made about Section D, numbers 10 through 13. That was on page eight of your comments, number nine.

You talked about the essential distinction in preventive maintenance procedures applicable to the non-industrial workplace, and you said the non-industrial workplace is very different than its industrial counterpart. Could you elaborate on this?

MR. SIDMAN: The industrial counterpart, that workplace we would assume is a single employer workplace where the employer has control over the plant. Again, issues of control are paramount.

Second, our belief was that an industrial workplace by definition, given the inherent nature of that workplace, often has products that are hazardous or dangerous that can be inherent to the process; whereas commercial office space, by zoning definition, by practice, and by expectation, isn't supposed to be that kind of a place.

So again, we think that the rules for the industrial workplace are quite different. I would say to you that if I were dealing with a brake shop, a car brake shop, and I was the employer and I had employees grinding asbestos brake shoes, I have a different set of responsibilities than if I'm the landlord in a multi-tenanted office building.

MS. KAPLAN: You also stated in that same point there that the notion of IAQ specific inspections is unrealistic until further research is done. Are you aware that there's a well documented connection between mold and fungi n building systems which can be found during inspections, and several specific illnesses?

MR. SIDMAN: Mold and fungi are bad. If you make an inspection and find it, you get rid of it. So is Legionella. Those things you can deal with because they're objective standards. That's not the same as changing ventilation rules and assuming you can flesh out source pollutants. Indeed, if you increase ventilation and you have mold and fungi in your system, you're going to make everybody sick.

MS. KAPLAN: In your comments on the proposed provisions relating to renovation, page nine of your comments, near the bottom, .2, Work Plan. You state that the requirement for a work plan will not be beneficial and that the standards should be limited to setting an overall performance objective. I wondered if you could tell us what you think this section should comprise, as opposed to how it currently stands?

MR. SIDMAN: Again, we think... If I can just retrace my steps for a minute. If we're dealing with specifics we can deal with it. A work plan, a protocol that has to do with indoor air quality we think is overly ambitious and impractical, given the current science and technology.

A work plan for a big building is going to be different than a work plan for a little building. It's going to depend on the kind of building it is, the kind of construction it has, the number of tenants, whether the sash is operable or inoperable, whether it's a two-pipe or a four-pipe system, whether it's variable air system, whether it's a steam heated system. It goes on and on and on.

So creating these work plans is going to create absolutely chaos and cause people to go to a disproportionate amount of cost, and I've got to tell you that we just don't believe it's going to solve 80 percent of these complaints. If we did, if you had firm justification on that, you could have a conversation. We don't think the complaints have been qualified, and those work plans are going to be all over the place.

If 70 percent of the buildings don't have problems, then they don't have problems, by your own record.

MS. KAPLAN: So you don't think any measures should be taken to protect employees from exposures during renovation and remodeling?

Would you support requirements for a work plan that...

MR. SIDMAN: Wait a minute. Protection of employees during renovation and remodeling makes sense. And...

MS. KAPLAN: How would you suggest it be done?

MR. SIDMAN: Let's think about this together for a minute. What kind of remodeling are you doing? What's the duration of the remodeling? Are we removing asbestos? Or are we changing some partitions? Or are we putting down a new carpet? Are we bringing in a new telecommunication trunk line? There are a bunch of those questions.

What I would fall back on, because I think that in all of these types of fact-specific situations, you try to look at good trade practice. If you take a look at ten of the best contractors in Washington, D.C. and you do a lot of work in Washington, D.C., and you see what the architects specify to protect the workplace, you start to get an idea of what you do to protect a workplace. If you're doing a little bit of work and the work is not particularly noxious, you do it a certain way.

But as a concept, of course you want to do it, but as a concept you can't deal with it. You have to deal with the specifics. That's why people go to engineering school. You use a rule of common sense. You use a rule of responsibility. You don't expose people to these hazards.

Now we have done space for large firms where we've kept them in operation, we've sealed off the space with polyethylene, and we've monitored the air quality.

We had one building with asbestos in it. As soon as asbestos became an issue, we started monthly monitoring the air quality in that building. I have to tell you, the air quality in that building had less asbestos in it than the air quality on the streets of Boston, but that's what responsible people do. It's a rule of common sense. If we were releasing asbestos, we would have done something. We needed that documentation.

But you can't write that as a whole syllabus without knowing what kind of construction you're going to do.

MS. KAPLAN: Regarding the provision for an employee complaint log, you say that complaints should be kept to the extent that complaining employees comply with the employer's procedures. What are your members' procedures for logging or dealing with employee complaints related to health matters, IAQ in particular?

MR. SIDMAN: Again, it's a little bit different. If an employee in a tenant space makes a complaint, that employee will make his complaint to his employer. His employer will then deal with that complaint and may or may not choose to report that complaint to the landlord. Once a complaint would be reported to the landlord, it would have to be defined and hopefully, at that point, you try to figure out what the severity of the complaint was, the frequency of the complaint, whether the complaint was an individual complaint or a multiple complaint, whether there were any extraneous circumstances in the building, and you deal with it on a common sensical basis. And in most situations, you'd probably resolve it.

That does not require a set of federal regulations.

MS. KAPLAN: You stated on page seven of your comments that the lease contract is not an appropriate tool for enforcing health and safety regulations aimed principally at protecting the tenant's employees.

What's the basis for this conclusion?

MR. SIDMAN: Ms. Kaplan, I'm sorry. I didn't get that.

MR. PLATT: Is it page seven?

MS. KAPLAN: Second paragraph on page seven.

MR. SIDMAN: Arabic two?

(Pause)

MR. SIDMAN: We're having trouble trying to match that reference up.

MS. KAPLAN: I'm trying to find it also.

MR. ELLIOTT: It's the last sentence in Paragraph 1B, if I may. "This contract is not an appropriate tool for enforcing health and safety regulations."

JUDGE VITTONE: Ms. Kaplan? What's your question again?

MS. KAPLAN: The question is what you base this conclusion on.

MR. SIDMAN: To make an owner policeman for the fact that a tenant failed to file an OSHA report doesn't conform to commercial reality. This is a country where people have latitude of contract. The contract defines the rights and obligations between the landlord and the tenant, and as a landlord I get along with my tenants, but I don't tell them how to run my business, and I don't tell them what to do. When we start to get invasive in that way, they will tell us where to go. To hold us then responsible for a non-compliant tenant is just going to create chaos in the buildings. It's going to create litigation. And it's going to create a great deal of cost without any ensuing benefit to the knowledge base or to operations.

You've got a very hard problem you're dealing with here. I mean that. We know this is a hard problem. We know that it's frustrating if you have a real legitimate problem that doesn't go away that makes multiple complaints and people are sincere about them. We just haven't seen solutions. We don't truly believe, in the utmost of good faith, that these set of proposals will advance the cause.

MS. KAPLAN: Have these contracts changed in the last few years to accommodate new liability issues?

MR. SIDMAN: Yes, but it's all over the place. One thing that has changed materially are the insurance contracts, and the insurance contracts generally, and almost virtually without exception, have no coverage for environmental liability. That means if you're a landlord and you've got one of these indoor air quality issues, you're on your own. You're going to be on your own to pay the legal expense, you're going to be on your own to fix it. That's very, very tough.

In terms of the leases themselves, obviously the landlord wants to make the tenant responsible for things within the tenants' control. And let's say in the main you get that clause. I don't know what that clause means. It's an opportunity to have a big discussion about what's in their control, what's not in their control, and is there a problem or isn't there a problem?

The simple fact of the matter is that the landlord as an intervening agent between the government and the tenant is not going to be an efficient instrumentality. It's just not going to play.

MS. KAPLAN: If a fire marshal or an insurance company risk reduction specialist finds hazards in a building, would they notify the building owner or the building tenant, assuming those are two different people?

MR. SIDMAN: If the fire marshal and the insurance inspector were there in the ordinary course, I would guess he would advise the building owner, because that would be my expectation of why he would be there.

I could conceive or speculate with you as to special circumstance why those two individuals might visit with a tenant. But I'd say in the ordinary course, the building owner's responsible for the real estate.

MS. JANES: I'm Debra Janes. I just have a couple of questions for clarification purposes.

Do the engineers that work with you, are they trained in diagnosing and solving IAQ problems?

MR. SIDMAN: I'm not sure that I know what an IAQ problem would be in that context. I can tell you that they are trained and capable of dealing with a bad carpet because they will guess that the carpet might be a culprit and they'll send it out for testing. They will make sure that there's not a paint process or some type of a construction derived cause going on in the building. They will make sure that the maintenance or the cleaning help aren't doing something bad. That they can do.

What they really can't do, and it's way the heck over their head... And they can probably deal with stuffiness, whatever stuffiness means. Because you can use a screw driver maybe, and maybe you do a few things.

When we get beyond those things, the specifics... They can deal with Legionnaire's disease because they know how to fix that before it gets started. Specifics.

MS. JANES: Do they take training courses on a routine basis to update their knowledge base about new... Or like with Legionella, I know that there are new guidelines out there for water towers and what not. Do they go through routine training courses to upgrade their knowledge?

MR. SIDMAN: They would keep current with the trade literature and follow that. Our people would. I'm going to suggest to you that that's not going to be the norm in the country.

MS. JANES: your organization represents mostly what is considered as Class A buildings?

MR. SIDMAN: Not necessarily Class A buildings, but I would guess larger operations.

MS. JANES: Larger operations.

MR. SIDMAN: My particular company seems to have only Class A buildings.

(Laughter)

MR. SIDMAN: It's objective.

(Laughter)

MS. JANES: Does your organization currently fund any indoor air quality research, aside from...

MR. SIDMAN: No.

MS. JANES: ...the case studies that you have reported to us?

MR. SIDMAN: No, but we did contribute to the Asbestos Health Effects Institute effort.

MS. JANES: Are you a member of the Total Indoor Environmental Quality Coalition, normally know as TIEAQ? They'll be testifying in a few days.

JUDGE VITTONE: Is that a question?

MS. JANES: I asked him if he was a member of that organization.

MR. SIDMAN: I said no.

MS. JANES: He shook his head no.

It doesn't show up on the transcript. He said no.

Do you have any other report from your working group other than the comments that you sent into the record? You said your group had formed a working group in looking at this proposal. Is there any other information, technical information from your engineers that you could provide to the record?

MR. PLATT: I think at this point our comments are, there is an effort to comprehensively detail what were in each case detailed comments to our organization, but they were duplicative in many ways. This is, I think, as good a summary as you can get. There isn't any other information that would be useful to you at this point.

MS. JANES: You're saying that you all consider Legionella a hazard to health, is that correct?

MR. SIDMAN: That's correct.

MS. JANES: Would you consider occupational asthma to be a hazard to health?

MR. SIDMAN: Yes.

MS. JANES: Would you consider difficulty in breathing a hazardous situation?

MR. SIDMAN: Yes.

MS. JANES: Do you have any information...

MR. SIDMAN: The only one I would relate to buildings, however, is Legionnaire's Disease where you've got to treat your cooling tower.

MS. JANES: Okay.

You should read the comment by Dr. Michael Hodgson. It should be out on the table. Because he comments on many different types of illnesses.

MR. SIDMAN: I did read the article in the New York Times about the supposed increased mortality rate from asthma that I think appeared in the Saturday or Sunday Times. As you read through it, there's speculation of perhaps indoor air quality being a contributor, but they also talked about increased drug use, poverty, lack of medical attention, and other societal causes.

So I think in that whole series of issues, they are multi-causative. I'd just as soon see the money spent on something that was worth the effort.

I guess Samet did write saying that "few quantitative estimates of the burden of disease posed by each of these categories have been made. Risk assessment not only requires the determination that an agent poses a hazard, but also characterization of the relationship between dose and response, and of the distribution of the exposure. The requisite data are not available for most indoor air contaminants of concern in the workplace, although risk estimates have been made for ETS and asbestos." That's Dr. Samet.

MS. JANES: Do you have any estimates of the amount of time that employees in your buildings have had to take off due to indoor air quality related complaints?

MR. SIDMAN: No. We don't think it's significant, though.

MS. JANES: So what you are advocating is a substance by substance approach? So you would have monitoring burdens apply to building owners?

