OSHA: Proposed Standard For Indoor Air Quality: ETS Hearings, January 10, 1995

OSHA: Proposed Standard For Indoor Air Quality: ETS Hearings, January 10, 1995


UNITED STATES DEPARTMENT OF LABOR

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

PUBLIC HEARING
PROPOSED STANDARD FOR INDOOR AIR QUALITY

Tuesday, January 10, 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

Institutional and Municipal Parking Congress 10466
David L. Ivey
Marie Witmer
Kim Jackson
David Fox

Questions:

Ms. Kaplan 10475
Ms. Janes 10484
Mr. Gross 10487

New York Public Employees Federation
Jonathan Rosen 10492
Joan Shepard 10512
Vince DiGulio 10504

Questions:

Ms. Kaplan 10529
Ms. Janes 10554
Mr. Gross 10558
Ms. Alexander 10565
Mr. Rupp 10567

Philip Witorsch 10576

Questions:

Ms. Sherman 10589
Mr. Myers 10648
Mr. Rupp 10675
Ms. Sherman 10700

EXHIBITS

EXHIBIT NO. IDENTIFIED RECEIVED

207 10491 10491

208 10527 10527

209 10527 10527

210 10528 10528

211 10528 10528

212 10528 10528

213 10529 10529

214 10648 10648

215 10704 10704

216 10704 10704

P R O C E E D I N G S
9:49 a.m.

JUDGE VITTONE: We resume our hearings into the proposed rulemaking on indoor air quality of the Occupational Safety and Health Administration this morning.

Our first witnesses area panel from the Institutional and Municipal Parking Congress.

Who is going to act as chairman of your panel?

Would you state your name please?

MR. IVEY: My name is David Ivey, I-V-E-Y.

JUDGE VITTONE: Okay. And would you identify the other members of your panel?

MR. IVEY: Yes. To my left is Marie Witmer, our Director of Technical Services. To her left is her assistant, Kim Jackson. And to my right is our General Counsel, David Fox.

JUDGE VITTONE: Okay. And is that right, it's the Institutional and Municipal Parking Congress?

MR. IVEY: Yes, sir.

JUDGE VITTONE: Okay, sir. Would you begin?

MR. IVEY: I'd be happy to. Good morning. My name is David Ivey and I'm the Executive Vice President of the Institutional and Municipal Parking Congress and I have just introduced my colleagues who are here with me at the table this morning.

The Institutional and Municipal Parking Congress is the national representative of roughly 1200 institutional and municipal parking operations. Our members own, operate and maintain parking facilities in all 50 states and employ roughly 1.1 million people. Ours is an industry with roughly $13 billion in annual revenues and it is our facilities upon which America's transportation system is based. Some of our more vociferous members like to say that the interstate highway system is the connecting system for our parking operations.

It is really our members' facilities that permit an economy of size and concentration. I refer, of course, to the parking that makes possible commerce in downtown urban core areas, sports facilities, airports, hospitals and schools and institutions of all kinds.

IMPC is a not-for-profit organization founded in 1962 as an outgrowth of the National League of Cities. It is an international association whose primary purpose is to provide educational and technical services to the parking profession and its related industries.

Our membership includes primarily entities of government such as municipal parking departments and authorities, college and university and parking and law enforcement departments, airport parking and land side operations and hospital parking and security departments. Additional primary members include theme parks, convention centers, hotels, shopping centers and numerous other parking operations.

The IMPC also includes commercial parking operators and hundreds of companies which supply products and equipment along with consulting, engineering and architectural services to the industry.

As the Occupational Safety and Health Administration has already received many months of testimony and numerous written statements of industry position, it is my interest and intent to focus on the primary issues facing the parking industry.

We respectfully suggest that there is a threshold issue that should be addressed before specific regulations are considered. Number one, are parking facilities the type of working environment that should properly be governed by the proposed rule? That is, in the vast majority of parking facilities, employees are stationed at entrance or exit points and are not subject to the environmental effect of interior space.

Some parking facilities can be below ground but even in those situations, employees are generally stationed in an area of ingress or egress, most often at the top of a ramp and most often in a position where fresh air embraces one side of their work station.

Even in below ground facilities, it is highly unusual for employees to spend very much of their day away from these points.

Importantly, more than two-thirds of our members' parking spaces are either in surface lots, totally open to the air, or in semi-enclosed structures with numerous areas open to the wind and sun. There is not one lone type of work environment for all parking employees.

It is the position of IMPC that parking facilities generally are not the type of industrial work environment, let alone indoor work environments, that the proposed rule was intended to address.

Assuming for the sake of argument that one category of parking facilities, that is, the underground type of facility, was or is within the ambit of the proposed rule, the question still remains whether the proximity to the elements render moot the need for regulation.

Further, it would appear arbitrary to embrace all underground facilities into one rule, since they are decidedly different. Newer facilities generally provide for air exchange and commonly the availability of work booths provides a separate controlled environment often with air handling equipment, air and heating systems and the like.

As a further preliminary matter, IMPC notes that the concerns which serve to justify the proposed regulations in office buildings and factories and the like do not seem to apply to parking facilities.

Of the specific health effects enumerated in Section 2 of the regulation, most do not apply to parking facilities. Parking is not an industry where there are complaints of either sick building syndrome or building-related illness. Nor is there history of difficulty with environmental tobacco smoke. Please consider, number one, in service lots, these problems simply do not exist; two, in open parking decks, these problems also do not exist; and, three, in underground parking lots, employees are almost universally stationed at ingress/egress points where there is access to wind, air, weather and the elements generally.

As a work environment, parking does not suffer from the detrimental aspects of various other industries. Moreover, given the industry trend of placement of employees in booths, the concept of facility-wide regulation makes no sense if the goal is to protect employees.

Number two, feasibility of compliance, technological, need for survey information. Although installation of air handling equipment is no doubt technologically possible, there is a significant question whether underground parking facilities offer the ceiling height and exit points to accommodate the equipment sufficiently. Unless these specific items are addressed, it is the position of IMPC that the rule may be premature.

Moreover, a further preliminary matter is the need to survey existing facilities, presumably underground facilities, as there is no current information that would allow for effective rulemaking. That is, there is no information available as to the age of structures or even the number of structures to which the rules would apply and certainly there is no detailed information as to the technology required for each type of structure.

Underground parking facilities are generally constructed of solid concrete without significant chimney chase type leads. That is, to regulate air quality, significant construction would be required. Such construction raises questions as to ceiling height, structural integrity, long spans for blowers. We also inquire where newly required air handlers would vent the carbon monoxide and hydrocarbons.

IMPC has certainly heard anecdotal renditions of air quality issues but is not aware of any study that indicates the fact that there is a need for such work-related rules or, indeed, the extent of that need if such exists.

As an example of the random nature of the regulation, we know that IMPC members employ roughly 1.1 million people while the agency suggests that 332,000 employees would be affected by the rule. The rule does not make clear whether the discrepancy exists because OSHA assumed only underground lots were covered and other categories of lots were excluded or because the agency isn't aware of how many lots are self-park.

The IMPC is not aware of any studies which show a problem with air quality in surface parking lots or partially open parking facilities and this lack of demonstrated need must be analyzed in light of the fact that there has been no analysis of the cost or impact of the proposed regulations of which we are aware.

The IMPC is not cognizant of any study that analyzes the cost of retrofitting the major categories of parking facilities or the impact of construction on parking operations or the cost of parking operations.

Concomitantly, there are no studies that analyze the impact on institutions that depend on parking in the situations where the regulations are put into effect.

Just as it would be non-scientific to postulate parking rate increases, economic effects of job loss or the like, so, too, would it be guesswork to say that the regulation is needed.

It is the position of IMPC that because of this lack of information the proposed regulation fails in a practical sense and fails to satisfy the threshold requirements of the Office of Management and Budget which would seem to require cost benefit analysis prior to rule imposition.

IMPC members operate facilities that are owned by various entities, both public and private. In effect, the proposed rule would foist on local and state government a requirement that they comply with the federal standard. In a situation where studies have not shown (a) necessity, (b) feasibility or (c) cost, the issue of 10th Amendment applicability will arise. Moreover, the expenses incident to this regulation would be large and we see no federal commitment to payment of the cost.

In situations where there are long-term contracts regulating the operations of parking facilities, the proposed regulation may render the existing financial and operational provisions unworkable.

The regulation does not specify the responsibility for compliance. Does it lie with the facility owner or operator? Indeed, the proposed regulation thus fails to give notice.

We are now seeing the benefits of implementation of regulations requiring the use of cleaner fuels. The existence of older vehicles that has spurred the need for these advances are themselves becoming obsolete and the beneficial effect on air in our members' facilities may be significant. Concomitantly, EPA mandated clean air rules in urban areas, which are areas of high concentration of parking facilities, are now being implemented.

It is of concern to the IMPC that given the positive impact of those rules the instant OSHA regulations may be less necessary but that no one has conducted the studies that would address such concerns.

Significantly, the definition of non-industrial work environment excludes vehicles. This may suggest an intent to exclude parking facilities, as IMPC members' facilities are the long-term and/or temporary facility where the non-covered vehicles are housed. Arguably, the housing of vehicles is a service other than that covered by the work space definitions in the regulations.

The regulation assumes without saying so that underground parking facilities that have employees station those employees underground at all hours. In practice, that is not the case. Often parking attendants are underground during a.m. peak hours and seldom underground after rush hour. The important point again is that since the hours of underground work have not been studied the regulation is premature.

Assuming the regulation were to be put into effect, it is reasonable to assume that operators would station fewer employees at underground parking facilities and/or decrease the number of hours they remain underground.

What does this federally imposed work force change presage in terms of safety and security? Arguably it would be wise to station guards to protect parkers every place where an attendant used to be and if the area were left unattended would patrons have a feeling of less protection?

The proposed rule cannot be made applicable to parking facilities because the following factors have not been studied, in our conclusion: (a) the type of facility, whether underground, ground level, above ground; (b) number of employees affected and number of hours employees are stationed in the affected area; (c) the technological feasibility, cost, responsibility, whether it be owner or operator, the safety of the users, the impact on the economy, the impact on federalism, the OMB cost benefit analysis and the impact of other regulations.

My colleagues and I thank you for your attention and we will be happy to attempt to address any questions you may have.

JUDGE VITTONE: Thank you, sir.

Ms. Kaplan?

MS. KAPLAN: Mr. Ivey, your members, do they all work in the service sector or are there any who work in an industrial setting?

MR. IVEY: Virtually all of our members are in the service sector. They are almost all public operations. A classic example of a member of ours would be, for example, the Washington, D.C. Department of Transportation, the Los Angeles Department of Transportation, the Department of Parking and Security at Ohio State University. Those would be typical members.

MS. KAPLAN: And you said you provide educational and technical services to members. Could you describe those types of services?

MR. IVEY: Yes, ma'am. We provide a series of 10 to 12 educational seminars each year, an annual conference, a monthly magazine, a number of technical publications to the members which may be statistical in nature. They may be relating to employee salaries. That sort of thing.

MS. KAPLAN: How many garages are owned, leased or operated by your members?

MR. IVEY: If you don't mind, let me ask Ms. Witmer to answer that question.

MS. WITMER: We assume that there are somewhere around 10,000 garages in the continental United States.

MS. KAPLAN: In the United States?

MS. WITMER: Yes. Not all of those are operated by our members but we have the majority of those folks.

MS. KAPLAN: So maybe 60 or 70 percent? Can you give me an idea?

MS. WITMER: I would say that's probably fair, maybe a little higher, 60, 65 percent.

MS. KAPLAN: Okay. And of the parking garages owned by your members, what percentage are outdoors, like surface parking or open parking decks? If you could give me a number in either square footage or by stall.

MR. IVEY: I'm sorry, I didn't catch the last part of that. We can give you the percentage that are open spaces but I didn't understand the last part of the question.

MS. KAPLAN: I asked if you could give me an answer by stall or by square footage but if not that's okay.

MS. WITMER: The percentage of the garages that are open air, that's what you're asking first?

MS. KAPLAN: Yes.

MS. WITMER: And that would be probably better than 90 percent open air. As far as stalls, the average in each garage would be about 500 spaces.

MS. KAPLAN: Okay. Are there currently regulations that apply to these environments?

MR. IVEY: There are a lot of state and local ordinances that apply to them, certainly. There may be some federal ones. Frankly, that issue has not come up.

MS. KAPLAN: And are these facilities engineered or designed to comply with the applicable regulations?

MR. IVEY: Sure. Yes. In most cases, with our members, that's particularly required because they are built by the cities themselves.

MS. KAPLAN: Well, which of those regulations relate to employee safety and health?

MR. IVEY: I would have to look that up and provide it for the record. It would differ, obviously, depending on where the location is and who is providing the service.

MS. KAPLAN: Well, do you have any idea just generally? Are there certain issues that generally tend to be addressed in these regulations relating to employees?

MR. IVEY: No. I wouldn't be able to answer that. Frankly, that question has never come up before. It's not something that we have collected information on.

MS. WITMER: What I hear, and I talk to our members daily as part of my position and I maybe take 300 calls a month, anywhere from one to 300 calls from our membership, and the questions that come up regarding safety of employees is more equipment-related, shoes, hats, that kind of thing, not clean air.

MS. KAPLAN: Well, of those calls you receive from members, could you give me any ballpark idea of how many relate to safety and health concerns?

MS. WITMER: A very small percent, probably less than 5 percent.

MS. KAPLAN: Can you describe the type of ventilation systems and other types of equipment that are present in parking garages particularly used to maintain air quality?

MR. IVEY: I certainly couldn't describe them in any detail. I can tell you that in regards to service facilities, there are none. In regards to open air structural facilities, there are few, if any. And in underground facilities, there are heavy duty -- certainly in newer ones, there are heavy duty air handling equipment certainly installed. I could not describe those for you. No.

MS. KAPLAN: Does your organization at all keep track of employee health complaints?

MR. IVEY: We do it as part of the overall information that we try to keep track of. Frankly, it has not come up. We have not seen any evidence of any sort of spikes in employee health complaints. It's just not something that's ever come up. And as close as we try to monitor our members, that's the sort of thing, for example, we would do a program on or a seminar on if the question came up and it simply hasn't come up.

MS. KAPLAN: You don't specifically ask for that information, then?

MR. IVEY: I don't recall specifically asking for it. No.

MS. KAPLAN: You say in your testimony that because underground garages are proximate to the elements the need for regulation is moot. Do you know whether there are national building codes that also adopt this belief or the general principle?

MS. SHEPARD: We follow BOCA codes, certainly. Also, if there's any chemical handling with operations, we follow OSHA requirements and all that. Is that what you're asking?

MS. KAPLAN: Well, I guess I'm asking about your feeling that no regulation is needed in this case because of the proximity of underground garages to the outdoors.

MS. WITMER: I think the answer is that since we have never had any problem, and I was in operations for six years, I was executive director of the Harrisburg Parking Authority in Harrisburg, Pennsylvania, Kim was at the Rutgers University, and I can tell you that as a practical matter of experience with 30-some employees, I never had any questions. My garages were all -- I had a few levels underground and the rest of them were above ground, I never had any problem at all with any kind of health complaints. Nor did I know, I started the Pennsylvania State Association for Parking and you tend to mind-meld on different issues, never have I heard air quality come up as far as sickness for employees or anything like that. Is that what you're asking?

MS. KAPLAN: More or less.

MS. WITMER: Okay.

MS. KAPLAN: Do you know of any underground parking garages being built without exhaust ventilation because they are proximate to the outside?

MR. IVEY: No.

MS. WITMER: No. If it's underground, it's going to have air exchange equipment.

MS. KAPLAN: You mentioned heavy duty fans running in underground parking garages. Are these generally kept running during all periods of occupancy or are they shut down

MR. IVEY: Ms. Jackson was just informing me she was at Rutgers University just before she joined our staff as Director of Parking, she has informed me that facilities they had, they were required to run those fans constantly.

MS. KAPLAN: Do you think that's generally true or does it vary?

MR. IVEY: I would not be able to tell you. It's not something we've surveyed.

MS. KAPLAN: Okay. Is there a possibility that you may be underestimating the number of workers involved in underground parking by saying that almost universally employees are stationed at ingress/egress positions near the outdoors? Specifically, have you considered valet service employees and patrolling security personnel?

MR. IVEY: I can tell you, for example, the number that we have given you, if anything, is going to be on the high side. The number you have given us in the regulation is much too high. We're talking about a total in the industry, the estimates we've made, of about 1.1 million people. Less than 10 percent of that is in any kind of valet operation and less than half that is in underground valet operation.

The trend universally in this industry for the last 20 years has been the self-park environment. Frankly, it's a matter of economics. It's much cheaper, obviously, to run a 500-space parking facility if it's not as labor intensive. There are also obviously fewer concerns about safety of the employees, you know, moving about in an environment like that. So it's just something that is really shrinking in terms of numbers and really the only place you would run into, there are really only two examples of running into major concentrations of valet operations and that is a few cities on the East Coast that are very concentrated, Washington happens to be one of them, perhaps Philadelphia, certainly in New York, would apply to that. And there are a few cases now recently, a more luxury sort of valet service is offered at airports. But that's usually an outdoor facility.

I cannot overemphasize the fact that because of this trend over really two or three decades to self-park, the number of employees in those facilities has shrunk dramatically.

MS. KAPLAN: You said in your testimony that it might be infeasible to retrofit underground garages to vent CO. Does this mean -- are you aware if you have members who garages do exceed the current OSHA PEL for CO?

MR. IVEY: I'm certainly not aware of any that do. No.

MS. KAPLAN: You also mentioned that more information is needed and that a survey should be conducted on existing facilities. Have you done any types of surveys?

MR. IVEY: Not on this issue, no. As I said a little earlier, it's just simply not an issue that has come up.

MS. KAPLAN: As far as IAQ problems in garages, infiltration of contaminants like diesel exhaust from underground facilities into adjoining underground facilities seems to be the most frequent problem. Would you feel that the building owner and not the parking garage operator would be responsible in this kind of situation for contaminants originating in the parking space?

MR. IVEY: I would not venture a speculative answer on that. I really don't have a position on that.

MS. JANES: Hello. I am Deborah Janes. I just have a few questions for clarification purposes.

Who maintains the ventilation equipment in those underground parking garages?

MR. IVEY: It varies across the board. In a typical example, and I'll ask my colleagues to correct me if I'm wrong here, in a typical example, if a municipality owns the facility, typically the municipality would maintain those facilities with their own employees or through the use of outside contracted employees.

In the case of a facility which may be operated by a commercial firm but owned by perhaps a commercial building or owned by a municipality, that could be across the board. It would depend on how the original management contract was written. I just wouldn't be able to answer that.

Let me simplify that. In the case of our municipal members, if they own the facility, they're responsible for the maintenance as a general rule.

MS. JANES: Are you aware that maintenance is generally done on those types of equipment?

MR. IVEY: Are we aware that maintenance is generally done?

MS. JANES: Yes.

MR. IVEY: I'm not sure what the question is.

MS. JACKSON: On what type of equipment? You mean air handling?

MS. JANES: On the air handling equipment in garages.

MS. JACKSON: I would assume absolutely. If there's air handling equipment, and that would be in an underground garage, that it absolutely would be maintained one way, shape or form.

MS. JANES: Do you have any information to support what you are saying about the maintenance?

MS. WITMER: We have maintenance seminars from time to time. There are also requirements usually set up by the city and the bonding agents that if things are not maintained that there would be a problem. Most of our facility owners also are checked out at least once a year by a consulting firm to just go through and make sure things are working properly.

MS. JANES: Okay. Getting back, do any of your members regularly monitor for carbon monoxide in garages? In underground garages.

MS. SHEPARD: I am aware that some do. My guess is virtually all do but I cannot give you that as a definitive answer.

MS. JANES: Would that equipment be part of the garage or part of the building itself? Meaning would it be part of the ventilation system in the garage proper or would it be a sort of device used to determine whether or not excess amounts of carbon monoxide were available for entrainment into the building?

MS. WITMER: It really depends on the building. There are a lot of garages that are free standing that really aren't connected to anything. Obviously, in those cases, if it is a total underground garage and they've got detection equipment, which they would have, to make sure things are running fine, it would be the responsibility of the garage part. If there's a building attached to it, I don't know, quite honestly, what the building people would do in that case.

MS. JANES: Okay. But that would be the maintenance procedures or the responsibility for that maintenance would be spelled out in the agreement between the parking authority and the building owner?

MS. WITMER: Right.

MS. JANES: Okay.

MR. IVEY: And perhaps the operator of the facility, too. The real point I think we're trying to make and we may not be doing it well is that the range of these agreements are all across the board. It could range from the owner to the operator to an outside agency, whoever it may be, and we can't give you a definitive answer on that.

MS. JANES: Okay. thank you.

JUDGE VITTONE: Does anybody else have any questions for this panel?

Mr. Gross?

MR. GROSS: Just one or two, Your Honor.

Thank you, Your Honor.

Good morning. My name is Richard Gross. I'm with the National Energy Management Institute and the Sheet Metal Workers International Union.

Just a couple of questions on your presentation.

Are there industry standards for acceptable levels of carbon monoxide and other pollutants in underground garages?

MR. IVEY: Not as adopted by our organization. There certainly are municipal ordinances that require that, state ordinances and perhaps even federal ones as well.

MR. GROSS: Well, other than OSHA and OSHA-like regulations, are there industry standards?

MR. IVEY: Not that I'm aware of.

MR. GROSS: Okay. What is the source of standards that architects and engineers would build new garages to? In other words, you're saying that newer garages, underground parking facilities, have air handling equipment, commonly the availability of work booths with the separately controlled environment, that sort of thing. When new facilities are built, to what standards are they built?

MR. IVEY: National building code standards. There are not -- this industry is a large one in terms of money but in terms of the organization of its related associations, it's quite, quite small. In our case, for example, our association does not adopt those standards. We're not of a sufficient size to provide that technical expertise, so we don't adopt those standards but the buildings are built to the same sort of national building codes that an office building or a government building would be.

MR. GROSS: Or any other facility would be built to.

MR. IVEY: Yes.

MR. GROSS: Are there any economic incentives one way or another not to build these kinds of booths with air controlled environments?

MR. IVEY: No. Not that I'm aware of.

MS. WITMER: No, not a booth. No.

MR. GROSS: I'm sorry. My question was sort of ambiguous. Economic factors one way or another, what would someone who is building a new facility, in what way would they build it concerning these air controlled booths?

MR. IVEY: Certainly the public image incentive. And that is that the thing ought to be attractive. The employee ought to be comfortable in it because if the employee is not comfortable in that facility he or she is going to be the primary representative of the organization which runs the garage to its customers and if that person is hot and sweaty and he can't breathe and the like, obviously you have concerns for the employee first and secondly you have concerns for his relations with the customer.

I can't think of any incentive for not providing that sort of booth or facility for a garage employee. Certainly you could argue that perhaps there is a financial disincentive because it costs a little more. In the case of our members who are municipalities primarily, that's just not of sufficient import to make it worthwhile.

MR. GROSS: If OSHA were to conclude that there was some sort of health-related problem among workers in underground garages would it be reasonable for them to at least require newly constructed facilities to have air controlled booths for employees?

MR. IVEY: I'd have to take a look at it. Obviously it would depend on how reasonable those regulations were. And also the reliability of the data on which the study was based.

MR. FOX: I think OSHA might want to look at how much time the employees spend in the facility and how much time in a specific area. If an employee were outdoors, that's one thing. If he's underground, that's another. And if he's at the point of entrance, that's another. And I think that OSHA would find it difficult to promulgate that at this time because there's no information as to how many hours the employee spends in each situation.

MR. GROSS: I agree that that's important in making the determination if there's a problem.

One last question. Do you have any idea of the turnover among employees in these underground parking areas?

MR. IVEY: It depends entirely on the type of operation. In a major city such as Washington, you're going to have very high turnover. A lot of those folks are very temporarily involved in that employment until they move on to something a little higher up the ladder. In other cases, you may have people who are career employees of a particular company.

MR. GROSS: There's no way to generalize that?

MR. IVEY: Absolutely not.

MR. GROSS: Thanks very much.

MR. IVEY: Thank you.

JUDGE VITTONE: Thank you, Mr. Gross.

Anyone else?

(No audible response.)

JUDGE VITTONE: Ladies and gentlemen, thank you for your time. I appreciate it.

JUDGE VITTONE: Mr. Ivey has provided me with a copy of his statement and it will be identified as Exhibit 207.

(The document referred to was marked for identification as Exhibit 207 and was received in evidence.)

JUDGE VITTONE: New York Public Employees Federation.

(Pause)

JUDGE VITTONE: Mr. Rosen, would you identify yourself and the other members of your panel and your organization, please?

MR. ROSEN: Yes. My name is Jonathan Rosen. I am the Director of Occupational Safety and Health for the New York State Public Employees Federation, AFL-CIO. On my left is a member of PEF, Joan Shepard, who has been working for the Office of General Services for 20 years and has become ill from the indoor air quality in her building. And to my right is Vince DeGiulio, who works for the New York State Department of Taxation and Finance. Vince is a union steward and he was involved in the Building 8 indoor air quality fiasco which received national attention because there were mass evacuations. And he's speaking on behalf of Kay Reese, who is a member of PEF who was unable to appear today but whose testimony illustrates the disabilities that she's received due to the indoor air quality events at the Department of Taxation and Finance.

JUDGE VITTONE: Okay. Each of you is going to deliver a statement?

MR. ROSEN: Yes. I was going to go first and then Vince was going to go second and Joan on the third and I was going to kind of facilitate the panel.

JUDGE VITTONE: All right. Go ahead.

MR. ROSEN: As I stated before, my name is Jonathan Rosen and I serve as the Director of Safety and Health for the New York State Public Employees Federation. We represent 57,000 professional, technical and scientific employees who work for state government agencies in New York State in over 2700 different job titles. So every state agency includes PEF members. There are also workers in other bargaining units that are affected by the problem of indoor air quality. The total state workforce is about 200,000.

In numerous internal union surveys, PEF members have indicated that indoor air quality is a major priority concern of theirs. The environmental and thermal conditions in the offices and facilities that we work in have a very profound effect on our health and therefore significantly impact the quality and productivity of the essential professional services we perform for the State of New York.

Air quality problems encountered at our work sites include those caused by heating, ventilation and air condition system problems which I'll refer to as HVAC systems problems, chemical exposures, cutbacks in maintenance, lack of humidity control, and indiscriminate application of pesticides.

These problems are often heightened during building renovations or maintenance procedures. And, in fact, I have some additional documentation for the docket. When we announced to our constituency that we were going to testify in favor of the OSHA proposal, we received an incredible amount of phone calls and when we received those phone calls from members who were having ill effects from indoor air quality, we asked them to send us documentation. And this documentation includes medical documentation, workers compensation documentation, environmental reports and the like. And the spectrum of people affected is very broad.

On the top of this documentation, I have a statement from a crime analyst from the state police. We have a person from the state department of labor who over the course of two or three years in this documentation had several exposures during reconstruction activity which caused him to be off of work and ill.

So I would like to --

JUDGE VITTONE: Okay. Thank you.

MR. ROSEN: This morning, I would like to share PEF's experience regarding two specific cases. And we've gone to the expense of bringing a couple of our members to Washington today because we want to emphasize the human suffering that poor indoor air quality can cause.

We feel that the debate on the need for an indoor air quality standard has taken place in a vacuum. It's been pretty much restricted to inside the Beltway area of Washington. And with the current anti-regulatory environment, policymakers too often are ignoring the human impact of problems like indoor air quality and looking too much to the statements of the highly organized interest groups like the tobacco companies, building owners associations. We want to put the human face for the average person who is being afflicted by these problems and that's why we've organized our presentation in this manner.

We've seen our members' lives turned upside down because of poor indoor air quality. My office receives calls every week from workers who are being terminated from their jobs and these are dedicated state professional employees. And they are being terminated due to disabilities that are related to their exposures to poor indoor air quality.

Now, the intent of the OSHA act, I looked it up, it's defined in Section 2(b) as follows: "The Congress declares it to be its purpose and policy through the exercise of its powers to regulate commerce among the several states and with foreign nations and to provide for the general welfare and to assure so far as possible every working man and woman in the nation safe and healthful working conditions to preserve our human resources."

Clearly, poor indoor air quality from PEF's experience is creating unhealthy working conditions and needs to be regulated.

I have introduced you to Joan and Vince is going to be speaking on behalf of Kay Reese but let me just say that Kay worked for the State Department of Taxation and Finance for 18 years in a supervisory capacity. One of the things about being a public sector union is supervisors can belong to the union.

Joan Shepard has worked as a training specialist for the New York State Office of General Services for 20 years, 20 years of service.

Both of these women were hard working, dedicated state employees with excellent employment records. Excellent records. Their lives have bene turned upside down because of the air they breathe at work. The conditions that caused their disabilities were both predictable and preventable and I think that's an important point in terms of whether a standard is feasible.