MR. SIDMAN: What we're talking about, I think before you do the monitoring, I think you have to come up with the protocols, I think you have to identify certain substances that are indeed scientifically shown to be problematic. I think you have to issue guidances so that the efforts that are being expended are going to be high yield in terms of benefit to public health. Just issuing the regulations or the mandates will not create the benefits. You have to come up with something that's really going to work to get over the non-compliance issues, to get over the fact that it seems too expensive, and make it really work. You're going to have to let science and technology catch up with you on that one.

We would love to see a public/private partnership that really does investigate these things and comes up with some science, some baseline studies, so that we all can benefit from it. It's got to be targeted. You've got to have better definitions of what your problems are and what you're trying to accomplish.

MS. JANES: Thank you.

JUDGE VITTONE: Thank you very much.

Does BOMA still want to ask questions?

(Inaudible response from audience)

JUDGE VITTONE: Okay. Mr. Gross is gone. I think the only other person besides Mr. McNeely with possibly some questions was Mr. Rupp.

MR. RUPP: Gentlemen, my name is John Rupp and I represent a number of scientists who have submitted notices of intent to appear on behalf of the Tobacco Institute.

I'm not certain I understand the relationship with BOMA and the NRC. Would you explain that to me?

MR. SIDMAN: They're both trade associations in Washington with some coincidental overlap in membership.

MR. RUPP: Are there members of the NRC that are not members of BOMA?

MR. SIDMAN: I would believe so.

MR. RUPP: How about vice versa?

MR. SIDMAN: Sure.

MR. RUPP: But for the most part the membership is the same?

MR. SIDMAN: No.

MR. RUPP: Your organizations differ in function.

MR. SIDMAN: The organizations differ in function... I don't want to characterize BOMA, I really don't, because I'm not active in BOMA. I can tell you that the National Realty Committee is an organization of 200 of the country's largest and most experienced owners, developers, managers, and financiers of real estate, that comes to Washington as real estate's roundtable to deal with public policy issues.

MR. RUPP: That's quite close to the definition that the BOMA witness who appeared earlier in these hearings gave for BOMA.

MR. SIDMAN: It may very well be. I'm not able to speak to that.

MR. RUPP: Did you coordinate with BOMA in preparing your testimony today? Or in developing the position that is reflected in that testimony?

MR. PLATT: We didn't formally coordinate with them, no. We do have...

MR. RUPP: What about informally?

MR. PLATT: Informally. I wouldn't characterize it as coordination, still. I would characterize it as just dialogue between parties with similar but not identical interests.

MR. RUPP: How do your interests differ from BOMA's?

MR. PLATT: I don't think it's fair for us to determine what BOMA's interests are. I can't answer that question.

MR. RUPP: How would you perceive... You just said...

MR. SIDMAN: Well, I will answer that...

MR. RUPP: Just a second. Let me put the question.

You said your interests may not be identical. What is your perception of the difference?

MR. PLATT: That was a statement of my presumption that we would not have identical interests. It's not a statement of my analysis of that issue.

MR. SIDMAN: We're not here to talk about BOMA. We don't have the information or expertise to talk about BOMA. And I would like to respectfully submit, we don't know anything really to spend this panel's time on BOMA about.

MR. RUPP: I perceived in your testimony some concern that building owners might be forced to bear some of the costs associated with OSHA's proposed smoking rule. Do I perceive correctly?

MR. SIDMAN: That would be some of the concern, although we do support OSHA's proposed smoking rule.

MR. RUPP: I understand that from your printed statement.

What is the cause of your concern that you as a building owner, plus your colleagues who are members of the NRC might be forced to shoulder some of the costs of the smoking rule?

MR. SIDMAN: Smoking is a non-work-related situation, and we think there could be confusion if separate smoking rooms were required to be constructed, as to whose responsibility they might be, how well they might or might not work. And something that's not work-related, that the AMA and others have determined to be causally related to severe health problems, are entirely different than the other matters we're here to talk about today.

MR. RUPP: Your recommendation, I take it, in that connection is that any such costs should be borne by the individual tenants rather than by the owners an managers of the buildings themselves.

MR. SIDMAN: No, actually. Our recommendation, and my company bans smoking in its buildings.

MR. RUPP: I'm asking you to comment first on behalf of the organization you're representing today. What is NRC's position?

MR. PLATT: NRC has taken the position that the federal government does have a role in restricting smoking from the workplace, and we haven't been extremely specific as to how our position fleshes out with respect to the separately ventilated rooms. We've simply explained that that's something that maybe needs to be reviewed in more, or analyzed a little more carefully, because it can be a problem in certain settings in very densely populated urban areas, separately ventilating can be difficult. We've just raised issues that we think require some analysis.

MR. RUPP: I'm asking you to focus now on cost. Do I understand correctly that it's the NRC's position that to the extent that implementation of the smoking rule involves cost, that your recommendation to OSHA and your desire is that those costs be borne by tenants rather than building owners?

MR. SIDMAN: That would be our position.

MR. RUPP: So what you would like to see is a smoking rule, either a complete ban or something along the lines that OSHA has proposed, but clarification that no portion of any cost that might be imposed should rest with building owners or managers, but instead should be the burden of the individual tenants, is that essentially the case?

MR. SIDMAN: Philosophically, the genesis of our position is we don't think we should be required to spend money to promote poor health, and we think here there's a sufficient cause/effect relationship. So we don't want to be in the position of subsidizing something that the AMA and others have demonstrated to be very bad for you.

MR. RUPP: Let's go to that point then.

Is it the NRC's position and belief that smoking at the levels that occur in office buildings owned by your members presents a health risk to the non-smoker?

MR. SIDMAN: We don't have a position as to that. But we do believe, we recognize as the testimony by the American Medical Association here, that says "ETS cancer mortality alone is higher than the total cancer mortality figures from all other environmental hazards regulated by the government." That the elimination of ETS from the workplace is a simple and direct solution. It eliminates the source of exposure to a recognized carcinogen. A carcinogen, I might add, that is non-work-related.

MR. RUPP: If that's your position, then why isn't the response to the question that I just put to you a simple yes? That is to the extent that smoking is occurring in buildings that are owned by NRC members, that the NRC's position is, and belief is that that represents a health hazard to non-smokers who either work in those buildings or visit those buildings?

MR. SIDMAN: The NRC only takes positions in terms of what it knows for certain facts. Our organization does not have the position that you state. Our organization is cognizant of the record here. Our organization supports the proposed OSHA rule.

MR. RUPP: You've got a bit of a logical problem. You either as an organization are endorsing the AMA quote that you read me or you're not. Which is it?

(Pause)

MR. SIDMAN: As an organization, we have said that we support the OSHA approach because we have seen data that supports this. As an organization we do not have a position that talks about tenant's space, the tenant's right to control the space or the conditions of his workplace.

MR. RUPP: That's not remotely what I asked you. Let me try one more time and I'll try to be even simpler.

Are you endorsing the AMA's position or not? Yes or no?

MR. SIDMAN: We say that we have taken cognizance of that position, and I am authorized to say that we have taken cognizance of that position. We think that position has merit, and that this panel should take it into account.

We are not scientists and doctors, and we are not able to make a separate judgment on that. We do have respect for the AMA.

MR. RUPP: You believe the AMA position has merit though, is that the point?

MR. SIDMAN: That is correct.

MR. RUPP: What is the basis for your conclusion that the AMA position has merit?

JUDGE VITTONE: Are you asking about him personally or the organization?

MR. RUPP: The organization.

MR. SIDMAN: The organization doesn't have a position on that.

MR. RUPP: Were you testifying as an organization representative or as an individual when you said that you believed that the AMA position has merit?

MR. SIDMAN: We believe that the, the organization believes that the AMA position has merit.

MR. RUPP: On what is that based, so far as the organization is concerned? If that is the organization's position.

MR. SIDMAN: The position is based upon those statements, the reputation of the AMA, and a general review of the literature. We also, in terms of the organization's individual members that have had to deal with tenant complaints, that smoking is a contributing cause to those complaints. We have also found that members of the organization, acting individually and of their own initiative, have voluntarily banned smoking in many instances from the public spaces of their buildings.

MR. RUPP: And many have not.

MR. SIDMAN: I can only tell you that many have. I can't tell you how many have not.

MR. RUPP: Can you tell many have as a percentage of the NRC membership?

MR. SIDMAN: No, I cannot.

MR. RUPP: Do you know what the AMA took into account when it reached the position that you described?

MR. SIDMAN: No, I don't.

MR. RUPP: You also mentioned that the organization, that the NRC had reviewed literature as well. What literature has NRC reviewed in coming to its conclusion?

MR. SIDMAN: I can tell you about the EPA passive smoking study in 1992, which...

MR. RUPP: Have you read that report?

MR. SIDMAN: I have read excerpts of that report that have been given to me today.

MR. RUPP: By whom?

MR. SIDMAN: By my counsel.

MR. RUPP: Did those excerpts purport to be a summary of all of the major findings and methods of analysis in the 1992 EPA report?

MR. SIDMAN: They're probably incomplete, but I find them to be interesting.

MR. RUPP: I find Portnoy's Complaint interesting, but I'm not sure how relevant it is to this proceeding.

JUDGE VITTONE: Mr. Rupp, come on. Let's tone it down a little

MR. RUPP: Did you review only the materials provided by your counsel today so far as the 1992 EPA report is concerned?

MR. SIDMAN: No, there were other materials by the International Agency for Research on Cancer.

MR. RUPP: Let's focus on the 1992 EPA report so we don't get the record confused, if we may.

Was that the first time you had seen any aspect of the EPA report?

MR. SIDMAN: No, in preparation for this appearance I have seen it before. I also read magazines and I watch TV and I'm aware of general health trends.

MR. RUPP: You have seen the summary materials that your counsel provided you today on a previous occasion? Is that your testimony?

MR. SIDMAN: Of course I did, in preparation for this.

MR. RUPP: Have you ever had a chance, or others within the NRC staff had a chance to review the 1992 EPA report as a whole?

MR. SIDMAN: Our counsel at Fried Frank did.

MR. RUPP: You did do that?

MR. ELLIOTT: Yes, we did.

MR. RUPP: How about staff or you personally? Let me get that clear, first.

JUDGE VITTONE: Who are you directing...

MR. RUPP: Did the NRC staff or Mr. Sidman in his own capacity.

MR. ELLIOTT: With respect to staff, we relied on the professionals at the real estate companies rather than I didn't undertake, nor would I be qualified to undertake that kind of analysis.

MR. RUPP: Mr. Sidman, would you agree that you would not be qualified to asses the validity or invalidity of the 1992 EPA report, would you?

MR. SIDMAN: I think that... Look, I'm going to tell you one thing. It's a common sense basis that there's enough out there that causes me to say that smoking's bad, and I think that's, the NRC has taken notice of all of those reports. That was the formation, the basis of the NRC's position in saying that smoking in these indoor air situations was not a positive results. You can argue about the science all you want. That argument was probably a better one ten years ago. Today you take a look at the summaries here, you take a look at the press, you take a look at the news reports, you've got the short end of this argument. You can argue with me all you want, you're not going to convince me that it's good to have ETS around. It's bad.

MR. RUPP: I'm certainly not going to argue with you. I'm asking you a simple question, and that is are you qualified to review the epidemiology and the toxicology related to ETS? Yes or no?

MR. SIDMAN: Absolutely not.

MR. RUPP: But you have a common sense view that ETS, at whatever level, can't be good for you and must, therefore, be bad for you?

MR. SIDMAN: That's right. Reading the popular literature and summaries of things that I'm not otherwise qualified to judge.

MR. RUPP: Is that at any level? However minuscule? Or is there some threshold level that you believe ETS would be bad for you? A single molecule or some number of molecules. When do we start getting into that problem?

MR. ELLIOTT: If he has a view on that subject.

MR. RUPP: If he has, sure.

MR. SIDMAN: I don't.

MR. RUPP: You believe that smoking in private offices represents a health problem for the non-smoker who are not occupying that private office?

MR. ELLIOTT: Again, if you have a view on that subject.

MR. RUPP: That's the unstated premise of all of the questions.

MR. ELLIOTT: I think it's appropriate to state...

MR. SIDMAN: No, I don't have a sense... No. I don't have a view.

MR. RUPP: You don't have a view, Mr. Sidman?

MR. SIDMAN: Right.

MR. RUPP: What about smoking in a lounge that would be separately set aside for smokers and ventilated in accordance with, but at a rate no greater than the current ASHRAE standard for smoking lounges. Do you have any reason to believe that that would present a health hazard to non-smokers?

MR. SIDMAN: We would have concern that it could in terms of infiltration, and also in terms of the problems created by exhausting it.

MR. RUPP: That is if the smoking lounge were exhausted to the outside or if the smoking lounge were not exhausted to the outside?

MR. SIDMAN: Exhausting the smoking lounge to the outside in a multi-story building is not a simple matter. You would have to bring ducts up through several stories. You'd have to make sure there was no infiltration in the ducts. You'd have to operate various fans and other equipments to ventilate the room. You'd have to make sure the room was airtight and there wasn't infiltration in adjoining spaces. It seems to be reasonably complex.

MR. RUPP: Yes, indeed it is. In a multi-storied building, a multi-storied, multi-tenant building, let's think about a building as large as the Hancock Center in Boston or one of the towers in Manhattan. Piercing through the skin of one of those buildings in a number of places on each floor is not a particularly happy prospect, is it? Nor particularly cheap to contemplate.

MR. SIDMAN: I think beyond that, there are probably some local codes that would prohibit it. Many of our buildings are under design review and you'd have to get permission to change the exteriors.

MR. RUPP: For aesthetic purposes.

MR. SIDMAN: That's correct, but they still have government regulation attached.

Indeed I will tell you, just following that along, that as a landlord, we do not permit tenants for any other purposes to penetrate those sides. They are required to exhaust up the vent stacks. So I can't see why you would have a separate rule for this.

MR. RUPP: Is there some chemical in ETS that you believe put ETS in a separate category from other materials, and I ask you in answering that question to think about any number of other chemicals that are released indoors as a part of routine office activities, whether it is the photocopier machine, cooking in the cafeteria, carpets that are installed but have been aired out, paint that is perhaps not completely fresh, on and on. There are a myriad chemicals indoors. Is there something unique about ETS?

MR. SIDMAN: One of the things about ETS that we've taken cognizance of is it's not work-related, whereas many of the other elements and processes that you've mentioned are work-related. So we would start from there. One thing has to do with the inherent nature of the workplace, the other does not.

MR. RUPP: If you're talking about a restaurant, for example, or a bar, then we may be getting a little bit closer to work-related, I take it.

MR. SIDMAN: I own several bars, and a few restaurants, and I'm not sure that we see that as a work-related issue. I don't see how smoking has to do with one's taking charge of his duties as a chef or as a waitress or as a maitre'd.

MR. RUPP: What about customers? You're not concerned about accommodating smoking customers in those establishments?

MR. SIDMAN: Generally we have applauded local rules that take certain steps and we look forward to the day when there will be further steps taken.

MR. RUPP: Do you regard your position in that respect as a bar owner to be a majority or a minority position?

MR. SIDMAN: I don't know.

MR. RUPP: Have you, has the NRC either conducted or attempted to assemble any kind of database relating to ETS? And I have in mind either data inquiring into the health effects or lack thereof of exposure to ETS, as well as air quality monitoring data?

MR. SIDMAN: Not to my knowledge. We think that's such a high profile issue that it's being appropriately dealt with and we expect it to be resolved. That's a focused issue. There seems to be a lot of science on it and a lot of cause/effect. So we're not looking for issues to deal with...

MR. RUPP: But as a predicate to your testimony today you did not undertake any analysis that would have required you to draw on any such databases?

MR. SIDMAN: No. We generally approached the testimony today on the theory that smoking was bad.

MR. ELLIOTT: Can we have just a moment?

JUDGE VITTONE: Sure.

(Pause)

MR. SIDMAN: I would supplement that...

MR. ELLIOTT: Actually let me...

MR. RUPP: Go ahead.

MR. ELLIOTT: Just so there's factual accuracy, we did at Fried Frank do a series of computerized database searches as part of the overall preparation of the NRC testimony.

MR. RUPP: What databases did you look at, Mr. Elliott?

MR. ELLIOTT: I'm not sure. One of my associate's did that. But I believe he looked at MedLine and a number of the secondary sources, bibliographies of the literature with regard to environmental tobacco smoke.

MR. RUPP: How many publications did he turn up? Is it a he or a she?

MR. ELLIOTT: It's a he. I don't know.

MR. RUPP: Did he share with you the names of any of the publications?

MR. ELLIOTT: Yes, he did.

MR. RUPP: Which publications did he share with you?

MR. ELLIOTT: They were primarily the ones, the literature reviews that Mr. Sidman referred to.

MR. RUPP: That is the 1992 EPA report?

MR. ELLIOTT: Correct.

MR. RUPP: Any others?

MR. ELLIOTT: The statement by the AMA...

MR. RUPP: American Medical Association?

MR. ELLIOTT: Yes. And IARC. I have more detailed lists if you'd like them. But we were simply looking for some representative literature reviews.

MR. RUPP: The IARC publication that you uncovered was 1986?

MR. ELLIOTT: That's one of the ones, yes. There's a National Research Council report in 1986; Surgeon General's report in 1986; NIOSH report; testimony of the American Medical Association; a series of additional studies. Hiryama in 1981 and 1984; Tricopolaus in 1981; Fontama in 1983...

MR. RUPP: Excuse me, the last one?

MR. ELLIOTT: Fontam et al in 1983.

MR. RUPP: Fontham. F-O-N-T-H-A-M?

MR. ELLIOTT: I stand corrected. I've never heard the name.

MR. RUPP: How is it spelled on your sheet?

MR. ELLIOTT: F-O-N-T-H-A-M. Garfinkel in 1981 and 1988. So yes, there was an effort made to do database studies to get some sense of where the literature stood.

MR. RUPP: That's a interesting list, actually. I'd like you to keep that out, if you would, as I ask you a series of questions.

Did he find a report by the government of Japan on this issue?

MR. ELLIOTT: Not to my knowledge.

MR. RUPP: Did he find a report of a symposium held at McGill University in 1988 on this issue?

MR. ELLIOTT: If he did, he did not discuss it with me.

MR. RUPP: Did he find a report, you mentioned a Garfinkel report in 1983? 1985 it should have been.

MR. ELLIOTT: 1985 and 1981.

MR. RUPP: Okay, he found both of those.

MR. ELLIOTT: Yes.

MR. RUPP: Did he find Brownson?

MR. ELLIOTT: If he did, he didn't mention it to me?

MR. RUPP: Stockwell?

MR. ELLIOTT: If he did, he did not mention it to me.

MR. RUPP: There's a pattern in the ones that he found, and those are that those are the handful of studies that have reported a statistical association between marriage to a smoker typically, and some health endpoint, but he didn't appear to have uncovered any of the reports that have failed to find such an association, or have reported a statistically significant negative association.

What instructions did you give him in initiating this search?

MR. ELLIOTT: I don't recall what instructions I gave him, but the title of the memo he gave me is, "Overview of Major ETS Studies."

MR. RUPP: So it's your understanding that his assignment was to look at the literature comprehensively and array for you information on both sides of the ledger?

MR. ELLIOTT: I would resist having you put those words in my mouth and say that we asked him simply to give us a sense of what the literature was.

MR. RUPP: On both sides of the ledger.

MR. ELLIOTT: I don't recall whether that instruction was specifically stated or not.

MR. RUPP: I'm still perplexed. If the NRC was interested in finding out what the state of the literature was so far as ETS science is concerned, why wouldn't the organization have been as interested in literature that drew any claims of an association into question as the organization would have been with literature that might have tended to support the finding of an association?

MR. ELLIOTT: I certainly didn't say that that was the case. I didn't say that... That's the conclusion that you're drawing. I didn't say that at all.

MR. RUPP: Have you read the Preamble, any of the three of you read the Preamble of the OSHA notice that describes the science of ETS?

MR. ELLIOTT: Yes, I have.

MR. RUPP: You notice that in that Preamble there are a number of studies that are cited even by OSHA that failed to find any association between ETS, exposure to ETS and the incidence of any kind of adverse health effect, but yet those studies don't appear on your list. Do you have any explanation for that?

MR. ELLIOTT: We're quite familiar with the fact that there are a number of studies, and there's been extensive meta-analysis of the studies and so on. We're quite aware that there are a number of negative studies.
Well, actually, let me correct myself. It's not studies that are negative so much as it is studies that do not detect a statistically significant association within the power of the study and that is, as you are well aware, one of the reasons that meta-analysis becomes a useful tool.

MR. RUPP: You're also aware, are you not, Mr.Elliott, that there are studies on both lung cancer and cardiovascular disease that report a statistically significant negative association--

MR. SIDMAN: Your Honor--

MR. RUPP: -- as well as other health disease end points?

MR. SIDMAN: Your Honor--

JUDGE VITTONE: Mr. Rupp, Mr. Elliott, I think I'd like to get back to Mr. Sidman, okay? Rather than exploring how much research went on between--

MR. RUPP: Let me ask this, Your Honor--

MR. SIDMAN: Your Honor, I would have to say to Mr. Rupp that we did not spend the dollars with our counsel to get into the smoking issue. I would just say to you that the NRC in taking a look at the literature that's around and based on membership experience with the problem feels comfortable in supporting the rule.

I would also say that since we're not a moving party in terms of the rule, that's our opinion. We had no desire to get into it in great depth, that's Mr. Rupp's department, and if he can convince people that somehow there's scientific data that disproves this stuff, that's good for him but that's not something we're particularly interested in.

JUDGE VITTONE: Mr. Sidman, I appreciate that very much but just as the OSHA people have asked you a lot of questions concerning other parts of the indoor air quality rule, you've taken a fairly strong position, I would say, with respect to the rule in all aspects and he is just exploring your position with respect to the smoking part the same way the OSHA people explored your position with respect to the other elements of indoor air quality.

MR. SIDMAN: We certainly understand, Your Honor.

JUDGE VITTONE: Okay.

MR. RUPP: Your Honor, I may be able to short circuit this, though.

Let me ask this question as perhaps the last question in this specific area.

Mr. Sidman, would it be fair to characterize the NRC's position so far as the science of ETS is concerned is the position of a layman rather than the position of experts?

MR. SIDMAN: Absolutely.

MR. RUPP: That would have saved a great deal of time.

MR. ELLIOTT: If you had asked it first.

MR. RUPP: Well, I sometimes stumble around but we get there if we stay with it long enough.

JUDGE VITTONE: Please let's not stay longer.

We have nine days to go, right? Eight days?

MR. RUPP: Not on this examination, though, Your Honor.

JUDGE VITTONE: Well, I know you're leaving but--

MR. RUPP: Well, let's move then briefly to some questions that were left over, residual issues from your discussion with Ms. Kaplan of IAQ issues. If the outdoor air is of poor quality and little filtration of air being brought indoors is accomplished, I take it then increased ventilation may be problematic. Would you agree with that?

Let me try to restate it as you're thinking. If the outdoor air is poor and nothing is being done to filter the air, simply bringing more poor quality air indoors may not make a lot of sense.

MR. SIDMAN: Again, it depends on the specific situations and what quantities you're talking about and are you dealing with-- you'd have to talk about the symptoms or the complaints.

MR. RUPP: All right. But that's at least an area, a set of circumstances in which bringing more outdoor air indoors may be problematic.

MR. SIDMAN: May be.

MR. RUPP: Or may not.

MR. SIDMAN: I think you'd have to be more specific.

MR. RUPP: All right. Now, you've also mentioned that in the case of bacterial or fungal contamination, asbestos-- or I take it we could talk about fiberglass that is entering the airstream as it dries out and flakes away, those are circumstances in which simply increasing the rate of ventilation with outdoor air may be problematic.

MR. SIDMAN: It may be.

MR. RUPP: Now, apart from those circumstances, I would appreciate your explaining to me under what circumstances bringing indoor air at least up to the ASHRAE recommended standards would not tend to be a good thing rather than a bad thing.