The disabilities that they are experiencing are costly. We talk about regulation is too costly to the economy, well, it's costing them big time. It's costing their families income and the quality of their lives as you'll hear has been severely impacted.

It cost their employers valuable human resources. Twenty years and 18 years on the job, you can't afford to lose in today's economy. Medical expenses, workers compensation and the costs relating to productivity, quality and workplace morale are difficult to even try to quantify.

For those who would argue that the cost of regulation hurts our economy, I would suggest that the costs associated with sick building syndrome and building-related illness far outstrip the reasonable preventive strategies proposed by OSHA. As the old adage goes, an ounce of prevention is worth a pound of cure.

Now, Joan's workplace is the 42-story Tower Building in Albany's sprawling Empire State Plaza, built under the leadership of Nelson Rockefeller. Two other workers, two co-workers, have been diagnosed with the same illness that Joan has. One is a management person.

Her building has extremely low humidity and the state has severely cut back on maintenance because of its fiscal problems.

Kay Reese worked at the infamous Building 8 at Albany and after several mass evacuations, the State of New York spent $3 million approximately to improve air quality in Kay's building. It's Vince's building as well. They worked in the same area. Vince is her steward.

This figure does not include costs associated with the 700 workers compensation claims filed due to the incidents at Building 8.

Most of the measures that are proposed in OSHA's rulemaking were acted on at this cite after the mass evacuations and after the sensational headlines forced action. And I would speculate that if those actions were taken on a preventive basis, the cost would have been severely lessened.

A survey conducted by PEF and its sister union, the Civil Service Employees Association, during the peak of this episode was analyzed by John Lund, Ph.D., an associate professor at University of Wisconsin-Madison. Over 1400 people took the time to fill out the surveys in late February 1992 and key conclusions revealed when this survey was administered Building 8 occupants had perceived significant indoor air quality problems. Levels of commonly reported environmental problems and health complaints were significantly above those reported in published studies of similar groups. The percentage of key health problems reported in this survey are relatively close to those reported by a survey conducted by the Department of Health at about the same time on a significantly smaller group of workers.

A significant number of the health complaints and environmental concerns are acute in nature, as they diminish when the individual is away from work. These health problems have no apparent pattern in terms of their occurrence, which is typical of indoor air quality problems.

Not all of the health problems and environmental concerns are acute or temporary in nature. A significant number reported exposure to pesticides on the job, 433 or almost 31 percent of the respondents. This is an important point, I think.

Many of the environmental concerns and health problems reported by building occupants can be addressed by improvements in the HVAC systems, as well as improved communications and follow-up programs. And the key recommendations from the survey, which are also very consistent with OSHA's proposed standard, are fully implement the recommendations of C.T. Mail, that was the consultant, and the National Institute of Occupational Safety and Health regarding the HVAC system; investigate space allocation and its impact on air quality; and develop an effective communication process including a complaint form for environmental or health concerns, a designated manager for investigation and disposition of complaints, walk around inspections of the building to monitor air quality and periodic measurement of temperature, humidity air flow and other HVAC problems, regular staff meetings, newsletters or other means for communicating the status of HVAC system improvements, tracking complaints and corrective actions taken, and a follow-up survey to gauge the effectiveness of the improvements made to the HVAC systems.

In terms of the improvements that were made in this building, a summary of them will follow. These were the most significant improvements made since the release of diethyl amino ethanol in October of 1991. Diethyl amino ethanol was in the stain, it's a rust inhibitor, and it's purpose is to prevent corrosion in the heating equipment and that was indicated, according to the health department and NIOSH and the other experts, in the mass evacuations.

Number one, fan capacities were increased up to 30 percent in some cases to provide recommended levels of fresh air and it was found during the investigation that in the early '80s the fans had been cut back as an energy saving measure so they were increased back to their design specification after the incident.

More efficient diffusers have been installed throughout the building. They had an old style of diffuser that didn't distribute the air well to the occupants and you can imagine in the tax department you have a very dense populated area, a lot of paperwork, a lot of bright lights, neon lights, a lot of computers.

The reheat coil system was repaired to allow for better temperature control. Because of the leaks and the problems with the heating system, there was a lot of problems in controlling the temperature throughout the space.

A state-of-the-art humidification system has been installed.

The entire ventilation system has been tested and rebalanced.

The cleaning staff has been restored to an adequate level. And this is an important point. What had happened, there were layoffs in 1990 and '91 because of the state's fiscal problems and the OGS, the Office of General Services, cut back on the amount of cleaning staff in state buildings. This was considered a contributing factor because dust and other contaminants were building up in the tax and finance Building 8. So what the solution was, the state wouldn't restore the staffing level but they allowed the tax department, because it's a revenue-generating agency, to pay for additional staff. So that's exactly what the tax department did. I think the number is about 24 cleaners and maintenance people that they are directly paying for out of the tax department's own budget.

The indiscriminate use of pesticides has been discontinued, not only at Building 8 but in all the state buildings. The Office of General Services is instituting an integrated pest management program in all of its buildings. It was found that just this routine spraying was not only causing health problems in many cases but really an inefficient way of controlling pests, so this is a positive thing that came out of this episode. But we do have members now who are possibly having permanent or chronic effects from these low level exposures.

OGS has distributed the EPA-NIOSH Guide to Indoor Air Quality to all of its building managers and is beginning to respond to air quality complaints in its buildings based on this standard's procedures. This is largely due to OGS's experience at Building 8.

Again, this is a positive outcome although I need to say that the building managers are also our members and while they did receive this excellent guide, which I think is a key basis for the OSHA standard, they haven't been trained on it, so the limitation there is in terms of fully implementing the kind of program that's needed, that isn't happening usually unless there is a problem.

It is interesting to note the similarity, as I stated before, in the measures taken at Building 8 compared to OSHA's proposed standard. I think that speaks to the feasibility requirements of OSHA's rulemaking. If it works at Building 8, then it should work in other buildings.

Clearly this situation demonstrates the seriousness of the hazards due to poor indoor air quality. There are a number of workers who have been terminated and have been off of work for more than a year relating to this incident.

The EPA, NIOSH and ASHRAE guidelines are proving to be viable national standards upon which OSHA can base its rulemaking. Clearly OSHA meets the requirements under the law to promulgate this rule.

PEF believes that the experience of New York State and its unions show that an indoor air quality standard is urgently needed. The costs associated with continued indoor air quality problems are not acceptable to efficient quality operations and are certainly not acceptable to human health.

PEF believes that the issue of a smoke-free environment is not the key issue at this moment. PEF already has contract language in our collective bargaining agreement that addresses the issue of creating a smoke-free environment.

In addition, New York State has had a law since 1990, the Clean Indoor Air Act, which addresses smoking in the workplace. Therefore, we feel at this moment OSHA does not need to focus on environmental tobacco smoke. Rather, an enforceable indoor air quality standard cannot wait and must be acted upon now.

This is especially true with the difficult fiscal times experienced across the nation which is leading to increased cutbacks in maintenance and building upkeep and therefore further exacerbating the indoor air quality dilemma.

I would now like to introduce Vince DeGiulio. Just to give you a little introduction, Vince is a senior computer programmer analyst with tax and finance. He has been employed by New York State for 13 years as a computer specialist. He has been with tax and finance for 10 of the 13 years. And he has been a shop steward with PEF for more than four years. In fact, his involvement in the union was largely caused by his concerns around health and safety. And he is here this morning to read the testimony of Kay Reese, who worked in his area, as I said, on the eighth floor.

Vince?

MR. DiGIULIO: Thank you, Jonathan.

Good morning, ladies and gentlemen. I would like to thank you for your time and allowing us to give some testimony this morning.

After reading Kay's prepared statement, I would like to add a couple of personal comments of my own based on my experience as a health and safety advocate for PEF, Local Division 190 at the New York State Department of Taxation and Finance in Building 8.

Speaking for Kay, "I, Kay Reese, prior to becoming disabled from the poor air quality in my workplace, was employed by the New York State Department of Taxation and Finance for 13 years. I was a project manager on a computer systems modernization project earning in excess of $60,000 annually. I have always been a highly motivated, conscientious, hard working and successful professional.

"Because my children are grown up and on their own and the rest of my family lives out of town, I often would work nights and weekends because I loved my job. It was exciting, challenging, rewarding and gratifying.

"When I wasn't working, I was always active. After work, I would enjoy a drink or dinner with co-workers, lunches, parties, dancing, traveling, shopping, house parties for card or game playing, concerts, gardening, sewing, doing crafts, et cetera." Obviously a very busy woman.

"Between my job and socialization, my life was full and satisfying. In 1990, there appeared to be bug infestation in the New York State operated building in which I worked. There were many complaints from the staff of 'bug bites' on their arms and/or legs. Aggressive pesticide spraying was begun at that time using Dursban, typically an outdoor application pesticide being used indoors.

"Experts from the state health department theorized later on that my co-workers were not being bitten but that their skin was being irritated by fiberglass particles from disintegrating ceiling tiles.

"On October 21, 1991, there were some leaks in the steam heating system in the tax and finance department, Building 8, where I worked. The leaks released DEAE, a steam additive with anti-corrosive properties. Workers in many parts of the building detected odors and immediately experienced acute health problems such as headaches, dizziness, nausea, vomiting, coughing, shortness of breath, burning eyes and throats.

"A mass evacuation of the building ensued. Forty people were taken to local hospitals for emergency treatment while others went to their own physicians. Over the next several months a series of steps were taken to identify and correct problems with the building's air quality. However, complaints of health symptoms persisted and on February 7, 1992, the entire second floor of Building 8 was evacuated in response to worker health complaints.

"Seventy people were sent to local emergency rooms on February 10, 1992 for similar symptoms. Some workers, including myself, noticed a gradual decline of health after the incident. I started to experience light headedness, red and irritated eyes, itchy skin, post-nasal drip and shortness of breath at work. However, about an hour after leaving the building, the symptoms would typically go away and I would feel better until the next day.

"As the days progressed, the symptoms worsened. I started to have chest pains and wheezing, headaches, sinus pain and fatigue. In November of 1991, the symptoms were so severe that I went to my doctor. Upon examination, she was concerned enough to send me to the hospital emergency room for more tests.

"Based on some blood tests that showed a marked decrease of oxygen in my blood, I was admitted to the hospital in November 1991. During the two days of testing, I got better and so did my blood oxygen levels. My condition was diagnosed as an asthma bronchial event.

"December '91, I was out of work for a week. I went back to work, the symptoms returned. They were mild at first but every day at work they became progressively worse. At first, I would recover over the weekends but after a period of time, the symptoms worsened and I didn't recover, even over the weekends.

"January '92 through June '92. An occupational doctor documented that my condition was work-related, that I could not work in the building and that I should be relocated. I was relocated to another building. The symptoms started again and after three weeks, my doctor removed me from work. Again, I was relocated, developed symptoms and was medically released.

"During this period of time, many of my co-workers were experiencing similar problems. Some were allowed to relocate to other work locations. Some were not. Some co-workers were having respiratory problems as I was. Some had neurological, digestive, reproductive or a combination of problems. These people were professional career civil servants who enjoyed their work and were highly dedicated and effective employees.

"Prior to these events, I had mild asthma that usually occurred during bouts of bronchitis. I had virtually no previous allergy problems. Since the development of health problems at my workplace, I have seen many doctors. I still see my primary care physician but have also seen two pulmonologists, three occupational doctors and an allergist.

"I have asthma that has many triggers. The allergist did blood and skin testing. The blood testing indicated hypersensitivity. The skin testing showed severe reactions to chemicals, tree pollens, grasses, weeds, dust mites, cats and dogs. I had allergy shots two times a week for one and a half years and once a week for six months.

"Since the events due to air quality in the workplace, my life has totally changed.

"Work. I have not worked since November 1993. I am currently asking for reinstatement to my job based on the Americans with Disabilities Act. I am requesting reasonable accommodations and have been granted Section 55(b) status by the New York State Department of Civil Service, the status given to a person with a disability.

"Home life. Because of my allergic reactions and chemical sensitivities, I was forced to relocate to a log cabin that borders on a federal park. I have removed carpeting wherever I could. There are ceramic tile floors in the living room and kitchen. I use only baking soda and other natural products to clean. I have nothing in my bedroom but a bed, table, lamp, air conditioner and an air purifier with a HEPA filter. There is also an air purifier with a HEPA filter in my living room. All my sewing and craft items are stored in boxes or bags. I cannot engage in sewing or craft projects unless I wear a mask. I have the window even in the wintertime and use the air purifier.

"When working in the yard or the garden during '92 and '93, I had to wear a mask and long sleeve shirts and long pants.

"My social life. I no longer go out because I have an allergic reaction to perfumes, colognes, candles, cleaning supplies and dry cleaned suits. I took my son out to dinner in October '92 and as a result I was sick the entire next day.

"For the same reason, I can't go to house parties, concerts, traveling, dancing, et cetera. If I should choose to attend one of these functions, I do so knowing that I'll have reactions and will be sick.

"My mother is 86 years old and I have to limit the time I spend with her as she has carpets, chemical cleaners and scents in her up and up to January of this year, she smoked.

"Generally, I have to analyze everything that I want to do and try to determine how bad of a reaction I will have. I have basically become a prisoner in my own home.

"Four of my co-workers have become totally disabled and are receiving Social Security disability benefits. One co-worker has lost her house because of the amount of time she has been out of work and I know of two other co-workers who are in jeopardy of losing their homes. I have five co-workers who are still out of work due to these exposures. There are many employees still working whose health is being adversely impacted daily.

"In summary. I was a productive, healthy member of the workforce and had an active social life. The air I breathed at my workplace has damaged my health and my career. The experience of being an injured worker has drastically lowered my self-esteem and my self-worth. I can only plead for myself and my co-workers that you will pass this standard and protect other workers from poor indoor air quality. Kay Reese."

For the record, I would just like to state in addition to my experience as a computer specialist with New York State and as a PEF shop steward, my background includes 25 plus years of business experience as an entrepreneur, two years of active military service and two years of teaching experience. My point in mentioning all of this is mainly to let you know of my broad background and that my view is not just that of a state worker.

I became involved with PEF mainly because of the indoor air quality crisis experienced in Building 8 by my constituents and myself.

Repeatedly throughout the crisis and ensuing months after the "incident", the employees continued to be exposed to chemicals and pesticides and generally poor indoor air quality within the workplace. With each reported occurrence or a specific report of an exposure, maintenance staff or engineers and/or management personnel would sometimes several hours later appear and go through the motions of "testing the air quality." In most cases, the air quality was pronounced to be acceptable by then OSHA standards.

The rub here is that the standards referred to are for industrial settings, OSHA at that time lacking an indoor air quality standard for indoor office spaces. It was very simply an apples and oranges comparison.

The formal OSHA standards appear to be fine for industrial settings but appear to be failing us at the office level, as experienced by myself and my constituents. A specific example is the spraying of an outdoor pesticide such as Dursban inside an office building to "control" the bug infestation that in fact turned out to be something quite different.

I would just like to say that I was pressed into service at the last minute. Kay was unable to attend. So these are just scratching the surface of my experience during the Building 8 incident. The important note that I would like to mention this morning is that the biggest thing that we had although even the engineers and management and personnel would not deny that there was in fat problems with the air quality in the office building was that there was no applicable standard, indoor office building applicable standard, that we could register against. All the standards that they had to go by were industrial settings. And I think it's imperative that as our economy moves away from the industrial-based economy to a service sector that more and more of our fellow employees will be working in the office environment and it's imperative that we establish a standard so that more people do not have to endure what we've gone through in New York State.

Thank you for your time.

JUDGE VITTONE: Thank you.

MR. ROSEN: And I would also like to point out that the tax and finance department, because it's a revenue generating agency and because there were sensational headlines and evacuations, it got a lot more attention in terms of trying to figure out what was the problem in the building and what could be done to rectify it than typically happens in a state building. And an example, even in Albany, the Office of General Services which is not far down the road, maybe about five or six miles from where Building 8 is located, is the building where Joan Shepard works and Joan is going to tell us about her experience.

MS. SHEPARD: Good morning. My name is Joan Shepard and I have become ill from poor air quality. I worked on the 39th floor of the Corning Tower Building at the Empire State Plaza for the New York State Office of General Services. After 20 years of faithful service to New York State, I can no longer enter my office without suffering severe illness. I was employed as an agency training and development specialist. I was on the Commissioner's Quality Support Team and in the very year that I got sick I had received the Commissioner's Commendation Award.

The severity of my problem was discovered in January 9, 1994. On that day, I took my daughter to see her pediatrician. The alert nurse noticed that my breathing was distressed and insisted that I allow a doctor to examine me. I was diagnosed with possible pneumonia, placed on a nebulizer and ordered to remain at home for one week.

Over a several-week period leading up to this incident, I had experienced laryngitis, hoarseness, wheezing and coughing. During the next month, I visited my primary care physician, Dr. Walsh, on several occasions as well as an ear, nose and throat specialist. The specialist determined that I had suffered from a vocal chord paralysis and recommended that I undergo a surgical procedure if there was no improvement.

On February 17th, I was examined by Dr. Johanning at the Eastern New York Occupational Health Program. At his request I described my symptoms, my work environment and I told him that when I sit at my desk I can feel the air flow on my face. During the prior year, several employees from the floor complained of illness whenever they were at work. On several occasions, emergency medical crews were called to our location. Many were diagnosed with asthma and bronchitis. They were informed by the agency's director of health and safety to keep their desks at least five feet away from the air vents.

One evening when I was working late, I saw men in what I call space suits hold something up to the air vents in the ceiling. I asked them who they were and what they were doing. They replied, "Don't ask."

I did not ask any questions. I believed that if there was a problem my agency would notify the employees.

In January 1994, construction was being done during work hours in the ceiling above my desk. My breathing problems, coughing and hoarseness intensified during this time. I found myself dusting off my desk more frequently.

Dr. Johanning asked me what happened to the employees on the floor above me. I told him I only knew for certain of the outcome of two instances. One employee claimed that she had been examined by a doctor who informed her she had all the symptoms of having been exposed to a toxic chemical. This employee resigned from state service, indicating that her health was more important to her than her job. The other employee was reassigned to the computer center with no improvement to her asthmatic condition. She relocated to the state office building campus where reportedly her condition improved.

Dr. Johanning began his physical exam of me. I told him that my symptoms fluctuate. He found that my right nasal passage was swollen and nearly closed, vital signs were stable, hoarse voice, labored speech and a normal pulmonary function test. He instructed me to monitor the results of my peak flow four times a day. Later the results would show that when I was in the tower I would average 240 and in the computer center I would average 310. For someone my age, the readings should have been 440.

At Dr. Johanning's request, the director of health and safety at OGS measured the humidity in my work area. She reported that the indoor humidity at that time was 13.4 percent. Incidentally, just yesterday, my boss informed me that the relative humidity is at 10 percent in the building.

Dr. Johanning asked her what the story was with the men in the space suits. She replied that they were ding asbestos abatement. The doctor surmised that the cutback of custodial care and construction activities in the ceiling above me led to an increase in the airborne particulate matter in my work area. He concluded that my upper air problem is related to the building indoor air quality problems.

He filled out a workers compensation claim form. Based on all the information, the doctor diagnosed laryngitis, upper airway disease caused or aggravated by unacceptable indoor air quality. He reported that 13.4 percent is markedly below the current ASHRAE recommendations of 30 to 60 percent for relative humidity for indoor air environments. He informed me it is a well established fact that at low air humidity levels the frequency and severity of upper airway problems are increasing.

I mentioned to the doctor that I had bouts of what I called laryngitis for years. Usually it happened in the spring and fall and only lasted from three to seven days. He felt that this current problem was certainly substantially aggravated by the poor indoor air quality in the tower. He felt that if I had not worked there for 20 years I would have only had mild cases of laryngitis, if at all.

The director of health and safety informed Dr. Johanning that the humidification of the indoor air had been stopped in late 1991 due to problems and health concerns of management when the incidents at the tax and finance Building 8 occurred. When I left the doctor's office, I returned to work and informed my boss of the situation. My boss met with the director of human resources and the director of health and safety. Subsequently, I was informed that I should fill out a workers compensation claim. The director of health and safety called the doctor and he informed her that I needed to work in an environment of 55 to 60 percent humidity. I was to be restricted from doing a lot of verbal communication and there should be no carpet in my work area.

On February 17, 1994, I asked the health and safety director if I could bring in a humidifier to work. She replied, "No. If we allow you to do this, we will have to allow others to do it. Lots of humidity causes mold. Many people are allergic to mold and by helping you we will make it worse for others."

I commented that I just wanted to come to work and I was afraid of losing my job. Two days later, my boss called me at home. She informed me that the director of health and safety had conducted humidity tests at several state office building locations. All areas at the state office campus were 17 percent. All areas at the Empire State Plaza complex were 13 percent except for the computer center. There they maintained the humidity at 35 percent. My boss informed me that I could work from home, go out on workers compensation, apply for disability retirement or check with Dr. Johanning to see if he would let me work in the 35 percent humidity.

I checked with the doctor and he said he would compromise with 35 percent but he was going to keep a close eye on me. If I showed any signs of worsening, he would take me out of there.

During this period, my boss informed me that the director of administration wanted to meet with me. The director expressed his concern and told me to let him know if there was anything he could do to help such as changing my title or allowing me to work from home. He commented, "This is really scary stuff. I have been working in this building for about five years. Ever since I started working here, I always lose my voice near spring and in the fall."

In February, I brought my children to a school event at an indoor swimming pool. The pool area was hot and humid. My breathing was effortless, my peak flow measured 400.

On March 9th, at work in the computer center, I experienced neck pain and severe burning in my throat. I was then diagnosed with pharyngitis. Dr. Johanning examined me and replied, "That's it. I'm taking you out of that place." He wrote a letter saying I was seen that day for an emergency visit due to severe pharyngitis and upper airway breathing problems. Medical testing indicated that the environmental conditions, very low relative humidity and air particulate at the tower exacerbated her above condition. She may work from home.

The hoarseness was getting worse and I had ongoing shortness of breath and respiratory problems. With my boss' concurrence, I began working from home.

On March 31st, I was examined by an ear, nose and throat specialist. I did not take the first doctor's recommendation for surgery lightly and wanted a second opinion. Dr. Miller felt surgery would be a mistake. The diagnosis, spasmodic dysphonia. He requested a consultation exam by a neurologist and speech pathologist at Albany Medical Center.

Around this time, I received a phone call from my boss. A determination was made that I could no longer work from my home because the new assistant director of human resources felt that it would be setting a precedent. My last day of work would be April 20th, at which time I would have to begin using my time accruals.

On April 6th I gave my boss and the director of affirmative action a request for reasonable accommodations under the ADA asking that I be allowed to work from my home where I could control the humidity and dust conditions. I did not feel that this request would be setting a precedent because I was aware of at least three OGS management employees who had been allowed to work from home, two while they were on maternity leave and one when she had a broken foot.

I find it ironic that although my condition has been documented to be work related I have not been granted the same benefit.

I was informed by the director of affirmative action that my request was denied because I could not carry out the full duties of my position from home, mainly conducting training classes, and that the three other employees all had return to work dates. I did not know when I could return to my normal work site.

On April 25th, I saw Dr. Johanning. He indicated that I should not return to work due to medical problems with upper airway. Peak flows had improved since I was working at home. I was now averaging 430. Voice and respiration remained a concern.

On April 27th, I received a letter from Commissioner Adams concurring with the denial for reasonable accommodation based on the fact that, "The duties you perform as an agency training and development specialist cannot be fully carried out from your home."

On April 30th, I wrote to the director of affirmative action requesting that my job title be changed to another administrative position which would allow me to carry out full duties from my home and/or carry out full duties from an office should my doctor determine that the indoor air was safe for me to return to work.

In May, I received a letter from the director of affirmative action indicating that they were unable to grant my request because "They are not currently filling positions that meet my criterion."

The last week in July, the director of affirmative action called me at home. She reported that OGS had hired another grade 18 to work full time, that I was not considered because the work location was the tower building.

I was evaluated by a speech pathologist at Albany Medical Center. Speech readings were conducted on a voice computer of various readings and sounds. The finding, spasmodic dysphonia. She gave me literature to read on this condition. She made an appointment for me to begin speech therapy. She gave me a list of guidelines to use for voice conservation. Some were to reduce effects of environment pollutants, one, avoid unhealthy atmospheric conditions, for example, dust; two, keep moisture in the atmosphere, dryness is bad for the vocal cords; and, three, drink water before and during these use of voice.

JUDGE VITTONE: Excuse, Ms. Shepard. I see you have several more pages. Would you like to take a break now?

MS. SHEPARD: Just a drink of water, if that's okay.

JUDGE VITTONE: That's fine. Go ahead.

MS. SHEPARD: I'll just take a drink.

(Pause)

MS. SHEPARD: Thank you.

On May 6th, I saw a speech pathologist. It was raining. She had me do some readings and she replied, "All along you had maintained that the humidity affects your voice. This is certainly is living proof. Look at the weather outdoors and your voice is so much better today than it was just last week when I evaluated you."

On June 1st, I saw a neurologist at Albany Medical Center. He confirmed spasmodic dysphonia and the need to begin bo-tox treatment. He prescribed some anti-convulsion drug.

Spasmodic dysphonia is a rare neurological condition that affects motor control exclusively and the involuntary contraction of muscles that cause twisting and turning movements. It is a voice disorder and is perhaps the most severe of all phoniatric problems. SD is an incurable voice disorder. The two vocal chords press together so tightly that great respiratory effort is required to set them in vibration to produce voice. It appears the onset of SD may be triggered by trauma to the vocal chords. It usually follows an upper respiratory infection which I maintain was caused by the poor air quality which I had been breathing for the past 20 years that I worked at OGS.

At present, there is no cure for SD. There is a treatment that temporarily helps the patient. In my case, I receive eight injections of a lethal food poisoning, botulin toxin, through the throat. Botulin toxin is one of nature's most powerful poisons and the amount equivalent to the ink in a period at the end of a sentence could if ingested kill at least 30 people. It stops nerve impulses from reaching muscles by blocking the neurotransmitter acetylcholine. By injecting the toxin into the affected muscles, the neurologist can stop the inappropriate messages that tell the muscles to overcontract. The treatment must be repeated every three to four months for the remaining life of the patient. The toxin is so potent that when it is given, nurses are not even allowed in the room. It takes five neurologists to carry out the procedure on one patient.

In December 1994, my neurologist diagnosed me with retrocolis which causes an inability to hold one's head up straight. My head turns back at a 30 degree angle unless I am treated. Treatment involves injecting 10 needles of bo-tox into the base of my head. The bo-tox paralyzes certain nerves and muscles which allows me to hold my head correctly. The treatment must be repeated every three months for the rest of my life. It is so traumatic that the doctor told me to breathe like I was delivering a baby to get through it. My neurologist informed me that this condition is directly related to vocal chord dysphonia.

I don't find it coincidental that a co-worker encountered laryngitis in November the same time that I was experiencing a bout of laryngitis. He has worked for OGS for 18 years and has been diagnosed with this rare neurological condition. He also must receive injections of bo-tox.

In August, an industrial hygienist who works for OGS approached him and asked him if he would like to be relocated to the computer center. I question why OGS would want to move him if they weren't admitting there was an air problem.

Various employees have told me that over the last several months when they leave the 39th floor at the end of the day they have hoarse voices and burning eyes. I have just recently learned that there are now a total of four people in my building who have now been diagnosed with SD.

This past summer, at a recent all employees meeting an employee stood up in front of thousands of workers and asked, "Commissioner, as you aware recently a young woman lost her voice and her doctor attributes it to working here where the air quality is bad. What is being done about the poor air quality in the tower?"

Commissioner Adams answered, "When this complex was originally built, the tower was never intended to hold the thousands of tenants it currently houses. People are constantly asking for walls to be erected which we have done over the years. It was meant to be open space areas. Yes, there are problems but it is something we all have to learn to live with."

During June and July, I visited Dr. Johanning on several occasions. My shortness of breath, cough and nasal congestion had improved but my phonation problem remained. I was diagnosed with spastic vocal chords, laryngitis, upper airway irritation and inflammatory reaction secondary to unhealthy indoor air quality conditions in the tower.

He reported I am totally disabled and it is permanent. He also reported that the responsible parties at the tower are not intending to humidify the air and urged me to avoid this environment when the humidity indoors is below 30 percent. He feels I may qualify for reasonable accommodations under the Americans with Disabilities Act.

He has seen two other patients from the tower. Based on what he has learned from examining these patients and information he has received as a result of further testing of the tower, in his opinion it would be dangerous for my health for me to return to the Empire State Plaza. He feels applying for Social Security disability is a wise thing for me to do.