MR. SIDMAN: Again, it will depend on the nature of what problems there are. We had a specific situation where we increased that air volume, brought in more outside air and the air qualities were about the same so we tested the outside and the inside air. And we had more complaints.

MR. RUPP: You're talking about your carpet situation?

MR. SIDMAN: Well, yes. We think it was a carpet situation but we're not sure. We also tested for mold. We tested for VOCs. And what I found to be particularly disquieting was that there were a bunch of questions but no real barrier, no real basis for saying if you do this, this and this you've got a silver bullet and it's going to work. It was pretty random. And that's why we are convinced, and NRC has spent a lot of time and through its members a lot of money with consultants, you really have to be very specific about these problems. Today, unfortunately, it strikes me as being more of an art than a science.

MR. RUPP: Is there a minimum rate of ventilation that the NRC believes should be supplied to occupied spaces, occupied spaces?

MR. SIDMAN: I don't know what our working group would say to that. I'm sure we could find out but I really don't know.

MR. RUPP: Do you have any idea whether it would be as low as 5 cfm?

MR. SIDMAN: I have no idea.

MR. RUPP: Is it NRC's experience or the experience of its member companies that there's really no difference so far as occupant health or comfort is concerned between 5 cfm and 20 cfm in general office space? Or have you simply not taken a position on that issue?

MR. SIDMAN: I guess you need more specifics on that.

MR. RUPP: What specifics do you want?

MR. SIDMAN: I don't know. I'm not creative enough to fashion that.

MR. RUPP: Well, let me try to ask it again. I think I've given you all the parameters you need to respond to the question.

MR. SIDMAN: All I'm saying to you is that we think it's multi-dimensional and 20 isn't necessarily better than 5.

MR. RUPP: So you do have a position.

MR. ELLIOTT: Could the witness be permitted to answer the question?

JUDGE VITTONE: Well, sometimes I think he's done and then he pauses and then goes on into further answer.

MR. SIDMAN: We don't have a position on that.

MR. RUPP: Okay. So you're taking no position at all on rates of ventilation, individual rates, one as opposed to another?

MR. SIDMAN: I am suggesting to you that I think without having a lot more specificity and a lot more time to take a look at that the question is not sufficiently defined to where we could give you a meaningful answer.

MR. RUPP: Are you aware that ASHRAE has recommended certain minimal rates of ventilation in general office space, as well as in smoking lounges?

MR. SIDMAN: They generally do.

MR. RUPP: Are you aware that they have a recommendation in place today?

MR. SIDMAN: I'm sure they do.

MR. RUPP: Are you aware of it? Not a presumption. I appreciate your presumption but do you know?

MR. SIDMAN: Not the specifics of it. That's not my area. I'm not an engineer. I haven't been trained to do that.

MR. RUPP: How about you, Mr. Platt? Is that an area that you are conversant in?

MR. RUPP: I can characterize roughly the engineers that have put together our comments and indicate that they do believe that regional factors and other factors related to building design need to be taken into account in any kind of determination of a set rate and they also have indicated they are interested in new research that ASHRAE seems to be undertaking that focuses and links the relationship between certain kinds of contaminants and the degree to which they should be-- and the ventilation rates. So it's a question that they believe needs to be understood in a more complex manner than it has been historically. And that's about everything I know about that.

MR. RUPP: All right. So NRC is neither endorsing nor disavowing the current ASHRAE recommended ventilation rate, it's adopting a wait and see attitude?

MR. SIDMAN: Correct.

MR. RUPP: Has NRC taken any position on the filtration recommendations that ASHRAE has made?

MR. SIDMAN: No.

MR. RUPP: Mr. Sidman, have you personally--

MR. SIDMAN: By the way, it would not be the nature of our group to normally take any of these positions because that's not what we are about.

MR. RUPP: Well, have you considered the implications of those two questions on the position that NRC is taking in this proceeding, which I take it is the business of the NRC?

MR. SIDMAN: The position we are taking in this proceeding is that we think we ought to move from specifics to rules, that we don't think there's enough science or technology sitting there to define exactly what an air quality problem is or to lead us to the way to treat with those problems once they are defined in a cost effective way.

MR. RUPP: Well, let me suggest something and this is going to sound quite aggressive but I don't mean it to, let me put it frankly on the record and you feel free to respond just as frankly.

As I sat there listening to your testimony, it sounded to be very much like the NRC could support the smoking rule because it wouldn't cost them a dime and to the extent there was any change, however minuscule, by whatever stretch, that that proposal could be construed as costing the NRC members a dime, you were anxious to get that stopped. So the smoking rule was dandy because that was going to be a free ride for the NRC but there is simply no other indoor air contaminant that anybody in NRC has ever met or had any experience with that justified any other aspect of OSHA's proposed IAQ rule. Now, how is that an unfair characterization of your position? Because that would cost you money, the IAQ portion of the rule.

MR. SIDMAN: Well, however you choose to characterize it, I don't necessarily agree with you. Our position is generally if there is science there, there's a large number of exposures and there's a substantial benefit to be reaped. We think the rulemaking makes sense.

In the case of ETS, the discussions we've had has caused this group, based on popular information and excerpts and advice and experience, to take a position. The position is not driven by dollars and cents. The position is driven by what we perceive to be the concern of a great many respected organizations in this country, including the Attorney General.

JUDGE VITTONE: Mr. Rupp, I'm going to ask you to end it right there, okay?

MR. RUPP: Your Honor, indulge me for two more minutes, if you would. Please.

JUDGE VITTONE: All right. But no more than two minutes.

MR. RUPP: All right. You stop me when my two minutes is up.

Mr. Sidman, I have heard repeatedly you say on behalf of your organization that the science on IAQ is not there but yet I have not heard any specifics trying to describe for us what kind of investigations the NRC has done. So far as I can tell, neither the NRC nor any of the NRC member companies have undertaken any kind of systematic examination of indoor air quality in its buildings, you have no idea of the percentage of dirty ducts in NRC buildings, contaminated drip trays, inadequate ventilation rates, improper storage of chemicals, improper location of air intake vents, lack of maintenance of cooling towers, on and on and on. Nor a systematic evaluation of the primary or secondary literature relating to IAQ but yet you come to the conclusion that the evidence on IAQ is inadequate for this standard. That strikes me, and, again, please respond, as a hear no evil, see no evil approach because if you see it or you hear it it's going to cost you a few bucks.

MR. SIDMAN: That's not the case. In cases of Legionnaire's disease, there are procedures that have been put into place because they are defined. Where mold is found, there are procedures put into place. But I have to say to you that it is not our obligation to make the case for the rule. Somebody else has to put together the case specifying what the costs and benefits are. And that's not the nature of what our organization does. We are not trying to defend a series of practices, we are here to participate in good faith in a rulemaking process, to try to come up with something that's going to be beneficial.

And I think if you take a look at the nature of our comments and the testimony, it was not in the least bit obstructionist. This organization is willing to fully participate in seeking new knowledge and creating better results. What we are concerned about in terms of what our experts have told us is that we can't get it pinned down. We cannot find reports, we cannot find summaries that I cited to you with respect to your particular interests that gives cause-effect in any particular scientific way.

I'm sorry. You've got your problem but I don't think it has anything to do with what our industry is about or what NRC is about. And we are willing to deal with all of these problems when they can be focused. But one thing we are not willing to support is the expenditure of vast amounts of resources and time in search of problems that need better definition and more science.

MR. RUPP: Do you have any notion of the percentage of NRC buildings that are characterized by the kinds of problems I described in that litany?

MR. SIDMAN: We don't think that many of our-- well, characterized by the kinds of problems, I guess you would have to define that for me.

MR. RUPP: I gave you a list of them.

MR. SIDMAN: Well, you might have to give that to me again because I'm not sure--

JUDGE VITTONE: I think you remember the list.

MR. RUPP: Your Honor, I'll just stop at this point.

JUDGE VITTONE: Okay.

Mr. McNeely, do you have any questions?

MR. McNEELY: I have no questions, Your Honor.

JUDGE VITTONE: Okay. BOMA, I see Mr. Dinegar is not here. I am going to have to move on. Nobody else has any questions so I'm going to have to release these gentlemen.

Gentlemen, thank you very much for coming. I appreciate your time.

JUDGE VITTONE: We're going to take a five-minute recess.

JUDGE VITTONE: Mr. Bennett, would you state your full name, please?

MR. BENNETT: Lawrence T. Bennett. I am Vice President and General Counsel of Johnson & Hardin Company, which is a printer in Cincinnati, Ohio. About 850 employees, about $65 million in sales. I am also chairman of the Safety Committee of the Printing Industries of America. We represent about 14,000 printers in the United States and another 15,000 associated printing groups.

JUDGE VITTONE: Okay. Now, you've provided me with a copy of your statement. I have identified it for the record as Exhibit 205.

(The document referred to was marked for identification as Exhibit 205 and was received in evidence.)

JUDGE VITTONE: And if you could summarize what your point is, I would appreciate it.

MR. BENNETT: The points are as follows:

The first point and our basic point is we think there is a lack of adequate scientific and medical data to support the proposed CO2 limit of 800 parts per million as a health standard. And, frankly, we don't think it will withstand a review in a court of appeals.

Secondly, we feel that we would be much better served if OSHA, NIOSH and other government agencies would work to appropriately toughen up state and local building codes to ensure that our heating and ventilation systems are adequately constructed. And in a minute I want to talk about a personal experience with my office that relates to that.

Third, we think that the proposed rule will unnecessarily raise employee concerns about alleged sick buildings and will lead to meritless requests for sick leave, increased workers compensation claims, and even intentional tort suits.

Fourth, we are already very much overburdened with paperwork and we don't want to start having to maintain logs that I call headache logs and logs of maintenance done in our building.

And, fifth, we think it's inappropriate to single out office workers when regulating indoor air quality.

Let me speak to the experience in my own office. In preparation for this testimony, I asked the State of Ohio Bureau of Workers Comp, Division of Safety and Hygiene industrial engineers to visit my office and take air sampling.

And if I could invite your attention to the attachments, we're used to dealing with the Bureau of Workers Comp and the very first exhibit is a report of July28th where they did an industrial survey of our press room at one of our plants. And there we were concerned about the amount of ethylene glycol and butyl ether vapors that were in the air. And that industrial hygienist was able to with his scientific knowledge and his testing material be able to tell us scientifically that the highest concentration that he measured was 3.1 parts per million, against a PEL of 50 parts per million. And that confirmed for us that we did not have a vapor problem involving those chemicals and it confirmed for the Ohio EPA that their methodology was wrong. We were not being given credit for those vapor getting to our oxidizer and so we were reporting 100 percent of those vapors escaping to press room air and not getting a credit for our 90 percent efficient oxidizer.

So there is an example where we took a scientific approach to an issue, to wit, the quality of the air in our press room, we got a scientific analysis of it, we judged it against your PEL and now we and our employees are very comfortable.

The next example, Attachment No. 2, is the November 17, 1994 report from an industrial hygienist for, again, the Bureau of Workers Comp. Here the issue was the quality of the air as related to one of our sheet fed presses. Employees had told me that when running certain coatings there was a strong ammonia odor. Once again I invited the industrial hygienist to our plant. They had a PEL for ammonia and once again we were well within that PEL. The PEL for ammonia is 35. Our highest reading was 2.4. So once again, a scientific study of our area, the data shared with our employees, we're comfortable where we're at and we get on with our business.

Now, let's turn from those two scientific approaches to my own office. You'll notice a report dated August 30, 1994 and in this case the first test done in my office showed a reading of 1300. Well, obviously the first question is what does that mean to my health? The answer was nothing, Larry.

I then called NIOSH and their offices, you may know Mike Crandall, I believe he's testified here. Mike's within a couple of miles of my office so I spent a lot of time with Mike Crandall and others getting down to what does a 1300 level mean to Larry Bennett's health. Again, the answer is nothing.

I still didn't understand why I was reading 1300 because our drawing showed a fresh air intake pipe a few feet from my office door, so our maintenance department and I inspected. And while we paid for a pipe, no pipe was ever installed. I called the contractor and encouraged the contractor, free of charge, to get somebody over and break literally a hole through the concrete wall, the outside of our building and install that pipe. And the pipe was installed.

And now to invite your attention to the last attachment, a December 7, 1994 report, again by Bureau of Workers Comp, the old 1300 reading is now 950. Now, that 950 is reached by keeping our air intakes running and this weekend we installed thermostats that will automatically turn on that fresh air intake at five a.m. and keep it running until four and keep the temperature constant at 70.

Once again, however, I asked the question, what does 950 mean to me in terms of my health and the answer is, again, nothing.

So our bottom line conclusion here is until there is scientific evidence to establish a PEL for CO2 or for some specific ingredients that we should test for like the M-butyl ether, like the ammonia, until we have some scientific standard, we don't think there's a basis for this rule.

JUDGE VITTONE: Thank you very much.

Ms. Kaplan?

MS. KAPLAN: You don't think there's a basis for the rule but you're only talking about the CO2 portion of the rule?

MR. BENNETT: Well, for example, if there's some other chemical that we should be measuring for in my office, I'd like to know what that chemical is, I'd like to know what the PEL is and we'll measure for it.

MS. KAPLAN: How do your member companies currently keep track of IAQ-related complaints?

MR. BENNETT: They're brought forward to management. In our case, with an 850-employee company, those complaints, if any, come right to my desk.

MS. KAPLAN: Do you think keeping a log of employee complaints could help management identify problems?

MR. BENNETT: I respond to complaints that come to me. I do not think that keeping a log of complaints would help anyone. If a complaint-- and I've never had a complaint in two and a half years. The company hasn't had a complaint in two and a half years other than the two I've mentioned to you, ammonia on our shop floor as well as concern about Ohio EPA rulings on our fountain solution vapors. So my complaint log would be empty if we had one.

My concern is that if I announce to employees outside of Bennett's office is a log, if you've got a headache, put your name on it, I'm going to have a lot of names.

MS. KAPLAN: Well, do you think that kind of log might encourage people who honestly have problems to feel more comfortable making a record of them as opposed to-- I don't know, do you think people might feel intimidated walking into your office, you're VP, General Counsel, wearing a fancy suit and all that?

MR. BENNETT: Well, let's put it into the context of sexual harassment. Employees know that if they have a sexual harassment issue, they raise it to their immediate supervisor and shortly thereafter they come to meet me and I try to do an informed, careful, low key but thorough investigation. That kind of response is the best way to avoid litigation in that arena. That's exactly what we would do if we had an air complaint. But I'm very concerned about what psychiatric responses we'll get from posting notice of a log.

MS. KAPLAN: Well, what's the basis for your concern that you're going to have psychiatric responses?

MR. BENNETT: Just my common experience.

MS. KAPLAN: Your what?

MR. BENNETT: My common experience. My experience when you advise employees that there's an area of concern, to wit in this case air quality, people are going to want to know what's the nature of the concern and what's the nature of your investigation and what are you going to do to solve it.

Currently, I don't believe we have a concern. If there was another employee's office who is reading 950, what I am to say to that employee? Is there a health hazard related to that office? Is there a health hazard related to my office?

MS. KAPLAN: But your comments about employee logs, those are related to your concerns with CO2 or are those--

MR. BENNETT: Or any other matter. If you ask me to maintain a log, for example, why not maintain a log of concerns about just headaches in general? Why not have a headache log? Well, if you did that, what am I going to do with those reported headache problems?

MS. KAPLAN: So you're afraid people will start imagining symptoms.

MR. BENNETT: Very much so.

MS. KAPLAN: Does Johnson & Hardin participate in the EPA voluntary IAQ program?

MR. BENNETT: We do not.

MS. KAPLAN: Why is that?

MR. BENNETT: We haven't been invited to.

MS. JANES: Hello. This is Deborah Janes. I just have a couple of questions.

Do you use only solvent-based fluids in your printing or do you use water-based?

MR. BENNETT: Water-based.

MS. JANES: Water-based. Do you have any treatment for Legionnella and other such critters that grow in those fluids?

MR. BENNETT: Maybe I misunderstood-- would you restate the question? I thought you were asking about the solvents we use in our printing processes.

MS. JANES: I am. There have been reports of Legionnella cases in workers working with water-based lubricating fluids. I was wondering if you have heard of anything with water-based printing fluids.

MR. BENNETT: I have not.

MS. JANES: Okay. So how do you treat your printing fluids?

MR. BENNETT: Well, our inks come in large totes and they're then fed from the totes directly to the presses and applied to the product. There's virtually no waste.

MS. JANES: I was just wondering about that. Okay. Thank you.

JUDGE VITTONE: Does anybody else have any questions for this witness?

(No audible response)

JUDGE VITTONE: Thank you, Mr. Bennett. I appreciate your time today. Have a good trip back to Cincinnati.

JUDGE VITTONE: Mr. Dmitrich.

Sir, would you state your complete name for the record, please, and who you are representing today?

SENATOR DMITRICH: Your Honor, my name is Mike Dmitrich and I am basically representing myself. I am a state senator from Utah. I represent approximately 58,000 people in my district. My district lies in southern end of the state of Utah. It goes from east to west diagonally. I have six counties in this district. It's about 26 percent of the land area in the state of Utah. It's very rural. Included in my district are four national parks, four state parks and an Indian reservation.

I have served in the Utah state legislature since 1969 as a representative and as a senator. I began my legislative career in the state house of representatives where I served as minority leader for eight years. In 1991, I was appointed to the senate and in 1992 I was elected into that body.

In the senate, I currently serve on the following committees: the judiciary, revenue and taxation, capital facilities and general government.

Unlike many states, the Utah legislature is comprised of citizen members who serve part-time. The legislative session lasts just 45 calendar days, thus, many of the legislators are employers, employees and ordinary citizens that would be affected by OSHA's proposed smoking regulation. For instance, in addition to my legislative duties, I am employed full time by Cyprus-Amex Minerals Company.

I am here today to oppose OSHA's proposed smoking regulation for the following reasons:

First, I believe that workplace smoking is an issue that should be left to individual businesses or state and local legislative bodies. Federal Executive Order 12612 requires that agencies such as OSHA, to the extent possible, refrain from limiting state policy options. Yet that is exactly what this regulation would do.

These regulations would preempt Utah's recently enacted state smoking law with which I was closely involved. After years of heated debate, the Utah legislature passed during its 1994 general session a major revision to the state clean indoor act. The revision includes stringent regulations on public smoking.

The 1994 act, which just became effective January1st of this year, does several things. First, it prohibits smoking in any place of public access, which is defined as any enclosed indoor place of business, commerce, banking, financial service or other service-related activity, whether publicly or privately owned and whether operated for profit or not, to which persons not employed at the place of public access have general and regular access or which the public uses, including offices, shops, stores, restaurants, eating establishments, waiting rooms, malls, libraries, theaters, auditoriums, arenas, lobbies, and schools, among other places.

The Utah legislation exempts private clubs, taverns, non-public workplace smoking areas under certain circumstances, individual guest rooms in hotels and motels and other lodging facilities, facilities used by social, fraternal or religious groups, facilities used for other private functions that are under the control of the function sponsor and airport smoking rooms.

The statute is to be enforced by proprietors as well as the state department of health and local health authorities. Fines up to $100 may be imposed for violation of the law and for a repeat violation, they can be fined up to $500.

The certain circumstances to which the exemption for private workplaces applies includes areas that are not places of public access and buildings and offices that are not publicly owned or leased. In these non-public workplaces, employers must establish or negotiate through the collective bargaining process a written smoking policy unless there are fewer than 10 full-time employees, in which case the policy need not be in writing.

The smoking policy may prohibit smoking entirely or restrict smoking to designated enclosed areas. Smoking may be permitted in a designated unenclosed smoking area if the layout of the workplace prevents smoke from entering the areas of non-smoking employees and three-fourths of the employees in that workplace agree.

The 1994 Utah act is a result of literally years of negotiations among all entities involved in this issue, those who supported the legislation, such as local health departments, and those who opposed the bill, such as the Utah Restaurant Association, the Utah Hospitality Association, the Utah Motel Association, the Utah State Bowling Proprietors Association, the Utah Licensed Beverage Association, Salt Lake Business Alliance and many local chambers of commerce. And also labor-employee groups were also opposed to this legislation.

After spending many hours in recent years listening to dozens of witnesses and reviewing hundreds of written statements, the Utah legislature enacted the 1994 act. However, I voted against the Utah statute for two reasons. First, I believe that the issue of smoking regulation is best addressed at the local level or individual businesses. The government closest to the people is best suited to regulate an issue that affects people so dramatically and their businesses and personal lives. Also, I recognize that each locality and business is unique in its needs and abilities.

Second, I opposed the state smoking bill because it had a negative impact on my constituency. My district is made up of mining, agricultural, livestock and tourism. Several areas of my district are heavily dependent on tourism, both domestic and international. The state smoking bill will place my constituents at a competitive disadvantage with tourist destinations in other states and countries.

While I personally voted against the Utah smoking law, I nevertheless recognize that Utah citizens have reached a compromise that they believe is best for them. Utah has grappled with the indoor smoking issue and has resolved it. That's how it ought to stay and the issue is to be decided at the state level by the people who have to live under its provisions and its impact.

Utah is quite capable of dealing with the question on its own without being preempted or dictated by federal regulators.

The second reason that I oppose OSHA's smoking regulation is that it will hurt tourism in my district, as I have mentioned. My district is a popular destination for international tourists, particularly Japanese and Germans. Since a large percentage of these international tourists smoke, the state statute may and the OSHA smoking regulations definitely would prompt them to seek other more accommodating locations.

I believe that OSHA's smoking regulations will send a message to these tourists that they are unwelcome in our country. Just the other day before I came out here to testify, I walked into a fellow employee's office where she was smoking and informed her jokingly that she was violating the law. I really wasn't joking about it but I kind of made it sound nice. She became very angry about the onslaught of government regulations interfering with her private life. She said that if the government persists in regulating away personal rights like the rights of citizens to smoke and business to reasonably accommodate smokers, there is going to be a revolution. What she may have been referring to was a revolution of the sort that took place at the ballot box this past election in November when the people voted against government intrusion and for states' rights. And I must emphasize states' rights.

In Utah, this is clear in our governor's recent efforts to establish a confederation of states opposed to excessive Federal Government intrusion.

And speaking of my associate's refusal to give up her right to smoke, there are a number of local coffee shops and barber shops in this very rural district where people have been congregating for years to drink coffee, smoke cigarettes and discuss the issues and the gossips of the day. Like my associate, these people are not likely to give up their right to smoke without a potential fight. The potential enforcement problems are staggering.

For the reasons I have discussed, I strongly oppose OSHA's proposed smoking regulation. I just think it's another unfunded federal mandate that is being handed down to the states, something states can no longer afford.

Thank you for consideration of my remarks.

JUDGE VITTONE: Thank you, Senator.

Ms. Kaplan?

MS. KAPLAN: Do you know whether any ETS or indoor air quality related worker compensation claims have been filed in Utah?

SENATOR DMITRICH: I'm not aware of that.

MS. KAPLAN: You mentioned tourism. What types of businesses are you referring to?

SENATOR DMITRICH: The type of business I referred to, in the smaller towns, the largest town in my district is the one where I reside, Price, Utah. It's 8000 people. But some of the smaller towns around the national parks and state parks are doing extensive bus tours with foreign tourists and they start in early April and continue through November. Many of these tourists, as you are well aware of, especially the international, they are smoking all the time. The local restaurants in those small towns are very dependent on that eight-month spread for their income for the whole year and they are really opposed to the smoking regulations that we have already passed.

MS. KAPLAN: And the businesses you're talking about, are they primarily restaurants?

SENATOR DMITRICH: The businesses I'm talking about are restaurants and hotels and motels.

MS. KAPLAN: Do you know what percentage of their business is from foreign visitors?

SENATOR DMITRICH: I really don't know exactly. They have I would say in excess of 60 or 70 percent.

MS. KAPLAN: Would that just be a guess on your part?

SENATOR DMITRICH: That's just a total guess.

MS. KAPLAN: Have either you or any of these business owners done any surveys or questioning of these tourists to ask whether-- how they would feel about the smoking restrictions, whether they would actually cease visiting Utah if the restrictions were enacted?