Dr. Johanning has told me that I am permanently and totally disabled. I have applied for Social Security disability twice and was denied. Their answer was because I could stand on my feet and lift up to 20 pounds. I called unemployment insurance and told I would not be considered for that. In order to be considered for unemployment insurance, you have to be capable of working. Unemployment is saying your doctor says you cannot work, Social Security and unemployment are totally contradicting each other.

The lawyer I have hired for my workers compensation case has told me that it will take from two to three years before my case is settled.

My illness is a great financial burden to my family. Because my workers compensation case is being converted, I have used up all my vacation and sick leave benefits as of August 1994. My co-workers donated 36 days of their time off to me and when that ran out, I went out on sick leave half-pay. If I am not accommodated by October 1995, I will lose my health benefits and be terminated.

My union is working to get the agency to provide accommodations for me but the agency is resisting wholeheartedly. All I want to do is go back to work and lead a normal, productive life once again.

It seems clear to me that employers such as mine should be required to maintain their buildings and their heating, ventilation and air conditioning systems. If OSHA's indoor air quality standard was in place, I believe my illness and disability would have been prevented. Please act now.

Thank you.

JUDGE VITTONE: Does that complete it, Mr. Rosen?

MR. ROSEN: Yes.

JUDGE VITTONE: Okay. We're going to take a 10-minute recess.

JUDGE VITTONE: Back on the record, please.

Before we get started with the questioning, let me identify the exhibits that I've been handed.

Mr. Rosen's statement will be identified as Exhibit 210.

(The document referred to was marked for identification as Exhibit 210 and was received in evidence.)

JUDGE VITTONE: Ms. Reese's statement as read this morning will be identified as Exhibit 211.

(The document referred to was marked for identification as Exhibit 211 and was received in evidence.)

JUDGE VITTONE: And Ms. Shepard's statement will be identified as Exhibit 212.

(The document referred to was marked for identification as Exhibit 212 and was received in evidence.)

JUDGE VITTONE: And I have a stack of papers handed to me by Mr. Rosen. It's a little over an inch thick. And it's various documents of different kinds, letters, doctors' prescriptions, government forms, from the New York State Workers Compensation Board, handwritten notes, analysis, interviews. These are all employees who, as I recall from what you said, submitted this to you when you informed them that you were going to be testifying here in on indoor air quality.

MR. ROSEN: When we informed them, we got so many phone calls so what we started doing was we said if you have any documentation that you want to submit that shows that there are ill health effects from indoor air quality, please share them with us. And I think you could categorize the documentation as individual letters describing their incidents. There's environmental reports. There's worker compensation documentation and there's medical documentation.

JUDGE VITTONE: Okay. That will be identified as Exhibit 213 for the record.

(The document referred to was marked for identification as Exhibit 213 and was received in evidence.)

JUDGE VITTONE: Okay. Ms. Kaplan?

MS. KAPLAN: Mr. Rosen, of your 57,000 members, what labor categories do those represent?

MR. ROSEN: What labor -- I don't know. These are professional, scientific and technical.

MS. KAPLAN: Okay. Could you give a breakdown by -- any further breakdown by professional groups?

MR. ROSEN: Sure. We represent about 15,000 health care workers, including physicians, dentists, psychologists. We represent about 9000 registered nurses and they're working in correctional facilities, mental health facilities, state hospitals. So that's probably the largest single occupational grouping.

We also represent people in all the different social service agencies, the labor department, working in professional positions.

MS. KAPLAN: Do you have teachers?

MR. ROSEN: Teachers. A lot of teachers. In the prisons, in the mental health system. All the agencies have training and staff development specialists. All the computer people are PEF members. There's literally almost -- I think 3000 job titles.

MS. KAPLAN: Okay. You mentioned in your notice of intent to appear that union surveys and a database of technical requests indicate that IAQ problems are the biggest health and safety complaint you receive. You keep a database of -- these are technical requests for your assistance?

MR. ROSEN: Right. The office that I administrate, one of our functions is to provide information to our leaders and we actually have in our union contract joint health and safety committees which there is 130 of them throughout the state, 30 are at the agency level and 100 at the work site level. So one of the functions the office plays is to provide information so if people call up with an indoor air quality problem, we'll send them information about what they can do about it, both on an individual level as well as on a facility-wide level.

MS. KAPLAN: And the surveys that you referred to, are those surveys you send out to try to pin down what the problem might be?

MR. ROSEN: Right. Over the years, the union's conducted a number of formal and informal surveys. In fact, back in the early '80s, Jean McGrain, who I think is both a certified industrial hygienist and an esquire was hired by the union to survey the health and safety needs of PEF members and indoor air quality was on that was identified back then as an issue. And to a large degree the union's contract language and program were predicated on the analysis that she conducted.

MS. KAPLAN: How many complaint or requests for information do you receive annually?

MR. ROSEN: Well, in our database last year, we had approximately 750 technical requests where we actually either sent out information or answered questions on the phone. And we also do training and we've conducted a lot of training on indoor air quality either to joint health and safety committees or union groups.

MS. KAPLAN: What generally are the major complaints you receive?

MR. ROSEN: The major complaints that we receive are the typical tight building syndrome kind of complaints. The air is stuffy, itchy eyes, headaches, scratchy throat, and when I leave my office and go into the outdoors, it goes away. That's the typical type of problem. And we also sometimes get involved in actually inspecting the buildings or reviewing consultants' reports and often we're seeing ventilation systems that are dysfunctional or poorly maintained. We've seen in the early '80s like in Building 8 they've cut back on airflow. Things like that.

Poor maintenance is a major issue because of the layoffs and cutback of maintenance staff. A major source of the complaints is also relating to renovation of offices. A couple of instances, there was a roof repair going on on a promenade deck, this was also in the Empire State Plaza but it wasn't Office of General Services, it was the state health department. And the roofing materials contained some pretty heavy solvents, I think it was toluene and xylene and about 21 workers had to be rushed to the hospital from the health department, including a couple of pregnant women, because the fumes from the solvents were entering into the fresh air intake into the building. And the steps that were taken by the health department after the incident are the exact kind of things that are being recommended in the OSHA standard.

Another example was there was an incident at another health department location where carbon monoxide was released from the boiler and it caused a large number of people to pass out. It was a four-story building in this case. And after the incident, they put in some engineering controls to monitor the carbon monoxide in case another leak occurred and to make sure that it didn't happen again.

So renovations are a major, major problem. Painting. One of our health and safety committee chairs called and asked for some technical information. He heard that they were going to be painting on his floor of the building, what should he do. We advised him to call the safety and health director from the agency and request that they do it in the off hours, in the evening; that they provide 100 percent fresh air, if that's possible; and seal off areas so that the fumes from the paint wouldn't intrude to any other areas.

He couldn't get cooperation from the management at the work site because they were not aware of the need for this type of protective activity. He did get a hold of the agency's health and safety director and she arranged for that to be done. So that's a success story. And, again, it's the kind of thing that I think the OSHA standard would put into place.

The last category I would say is this problem with the pesticides. New York in its buildings was routinely spraying pesticides sometimes as often as once a week. And we're now going to integrated pest management so that should be eliminating the problem associated with these pesticides.

MS. KAPLAN: Have there been any cases of Legionella?

MR. ROSEN: There was a situation in one of the prisons where Legionella was being expressed from a showerhead. I think that impacted on the inmates in this case. And there was a situation in a psychiatric hospital that was investigated. I don't remember if they definitively concluded that there was more than one case or that it was considered an outbreak.

MS. KAPLAN: Have there been any cases of TB?

MR. ROSEN: TB in New York State is a major, major problem. I can tell you in the prison system it's a particular problem because there were 116 cases of active TB disease in 1991 and we had a drug resistant strain of TB that caused the death of 18 inmates and one corrections officer. The corrections officer was assigned to guard inmates at the Health Science Center in Syracuse and the corrections officer's immune system was compromised because he was undergoing chemotherapy at the time and he died from this strain of TB.

Subsequently, just recently, another corrections officer at Green Correctional Facility developed -- it looks like the same strain of TB. That hasn't been proven definitively but it was resistent not to seven but I think to nine TB medications. And the tragic thing in his situation is that he also infected his children at home and this officer, Eric Dickerson, and his small child, less than a year old, had to be flown to the Denver Respiratory Hospital to have treatment and I believe a piece of his lung removed.

We also had a nurse up at the SUNY hospital who became actively diseased from the earlier exposure I was talking about, the corrections officer, Mike Petrocino, who died and she also had to go to Denver and have a piece of her lung removed. The situation in corrections is there is a group of facilities that were built in '80s, about 10 or 13 facilities, and they were all built with ventilation less than the ASHRAE 62-89 standard, which in the areas where the classrooms are, as we represent the teachers in the prisons, there's no mechanical ventilation and we have had the public employee OSHA go in there and measure as high as 3000 and 3500 parts per million of carbon dioxide in those classrooms. And the point is you don't want a TB contagious inmate to be in that classroom to begin with but when you consider that TB is much higher in the correctional system, when you consider that HIV infection among prisoners is about 15 percent, according to blind studies done by the health department every year, and that the relationship is that if you have HIV, you might not see the TB, it could be masked by other conditions and the immune system can mask the response to the TB skin test because the TB skin test works based on your immune system responding. So if you have HIV and that's not known, there is a potential for you to be out in that prison population and not to be detected, although the union and the prison management and the health department have been working very hard to improve that.

I do see a strong relationship between the need for this indoor air quality standard and this infectious disease problem.

The last example, if you'll indulge me, is in parole. As the prisoners that are released go to parole, we instituted a skin testing program and a training program that was actually developed by the union on TB for the parole officers and we now have three years of skin testing results and we've found in New York City in one of the offices very scary looking results in terms of new conversions of parole officers on their skin tests. And when an environmental audit was done of that office, the HVAC system was dysfunctional and it appeared that there may be a relationship there. Subsequently the state health department has recommended that they either renovate the HVAC system so that it's functioning properly or move to a different location. That's a leased space in this case.

MS. KAPLAN: Are there many cases of occupational asthma among your members?

MR. ROSEN: Yes. I can remember getting a call again in a correctional facility from a worker who was running a vocational shop and I don't know if the diagnosis was specifically occupational asthma but I believe that this individual developed a condition related to exposure to the wood dust and there was a problem of no -- the ventilation system for the equipment wasn't working properly.

And we've also had a number of cases where people have become ill due to exposure to cleaning products, floor strippers and things like that. And because of the lack of consciousness on the part of people, especially in a prison environment, sometimes these people are not believed, even if they're being seen by an occupational physician that's saying that there's a relationship between the chemical product and their illness.

MS. KAPLAN: Is there any possibility that either your database of employee requests or the survey you referred to could be made available to OSHA?

MR. ROSEN: Definitely.

MS. KAPLAN: You also made reference to the IAQ problems being experienced by your members causing decreased productivity and increased absenteeism and health care costs. Do you have -- is this just anecdotal data you have or do you have any sort of more formal data on that?

MR. ROSEN: We haven't done any analysis. Yes, it's anecdotal at this point.

MS. KAPLAN: Okay.

MR. ROSEN: I mean, 700 worker compensation claims in and of itself at the Building 8 situation and then you consider the mass evacuations and the impacts on people like Joan and Kay Reese. And look at the fact that they're long-term employees. Anyone who has been working for greater than 10 years I think can imagine what you invest in terms of developing somebody's capacity in a work organization.

MS. KAPLAN: I think you mentioned budget cutbacks and those having an effect also. Have those specifically affected operation and maintenance budgets of the facilities your members work in?

MR. ROSEN: Definitely. In the case of Building 8, the maintenance staff before the events, before the layoffs, was something like 55 or 60 and then it was cut back to less than 22 or 23. I don't remember the figure. These figures came out in meetings of a task force which included the commissioner from OGS, the commissioner from the department of labor, it included all the employee unions, the health department. So at the time there was a good effort at bringing in all the players that were involved in this thing and it was brought out that, yes, there was this major cutback because of the layoffs in the cleaning staff.

Now, tax was able to restore, I think, 22 or 23 positions out of their own budget but the situation there is tax is a revenue generating agency, so the other agencies that don't generate any revenue don't have the ability to fund those positions that were eliminated. So overall, it's real dilemma and I don't know if our new Republican governor is going to increase the maintenance staff, if that's part of his plan.

MS. KAPLAN: Well, do you have any idea whether the budget cutbacks have specifically affected maintenance of HVAC systems? Or would you say that's subsumed by what you were just mentioning?

MR. ROSEN: Overall, what we're seeing in the state operated buildings, there's a little bit greater consciousness because of what happened at Building 8 and because of what the union's been promoting. But a lot of the state work sites are leased buildings and the landlords in some cases really don't know what's going on in terms of their HVAC. And so we're seeing some nightmare type situations where there is really neglect and no operations and maintenance program at all and then we're seeing other situations where there is a real genuine attempt to comply with the EPA NIOSH guidelines.

MS. KAPLAN: So would you say as far as operation and maintenance of HVAC systems where your members are working -- well, can you make any generalizations as far as whether routine preventative maintenance is done on a regular basis?

MR. ROSEN: In the state operated buildings, it generally is although it's done with short staff so it might not be done as frequently as it should be. So in terms of them being able to keep up with what's planned, that isn't always the case. In the leased buildings, it really varies and I would say in both cases there usually isn't a written operations and maintenance program, so a lot of it depends on the individual in charge and how well educated they are and how dedicated they are to keeping up with it and how much staff they have to maintain it. I've seen in buildings that I've visited good situations, excellent situations, but I've seen more often than not problems, you know, generally with maintenance. Everything from the worst situation, I went to one of the prisons and their HVAC system was dysfunctional. It just didn't function at all. It stopped working and they didn't do anything about it. And I've been to a new building where they had carbon dioxide monitors on right built into the airflow system and the engineer that walked around with us was real knowledgeable and so that was a newly built wing in a mental health facility.

MS. KAPLAN: So would you say that the people in charge of HVAC maintenance range from very competent to very incompetent?

MR. ROSEN: Right. And the competent ones, if this standard was in place, I think it would cause them to kind of get more organized in terms of having the documents in place, having a written program. In the case of the Binghamton State Office Building which recently reopened after being shut down for 10 years, the union demanded that they put in place a written operations and maintenance program. And it wasn't that complicated to do. The Office of General Services has the talent to do that kind of a thing. But the factors that caused them to do it in Binghamton was that this was under intense scrutiny because the building had been shut down for, you know, 12, 13 years due to a fire that released PCBs and dioxins and they had spent $40 million cleaning it up. Without a standard, there is no factor like that that's going to cause the state to implement written programs that are really going to get this to where it needs to be.

MS. KAPLAN: Do your members' employers generally have a system in place to log and investigate employee IAQ complaints?

MR. ROSEN: Usually after there's a big problem and people go to the hospital and consultants come in they put in a complaint system but not usually until after there's been a serious problem.

MS. KAPLAN: And until a serious problem arises, how is it handled?

MR. ROSEN: Well, how was it handled in Building 8 before?

MR. DiGIULIO: There was none.

MR. ROSEN: There was actually an employee health nurse, was she there before this happened or she was taken out?

MR. DiGIULIO: She was there because of the size of the building, the number of employees. We had a nurse on site. But as far as any type of endeavor to identify problem areas beforehand or HVAC problem areas or situations, no. Nothing.

MS. KAPLAN: So if an employee has an IAQ-related complaint, what would his or her recourse be?

MR. DiGIULIO: Prior to the catastrophic incident that we had, virtually nothing.

MS. KAPLAN: There was no one in particular to address a complaint to and if they did address a complaint there was no guarantee it would be looked into?

MR. DiGIULIO: Oh, absolutely correct. Yes. Their best bet would be when all else failed to go to the union representative which was basically how I got involved in this whole business, was that problems got to such a crescendo that who's handling this, what's going on, and no one was addressing the issues. So I made it my point to bring those issues to management.

MS. KAPLAN: You mentioned many of your members having problems with pesticides. What would you say the cause of the problem was? Were they being applied incorrectly or without sufficient ventilation, et cetera?

MR. ROSEN: I'd say both of those situations have been a problem. There's been situations where things weren't diluted like they were supposed to be. There have been situations where they were applied during working hours in a fairly confined space. That kind of a thing.

MR. ROSEN: All of the above.

MS. KAPLAN: Does New York State have an indoor air quality law?

MR. ROSEN: We've been very active in trying to get one. Senator Godfried and Tully have both proposed indoor air quality standards but neither of them have been acted on. Over the four years that I've been doing this in New York State I've seen every year an attempt within the legislature to address this and there have been hearings, I think in 1991 or '92 there were hearings, but nothing has been acted upon.

MS. KAPLAN: So are there any state smoking restrictions?

MR. ROSEN: Yes, there is a clean indoor air act which restricts smoking in the workplace and smoking in public places. And, as I stated earlier, our union contract talks about moving towards a smoke-free environment. So generally in our workplaces it's a collective bargaining issue. You have to negotiate with the union the smoking agreement. But there's guidelines that were developed by the union and by the state which are really moving people towards a smoke-free environment. Because what we've found is even -- you know, in the '90s, the early '90s, they were allowing people to smoke in their own office but the problem with that is that the smoke would go under the door, depending on the airflow and intrude into other people's areas and for the most part the state work sites are going to a smoke-free environment, ever since the EPA published its report on environmental tobacco smoke causing 3000 excess deaths a year. And we really haven't had so much of a problem with this issue. We'll get calls and we'll send people the guidelines. We'll point out the contract language and we'll encourage them to sit down with management and negotiate a policy that will hopefully protect the health of the people in the building and also protect the rights of the smokers, because we represent both the smokers and the non-smokers alike. And I think people are generally accepting of what's developing, which usually is usually smoke-free or they'll develop a smoking room that has an exhaust system to remove the contaminant. But most of the complaints that we hear about on air quality are not smoking. They're really two separate types of categories. There are problems with outdoor air a lot of the time and these other types of issues that we've been discussing.

MS. KAPLAN: Well, do you think OSHA's smoking restrictions could be helpful to employees who are being bothered by secondhand smoke who maybe aren't in a union, who don't have that collective bargaining option or who are in a state without smoking restrictions?

MR. ROSEN: Well, I think at this point, from our experience with indoor air quality, that we should probably put smoking on the back burner because I really think that the groups that you're describing usually don't get a lot of protection from OSHA anyway because if you're a non-union worker and you call in OSHA, you're usually going to get fired and it's very hard to pursue a discrimination complaint if you don't have an advocate. So I don't see that -- I mean, that's a bigger issue which is non-union workers generally are not afforded the same level of protection that unionized workers are.

MS. KAPLAN: You also mentioned members having problems with carpeting. When the Carpet and Rug Institute testified here, they said rugs and carpets are not chemical sources and do not act as sinks, i.e., absorbing other pollutants. Would you agree with that?

MR. ROSEN: I mean, I've read some of this literature also and I guess they're trying to detox the carpeting to the degree possible but we have had complaints where the adhesives used to put down new carpeting were causing complaints. And, generally, I think with the cutback in maintenance, if you have a carpet that's going to collect dust and whatever other matter is in the environment, that can be problematic because if you're not cleaning it frequently it can serve as a way of absorbing all the contaminants in the work space. So it might not necessarily be the carpet that's releasing the chemicals but it can serve as kind of a sponge for all the other contaminants in a space. I think the recommendation that tile is better is probably reasonable. Of course, everybody likes carpet because it looks better.

MS. KAPLAN: I just have a couple of questions for Ms. Shepard.

It sounds like during the asbestos abatement and other projects that were going on while you were at your desk there were no steps being taken to protect you from exposure. Is that correct?

MS. SHEPARD: Correct. When Dr. Johanning, the occupational doctor, questioned our health and safety director about what was going on, she said to him all employees were informed that asbestos abatement was going to be going on and that was the first I had ever heard of it. No one. And I asked my co-workers, no one had been advised.

MS. KAPLAN: Do you have any idea why you weren't removed while that was going on? Or why there was no control by the contractor of the particulate matter?

MS. SHEPARD: All I know is when I was working late one night, they had records that I was going to be working that night, I don't know if the director of health and safety wasn't informed, but I worked on the 39th floor and I was the only person there. Whether it was an oversight on their part, I don't know.

MS. KAPLAN: You had mentioned overcrowding was part of the problem in your building. Do you have any idea what occupant density the building was originally designed for?

MS. SHEPARD: No.

MS. KAPLAN: Just that it was designed for far fewer people than were currently working there?

MS. SHEPARD: Correct. I can say in our area which was maybe a third of the size of this platform there would be seven of us and our desks had to butt up against each other so that we could all fit in one spot.

MS. KAPLAN: Mr. Rosen, I just have a few questions about some of the cases mentioned in the materials you submitted. I don't know if you know all the specifics about these cases. I'll ask a few questions and I guess we'll see.

There is one letter in here from a Timothy Leonard of the Office of General Services to someone with the Minscoth Companies regarding a White Plains building.

MR. ROSEN: Timothy Leonard is from the Bureau of Leases in the Office of General Services, so he's involved in dealing with both the landlords as well as the agencies' leasing representatives.

MS. KAPLAN: Okay. This letter documented some of the problems with a building and what sorts of repairs needed to be undertaken and said he had been given permission to reduce the rent by 25 percent and said that they would move if the problems weren't taken care of.

MR. ROSEN: There were actually two of our members who worked for the -- VESED, it's called. It's within the state education department. And they work -- it used to be OVR, Office of Vocational Rehabilitation. And VESED is -- oh, boy. Well, let's just say it used to be OVR. And they were involved in helping people who are either injured on the job or have a disability to get a vocation, so they did a lot of counseling and what happened in that site is there were problems in the building which I believe some of it related to lack of outdoor air but there was also a problem with mold. And he was seen by -- one of the patients was seen by an occupational physician who diagnosed this as work-related.

MS. KAPLAN: Well, I was wondering what the outcome of that case was, whether the landlord ever undertook the repairs that were requested or whether the agency eventually moved.

MR. ROSEN: They moved.

MS. KAPLAN: There were also some materials about Maureen McQue?

MR. ROSEN: She's one of the two.

MS. KAPLAN: Oh, okay.

MR. ROSEN: I believe.

MS. KAPLAN: She reported mold on the ceiling tiles and flooding from leaking roof drains.

MR. ROSEN: Right.

MS. KAPLAN: Do you know what the water source was in this case?

MR. ROSEN: I believe it had to do with a leak in the roof, if my memory serves me.

MS. KAPLAN: And was it ever determined what the problem was with the HVAC system?

MR. ROSEN: There was a number of problems. I haven't looked at those reports in a while, so I don't remember what they were but I remember there was -- I think there was an issue of fumes possibly coming from the parking lot as well as certain components of the HVAC system that were either blocked or not functioning, things like that. As well as the water problem which was generating mold and one of the things that was interesting is the agency in this case that was dealing with the landlord, the state education department, we had done a training on indoor air quality for two days about six months earlier so the management people from the agency were trying to be cooperative and supportive and they actually got the landlord to get an environmental report done and the environmental report indicated total colony forming units. It didn't analyze what the particular bioaerosols were and the occupational physician said I want to know what those bioaerosols are because I really can't do anything for my patient if I don't know what I'm dealing with. And I think eventually it came out that some of the bioaerosols were those that are known to have human health effects.

MS. KAPLAN: It also turned out that the fresh air intakes on the roof tops, the roof top units were closed. Do you know whether this problem was discovered using CO2 measurements or by visual inspection?

MR. ROSEN: I think it was by visual inspection.

MS. KAPLAN: The report also mentioned that water and debris were found in a subgrade area way and served to the fresh air intake. Was there any association between this condition and the fungus contamination in the building?

MR. ROSEN: I don't know. I don't know.

MS. KAPLAN: Okay. There was something about Linda Cusawa at the Mental Retardation and Development Disability Center Office in Albany. IAQ investigations found contaminant levels below OSHA PELs yet the problems didn't go away. Can you say anything about the value of OSHA PELs in this kind of situation?

MR. ROSEN: Yes. I can say a couple of things. They're really not valuable at all because the industry standards are not designed for the low level of chemical contamination that causes health effects in office buildings and when we call for the public sector OSHA program to come in because of an indoor air quality problem, 99 percent of the time they can't issue any orders. Now, if we have an inspector that's knowledgeable and dedicated, they'll really look at the system and maybe document some problems. Like if they see that the roof top air vent is shut off, they'll document it in their report. But they won't be able to say that you're violating an OSHA standard and you have to fix it. All they can do is say based on ASHRAE recommendations we recommend you fix it but the complaint is not sustained. Our members don't understand why this is occurring. And if you look at the number of indoor air quality complaints that the state OSHA program gets, I really think that the fact that you don't have such a standard is almost a waste of resources because they get a lot of indoor air quality complaints that they can't do anything -- the inspectors can't do anything about. They're our members, too, the inspectors, and it's frustrating for them because they go in and they see these problems and they can't order the employer to fix it.

MS. KAPLAN: There was an investigation by C.T. Mail Associates of that building that found fully closed and inoperative outside air dampers, air mixing plenums filled with debris and cleaning supplies in plugged condensate drain pans. Do you often find these kinds of deficiencies of buildings?

MR. ROSEN: All the time.

MS. KAPLAN: And have you been successful in getting building management to remedy these problems?

MR. ROSEN: It's a real struggle. There's a lot of variables. If we have a good relationship with management and we're able to educate them, but usually it takes months because we'll go into a situation and we have to train management people and the labor people to understand what the problem is. Everybody wants testing right away, you know? So they're not necessarily looking at the kinds of things that you pointed out. The common sense things that can have an impact. You know, our feeling is that if a standard is in place this will really get people to get the kind of training that really can lead to the kind of results that you're referring to.

MS. KAPLAN: There was an investigation at the Washington Correctional Facility that showed CO2 levels between 1000 and 2500 ppm and these implicated a deficient outside air ventilation system. Do you think CO2 can be a good indicator of ventilation deficiencies?

MR. ROSEN: Definitely. I think if you have a number of occupants in the space that you're evaluating, it can be a very good surrogate because, as you know, when people breathe they exhale CO2. So if you're dealing with a space that has low occupant density, I think maybe we need to look at different ways of evaluating the space. But a situation like that, like a classroom in a prison where you have 15, 20 prisoners in a classroom, I think it's definitely a good way of seeing if you're moving the air or not.

MS. KAPLAN: There was an investigation of University Place in Albany which found high carbon monoxide from a blocked flue. This hazard has been reported in the media recently because of a number of unnecessary deaths caused by products of combustion from unvented heaters and faulty flues. Do you feel OSHA should address this issue directly or treat it as any other contaminant?

MR. ROSEN: Well, I think definitely the lethal consequences of a boiler leaking carbon monoxide made it a very serious hazard and I think OSHA should address it directly if that potential exists. I mean, I'm really speaking from the cuff here. I haven't really evaluated this question but I would think that based on our experience in the health department where we had -- you know, we had industrial hygienists going on around with vapor tubes trying to figure out what was going on which in most buildings you wouldn't have that resource available. And what I've seen in the papers recently about deaths from carbon monoxide poisoning, I would think it should be addressed, if not within the context of this standard as a separate initiative.

MS. JANES: Hello. I am Deborah Janes. I just have a couple of questions just to clarify some of the issues that you raised in your testimony.

Do you have any estimates of health care costs for the two people who testified with you that they have spent between -- health care costs not only going to the doctor but also lost work time and all of the relevant information?

MR. ROSEN: We haven't put together any formal analysis.

Do you have any idea?

MS. SHEPARD: I know each time I get a bo-tox injection which is every three to four months for the rest of my life it's $2000 per injection.

MS. JANES: Do you think that's something that the union could work on? For instance, with the 700 people that were affected in the one building, is there any way, do you think, that is reasonable to estimate what their health care expenditures may have been?

MR. ROSEN: If we can get access to the actual workers comp costs, I mean, that would be the ideal situation. I can tell you that the people that have been affected extremely like Joan and Kay, they're looking at possibly being terminated from their jobs because after a year, regardless of whether your injury is work-related or not, the state civil service law allows the employer to terminate you and people lose their health benefits. We've got several members who have lost their homes that were professional employees working for the tax department in this incident. So I imagine if you looked at their health care costs and the impact on their quality of life, it's extreme.

A lot of the 700, it's less so, but the human costs in terms of the disruption to the operation and the effect on quality. You can go as high as three, four, five times the actual workers comp cost to estimate that.

We could certainly pursue it and see if there's a way for us in that particular case come up with the actual workers compensation costs. The one caveat is that a lot of these worker comp claims are still being controverted and estimates -- you know, it might take years before those cases get resolved. So, again, there would be limitations on even the actual worker comp cost data.

MS. JANES: Okay. New York State, has the state ever settled indoor air quality related claims?

MR. ROSEN: Settled?

MS. JANES: You know, actually granted --

MR. ROSEN: Oh, yes. Definitely. Definitely.

MS. JANES: Do you have any information that you could provide to OSHA on that?