SENATOR DMITRICH: I don't think anyone's done a survey. That is a very major concern of the business owners in that area but I think we can tell more probably after this next tourist season with the present smoking laws that we have in place.

MS. KAPLAN: How they respond to the state ones?

SENATOR DMITRICH: Yes.

MS. JANES: Hello. My name is Deborah Janes.

What was the genesis of your clean air act in Utah?

SENATOR DMITRICH: What do you mean particularly?

MS. JANES: How was it developed?

SENATOR DMITRICH: Oh. A little prior history of that, I think Utah was one of the first states in the country to pass an indoor clean air act. It was passed in the early '70s and there was a big move for the last two years by a group to pass the no smoking act and wanted Utah to be the first state to do so. Even though we were the first one to pass the act, we were not the first one to implement it. But it was a strong movement. As you know, Utah is a very healthy state, very heavily controlled by a religious affiliation.

MS. JANES: Was it health concerns that generated the interest?

SENATOR DMITRICH: I think-- yes, health concerns and I think the heavily family motivation. Utah is known to have large families and I think that is really basically what it started from.

MS. JANES: Has the state of Utah estimated the amount of monies expended on Medicare and Medicaid for smoking-related diseases in the state?

SENATOR DMITRICH: I don't know that answer.

MS. JANES: And the health department is the enforcing agency for the--

SENATOR DMITRICH: The health department is the enforcing agency and also the encouragement of proprietors to also enforce by calling them.

MS. JANES: Could you submit a copy of the act?

SENATOR DMITRICH: I have one with me.

MS. JANES: Okay. Thank you.

JUDGE VITTONE: Does anybody else have any questions for Senator Dmitrich?

Mr. McNeely.

MR. McNEELY: Mr. Dmitrich, I introduced myself to you a little bit earlier. I am here on behalf of several public health organizations and some individual witnesses who have submitted testimony here. I was also struck by your comments about concerns about being at a competitive disadvantage in the tourist business with perhaps the smoking bans or regulation on smoking.

I assume that there are some unique characteristics or draws to Utah other than being a place where people can smoke, is it not? People don't go to Utah to smoke.

SENATOR DMITRICH: Oh, no. I certainly hope I did not imply that.

MR. McNEELY: Well, there some other unique characteristics about the-- I understand there are some fine ski resorts.

SENATOR DMITRICH: Skiing is a major industry. Particularly the district that I represent is natural resources, like national parks and so forth.

MR. McNEELY: Okay. And have you actually reviewed the proposed rule as it relates to smoking?

SENATOR DMITRICH: Yes. I haven't in depth, though.

MR. McNEELY: So as far as in the workplace, do you have any real problems with having-- if there is to be any smoking, having a designated smoking area maintained under negative pressure and exhausted to the outside?

SENATOR DMITRICH: In fact, we introduced-- we have a task force that put the smoking bill in effect, we had two bills that came out of the task force, one was to allow that. I have no problems with that. I have a little problem with the definition of workplace, though.

MR. McNEELY: What is your problem with that?

SENATOR DMITRICH: Is there a definition of workplace in there? I work out of my car. It's three or four hours for me to drive from one end of my district to the other. I consider that work when I'm doing that. Would that mean that someone riding with me could not smoke? Or my office in my house. I'm not a smoker.

MR. McNEELY: Okay. You're not a smoker. And you mentioned the bill or the law with regard to indoor air that just went into effect, that was the '94 legislature?

SENATOR DMITRICH: That's correct.

MR. McNEELY: And you voted against that. What was the senate vote?

SENATOR DMITRICH: The senate vote, if I remember, roughly, it was like 25 to four. And the house vote was probably 60 to 15. In that area. It passed with a huge majority.

MR. McNEELY: Okay. And during that time, were you the recipient of any tobacco PAC money or lobbyist money to help present the tobacco side of that argument?

SENATOR DMITRICH: To how-- no. In that sense, I was not. Having run for reelection 13 different times, I'm sure that I have received financial aid from several groups, not necessarily tobacco. That has never been a motivation to me in my legislative duties.

MR. McNEELY: But just for the record, as for receiving monies just generally for your campaign or for any other purposes from the tobacco industry or tobacco companies have you received any contributions over the past 13 years?

SENATOR DMITRICH: Yes. A small contribution.

MR. McNEELY: Okay. And also for the record, you didn't state it in the beginning but you are here on behalf of Philip Morris, is that correct?

SENATOR DMITRICH: I was asked by a local consulting group, obviously being in the legislature as long as I have, I've known them quite well, if I would testify and I do not have the resources to fly to Washington, D.C. so they arranged to have that paid for.

MR. McNEELY: And that was by Philip Morris?

SENATOR DMITRICH: By Philip Morris.

MR. McNEELY: And could you identify that consulting group?

SENATOR DMITRICH: It's a law firm in Salt Lake City, Jones, Holbrook, Waldo, et al. but the individual's name is Jim Stuart.

MR. McNEELY: And they are the ones who provided-- or Philip Morris provided your funds?

SENATOR DMITRICH: They're the ones who implemented the trip.

MR. McNEELY: Thank you very much.

JUDGE VITTONE: Mr. Rupp?

MR. RUPP: Senator, I have only a few questions. My name is John Rupp and I represent a number of scientists who have filed notices of intent to appear on behalf of the Tobacco Institute.

I appreciated hearing your testimony today. Whose testimony is that? Is that your testimony, your views, or somebody else's views?

SENATOR DMITRICH: That is my views.

MR. RUPP: And how did you come to those views? Was it as a result of the hearing process and your own experience in business over the years?

SENATOR DMITRICH: Oh, yes. You know, being in a natural resource industry and being from the west, we feel that our state rights are getting taken away more and more all the time. This is another example. It's something you hear on the campaign trail all the time, unfunded mandates are coming out to us, the state does it to local governments, the feds do it to us and it's just something that's there and I think we've taken a pretty progressive stand against several federal mandates.

MR. RUPP: Senator, in years past I've spent a lot of time testifying before state legislatures and one of the things that always struck me is that what you saw in those environments was a localized balancing of interests, that is, a lot of local people coming together, expressing their points of view and often the panel having a good deal of experience with all of those people so that the ultimate balancing was quite a refined one. Would you agree with that?

SENATOR DMITRICH: Oh, totally.

MR. RUPP: Do you see some advantages in that process in dealing with the smoking issue as opposed to the prospect that you're presented with in coming to Washington to try to express your point of view?

SENATOR DMITRICH: The experience I had in implementing this piece of legislation was a year-long task force made up of citizens and legislators. Several groups came in and testified. I think it's the only process and I think that's the only process that really works on a state level.

MR. RUPP: Did you have medical groups that came in? Have medical groups?

SENATOR DMITRICH: Yes. In fact, we had medical people sitting on the task force.

MR. RUPP: And you had anti-smoking groups?

SENATOR DMITRICH: Several.

MR. RUPP: You had people who were individual business owners and operators?

SENATOR DMITRICH: Right. It was a very diverse group.

MR. RUPP: Individual members of the legislature, both house and senate?

SENATOR DMITRICH: Yes.

MR. RUPP: And ultimately a conclusion was reached that was passed into law.

SENATOR DMITRICH: Yes. The conclusion that came out of the task force that I was referring to actually recommended two bills, the ASHRAE bill and also this bill here.

MR. RUPP: All right. Senator, the prior questioner asked you about smoking lounges that would be separately ventilated and kept under negative pressure. You said you wouldn't have any problem with that. Let me ask you a question or two about other kinds of places to smoke. I take it under the Utah legislation, as I understand it, one is permitted to smoke in one's private office as well as in an automobile of the sort that you drive around the state?

SENATOR DMITRICH: That's correct. In an automobile but I don't know about the private office. In a private office that has public access--

MR. RUPP: Well, what if we don't have public access?

SENATOR DMITRICH: You would be permitted to smoke in it.

MR. RUPP: Okay.

SENATOR DMITRICH: Now, let me correct just one thing for the record. The problem I have with an enclosed area in my district would be the cost that we have to put on them. But the one I'm familiar with is at the airport and I have no problem with the way that's handled.

MR. RUPP: Okay. Well, that's the point I wanted to get to. Did you take into account as the discussions were going on in the Utah legislature about the costs that would be associated with so restricted an option as a smoking lounge that would have to be separately ventilated to the outside and maintained under negative pressure and was it the costs as well as the feasibility generally that caused the legislature to decide that that should not be held up as the exclusive option that people had?

SENATOR DMITRICH: Yes. To a certain extent. In fact, we tried to figure out if there was some type of tax credit we could build in so the people that had to put those in would get some type of tax credit. The bill never did get to the floor. The bill that moved was-- but we were trying to figure out a tax credit to give that individual.

MR. RUPP: But that's the sort of thing you could do most effectively, I take it, at the local level.

SENATOR DMITRICH: That's correct.

MR. RUPP: That is, if there were to be a tightening up of the law at some point in the future, depending upon developments that were occurring locally, the ways to ease the transition can be considered best again at the local level, could it not?

SENATOR DMITRICH: I've always professed that.

MR. RUPP: Thank you very much, Senator.

Thank you, Your Honor.

JUDGE VITTONE: You're welcome.

Anybody else?

You're not going to be too long, are you?

MR. SMITH: No.

JUDGE VITTONE: All right.

MR. SMITH: I'm David Smith representing Philip Morris.

Good afternoon, Senator. I just have a couple of questions for you.

It was asked whether you would favor designated smoking rooms with all these other requirements. Would you favor less strict regulation of smoking?

SENATOR DMITRICH: Less strict? Yes, I would.

MR. SMITH: Would you favor not having a smoking regulation at all? Would you prefer that?

SENATOR DMITRICH: I think my record indicates that, that I believe that people can take that up on their own, rather than us looking over them.

MR. SMITH: So you would prefer to have businesses accommodate and handle smoking on their own?

SENATOR DMITRICH: In this particular case, I think there have been businesses volunteered to do it, that have no smoking areas. I've seen it happen. And I think that local governments could implement their own, too. But since we have it the way we have it in Utah, I can live with that also.

MR. SMITH: Okay. Thank you very much.

JUDGE VITTONE: Anybody else?

(No audible response.)

JUDGE VITTONE: Senator, thank you very much.

SENATOR DMITRICH: Thank you very much, Your Honor.

JUDGE VITTONE: The bill "Public Indoor Smoking Restrictions" from the 1994 General Session of the State of Utah will be identified as Exhibit 206.

(The document referred to was marked for identification as Exhibit 206 and was received in evidence.)

JUDGE VITTONE: Mr. Shank?

Would you identify yourself, sir, for the record?

MR. SHANK: My name is Greg Shank. I am representing myself.

JUDGE VITTONE: Okay. And if you have a statement you would like to make, go ahead and do it now.

MR. SHANK: Yes, I do.

I have worked in the hospitality industry all my life, the first 10 years in the restaurant business and the past ten years in tourism and travel.

Five years ago, my wife and I started our own business in our home. We began Tour Connection and Charters with one rented bus which I drove and conducted the tours myself, my wife Jackie ran the office. As you can tell, we started very small. However, within two months, we had our first employee. We now have 20 payrolls to meet. We recently purchased our sixth bus and we are currently growing and prospering.

Our company makes travel arrangements for visitors to southern California, where we conduct bus tours and arrange charters. We work primarily in the tri-county area of southern California, Los Angeles, Orange and San Diego Counties. In each of these counties, tourism ranks as one of the top three industries and in Los Angeles County it ranks number one with an annual visitor spending of $8.25billion.

Tourism is the mother's milk of southern California. With all the bad publicity we have received worldwide lately, tourism has fallen off but it has started to pick up again. Los Angeles' earthquake, riots, the fires, flood and highly publicized crimes have had a huge negative impact on international tourism. It took San Francisco nearly four years to recover from its earthquake and it's just now getting its visitor numbers back to pre-earthquake levels.

You see, visitors are more likely to stay away if there is a fear factor connected with a travel destination and you might say that southern California has had its fair share of deterrents.

In California, we have lost tremendous numbers of European and Asian visitors over the past three and a half years to other destinations, especially Hawaii, Arizona, western Canada and Australia. Now we find out that the Federal Government is considering a virtual smoking ban in all working places that would, I take it, include all restaurants, bars, casinos, bingo halls, hotels, offices, et cetera, basically everywhere indoors. A national ban on smoking across the United States could be the final nail in the coffin for attracting international visitors to this country and especially to southern California.

Let me give you an example of what's already happened because of the Los Angeles smoking ban. Just last year, the National Association of Convenience Store Operators, one of the largest national conventions in this country, canceled longstanding plans to bring their annual convention to Los Angeles, 12,000 visitors, 40,000 room nights, $10 million in lost revenue, all lost because of the 15-month old Los Angeles smoking ban in restaurants. Do you know what they did? They pulled the convention out of L.A. and moved it to Chicago, where they don't have a smoking ban. That one convention loss, which received a lot of publicity, will impact the entire southern California economy.

Let's not repeat the L.A. mistake. We'll only lose more conventions and precious travel dollars to other countries.

I have heard that over 70 percent of Japanese men smoke-- 70 percent. And they are not occasional smokers, they smoke two to three packs day. Do you know how many Japanese visitors southern California hosts each year? Approximately 4.8 million for business and pleasure and that number is down significantly over the past three and a half years.

My wife and business partner Jackie and I have worked in Orange County, home of Disneyland, Knott's Berry Farm and about a hundred other tourist attractions. Eighty-three percent of the visitors to Orange County travel for pleasure. The remaining 17 percent are on business or attending conventions. We have hundreds of hotels and tens of thousands of other businesses, including restaurants, dependent on tourism. The income generated by visitor spending supports more than 146,000 jobs in Orange County. We cannot afford to lose one visitor for any reason, let alone thousands. There are too many options for the traveler.

Based on my experience, if you were to completely ban smoking everywhere, it might not impact our industry immediately but once people came to visit, went out to eat, couldn't have a cigarette, even at a bar while waiting for a table or when folks are waiting to be picked up by one of our coaches for a sightseeing tour and cannot smoke in their own lobby, you bet this will cause unhappiness.

Imagine, too, at the end of a long day after visiting Sea World, San Diego Zoo, Seaport Village and then back to Anaheim to relax in their hotel only to find out when they return to their own room, sorry, no smoking there either. Do you think they'll rush back to the United States, the land of restrictions? No. They will go somewhere else for their next vacation or next trip, some other country.

And what happens when they go back to Tokyo or London or Frankfurt and tell their friends, family and co-workers about their trip to California? Oh, yes, beautiful place but too many restrictions. Next year we're going to Australia or Italy, maybe New Zealand or South America. That's when we'll really get the fallout and then I'm afraid it will be too late. The word of mouth will have taken over and our foreign tourism will be hurt forever.

This is how our business works, word of mouth. We get bookings in other countries from all over the world based on satisfied customers. This is our best sales tool by far to keep us growing. Now with the negative word of mouth in California, we have a few economic problems already. As you no doubt have heard, we're bankrupt. The largest governmental bankruptcy in the nation's history. Over two billion dollars lost by our politicians. The layoffs have begun and it's just going to get worst.

One of our only saviors will be to increase tourism into Orange County. Right now, it brings in $4.8 billion annually. That's $4.8 billion, a figure from the Anaheim Visitors and Convention Bureau for the visitors' spending in 1993. If we can significantly increase those numbers it may be our only hope to get out of this serious financial hole.

Now is the not the time to experiment with any government bans that will drive away tourists. Instead, I would suggest that the federal government look at ways to bring more tourism into the United States and encourage our 350 million citizens to travel more, eat out more, and certainly take more tours and charters.

If you were to impose this regulation of smoking, the business that my wife and I have built over the last five years and the industry I have worked in for the past ten would be in jeopardy. Jeopardy of collapsing and losing tourist revenue which we and so many others in this industry have banked on.

We have made provisions for our passengers because of the close quarters on our bus. We don't allow smoking on the bus and we get many calls from smokers who want to know about our smoking policy. So we have included extra stops at designated sites to accommodate these smokers.

On a final note, in my business I talk to a lot of people. Tourists, employees and managers. There is a fear out there from smokers and non-smokers alike. From the smoker, the fear is of their freedom being taken away; from the tourists the thought being that they can go elsewhere for their vacation due to restrictions; and finally, the employees and managers, both non-smokers and smokers, the fear comes from loss of jobs and revenue.

In making your decision consider the little people, the Richard Picards, the Gary Loves, the Gary Westons. A smoking ban will affect their and my way of making a living. Will you help provide for their families when their jobs are taken away? When they lose their jobs?

I urge you to consider the serious consequences on travel and tourism that your proposed federal smoking ban would cause. Please reconsider and leave well enough alone.

Thank you for your time.

JUDGE VITTONE: Thank you Mr. Shank.

Ms. Kaplan.

MS. KAPLAN: What percent of your customers are from foreign countries?

MR. SHANK: I would say about 75 percent.

MS. KAPLAN: And what countries are they from?

MR. SHANK: Mainly Australia, England, Germany and Canada.

MS. KAPLAN: Do you know how many of your customers smoke?

MR. SHANK: Quite a bit. On the percentage of the 75 percent? Are you talking the 75 percent? I would say, estimate 55 percent, based on actual seeing of this take place over the last 10 years.

MS. KAPLAN: Based on what?

MR. SHANK: Based on being there. Based on here's one tourist, here's another tourist, there's three tourists. Two of them smoke. So basically about 55, 50 percent.

MS. KAPLAN: Where do you arrange travel to? Is it all in southern California, or are you arranging travel all over the United States?

MR. SHANK: Well, basically it's in southern California. We do arrange outside in Nevada and have gone to Oregon and Washington, and San Francisco. But basically California.

MS. KAPLAN: And so do you arrange trips to specific tourist type destinations?

MR. SHANK: Yes, we do. Basically like Universal, Magic Mountain, television tapings.

MS. KAPLAN: You mentioned that tourism in southern California dropped off and then picked up. You said specifically that you'd lost 90 Asian tourists in the past three and a half years?

MR. SHANK: Yes.

MS. KAPLAN: And that you attribute that to crime and earthquakes?

MR. SHANK: Earthquakes, riots. We can see it in our own business from the loss of people after the earthquakes, the lack of people going after riots.

MS. KAPLAN: So it's an up and down business. And you mentioned a convention.... It was moved from L.A. because of the smoking...

MR. SHANK: To Chicago. Yeah. Because of the restrictions. It was in the Los Angeles Times. And a convention of convenience store operators who had planned it out here, but Los Angeles, who implemented a smoking ban before... We have just recently passed a smoking ban for all of California. They had booked into Los Angeles but they're a big smoker group and they didn't like the restrictions. They took it elsewhere. They took it to Chicago.

MS. KAPLAN: And the smoking restrictions were stated as the reason in this newspaper article?

MR. SHANK: Yes.

MS. KAPLAN: Do you have a copy of the article?

MR. SHANK: No, I do not.

MS. KAPLAN: If you could submit it to us after you get back, we'd be interested in seeing that.

MR. SHANK: All right.

MS. KAPLAN: Have you asked your customers whether or not they would continue to visit the U.S. or specifically southern California if the OSHA smoking restrictions were implemented?

MR. SHANK: The tourists, yes, as far as if they were banned from smoking in their hotel, in their room and then elsewhere, and the only place to go, outside. Because basically that would be a working place. Yes, some are very concerned about it and that this would not be a regular stop. This would... Well, they would plan other destinations.

MS. KAPLAN: You... In what way have you asked them? Just conversationally here and there or...?

MR. SHANK: Conversationally. And most recently, since the start of California's smoking ban that was passed, I had asked in the more in-depth... And concerned with the customers. This is where I get my basis.

MS. KAPLAN: And as with the person who testified before you, it seems that, as Utah is a unique destination, it would also seem that Universal studios and other destinations of these customers are also unique and couldn't be found in Australia.

MR. SHANK: You can find Disneyland in Japan and France. Universal, no. But the Disneyland experience, the Sea World type of experience, a zoo type of experience, could be found in other countries.

MS. KAPLAN: You said in your letter to OSHA that since Los Angeles passed its ban on smoking in restaurants you have experienced an increase in business. How much of an increase in business did you experience?

MR. SHANK: We noticed as well, the riots as well, too, but as with the smoking ban, when the riots happened more people came down to Orange County to stay. The same with the smoking ban. We had got more people in Orange County. Now, this will be... That was dated, I believe, in August. Now since the smoking ban has taken place state-wide it will be a different set of circumstances, since we are pretty much the same now as Los Angeles.

MS. KAPLAN: And when you made that statement analogous, did you factor in business cycle effects like the recession?

MR. SHANK: Recession? Basically, yeah. We had received more people, and we get this from word of mouth, again, from this is where a lot of my information is substantiated by, from talking to the guests. Who have frankly said they stayed out of Los Angeles because of the smoking restriction.

MS. KAPLAN: You mentioned your bus tours. Is smoking allowed on those buses?

MR. SHANK: No, they're not.

MS. KAPLAN: Is that because of a local or a state restriction?

MR. SHANK: We started... It's on city buses that no smoking's allowed. On tour buses it's an option, and we, well, we started because of the closed quarters of a bus. We have basically a mini-bus instead of one of the large coaches, which they do allow smoking going for long distances and stuff like that. But we have decided from the start, back five years ago, that this was what would be the decision.

MS. KAPLAN: Was that because of complaints of customers about the smoking?

MR. SHANK: No. It was based on our own decision. We felt the convenience for our customers, the overall convenience, since this is why we implemented stops at interesting sites to not only allow the smoker to have a chance to get off the bus and have a cigarette but also to be a worthwhile experience for the guest. But inside the bus, no. I would think that that would be an inconvenience to the non-smokers, which we respect as well, too.

MS. KAPLAN: Thank you.

MR. SHANK: Thank you.

JUDGE VITTONE: Does anybody have any questions for this gentleman?

Mr. McNeely.

MR. McNEELY: Good afternoon, Mr. Shank. My name is Hugh McNeely. I believe you were here earlier. I represent and I am here on behalf of a number of public health organizations and individual witnesses who have testified on this proceeding.

And just to follow up, I was listening with interest to the concern over, again, losing customers in the hospitality business. But I was struck by the fact that as far as your own business with the buses or coaches as you described them, would your no-smoking on your coaches... That began with the first one five years ago?

MR. SHANK: Yes, it did.

MR. McNEELY: And despite having no smoking, a voluntary restriction on your vans or buses, you've grown to now you have six coaches?

MR. SHANK: Yes.

MR. McNEELY: My only question is, don't you feel that, I mean, the no-smoking restriction has had no effect at all on your rather growing and prospering business?

MR. SHANK: Based on the fact that we made provisions for the smoker, I don't think it had that adverse effect. We're not like... We've made provisions for the smoker.

MR. McNEELY: Okay. But as far as restricting smoking actually in your vans or buses, that has not hurt your business.

MR. SHANK: No, it hasn't.

MR. McNEELY: Okay. I'm always... I ask this question many times as a matter of course. Are you in any way associated or is your visit, your testimony here, either sponsored, or your expenses being reimbursed, on behalf of any of the tobacco companies or The Tobacco Institute or any of their organizations?

MR. SHANK: We had... Our original intent was, we had made flight reservations. We solicited the Philip Morris company as far as covering expenses, and you don't get if you don't ask. So we asked for... I mean, we asked, solicited for the fare. And yes, they did provide it.

MR. McNEELY: So your attendance here and your accommodations for your testimony are being paid for by Philip Morris?

MR. SHANK: My, individual. Not the others that I brought.

MR. McNEELY: Okay. Thank you.

JUDGE VITTONE: Mr. McNeely, thank you.

I'm sorry, I've forgotten your name.

MR. KODSI: Neil Kodsi.

JUDGE VITTONE: Okay.

MR. KODSI: Mr. Shank, my name is Neil Kodsi and I'm an attorney with Constangi, Brooks & Smith, and I also represent Philip Morris.

Just a few quick questions. Going back to the fact that you don't allow smoking on your buses. You mentioned that you also have frequent stops. Correct?

MR. SHANK: That's correct.

MR. KODSI: And currently people could go out and smoke there, right?