MR. ROSEN: Actually, I think at least one of the situations in the documentation I submitted here and the documentation we submitted earlier there was I think several worker comp related claims. I was looking at the documentation again this morning and there was definitely a case where the employee was from the department of labor, was compensated for his air quality related exposures. In this case, there was construction work going on in his office and he was sensitive to the chemicals and was put on workers compensation two or three times, two or three different incidents, over the course of several years.

MS. JANES: In respect to the PELs, just for clarification purposes, would you agree that in industrial settings, personal protective equipment and engineering controls are in place to protect industrial workers but that HVAC systems in non-industrial buildings, in office buildings, are there primarily to control bioeffluents such as carbon dioxide and odors, not really to control contaminants such as microbial or chemical sources?

MR. ROSEN: When I took the course, they told me the purpose of the ventilation system was to control temperature, humidity, odors. Yes. I agree.

MS. JANES: And therefore they wouldn't be -- is it your opinion that the HVAC systems in buildings are not really designed to accommodate, if you will, or address those kinds of hazards?

MR. ROSEN: Yes, I agree with that.

MS. JANES: You represent state workers. Do you see similar situations occurring in the private sector?

MR. ROSEN: Definitely. I mean, my colleagues in the private sector unions are involved in this issue. I don't think there's any group of occupations that aren't touched in one way or another. In some ways, I think we're better off than the private sector because at least our members all have a similar employer and we can negotiate on a statewide basis and we've been able to amass some resources within the union to support people. And in the private sector, they often don't have that type of situation.

MS. JANES: Okay. Thank you.

JUDGE VITTONE: Does anybody else have any questions?

Mr. Gross, Ms. Alexander. Mr. Gross first and then Ms. Alexander.

How long are you going to be, Mr. Gross?

MR. GROSS: I'll be brief, Your Honor.

Thank you, Your Honor.

Members of the panel, my name is Richard Gross. I represent the National Energy Management Institute and the Sheet Metal Workers International Association.

In your testimony this morning, you've described some specific catastrophic situations like the one in Building 8 and the effects on people like Ms. Shepard and Ms. Reese. I wonder if you have any impression of the prevalence of indoor air quality problems that are not quite so severe, and by that I mean problems that cause illness and maybe doctors visits but still allow people to work but at reduced efficiency and productivity. Is there any way to determine whether that in fact occurs and what its prevalence is?

MR. ROSEN: I can say what I've seen from studies is 20 to 30 percent of building occupants experience problems and I think that's consistent with our experience in New York State. Generally, when we get calls from our representatives or from members who are having indoor air quality types of problems, we send them information, we send them stuff from NIOSH, EPA. We do workshops at our conferences. We offer to provide workshops. But there's nothing to require that the employer comply with any of these guidelines and in this environment of fiscal cutbacks, it's real difficult to get the employer to respond to these types of requests.

MR. GROSS: When you refer to a 30 percent incidence in studies you've seen, are you talking about general literature on the subject?

MR. ROSEN: Yes. The indoor air quality research database.

MR. GROSS: And you're saying your experience, although you don't have specific studies, conform essentially to that estimate?

MR. ROSEN: Yes.

MR. GROSS: Okay. Thank you.

Do you notice whether the incidence of poor indoor air quality problems is related to any particular type of building or any type of building system?

MR. ROSEN: That's interesting. Definitely the buildings that were constructed in the 1980s at the lower ASHRAE standard that have mechanical ventilation systems that are centralized are a problem. We've seen buildings with variable air volume systems as particularly problematic.

MR. GROSS: Why is that?

MR. ROSEN: Well, because the air flow is cut off unless there is a specific demand for cooling or heating. And so that's really created some situations where people aren't getting enough outdoor air. So we've seen particular problems there. We've seen buildings that have been renovated having a lot of problems because the renovations either incorporated the types of systems that are causing indoor air quality problems or the ventilation systems weren't considered at all. So you might see that the exhaust is on one side of the partition and the supply is on the other. And you've circumvented the ventilation system and created a problem. We see that all the time because the state is always moving space, there's always reorganizations and they're always moving space around and that kind of thing.

MR. GROSS: Is that a consequence of the building owner or manager not taking cognizance of the original intent of the design, of the building and the specifications of the HVAC system?

MR. ROSEN: Absolutely.

MR. GROSS: Could that issue be addressed in any way by the OSHA regulation?

MR. ROSEN: Yes. I think routinely whenever there's a plan to redesign space there should be a consideration of what the existing system is capable of and how you're going to accommodate the redesigned space so that you will be able to provide appropriate ventilation.

MR. GROSS: I notice in your testimony in responses to a couple of the questions and in some of the other material you've provided earlier that you've listed as the primary causes of indoor air quality problems the HVAC system, failures in bringing in adequate fresh air, failures in filtration, humidity and poor maintenance. With the exception of perhaps the pesticides and the renovation activities that you mentioned, would you agree that the proper design and operation and maintenance of the HVAC system is really the primary preventive mechanism for assuring good indoor air quality?

MR. ROSEN: I think that that's a primary thing but I also think that the interaction with the building occupants is critical because depending on what the space is being used for, that can have a big impact on the design, the way the system was designed.

MR. GROSS: Well, the system should be designed to accommodate whatever the usage is, is that right?

MR. ROSEN: Right. You're right.

MR. GROSS: And that leads me to another thing that Ms. Shepard mentioned and it occurred to me in your discussion about the failure of the building management to notify you about what was going on, those guys in the space suits, obviously leads to a lot of apprehension among the employees but it also occurred to me that if your doctor needed information he or she would have been deprived of that information if you did not have access to what was going on in the building. Is that right?

MS. SHEPARD: When I first went to the doctor, he called right while -- my first examination. They gave him that information right away. The employees don't have direct access but the occupational doctor they had no problem giving the information to him.

MR. GROSS: I think you were fortunate in that case. I've seen a number of situations where there wasn't access.

Would the panel support a provision in the regulation that would require employers or building owners and managers to, one, collect and maintain information and, two, make it available to employees and/or their representatives, of course preserving confidentiality of individuals, when that would be necessary to address specific concerns?

MR. ROSEN: Yes. I mean, that's definitely something that would -- that's what I meant when I was trying to get into the human interaction with the system because the communication aspect is, I think, critical. People need to know where the information, where they can get their hands on it so that they can deal with these problems in an open environment.

MR. GROSS: You addressed OSHA inspections. I guess in New York you have a state OSHA plan?

MR. ROSEN: Correct.

MR. GROSS: And public sector inspections are done by the state inspectors, right?

MR. ROSEN: Correct.

MR. GROSS: The general duty clause in the federal law is the same as in the state plan?

MR. ROSEN: Absolutely.

MR. GROSS: Has the general duty clause been effective in addressing any of these problems?

MR. ROSEN: No. In fact, I get the opportunity of meeting with the heads of the state OSHA plan which the unique thing about New York State is our state plan is only for public sector workers. Private sector workers are covered by federal OSHA in New York State and we've discussed this matter and their position is that there hasn't been a serious -- it hasn't met the serious requirements and we hope to challenge that because we've got plenty of situations now where people are having disabling illness and so we definitely feel that it does meet that serious requirement of a general duty type of --

MR. GROSS: Serious physical injury.

MR. ROSEN: Right. Exactly.

MR. GROSS: Okay.

I was just curious, Ms. Shepard. On what ground was your workers compensation claim controverted?

MS. SHEPARD: They said I didn't have enough medical evidence. They said -- I first lost my voice in November, I didn't file a claim until February so they said I didn't file it in a timely manner although I didn't find out until February that it was work-related. I think that was it. Not enough medical evidence and not filing in a timely manner. Oh, and they said because I've had laryngitis in the past they believe that I have a preexisting condition that led to this.

MR. GROSS: You had a preexisting condition which would not have been covered even if it were exacerbated by a work-related activity?

MS. SHEPARD: My doctor says that his state insurance fund says that it's not.

MR. GROSS: Is that a common problem with workers compensation claims, Mr. Rosen?

MR. ROSEN: Definitely. I mean, the doctor that she saw who was representing the state insurance fund actually told her that he was going to -- when it was just the two of them in the physician's quarters that he was going to support her claim and then when she got to the hearing she found out otherwise.

MR. GROSS: Thank you very much for your time.

JUDGE VITTONE: Thank you, Mr. Gross.

Ms. Alexander?

MS. ALEXANDER: I'm Daryl Alexander from the American Federation of Teachers and I have just a very few questions for you.

Mr. Rosen, the State of New York plan requires employers to document work-related illnesses and I was wondering if you had any sense of how well employers or agencies are documenting building-related illnesses or sick building syndrome on OSHA 200 logs.

MR. ROSEN: I virtually never see that happening, even when we get complaint log systems put in place, it's usually not tied in with the OSHA 200 log unless somebody is taken to the hospital or that kind of thing.

MS. ALEXANDER: In the Building 8 situation, were any of those cases showing up on the 200 logs at all?

MR. ROSEN: We had an active health and safety committee at Building 8 and the chairman of that committee, Loretta Kamer, actually complained about the OSHA 200 log not being maintained properly and after she complained the state plan came in and cited them and after that they started documenting it properly.

MS. ALEXANDER: I have a question on the integrated pest management program you were discussing and I was wondering what kind of provisions for informing and notifying employees are incorporated into this program? Do you believe employees get notified whenever there is a need for fumigation in a timely manner?

MR. ROSEN: We had problems with that prior to the integrated pest management program going into effect. We had a member who worked for social services who was off of work for some time after being exposed to pesticides at work and a grievance was filed and the result of the grievance was that the management agreed to notify and post and to do the spraying on off hours. But with the new integrated pest management program, we were actually able to get an executive chamber order from the governor's office which requires the agencies, the state agencies only, to implement integrated pest management on a 15 percent per year basis and that includes notifying people if you're unable to use less toxic methods and that kind of thing.

MS. ALEXANDER: And I have one last question on humidity. As you are probably aware, OSHA did not propose a lower limit on relative humidity and I was wondering what you would recommend as a standard for the lower limit on relative humidity.

MR. ROSEN: I think ASHRAE's 30 to 60 percent is reasonable and it should be incorporated into the standard based on not only Joan's experience but other patients that have been seen by the occupational physicians. I've had conversation within New York and in the literature I see that -- I was just reading a summary of something like a number of studies and they indicate that low humidity definitely can cause ill health effects.

MS. ALEXANDER: Thank you very much.

JUDGE VITTONE: Thank you, Ms. Alexander.

Mr. Rupp?

MR. RUPP: Your Honor, I also will be brief.

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.

Mr. Rosen, you answered a question or you and Ms. Janes had a dialogue about the capacity and the purposes of ventilation systems.

MR. ROSEN: Yes.

MR. RUPP: I want to pursue that with you for just a moment. Would you agree with me that with the advent of the generation of filters and filtration devices that have come on the market over the past 10 years or so, after you originally went to ventilation school, HEPA filters, carbon media filters, electrostatic precipitators and so forth, that we're no longer simply looking or needn't look at ventilation systems and filtration simply to get rid of body effluents, they also have the capacity to deal with other materials in the air and have been so designed?

MR. ROSEN: Well, I'm currently going to school, a Master's program in industrial hygiene at the University of Michigan and I've been involved in industrial hygiene over the years, for like 20 years that I've been active in health and safety. And ventilation is usually the first preferred method. I do agree with you that if you're not able to achieve ventilation that there are high efficiency particulate air and the other kinds of devices that you talked about, filters that can serve as a secondary or supplementary method of trying to remove contamination. But I still think ventilation is A-number one.

MR. RUPP: Is A-number one.

MR. ROSEN: Yes.

MR. RUPP: For the removal of both gaseous as well as particulate material?

MR. ROSEN: Absolutely.

MR. RUPP: And then the more advanced ventilation to supplement the original and basic system, if it is operating properly and maintained properly.

MR. ROSEN: Right.

MR. RUPP: Thank you very much.

Thank you, Your Honor.

JUDGE VITTONE: Anybody else?

(No audible response.)

JUDGE VITTONE: Okay. Thank you very much for your time today. We appreciate all your testimony and it will all be included into the record.

Thank you again.

JUDGE VITTONE: We're going to go on lunch right now and we will be back at 2:00.

2:08 p.m.

JUDGE VITTONE: Mr. Myers?

MR. MYERS: Your Honor, a preliminary matter but an important one. Apparently the ongoing pattern of people who have been paid to appear on behalf of the tobacco industry who decide at the very last minute not to appear has occurred again. We have just been informed that TIEQ who was scheduled for tomorrow has suddenly canceled.

Once again, this has occurred after we have gone to some expense. An attorney from out of town has actually flown in and we learned of it far too late to be able to stop that from happening once again. And if it weren't a recurring pattern, it would be one thing, but it is a recurring pattern. A series of witnesses, all of whom have direct connections to the tobacco industry, each of whom cancel at the very last minute, providing nobody with any notice, therefore causing people time and expense and, in this case, actually causing a lawyer to fly in from out of town for no other purpose whatsoever other than that they had been requested and volunteered their time to prepare cross-examination, volunteered their own expenses to come down here. And I would ask in this circumstance, given the pattern, that we actually, and I'll formally move, that we exclude the written comments from the record at this time. I know it's something you're very reticent to do and I appreciate your position on this one but at some point we have got to recognize what has been going on here and we've got to take some action to prevent it from happening.

And it's particularly important at this point because now next week we're looking at R.J. Reynolds coming. The first day of the week is a holiday. If they cancel again at the last minute and we go through this same type of expense, and it was substantial last time, when suddenly as we were about to come into the courtroom they're unavailable. So I understand it's an unusual request, I understand that it's contrary to your basic desire but one set of players here is playing by one set of rules and other set of players is playing by an entirely different set of rules and I think it's time for this body to recognize that.

JUDGE VITTONE: First off, I did not know that.

Is TIEQ not coming tomorrow?

MS. SHERMAN: Your Honor, this was on my desk this morning when I came into the hearing. It's a letter dated January 9th from TIEQ to Mr. Thomas Hall withdrawing from the hearing.

JUDGE VITTONE: Okay. Dated January 9th.

MS. SHERMAN: Right. So I assume it was sent yesterday.

JUDGE VITTONE: Okay.

MR. HALL: When I went back up from the hearing last night, it was on my desk.

JUDGE VITTONE: Okay.

MS. SHERMAN: They are local.

JUDGE VITTONE: They are local?

MS. SHERMAN: It's a 202 area code.

JUDGE VITTONE: Okay. Who is sponsoring TIEQ?

Mr. Rupp, do you know?

Mr. Andrade?

MR. ANDRADE: Philip Morris did not invite TIEQ to come here and express their views, Your Honor.

JUDGE VITTONE: Is anybody from RJR here?

MS. SHERMAN: Is it possible it could be Wash Tech?

JUDGE VITTONE: It's not Wash Tech? It's not Wash Tech, it's not R.J. Reynolds and it's not Tobacco Institute.

MR. MYERS: We don't know about R.J. Reynolds yet.

MR. RUPP: You're not sponsoring them, Mr. Myers?

MR. MYERS: I think not, Mr. Rupp.

JUDGE VITTONE: Do you know, Ms. Sherman?

MS. SHERMAN: Judge Vittone, I don't happen to have the book for tomorrow down here with me for me to look at it.

JUDGE VITTONE: Okay. Well, what are they testifying on? Or are supposed to testify on? Does anybody know?

(Pause)

JUDGE VITTONE: Look, I think your point with respect to the lateness is well taken. I agree with you, that if there are going to be these kinds of cancellations, at times when people have withdrawn we've had adequate notice. Other times, it's been the day before. And I don't want anybody going to an expense or the effort of preparing and particularly coming here and paying money to travel here and then at the last moment finding out was all for nought. I agree with you on that.

I would like to find out who is sponsoring them, okay? And find out -- I'd even like to see their testimony, if I could.

MS. SHERMAN: Excuse me?

JUDGE VITTONE: I'd even like to see their prepared -- if they have a prepared statement.

MS. SHERMAN: We can make that available to you tomorrow morning.

JUDGE VITTONE: Tomorrow is fine. Yes.

That raises a question, though. If they're not here, the University of Arkansas is not here.

Now, I understand Mr. Bayard is not going to testify tomorrow?

MS. SHERMAN: That's correct. There was a scheduling conflict.

JUDGE VITTONE: All right. Who is?

MS. SHERMAN: Price Waterhouse is.

JUDGE VITTONE: Okay. Anybody else or is that it?

MS. SHERMAN: It's possible the Steel Workers will.

MS. JANES: We're trying to find out now.

JUDGE VITTONE: Okay.

MS. JANES: And we will get you a schedule.

JUDGE VITTONE: All right. Well, let's talk about that at the end of the day.

Your points on preparation and expense, I think, are well taken. I agree with you. I would like to find out what their testimony is and I would also like to give them an opportunity to explain why at the last second.

All right?

MR. MYERS: I would also request since we are looking at a major effort for next week with regard to R.J. Reynolds, they having canceled once after the last minute, that if there is going to be any change in R.J. Reynolds' appearance that we be notified by no later than noon this Friday so that people will know it before the holiday weekend. I don't think that's unreasonable either.

JUDGE VITTONE: I agree with you on that, too. If there is going to be a cancellation I would like to know about it as soon as possible. I don't believe that's going to happen. I have no information to believe that they are going to do that.

MR. MYERS: We had none last time until we arrive that morning.

JUDGE VITTONE: I don't want to replay that record.

MR. MYERS: I understand. All I'm saying is I don't think it is unfair for us to ask that and with all other witnesses to ask that we be given at least two working days advance notice from now on to the extent possible, particularly any witness who is in any way funded by the tobacco industry so that they have some control.

JUDGE VITTONE: Well, as I understand it, the rest of the hearing -- well, we'll talk about scheduling but I doubt that they're going to be -- maybe I'm wrong but I doubt that there are going to be any major changes. I think after --

MS. SHERMAN: I think we can only hope that there will be no major changes. And we will provide you, Your Honor, tomorrow with all the submissions from TIEQ.

JUDGE VITTONE: How many are there?

MS. SHERMAN: Well --

JUDGE VITTONE: You don't know?

MS. SHERMAN: They may have done some earlier comments to the record. We'll have to search.

JUDGE VITTONE: Okay. All right.

Thank you, Mr. Myers.

Okay. We have Dr. Witorsch.

Sir, would you state your full name, please, for the record?

DR. WITORSCH: Philip Witorsch.

JUDGE VITTONE: Okay. And who are you affiliated with, sir? Who do you represent today

DR. WITORSCH: I am here on behalf of the Tobacco Institute.

JUDGE VITTONE: But the organization that you are affiliated with, is it the Center for Environmental Health and Human Toxicology?

DR. WITORSCH: Yes. I'm actually not representing them officially. That happens to be an organization that I have a relationship with.

JUDGE VITTONE: Okay. All right. I understand you have slides, I understand your presentation will take about 20 minutes, so you can begin and I will get out of your way.

DR. WITORSCH: Judge Vittone, ladies and gentlemen, my name is Phil Witorsch. I am a physician with a specialty in internal medicine and a subspeciality in pulmonary diseases and with a particular interest in environmental and occupational disorders.

I received my M.D. degree from New York University School of Medicine and did my post-graduate medical education at Yale New Haven Medical Center, the National Institute of Allergy and Infectious Diseases, and the Washington, D.C. Veterans Administration hospital.

I am board certified in internal medicine and pulmonary diseases and I am currently Clinical Professor of Medicine and Adjunct Professor of Physiology at the George Washington University Medical Center here in Washington, D.C.

I spend the majority of my professional time involved in patient care, medical teaching and research. I spend some of my time in scientific consulting for a variety of clients, both in the government at various levels of government as well as in the private sector, and those clients include or have included various entities in the tobacco industry.

I have prepared written comments which were previously submitted and I am here today to give an oral presentation both at the request and the expense of the law firm of Covington & Burling on behalf of their client, the Tobacco Institute. That notwithstanding, the opinions that I will be presenting and have in my written statement are my own and are not necessarily shared by either my university, Covington & Burling, the Tobacco Institute or any other entity or institution. And I mentioned my university position for identification only and not to imply any endorsement of any opinion that I express by the university.

I have been asked to comment on the preamble to the proposed OSHA indoor air quality standard, specifically, the non-cancer respiratory effects of environmental tobacco smoke. In my written statement, I also had some comments on sick building syndrome which I won't address in the oral remarks but I will, of course, be happy to answer any questions on that area during the question and answer period.

During my oral presentation, I am going to limit my comments to the issue of non-cancer respiratory effects of environmental tobacco smoke.

To summarize my opinion at the outset, it is that OSHA has reached a number of conclusions and made a number of assumptions with regard to that area that are unjustified by the available data and are therefore inappropriate.

If I could have the slide on, please?

And I'll try to remember to mention the slide number.

Slide No. 1.

Can everyone see that with the light as it is? They're all pretty much this white on white or the blue.

OSHA concluded with regard to this area, as you can see, that the weight of the evidence shows that exposure to ETS results in decreases in pulmonary function indices and increases in respiratory symptoms in otherwise healthy men and women who are exposed to ETS for periods of 10 or more years.

Slide No. 2.

In reaching that conclusion, OSHA relied on a number of studies, predominantly epidemiological studies, that have been published in the scientific medical literature.

Now, as noted by a number of observers, including OSHA in this document, these studies have a number of problems. First of all, there are varying definitions among the studies of never and ex-smokers leading to a significant likelihood of smoking status misclassification.

Among the various studies, there's also some variation in the criteria for ETS exposure which increases the probability of exposure misclassification.

Slide No. 3.

A number of observers had noted and published these opinions in the literature that these particular studies have problems with experimental design and instrumentation and I share that opinion as well.

Slide No. 4.

And as noted by a number of observers, including OSHA in the document, many of the studies, most of the studies, in fact, give inadequate consideration to potential confounding variables and a number of the studies have significant internal inconsistencies.

Slide No. 5.

I indicated that OSHA did recognize these deficiencies in these studies and, as indicated on this slide, they pointed out appropriately that studies which are restricted to adults vary by numerous factors, such as the population study, the measures used to estimate exposure to ETS and the physiologic and health outcomes examined.

Slide No. 6.

And they also noted that the studies also varied in the consideration of potential confounders. That is, OSHA was not unaware of these deficiencies and in fact pointed them out. The criticism I have or the problem I have is that having pointed them out, they appear to then have been disregarded in OSHA reaching its conclusion.

Now, I would like to go back to that conclusion and look at it in somewhat more detail and to do that, and this is Slide No. 7, I would like to divide it up into two parts.

The first part deals with the issue of respiratory symptoms and ETS exposure and the second part will address the issue of pulmonary function and ETS exposure.

To repeat the conclusion as it applies to the first part, OSHA concluded in the preamble to this document that "The weight of the evidence shows that exposure to ETS results in increases in respiratory symptoms in otherwise healthy men and women who are exposed to ETS for periods of 10 or more years."

Slide No. 8.

If one looks at the literature dealing with that, the published studies dealing with that, one finds as a matter of fact that they do not support such a conclusion.

In a recent review of this area as indicated on this slide, there were at least as many studies that showed no association with ETS exposure with respiratory symptoms as there were studies that showed an association or reported an association of ETS exposure with respiratory symptoms. So there was divergence of findings, there's lack of consistency among studies and clearly there is not a consensus.

Furthermore, in those studies, the odds ratios were for the most part below two, certainly below three, and those are odds ratios that raise serious questions of bias due to confounding and other factors. And very likely reflect some of the deficiencies mentioned earlier.

If I didn't mention it, this was Slide No. 8 that we were just looking at.

Slide No. 9.

Moving to the issue of pulmonary function, OSHA concluded that "The weight of the evidence shows that exposure to ETS results in decreases in pulmonary function indices."

Slide No. 10.

And in reaching that conclusion, OSHA relied on studies, as indicated here, studies that have used pulmonary function tests which may be more sensitive than methods used in other studies to detect physiological changes occurring in the small airways of the lungs.

Slide No. 11.

In reaching that conclusion, OSHA made a number of assumptions. The first assumption, as indicated on Slide No. 11 is that the parameters that they were referring to, and they were specifically referring to two parameters, the FEF 25-75 or the mid-flow rate and the FEF 75-85 or the terminal flow rate, and OSHA assumes that the FEF 25-75 and FEF 75-85 are sensitive to physiological events in the small airways and that changes in those parameters in fact validly reflect changes occurring in those small airways.

Slide No. 12.

OSHA also assumes that those parameters are sufficient reproducible to be used in epidemiological studies and that they are sufficiently reliable to be used in epidemiological studies.

As I note on Slide No. 13, these assumptions are not necessarily valid and, as a matter of fact, are very likely to be invalid.

Slide No. 14.

In the first place, it is uncertain and clearly very controversial today whether or not the FEF 25-75 reflects events occurring in the small airways and there is a considerable debate in the literature and a lot of speculation and a lot of opinion but not very much in the way of data supporting one or another point of view. It's possible that FEF 25-75 reflects events in the small airways. It's also possible that FEF 25-75 does not or doesn't always reflect events in the small airways. So that's at least controversial.

What is not even controversial but I think it's fair to say there is a consensus on is that there is a very high degree of variability associated with FEF 25-75.

On Slide No. 15, I quote from Bates in his widely-used and highly regarded textbook of pulmonary function, Pulmonary Function and Disease, in the latest edition and Bates points out, and I quote, "There is considerable variation in the FEF 25-75, the lower limit of normal, two standard deviations, being almost 50 percent of the mean normal value."

Slide No. 16.

Bates goes on to note that "The greater variability of the FEF 25-75 as compared with the FEV 1 offsets the advantage in sensitivity."

In other words, while FEF 25-75 may potentially be a more sensitive tests, the results are so variable that the sensitivity is offset, particularly for the purpose of epidemiological studies.

The parameter that is used and is more reproducible and reliable, even though it may not be quite as sensitive, and that has a track record in epidemiological studies as well as clinical studies involving pulmonary function is the FEV 1 and that really is the parameter that is important.

Slide No. 17.

Others have also noted this. Miller points out, as indicated on this slide, that "The main difficulty in interpreting flow rates such as the FEF 25-75 is that they are inherently more variable than FEF and FEV 1 with the result that the standard deviations and the 95 percent confidence intervals are a larger proportion of the predicted value."

Now, let's look at the second parameter that OSHA appears to have relied on, the FEF 75-85. Well, that parameter has even a greater degree of variability and poorer reproducibility than the FEF 25-75 and it is uncertain, and frankly doubtful, if FEF 75-85 provides any useful information, whether it's epidemiologically or clinically. And on instrumentation clinically that measures FEF 75-85, there are instruments around that have it, most pulmonary physiologists and pulmonary physicians that I know pay very little, if any, attention to the FEF 75-85 because it's difficult, if not impossible, to interpret.

This was Slide No. 18 if I didn't mention it.

Slide No. 19.

As pointed out by Miller with regard to FEF 75-85, "In actual use, it is often more difficult to measure and more affected by non-physiologic transients and artifacts like early termination of effort."

Slide No. 20.

Cotes in his very recent also highly regarded and widely used pulmonary function textbook points out that with regard to FEF 75-85, comparing it to another test, the MEF 25 percent of FVC, that these both yield similar information and the reproducibility of both indices is poor, in effect making it a useless test.

Slide No. 21.

So the only data that are really meaningful with regard to at least epidemiological studies addressing pulmonary function are data with respect to FEV 1, which is reproducible, which is widely used, with which there is a lot of experience and with which much, if not most, of the physiologic information that we have with regard to course of chronic obstructive pulmonary disease and other obstructive disorders is based.

A recent review of 10 studies that looked at FEV 1 and ETS exposure in adults were analyzed and of these 10 studies, and there's a typo on the slide, it should be at the bottom, the top two studies at the bottom, eight studies, so it's two and eight rather than two and nine, which doesn't really affect anything, significant decrements in the FEV 1 were noted in association with ETS exposure in only two of the 10 studies, whereas in the remaining eight studies, there was no significant difference between ETS exposed and non-ETS exposed subjects.

So, again, clearly using the most reliable parameter one is hard pressed to demonstrate an adverse effect on pulmonary function with respect to ETS exposure in adults.

Slide No. 22.

Furthermore, even in those studies in which decrements are reported, whether they are the few studies that show decrements in FEV 1 or the somewhat larger number of studies that show decrements in FEF 25-75 or FEF 75-85, in the overwhelming majority any such decrements are generally within the range of expected intraindividual variation characteristic of the spirometric methodology and the instrumentation used. In other words, any decrements are still within the normal range and easily explainable by the techniques rather than anything else.

Slide No. 23.

Based on that, I think it's fair to say that OSHA has over-interpreted the significance and mischarcterized the meaning of small and probably meaningless differences in pulmonary function parameters that had been reported in some of the studies in the literature.

Slide No. 24.

There were some other conclusions or assumptions that OSHA makes or implies in the document that are also problematic from my point of view. OSHA implies at least that small airway disease necessarily progresses to chronic obstructive pulmonary disease.

That is also a matter of considerable current controversy and there are opinions expressed that that is the case and there are other opinions expressed that that is not the case and in both instances both those opinions are generally acknowledged to be speculative because there is no data to speak of that really allows one to conclude one way or another and most people that work in that field, in this field, and specifically deal with small airway disease will readily admit that we don't know today whether small airway disease is an entity that occurs coincidentally and independently with COPD or whether it necessarily is something that starts and progresses to COPD. It's just not known at the present time.

Slide No. 25.

Another assumption that OSHA makes is that the risk of developing COPD appears to be increased in passive smokers with life long exposure to ETS. That statement is not supported by any literature citation in the document. As a matter of fact, that is an insupportable statement, because there is no support for that conclusion independent of any of the other conclusions. There's just no data that allows one to reach that conclusion.

Slide No. 26.

Similarly, OSHA concludes that older individuals and those with pre-existing pulmonary disease are more susceptible to pulmonary effects with exposure to ETS. While that may be an intuitively attractive statement, as a matter of fact, it's also unsupported by the literature and there are no data that allow one to reach that conclusion, and there are also no such studies cited by OSHA.

Slide No. 27.

Based on the foregoing, it's my conclusion, and I think a reasonable conclusion with regard to this area, that relative to the purported respiratory health effects of ETS of ETS exposure in adults, OSHA has inappropriately characterized and misinterpreted the clinical and physiological data reported in the literature.

Thank you, and I'll be happy to answer any questions.

JUDGE VITTONE: Thank you, Doctor.

We're going to take a five minute break right here.

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

Ms. Sherman?

MS. SHERMAN: Yes, Dr. Witorsch.

Are you the creator of the Center for Environmental and Human Toxicology?

DR. WITORSCH: I'm sorry. I didn't hear the question.

MS. SHERMAN: Are you the creator of the Center for Environmental and Human Toxicology?

DR. WITORSCH: I'm one of the founding members.

MS. SHERMAN: Are you the owner of it?

DR. WITORSCH: I have an ownership interest in it. I'm not the only owner.

MS. SHERMAN: How many owners are there?

DR. WITORSCH: There are three people who have an ownership interest in it.

MS. SHERMAN: Equally divided?

DR. WITORSCH: Yes.

MS. SHERMAN: How many employees do you have?

DR. WITORSCH: Approximately, including fellows that we support. We have some people who are directly supported, employees, and we also support training programs at the university, and we have fellowship positions supported. If you include those, about eight to ten, I think.

MS. SHERMAN: Is the Center part of George Washington University?

DR. WITORSCH: The Center has an affiliation with two universities -- with George Washington and Georgetown. It has a formal affiliation agreement whereby it supports training programs and runs certain programs with the universities.

MS. SHERMAN: Does this mean that George Washington University and Georgetown University give the Center grants in exchange for running certain programs?

DR. WITORSCH: It works both ways. The members of the Center, either through the Center, often through the Center, may be grants or salary from the university for certain functions, and the Center also funds certain programs at the university.

MS. SHERMAN: I'm having a little bit of a difficult time understanding what the Center does. When you see a patient, do you bill the patient from GW or from the Center or personally?

DR. WITORSCH: It depends on the context. I don't bill the patient personally. The patient is usually billed, the patient care is usually billed directly by the university through the practice plan.

There are patients that we see from time to time who we are evaluating in some sort of a litigation support or workers comp situation, and part of the contractual relationship with the university is that the Center reimburses the university for the university's fee, and the Center will bill whoever the client is, usually not the patient, but whether it's the insurance company or the Plaintiff's attorney or whoever may be involved in that particular case.

MS. SHERMAN: So the Center is involved in litigation, Plaintiff's work of defense work?

DR. WITORSCH: The Center is involved, among other things, it's involved in workers comp and litigation support activities.

MS. SHERMAN: Generally from the standpoint of the employer or from the standpoint of the claimant?

DR. WITORSCH: Both sides, actually. It depends on the particular issue.

MS. SHERMAN: And what percentage of the work of the Center are these litigation-related services?

DR. WITORSCH: Probably, I would guess maybe as much as 25 percent.

MS. SHERMAN: What is the main portion of the work of the Center?

DR. WITORSCH: The Center is involved in regulatory consulting. It also, as an entity, is involved in training programs. We have training programs in environmental occupational toxicology which is a program run by the Center in conjunction with or for the university.

MS. SHERMAN: If somebody was having problems on the job and suspected a work-related illness, and went to George Washington University, would they refer them to you at the Center?

DR. WITORSCH: Yes, they might.

MS. SHERMAN: Do you do all their occupational work?

DR. WITORSCH: No, there are other occupational physicians there as well.

MS. SHERMAN: That are not affiliated with the Center?

DR. WITORSCH: They're not affiliated with the Center.

MS. SHERMAN: I believe you said today that your testimony was not on behalf of George Washington?

DR. WITORSCH: That's correct.

MS. SHERMAN: Did you say it was not on behalf of the Center?

DR. WITORSCH: It's not on behalf of the Center either, that's correct.

MS. SHERMAN: So it's just on behalf of yourself?

DR. WITORSCH: On behalf of myself.

MS. SHERMAN: What is your position at the Center for Environmental Health and Human Toxicology?

DR. WITORSCH: I'm the Medical Director.

MS. SHERMAN: I think you said you had eight to ten professional employees at the Center?

DR. WITORSCH: I didn't say professional. We have eight to ten employees. They aren't all professional.

MS. SHERMAN: How many are professional?

DR. WITORSCH: Six.

MS. SHERMAN: Are any of them epidemiologists?

DR. WITORSCH: No.

MS. SHERMAN: Have you ever provided any expert opinion for the tobacco industry before this?

DR. WITORSCH: Yes.

MS. SHERMAN: On what issues?

DR. WITORSCH: The only consulting that I have done for the tobacco industry has related to the issue of health effects of environmental tobacco smoke.

MS. SHERMAN: Have you testified against smoking restrictions on behalf of the tobacco industry?

DR. WITORSCH: I've never given an opinion for or against smoking restrictions. I have testified on health effects in venues where the issue might have involved smoking restrictions, in legislative venues on occasion.

MS. SHERMAN: Where have you testified?

DR. WITORSCH: I've given testimony to the Scientific Advisory Board of EPA. A number of years ago I gave testimony, a presentation to the Committee of the National Academy of Sciences Committee that was considering the issue. A number of years ago, not in recent years, I gave testimony at some state legislative committee hearings, I don't recall specifically where. I gave one out in Michigan on one occasion and I think one in California some place.

MS. SHERMAN: What was the thrust of your testimony in front of the Scientific Advisory Board of EPA?

DR. WITORSCH: My presentation that I gave there dealt with, as I recall, the issue of parental smoking and respiratory health in children. Actually I presented the data from reviews of the studies that we had done and analyzed.

MS. SHERMAN: Did you criticize the EPA report on passive smoking on the ETS effects on childhood respiratory function?

DR. WITORSCH: I guess part of what I presented involved a criticism, because there was data that had not been considered, and we disagreed with some of the way that they had considered the data. So yes, I guess there was at least an implied if not a stated criticism.

MS. SHERMAN: Did the SAB accept your criticism?

DR. WITORSCH: It's hard to say. The SAB ultimately approved, I assume, the EPA report, so in that sense they didn't accept the criticism. Some individual feedback I had, though, from members of the SAB was that they didn't disagree with some of the points I made.

MS. SHERMAN: When you testify in front of the Science Advisory Board, a group that I'm not very familiar with, is there a transcript of the proceedings?

DR. WITORSCH: I have no idea. Mr. Repace would probably be able to tell you that.

MS. SHERMAN: You don't remember seeing...

DR. WITORSCH: I never saw one and I don't know if they made one.

MS. SHERMAN: Have there been any changes in your curriculum vitae since December 11, 1993, which I think is in the CV that you submitted to the record? It says "updated as of 12/11/93."

DR. WITORSCH: There probably have been, and I have one that's a year later with me if you'd like me to submit that.

MS. SHERMAN: Okay. Are you still affiliated with Georgetown University?

DR. WITORSCH: Yes.

MS. SHERMAN: You're still affiliated with George Washington University?

DR. WITORSCH: Yes.

MS. SHERMAN: I believe that you listed yourself as a clinical professor of medicine and an adjunct professor of physiology at George Washington.

DR. WITORSCH: Right.

MS. SHERMAN: Are either of these positions paid positions?

DR. WITORSCH: Yes. They're less than full time, but they're paid positions.

MS. SHERMAN: Do you have permanent office space or laboratory space at George Washington?

DR. WITORSCH: Yes. I don't know how permanent any space is, but there's space there.

MS. SHERMAN: What are your responsibilities at George Washington?

DR. WITORSCH: Teaching, patient care, and I've had administrative responsibilities involving Medical Director of the Respiratory Therapy Department, and directing the program in environmental and occupational medicine for the Division of Pulmonary Diseases and Allergy.

MS. SHERMAN: How much of your time do you spend with GW, and how much of your time do you spend with the Center?

DR. WITORSCH: It's hard to separate that because to a significant extent, the university activities and the Center activities are integrated when we're talking about the training program. But overall, I spend about, probably 75 percent of my time in some combination of university-related patient care, teaching, research, and administration within the university, and probably about 25 percent of my time, on average, with activities that might involve the Center and not involve the university.

MS. SHERMAN: Where does Georgetown fit into all this?

DR. WITORSCH: I do some teaching at Georgetown and I do some collaborative research at Georgetown, and that's sort of... Georgetown would be in the mix with the big part of the university mix.

MS. SHERMAN: That would be part of the 75 percent

DR. WITORSCH: Yes.

MS. SHERMAN: Have you seen cases of respiratory disease in adults in your duties for the Center or for GW?

DR. WITORSCH: Yes.

MS. SHERMAN: And you currently see patients?

DR. WITORSCH: Yes.

MS. SHERMAN: Have any of the cases of respiratory disease that you've seen presented work-related symptoms?

DR. WITORSCH: Yes. I see a significant number of patients. Since I have a particular interest in environmental occupational pulmonary disorders, I see a lot of patients with disorders that are thought to be and sometimes turn out to be work related.

MS. SHERMAN: What symptoms, in your view, should be presented before you would conclude that an adverse health condition is related to workplace exposure?

DR. WITORSCH: It's not really an answerable question because you can't make that conclusion just on the basis of symptoms. I think you have to look at symptoms, other clinical findings, and exposure, potential exposures in the workplace and look at the whole combination before you can reach that conclusion.

MS. SHERMAN: In determining whether symptoms are related to workplace exposure, do you conduct workplace investigations?

DR. WITORSCH: I may not personally conduct workplace investigations, but I take into account data that are obtained at the workplace. For example, if a patient is complaining of a symptom they think relates to the workplace, I may recommend that such an investigation be done.

MS. SHERMAN: Generally, who would obtain the data that you look at about the workplace?

DR. WITORSCH: It would vary. With the private sector, and I have been involved in both private sector workplace and governmental workplace. With the private sector, the employer. I might recommend that the employer evaluate... The workplace owner, which may not be the employer, evaluate the workplace. They may get a private group to do that. There are people that I have worked with that I can recommend if people want a recommendation. In some instances, NIOSH gets involved in the private workplace, and there have been occasions when I have contacted people at NIOSH and suggested or facilitated an employee making a complaint and getting a NIOSH investigation.

With the government, there seems to be a reluctance to use NIOSH to investigate government workplaces, and there sometimes the agency itself or some other agency will do a workplace investigation, so it's very variable.

MS. SHERMAN: Of the work-related cases that you see, would it be possible for you to indicate what percentage of them are government related and what percentage of them are private?

DR. WITORSCH: I'd be guessing, I don't have a count in my head, but I would say of the past year, probably maybe as many as a quarter to a third involved the government workplace.

MS. SHERMAN: Is that typical of most of the years?

DR. WITORSCH: Probably.

MS. SHERMAN: Is there anybody who works for the Center for Environmental Health and Human Toxicology that you can dispatch to these workplaces if you feel that you need some answers?

DR. WITORSCH: No. There are people that we have worked with on an ad hoc basis that we can contact, and people at the university who do that kind of work, and we're happy to recommend them or to refer people to them, but we don't have anyone who works for us that goes out and makes those measurements and obtains those data.

MS. SHERMAN: Have you ever seen a case of workplace related Legionella?

DR. WITORSCH: I've seen Legionella. I can't recall if it's been workplace related. Probably.

MS. SHERMAN: Have you seen cases of occupational asthma?

DR. WITORSCH: Yes.

MS. SHERMAN: Difficulty breathing?

DR. WITORSCH: Yes.

MS. SHERMAN: Of the people you see, would it be possible for you to give me a proportion of those that you diagnose with work-related symptoms or diseases?

DR. WITORSCH: Of the people claiming work-related symptoms or diseases that I've diagnosed?

MS. SHERMAN: Yes.

DR. WITORSCH: Again, I'd be guess, but probably half, roughly. It seems to me that perhaps as many have a work-related problem as don't have a work-related problem.

MS. SHERMAN: Do you find in recent years that the number goes up as people become more aware of the relationship between workplace exposures and adverse health effects?

DR. WITORSCH: I think the number of claims goes up. I'd have to go back and look at the data. We are working at putting together some of our data, in fact, and looking at that, but I don't know off-hand. My impression, and it could be an erroneous impression because it's not based on counting, is that there hasn't been really a change in the proportion. There's been an increased number of complaints. And I guess if the complaints are increased, the proportion is the same, so that would say that probably there are more people having real complaints, as well as more people having complaints that don't relate to the workplace.

MS. SHERMAN: So it's sort of a wash?

DR. WITORSCH: I'm not sure if it's a wash. The total numbers increased. The proportion's the same. The absolute number of people who have workplace-related complaints that we're seeing, whose complaints appear to be related to the workplace, would therefore be increased.

MS. SHERMAN: This is not an area that is known for its heavy industry. So would it be fair to say that a large proportion of your patients have office-related jobs?

DR. WITORSCH: In a general sense. I see people from outside of this area. For example, one of the governmental types of work that we do, I see people on referral with coal workers pneumoconiosis referred by the Department of Labor coal workers program.

MS. SHERMAN: They come from West Virginia?

DR. WITORSCH: They come from West Virginia sometimes.

MS. SHERMAN: Do you go down there or do they come here?

DR. WITORSCH: Not with those. I will on occasion go out of town to evaluate someone, but it's preferable, it's less time consuming to have them come up...

MS. SHERMAN: You make house calls?

DR. WITORSCH: On occasion, for special people.

MS. SHERMAN: On page four of your testimony, I believe you said that the FEF 25-75 is "unreliable and invalid and shouldn't be used in studies of ETS," is that correct?

DR. WITORSCH: That's correct.

MS. SHERMAN: Are you familiar with the Agency for Toxic Substances and Disease Registry Publication called "A Standardized Test Battery for Lung and Respiratory Diseases For Use In Environmental Health Field Studies"?

DR. WITORSCH: I'm aware of the document. I haven't looked at it.

MS. SHERMAN: You've never looked at it?

DR. WITORSCH: I believe I have looked at it in the past.

MS. SHERMAN: I have a copy of some relevant pages here if you would like to.

DR. WITORSCH: Sure.

(Document handed to witness)

(Pause)

MS. SHERMAN: Doesn't this report recommend spirometry including FEF 25-75 as useful as a test of pulmonary function for epidemiologic studies?

DR. WITORSCH: I can't say. I'd have to look at it and see.

MS. SHERMAN: On page 32 of the study, I believe it says, "Spirometry is the first choice for measurement of lung function and is especially useful in cross-sectional studies. It can also be used to follow populations during periods of peak exposures. In longitudinal studies, spirometry is most valuable for detecting either relatively large changes in lung function or changes over a relatively long period of time, that is greater than five years."

Would you agree?

DR. WITORSCH: I agree that it recommends spirometry, and that's correct.

MS. SHERMAN: Isn't it true that the studies in the proposed OSHA standard used spirometry in exactly this manner?

DR. WITORSCH: Well, the method was spirometry, but what my criticism was, was that OSHA appeared to be relying on studies, results with FEF 25-75 and 75-85. FEV-1 is part of spirometry also.

MS. SHERMAN: Yes, I understand that.

DR. WITORSCH: Obviously, spirometry is the appropriate technique. It's the spirometric parameters that I take issue with.

MS. SHERMAN: Are you taking issue with the
FEF 25-75, or the 75-85 specifically?

DR. WITORSCH: Well both, as I thought I'd made clear in my presentation. I take issue with both for somewhat different reasons. I think the FEF 25-75 is more useful than the FEF 75-85. I frankly think the latter is useless, and I don't think I stand alone in that. I think I probably stand with the majority of my colleagues in the area.

As far as the FEF 25-75, I think there is pretty much a consensus from some of the text, and I could trot out many more, that the big problem with that is the tremendous intra-individual variation in that parameter. So that within the same individual on different occasions, it has a wide degree of variation. That makes it difficult to use for things like epidemiological studies. It may have somewhat more use when making clinical evaluations in an individual patient, so it has some utility.

But I think everyone, or almost everyone that I'm aware of, would agree that it is highly variable. So variable, such a high coefficient of variation, that it's not useful and not reproducible enough for epidemiological studies and for inter-individual comparisons or group comparisons.

What there is a difference of opinion on is what it reflects. Does it reflect small airway disease or doesn't it reflect small airway disease? I think that is a matter of current debate.

MS. SHERMAN: Even if there is intra-individual variability, might it not be useful when you're dealing with large groups of cohorts?

DR. WITORSCH: Well, the point is if you see differences, and the differences we're talking about in some of these studies, in most of these studies, are within the range of inter-individual variation, so that you see a change that is no different in degree than the change that will occur spontaneously from person to person. You can't reach any conclusion by that kind of a change. The difference with FEV-1 is that FEV-1, if done properly, even with field equipment, should be reproducible with an experienced technician within a range of five percent. So you can make meaningful conclusions with relation to FEV-1.

But FEF 25-75, you may see changes due to no reason except the ordinary variation of the technique of 20, 30, 40 percent. If the changes you're seeing in a study, the difference between two groups are within that range, you can't reach any conclusions.

MS. SHERMAN: Are you familiar with the National Research Council's "Biologic Markers and Pulmonary Toxicology"?

DR. WITORSCH: I'm aware of it. I haven't read it through, but I've looked at parts of it.

MS. SHERMAN: Would it surprise you if I told you that it agreed with the ATSDR's publication, that is that
FEF 25-75 is useful as a test of pulmonary function for epidemiologic studies?

DR. WITORSCH: I'm not sure that we've established that the ATSDR document says that. It says that spirometry is useful. I'm not sure that it says that FEF 25-75 is useful.

MS. SHERMAN: I believe that the "Biologic Markers and Pulmonary Toxicology" says, "These more subtle measures are useful as biologic markets because they might indicate earlier or more subtle damage to small airways that if not reversed could lead to more severe and irreversible damage reflected in reduction in FEV-1 and eventually in FEC?

DR. WITORSCH: As the statement implies by the use of "might," it's speculative. It might, and then again it might not. I think because of the variation you just can't reach any conclusions.

MS. SHERMAN: So then you disagree with the National Research Council?

DR. WITORSCH: I don't disagree with that statement that it might do that. I would disagree that... I don't recall what they said, but if in fact they said that it is useful in epidemiological studies, I would disagree with that.

MS. SHERMAN: Could you repeat that? I'm not sure I understood your answer.

DR. WITORSCH: I'm not sure I disagree with the statement as I heard it that you quoted me, that those parameters, that parameter might reflect something. But I think the operative word is "might," because it also might not. Might is a speculative word. So I wouldn't disagree with a statement like that. I would disagree if part of the statement is that it is a useful parameter for epidemiologic studies, and in disagreeing with it, I think I'm in very good company. I think I'm in the company of all of the major people who have published in this area including David Bates and Miller and Coates and everyone else who writes about these tests, that from the point of view of epidemiological studies, they're not useful.

MS. SHERMAN: In your testimony you state that the proposed OSHA standard cites an article by Asano et al.

DR. WITORSCH: Yes.

MS. SHERMAN: Incorrectly.

You state that this article is cited by OSHA to support pulmonary effects of ETS even though the authors did not measure pulmonary function.

Could you show me where OSHA says that?

DR. WITORSCH: I'd have to show you... If you'll bear with me a moment.

(Pause)

MS. SHERMAN: Are you looking at the Asano paper or are you looking at the OSHA Preamble?

DR. WITORSCH: I have the OSHA Preamble here. I thought I'd pull out the Asano paper which I also stuck in my briefcase, just on the outside chance it might come up.

MS. SHERMAN: Sure.

(Pause)

DR. WITORSCH: I think I can probably find it fastest if you'll direct me to where it was in my statement that I said that.

MS. SHERMAN: I think I marked that....

DR. WITORSCH: I found it. Page 15,975 of the OSHA is what I referenced.

(Pause)

DR. WITORSCH: The middle column, the paragraph that begins "studies." Without reading it, it refers, that paragraph refers to pulmonary function studies. It doesn't refer to anything else. And the reference cited is 418 which is the Asano reference.

MS. SHERMAN: Isn't it true that OSHA characterized it as physiological changes?

DR. WITORSCH: Physiological or not, the impression, the implication in that other paragraph is that Asano is one of the studies supporting the statement that ETS exposure causes pulmonary function changes, and there are no pulmonary function measurements in Asano.

MS. SHERMAN: So the fact that it's in a different paragraph didn't dissuade you that they were talking about something different?

DR. WITORSCH: Cited in that paragraph. In the subsequent paragraph they talk about other things, but I had not, if I had I didn't remember the Asano study, and if you read those two paragraphs, you say Asano must have done pulmonary function studies because it's cited to support that, and they also did studies of blinking rates and other things. So I pulled the Asano paper and it turns out they did not do pulmonary function studies. They only did the other things.

MS. SHERMAN: On page four of your submitted comments you cite the ATS statement on lung function testing is evidence against using the FEF 25-75. Wouldn't you agree that this statement does not caution against using these measures in epi studies, but only in the clinical context?

DR. WITORSCH: That's probably correct as I recall it. Unfortunately, I don't have that with me. I don't know that that statement addresses it epidemiologically. But if it's not reliable for the clinical context, because it's not reproducible enough, it's even less reliable for the epidemiological contents.

MS. SHERMAN: However, you believe that the study is directed to clinical? The statement is directed to clinical studies?

DR. WITORSCH: The ATS statement?

MS. SHERMAN: Yes.

DR. WITORSCH: My recollection of it is that it is, that it deals with clinical, yes.

MS. SHERMAN: On Slide 8 today you discussed ETS exposures with respiratory symptoms.

DR. WITORSCH: Yes.

MS. SHERMAN: And I believe you indicated that there were eight studies on the subject and that the results were inconsistent.

DR. WITORSCH: I said the recent review indicated eight studies and the results were inconsistent.

MS. SHERMAN: That's correct, then.

DR. WITORSCH: Your brother in his earlier testimony indicated that if one found inconsistent results one should disregard all the studies. Do you agree with that position?

MS. SHERMAN: I'd have to see it in context. I think that certainly is one consideration. I think it's difficult to make a conclusion if one sees inconsistencies. I think it would depend on the degree of inconsistency.

DR. WITORSCH: Don't you think you should evaluate each study on its own merit?

MS. SHERMAN: Yes, of course.

DR. WITORSCH: So therefore, there might be some good studies and some bad studies ad you really can't help the fact that there are some poor studies.

MS. SHERMAN: That's true, yes.

DR. WITORSCH: So therefore, you shouldn't disregard inconsistent results necessarily.

Again, it depends on the context. You can't reach any conclusions about a pattern from inconsistent results. I think individuals, you may evaluate the individual studies. I think in this instance we're talking about studies all of which are far from outstanding in the way they were done, so they're all problematic studies for a variety of reasons.

MS. SHERMAN: Do you think OSHA should pay more attention to peer-reviewed articles than articles that are not peer reviewed?

DR. WITORSCH: Yes.

MS. SHERMAN: You co-authored an article called "Causal Relationship Between Environmental Tobacco Smoke and Lung Cancer in Non-Smokers, a Critical Review of the Literature."

DR. WITORSCH: Yes.

MS. SHERMAN: Was that peer reviewed?

DR. WITORSCH: My understanding is that it was, yes.

MS. SHERMAN: And where was it peer reviewed?

DR. WITORSCH: I don't recall where that was published. But that was submitted, my recollection, it was submitted to a meeting and it was peer reviewed.

MS. SHERMAN: If you could provide that information at a later date, I'd appreciate it.

Do you think that OSHA should give more weight to original peer-reviewed articles than to letters to the editor?

DR. WITORSCH: Not necessarily. I don't think you can generalize. I think more often than not there's more data in original articles as opposed to letters to the editor, so that's generally true. There are sometimes exceptions.

MS. SHERMAN: Are letters to the editor peer reviewed?

DR. WITORSCH: It depends on the journal. Some are.

MS. SHERMAN: Are they peer reviewed as carefully as papers published in these journals?

DR. WITORSCH: I'm not certain. The journals that I have served a peer review function for... My impression is that they're not peer reviewed as carefully as papers published.

MS. SHERMAN: Meaning perhaps fewer peer reviewers are assigned them or something like that?

DR. WITORSCH: Or something like that, yes.

MS. SHERMAN: Do you believe active smoking causes lung cancer?

DR. WITORSCH: I think active smoking is a risk factor for lung cancer. I don't think you can reach a causal conclusion in that sense. It's not a one-to-one relationship. It's not like streptococcus pneumoniae causes pneumococcal pneumonia. I think you're dealing with... Clearly it is a risk factor for lung cancer.

MS. SHERMAN: What is the difference between a cause and a risk factor?

DR. WITORSCH: I think a cause, I think of in terms of the entity by itself can cause the disease.

MS. SHERMAN: But it doesn't have to always cause the disease, does it?

DR. WITORSCH: Well, it should cause the disease most of the time, I think. But it doesn't have to always cause the disease. There can be circumstances when it might not.

MS. SHERMAN: If that's true, then what is the difference between a risk factor and a cause?

DR. WITORSCH: I think a risk factor contributes to the disease in the context of other risk factors, whereas a cause will cause the disease even in the absence of other risk factors.

MS. SHERMAN: Do you believe that active smoking causes heart disease?

DR. WITORSCH: The same thing. Active smoking is a risk factor for heart disease, or appears to be a risk factor for heart disease.

MS. SHERMAN: Does smoking cause birth defects, spontaneous abortion, or low birth weight?

DR. WITORSCH: Smoking may be a risk factor for low birth weight. There is an association. I'm not sure about birth defects.

MS. SHERMAN: Have you published any peer-reviewed articles on ETS since 1990?

DR. WITORSCH: I think so. I'd have to look at my CV, but I believe I have.

MS. SHERMAN: We did a MedLine search and we couldn't find any since 1990. Perhaps you could tell me what peer reviewed scientific papers we might have missed. We found a couple of letters to the editor.

DR. WITORSCH: Are you talking about those specifically relating to environmental tobacco smoke?

MS. SHERMAN: Yes.

(Pause)

DR. WITORSCH: There was a paper published, "Environmental Technology," which was peer-reviewed in 1992. Two papers published in, one paper was an abstract. One paper published on indoor environment which was peer reviewed. Two papers published on indoor environment which were peer reviewed.

MS. SHERMAN: On environmental tobacco smoke?

DR. WITORSCH: Yes.

MS. SHERMAN: Have you ever conducted any epidemiological studies on environmental tobacco smoke?

DR. WITORSCH: No.

MS. SHERMAN: Have you conducted any clinical studies on ETS and heart disease?

DR. WITORSCH: No.

MS. SHERMAN: Have you done any laboratory studies on ETS and heart disease?

DR. WITORSCH: No.

MS. SHERMAN: Does the possession of advanced training make someone an expert in all areas of science?

DR. WITORSCH: Not necessarily.

MS. SHERMAN: So would you agree that even somebody with an advanced degree could be a fringe practitioner if that person were making statements in an area well beyond this area of expertise?

DR. WITORSCH: Yes.

MS. SHERMAN: Say a molecular biologist making technical pronouncements bout the economy?

DR. WITORSCH: Depending on how much that molecular biologist knew about the economy, that could be correct.

MS. SHERMAN: There's nothing inherent in his training in molecular biology that would qualify him to make statements on the economy, is there?

DR. WITORSCH: Probably not, but I'm not sure from the statements we see from economists that their training is any better.

(Laughter)

MS. SHERMAN: I would tend to agree with that.

JUDGE VITTONE: For the record, I have an economist in the family, so let's...

(Laughter)

JUDGE VITTONE: Lawyers jokes are one thing.

(Laughter)

MS. SHERMAN: So while anybody is free to make comments anyplace they want, we wouldn't necessarily attach any particular extra weight to statements because the person might not be an expert in the area in which they're making pronouncements, wouldn't you say?

DR. WITORSCH: I'm sorry, I didn't understand what you just said.