MR. SHANK: Yes.

MR. KODSI: Okay. So they're not completely prohibited from smoking.

MR. SHANK: No.

MR. KODSI: Okay. Now, your testimony today. Is that your own testimony?

MR. SHANK: Yes, it is.

MR. KODSI: And you mentioned that you requested assistance from Philip Morris. Would you have been able to come out here without that assistance?

MR. SHANK: Yes, I could have.

MR. KODSI: Okay. I have nothing further. Thank you.

JUDGE VITTONE: Thank you Mr. Shank. I appreciate your time today, and patience.

Ms. Rutger.

While Ms. Rutger is coming down here, let me run through some other names. Joyce Hagan? Is she here? Sherry Johnson? Gene Davidson? Okay.

Ms. Rutger, would you state your full name and who you represent today, please?

MS. RUTGER: Yes. My name is Joan Rutger. I'm a partner in Ravenia Court Travel located in Highland Park, Illinois, a suburb 20 miles north of Chicago. I've been in the travel business for 30 years and I've had my own business for 23 years, and Ravenia Court has been very successful in a very competitive industry.

I came to Washington today to state my opposition to the proposed OSHA smoking ban for all work places. This proposal, I feel, is too extreme, and smacks a little of a "Big Brother" action on the part of the federal government.

My travel agency mostly books U.S. travellers on trips within the United States and from the United States to other countries. When I heard of the OSHA proposal I became concerned for the entire industry, because this regulation, if carried through, would dramatically impact international travel into the United States.

I was born and raised in England and I travel back there on a regular basis. Europeans, as you probably know, view smoking quite differently than we do. Smoking is much more prevalent in Europe, and most Europeans think we've already gone overboard with all the restrictions in this country. In fact, recently my husband and I had a visitor from England stay with us. She smokes, and complained all the time about how uncomfortable it was to smoke here. She may never come back. Another visitor had to smoke his pipe out in the freezing cold for two weeks. So it wasn't a very comfortable situation for them.

My fear is that if we effectively ban smoking in every restaurant, bar, lounge, hotel and every hotel room across the United States, that these European travelers would choose other destinations to visit. Or they might spend a lot less time visiting the U.S. They might just zip in to see Niagara Falls or the Grand Canyon and the leap off to a smoker-friendly country for the remainder of their vacation.

Instead of bringing dollars to the U.S. European travelers have many other options where no regulations exist that would restrict their freedoms as the proposed OSHA regulation would do. They can travel throughout the Europe where the severest smoking restrictions are non-smoking sections in the restaurants of Paris, a law which is never obeyed. No one tells the French what they must do. They'd probably disobey the law in the U.S. and it would leave to embarrassing arrests of foreign visitors.

And imagine the Japanese paying $600 or $800 a night for a room and being told they cannot smoke in it. Almost the beginnings of another war.

None of the travel markets that we compete with have any smoking bans. The U.S. must not experiment with such a silly law. There are too many jobs at stake, too many people are employed in the tourism and hospitality industries.

I have a dear friend who owns one of the most prestigious travel agencies in Chicago. I called him to get his reaction. He hadn't heard about this proposed smoking ban until my call and he was astounded to hear how severe the OSHA proposal was, and he was quite pleased to hear that I was coming here today. He felt that a nationwide smoking ban would really hurt inbound travel to this country.

Ravenia Court Travel is a longtime member of ASTA, the American Society of Travel Agents. In ASTA's September newsletter they wrote of the White House Conference on Travel and Tourism to be held here in Washington in October of this year. I have read up on this conference and I think it is a marvelous undertaking. It will be the first ever national conference to seriously explore all the ways to increase travel and tourism in this country.

The Clinton Administration has undertaken this major effort and we in the travel industry commend them for it. From the President on down the Administration realizes the impact our industry has. Commerce Secretary Ronald Brown stated, "The potential for growth in tourism is greater than it has ever been before, and yet so is the competition for this lucrative market. Our reaction to changes in the global marketplace will dictate the success of this nation's economy well into the 21st century."

There has never been a White House Conference on a specific industry. For travel and tourism its significance is enormous. This decision comes at a time when lawmakers in Washington have just begun to appreciate the economic, cultural and social impact of the industry. After reviewing the travel and tourism issue papers I was pleased to see the important topics to be discussed at this historic conference, from technological advancements to the reduction of travel barriers. Yet here we sit today with OSHA's proposed nation-wide smoke ban, which I feel would create a huge travel barrier in this country.

Those of us who work in the travel industry are optimistic that our industry will continue to prosper. We hope to bring more and more visitors to the United States and continue to be the number one travel destination in the world. We want visitors to see our magnificent sites, see our glorious museums, dine in our restaurants, shop in our stores, know the hospitality of our hotels and motels, and meet and get to know the people of this country, for they are the primary asset of America.

We want to do everything we can to encourage travel to the United States of America, and do everything that we as a country can do to make these visitors feel as welcome as we can once they have arrived. A nationwide smoking ban will not help the travel industry one bit. It can only do great harm.

In closing, I would like to read what President Clinton said in creating the historic White House Conference on Travel and Tourism. "The travel and tourism industry is one of the unsung heroes of our economy. Your businesses employ more than six million Americans and, equally important, international tourism is one sector of our economy that consistently generates a trade surplus. I hope this conference will develop a shared vision, both of the industry's future and the role of the industry in our nation's future."

Please use moderation in whatever you do with your recommendations on smoking. Do not impose what is in essence a total smoking ban in all work places. It would be un-American.

Thank you very much for allowing me to speak before you today.

JUDGE VITTONE: Thank you, Ms. Rutger.

Ms. Kaplan.

MS. KAPLAN: What proportion of your customers come from foreign countries?

MS. RUTGER: Practically none. I do not have... I'm in the retail area, so I don't really have many that I bring in from other countries.

MS. KAPLAN: Oh, so you have mostly American customers.

MS. RUTGER: Largely American, within the country and traveling out of the country.

MS. KAPLAN: So then, your concern isn't really for your own business but you're...

MS. RUTGER: I think for the whole travel industry in general, and the whole idea of restriction to that extent.

MS. KAPLAN: Well, what's the basis for your view that these restrictions would cause a decrease in foreign tourists?

MS. RUTGER: Well, there is such enormous numbers of foreigners who smoke. I mean the Japanese, French, English, and they get very irritated when they can't smoke, you know. They're used to being able to smoke.

I have an example of a very nice American friend who went to England and was having dinner in a very nice restaurant and people next door lit up some cigarettes and they turned and very politely said, "Would you mind not smoking here?" and they said, "Yes, we'd mind very much indeed. We suggest that you move." I mean, they feel very strongly about it. That's been my experience.

MS. KAPLAN: Well, many tourist destinations in the United States, museums, theme parks like Disneyland, have already become smoke-free. How do these tourists tolerate that?

MS. RUTGER: Well, I'm not really familiar with how many of those places have become totally smoke-free. I suppose they, if they are smoke-free, they have to wait. I think it's a pity they don't have certain areas where they could smoke.

MS. KAPLAN: Okay. So you're not... I guess because these aren't your clients you're not really sure how they're reacting.

MS. RUTGER: I only know how the many European people I know react.

MS. KAPLAN: That's all.

(Brief pause)

MS. JANES: And what is the basis of your statement that smoking would not be allowed in hotel rooms under this proposal?

MS. RUTGER: Well, this is what I gather. If a total smoking ban was proposed, it would not be allowed in hotel lobbies. This is what I understand. And hotel rooms.

MS. JANES: Where did you learn of the proposal?

MS. RUTGER: I've been reading a lot about it day after day, week after week, in The New York Times. I can't remember exactly where I saw that information.

MS. JANES: So are you aware of the other provisions of this proposal? You probably heard today, since you were sitting, about operation and maintenance of ventilation systems and et cetera.

MS. RUTGER: I'm not, I'm not really... I can't. I'm not experienced in that at all. No. I just look at it from a travel point of view.

MS. JANES: Do you believe that smoking is a health threat? The act of smoking?

MS. RUTGER: I don't know. I don't know.

MS. JANES: So therefore you would not be able to comment on whether environmental tobacco smoke is...

MS. RUTGER: No. All I can say is that I have lived with smoke all my life. My parents smoked. I've been in a lot of smokey rooms. I live in a very smoky town. And it seems to have had no ill effects so far. I'm not a smoker, incidentally.

MS. JANES: Thank you.

MS. RUTGER: Yes.

JUDGE VITTONE: Anything else, Ms. Janes?

Anybody else?

Mr. Rupp.

MR. RUPP: Your Honor, I had a question or two about hotels and hotel rooms as well, but I was intrigued by Ms. Janes' questions, and maybe I can avoid asking Mr. Rutger the question. Is it the staff's understanding that this rule would not apply to hotel rooms occupied by individuals at any time?

MS. JANES: No. I was asking her where she got her understanding. If she had actually seen the rule, the proposal or not. And she...

MR. RUPP: Well, I'm prepared...

MS. JANES: ...said that she had received her information from the press.

MR. RUPP: Okay. Well, I'm prepared to ask and I would like to ask some questions about hotel rooms, but I won't spend everyone's time if the staff's position is that the proposal does not apply to hotel rooms. Can you clarify?

MS. JANES: I can't clarify that. I was asking her since she had commented on that. I was asking her what her perception was.

MR. RUPP: Ms. Rutger, if smoking is banned in hotel rooms in this country, I suppose one of the things we would anticipate is that all ashtrays are going to be taken out of hotel rooms and other places where...

MS. RUTGER: Oh, absolutely.

MR. RUPP: ...people would put cigarettes when they're done with them.

MS. RUTGER: That's what they'll do, I'm sure.

MR. RUPP: And when you have the Japanese and the French and the Germans and the Italians and so forth, just to name some of the Europeans and Asians who are going ahead and smoking in their hotel rooms once the door is closed, I supposed one of the things that we have to be concerned about is the prospects of unsafe disposal of the lit cigarette and the fire.

MS. RUTGER: They'd probably break the law, knowing them. I mean, especially the French.

MR. RUPP: Right. They're going to smoke anyway.

MS. RUTGER: Right.

MR. RUPP: Now, and then we have to be concerned about where they're putting their spent cigarettes.

MS. RUTGER: Exactly.

MR. RUPP: And if there are no ashtrays, I guess the answer is, who knows where they're going to put the cigarettes?

MS. RUTGER: Right.

MR. RUPP: But the reason for ashtrays, I would think you'd agree with me, is to avoid the prospect of fire. That is a safe place to put a spent cigarette, and when those are removed the place that we typically have come to rely upon, whether we live in the United States or Japan or Italy or France, will not be present any longer. And so people will be kind of left to experiment where the safe places for cigarette, spent cigarettes are in hotel rooms. Would you agree?

MS. RUTGER: They'd have to if there were no ashtrays.

MR. RUPP: All right. Now, given what you... Given your many years of experience in the hospitality and the tourism industry, what happens when we have the first of rash of large hotel fires in this country because people are smoking in hotel rooms but can't find places to put their cigarettes out?

MS. RUTGER: Oh, dear. I don't quite know what to say to that. That would be a disaster.

MR. RUPP: It would be, wouldn't it?

MS. RUTGER: Yes. It would be a disaster.

MR. RUPP: Thank you very much.

Thank you, Your Honor.

JUDGE VITTONE: Ms. Rutger, is it your testimony that you think the French are just incorrigible?

MS. RUTGER: Yes (whispered).

(Laughter)

JUDGE VITTONE: Anybody else?

All right. Thank you very much. I appreciate your time.

Is there anybody else who is supposed to testify today who is here and I have not called their name?

Okay, I see no... Nobody else.

We have gone through all the witnesses who are available today. Let me just go over tomorrow's. As I understand it, and correct me, Ms. Kaplan, if I'm wrong, tomorrow we have the Institutional and Municipal Parking Congress.

If nothing else, this proceeding has educated me on all kinds of organizations that I never knew existed.

Hokum Environmental Services. The New York Public Employees Federation, and the Center for Environmental Health and Human Toxicology, I guess. That's it.

That's essentially correct? Anybody else?

MS. KAPLAN: No.

JUDGE VITTONE: Okay. 9:30 tomorrow, here.


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