MS. SHERMAN: Let's get back to our molecular biologist and away from our economist.

If the molecular biologist were making statements about nuclear physics, would we attach any particular extra weight to those statements because this person has an advanced degree?

DR. WITORSCH: No, I don't think so.

MS. SHERMAN: He wouldn't really be an expert in the area in which he is expressing an opinion.

DR. WITORSCH: He might not. He might also have expertise in that area, but just based on the fact that he's a molecular biologist, I would agree. That wouldn't necessarily qualify him.

MS. SHERMAN: You criticized OSHA for giving such statements equal weight with the published scientific and medical literature. By this you mean the peer-reviewed medical literature?

DR. WITORSCH: The peer-reviewed medical literature is what I was referring to, yes.

MS. SHERMAN: So would it be fair to say that you believe that OSHA should give the greatest weight to peer-reviewed scientific and medical publications written by people with bonafide expertise in the technical area they're addressing?

DR. WITORSCH: If you're dealing with scientific data, I think that's correct.

MS. SHERMAN: On page two of your comment you state that "OSHA chose to rely on the EPA risk assessment on ETS."

What are you basing your opinion on?

DR. WITORSCH: I think the OSHA document refers to it and does, to some extent, rely on it.

MS. SHERMAN: So you believe that OSHa relied on it?

DR. WITORSCH: To some extent, yes.

MS. SHERMAN: Are there any adverse effects, in your opinion, associated with environmental tobacco smoke?

DR. WITORSCH: Yes. I think environmental tobacco smoke in sufficient concentration can be irritating. It clearly causes eye, upper respiratory irritation. And that causes discomfort and irritation. That's an adverse effect.

I think it's possible, although I don't think the jury is in yet, that in some small proportion of asthmatics, perhaps as many as 20 percent probably not more than that, that ETS exposure may cause some worsening of respiratory flow rates, and even occasionally exacerbation of asthma, although the mechanism of that I think remains to be elucidated. I think the data support those areas.

I think in the remaining areas of health effects that have been looked at, I think the data are inconclusive.

MS. SHERMAN: Do you believe you must understand the mechanism in order to have a causal relationship?

DR. WITORSCH: Not necessarily, but what I was referring to was, I think you need, before you can assume that there's a causal relationship you need to be sure that the mechanism, if you're dealing with a physical irritant, for example, that the mechanism, is a physical one as opposed to a psychogenic one. I think there are, particularly when you're dealing with asthma, you're dealing with a disease that clearly can be triggered by psychogenic influences. I'm not sure that's fair to call that a causal relationship. It is in a sense, but I'm not sure that it's fair to characterize it that way.

MS. SHERMAN: But you don't insist on being able to explain the mechanism of disease in order to diagnose.

DR. WITORSCH: Not necessarily, no. I think it's helpful to be able to do that, but I don't think it's always necessary.

MS. SHERMAN: Have you ever seen in your clinical work anyone with ETS-related effects due to workplace exposure?

DR. WITORSCH: Other than upper respiratory and eye irritation?

MS. SHERMAN: Yes.

DR. WITORSCH: And asthma exacerbation? No.

MS. SHERMAN: Are you a member of the American Medical Association?

DR. WITORSCH: Yes.

MS. SHERMAN: Are you a member of the American College of Physicians?

DR. WITORSCH: Yes.

MS. SHERMAN: The American College of Occupational Medicine?

DR. WITORSCH: Yes.

MS. SHERMAN: The American Lung Association?

DR. WITORSCH: Yes.

MS. SHERMAN: The American Association for the Advancement of Science?

DR. WITORSCH: Yes.

MS. SHERMAN: The American Heart Association?

DR. WITORSCH: Yes, I think I still belong to that.

MS. SHERMAN: Do you know if any of these professional organizations of which you're a member have any official positions on tobacco smoke and environmental tobacco smoke?

DR. WITORSCH: I think smoke of them have positions on smoking, health effects of tobacco smoke. They may have positions on environmental tobacco smoke. I don't recall off-hand.

MS. SHERMAN: So you don't know if any of these groups have positions on environmental tobacco smoke?

DR. WITORSCH: I don't know for certain. I suspect some of them probably do.

MS. SHERMAN: So then you wouldn't be in a position to agree or disagree with any of their positions on environmental tobacco smoke since you don't know their positions?

DR. WITORSCH: That's correct.

MS. SHERMAN: Your comment on the first page of your submission that the opinions of fringe practitioners such as clinical ecologists whose views are not accepted by the mainstream scientific community were used by OSHA. Are your views concerning ETS in keeping with the mainstream medical opinion, such as the AMA and others?

DR. WITORSCH: I think they're in keeping with science, and I think they're in keeping with individual opinions. Are they in keeping with the positions that have been taken? Probably not.

MS. SHERMAN: Do you have any additional information that these groups haven't considered?

DR. WITORSCH: I don't know what information they've considered.

MS. SHERMAN: That statement that you made about fringe practitioners. By fringe practitioners, would it be fair to say that you mean people lacking the proper training and credentials to act as an expert with regard to the statements that they're making?

DR. WITORSCH: Unfortunately, that's not necessarily the case. Some of the people who are proponents of clinical ecology theories, they've gotten good training and have good qualifications.

MS. SHERMAN: Good training in the areas in which they're making statements?

DR. WITORSCH: Yes.

MS. SHERMAN: You mentioned that you were a consultant for pulmonary diseases to the Department of Labor. Which section of the department have you consulted for?

DR. WITORSCH: I mentioned the coal workers pneumoconiosis, the solicitor's office.

MS. SHERMAN: That would be the Mine Safety and Health Administration perhaps?

DR. WITORSCH: I think so. I think that's correct.

I have also consulted, actually, with OSHA on the COSHA program, on the standards for occupational safety and health officers, and I believe I was on a committee that addressed that a couple of years ago.

MS. SHERMAN: And you did consulting for the State Department?

DR. WITORSCH: Yes.

MS. SHERMAN: What did you do for them?

DR. WITORSCH: Two kinds of consulting. I evaluated individuals, clinically and functionally evaluated individuals who had pre-existing respiratory conditions or risk of respiratory conditions who were to be assigned in the Foreign Service to posts where there might be a risk -- high altitude or areas of very high pollution to determine whether it was appropriate or not for them to be assigned there.

I also have consulted with the State Department on policy. That is what should the standards be for tuberculosis screening for Foreign Service officers, for example, and what should the standards be for pulmonary function screening of certain individuals.

MS. SHERMAN: I believe you also said that you had consulted with the Justice Department?

DR. WITORSCH: Yes.

MS. SHERMAN: What type of consulting did you do for them?

DR. WITORSCH: There were a couple of matters. One that I recall was a litigation support matter where the Justice Department was involved in some litigation that involved environmental exposure, and I consulted with Justice Department attorneys on that matter.

MS. SHERMAN: Do you remember what exposure it was?

DR. WITORSCH: Yes. Specifically, that was the case involving DDT and Redstone Arsenal, Alabama, where people were exposed to very high levels of DDT. The Justice Department was involved in that case, or party to that case.

MS. SHERMAN: Have you ever consulted with the FAA on airplane cabin air?

DR. WITORSCH: I don't believe so. I may have evaluated an individual on occasion in relation to that, but I don't think I've consulted officially with the FAA.

MS. SHERMAN: I think in 1986 you co-authored an article published in the proceedings of the 79th Annual Meeting of the Air Pollution Control Association. I think it was called "Causal Relationship Between Environmental Tobacco Smoke and Lung Cancer in Non-Smokers."

DR. WITORSCH: That was the article you referred to earlier, yes.

MS. SHERMAN: Who funded the study?

DR. WITORSCH: I believe that that was supported by the Tobacco Institute, if I'm not mistaken.

MS. SHERMAN: Excuse me?

DR. WITORSCH: I believe it was supported by the Tobacco Institute, but I do not recall specifically. I was not the senior author on that. I don't recall the details.

MS. SHERMAN: Was this the one you said that was peer reviewed or that was not?

DR. WITORSCH: My understanding was that that article was peer reviewed.

MS. SHERMAN: Is that common for proceedings of a meeting to be peer reviewed?

DR. WITORSCH: Not uncommon.

MS. SHERMAN: How does one determine if one of these things had been peer reviewed or not?

DR. WITORSCH: I think one would have to check with the people who ran the meeting, or the organization or the group that ran the meeting.

MS. SHERMAN: Did you get any written comments back on your paper?

DR. WITORSCH: I don't recall. As I said, I was not the senior author on that paper, and I honestly don't recall if they did or not. I could check with the senior author and get back to you.

MS. SHERMAN: They would be directed to the senior author?

DR. WITORSCH: Yes.

MS. SHERMAN: Is that common in these things?

DR. WITORSCH: There's usually a senior author, or it may not be the first name in the article, but the person who functions as the senior author, and that's usually the case. One individual submits the article and corresponds with the journal or the meeting group.

MS. SHERMAN: So we can't look at the list of authors and discern that it's always the first author who is the lead author?

DR. WITORSCH: That's correct. It's not always the first author. It often is, but not always.

MS. SHERMAN: That's something I really thought was a sure thing.

DR. WITORSCH: Sometimes if a fellow, for example, or a trainee does a lot of work in the area, you'll make them senior author, but the truly senior person's name may be at the end of the paper.

MS. SHERMAN: Oh, dear.

I think in 1989 you published an article titled, "A Critical Analysis of the Relationship Between Parental Smoking and Pulmonary Performance in Children?"

DR. WITORSCH: Yes.

MS. SHERMAN: Why was this study undertaken?

DR. WITORSCH: Why was it undertaken?

MS. SHERMAN: Yeah.

DR. WITORSCH: I think there were questions about how well the various studies that addressed that area had considered confounding variables and had considered some other factors that we thought were worth looking at.

MS. SHERMAN: So this was an analysis of other published epidemiological studies?

DR. WITORSCH: It was, but it involved a way of analyzing the data, and a tabulation, a computer-assisted tabulation that we applied to the data.

MS. SHERMAN: But it was not an original epidemiological...

DR. WITORSCH: That's correct. It was not an original epidemiological study.

MS. SHERMAN: Who funded the study?

DR. WITORSCH: I believe we got funding from the tobacco industry, and I don't recall if it was the Tobacco Institute or Philip Morris. I just don't recall at this point. It should be referenced in the paper.

MS. SHERMAN: Did you see any effect in the study of ETS exposure on the pulmonary performance of children?

DR. WITORSCH: I think the bottom line is that you really can't conclude it. This is the pulmonary performance. Is that specifically?

MS. SHERMAN: Excuse me?

DR. WITORSCH: Specifically pulmonary performance you're referring to.

MS. SHERMAN: Yes. Pulmonary performance.

DR. WITORSCH: Looking across the data, we found no consistent association among the studies between parental smoking and pulmonary function in children. This is all related to school-age and older children, because there were no pulmonary function, or there is not enough if there was any, pulmonary function data related to younger children.

MS. SHERMAN: In reviewing the literature when you were conducting the study, did you come across any articles that claimed that there was an increased risk of middle ear infections in children with smoking parents?

DR. WITORSCH: There were articles that claimed that, reported that. There were also articles that reported no such association. In fact there were a greater number of articles, as I recall, of 17 papers, 17 studies, my recollection is that 11 of them found no association and six of them reported an association.

MS. SHERMAN: In your opinion does parental smoking increase the risk of middle ear infection for children?

DR. WITORSCH: I don't think the data allows us to conclude that. I can't say that it doesn't, but I think we certainly cannot say that it does at this point.

MS. SHERMAN: Is that because of inconsistent results in studies?

DR. WITORSCH: I think there are inconsistent results and there methodologic problems with the studies. Again, in all of these studies there's inadequate consideration of potential confounding variables. You're dealing with studies that have risk ratios, odds ratios that are in the range where all you need is a little bias and most epidemiologists would consider that a gray area. That raises the suspicion of bias due to confounding and other factors.

MS. SHERMAN: Would you consider parental smoking a risk factor for middle ear infection in children?

DR. WITORSCH: I don't think we have enough data to know that yet. Or enough good data to know that yet.

MS. SHERMAN: Do you agree with the views published by the surgeon general that ETS causes respiratory problems in children?

DR. WITORSCH: I think that statement is... No, I don't agree with that statement because I think it's not supported by the data.

MS. SHERMAN: Then you don't agree with a similar statement made by EPA or the NAS?

DR. WITORSCH: That's correct.

MS. SHERMAN: Do you advise patients as to whether they should smoke around their children?

DR. WITORSCH: That issue hasn't really come up.

MS. SHERMAN: You've never had any occasion to advise them to do so, or to refrain from doing so?

DR. WITORSCH: No.

MS. SHERMAN: How would you advise them?

DR. WITORSCH: I think that probably the better part of valor would be not to, but I think that's more just because we don't know the answer to the question.

MS. SHERMAN: So it's better to err on the side of safety.

DR. WITORSCH: Yes.

MS. SHERMAN: In some material submitted to the record by WashTech, certain studies were cited concerning animals exposed to environmental tobacco smoke for 90 days, and they exhibited reversible cellular changes in their nasal cavities and the pulmonary tree. Are you familiar with these studies?

DR. WITORSCH: I don't know the specific studies that you're referring to. I've seen studies, but I don't recall the details of them.

MS. SHERMAN: In your 1992 submission you quote the 1986 NAS/NRC report on passive smoking to support the position that ETS does not cause heart disease. Are you aware of the fact that Dr. Glantz who was OSHA's witness on this issue, stated for the record that this was a reasonable conclusion at the time it was written nine years ago in 1986?

DR. WITORSCH: No, I'm not familiar with Dr. Glantz's testimony.

MS. SHERMAN: Has there been any important research published in the peer-reviewed literature on the epidemiology of ETS and heart disease since 1986?

DR. WITORSCH: Are you talking about original studies or...

MS. SHERMAN: Both.

DR. WITORSCH: There may have been. I 'm not that familiar with the...

MS. SHERMAN: Would it be fair to say that most of the epidemiological research on ETS and heart disease was published after the 1986 NAS report?

DR. WITORSCH: I don't know. I have not looked at that in awhile. I can't answer that question.

MS. SHERMAN: Has there been any important research published on the biochemical and physiological mechanisms which explain the effects of ETS on the cardiovascular system in the nine years since the NAS report was published?

DR. WITORSCH: I can't answer that.

MS. SHERMAN: So you're really not familiar with any recent developments in the...

DR. WITORSCH: I've read the literature, but I can't recall anything that I would necessarily characterize as important, and I have not looked at that literature in any detail recently. I certainly didn't look at it in preparation for today.

MS. SHERMAN: Are you aware of the fact that in 1992 and again in 1994 the American Heart Association identified passive smoking as a cause of heart disease?

DR. WITORSCH: Yes.

MS. SHERMAN: You disagree with this?

DR. WITORSCH: Oh, yes.

MS. SHERMAN: On page 25 of your submission in response to our request for information, you summarized the results of a study by Kalphin and Klokov, I believe is how the person pronounces their name, that showed that after two hours of ETS exposure, people with ischemic heart disease showed a significant decrease in exercise tolerance?

DR. WITORSCH: I'm sorry. Which submission are you talking about?

MS. SHERMAN: I'm talking about a submission you made to us in 1992 in response to our request for information. I think I have it here if you'd like to look at it.

DR. WITORSCH: Yeah, I would, because I have not looked at that.

(Document handed to witness)

(Pause)

DR. WITORSCH: What page?

MS. SHERMAN: I believe it was page 25, but now you have it and I don't.

DR. WITORSCH: Okay, yes.

(Pause)

MS. SHERMAN: Would you agree that the common clinical interpretation of this finding is that the ETS is reducing the ability of the heart to function?

DR. WITORSCH: I can't really say what the common clinical interpretation of that would be. I think my interpretation of that is stated here.

MS. SHERMAN: I think you noted that McMurray et al in 1985 found a small but statistically significant drop in exercise tolerance of healthy young people following ETS exposure. Would it be fair to say that while you personally question the physiological significance of this change, you're confident that EPS exposure did reduce the exercise tolerance in these individuals?

DR. WITORSCH: No, I don't think that's correct.

MS. SHERMAN: Then how would you explain it?

DR. WITORSCH: I'd have to look. I'm pretty sure I did not conclude that ETS caused a reduction, but I'd have to go back and look at that as to what the mechanism...

MS. SHERMAN: That was McMurray et al.

DR. WITORSCH: Yes, I understand that.

(Pause)

DR. WITORSCH: In this particular...

MS. SHERMAN: I think it's there. I just don't have a page...

DR. WITORSCH: I'm sorry, I don't recall.

MS. SHERMAN: It's probably between pages 25 and 28.

DR. WITORSCH: Okay.

(Pause)

MS. SHERMAN: If it would be easier for you, perhaps you could do this in a post-hearing comment rather than leafing through it all now.

DR. WITORSCH: Sure. I'd be happy to. I think that would probably save us a lot of time.

MS. SHERMAN: Okay.

I believe that you criticize Glantz and Parmley's 1991 paper that demonstrated that ETS causes heart disease for "failing to look for refuting data."

What specific published epidemiological studies did they omit?

DR. WITORSCH: I don't recall that at this time. I'd have to go back and look at that again.

MS. SHERMAN: I'd also like you to look at what specific laboratory-published studies they omitted.

DR. WITORSCH: Okay.

MS. SHERMAN: And what specific published biochemical and cellular studies did they omit.

DR. WITORSCH: I'll be happy to.

MS. SHERMAN: I'm interested primarily in published studies.

DR. WITORSCH: Yes.

MS. SHERMAN: I think you also criticized Glantz and Parmley for not taking the work of Dobson into account in their risk assessment?

DR. WITORSCH: I may have. You have the advantage of me. This was back in 1992, and this is now 1995, and I really don't recall the details of that.

MS. SHERMAN: I think you'll find that on page 31.

(Pause)

MS. SHERMAN: I'm just trying to demonstrate that we read things carefully here.

DR. WITORSCH: Okay.

MS. SHERMAN: Are you aware of the fact that the Dobson study was published after the Glantz and Parmley study?

DR. WITORSCH: I'm not, no.

MS. SHERMAN: Are you aware of the more recent meta-analysis of ETS and heart disease published by Judson Wells in the Journal of the American College of Cardiology in August of this year?

DR. WITORSCH: I'm aware...

MS. SHERMAN: Excuse me, of last year.

DR. WITORSCH: I'm aware that it exists, but I have not looked at it in any detail.

MS. SHERMAN: Are you aware of the fact that it included the Dobson study as well as several other newer epidemiological studies of ETS and heart disease?

DR. WITORSCH: I'm not, no.

MS. SHERMAN: Are you aware of the fact that the risk assessment reported more ETS than Glantz and Parmley did?

DR. WITORSCH: I'm not, no.

MS. SHERMAN: Do you think that nicotine or cotinine is a good biomarker for ETS?

DR. WITORSCH: I think they have limitations, mainly that they don't stay around very long. I think nicotine is relatively quickly transformed into cotinine. I think cotinine is a biomarker for recent exposure, matter of days exposure, but it doesn't give you any information as far as long term exposure. Nicotine, at best, will give you hours exposure. So again, it has very limited value.

MS. SHERMAN: Are there any other sources for nicotine?

DR. WITORSCH: You're getting a little bit out of my area of expertise. My understanding is that there are small amounts of nicotine in certain vegetables, tomatoes, I believe. But I don't know beyond that how significant those are.

MS. SHERMAN: Do you know how many egg plants, which is one of the things I believe that contains nicotine, one must eat to get the cotinine levels to the level of cotinine and people found to be exposed to ETS?

DR. WITORSCH: I haven't the faintest idea.

MS. SHERMAN: I think you noted that the EPA report has been criticized. That's correct, isn't it?

DR. WITORSCH: Yes.

MS. SHERMAN: Do you know of anyone who has published criticism of the EPA report, in the scientific literature, other than people with financial ties to the tobacco institute or its constituent organization?

DR. WITORSCH: I don't really know who does and doesn't have financial ties. I really can't answer that. There have been criticisms published by a number of people. I believe... I honestly don't know who does and doesn't have financial ties, so I don't think I can answer that question.

MS. SHERMAN: What do you think is the best criticism that was published?

DR. WITORSCH: The best criticism?

MS. SHERMAN: I assume you're familiar with some of the criticisms that have been published in the EPA report.

DR. WITORSCH: I'm sorry, in media reports?

MS. SHERMAN: The EPA report.

DR. WITORSCH: I don't know if I can characterize the best criticism. I think there have been a number of criticisms about the process and about the data.

MS. SHERMAN: Can you name some that you think are good?

DR. WITORSCH: Not off the top of my head.

MS. SHERMAN: Perhaps you can in a post-hearing comment.

DR. WITORSCH: Okay.

MS. SHERMAN: I believe that the 1989 Surgeon General's report concludes that smoking is responsible for more than one out of every six deaths in the United States. Do you believe the Surgeon General is wrong?

DR. WITORSCH: I don't know the basis for that statement, so I can't comment on it.

MS. SHERMAN: You're not familiar with the 1989 Surgeon General's report?

DR. WITORSCH: I'm familiar with its existence and I've glanced at it, but I don't recall the basis for that statement.

MS. SHERMAN: That same report concludes that "Smoking remains the single most important preventable cause of death in our society. Do you agree or disagree with that solution?

DR. WITORSCH: I really don't know the answer to that.

MS. SHERMAN: In 1986 the Surgeon General concluded that involuntary smoking was a cause of lung cancer. Do you disagree with that?

DR. WITORSCH: Yes.

MS. SHERMAN: On what basis do you disagree with it.

DR. WITORSCH: I don't think the data support it.

MS. SHERMAN: Have you ever published an original research on sick building syndrome?

DR. WITORSCH: Original studies, no.

MS. SHERMAN: Have you done any original studies on environmental tobacco smoke?

DR. WITORSCH: No.

MS. SHERMAN: I believe you criticized OSHA for relying on congressional testimony of a Mr. Shapiro who was an APA employee involved as a plaintiff in the EPA Sick Building law suit.

Isn't it true that you were an expert witness for the building owner in that case?

DR. WITORSCH: Yes.

MS. SHERMAN: In your comment, did you disclose this fact to us?

DR. WITORSCH: No, I didn't. That was an oversight.

MS. SHERMAN: You think it was a relevant consideration?

DR. WITORSCH: You think it was, so I should have mentioned something about it.

MS. SHERMAN: I think you cited the work of Dr. Avatier in support of your contention that clinical ecology is without valid foundation?

DR. WITORSCH: Among other things, yes.

MS. SHERMAN: Isn't it true that the National Research Council's 1992 report on biologic markers in immunotoxicology, that in that work Dr. [Tares] work was criticized by NRC as a "poorly supported opinion expressed by one who has evaluated patients on behalf of a workers compensation board?"

DR. WITORSCH: I don't know.

MS. SHERMAN: You stated that OSHA inappropriately minimized the role of psychological factors in the genesis of sick building syndrome, and you went on to observe that the chronic, non-specific health complaints are virtually always related to psychogenic factors, isn't that true?

DR. WITORSCH: That's correct. That's been my experience.

MS. SHERMAN: Are you aware that the National Research Council in its 1992 report on biologic markers in immunotoxicology concluded that "The sick building syndrome is a real phenomenon and the hypothesis that the syndrome is solely of psychologic origin is not consistent with existing data?"

DR. WITORSCH: You realize you're talking about apples and oranges right now. That conclusion refers to the sick building syndrome as opposed to chronic, non-specific complaints. The sick building syndrome is not a syndrome involving chronic, non-specific complaints.

MS. SHERMAN: So you believe that in sick building syndrome you can always find out the cause?

DR. WITORSCH: No, but in sick building syndrome, if you're referring to an acute, self-limited condition directly related to exposure which then gets better with the absence of exposure, may very well be related to identifiable, related to physical factors, although in most cases they're not identified.

That's different from the situation of, I guess you might characterize it as post sick building syndrome, chronic, non-specific complaints that continue beyond the period of exposure. I think that's what my statement was referring to.

MS. SHERMAN: I'm having a little difficulty understanding this distinction. Your statement... Okay. You said that OSHA minimized the role of psychological factors in the genesis of sick building syndrome.

DR. WITORSCH: Yes.

MS. SHERMAN: Now, we're going on to chronic, non-specific health complaints. You're saying this is not related to sick building syndrome?

DR. WITORSCH: No, I think chronic, non-specific health complaints as a sequela of sick building syndrome, was also alluded to. Sick building syndrome is not a chronic illness.

MS. SHERMAN: Sick building syndrome complaints occur over long periods of time, do they not?

DR. WITORSCH: Only while the person is in the building.

MS. SHERMAN: AS soon as the person leaves the building, you're saying that they would dissipate?

DR. WITORSCH: Within a reasonable period of time. Within a matter of hours to days from leaving the building. What I was referring to are longer term post-exposure effects which I think are, in my experience, for the most part are not exclusively related to anything in the building.

MS. SHERMAN: Are you talking about things like multiple chemical sensitivity?

DR. WITORSCH: Among other things.

MS. SHERMAN: What other types of things...

DR. WITORSCH: There are other people who complain they have just continued symptoms related to the building, even though they haven't been in the building for a year or two.

MS. SHERMAN: Then your remark was limited to people who are separated by vast amounts of time from presence in the building.

DR. WITORSCH: One of my remarks. I think OSHA also did not adequately highlight the possible role of psychogenic factors in the acute problem also, because I think what happens sometimes is you have some individuals who are having a reaction to some allergen, and other people who are having a reaction that has a psychogenic basis. I think you see that in sick building syndrome in the cute illness.

But the remark about chronic, non-specific health complaints was related to longer term complaints that occur at times remote from being in the building, whether it's weeks or months or years afterwards.

MS. SHERMAN: Then you would agree with the statement that sick building syndrome is a real phenomenon.

DR. WITORSCH: I think the acute sick building syndrome is probably a real phenomenon. Probably. I'm not certain, because I think we don't have enough data, in spite of a lot of observations. But I think it is more plausibly a real phenomenon. It's troubling that no one has really been able to pinpoint the particular causative factor, but probably there are multiple causes.

MS. SHERMAN: But again, one need not be able to explain mechanism to know a result.

DR. WITORSCH: One need not, but it's certainly helpful to have a mechanism.

MS. SHERMAN: It gives one added confidence, perhaps.

DR. WITORSCH: Correct.

MS. SHERMAN: So you do not believe that cases of sick building syndrome are explicable solely on psychological...

DR. WITORSCH: Some are. I think some are and some are not. I don't believe that all sick building syndromes are psychogenic illness, no. But are there some cases of sick building syndrome where the basis is psychogenic? Yes, I think clearly.

MS. SHERMAN: Have you had cases of sick building syndrome that you believed were not psychogenic?

DR. WITORSCH: Yes.

MS. SHERMAN: Have you been able to come to the bottom. Have you been able to discern a cause?

DR. WITORSCH: Sometimes. Now we may be getting into a semantic here because in part by the operational definition of sick building syndrome that some people use, the minute you identify a cause you've removed the patient from sick building syndrome. But I've clearly seen people who have had an IGE mediated atopic allergic reaction to mold or something like that contaminating a building that accounted for their upper respiratory symptoms and sometimes lower respiratory symptoms that were considered, and that fulfilled the criteria for sick building syndrome. And most likely, that represented that.

I've seen other instances where ultimately a substance or a material could be identified. I've seen others where we couldn't pinpoint what the cause was, but clearly psychogenic factors were not important in that person, and it was most likely a physical reaction, even if we couldn't identify it. But I've also seen people in whom it was a psychological reaction.

MS. SHERMAN: In the instances where you found people with increasing sensitivity to molds, were you able to discern if the problem was with the maintenance of the HVAC system in the building?

DR. WITORSCH: Sometimes. I mean it varies.

MS. SHERMAN: Thank you.

JUDGE VITTONE: Thank you, Ms. Sherman.

Let me get a demonstration of who has questions.

Mr. Myers, Mr. Rupp, Mr. Lowe.

It's a little after four, let me get an estimate.

Mr. Myers?

MR. MYERS: An hour and 45 minutes, maybe less.

JUDGE VITTONE: Mr. Lowe?

MR. LOWE: I might have maybe ten minutes.

JUDGE VITTONE: Mr. Rupp?

MR. RUPP: Ten minutes.

JUDGE VITTONE: Mr. Myers?

MR. MYERS: Can I get a brief break?

JUDGE VITTONE: Sure.

Let's take a short recess.

JUDGE VITTONE: On the record.

Before we begin further examination for the record, let me just make sure that I've identified Dr. Witorsch's slides as Exhibit No. 214.

(The document referred to was marked for identification as Exhibit No. 214, and was received in evidence.)

JUDGE VITTONE: Mr. Myers?

MR. MYERS: Dr. Witorsch, my name is Matthew Myers. I represent a number of individuals, as well as a number of organizations like the Association of Flight Attendants, the Association of State and Territorial Health Officials, the American Medical Association and although I'm not here representing them, I also am here on behalf of the American Cancer Society, the American Lung Association, the American Heart Association.

I was struck by something you said, and I just wanted to make sure I heard it correctly. When Ms. Sherman asked you what you tell your patients with regard to exposure to environmental tobacco smoke, I put quotes around the answer. You wrote, "That hasn't come up in your practice."

Did I hear you right?

DR. WITORSCH: She was asking specifically with regard to children.

MR. MYERS: With regard to children.

DR. WITORSCH: That's correct.

MR. MYERS: With regard to smoking.

DR. WITORSCH: Yes.

MR. MYERS: Do you have any adults who have children with emphysema or asthma or any other respiratory diseases?

DR. WITORSCH: I have, I don't have any adults who have children with emphysema. I have children with asthma, yes.

MR. MYERS: And you never brought it up with them?

DR. WITORSCH: I don't recall that I did, no.

MR. MYERS: What do you advise your patients with regard to active smoking, direct smoking, their own smoking? Do you give them any recommendation at all?

DR. WITORSCH: Yes, most of the patients that I see who smoke, I would advise not to smoke.

MR. MYERS: Do you actually advise them not to smoke?

DR. WITORSCH: Yes.

MR. MYERS: So you affirmatively advise them not to smoke, but you give no recommendation to parents of children with asthma.

DR. WITORSCH: Most of the time that just hasn't come up as an issue.

MR. MYERS: And you don't bring it up.

DR. WITORSCH: No.

MR. MYERS: Do you ever ask those individuals whether their children are having respiratory problems when they smoke around them?

DR. WITORSCH: I don't recall in recent years an individual who smoked who had a child with asthma that I've seen in my practice.

MR. MYERS: Something else you said, because I was struck from reading your comments, you used the phrase "fringe practitioner." It's not one that I had heard before. That was, I'm gathering what you're telling us today is that you determine who is a fringe practitioner by what they say as opposed to what's on their resume? That seemed to be how you defined it for Ms...

DR. WITORSCH: No, I think the term fringe practitioner is not one that I coined and that...

MR. MYERS: You used it.

DR. WITORSCH: I used it, yes.

MR. MYERS: And you used it to talk about people whose views were out of the mainstream.

DR. WITORSCH: I was specifically talking about people who espouse the philosophy, I guess, for want of a better word, of clinical ecology, which I think is generally considered to be a fringe practice.

MR. MYERS: But you said quite clearly what we ought to do is look at the positions they're advocating, rather than whether they have a good resume.

DR. WITORSCH: Yeah. I don't think you necessarily have to look at the resume. Lawyers look at the resume. I think you have to look at what people are saying and the basis for it.

MR. MYERS: When Ms. Sherman asked you about a number of organizations, I'd like to go back and make sure I understand that.

The American Cancer Society has formally concluded environmental tobacco smoke is a cause of lung cancer. Are you familiar with their position

DR. WITORSCH: I'm familiar with that, yes.

MR. MYERS: And you disagree with that.

DR. WITORSCH: Yes.

MR. MYERS: The National Institute of Occupational Safety and Health has concluded that environmental tobacco smoke is a cause of potentially serious disease. Are you familiar with that as well?

DR. WITORSCH: Yes.

MR. MYERS: And you disagree with them as well?

DR. WITORSCH: Yes.

MR. MYERS: Not one, but as I understand it, every single living Surgeon General of the United States -- that includes Drs. Koop, Novello, and Elders among recent ones, as well as the past ones -- have concluded that environmental tobacco smoke is a cause of respiratory disease in children, and is also a cause of lung cancer in otherwise healthy adults. I'm assuming you disagree with all of them, too.

DR. WITORSCH: Yes, I do.

MR. MYERS: You told us that you testified before the National Research Council of the National Academy of Sciences. What's the National Academy of Sciences?

DR. WITORSCH: I believe they're a, I think they're chartered by the government, but I believe they're a private organization. I'm not 100 percent certain. They may be a governmental organization.

MR. MYERS: Are they a prestigious, respected scientific body?

DR. WITORSCH: Yes.

MR. MYERS: You stated that you testified before them with regard to your views of environmental tobacco smoke. Is it fair to say that they concluded that in 1986, that there was sufficient evidence to conclude that environmental tobacco smoke was a cause of both respiratory problems and serious disease including lung cancer in otherwise healthy adults?

DR. WITORSCH: I don't recall that they concluded that it was a cause of respiratory problems other than lung cancer. In fact my recollection was that they did not. They did conclude that it was a cause of lung cancer. I specifically, as I recall, gave a presentation to them with regard to respiratory disease other than cancer, if my recollection serves me. Their conclusion struck me at the time as pretty much in line with the presentation that they made.

MR. MYERS: Do you agree with their conclusion on lung cancer?

DR. WITORSCH: No.

MR. MYERS: You also say you're a member of the American Lung Association and the American Thoracic Society.

DR. WITORSCH: Yes.

MR. MYERS: It's my understanding that the American Lung Association/the American Thoracic Society has also concluded that environmental tobacco smoke is a cause of serious diseases. Is that accurate?

DR. WITORSCH: Yes.

MR. MYERS: And you disagree with that?

DR. WITORSCH: Yes, I do.

MR. MYERS: The American Heart Association focused on cardiovascular disease, not surprisingly. It's my understanding that they have concluded that there is sufficient evidence today... Actually as of last year when they issued their major position paper, to find a causal link between environmental tobacco smoke and cardiovascular disease. Is that correct?

DR. WITORSCH: That's correct.

MR. MYERS: And you disagree with them?

DR. WITORSCH: Yes, I do.

MR. MYERS: It's also my understanding that the World Health Organization's IARC, which is their cancer research organization, looked at this issue and also concluded that there was sufficient evidence to conclude that there was a link between environmental tobacco smoke and lung cancer, as well. Is that right?

DR. WITORSCH: I believe that's correct.

MR. MYERS: It goes without saying that you disagree with them.

DR. WITORSCH: Yes.

MR. MYERS: As an internal medicine doctor, are you a member of the American Society of Internal Medicine?

DR. WITORSCH: Yes, I am.

MR. MYERS: I too have done work with them and have reviewed their policies on this issue, and their policies are in line with the American Cancer Society and the American Lung Association and the Public Health Service and the others. So it would be fair to say that you disagree with their conclusions?

DR. WITORSCH: Yes, I don't know... I'm not familiar with their position on that. But if in fact that is their position, I would disagree with it.

MR. MYERS: It's my understanding that you've actually gone as far as Australia to testify on this issue, is that right?

DR. WITORSCH: Yes.

MR. MYERS: And that the Australian National Heart and Medical Research Council has also looked at this issue and reached a conclusion that there is sufficient evidence that Environmental Tobacco Smoke is a cause of serious disease, including lung cancer.

DR. WITORSCH: I believe that's correct.

MR. MYERS: What about your own institution? George Washington University Medical Center. It's my understanding that they have banned smoking in their facilities as well, out of health concerns. Is that...

DR. WITORSCH: They have banned smoking. I really don't know the basis for it, but they have banned smoking. I'm not familiar with the reasons, but it is a non-smoking institution.

MR. MYERS: Did you tell them you thought there was no adequate science to support that conclusion?

MR. MYERS: No.

My opinion wasn't asked, and I didn't offer it.

MR. MYERS: I guess I'm looking for a major, respected scientific medical organization that doesn't receive direct funding from the tobacco industry, that agrees with your position.

(Pause)

DR APT: Is there?

DR. WITORSCH: I don't know.

MR. MYERS: You can't name one?

DR. WITORSCH: No.

MR. MYERS: When was the first time the tobacco industry paid you to look at environmental tobacco smoke issues?

(Pause)

DR. WITORSCH: Probably back in 1985 or so.

MR. MYERS: Given that you currently believe that environmental tobacco smoke isn't a cause of serious disease, it goes without saying that you had the same view then.

DR. WITORSCH: After I looked at the data, I reached that opinion, yes.

MR. MYERS: In going over the curriculum vitae that you provided before which I understand is about a year out of date. I counted, it looks like between eight and ten symposia that you've attended on this issue.

Would it be fair to say that virtually all, if not all of them were funded by the tobacco industry?

DR. WITORSCH: I don't know if the symposia all were. In many cases, perhaps most cases, my expenses were...

MR. MYERS: Was there ever a time when they weren't?

DR. WITORSCH: I'd have to look and see. Do you want me to take a look?

MR. MYERS: Yes.

(Pause)

DR. WITORSCH: As far as, the best I can tell, the conferences dealing with environmental tobacco smoke, my expenses were supported by the industry, yes.

MR. MYERS: Was your time also paid for by the tobacco industry?

DR. WITORSCH: Sometimes. Sometimes not.

MR. MYERS: My understanding is that when you went to Australia that you were paid $275 an hour for eight hour days for each day you were gone. Is that accurate?

DR. WITORSCH: That may be. I don't recall.

MR. MYERS: You've testified to that under oath previously.

DR. WITORSCH: Then that is accurate.

MR. MYERS: A little over $2,000 a day.

Have you traveled abroad for the tobacco industry at other times as well?

DR. WITORSCH: Other than the symposia listed?

MR. MYERS: Yes.

DR. WITORSCH: I don't recall that I have. I may have on one or two occasions, but I don't recall.

MR. MYERS: Did you ever go to South Africa to talk about environmental tobacco smoke?

DR. WITORSCH: Yes, I did.

MR. MYERS: Did you ever go to Sri Lanka to talk about environmental tobacco smoke?

DR. WITORSCH: Yes.

MR. MYERS: Both of those occasions you were paid by the tobacco industry?

DR. WITORSCH: Yes.

MR. MYERS: Time and expenses?

DR. WITORSCH: Yes, I believe so.

MR. MYERS: Roughly the same rates, a little over $2,000 a day?

DR. WITORSCH: That's correct.

MR. MYERS: As I've looked over this, it looks to me that you've received funding from the tobacco industry every single year since you first started.

DR. WITORSCH: That may be correct. I don't know.

MR. MYERS: Is the same true for your brother?

DR. WITORSCH: I don't think so, but I don't know for sure.

MR. MYERS: Since you were first hired by the tobacco industry, have you ever given a paper in which you expressed an opinion contrary to the desired opinion of the tobacco industry?

DR. WITORSCH: I don't know if they agreed with all of the opinions that I gave. I can't answer that.

MR. MYERS: They've always reviewed your papers haven't they?

DR. WITORSCH: Not necessarily, no.

MR. MYERS: They looked at your testimony here before it was submitted, did they not?

DR. WITORSCH: Yes.

MR. MYERS: Was that Mr. Rupp?

DR. WITORSCH: I believe Mr. Rupp looked at it but I'm not certain.

MR. MYERS: Was he also provided drafts of testimony you've given on other occasions?

DR. WITORSCH: Sometimes. Not always.

MR. MYERS: In fact he traveled with you to South Africa did he not?

DR. WITORSCH: On one occasion, yes.

MR. MYERS: How many times have you been to South Africa?

DR. WITORSCH: No, on one occasion he traveled with me to South Africa.

MR. MYERS: And he traveled with you on the trip to Sri Lanka, did he not?

DR. WITORSCH: I don't recall.

MR. MYERS: Have you taken any other trips in which you were being paid by the tobacco industry?

DR. WITORSCH: The trip to Sri Lanka also involved another place which I can't recall in the same area. And there may have been, other than the ones listed in the symposia, there may have been one or two others.

MR. MYERS: When you traveled to those countries, you were part of literally a touring group on behalf of the tobacco industry that included yourself, Mr. Rupp, another physician funded by the tobacco industry, isn't that right?

DR. WITORSCH: There were other individuals participating in the symposium.

MR. MYERS: And they were public symposia, where the press was invited on those occasion.

DR. WITORSCH: Sometimes, yes.

MR. MYERS: While you spoke about environmental tobacco smoke, one of the other physicians raised serious questions about the scientific evidence linking active smoking to any disease, isn't that right?

DR. WITORSCH: One of the other scientists. Not a physician.

MR. MYERS: Do you agree with those views?

DR. WITORSCH: I agreed with some of the things. I didn't agree with others.

MR. MYERS: Did you ever indicate to anyone that... Well, let me step back.

Do you think the scientific evidence is adequate to conclude that smoking is a cause of, and I'm using the word cause very specifically, not associated with, of lung cancer?

DR. WITORSCH: I answered this earlier. I think that smoking is a risk factor. I think it's too complex to conclude its cause.

MR. MYERS: So that you would disagree with all of those other scientists and scientific bodies that find sufficient evidence to conclude that cigarette smoking is an independent cause of lung cancer.

DR. WITORSCH: As opposed to a risk factor, yes.

MR. MYERS: If that's true for lung cancer I'm assuming it's true for cardiovascular disease.

DR. WITORSCH: Yes.

MR. MYERS: What about emphysema and chronic bronchitis?

DR. WITORSCH: The same would be true there.

MR. MYERS: The same would be true.

As a physician, have you ever looked at the lung of a smoker with lung cancer?

DR. WITORSCH: Yes.

MR. MYERS: Does it look the same as the lung of a non-smoker?

DR. WITORSCH: It depends on how much the person smokes and what sort of air pollution they've been exposed to. Sometimes it does, sometimes it doesn't.

MR. MYERS: Often the lung of a lung cancer victim who smoked looks entirely different, does it not?

DR. WITORSCH: I don't know about entirely. It may have some differences.

MR. MYERS: But those clinical differences aren't sufficient in your mind to draw a causal link as far as you're concerned?

DR. WITORSCH: Not necessarily. You're talking about looking at the lung pathologically? Are you talking about looking at the lung on an X-ray?

MR. MYERS: I'm looking at it any way you would as a physician.

DR. WITORSCH: It varies. I think pathologically you may see differences more often than you'll see some other way. But no, I don't think that really is sufficient to draw an independent causal conclusion.

MR. MYERS: Have you looked at the animal studies that have been done with regard to tobacco smoke condensate in causing cancerous tumors?

DR. WITORSCH: Yes.

MR. MYERS: In your opinion, those combined with the clinical or pathological data aren't adequate to draw a causal link, is that correct?

DR. WITORSCH: That's correct.

MR. MYERS: Have you looked at the broader epidemiological studies that have been done, both in this country and elsewhere? In combination with those other scientific factors. And coming in all three of them, you still conclude there's not sufficient evidence to draw the conclusion that tobacco smoke is an independent cause of lung cancer?

DR. WITORSCH: That's correct.

MR. MYERS: The same is true for chronic bronchitis and emphysema and cardiovascular disease?

DR. WITORSCH: Yes.

MR. MYERS: Has there been an epidemiological study ever designed that you would find adequate to draw that conclusion?

DR. WITORSCH: I don't think the science of epidemiology is adequate to reach that conclusion. I think epidemiological studies by themselves are not adequate to reach that conclusion.

MR. MYERS: And epidemiological studies in combination with the type of clinical, animal and pathological data that we have for direct smoking is still, those studies are still not adequate?

DR. WITORSCH: To conclude as an independent cause they're not adequate. To conclude that it's a risk factor, I think they're adequate.

MR. MYERS: So you would disagree with the Surgeon General's discussion, as long ago as 1964, that talks about the multiple factors that you would look at with an epidemiological study to draw a distinction between causation and risk factor. You would disagree with that.

DR. WITORSCH: I don't recall the details of that.

MR. MYERS: You're not familiar with those criteria?

DR. WITORSCH: I read them a long time ago.

MR. MYERS: Are there standard criteria for drawing a distinction using epidemiological studies in combination with others?

DR. WITORSCH: There are criteria that people have put forth. I'm not sure how standard they are or how widely acceptable.

MR. MYERS: But you don't find them acceptable.

DR. WITORSCH: Well, I don't find the conclusions that have been reached acceptable.

MR. MYERS: You've done some work on nicotine as a biomarker. Would you agree with the scientific evidence that suggests, I'll put it that way for you, that nicotine causes drug dependence?

DR. WITORSCH: I don't have enough expertise in that area to have a conclusion about that.

MR. MYERS: As a physician who's looked at these issues, you lack expertise to conclude that it causes drug dependence?

DR. WITORSCH: Well, drug dependence is a very complex issue and --

MR. MYERS: Everything is a complex issue.

DR. WITORSCH: Yes.

MR. MYERS: I'm asking you as a --

DR. WITORSCH: Yes. I don't know.

MR. MYERS: You don't know.

DR. WITORSCH: No.

MR. MYERS: Have you had patients who you've helped quit smoking?

DR. WITORSCH: Yes.

MR. MYERS: Have you seen them go through symptoms of drug withdrawal?

DR. WITORSCH: Well, they've had discomfort. I'm not sure it's the same as symptoms of withdrawal from drugs like heroin. They have not been the same.

MR. MYERS: Does nicotine have effect on the cardiovascular system and carboxyhemoglobin and how much oxygen it can carry?

DR. WITORSCH: Nicotine can affect the cardiovascular system. I'm not sure nicotine directly affects carboxyhemoglobin. Carbon monoxide does.

MR. MYERS: Does it affect the amount of oxygen that a fetus receives if the mother smokes?

DR. WITORSCH: Nicotine or carbon monoxide?

MR. MYERS: Carbon monoxide. Whichever you choose. Is there anything in tobacco smoke that --

DR. WITORSCH: Potentially, it can. Whether it's quantitatively sufficient to do that, I don't know.

MR. MYERS: You don't know. You don't know that one way or the other, you haven't looked at that issue.

DR. WITORSCH: Yes. I don't think that the evidence is good enough to reach a conclusion. I think it's plausible but I don't think there's enough evidence to reach the conclusion that it does in fact have a significant effect.

MR. MYERS: Do you go out of your way to advise patients of yours who are pregnant as to whether or not they should smoke?

DR. WITORSCH: Yes.

MR. MYERS: What do you tell them?

DR. WITORSCH: And I tell that they shouldn't smoke.

MR. MYERS: Could you tell me what epidemiologic studies you relied on for your conclusion that the psychogenic factor is a major cause of -- I think you called it chronic non-specific respiratory problems?

DR. WITORSCH: Well, there are a large number of studies, you're talking about now the sick building syndrome related area?

MR. MYERS: I'm talking about epidemiologic studies.

DR. WITORSCH: Yes. Yes. I have to -- I have a chapter that I wrote in a book that I edited dealing with that and I have a whole bibliography here. I can look through that and point out which ones or just give it to you, if you would like.

MR. MYERS: Is your book --

DR. WITORSCH: It's been published, yes.

MR. MYERS: Is it in the record here?

DR. WITORSCH: I believe it has been submitted to the record.

(Pause)

MR. MYERS: Okay. This is entitled "Conditions with an Uncertain Relationship to Air Pollution, Sick Building Syndrome, Multiple Chemical Sensitivities and Chronic Fatigue Syndrome." Is this the article?

DR. WITORSCH: Yes.

MR. MYERS: This is the article that you were referring to by yourself and Sorell, S-O-R-E-L-L, Schwartz, who is at Georgetown, I believe.

DR. WITORSCH: That's correct.

MR. MYERS: This is the source of the epidemiologic studies?

DR. WITORSCH: No, I said that has a lot of references that --

MR. MYERS: Well, I'm looking for the source of the epidemiologic studies because you obviously feel they're adequate to draw a conclusion, whereas all the others that we've talked about, the thousands that deal with direct smoking and those that deal with ETS, are not. So I would like to understand what they did right that everybody else did wrong.

DR. WITORSCH: I don't think I'm relying entirely on epidemiological studies.

MR. MYERS: But there are epidemiological studies --

DR. WITORSCH: I believe there. Yes.

MR. MYERS: What's the difference between those? If you could, here's this back, point us to the ones you think were done right.

DR. WITORSCH: You'll have to come up.

(Pause)

DR. WITORSCH: I'm not sure if I can pick out specific epidemiologic studies here. There have been some epidemiologic studies, some clinical studies, that were done.

MR. MYERS: It's important because you've criticized in essence all of the epidemiologic studies that were done with regard to environmental tobacco smoke and certainly I assume that you're very critical of all of those done with active smoking because you find that they in combination with the other scientific data aren't adequate to draw a conclusion as to causation. So I'm looking for some guidance from you. How are we going to design it in a ethical manner and come up with something better than what we've got?

DR. WITORSCH: I don't think you can rely on an epidemiological study to reach a causal conclusion, so I can't point --

MR. MYERS: How did you reach your causal conclusion with regard to psychogenic disease? You didn't have any trouble reaching that one. You said it straight out. How did you reach that?

DR. WITORSCH: Based on clinical studies in the literature, based on my own clinical experience and based on some epidemiological studies, on the totality of the data.

MR. MYERS: Okay. Now, what are the clinical studies in the literature? I want to compare it to what --

DR. WITORSCH: Well, I mean, there are clinical studies in the literature, I would have to --

MR. MYERS: What are they?

DR. WITORSCH: I can't cite them off the top of my head.

MR. MYERS: Are they included in that article?

DR. WITORSCH: They are, many of them are included in this article. Yes.

MR. MYERS: So by reading that article we can tell which studies --

DR. WITORSCH: And the references --

MR. MYERS: -- that provide the base of information that you think is adequate to reach a causal relationship.

(Pause)

MR. MYERS: I was struck at pages six and seven as well as a few other places of the comments you filed here on August 8th. You make very broad sounding statements, things like the OSHA standard statement that older individuals and those with preexisting pulmonary disease are more susceptible to pulmonary effects with exposure to ETS. You go on to say this statement is not supported by any scientific literature and the sole source is yourself. And the following page, you talk about looking at all the published studies of exposure to ETS and pulmonary function. Again, you go on to say that the only two studies that find a positive relationship are seriously flawed and again cite only yourself.

Further on on that page, where you talk about the inappropriate and unjustified assumption that a biological response to a particular condition or set of conditions necessarily implies and adverse effect, you again cite only yourself.

Are there alternate cites for those assertions?

DR. WITORSCH: Well, the papers that I cited have references, alternate sources to that.

MR. MYERS: No other person doing the literature reviews obviously reached the same conclusion, otherwise you would have told us.

DR. WITORSCH: Not necessarily. No.

MR. MYERS: I also noticed a pattern and I'm having a hard time understanding. You seem to apply different standards of your review to those studies that find a causal link and to those that don't. Looking at the comments you filed again on August 8th on this issue, when you compare those studies that find there is an affirmative relationship with those that you don't, let me find you a specific cite --

I apologize. I'll take just a second. I'm almost through.

(Pause)

MR. MYERS: I apologize. In cutting this down, I decided to go a different route from my outline.

(Pause)

MR. MYERS: Maybe you can help me because it's the series of studies that you cited a few minutes ago, when you said that there were four each way.

DR. WITORSCH: Okay. Where in my statement --

MR. MYERS: If you can find that for me then I can speed things up.

DR. WITORSCH: Okay. I think I can do that.

(Pause)

JUDGE VITTONE: Studies addressing respiratory symptoms and ETS exposure in adults?

DR. WITORSCH: Yes.

JUDGE VITTONE: Is that it?

DR. WITORSCH: Yes. That's correct.

JUDGE VITTONE: That's Slide No. 8, if that helps.

DR. WITORSCH: I'm trying to find where it is in here.

MR. MYERS: Well, I won't take your time. I apologize. I can't find it. If it was that dynamic, I would have it nailed down better.

I would like to take you, however, to page seven of your comments and make sure I'm understanding you correctly as well. You're citing a study by Nakamura in which you postulate at the end that that study may even demonstrate that smoke exposure in the workplace has a protective effect for pregnant women against ETS intrauterine growth retardation.

DR. WITORSCH: You're not looking at the same paper that I just -- you're looking at the paper that my brother gave a presentation on.

MR. MYERS: It's got both of your names on it.

DR. WITORSCH: Yes. Yes. I did co-author that. Yes. I don't have that with me.

MR. MYERS: You don't have that with you?

DR. WITORSCH: No.

MR. MYERS: I think the other comment was on the same thing. Do you agree with the statement that there is some evidence that smoke exposure in the workplace may have a protective effect?

DR. WITORSCH: No, I don't think it does. I think one could interpret that that way but I don't think that's a correct interpretation.

MR. MYERS: In reviewing your C.V. and all of the articles or symposia that you've presented at on environmental tobacco smoke, I don't see anywhere where you disclose to the reader that in every single instance you were funded by the Tobacco Institute or the tobacco industry.

DR. WITORSCH: In the C.V.?

MR. MYERS: Yes.

DR. WITORSCH: No, I have not in the C.V. but I have it in anything published from there.

MR. MYERS: One last question. In the one actual court of law which I understand where you testified broadly about the issue of environmental tobacco smoke which was in Australia, am I right?

DR. WITORSCH: Yes.

MR. MYERS: And there, too, your testimony stated much as it did today, little evidence or none proves scientifically that environmental tobacco smoke causes disease in non-smokers, is that right?

DR. WITORSCH: That's correct.

MR. MYERS: It's fair to say that in that instance, as in the time when you testified before the National Academy of Sciences and before the Scientific Advisory Board, the Environmental Protection Agency, that your position was rejected?

DR. WITORSCH: No, not quite. The judge in that case ruled -- I guess his ruling was contrary to my opinion but the appeals court overturned that, it's my understanding, and I believe that overturning didn't reject that opinion.

MR. MYERS: In fact, Your Honor, I would be happy to provide you a copy of the appeals court decision which in fact upheld that portion of the lower court's ruling.

JUDGE VITTONE: I think we already have that in the record at some point.

MR. MYERS: Is that right? Then the record will speak for itself on that issue without any question.

I thank you, sir.

JUDGE VITTONE: Thank you, Mr. Myers.

Mr. Lowe?

MR. LOWE: I don't have any questions.

JUDGE VITTONE: Mr. Rupp?

MR. RUPP: Dr. Witorsch, may I move these so I can see you?

Were you surprised at low little Mr. Myers' examination and Ms. Sherman's examination related to the substance of the testimony you gave today?

DR. WITORSCH: Very little surprises me but otherwise I would have been surprised.

MR. RUPP: Let me go back to a couple of first principles, if I may.

When you undertake a consultancy, whether it's for an entity in the tobacco industry or any other interest, governmental, private, university, what criteria do you inform the putative sponsor that you will apply in reaching decisions and giving advice? What ground rules do you set for yourself and announce to the sponsor?

DR. WITORSCH: Well, the ground rules that I will always tell them what I think the facts are and the truth is, not necessarily what they want to hear and that I won't support a position that I don't agree with and that I will call things as I see them.

MR. RUPP: In your experience and the experience of colleagues at the university to the extent you are aware of them, is it unusual that the sponsor would ask to see a copy of your work product?

DR. WITORSCH: No, quite the contrary.

MR. RUPP: Now, when the sponsor does that, on those occasions if it occurs that the sponsor makes suggestions with which you disagree, what is your response?

DR. WITORSCH: Well, if I disagree with them, I inform the sponsor and we discuss them and if I still disagree with them, I won't take them.

MR. RUPP: Would it surprise you if the witnesses that OSHA sponsored in this proceeding, whether those scientists and individuals provided to OSHA in advance of filing in the docket office a copy of the statements they proposed to rely upon?

DR. WITORSCH: I'd be surprised if they didn't because when I've consulted with governmental agencies in a similar situation, I've provided comments in advance.

MR. RUPP: And in those cases where you've provided -- has that invariably been the case?

DR. WITORSCH: Yes. Almost invariably, yes.

MR. RUPP: Now, on those occasions, if someone from OSHA were to suggest to you a change or a change of focus, a change of substance, whatever it might be, with which you disagree, what would your response be?

DR. WITORSCH: Well, I would consider it and sometimes the suggestion is reasonable and it may be something that I've overlooked, then I would certainly consider it. Other times, if I disagree with it, then I would inform them that I disagree with it and ultimately would not accept anything with which I disagreed.

MR. RUPP: Why wouldn't you? Why wouldn't you just -- whatever the sponsor wanted to hear, why wouldn't any scientist, and we won't necessarily make this personal, but if you're a scientist affiliated with a major American university or a major university outside the United States, and I'm focusing on that type of individual for the moment, why if you think it to be the case are the opinions of those kinds of people not for sale to the highest bidder?

DR. WITORSCH: Well, because there's something called integrity and besides the fact that it is wrong to sell your opinions to the highest bidder, I think it's also a practical matter. If you're going to be a consultant, your integrity is your stock and trade besides your expertise. And if you don't have any integrity, then you're not going to be very successful as a consultant.

MR. RUPP: A number of the questions you were asked, more by Mr. Myers than by Ms. Sherman but I won't exclude her from this characterization, went to the question of integrity. Do you recognize that?

DR. WITORSCH: Yes.

MR. RUPP: And were I you, I would say, frankly, that I would have been highly offended by a number of those questions but you did not seem to evidence -- your reaction was quite measured. Why was your reaction measured as opposed to outraged? Maybe you're just not an outrageous kind of person.

DR. WITORSCH: Well, I do try to control my emotions. I was offended by some of them. But I've also been there before and I recognize that they're operating in an advocative environment. I've heard it before in other settings and seen it before and that's the way the system works, so that I don't take it too personally.

MR. RUPP: Would you agree if I were to suggest to you that the politics of the ETS issue can be quite vicious at times?

DR. WITORSCH: Oh, yes. I would very much agree with that.

MR. RUPP: In what respects would that be true?

DR. WITORSCH: Well, it seems to me that ETS is treated very differently from most if not all other issues. There are many controversial issues and scientists take positions and offer opinions and everyone respects other people's right to have an honestly-held opinion. But there seems to be a stigma attached, even if it's an honestly-held opinion, with taking the position that happens to support or coincide with the position of the tobacco industry.

Alvin Feinstein of Yale several years ago, a couple of years ago, I guess, more than that, wrote a very good editorial in which he addressed just that position, in which he made the point that the fact that scientists are giving their valid and honestly-held opinion that happens to help what others would characterize as the bad guys is still valid and should no more be condemned than should the fact that scientists who give an unscientific, inappropriate opinion to help the so-called good guys should be condemned because the end does not justify the means.

MR. RUPP: Would you agree if I said that a refusal by a scientist on grounds of cowardice, if you will, to give a frank opinion that might be unpopular and the manufacturing and manipulating of evidence to further a goal that is deemed by some interest groups to be laudatory equally corrupt science and are equally reprehensible?

DR. WITORSCH: Yes.

MR. RUPP: And that is true even if the interest being characterized is self-characterized as one to promote the public health.

DR. WITORSCH: Yes. I think it's inappropriate, does a disservice to society and does a disservice to science for a scientist to address science with another agenda.

MR. RUPP: When you've made presentations on the ETS issue, is it uncommon for the response to the extent that you've had actual examination on your presentations, is it unusual for them to focus on the substance of what you've said, the individual studies and your interpretation of them as opposed to kind of wide ranging questions of ethics and integrity for having associated yourself in any respect with anyone affiliated with the tobacco industry?

DR. WITORSCH: It is. Most of the time, the questions or the examination, particularly in a setting where there is cross-examination doesn't address the substance as much as it addresses peripheral issues like how can you do this for the tobacco industry, irrespective of whether what I'm saying is correct or not.

MR. RUPP: Have you had occasions at scientific meetings to discuss the science of ETS with scientific colleagues?

DR. WITORSCH: Yes.

MR. RUPP: And have you had conversations along the lines of the Feinstein editorial to which you referred, that is, a response to the scientists that they wouldn't get involved in it because it's going to be unpopular and hold them up to vilification even though they agree with you?

DR. WITORSCH: Yes.

MR. RUPP: Does that happen often?

DR. WITORSCH: It happens from time to time. Yes.

MR. RUPP: Mr. Myers during his examination mentioned a number of organizations and I'm going to try to repeat all of them and hold one to the side. Well, let me tell you, I want to deal with IARC separately but I want to deal with the other organizations mentioned by Mr. Myers and in particular the American Medical Association, the American Lung Association, the American Cancer Society and the American Heart Association, the American Thoracic Society.

Now, Dr. Witorsch, you've been active in all of those groups over the years?

DR. WITORSCH: Well, I've been a member of all of them. I have been active, I was a number of years ago, active in the local division of the American Thoracic Society and the American Lung Association.

MR. RUPP: Were you president of the District of Columbia chapter of the Thoracic Society?

DR. WITORSCH: Yes, I was president of the D.C. chapter and a member of the board of the D.C. Lung Association.

MR. RUPP: And how would you characterize those organizations, their purposes and their processes? Are they scientific organizations in the sense that they undertake scientific research, they sponsor scientific research, they sponsor scientific research, they engage in scientific analyses through broad ranging, non-political means? Or are they political organizations, interest groups, if you will?

DR. WITORSCH: Well, the Lung Association and what I know about the Heart Association and the Cancer Society for the most part are groups that are not involved directly in doing scientific research. They may fund scientific research, but they are involved in raising funds and what could be social or political agendas. The thoracic society, which is a medical division of the lung association, does get involved in scientific evaluation to some extent.

MR. RUPP: But not the parent Lung Association.

DR. WITORSCH: But not the parent Lung Association.

MR. RUPP: In fact, that's a political lobbying group as well as a charity, is it not?

DR. WITORSCH: It is, among other things. Yes.

MR. RUPP: Now, if I were to have a lung disorder, would I think about going to the chairman or the president of the American Lung Association to have it diagnosed? That is, is it a scientific position in that respect or is it a political position?

DR. WITORSCH: Well, the president of the American Lung Association may not even be a physician or a scientist. It may be a layman.

MR. RUPP: The American Medical Association, is it generally regarded as a scientific organization or is it regarded as a political lobbying organization?

DR. WITORSCH: I think most people would regard it as a political lobbying organization.

MR. RUPP: Would it surprise you to know that the American Medical Association is one of the largest political contributors as an entity that this country has ever seen?

DR. WITORSCH: No, it doesn't surprise me.

MR. RUPP: On both the state and federal level.

DR. WITORSCH: I'm aware of that.

MR. RUPP: Typically lobbying for the interests, the pecuniary interests, of its members, if I were to suggest that to you, would you have any basis for disagreeing or be surprised?

DR. WITORSCH: No. I'm not surprised and I have no basis to disagree.

MR. RUPP: The International Agency for Research on Cancer is a scientific, so-called scientific, arm of the World Health Organization, is that right?

DR. WITORSCH: That's what it's characterized as, yes.

MR. RUPP: Now, Mr. Myers asked you some questions about IARC. Let me first ask you questions about the WHO. Do you know what WHO's professed political position on smoking and the eradication of smoking is?

DR. WITORSCH: I believe that WHO has taken the position in favor of eradicating smoking by the year 2000.

MR. RUPP: Now, that's not a scientific position, I take it, that's a political-social position.

DR. WITORSCH: It's a political-social position.

MR. RUPP: Do you recall having read the 1986 IARC monograph that discussed the science of environmental tobacco smoke, in particular, ETS and cancer?

DR. WITORSCH: Yes.

MR. RUPP: Your Honor, if I may have a moment, I'd like to show that to Dr. Witorsch because I have a couple of specific questions.

(Pause)

MR. RUPP: After all of that, I must confess I didn't bring it with me but lucky for us, I remember it by heart.

(Laughter)

MR. RUPP: Do you recall that there are two pertinent paragraphs so far as the discussion of ETS, two concluding pertinent paragraphs, in that 1986 monograph, one of which discusses the pertinent epidemiology as it existed as of 1986, and the other then goes on to offer a qualitative assessment based on the composition of ETS in comparison to the composition of active smoking?

DR. WITORSCH: Yes. I recall that.

MR. RUPP: All right. Do you recall what IARC concluded in 1986 after reviewing the ETS lung cancer epidemiology?

DR. WITORSCH: Yes.

MR. RUPP: And would you inform us of that conclusion, please?

DR. WITORSCH: My recollection is that they concluded that the epidemiological data was insufficient to reach a conclusion of a causal relationship with lung cancer.

MR. RUPP: And indeed, if my memory serves me correctly, they said that the pertinent epidemiology is consistent equally with a small increase in risk and no increase in risk, that is, that the epidemiology is inconclusive.

DR. WITORSCH: That's correct. That's my recollection, too.

MR. RUPP: Now, the Surgeon General assayed the same issue in 1986, did he not?

DR. WITORSCH: Yes, he did.

MR. RUPP: And he came to a diametrically different conclusion with respect to the epidemiology of ETS and lung cancer, did he not?

DR. WITORSCH: That's correct.

MR. RUPP: As did the National Academy of Science in 1986.

DR. WITORSCH: That's correct.

MR. RUPP: So as of 1986, we have IARC so far as the epidemiology is concerned, the Surgeon General and the National Academy of Sciences taking different positions, do we not?

DR. WITORSCH: That's correct.

MR. RUPP: Now, you also recall passages in the Surgeon General's report of 1986 and the National Academy of Sciences report as of 1986 that cautioned against efforts to extrapolate from mainstream smoke in trying to reach conclusions concerning the health consequences or lack thereof of exposure to environmental tobacco smoke.

DR. WITORSCH: Yes, I recall that.

MR. RUPP: All right. Do you recall that nonetheless IARC in a single paragraph having about four or five lines said that since ETS comes from tobacco one is entitled to assume that there might be some risk of lung cancer.

DR. WITORSCH: I believe they said something to that effect, yes.

MR. RUPP: All right. So that's a presumption and a set of a priori conclusions without searching scientific examination.

DR. WITORSCH: That's correct. In the first paragraph, they concluded that the epidemiological data was not sufficient and could go either way, it could be interpreted either way, but then in the next -- I believe it was the next paragraph they said but it has to be a cause because of -- that it comes from mainstream smoke.

MR. RUPP: Well, if whatever relationship ETS may have to mainstream smoke were sufficient in and of itself to justify an agency's reaching the conclusion that exposure to ETS can cause lung cancer, why would there ever be any need for any epidemiologic study on the issue?

DR. WITORSCH: There wouldn't if that were sufficient but it's not sufficient.

MR. RUPP: If it were sufficient, would there have been any reason for an elaborate, several hundred-page report by the Surgeon General on analysis in 1986?

DR. WITORSCH: No.

MR. RUPP: Indeed, he could have so concluded and probably should have so concluded in 1964, should he not?

DR. WITORSCH: That's correct.

MR. RUPP: Because the chemicals at issue are the same chemicals.

DR. WITORSCH: Yes.

MR. RUPP: But yet that has not been done and wasn't done in that 22-year period.

DR. WITORSCH: That's correct. It has not.

MR. RUPP: Were you surprised when Mr. Myers indicated that he represented all of these medical organizations that I've mentioned, the Cancer Society, the Lung Association, the American Medical Association, the Heart Association, apparently the Thoracic Society, another association that he mentioned and whose views he described to you?

DR. WITORSCH: I was a little surprised. I didn't know he represented all of those.

MR. RUPP: Well, he's a very successful fellow, obviously.

If a respiratory function test or parameter is of no value in a clinical setting, how could it ever be of value in an epidemiologic study?

DR. WITORSCH: It can't be.

MR. RUPP: All right. Explain that to me.

DR. WITORSCH: Well, I think if anything, in a clinical setting you're dealing with an individual, one may use some tests that are less definitive or less certain or within that individual you can deal with the problem, sometimes deal with the problem with a variability in the test. But if you're dealing -- I think the standard for use of a test in an epidemiological situation is much higher than the standard for use of that kind of a test in a clinical situation.

MR. RUPP: Indeed, isn't it simple enough simply to say that if you can't use a particular function test to elucidate the condition of a single individual, there is simply no reason to believe that on a mass administered basis you're going to be any better? That is, the test doesn't become better over time with sequential and repetitive administrations. If it's bad, it's bad, it's bad, it's bad and a lot of bads are still bad.

DR. WITORSCH: That's correct. And that's what I thought I said but you articulated it much better than I did.

MR. RUPP: Ms. Sherman asked a number of questions that related to peer review and, as I understood the questions, to whether if a person is operating outside of his or her area of primary expertise that should raise a red flag for us. Do you remember those questions?

DR. WITORSCH: Yes, I remember those questions.

MR. RUPP: Okay. And I think the analogy Ms. Sherman used was molecular biology and economics.

DR. WITORSCH: Correct.

MR. RUPP: And I think your response was basically it may be a red flag but look at the views, assess the views and come to your own conclusions.

DR. WITORSCH: Correct.

MR. RUPP: Now, I want to ask a series of questions about operating outside one's area of expertise but before I ask that, let me try a general proposition on you and see if you agree or disagree, okay?

DR. WITORSCH: Okay.

MR. RUPP: That the ideal so far as a federal agency like OSHA which has a statutory obligation to assess the health significance of exposures is for the agency itself to look at the evidence that is presented in an objective and fair minded way with sufficient expertise to evaluate it and come to a fair minded conclusion and not rely solely on pedigree, place of publication or other article distinction of that sort.

DR. WITORSCH: I would agree with that.

MR. RUPP: Now, in the area of red flags, if we were to pursue that for a moment, would it be a red flag if one were to find someone expressing views on cardiology who is indeed trained as a mechanical engineer and has no training in any of the medical sciences or in cardiology?

DR. WITORSCH: That would certainly be one of those red flags.

MR. RUPP: But still you would want to look at the evidence that presented itself and find out whether in some other way expertise was developed.

DR. WITORSCH: Absolutely.

MR. RUPP: All right. What if you had someone who has no advanced degree other than perhaps a Master's but I'm not even sure of that but is reporting modeling in indoor air quality work but has no specific training in that area? A red flag but you'll still look at the evidence?

DR. WITORSCH: Exactly the same would apply.

MR. RUPP: Now, what if you had a series of these individuals that didn't have specific training in the areas in which they were professing to make observations or offer assessments on an issue like ETS but you knew that these people had been long-time political activists in the campaign against smoking across a broad range of issues not limited to ETS by any measure? Would that be a red flag?

DR. WITORSCH: Yes, it would be a red flag but I'd still want to evaluate what they had to say.

MR. RUPP: And assess it against the primary scientific literature, bring expertise to bear and try to reach a fair minded conclusion.

DR. WITORSCH: Right.

MR. RUPP: A question or two was asked of you, again, I think by Ms. Sherman although my memory may be failing me, concerning asthma. And while I don't think you mentioned this study by name, you used a figure 20 percent that I think comes from a study by Leaderer and co-workers at Tulane University.

DR. WITORSCH: That's correct.

MR. RUPP: And do I have the study correct?

DR. WITORSCH: Yes. It's from Leaderer's group.

MR. RUPP: Stankus and Leaderer.

DR. WITORSCH: Stankus and Leaderer. Yes.

MR. RUPP: Describe that study for me, would you, please?

DR. WITORSCH: Yes. It was a chamber exposure study in which they exposed individuals to environmental tobacco smoke in a controlled experimental chamber condition and measured respiratory flow rates with appropriate controls before and after the exposure and also assessed these people for symptoms and I believe also did physical -- examined their chests as well.

MR. RUPP: Do you remember how many people were involved in the study?

DR. WITORSCH: I think they had a total of 21 subjects in the paper.

MR. RUPP: That's my recollection as well.

DR. WITORSCH: And they found that about 20 percent of them, if I'm not mistaken, had some significant but still relatively small diminution in respiratory flow rates, specifically FEV 1, after that exposure but 80 percent did not and of that 20 percent that had a measurable decrease only some of them, I think it was a minority, had some symptoms or had any other clinical findings. So primarily this was a physiologic change, not necessarily a clinical change.

MR. RUPP: Okay. Now, do you recall, as I do, that the subjects, that the levels of ETS that were administered in the Stankus and Leaderer work were extremely high, that is, much higher than one would encounter in everyday life?

DR. WITORSCH: Yes. My recollection is that they were significantly higher than one would encounter in ordinary situations.

MR. RUPP: Do you remember whether Stankus and Leaderer indicated in their published work whether they had made any effort to deal with reactivity or stress? And what I have in mind there is the problems that can derive if people who are self-declared asthmatics are put in a chamber and are exposed to people smoking or to a cigarette smoking machine, which I think was the case --

DR. WITORSCH: Correct.

MR. RUPP: Did they make a specific effort to deal with either the stress or other aspects of the reactivity?

DR. WITORSCH: I don't recall what efforts they did make but my recollection is that there were some efforts that they didn't make or couldn't make. First of all, it's very difficult to blind cigarette smoke because it has a distinctive odor so that the subjects are likely to be aware of it. I don't believe that their subjects wore goggles which other people have used which would minimize or eliminate the eye irritation that would occur. That could also be a clue and lead to air flow obstruction on a psychogenic or neuropsychogenic basis rather than it representing an irritant effect of the tobacco smoke.

MR. RUPP: Do you recall whether Stankus and Leaderer concluded in their article that the 20 percent reactors, if I can use that term which is not quite scientifically accurate, perhaps, but perhaps captures it for our purposes, that they could not tell whether that reaction was a function of a response to ETS, it was because of ETS or because of stress or other factors but they hypothesized the possibility that those 20 percent might be reacting to ETS without reaching a definitive conclusion on the point?

DR. WITORSCH: I think that's pretty much as I recall their conclusion on that.

MR. RUPP: Now, shortly before that time or about the same time, the Surgeon General also looked at that issue, did he not?

DR. WITORSCH: Yes.

MR. RUPP: And do you recall what conclusion the Surgeon General reached concerning whether exposure to ETS had been shown to be a cause or to exacerbate asthma?

DR. WITORSCH: My recollection is that at that time, the Surgeon General concluded that it had not been shown to be a cause or to exacerbate asthma.

MR. RUPP: Now, let's think about -- let me ask you to assume that exposure to ETS, at least very high levels of exposure to ETS, might exacerbate the condition of at least some asthmatics if in sufficient proximity. I take it what we are talking about here is a dose-related phenomenon.

DR. WITORSCH: Yes.

MR. RUPP: So that there might be any number of remedies quite apart from banning smoking or putting people out, people who smoke, out on a ledge to deal with any reaction, whether psychological or other, that the asthmatics might be suffering.

DR. WITORSCH: I suspect there would be.

MR. RUPP: Moving people from one room to another until they're satisfied, for example?

DR. WITORSCH: Yes.

MR. RUPP: And, indeed, so far as the stress aspect is concerned, blinding the people, making it impossible for them to see any smoke in the environment, would itself go a long way toward dealing with the situation.

DR. WITORSCH: That would in some instances. Yes.

MR. RUPP: Have you had an opportunity to review a 1994 article in "Cancer Research" written by Drs. Wynder and Hoffman on ETS and lung cancer?

DR. WITORSCH: I don't recall a '94. I have not had an opportunity to read that article.

MR. RUPP: Well, my recollection of this article is that they concluded with IARC that the epidemiologic evidence on ETS and lung cancer is now and was as of 1986 inconclusive, so in agreement with IARC. Would that surprise you?

DR. WITORSCH: No. There is an article, I don't recall that it was '94.

MR. RUPP: Could it be '93?

DR. WITORSCH: It may have been '93. By Wynder and Kabat, I believe, that concluded --

MR. RUPP: Wynder and Kabat rather than Wynder and Hoffman?

DR. WITORSCH: I think it was Wynder and Kabat, my recollection.

MR. RUPP: Is that your recollection of the conclusion?

DR. WITORSCH: Yes. I'm pretty sure it was Wynder, Ernest Wynder and Jeffrey Kabat, who concluded that.

MR. RUPP: So far as peer review is concerned, I take it there are a variety of levels and sophistication of the peer review process.

DR. WITORSCH: Yes.

MR. RUPP: And how much stock one should place in it depends on a wide variety of factors.

DR. WITORSCH: Yes, it does.

MR. RUPP: What are some of the factors?

DR. WITORSCH: Some of the factors would be the degree of peer review, the number of peer reviewers. Some of the factors would be how the journal selects the peer reviewers. And also what the response of the editors is to peer review and the interaction that may or may not occur between the peer reviewers' opinions and the author's opinions.

MR. RUPP: Now, many of us are here as laymen, not ourselves publishing in peer reviewed journals. What concerns need we have as we look at peer reviewed journals? What biases, for example? Is there a bias -- let me step back.

A number of people have testified that there is a bias in most peer reviewed journals against the publication of negative results. Is that your experience?

DR. WITORSCH: Yes.

MR. RUPP: And why is there such a bias?

DR. WITORSCH: Negative results are, I guess, less sexy than positive results and journals tend to be less inclined to publish them.

MR. RUPP: Have you seen peer review processes end with a passage through to publication of articles of poor quality because they came out on the "right" side of the issue?

DR. WITORSCH: Absolutely.

MR. RUPP: Have you seen that in the ETS area?

DR. WITORSCH: I have seen that particularly in ETS.

MR. RUPP: And why in the ETS area?

DR. WITORSCH: I think as I mentioned earlier ETS is regarded as a special animal. Tobacco smoke is regarded as a special entity. And it seems to have a different standard applied to it and my opinion is that material papers that would never be published if they dealt with any other subject, with so many flaws that they would never get through the peer review process, just seem to sail right through or anyway get published and I think there are many examples of that.

MR. RUPP: How difficult would it be as a general proposition for a scientist to publish in a peer reviewed journal an analysis of a government report? Now, I'm not talking about a letter to the editor necessarily, I'm talking about a full blown, serious analysis of a government report that was not itself published in the particular journal. Is there a policy for most journals to publish in the journal as responsive pieces only pieces that respond to materials that appear in that journal?

DR. WITORSCH: For the most part, that's what -- there are some exceptions to that occasionally but the vast majority of instances, what's published in those journals, whether as editorials or as letters to the editor or as articles usually deal with other material in that journal. Sometimes material in other journals but still within the scientific literature. It's very unusual to see something published in a peer reviewed scientific journal that is a critique of a government document.

MR. RUPP: So if I were a scientist and I thought the 1992 EPA report on ETS were a piece of junk, I'm going to have a fair amount of difficulty getting my analysis of that report published in "Science" for example.

DR. WITORSCH: You're going to have difficulty getting it published for several reasons. One, because irrespective of the subject, that's not something that the journals usually publish. Number two, because of the subject and because of the bias, I think you will have extreme difficulty publishing an article that criticized the EPA report that came out and said all the right things.

MR. RUPP: Because of political reasons.

DR. WITORSCH: Because of political reasons.

MR. RUPP: Thank you, Dr. Witorsch.

Thank you, Your Honor.

JUDGE VITTONE: Thank you, Mr. Rupp.

Dr. Witorsch, thank you for your time today.

MS. SHERMAN: I have a few more questions, if you will.

JUDGE VITTONE: Keep it short, please.

MR. RUPP: Excuse me.

Because of Dr. Witorsch's hip problem, I wanted to ask whether he needed a break before he continues?

DR. WITORSCH: I'll be okay for a few more minutes. Thank you.

MS. SHERMAN: I believe that you and Mr. Rupp engaged in some discussion about blinding people exposed to ETS.

DR. WITORSCH: Yes.

MS. SHERMAN: And you seemed to think that you would have fewer complaints?

DR. WITORSCH: I think if people couldn't see -- if there was some way that people couldn't see the smoke, I assumed he wasn't referring to putting their eyes out --

MS. SHERMAN: I assumed so also.

DR. WITORSCH: -- but he was referring to making it difficult to see or a situation where people could not see the smoke. Yes, I think that would lead to fewer complaints.

MS. SHERMAN: But would you agree that one cannot necessarily smell all toxic substances?

DR. WITORSCH: Yes, I agree with that.

MS. SHERMAN: Or see them?

DR. WITORSCH: Or see them. Yes.

MS. SHERMAN: I think that you also testified in response to some of Mr. Rupp's questions that there is a bias against negative results in peer reviewed journals.

DR. WITORSCH: Yes.

MS. SHERMAN: Have you ever tried to publish a negative study and been turned down?

DR. WITORSCH: I don't recall that I have.

MS. SHERMAN: You also stated that peer reviewed journals have published some poor science on ETS. Is that not so?

DR. WITORSCH: Yes.

MS. SHERMAN: Which studies were you referring to?

DR. WITORSCH: Well, the one that jumps to mind is the White and Froub study that was published in "New England Journal of Medicine" which was subsequently criticized by a lot of people, including Michael Lebowitz. It was methodologically probably one of the worst pieces of garbage ever published.

MS. SHERMAN: It's called White and --

DR. WITORSCH: White and Froub, F-R-O-U-B.

MS. SHERMAN: Can you think of any other studies that you would term as poor science?

DR. WITORSCH: Well, I think the Hiriyama study has been so characterized by a number of people.

MS. SHERMAN: Are you characterizing it as such?

DR. WITORSCH: Pardon?

MS. SHERMAN: Do you believe it's poor science?

DR. WITORSCH: Yes. I think Hiriyama is a poor study.

MS. SHERMAN: Why do you believe Hiriyama is a poor study?

DR. WITORSCH: I think Hiriyama has methodology that leaves something to be desired. There are inconsistencies in some of Hiriyama's data. There are inconsistencies between studies that Hiriyama has published, so I think Hiriyama's study is not a good study.

MS. SHERMAN: What didn't you care for in Hiriyama's methodology?

DR. WITORSCH: I don't recall specific details. I'd have to go back and look at that again.

MS. SHERMAN: I believe that you and Mr. Rupp discussed a study by Wynder and Hoffman?

DR. WITORSCH: There was a paper by Wynder and Hoffman. I don't know if it was -- I don't recall that it was a study as much as it was a review article. I'm sorry, I thought he was referring to a paper by Kabat and Wynder or Wynder and Kabat. I don't recall Wynder and Hoffman. I may be mistaken.

MS. SHERMAN: I see. Okay. Well, thank you.

JUDGE VITTONE: Thank you, Doctor. We appreciate your time today.

MS. SHERMAN: Also, Dr. Witorsch, can I have back the comments that I gave to you?

DR. WITORSCH: Right here.

MS. SHERMAN: And, also, Your Honor, I would like to enter the ATSDR paper that I showed Dr. Witorsch as an exhibit. This is just from my own notebook. This was comments to the agency --

DR. WITORSCH: Do you want my updated C.V.?

MS. SHERMAN: That would be useful.

JUDGE VITTONE: Do you want the updated C.V.?

MS. SHERMAN: Yes. Why don't we put it in the record?

JUDGE VITTONE: Okay. We have identified Dr. Witorsch's slides as 214.

The September 1994 article called "A Standardized Test Battery for Lung and Respiratory Diseases for Use in Environmental Health Field Studies," U.S. Department of Health and Human Services, Public Health Service, will be Exhibit 215.

(The document referred to was marked for identification as Exhibit 215 and was received in evidence.)

JUDGE VITTONE: And Dr. Witorsch's C.V. will be Exhibit 216, dated 12/17/94.

(The document referred to was marked for identification as Exhibit 216 and was received in evidence.)

JUDGE VITTONE: Tomorrow, we will begin with Mr. Holcomb, who has agreed to stay over until tomorrow morning. We will put him on first.

And then we will follow with the one witness or two witnesses from Price Waterhouse?

MS. SHERMAN: I believe that Mr. Galford is representing Price Waterhouse.

JUDGE VITTONE: All right. So we'll start off with Mr. Holcomb at 9:30 and then we will go to Price Waterhouse and those are the only two witnesses we have for tomorrow.

MS. SHERMAN: Those are the only two I know about, Your Honor.

JUDGE VITTONE: If you don't know them, then I don't know them.

MR. MYERS: Your Honor, in response to a question asked earlier, I've been here all day, all afternoon like you so I don't have a great deal more information, but some people did some checking for me and R.J. Reynolds is a member of the Total Indoor Environmental Quality Coalition and I am told was the leading force behind its creation in 1992, so it does appear [inaudible comment].

JUDGE VITTONE: Did you want to say something, sir?

MR. EGERTON: Yes, Your Honor. I also went and did some checking and found out that that's an industry coalition of some 20-some dues paying members. I have the names of just a few of them but they include AT&T, Armstrong Worldwide Industries, Georgia Pacific, Trane, Johnson Controls. The coalition is apparently chaired by Armstrong Worldwide Industries and I don't have any idea why they've pulled out but apparently they sent a letter.

MS. SHERMAN: They did send a letter and I don't know why they pulled out either.

MR. MYERS: [Inaudible comment.]

MR. EGERTON: No, that's right. R.J. Reynolds is one of these 20-odd members and I believe the submission dealt with all aspects of the rule.

MS. SHERMAN: I do not have the submission in front of me.

MR. EGERTON: I haven't read it but I understand it dealt with IAQ, ETS, all aspects of the rule. And I also believe they have been rescheduled at least twice, not on their own request.

JUDGE VITTONE: All right. I'll take a look at it tomorrow.

Tomorrow, as I said, Mr. Holcomb, then Price Waterhouse witnesses. I have been handed I guess an updated schedule. Thursday, we will have J. Wesley Clayton. We will not have ICF Kaiser, they are not going to be here?

MS. JANES: No. They're coming on the 23rd.

JUDGE VITTONE: Okay. And Thursday we will have Consultants in Toxicology, Gordon Newell?

MS. JANES: And the Vermont Business and Restaurant Coalition wants to come Friday instead of Thursday.

JUDGE VITTONE: Okay. The Vermont Business and Restaurant Coalition will be on Friday, the 13th. Then on Friday we will also have Henry Beale?

MS. SHERMAN: Yes.

JUDGE VITTONE: American Federation of Government Employees, Joe King, is that right?

MS. JANES: Yes, sir.

JUDGE VITTONE: And Tom Pharr, P-H-A-R-R, and a walk-on, Robert Edgar.

MS. SHERMAN: That's correct.

JUDGE VITTONE: Are we going to get all those in?

MS. SHERMAN: We hope so.

JUDGE VITTONE: Okay. See you tomorrow morning at 9:30.

This document's URL is: http://www.tobacco.org/Documents/osha/950110osha.html


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